Hogg & Macmillan

[2022] FedCFamC2F 1853

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hogg & Macmillan [2022] FedCFamC2F 1853  

File number(s):	BRC 11984 of 2020
Judgment of:	JUDGE WILLIS AM
Date of judgment:	13 October 2022
Catchwords:	FAMILY LAW – COSTS – urgent application for recovery of child – where mother brought application for a recovery order because father has withheld child contrary to interim orders – where matter has an upcoming trial date – where father’s reaction to an incident(s) has been entirely disproportionate – where father did not appear at Court for the hearing of the recovery application – where recovery order is granted – where the father is ordered to pay costs on an indemnity basis to the mother and Independent Children’s Lawyer
Legislation:	Family Law Act 1975 (Cth) s 117
Division:	Division 2 Family Law
Number of paragraphs:	27
Date of hearing:	13 October 2022
Place:	Brisbane
Solicitor for the Applicant:	Mr Harris
Counsel for the Respondent:	Mr Carlton
Solicitor for the Respondent:	Ms Bookallil
Counsel for the Independent Children's Lawyer:	Mr Hii
Solicitor for the Independent Children's Lawyer:	Ms Rayward

ORDERS

BRC 11984 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR HOGG

Applicant

AND:

MS MACMILLAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE WILLIS AM
DATE OF ORDER:	13 OCTOBER 2022

THE COURT ORDERS BY CONSENT THAT:

1.The Father return the child, X born 2019 (“the child”) to the Mother at 3pm today at the Suburb C Library today, 13 October 2022.

2.The child will live with the Mother until Monday 17 October 2022.

3.The child is to be returned to the Father at 5pm on Monday 17 October 2022 and thereafter the current Orders of 10 November 2021 will continue to apply.

4.As to changeovers, from the date of this Order, any person who is known to the Child, on the direction of either party, be permitted to attend changeover on behalf of that party and collect and/or deliver the child.

5.The parties be restrained by injunction from filming and/or recording changeovers.

Recovery order to lie in the registry

6.Subject to Order 7 herein, a Recovery Order do issue authorising/directing the Marshal of the Federal Circuit and Family Court of Australia, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

(a)To find and recover the child, X born 2019 and to deliver the said child to such place as the Mother and the person effecting such recovery agree to be appropriate; and

(b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

7.The recovery order referred to in Order 7 herein lie in the registry until further order.

8.The recovery order will issue in accordance with Order 6 herein upon the mother filing an  affidavit deposing to the failure of the Father to return the child to her care in compliance with the current Orders

Section 62G - UPDATED

9.In preparation of the trial listed for final hearing on 11 & 12 July 2023 and pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and the child, X born 2019 (“the Child”) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant or Reg 7) nominated by the Court Children’s Service (“the Court Child Expert”) for the purposes of the preparation of a updated Family Report on a date to be advised, noting that Mr B previously completed the last report and Ms D completed the first Family Report.

10.Pursuant to section 62G(2) of the Family Law Act 1975, a person to be nominated by the Family Dispute Co-ordinator is appointed as Court Expert to inquire into and report on parenting issues in relation to the Child and the parties are to co-operate with the report writer and make themselves and the Child available for interview and observations as and when requested to do so.

11.The Family Report deal with matters which arise from each of the applications, including relevant reference to:

(a)The matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and

(b)Any other matters that the Family Report Writer considers important to the welfare or best interests of the children and noting all of the interim applications.

12.The Family Consultant is granted leave to inspect the Subpoena material, exhibits and material filed in preparation for the Family Report interviews.

Costs

13.The Father pay the Mother’s Costs of and incidental to this Application, fixed in the amount of $10,000, by no later than 1 April 2023.

14.The Father is to pay the Independent Children's Lawyer costs of and incidental to this Application, fixed in the amount of $2,000 by no later than 1 April 2023.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hogg & Macmillan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
Revised from transcript

JUDGE WILLIS AM:

1. This is a settled ex tempore judgment revised from the transcript.

2. These reasons concern an application for costs, following on from the Application in a Case that the Court listed at the request of the mother; an urgent application. The Application in a Case was filed on 10 May 2021 by the mother, Ms Macmillan born in 1998 (“the mother”), who is the Respondent in the substantive proceedings. The Respondent to the Application in a Case is the father, Mr Hogg born in 1997 (“the father”), who is the Applicant in the substantive proceedings. The Application in a Case, and substantive proceedings, concern the child X born 2019 (“the child”).

3. The Application in a Case was listed with the context of there having been various Orders made since 2020, starting off with the mother having supervised time. There was an investigation by the Department of Child Protection (under whichever name it operated at that time) not long after the child was born, and ultimately, the parties agreed to having the opportunity, whilst all legally represented, to appear before Registrars, and appear in the Court processes.  Back in June 2021, a Senior Judicial Registrar made Orders by consent that the child spend unsupervised time with the mother at all times as agreed in writing. That unfolded through a schedule from 10am until 2pm each Monday and Thursday; thereafter, from 10am to 4pm each Monday and Thursday; and thereafter, 9am to 5pm each Monday and Thursday, and special days.

4. Changeovers were at the library, and there were all sorts of authorities made for the mother and father to attend any and all appointments. Other matters covered by the Orders were the mother continuing to attend upon her psychologist for support, recovery, and development of her parenting and relationship skills; the father to continue to attend upon his psychologist for support, recovery, and development of his parenting and relationship skills; that within seven days each of the parties enrol in a parenting orders program, and that they be at liberty to provide a copy of the Family Report to their treating medical practitioners.

5. And then, there is a further order that the mother’s application for overnight time, in paragraph 1 of her Application in a Case filed on 10 May 2021, be adjourned for a further interim hearing on 10 November 2021.  All other interim applications were dismissed.

6. There was a Contravention Application filed by the mother, which was discontinued, and the date of 30 June 2021 was vacated. 

7. Then at the interim hearing on 10 November 2021, the mother was represented by Ms E of Counsel, Mr Harris appeared on behalf of the father, and Mr Hii of Counsel appeared on behalf of the Independent Children’s Lawyer. Further interim Orders were made by the Senior Judicial Registrar vacating all of the previous Orders about the spending time arrangements, making Orders that from 11 November 2021 until 15 January 2022, the child is to spend time with the mother each Monday from 9am until 5pm, and from 8am Thursday until 6pm Friday, and with the father at all other times.

8. There was agreement about Christmas Day and Boxing Day, and then moving on, from 16 January 2022 until 30 March 2022, the child was to live with the mother, each week from 3pm Sunday until 5pm Monday and from 8am Thursday until 6pm Friday – and live with the father at other all times. Then, we moved to the schedule that is happening now, from 31 March 2022 indefinitely, the child is to live with the mother, each week from 3pm Sunday until 5pm Monday, and from 8am Thursday until 6pm Saturday – and live with the father at all other times. The father was ordered to provide the mother with his residential address and information about with whom he is living, the parties had leave to restore the matter if there was dispute about the implementation of the Orders, and another Family Report was ordered.

9. The reason that this matter was relisted urgently and Court time allocated (actually listed in my lunch hour in the middle of a trial) is because the father made allegations that the two year old child – who is the subject of all of these Orders – told him things. The father says that the two year old child told him, effectively: that the mother’s new partner is going to kill him, and the child said he didn’t want to die; and that the mother chimed in and said, “Yes, I’m going to kill you too.” These circumstances of disclosure set out in the father’s affidavit have been addressed by the mother, who denies any conversations to that effect.  Very importantly, an affidavit was also filed by the mother’s partner, who took great trouble to explain, at length, in his affidavit all of his movements on the days prior to the child returning to the father; setting out specifically what he had been doing, what he had not been doing, when he was home, and when he wasn’t home.

10. In looking at the independent evidence about the mother’s partner, Mr G, who is alleged to have told the two year old that he was going to kill him, I am looking at the following evidence. Mr G is an educator; he is born and raised in City F. He attended school to the completion of grade 12; he enrolled in university. He completed a degree, and a graduate diploma.  I can see that he works in City F – this is referred to in the first family report. He has degrees from J University online. He had formerly been in a two and a-half year relationship. At that stage, he had not yet met X (the child). Mr G and the mother had entered into a relationship where he understood that having X was all part of the arrangement. He was excited, and looking forward to the future, and he and the mother, in the first Family Report, were looking forward to their own happy future.

11. The Independent Expert interviewed Mr G a second time, in the current Family Report, and much of that was repeated. The mother and Mr G – as I understand it – are now expecting their own child. Mr G is building a home. There has never been any violence in the home. This Report has been released since last June; there is no disturbing history, or any criminal history that the Court is aware of. 

12. And so, I read in the father’s material then – in light of all of that engagement, all of the Court hearings, all of the consent orders made, and all of the knowledge about the mother’s partner – an affidavit is filed by the father, noticeably, though, who withheld the child contrary to Orders, and did nothing to alert the Court to the basis of him contravening the Orders.

13. When you withhold a child contrary to Orders, and sit and wait for the other party to do something, the other party has no alternative other than to commence an action. And so in this costs application under section 117 of the Act, I am now considering conduct under section 117(2A) of the Act which sets out the relevant considerations that I must have in determining a costs order. I refer to the relevant sections. I note that 117(1) says each party pay for their own costs. I note that 117(2) says, “If the Court is considering making of costs, then there are issues to be considered.” One of them is conduct.

14. So, the conduct of the father in the midst of all of this litigation, the first thing I observe, is he did not come to Court. He was so worried about this child being in the mother’s care, whereas, the allegation really is primarily about the partner. In the affidavit for this urgent application, I note that, first, I have to go through the affidavit, and go back to the year 2020, and read about the things that have happened in the past, and suspicions about the mother causing harm deliberately, which have never been substantiated. And then I read that the child is being withheld. I go to paragraph 23 and then I read a lot about other information that, with respect, is not that relevant to an urgent application being listed with much priority.

15. Going back over old history, I then get to read about a bruise in June 2022. All children are going to have bruises, but in this matter there seems to be an extreme level of mistrust. Then there are some comments made about how the father was taken aback about an internet page for the mother’s partner, who had a very serious reaction to a medical treatment.

16. The mother’s partner has, in response, had to set out all of his evidence about all of the medical issues he had and that he ended up in a wheelchair, because the father wanted to tell the Court in this urgent application that he was really taken aback by the mother’s partner setting up an online profile. The father went on to say that he has seen the mother’s partner walking in this time (i.e. not using the wheelchair).

17. In continuing to read the affidavit, the urgent evidence finally gets back to the father withholding the child. I then read that since the father has done this, things have been great because the child has been able to spend more time with his grandparents, aunties and uncles, who he rarely gets to see due to the contract arrangements. I have asked myself, given I am hearing evidence that the father is home with the child during the week, so why isn’t the child being taken to see his grandparents, aunties and uncle in those days? I do not know, but that is something that I am to take into account in this allegedly urgent application.

18. Then in the affidavit, there is more information from the father about he and his partner, Ms H. The father had his partner ring up and report what he had thought he had heard at the changeover. Then I read that the father and his partner also want to say that the child made a disclosure to the partner. The disclosure was that the child was being showered and the child pushed his hips forward and grabbed his penis with his hand, moving his hand in an up-and-down motion, and the child said, “This is what I do when Mum asks to see my penis,” and the child repeated that, “Mum asked to see my penis.” Ms H called out to the father and he went to the bathroom, and Ms H asked the child to repeat what he had said, and he said, “Mum asked to see my penis and I go like, no, I don’t want to show [Mr G].  I want to keep it in my pants.” And so what do we have here? A veiled application; a suggestion that there is something unsavoury going on with the mother’s partner. So all of these very - according to the father - very serious incidences about what he was told, about what Mr G said, “I will kill you,” and the child disclosed, “[Mr G] said, ‘I’ll kill you,’ and “I don’t want to die.” Despite all of this, the father did not come to Court. 

19. The father forced the mother to go to Court.

20. I am told that the father has been legally aided up until today. The mother has spent in excess of $30,000 getting this all ready. As they arrived to Court – I will pause here to say that I mentioned the matter in Court on 4 October 2022, spoke to the parties and listed it for an urgent hearing. There was plenty of opportunity for the father to reconsider his position, but that seemingly has not happened. And so – we are here on 13 October 2022 with the father not having allowed any contact at all with the mother. As I understand it, there has not even been any video/phone time. It seems the reaction of the father to this incident has been entirely disproportionate. I do not understand why there would not have at least been video/phone time. Further, there is no explanation about, if the father was so worried, why he did not come to Court. Someone less charitable than I might think that that was quite strategic: I will hold the child. The mother will have to go to Court. She will have to spend money. 

21. The reality is that this is what happened, and as soon as the matter was listed today and all the arrangements are made for the Court, and other parties in a listed trial have had to vacate the courtroom, so that we can hear this urgent application – the application is then not run/not proceeded with.

22. In all of those circumstances, and in taking account of the father’s income which is normally $40,000. He is not working as much. The mother is about to have another child. Time will tell at cross-examination of this trial as to the real motivations. The timing, the manner in which it was done, and, all said and done, what has to be said, the elephant in the room, is that when considering the alleged risk, as I am asked to do, I have to consider the probability of this occurring, and the evidence involves relying on someone who is two years old making allegations about a person who has devoted their lives to others – and I am to believe that the mother and her partner are telling the child that they are going to kill him; infanticide, which is a shocking crime, and it is not one committed routinely.

23. I have also taken account of the utter waste of Court time. Also the significant consideration that costs are not always a remedy for what has occurred. In this case, it is not acceptable that the father has turned up and said, “Great, well, now I am just going to agree to not push this.”

24. Having considered all of the circumstances, I am quite satisfied that this is a matter in which 117(1) where each party pays their own costs does not apply and that there are circumstances that exist for a costs order to be made. The costs on the scale are miniscule in comparison to what the mother has had to pay. I am quite entitled to fix a sum for the costs. The indemnity costs are $30,000. The costs as per scale are $3,255. I am not satisfied that the scale properly represents the injustice that has happened in this case, and I intend to fix the costs at $10,000. In terms of the Independent Children’s Lawyer, I intend to fix the costs at $2,000.

25. It is time for this litigation to settle down, and what has happened now at this point is that there have been serious allegations about the mother’s mothering; there have been unresolved outcomes; the Department have looked at the mother even recently and said that they have no concerns at all; both the mother and father were seen as parents who were willing and able to look after the child.

1. Importantly in this matter, I should have also said that the Department have regarded these complaints as entirely fitting with the conduct of people that are arguing in this Court. This is what people in this Court do. They come up with an allegation, go and report it, then come to this Court and say, “I have subpoenaed the material, and here are all the allegations,” but the Department have concluded that the allegations do not meet the threshold. 

2. The matter has been given a trial date. I would strongly urge the parties to settle down, because these kinds of applications can tend to draw attention to a particular party. And often, that is the party pointing at the other party.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Willis AM.

Associate:

Dated: 7 July 2023