ICARUS & ARTHUR
[2019] FamCA 222
•12 April 2019
FAMILY COURT OF AUSTRALIA
| ICARUS & ARTHUR | [2019] FamCA 222 |
| FAMILY LAW – CHILDREN – Parenting – Where primary final orders made by consent –Where discrete issues for determination – Where parties invite short reasons for judgment – Where orders made as sought by the mother and supported by the Independent Children’s Lawyer. FAMILY LAW – CHILDREN – INDEPENDENT CHILDREN’S LAWYER’S COSTS – Where application for costs by Independent Children’s Lawyer – Where mother has waiver as to her costs – Where consideration of applicable principles – Where father ordered to pay his contribution to Independent Children’s Lawyer’s costs on favourable terms. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 117 |
| Arthur & Icarus [2010] FamCA 115 De Roma & De Roma [2013] FamCA 566 Gahen & Gahen (No 2) [2013] FamCA 936 Mazorski v Albright[2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 |
| APPLICANT: | Mr Icarus |
| RESPONDENT: | Ms Arthur |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Cole |
| FILE NUMBER: | PAC | 6006 | of | 2007 |
| DATE DELIVERED: | 12 April 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 14 February 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Peter Jurd Lawyer |
| SOLICITOR FOR THE RESPONDENT: | Lewarne & Goldsmith |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Blacktown Family Law |
Orders
That the father inform the mother within seven days of the nature of any parental responsibility decision made by him as to any long term major issue in relation to the child B born … 2005.
That the mother be at liberty to obtain, without the father’s consent, from the child’s school documents ordinarily made available to parents including school reports, school photo order forms, school photos, newsletters and progress reports.
That the mother shall be at liberty to attend scheduled parent teacher interviews by electronic means or if on school grounds at times when the child is not present on school grounds.
That the father shall notify the mother promptly and in any event within 24 hours in the event that the child suffers an accident or illness requiring hospitalisation or ongoing medical care with such notification to include details of the child’s diagnosis, treatment and prognosis and the contact details of any attending health care provider and that the mother is hereby authorised by this order to contact the child’s health care provider as to such information as she may reasonably request as to the child’s presentation, diagnosis, treatment and prognosis.
That the father pay to Legal Aid NSW the sum of $3,108.00 within six months from this date by way of contribution to the Independent Children’s Lawyer’s costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Icarus & Arthur has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 6006 of 2007
| Mr Icarus |
Applicant
And
| Ms Arthur |
Respondent
REASONS FOR JUDGMENT
This matter involves two discrete matters for determination. Following final parenting orders made on 23 October 2018, several discrete matters remained in dispute between the parties.
Final orders were made as follows:
(1)That all previous parenting orders in relation to the child B born in 2005 shall be and are hereby discharged.
(2)B shall live with her father.
(3)The father shall have sole parental responsibility for B.
(4)That the father shall pursuant to order 3 have liberty to obtain a passport for B and travel internationally with B.
(5)B shall spend time and communicate with her mother in accordance with her expressed wishes, and the father shall use his best endeavours whether himself directly or through a nominee to facilitate B spending time and communicating with her mother.
(6)The mother shall be restrained from consuming alcohol whilst spending time or communicating with B, or from consuming alcohol prior to such time or communication such that the mother’s blood alcohol concentration would prevent her from legally operating a motor vehicle.
(7)The mother shall comply with the recommendations and directions of the J organisation and those of any practitioner or service to whom J organisation may refer or recommend her to in relation to problematic alcohol consumption including but not limited to engaging in any detoxification, rehabilitation, counselling, group therapy or other treatment.
(8)The parents shall be restrained from denigrating one another or members or one another’s families or households to or in the presence or hearing of B.
(9)In the event B suffers an accident or medical condition which requires medical treatment whilst spending time with the mother, the mother shall forthwith notify the father of such accident or condition and the name and contact details for any health care provider who may assess or treat B.
(10)That in order to facilitate these orders, the parents shall communicate by way of text message for matters that require attention within 72 hours and by email for all other matters.
(11)The parents shall advise one another in writing within 48 hours their current residential address, telephone number and email address, and shall advise one another in writing within 48 hours of any change to such details.
12.That the father shall within seven days provide to B the mother’s mobile telephone number, noting that the mother’s current phone number is …, and shall advise B in the event the mother notifies of a change to her mobile phone number within seven days of the father receiving such notification from the mother.
(13)That the parties shall do all things required to facilitate the Independent Children’s Lawyer meeting with B by no later than 23 November 2018 to explain to B these orders.
The issues that remained were:
a)Whether the father inform the mother of any parental responsibility decision made by him within seven days.
b)Whether the mother be at liberty to obtain from the child’s school documents ordinarily made available to parents including school reports, school photo order forms, newsletters and progress reports.
c)Whether the mother be able to attend parent teacher interviews by electronic means or if on school grounds at times when the child is not present on school grounds.
d)Whether the father be obliged to notify the mother in the event that the child suffers an accident or illness requiring hospitalisation or ongoing medical care with such notification to include details of the child’s diagnosis, treatment and prognosis and the contact details of any attending health care provider with the mother being authorised to contact the health care provider as to such information.
The Independent Children’s Lawyer (“ICL”) supported such orders being made.
Short background
Litigation relating to the subject child B born in 2005 has been ongoing on and off between the child’s parents since 2007.
The mother and father lived together from January 2004 until September 2007. At the time of their final separation the child was barely 18 months of age.
Initially, proceedings in relation to the child were commenced in the Local Court very shortly after the parties’ separation.
Final orders as to parenting were made in this Court by Stevenson J on 5 February 2010 (Arthur & Icarus [2010] FamCA 115). Those orders provided that the child was to live with the mother and spend time with the father each alternate weekend during school term from after school Friday until before school Tuesday and for one half of the school holidays.
The father has had a colourful history, having spent significant time in custody between 1977 to 2000 for various offences. Following his release in 2000 he has not spent any subsequent period in custody.
In about 2000 the father was the victim of a serious assault and from 2003 he has been in receipt of Commonwealth disability benefits.
There is no doubt that the mother and father have had a long-standing conflictual relationship.
Subsequent to orders made in 2010 the child’s relationship with the mother deteriorated with concerns as to the mother’s abuse of alcohol and related violence.
Proceedings recommenced and on 27 November 2015 interim orders were made as follows:
(1)That all previous parenting orders in relation to the child B born … 2005 be discharged.
(2)That the mother and father have equal shared long term parental responsibility for the child.
(3)That the child live with the mother.
(4)That the child spend time with the father as agreed between the mother and father in writing with such writing to include but be not limited to SMS and email communication and in default of agreement as follows:
(a)During school term each alternate weekend from after-school Friday until before school Wednesday with such weekends to commence on the first weekend of the school term when the child has spent the first half of the school holidays with the father and on the second weekend of school term when the child has spent the second half of the school holidays with the father.
(b)For one half of each mid-year school holiday period being the first half in odd numbered years and the second half in even numbered years with the first half of such holiday periods to commence at 10.00 am on the day after the end of school term and to conclude at noon on the Saturday of the weekend midway through the school holiday period and with the second half of such holiday periods to commence at noon on the Saturday of the weekend midway through the school holiday period and to conclude at 6.00 pm on the day prior to the resumption of school term.
(c)For one half of the Christmas school holiday period in each year being the first half in odd numbered years and the second half in even numbered years with the first half of such holiday period to commence at 10:00 am on the day after the end of school term and to conclude at noon on the midpoint day during the school holiday period and with the second half of such holiday period to commence at noon on the midpoint day of the school holiday period and conclude at 6.00 pm on the day prior to the resumption of school term; and
(d)From after school Friday until before school Monday on the Father’s Day weekend provided always that the child’s time with the father shall be suspended, if applicable, on the Mother’s Day weekend from after school Friday to before school Monday.
(5)That for the purposes of the child spending time with the father changeovers which do not occur at school will take place at the McDonald’s Family Restaurant at C Town.
(6)That the mother and father will keep each other promptly advised of all serious medical, psychological and urgent medical treatments required by the child when the child is in their respective care and authorise the treating professionals to provide all information requested by the other parent.
(7)That the mother and father shall not denigrate the other party or any member of the other party’s household in the presence or hearing of the child and shall use their best endeavours to prevent any other person from so doing.
(8)That the mother shall be restrained from consuming alcohol during such periods as the child is living with her.
(9)That the father shall be restrained from using or being under the influence of any illicit substances or drugs during such periods as the child is spending time with him.
In April 2016 the child moved to reside with the father. She has remained in his primary care since.
Thereafter final orders were made on 23 October 2018 as set out above.
As to the discreet issues for determination directions were made on 23 October 2018 for the filing and service of any affidavit to be relied on by the mother by 23 November 2018 and the father by 14 December 2018. The matter was listed for a discrete hearing on 14 February 2019.
The mother relied on her affidavit filed 23 November 2018. The father failed to file an affidavit in accordance with the trial directions. Leave to rely on an affidavit sought to be handed up on the day of hearing was refused.
The mother relied on her affidavit as filed. In circumstances where she has an estranged relationship with the child, she seeks at least to be informed as to significant matters particularly the child’s health and to be able appraise herself as to the child’s schooling progress.
The mother complains that the father has failed to keep her informed as to the child’s progress and that there is poor communication between them if any.
She is at a loss as to his intransigence as to the orders sought by her and supported by the ICL. The mother was previously meaningfully engaged with the child’s school after the child moved to live with the father: Exh “D”. That engagement ended when the father changed the child’s schooling arrangements without regard to the mother’s wishes and without her consent notwithstanding an order for equal shared parental responsibility.
The child is now aged 14 and in high school as a boarder. In a few years she will need to be able to manage her relationship with her mother as an adult.
The mother simply seeks to be informed as to issues that perhaps later may form the basis of restoring the mother/child relationship. She fears that any order leaving the provision of such information to the father will simply not be complied with.
As submitted by the ICL the father has had ample opportunity to be proactive in this regard but has failed completely to do so. He has, submits the ICL, no capacity to facilitate a relationship between the child and the mother.
Parenting
Primary orders as to parenting have been made previously on 23 October 2018.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
“(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
The present discrete issues require a consideration of the best interest factors as set out in s 60CC of the Act.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship:
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The relationship between the child and the mother is tenuous at best. Any effort that may provide a foundation for the relationship to be repaired in the future must be applauded. The orders sought by the mother and supported by the ICL are a small step in the right direction.
Section 60CC(3) sets out the additional considerations. Regard has been had to all. Relevantly in this matter are the following considerations:
a)The nature of the relationship of the children with:
i)each of the children's parents; and
ii)other persons (including any grandparent or other relative of the children).
b)The capacity of:
i)each of the children's parents; and
ii)any other person (including any grandparent or other relative of the children);
to provide for the needs of the children, including emotional and intellectual needs.
c)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
d)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
A brief consideration of the above factors leads to the inescapable conclusion that the orders sought by the mother and supported by the ICL are in the best interests of the child.
Such orders will be made accordingly.
ICL costs
The ICL sees a costs order against the father in relation to the subject matter for determination. The mother has received a waiver as to her obligation.
The ICL seeks an order that the father pay the sum of $3,108.00.
The law as to costs is well settled. Section 117 of the Act provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.
Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.
The relevant considerations in relation to an order for costs are set out in s 117(2A).
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:
a)The financial circumstances of each of the parties to the proceedings;
b)Whether any party has legal aid and the terms of any grant of aid;
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 answers, 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.
Section 117(5) provides:
In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the ICL, because that terminology is susceptible to ambiguity.
As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936, it could conceivably mean either:
(a)The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or
(b)The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.
In De Roma & De Roma [2013] FamCA 566 Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.
The threshold presumption as to each party bearing their own costs has no application to the ICL, who is not a party.
The law is well settled that there is power under the section, subject to other statutory provisions referred to below, to make orders for or against the ICL and the Court may make such order as to costs of the ICL and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma (supra)).
Section 117(3) provides:
To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
Section 117(4) provides:
However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
The court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
The father provided brief details of his circumstances. He lives in rented premises paying $200.00 per week rent and earns about $35,000.00 per annum in casual work. An order for payment of the ICL costs on generous terms will not impose financial hardship on the father.
The father does not have a grant of legal aid.
The ICL contends that if the Court makes orders as sought by the mother and as supported by the ICL an order for costs should be made. Indeed, a smattering of common sense from the father could have resolved the matter much earlier.
In the circumstances, an order will be made for the father to pay the ICL costs in the sum of $3,108.00 within six months from this date.
Orders will be made accordingly.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 April 2019.
Associate:
Date: 12 April 2019
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