Huxley & Barlas
[2023] FedCFamC2F 1605
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Huxley & Barlas [2023] FedCFamC2F 1605
File number(s): MLC 9715 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 30 November 2023 Catchwords: FAMILY LAW – final parenting order – proceeding on an undefended basis – sole parental responsibility – costs order – orders in line to what is sought by mother – father did not appear in court – father has been inconsistent throughout proceedings – child impact report – recommended for time with father – father has not taken up time available or participated in mediation – father put mother at necessary costs Legislation: Family Law Act1975 (Cth) ss 117(2) & (2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 1.33, 10.26, 10.27 and 15.19
Division: Division 2 Family Law Number of paragraphs: 69 Date of hearing: 30 November 2023 Place: City C Counsel for the Applicant: Mr Goldman Solicitor for the Applicant: JS Law The Respondent: No appearance ORDERS
MLC 9715 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HUXLEY
Applicant
AND: MR BARLAS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Applicant Mother have sole parental responsibility for the child X (also known as X) born in 2015 (“the child”).
2.The child live with the Applicant Mother
3.The Respondent Father spend time and communicate with the child at all times as may be agreed in writing between the parties.
4.The parties advise the other of any change of telephone number or email address within 24 hours of such change occurring.
5.The parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the child.
6.The parties encourage and not undermine each child’s relationship with the other party.
7.Order 10 of the Orders of 17 February 2023 be and is discharged.
8.On account of the Mother’s legal costs, the Respondent Father shall pay the sum of $12,000 by instalments of $500 each month over the next two years or until the sum paid is $12,000 to the solicitors of the Applicant Mother, J.S Law, by payment or transfer on the first day of each month, with the first payment to be on or by 1 January 2024.
9.The court reserves the liberty to apply for enforcement of Order 8 herein.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
C.The Respondent Father, Mr Barlas, was called outside of Court at 10.16am and there was no response to the call.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore on the November 2023 City C Circuit sitting of the Court. These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors and repetition have been corrected, heading, citations and/or passages of authorities and evidence added and an attempt has been made to make the orally delivered reasons easier to read. But the substance is unchanged.
Proceed undefended.
In the matter of Huxley & Barlas, I have been asked to deal with an application for parenting orders on an undefended basis. I have determined that I will proceed in the absence of the respondent Father, Mr Barlas. However, I have determined without objection to have regard to his affidavit filed in the proceedings on 21 October 2022.
Significant events
The parents commenced a relationship in 2013 and later commenced to cohabit, and then in 2015 their child, X, was born. The parents married in 2015 and separated in February 2017. X is now eight years old and has lived his whole life with his Mother, Ms Huxley. The Mother is currently unemployed and is aged 35.
X’s Father is aged 35 and is a tradesperson by occupation. The Mother has a son aged 10 from a prior relationship who also lives with her. The proceedings have a significantly troubled and colourful history.
Arrest Warrant got Father’s attention
The significant aspect of the litigation is the Father’ inconsistent engagement in the proceedings. When the proceedings commenced in August 2021, only property matters were in issue. The Father’ engagement in those proceedings was such that in mid-2022 the presiding judge issued a warrant for the Father’s arrest, together with a request that he be bailed to a day approximate to the issue of the warrant.
I accept that the Father was subsequently arrested in the sense of arranging to attend the police station for the warrant to be executed and for him to be bailed to appear at the same time. That process sufficiently caught the Father’ attention that he did attend at the next Court date.
Notice and opportunity to be heard
The first matter I need to be satisfied of is that the Father has notice of the proceedings, notice of this hearing, and has had an opportunity to participate if he chose. Following the execution of the warrant for the Father’s arrest because of his non-engagement in the proceedings, on in late 2022, the Mother filed an amended initiating application that introduced the issue of parenting orders into the proceedings.
Father files affidavit and attends conciliation conference
The Father, represented at the time, filed a responding affidavit on 21 October 2022. Soon after, on 7 December 2022, the parties attended a conciliation conference regarding property matters and they were resolved on a final basis with Court orders. The Mother commenced to represent herself on 10 January 2023. Thereafter, there was some discussion between the parties.
Fathers says “withdrawing” but appears
On 3 February 2023, the Mother received a text message in courteous terms from the Father where he advised that he was 100% withdrawing from parenting orders. The Mother understood that he would not be appearing, and the matter having been listed for an interim defended hearing regarding parenting matters on 17 February 2023, the Mother represented herself on that day. The Father appeared on that day, notwithstanding that he had a couple of weeks earlier said that he was withdrawing from the proceeding.
Father stops calling
Consent orders were made for the Father to communicate with X by telephone each week. Thereafter, on the next time for a telephone call, the Father telephoned X and again the following week, that is, he called on 23 February 2023 and on 2 March 2023 and thereafter did not call.
As a result of the Father appearing by lawyers on 17 February 2023 and thereafter appearing to be represented, the Mother decided sensibly to again engage lawyers. Her lawyers filed a notice of address for service on 6 March 2023.
The next phone call due on the weekly basis would have been due on 9 March 2023. The Father did not call. I decline to draw that inference that the Father ceased calling X pursuant to the orders because somehow his node was out of joint in regard to the Mother again retaining lawyers. The Mother’s counsel this day very fairly point out to me that that is not the only inference that is available.
Father attend Child Impact Report interview
On 17 February 2023, an order was made for a Child Impact Report. The parents attended by video link upon the report writer on 7 March 2023. As ordered, the Mother took herself and X to the Melbourne registry for the purpose of the interview with X on 14 June 2023.
The recommendations from the Child Impact Report that was provided to the parties on the – in writing on 21 June are as follows.
27.That spend time is reinstated between [X] and [Mr Barlas]. It will be important that this relationship is allowed to develop in person, with some independence from [Ms Huxley]. It appears the audio calls occurring were not facilitating the relationship between [Mr Barlas] and [X] and instead potentially placing him in the middle of the dispute. Given [X]’s attention difficulties and preference for hands on play based activities, in person sessions may also be developmentally appropriate.
28.It is recommended that the first re-introduction occur with some support in place for [X] and both parents close to his home in [City C]. This may involve two to four sessions at a Contact Centre. Supervised time is recommended due to the perceived support required for both parties and [X], rather than the identification of risk issues in this matter. This includes a supportive changeover process for [Ms Huxley].
29.Following sessions at a contact centre it is recommended that there is no disruption to spend time continuing. It may be beneficial for changeover to occur at the Contact Centre whilst spend time occurs in the local community at [City C]. This may be at a park or a playcentre for [Mr Barlas] and [X] to engage I fun activities for a short three hour period. It will be important for [X] to experience consistent, predictable and positive spend time with his father.
30.It will be imperative that [Mr Barlas] commits to the spend time arrangements and notifies and communicates any changes to the other party. In considering the potential barriers to child-focused communication, it is recommended that communication occur only through an app such as AppClose.
31.Both parties may also benefit from completing the ‘Parenting after Separation’ course. This will help focus on collaborative decision making and continuing to ensure communication is focussed on the children’s needs.
32.[X] will benefit from [Ms Huxley] supporting his relationship with his father.
33.That [Ms Huxley] continue to receive psychological support for her recently diagnosed [mental health condition], alongside her previously diagnosed anxiety and depression.
[emphasis added]
On that day, the Mother was provided with what is described as feedback from the report writer, but it appears that the Father, notwithstanding his appearance by video link on 7 June 2023, was unable to be contacted for oral feedback from the report writer.
Consent orders for Mediation
On 3 July 2023, the matter came before the Court again for a directions hearing with both parties represented. Orders were made by consent that the parties would attend mediation with a named experienced mediator, experienced in both writing reports and assisting families in crisis.
Father’s solicitors withdraw
On 2 August 2023, the Father’s solicitors withdrew from the proceedings. The notice of intention to cease acting and the notice of withdrawal are exhibits in these proceedings before me and labelled Exhibit C2 and Exhibit C3. The notice of intention to cease acting and the notice of ceasing to act record the Father’s known mobile phone number as ending in … and also his email address known as “…”.
Furter advice to Father of hearing
After the notice of withdrawal or ceasing to act by the Father’s solicitor, no further response or communication has been received from the Father. In the lead-up to the hearing of 11 September 2023, the Mother’s solicitor had telephoned the Father – or attempted to telephone the Father on 18 August 2023, 23 August 2023 and again on 1 September 2023. In addition to that, on 16 August 2023, 6 September 2023 and 8 September 2023, the Mother’s solicitor emailed the Father essentially requesting his response and engagement in the proceedings. All of those letters were sent in courteous and temperate terms.
Father advised undefended hearing looming
On 11 September 2023, orders were made that alerted the Father to the possibility of an undefended hearing. They were set out within Notation A, B and C:
A.The Court endeavoured to contact the Respondent by telephone call at 2.15 pm today to no avail.
B.In the event the Respondent fails to comply with these Orders and/or fails to attend Court on the next occasion:
(a)the Applicant proposes to seek that the Final Orders sought in the Amended Initiating Application filed on 5 May 2023 be listed for hearing on an undefended basis and/or in the absence of the Respondent; and
(b)the Judicial Registrar intends to list the matter for a possible undefended final hearing in the [City C] Circuit, in week commencing 27 November 2023.
C.NOTICE TO THE RESPONDENT: An undefended hearing is a hearing where the Court considers the evidence and makes orders (including orders sought by the Applicant regarding the child [X]) in the Respondent’s absence based solely on the uncontested evidence of the Applicant and without consideration of the Respondent’s views.
The process of the Court is for the Court itself to email orders to the parties including when there is a self-represented litigant or if there is no appearance by a party, and I assume that occurred. Whether or not it did, two days after the hearing, the Mother’s solicitor served a copy of those orders of 11 September 2023 by email and post and sent a text message to him alerting him to those events. The Father was ordered to file an affidavit providing an explanation for his nonappearance at Court.
No affidavit or explanation has ever been provided. That order that he provide an explanation for his absence is all the more poignant given the fact that he had been previously arrested (albeit at a police station by arrangement) a little over a year earlier for failing to engage in property proceedings.
Father fails to appears again
The 11 September 2023 orders had adjourned the matter to 23 October 2023 and then on that day, and notwithstanding that the Father was well and truly on notice of the hearing, he did not appear. Orders were made on that day listing the matter for “a possible undefended hearing” on this day (30 November 2023). The Mother appeared by solicitors and counsel.
Satisfied Father had notice
In all of those circumstances, I am satisfied that the Father has had notice of the proceedings, notice of the hearing this day and had an opportunity to participate in the proceedings. Further, it is not a situation where the Father has merely had an opportunity to participate in the proceedings, but all that have dealt with these proceedings including the judge that had previously dealt with the matter, he judicial registrar dealing with the matter, the Mother and the Mother’s solicitors, have bent over backwards to give the Father the opportunity to challenge any evidence or orders that the Mother presses. Hence, I am satisfied that the Father has had notice of the proceedings and has had the opportunity to participate.
Below I recite rule 1.33, rule 10.26, rule 10.27 and rule 15.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), concerning the failure to attend a Court event.
1.33 Failure to comply with a legislative provision or order
(1)If a step is taken after time specified for taking the step by Federal Circuit and Family Court of Australia (Family Law) Rules the Family Law Regulations or a procedural order, the step is of no effect
(2)If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
(a) dismiss all or part of the proceeding;
(b) set aside a step taken or an order made:
(c) determine the proceedings as if it were undefended;
(d) order costs;
(e)prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f)make any other order the court considers necessary, having regard to the overarching purpose of these Rules…
…
10.26 When a party is in default
…
(2)For the purpose of rule 10.27, a respondent is in default if the respondent fails to:
(a)give an address for service before the time for the respondent to give an address has expire; or
(b)file a response before the time for the respondent to file a response has expire; or
(c) comply with an order of the court in the proceeding; or
(d) file and serve a document required under these Rules; or
(e) produce a document as required by Division 6.2.2; or
(f) do any act required to be done by these Rules; or
(g) defend the proceeding with due diligence; or
(h)prosecute with due diligence any application the respondent has made in the proceeding.
10.27 Orders of default
…
(2) If a respondent I in default, the court my order that:
(a)order that a step in the proceeding be taken within the time limited in the order; or
(b)give judgement or make any other order against the respondent; or
(c)make an order referred to in paragraph (b) to take effect if the respondent does not take a step ordered by the court in the proceeding in time limited in the order.
(3)The court may make an order of the kind referred to in subrule (1) or (2), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the court thinks just.
…
15.19 Failure to attend a court event
(1)if a party to a proceeding in absent from a court event (including a first court date), the court may do one or more of the following:
(a) adjourn the court event to a specific date or generally;
(b) order that there is not to be any court event, unless:
(i)a new date for the court event is fixed; or
(ii)any other steps that the court directs are taken;
(c) if any absent party is an applicant – dismiss the application
(d)if the absent part is a party who has made an interlocutory application – dismiss the interlocutory application;
(e)proceed with the hearing generally or in relation to a claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a court event, the court may also make an order of the kind referred to in subrule 10.27(1) or (2) (orders on default), or any other order, or may give any directions, and specify any consequences for non-compliance with the order that the court thinks just.
Mother’s evidence
In the lead-up to that hearing, the Mother prepared and set out an affidavit of evidence-in-chief and an outline of case. Those documents were served on the Father by email. The documents were prepared late but I am satisfied that they should be accepted into evidence notwithstanding their late service.
The account given in the affidavit is by and large consistent with the Mother’s earlier affidavit and her position in the Child Impact Report. One matter is raised in the affidavit of evidence-in-chief very recently filed relates to the Mother providing a telephone to the Father.
Upon further pressing by me, I have ascertained that the Mother instructs her counsel that the telephone that she provided to the Father for the purpose of enabling him to telephone X was provided after separation but before the Father had moved from the City C area to the Region B area. That is a travel distance of roughly six hours away.
The Mother by her counsel told me that in August 2022, the Mother cancelled that phone service in the circumstances of the Father not using it at all. I accept the Mother’s evidence.
X is eight years old and currently in grade 2. X has been diagnosed with attention deficit hyperactivity disorder and also anxiety. Notwithstanding those circumstances and the absence of the Father from X’s life, X is doing very well in the care of his Mother. Below are the orders sought by the Mother in her Amended Application for Final Orders which was filed 5 May 2023.
1.The Applicant Mother have sole parental responsibility for the [X] (also known as [X]) born [in] 2015 (“the child”).
2. The child live with the Applicant Mother
3.The Respondent Father spend time and communicate with the child at all times as may be agreed in writing between the parties, but failing agreement, as follows:
(a)The first day of each month by telephone call from 4.30pm until 5.00pm. The Father is to initiate the call and the Applicant Wife is to ensure X is available for the call.
4.The parties advise the other of any change of telephone number or email address within 24 hours of such change occurring.
5.The parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the child.
6.The parties encourage and not undermine each child’s relationship with the other party.
7. Order 10 of the Orders of 17 February 2023 be and is discharged.
8.On account of the Mother’s legal costs, the Respondent Father shall pay the sum of $12,000 by instalments of $500 each month over the next two years or until the sum paid is $12,000 to the solicitors of the Applicant Mother, J.S Law by payment or transfer on the first day of each month, with the first payment to be on or by 1 January 2024.
9. The court reserves the liberty to apply for enforcement of Order 8 herein.
I am not satisfied that the order recited above as 3(a), that is, the fixing of time each month, is in X’s best interests. I regard that as an overly generous attempt by the Mother to engage The Father in X’s life.
Between February 2017 and early 2020, the parties agreed between themselves and sorted out that the Father would see X each alternate weekend. It appears by and large that that time was beneficial to X and proceeded without significant incident. In early 2020, the Father moved from the City C area to Melbourne and then to Region B, near Town D, to the area of Region E. That involves travel of some six hours or so each way from the Mother’s residence.
In May 2022, the Mother engaged solicitors to write to the Father to arrange time between X and the Father as he ceased to communicate with the Mother. In June 2022, at an agreed time of contact at a changeover not in the City C area but much closer to City C than Melbourne or Region B, there was a confrontation between the Mother, the Father and the Father’s partner, Ms F. The Father’s account is that the Mother was aggressive and difficult, and the Mother’s account is that she was merely seeking to make a connection with Ms F as someone involved with X’s life in the circumstances of the Father ceasing to communicate.
I do not make any finding as to exactly what happened on that day save to say that I accept that the origin of the confrontation was the Mother seeking to make a connection for the sake of communication with Ms F. That was the last time that The Father has spent time with X.
Notwithstanding the unhappy confrontation at the changeover in June 2020, in July 2020 the Mother had her solicitors write to the Father proposing time with X, including overnight time. There was no response to that proposal. It needs to be noted that at this time, the Father still had the telephone and the Mother was still paying for the telephone service that she had provided to him prior to early 2022.
The Mother did not cancel that service immediately following the unhappy events of the June 2020 changeover. She continued to keep that service alive for about another two months or so. In August 2020, in circumstances where she had a for a considerable time been paying for that telephone service and the Father was not using it, she cancelled the service. It was a most reasonable thing to do. I observed to the Mother and her counsel that in some 40 odd years of being a lawyer in family law terms, I had not seen a parent, of modest means, provide to the other a telephone and pay for the service (notwithstanding their own limited financial circumstances) to assist the other parent, who was apparently in employment to telephone the child.
Greater weight of what is actually done
As I observed to the Mother’s counsel, I place greater weight on what people actually do than what they say they have done or will do or what their attitude is. The Mother’s provision of the telephone and paying for the service over some considerable period demonstrates overwhelmingly, if it needs to be demonstrated, that she did promote a relationship between the Father and X not only by “say-so” but in actual action.
The Father did ultimately respond to the proposal of 20 July but months later and too late for the planned day to be available. It appears that the Father had assumed, notwithstanding he had not responded, that the Mother would make arrangements for that time to be available in any event. By the time he responded, the Mother had made other arrangements and that time was not available.
In November 2020, the Mother’s solicitor sent the Father a letter proposing the parties attend mediation to deal with X’s arrangements. That letter also stated that the Mother had previously made three attempts at mediation and also complained of the limited phone calls to X. There was no response to the Mother’s proposal to attend for mediation.
In mid-2021, the parties were divorced and in August 2021 property proceedings were commenced. The Father did not appear in the property proceedings at Court on 19 November 2021 or on 25 February 2022 but he did appear on 24 May 2022. On 30 June he did not appear again and, as discussed earlier, a warrant was issued. On 17 August 2022, the Mother filed an amended application raising X’s welfare in the proceedings. At this point the Father had not spent time with X since June of 2020.
On 7 December 2022 the parties attended a conciliation conference and property matters were able to be resolved on a final basis. It is significant to me that the Father appeared and was involved in the conciliation conference and by February 2023, in courteous to, the Father advised he would be withdrawing from the proceedings.
Consent orders made
On 17 February 2023 at the interim directions hearing, the Mother appeared in person and the Father appeared by solicitors. The consent parenting orders that were made on that day were as follows:
10.The child spend time with the father each Thursday by video or FaceTime calls from 4.00 pm until 4:30 pm with the father initiating the call to the mother’s telephone and the mother to ensure that the child is available to answer same.
11.The parents will notify the other parent in writing of any change to their mobile telephone number or email address within 24 hours of such change.
12.The parents be at liberty to sign all documents and do all things necessary to change the child’s surname from ‘BARLAS' to ‘HUXLEY-BARLAS’.
I add that the Father did follow through with the consent orders of 17 February 2023 and, as recited earlier, he called X on 23 February 2023 and 2 March 2023. This was the last time the Father has spoken with X.
The Mother engaged solicitors who filed a notice of address for service on 6 March. As recited earlier, the Father did not attend the phone call that was due the following day or days. Why the Father ceased telephoning at that point is entirely unexplained.
On 7 June 2023 the Father attended by video link upon the writer of the Child Impact Report. The report writer had been impressed with the Father on the video interview on 7 June 2023 as recited in paragraph 26 of the report.
26.[Mr Barlas] presented as a caring father who appeared honest and thoughtful in his responses. it appeared he avoided conflict and this may have left to the difficulties in recent Court Ordered phone contact that involved [X] and both parents. [Mr Barlas] took on feedback during the initial interview regarding the importance of being consistent with court ordered spend time arrangements.
I am satisfied that the Mother’s attitude to the Father’ inconsistent parenting had hardened by the time of travelling to Melbourne on 14 June 2023. Her position is as described by the report writer in paragraph 25 of that report.
25.[Ms Huxley] presented as a caring and very protective parent. During face to face feedback, [Ms Huxley] appeared rigid in her mindset that [Mr Barlas] had “abandoned” [X] and that she did not any spend time to occur. When the writer discussed recommendations for spend time [Ms Huxley] became emotionally heightened and distressed whilst continually reiterated history of the dispute and [Mr Barlas’] actions. [Ms Huxley] appeared defensive of any feedback and talked over the writer continually to state her position.
The hardening of the Mother’s attitude to the Father’ involvement is hardly surprising and, in my view, is reasonable and, on the circumstances, inevitable. Notwithstanding her hardening of attitude at that time, and I infer having reflected on the contents of the Child Impact Report that was released in written form on 20 June, the Mother’s attitude softened towards the Father’s involvement in X’s life.
Consent orders for Mediation
Shortly after the child impact report on 3 July 2023 there was a further directions hearing. On that occasion consent orders for the parties to attend mediation as an attempt to resolve matters about X. That demonstrates to me the Mother’s preparedness to soften her attitude to the Father notwithstanding her not unreasonable umbrage at his entirely inconsistent or attendance, even what she would have experienced as abandonment of X as at the time of the report interview.
Mother proactive in arranging Mediation
Soon after those orders were made by consent, the Father’s lawyers withdrew after giving the Father notice that they would do so. Thereafter the Mother’s solicitors wrote directly to the Father, advising him that mediation had been tentatively booked for 15 August 2023. It is important to note that it was the Mother being proactive and ensuring that the mediation was available and arranged.
No response from Father
No response was received from the Father. Hence the mediation tentatively booked for 15 August 2023 was unable to proceed. Notwithstanding that, the Mother’s solicitors wrote to the Father on 16 August 2023 inquiring of possible alternative dates for the mediation to be able to proceed. No response was received to that letter.
The Mother’s solicitor telephoned the Father on 18 August 2023, 23 August 2023 and 1 September 2023 and the call was not answered. As recited earlier, the Mother’s solicitor again emailed the Father on 6 September 2023 and 8 September 2023 and, again, no response was received.
Order for telephone time remained extent
It is important to note that not only was the Father not responding to communications about mediation, but the order of 17 February 2023 for telephone time to occur remained extant through the whole of this time. That demonstrates to me that the Mother was prepared to facilitate the phone call if the Father was prepared to initiate it.
The Mother does not provide any explanation to me as to the Father’ lack of engagement in the proceedings or lack of engagement with making communication with X.
I am unable to provide any explanation save that I am quite satisfied that the Father’s personality is such that he would like to communicate and spend time with X but only when that communication and/or time is within the parameters that he sees as suitable.
It is significant to me that the Father has not engaged at all in regard to the proceedings or communicating with the Mother following the recommendations of the Child Impact Report and for the time to commence or be reinstated by way of an expert service to facilitate that reinstatement.
I do take into account and accept as accurate at the time of the Father filing his affidavit in October 2022, his partner Ms F had a serious illness and he was caring for her. I take that into account.
In all of those circumstances, I am not satisfied, as I raised with the Mother’s counsel, that her proposal as set out at paragraph 3(a) should be made as an ongoing order. The problem with the order, that the Mother in my view generously proposes, is that it requires her to be alert and ready for that telephone call on the first day of each month between 4.30pm and 5.00pm and to consider the conundrum of if needs she prepares X for that telephone call from the Father only for him to be disappointed, or not? And then if he called, would that be a surprise? This is also supported by paragraph 15 of the Child Impact Report.
15.When prompted to discuss his father, [X] recalled how he liked to play with his toys when he used to go to his house. He stated that it “was really fun”. He identified “yes” when asked if he would like to talk or see his father but that it worried him. When asked about what his worries were [X] stated “nothing drastic” but that his father “doesn’t ring back”. He later reiterated that his father “doesn’t call when he is supposed to” and casually remarked that he would like to see him before moving to another sensory toy.
In those circumstances, I am satisfied that the order as to the time should only be as agreed in writing and I am satisfied that the Mother would deal with that appropriately if the opportunity for time or communication between X and the Father arises.
Mother can “lead a horse to water but”
The proceedings and the involvement of the Father in X’s life are tragic and the emotional impact on the Mother is apparent in the courtroom and it is clear that she is distressed by the very concept that X misses out on a relationship with his Father. However, this is a case where tragically the Mother can ‘lead a horse to water but she cannot make it drink’. Sadly, I am satisfied that these final orders are in the best interests in the unfortunate circumstances of X’s life.
Father’s perception
I am satisfied that the Father genuinely feels that the Mother has been difficult about arranging time. However, I do not regard that feeling or perception of the Father as founded in reality. Whilst genuine, it is not in any way an accurate account of events when looked at objectively on the evidence.
Costs sought
Unusually, the Mother seeks costs. I am satisfied that her costs have been significantly increased by reason of the Father’s occasional participation in the proceedings and then failure to participate. I am satisfied that the costs of the sensible additional efforts essentially above and beyond what would reasonably be expected of the Mother or her solicitors to engage the Father in the proceedings have been exacerbated by his failure to participate.
It is noted that the Father did appear on 17 February 2023, he did make two phone calls and he did attend the video link of the Child Impact Report. The Mother estimates, and I accept genuinely, that before re-engaging her current solicitors in March 2023, she had paid from her modest circumstances some four to five thousand dollars of legal fees relating to litigation of X spending time arrangements with his Father. I do not regard that as the actual sum spent as do not have sufficient information in regard to that and, very fairly, her counsel indicates the difficulty of identifying precisely what amount because of the overlap with the property proceedings.
Nonetheless, I am satisfied that that is a genuine perception on the Mother’s part. I will make the costs notice from JS Law exhibit M1, 30 November 2022. I am satisfied that JS Law have charged the Mother costs up to 29 November of $10,253 and since then including counsel’s fees for today a further sum or sums so that the total costs is in the order of $16,000.
Those costs are not on a scale basis but on the actual costs to the Mother. The costs appear to reasonable and I am uncertain as to the extent that they are more or less than costs on scale. Costs on scale would still be significant.
As a general rule, the actual costs paid which are regarded as solicitor client costs or indemnity costs are not paid. Rather, ordinarily, it is costs on scale. Indemnity costs are only ordered in exceptional circumstances. If costs are warranted then, ordinarily, they are on scale. Costs are awarded in accordance with section 117 of the Family Law Act1975 (Cth) which starts off with the position that each party is to bear their own costs. That is subject to the provisions of section 117(2) & (2A) and those provisions, essentially, ask that what be taken into account is the financial circumstances of the parties, the conduct of the litigation by each of the parties and whether either party has been entirely unsuccessful in the proceedings and any other matter that is relevant to be taken into account.
Section 117 is recited below.
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
I am satisfied that this is a case where the circumstances of and exceptional and the quantum of indemnity costs should apply. I am satisfied that I should deal with the issue of the costs of $16,000. I also take into account not only the Father’ attitude and conduct of the proceedings but, contemporaneously with that conduct of the proceedings, his failure to exercise the time available under the 17 February 2023 orders.
In all of those circumstances, I am satisfied that the Mother has been unnecessarily put to significant expense. The Mother is of modest financial circumstances and is currently unemployed. The Father is employed. I accept and proceed on the basis that he too is in modest financial circumstances. The demands of the case dealing with the welfare of X and the complexity of the history that is not easy to grasp at first brush, make it necessary for lawyers to take careful and detailed instructions and incur significant costs.
Some part of that $16,000 would have been necessarily incurred had the Father conducted the proceedings reasonably. It is difficult to make an estimate as to how much would have been incurred anyway. Doing the best I can and being, in my view, generous to the Father, it is my view that something in the order of one-quarter of those costs would have been incurred had the proceedings been conducted reasonably. Things would have been sorted out and orders would have been able to be made.
I am satisfied that something in the order of $12,000 of costs has been unnecessarily incurred by the Father’ inconsistent conduct of the proceedings. I am satisfied that there should be an order for the Father to pay those costs of $12,000.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 December 2023
0
0
2