Lalor and Tredrea

[2016] FamCA 43

FAMILY COURT OF AUSTRALIA

LALOR & TREDREA [2016] FamCA 43

FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – undefended hearing – where orders sought by mother supported by the Independent Children’s Lawyer save for an order regarding passport application – where father was consulted about the joint proposals but did not attend or participate in the final hearing – where the evidence is untested – consideration of best interests of the children – ordered that parents have equal shared parental responsibility – ordered that children live with the mother – ordered that the eldest child spend time with the father subject to the child’s wishes – ordered that the younger two children spend substantial and significant time with the father.

FAMILY LAW – PRACTICE AND PROCEDURE – where the respondent failed to comply with procedural orders – where the respondent did not appear at the hearing – where procedural fairness provided to the respondent – leave granted to conduct hearing on undefended basis.

FAMILY LAW – COSTS – where the applicant seeks costs for counsel’s attendance at court on three occasions – where the respondent failed to comply with procedural orders, failed to attend court on two occasions and avoided service – consideration of the factors in s 117(2A) – ordered that the respondent pay the applicant’s counsel’s fees for one court attendance only.

Family Law Act 1975 (Cth), ss 11F, 60B, 60CA, 60CC(2), 60CC(3), 117(2A)

Rice & Asplund [1978] FamCA, [1979] FLC 90-725

APPLICANT:   Ms Lalor

RESPONDENT:   Mr Tredrea

INDEPENDENT CHILDREN’S LAWYER: Agricola Wunderlich & Associates

FILE NUMBER:  MLC 11272 of 2007

DATE DELIVERED: 5 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF:	Thornton J
HEARING DATE:	22 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glass

SOLICITOR FOR THE APPLICANT: Chinka (HEP) Steel

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sevdalis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Agricola Wunderlich & Associates

Orders

IT IS ORDERED THAT

1. All previous parenting orders be discharged.

2. The children B born … 2001, C born … 2003 and D born … 2003 (“the children”) live with the mother.

3. The mother and the father have equal shared parental responsibility for the children.

4. B spend time and communicate with the father at times as agreed between the parties and subject to B’s wishes.

5. C and D spend time with the father as follows:

   (a)       During the school term:

   (i)each alternate weekend from the end of school Friday or 3.30 pm if a non-school day to the start of school Monday or 9.00 am if a non-school day commencing 12 February 2016 .

   (ii)each alternate Thursday from the end of school or 3.30 pm if a non-school day to the start of school on Friday or 9.00 am if a non-school day commencing 18 February 2016 .

   (b)During the term school holidays from after school on the last day of term until 12.00 pm on the second Saturday;

   (c)During the summer school holidays from after school on Friday in the last week of school or 3.30 pm if a non-school day until 3.30 pm the following Friday and each alternate week thereafter; and

   (d)Any other time as agreed between the parents after consulting with the children.

6. Despite any order to the contrary, C and D spend time with the mother or the father (as specified) on special occasions as follows:

   (a)On C and D’s birthdays from after school or 2.00 pm if a non-school day until 6.00 pm with the parent with whom they are not otherwise living or spending time;

   (b)On the father’s birthday, with the father from 6.00 pm on … until 6.00 pm on …;

   (c)On Father’s Day weekend where the children would otherwise not be with the father, with the father for the full weekend in lieu of time on the following weekend;

   (d)On Mother’s Day weekend where the children are otherwise not with the mother, with the mother for the full weekend and the father’s time made up the following weekend;

   (e)       For Christmas in even numbered years:

   (i)with the father from 6.00 pm on 24 December until 6.00 pm on 25 December;

   (ii)with the mother from 6.00 pm on 25 December until 6.00 pm on 26 December;

   (f)       For Christmas in odd numbered years:

   (i)with the mother from 11.00 am on 24 December until 11.00 am on 25 December;

   (ii)with the father from 11.00 am on 25 December until 11.00 am on 26 December;

   (g)       For Easter in even numbered years:

   (i)with the mother from after school on Maundy Thursday or 3.30 pm if a non-school day until 11.00 am on Easter Saturday;

   (ii)with the father from 11.00am on Easter Sunday until 6.00 pm on Easter Monday;

   (h)       For Easter in odd numbered years:

   (i)with the father from after school on Maundy Thursday or 3.30 pm if a non-school day until 11.00 am on Easter Sunday;

   (ii)with the mother from 11.00 am on Easter Sunday until 6.00 pm on Easter Monday.

7. The operation of paragraph (5) is suspended for the purposes of paragraph (6).

8. In order to facilitate the children spending time with the father changeover shall occur as follows:

   (a)       On school days, at school; and

   (b)On non-school days, at the father’s residence at the commencement of the children’s time with the father and the mother’s residence at the conclusion of the children’s time with the father.

9. (a)      Subject to each of the children’s wishes the mother forthwith do all acts, including attending a general medical practitioner to obtain mental health plans for each of the children, and sign all documents as may be required for the children to attend counselling with a psychologist other than Ms E (who undertook the family therapy in these proceedings) and the father shall sign any documents consenting to the counselling as may be required by the psychologist for such counselling.

   (b)The mother will assist and facilitate each of the children attending such counselling.

10. The father sign each of the children’s Passport Application forms forthwith in the presence of a representative of the HEP Steel Law Firm as witness.

11. Should the father fail to sign the children’s Passport Application forms within 30 days from the date of these Orders, the mother is authorised and permitted to apply for and receive an Australian Passport for the said children without first obtaining the written consent of the father.

12. The mother is to provide to the father copies of any travel arrangements including but not limited to tickets, itinerary, and contact details.

13. The mother and the father each inform the other as soon as practicable by email, text message or, in the case of emergency, by telephone, upon becoming aware of:

    (a)any significant illness or injury affecting the children or any of them;

    (b)any illness requiring the provision of medicine prescribed by a medical practitioner;

    (c)any hospital attendances by the children or any of them due to illness; and

    (d)any changes to the children’s schooling or extracurricular activities.

14. The mother and the father do all things necessary to authorise each parent to receive copies of reports, newsletters, notices and photographs and all other information that would usually be received by a parent associated with the children’s schooling or extra-curricular activities.

15. The mother and the father be at liberty to attend the children’s sports days, concerts and usual activities affiliated with the school and any other extra-curricular activities in which the children participate.

16. In the event that the children are in the care of one parent and the other parent wishes to attend the children’s sports days, concerts or usual activities affiliated with the school and/or extracurricular activities in which the children participate, then that parent shall give reasonable notice to the other parent of their intention to attend by text message or email.

17. The mother and the father do all things necessary to authorise the children’s general medical practitioner to allow both parents to be provided with any information pertaining to the children’s health.

18. Both parents be restrained from:

    (a)discussing the court proceedings in the presence or hearing of the children or permitting any other person to do so;

    (b)denigrating the other parent or members of their family in the presence or hearing of the children or permitting any other person to do so;

    (c)exposing the children to anyone affected by illicit substances or excessive alcohol; and

    (d)       exposing the children to any conflict or disagreement between them.

19. Both parents communicate with each other in relation to the children in writing, by email or text message.

20. Pursuant to paragraph 10 of the Orders made by consent on 15 January 2015, the father pay to the mother the sum of $500 on or before 4 March 2016 from which time interest shall be payable in accordance with r 17.03 of the Family Law Rules 2004 (Cth) NOTING THAT the mother has paid the father’s share of the cost of Ms E’s report in that sum.

21. The father pay to the mother the sum of $1,100, being counsel’s fees for the Court appearance on 25 November 2015.

22. The appointment of the Independent Children’s Lawyer be discharged.

23. All extant applications be otherwise dismissed.

AND IT IS NOTED THAT

A.The Independent Children’s Lawyer supports the mother’s proposal, save for paragraphs (9) and (17) to which the Independent Children’s Lawyer neither consents nor opposes.

B.The purpose of the counselling referred to in paragraph (8) of these Orders is for each of the children to have an independent person to speak to about any issue which that child may choose.

AND IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the Subpoena Clerk at the Family Court of Australia Melbourne Registry to the person or organisation who produced same after the expiration of 30 days from the date of these orders or otherwise upon the conclusion of any appeal.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11272 of 2007

Ms Lalor

Applicant

And

Mr Tredrea

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This proceeding concerns the mother’s proposals for parenting orders pursuant to Part VII of the Family Law Act1975 (Cth) (“the Act”). The children of the marriage are B aged 14, and twins D and C aged 12. The Independent Children’s Lawyer was appointed to independently represent the interests of the three children. The father did not attend or participate in the final hearing but was consulted about the final proposals by the Independent Children’s Lawyer.

2. The context of the hearing was a background of final parenting orders which were made in this Court in March 2011 by consent. The parents have equal shared parental responsibility for the children.  Those orders resulted in the children living with the parents on a week about basis during school terms and half of each school holiday.  In October 2014 the mother filed an Initiating Application in this Court and the father filed a Response in the following month.

3. The week about arrangement was suspended by consent of the parties in December 2014 and the Senior Registrar made interim orders instituting spend time arrangements with the father on alternate weekends for the twins.  B was at liberty to spend time with the father in the same arrangement and a s 11F Children and Parent’s Issues Assessment report was ordered.  This report was completed by Ms F and is dated 9 January 2015.  B has not spent time with the father since 15 March 2015 in accordance with her wishes.

4. The mother and the Independent Children’s Lawyer were in agreement that circumstances had changed since the final parenting orders made in 2011 warranting a reconsideration of the parenting arrangements for the children.  This was largely having regard to the views of the children whereby the week about arrangement was considered unworkable.  This was supported by the evidence of a family psychologist, Ms E.

5. The Independent Children’s Lawyer supported the mother’s proposals with the exception of an application for orders that the father sign Australian passport applications for the children. 

6. Neither the mother nor the Independent Children’s Lawyer submitted that the children are at risk in the care of the father or that the children will not benefit from having a meaningful relationship with him.  There is no application to disturb the existing equal shared parental responsibility for the children.

7. The joint proposals of the mother and the Independent Children’s Lawyer provide for the children to live with the mother and spend time with the father.  The joint proposals provide for the twins to spend substantial and significant time with the father and for B to spend time and communicate with the father at times as agreed between the parties and in accordance with her wishes.  It is proposed that the twins spend each alternate weekend with the father during school term and each alternate Thursday overnight.  It is proposed that the twins spend equal time with the parents during school holidays.  These proposals are also in accordance with the views of the children.

8. The mother also seeks orders for the father to sign Australian passport applications for the children and in default that she be authorised and permitted to apply for and receive an Australian passport for the children without first obtaining the written consent of the father, to enable the children to obtain passports and avoid unnecessary delay in the event of an opportunity to travel.  This proposal is neither supported nor opposed by the Independent Children’s Lawyer.

9. The mother also seeks an order for certain costs to be paid by the father.

10. The documents relied upon by the mother and the Independent Children’s Lawyer are listed in Annexure A to these reasons.

Procedural Fairness

1. The father was self-represented at the first day hearing of this matter on 5 October 2015.  He had not complied with procedural orders and, except for a Notice of Ceasing to Act which was filed on his behalf in April 2015, did not file any material since the filing of his Response to the Initiating Application and Affidavit on 6 November 2014.  In November 2014 he had also filed a Contravention Application and affidavit in support.  That contravention application was withdrawn by consent pursuant to orders made by the Senior Registrar on 15 January 2015.

2. On 5 October 2015 the proceedings were adjourned awaiting the outcome of a report from family psychologist Ms E.  Consent orders were made varying aspects of the spend time arrangements for the children and for the twins to attend G School in 2016.

3. On 25 November 2015 when the case was listed for mention to make procedural orders for trial, the father did not attend and did not notify the Court, the mother nor the Independent Children’s Lawyer of his proposals.  The mother and Independent Children’s Lawyer were represented by counsel.  The father was aware of the hearing when telephoned by the court officer at the time of the mention hearing.  However he declined the opportunity to participate by telephone and did not indicate whether he proposed to pursue his Response.  The proceedings were adjourned to 22 December 2015 for the mother to make an application to proceed undefended in the event that the father did not file any material or participate.  After indications that a joint proposal might be agreed between the parties, the mother and the Independent Children’s Lawyer were ordered to serve any joint proposals on the father at his address for service which had been provided by his solicitors when the Notice of Ceasing to Act was filed. 

4. On 21 December 2015 the mother’s solicitors filed an affidavit annexing email correspondence between the Independent Children’s Lawyer and the mother’s solicitors, which copies in the father through his email address.  While the father did not participate in the last mention hearing, it is clear he has a history of correspondence with the other parties in these proceedings.

5. On 15 December 2015 the father sent an email to the Independent Children’s Lawyer regarding the children’s passports.  In earlier emails dated 9 December 2015, the Independent Children’s Lawyer communicates the wishes of the father, including provisions for counselling at the children’s choice; the holding of the children’s passports by the Court as they are issued; and for the deletion of the proposed order for the father to pay half of the family consultant’s costs.  Earlier that day an email was sent by the Independent Children’s Lawyer to the father citing a telephone conversation between them regarding the orders proposed.  On 16 December 2015, the father emailed the Independent Children’s Lawyer asking whether she intends to propose alternatives to orders about the children’s passports with which he disagreed.

6. On 21 December 2015 a process server filed an affidavit detailing his attempts to serve the father over three occasions between 16 and 21 December 2015.  The process server describes placing calls which were ignored, and sending text messages which were answered with refusals to make a time to meet.  The process server was ultimately unsuccessful in his attempts to serve the father albeit he was able to make contact with him.

7. I am satisfied that the father is aware of the proceedings and has elected not to participate.  I am satisfied on the affidavit material that the father was advised of the proposals of the mother and the Independent Children’s Lawyer.  I am satisfied that he was accorded procedural fairness and that it is appropriate to proceed with the final hearing in his absence.  

Background

1. The applicant mother is aged 43 and is a business analyst.  The respondent father is aged 49 and is employed by Australia Post as a contractor.

2. The parties married in 1998 and separated on 22 January 2007.  Their divorce became final on 27 June 2009.

3. Final parenting orders were made by consent in this Court on 1 March 2011 in relation to the three children of the marriage.

4. On 10 October 2014, the mother filed an Initiating Application seeking to reopen the parenting proceedings following what she said was a deterioration in the relationship between the children and the father.  The father filed a Response to the mother’s application on 6 November 2014.

5. Both parents claim that the other parent has failed to facilitate the relationship with the three children and continues to do so.

6. On 4 December 2014, consent orders were made by Senior Registrar FitzGibbon suspending the week-about time arrangements of the orders of 1 March 2011.  Orders were also made by consent that the father spend alternate weekends with C and D and that B be at liberty to attend all time with the father that C and D attend.  The parents and children were ordered by consent to attend a Child Responsive Program.  Ultimately a Memorandum was prepared by family consultant, Ms F dated 9 January 2015.

7. On 15 January 2015, the spend time arrangements of 4 December 2014 were suspended and orders made by consent by the Senior Registrar that C and D spend time with the father each alternate weekend and each alternate Thursday from after school until before school Friday.  In relation to B, orders were made that she spend time with the father every fourth Sunday for three hours.  On the same date orders were made by consent for the children and the parents to engage in family therapy with a psychologist experienced in family law matters at the joint cost of the parents.

1. On 29 April 2015, the father’s then-solicitors filed a Notice of Ceasing to Act. From that time, the father has been self-represented. 

2. Procedural orders were made on 24 August 2015 setting the matter down for the first hearing day which was 5 October 2015.

3. In compliance with orders made by me on 24 August 2015, the mother filed an Amended Initiating Application on 7 September 2015.  The father did not file an Amended Response as was required by those same orders of 24 August 2015. 

4. After an agreement made following recommendations of Ms F in January 2015, the family participated in reportable family therapy with a child and family psychologist, Ms E, from May 2015.  Her written report dated 11 November 2015 is annexed to her affidavit filed 17 November 2015.  The family participated in eight sessions in different configurations.  The purpose of that therapeutic intervention was outlined by Ms E as follows:

   ·to ascertain B’s issues in regard to her rejection of the father;

   ·to support the ongoing relationship between the twins, D and C, and the father;

   ·to assist in the communication between the parents;

   ·to assist in mediating any ongoing issues raised in the parenting approaches; and

   ·to identify the needs of the girls as they live their split lives with the parents.

5. As a result of that therapy, Ms E found that the week about regime was “not sustainable from the children’s perspectives” and that the father had “reluctantly heard this”.  She identified conflicting parenting approaches between the parents.  She identified that the father’s view is that an unrestricted parent is a risk to the children and that the mother’s parenting approach did not provide sufficient boundaries for the children.  On the other hand the mother’s view is that the children should be empowered to make their own decisions to some extent and this has placed the twins under some stress because they “are not yet fully ready to make independent decisions and they need guidance from their parents”.  She reported that each parent is negative towards the other and that “unfortunately both parents have made a contribution to the conflict and the stress of the children”.  It was also the opinion of Ms E that it is possible that B’s original rejection of her father “may act as a catalyst to influence the twins” and that it is in the mother’s interest to be alert to the fact that “in spite of the twins’ conflicted or labile feelings towards their father, it is in the twins’ interest that their relationship with their father should be preserved.”

The Relevant Law

1. There is no issue that the final parenting orders are no longer practicable because the relationship between the eldest child and the father is strained and the children do not wish to continue the week about arrangement.  I am satisfied that there is a change in circumstances since the final parenting orders made in this Court in March 2011 having regard to the views of the children and the progress in their maturity outlined to the family consultant Ms F and the family psychologist Ms E.[1]

   [1] Rice & Asplund [1978] FamCA, [1979] FLC 90-725

2. In deciding to make any parenting order, the child’s best interests must be the paramount consideration under s 60CA of the Act. In determining what is in the best interests of the child, the Court must consider the primary and additional considerations set out in ss 60CC(2) and 60CC(3) of the Act. Any determination of what is in the best interests of the child must be made in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

The Primary Considerations

1. 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.

2. In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[2]

   [2] Family Law Act 1975 (Cth), s 60CC(2A).

3. It is not in dispute that the children will benefit from a meaningful relationship with both parents.  I accept the opinion evidence of Ms E that for the present time, B has withdrawn from her relationship with the father for the reasons which she has outlined in her report, albeit she has not rejected the notion of a future relationship with him. 

The Additional Considerations

1. The additional considerations are listed at s 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case. I have considered the additional considerations in the context of the primary considerations.

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. B is aged 14 and will be 15 in March 2016.  Significant weight must be attached to her views having regard to her level of maturity.  The twins are aged 12 and their views are also relevant.

2. The evidence of the children’s views is contained in the family report and the report of Ms E.  I have particularly relied upon the wishes of the children as outlined by Ms E because of her more recent and extensive involvement with the family.  It would appear that B’s views about spending time with the father remain unchanged since her interview with the family consultant and having regard to her age and the reality of the situation I am satisfied that it is in her best interests to implement the joint proposal of the mother and the Independent Children’s Lawyer for her to spend time and communicate with the father at times as agreed between the parties and in accordance with her wishes.

3. The family consultant at paragraph 12 of her report recorded B’s views at that time (December/January 2015) when discussing various options for spending time with the father as:

   …whilst she does not wish to stay overnight, she would be happy to go for ‘a number of hours on the weekend’.  She maintained however that the most important factor in any arrangement is that it remains her choice as to whether and when she sees the father.

   At that time B was open to the idea of participating in family counselling and in sharing her feelings with the father but expressed some concern regarding his capacity to hear and act upon such information.  At that time she had reported to the family consultant, that her father had been “a bit out of control” for some time and described her father as “verbally abusive, intrusive and unpredictable”.

4. The children’s views must be seen in the light of the confusion they have experienced because of the conflicting parenting approaches and the negative attitude of the parents to each other.  The twins have no doubt been influenced by the views of their older sibling, B.  The family consultant refers to the father’s “unpredictable and emotionally intense behaviours which the children are ill equipped to manage”. This has no doubt impacted on the children’s views.

5. The family consultant recorded the views of C at paragraph 18 of the report as follows:

   As a result of [C’s] reported experiences of her father, her preference, at this time, would be for the current arrangements to continue, namely, to spend each alternate weekend with [the father]. She thought this would create an easy situation for all. In addition to the behavioural challenges she says the father presents with, [C] cited additional difficulties as an earlier rising time at her father’s, a stricter approach to parenting and less support to engage in their desired activities. [C] described her mother’s parenting as “relaxed but we don’t get away with things”.

6. The family consultant’s opinion of D at paragraph 19 of her report was that she was exceptionally articulate and presented with a greater degree of sensitivity to the issues being discussed.  The family consultant reported that “D expressed some concern regarding her father’s capacity to receive the information she provided in a neutral manner”.  Significantly at paragraph 21 of the report, the report writer states that D has given significant thought to the concept of the alternate weekend arrangement, questioned friends about this and initially worried that she would miss her father.  However she concluded that she would like to spend alternate weekends with her father under the current arrangements.  She later explained that she would like to be able to spend additional time with the father when he is “in a positive mood,” but elect to return to her mother if this “mood state alters”.

7. The most recent views of the twins reported by Ms E is as follows:

   The twin girls, [D] and [C] have an ongoing relationship with their father.  They both presented as very distressed at last sessions as they were confused as to the father’s positions in regard to them.  They were clear that the week about arrangement of the past was no longer suitable for them and they were distressed as they believed that the week about regime was to be reinstated.  Their preference was to remain with the current regime to spend time with their father on alternate weekends and on Thursdays overnight Friday in the alternate week.

8. I am satisfied that the joint proposals regarding the arrangements for the children spending time with and communicating with the father accord with the views of the children and are in their best interests.

Section 60CC(3)(b): the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);

1. The twins have a good relationship with both parents but prefer to spend time with the father in accordance with the joint proposals of the mother and the Independent Children’s Lawyer.  B’s relationship with the father is strained but she is open to spending time with the father in accordance with her wishes.  B has a good relationship with the mother.

Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;

1. Both parents have been involved with the children in decision making about major long-term issues but continue to remain in conflict about their respective parenting styles which has caused confusion for the children.  The father has ultimately avoided service and failed to participate in the final proceedings, notwithstanding that he originally filed a Response, participated in the first hearing day, and was involved with the family consultant and Ms E.

2. Both parents have always been prepared to spend time with the children.

Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. The mother deposed in untested evidence that “the father does not currently pay child support and there is a debt of $1,998.67 as at December 2014.”[3]  The mother also deposed that the father has generally contributed to the school fees for the children but that there have been some years where he has not paid.  The mother has maintained the children financially.

Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

[3] Mother’s affidavit filed 7 September 2015 at paragraph 96

1. The joint proposals will not involve any change for the children as the interim arrangements have been in place for a considerable period of time.  B has not spent time with the father since March 2015.  On the evidence of the family consultant and the family psychologist the joint proposals for the children to spend time with the father are the most realistic and the most satisfactory for maintaining their relationship with him.  

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. There is no evidence of any practical difficulty or expense relevant to the children spending time with or communicating with either parent which will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

Section 60CC(3)(f): the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

1. The capacity of both parents to provide for the needs of the children generally is not in issue but the proposals of the mother supported by the Independent Children’s Lawyer provide for the emotional and intellectual needs of the children on the basis of the expert evidence.

Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. The maturity and special characteristics of the children referred to by Ms F and Ms E previously outlined, are relevant to the attitude of the children to the father and is a factor I have taken into account in accepting the recommendations of the expert witnesses.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. The father has not demonstrated a responsible attitude toward the children in failing to participate in the final hearing without explanation.  The mother has demonstrated a responsible attitude to the children and the responsibilities of parenthood.

Section 60CC(3)(j): any family violence involving the child or a member of the child's family;

Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;

1. Family violence was not raised as an issue by the mother or the Independent Children’s Lawyer it there was no evidence of any family violence orders relevant to this case.

Section 60CC(3)(l): 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;

1. I am satisfied that to make the orders proposed by the mother would be least likely to lead to further proceedings in relation to the children.

Conclusion

1. I am satisfied that the joint proposals of the mother and the Independent Children’s Lawyer will ensure that the children develop a meaningful relationship with the father notwithstanding the circumstances where B wishes to spend time and communicate with the father in accordance with her wishes.

2. There is no evidentiary foundation for the rebuttal of the presumption of equal shared parental responsibility for the children.  There is no issue that it is in the best interests of the children that the parents have equal shared parental responsibility. 

3. It is not surprising, given B’s age, and the duration of her exposure to the parental conflict, that she has chosen to temporarily withdraw from her relationship with the father.  It is no longer practical or in her best interests to enforce any spend time arrangements with B having regard to her age.

4. The joint proposals for the twins to spend time with the father allow for significant and substantial time and I am satisfied that these proposals are in their best interests.

5. D and C are also familiar with these arrangements and wish to continue the current regime.

6. I am also satisfied on all the evidence that it is appropriate to make the additional orders pursuant to the joint proposal of the mother and the Independent Children’s Lawyer having regard to the history of conflict between the parties.

7. The Independent Children’s Lawyer neither consents nor opposes the mother’s proposal that the father sign the children’s passport application forms to provide a mechanism for the children to obtain an Australian passport.

8. This proposal does not authorise travel but allows for the children to obtain an Australian passport in the event that any travel is contemplated in the future.  The parents have equal shared parental responsibility and any travel for the children would require the consent of both parties.  Having regard to the father’s lack of participation in the proceedings and his avoidance of service for these proceedings, I consider it also appropriate to authorise the mother to apply for and receive an Australian passport for the children without first obtaining the written consent of the father, in the event that he fails to sign the passport application forms.

9. I am satisfied that it is in the best interests of the children to obtain Australian passports as a necessary prerequisite for future travel and to avoid any unnecessary delay.

Costs

1. Counsel for the mother made an application that the father pay the costs of counsel appearing before me on three occasions where the father has failed to file material and on two occasions failed to attend Court without any prior notice to the Court.  This is in circumstances where the father has also avoided service of a joint proposal on which he had been consulted.  Those occasions were 5 October 2015 where the father attended but had not complied with procedural orders, and the occasions where he failed to attend on 25 November 2015 and 22 December 2015.  The mother seeks that the father pay her counsel’s fee for each occasion in the sum of $1,100 being scale fees at the higher end for a short mention by junior counsel.  She does not seek any solicitor’s costs.  The costs are reasonable and were reserved on 5 October 2015 and fixed at $1,100 and reserved at the hearing on 25 November 2015.

2. I am satisfied that in the circumstances of this case, having regard to the conduct of the father in the proceedings, it is appropriate to accede to the mother’s application for costs for the mention hearing on 25 November 2015 only.  The father filed a Response to Initiating Application in this Court on 6 November 2014 and his solicitors filed a Notice of Ceasing to Act on 29 April 2015 providing a new address for service.  The father has remained on the court record but failed to comply with procedural orders and failed to notify the court in writing about his participation in proceedings.

3. The father failed to comply with orders of this Court made on 24 August 2015 requiring him to file an Amended Response and summary of issues document, however he attended the first hearing and consent orders were made.  He failed to attend court on 25 November 2015 and refused to participate in the mention proceedings when telephoned by a court officer who spoke with him.  I am satisfied that he has evaded personal service since then on the basis of the evidence of process server, Mr H.[4] 

   [4] Affidavit of Mr H filed 21 December 2015

4. The general rule is that each party should bear his or her own costs of proceedings under the Act. However, the Court is empowered to make an order for costs if it is of the opinion that there are circumstances which would justify such an order.[5]

   [5] Family Law Act 1975 (Cth), s 117.

1. Section 117(2A) of the Act mandates the factors to which the Court should have regard in considering whether to make an order for costs. They are:

   (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.

2. There is limited evidence before the Court about the financial circumstances of each of the parties.  The mother is self employed as a business analyst and has an income of $40,000 per annum.  The father has described his occupation as contractor with Australia Post but has not provided any further evidence as to his financial circumstances.  He has been provided with all previous court orders made which also refer to costs being reserved.

3. I am satisfied that it is appropriate to exercise my discretion to make an order for costs against the father for the hearing on 25 November 2015.  The evidence in the affidavit of Ms I filed 21 December 2015 about the email correspondence between the Independent Children’s Lawyer and the father indicates that the father was aware of the proposals to be submitted to this Court.  On 16 December 2015, in the father’s response to an email from the Independent Children’s Lawyer dated 15 December 2015, he asks whether the Independent Children’s Lawyer proposes to submit  “alternatives to paragraph 8 and 16” of the proposed orders.  These particular paragraphs refer to the application for the father to sign passport applications for the children and the enforcement of a previous order for the father to share in the costs of the report.

4. I am satisfied that the father was aware of the hearings before this Court on 25 November 2015 and 22 December 2015. He elected not to attend the hearings on 25 November 2015 and 22 December 2015.  However he remained on the Court record and failed to notify the Court, the other party or the Independent Children’s Lawyer of his participation.  He failed to notify the Court, the other party or the Independent Children’s Lawyer of any reason for his failure to attend.  However I note that the order made by the Court on 25 November 2015 notes that the father indicated that he did not wish to participate in the proceedings and it is open to the father who is self represented to consider that it was unnecessary to attend the next hearing on 22 December 2015. 

5. I refuse to make any order for the costs reserved on 5 October 2015 having regard to the fact that the father attended and consent orders were made that day. Whilst I accept that the father has been uncooperative in avoiding service before the last hearing, I refuse to make an order for costs for the last hearing date because it was open to the father to infer that he had notified the Court that he did not wish to participate and it was necessary for the mother to attend to pursue her application to proceed undefended. I propose to exercise my discretion to make an order that the father pay the mother’s counsel fees for the hearing on 25 November 2015 only. In determining to make the order for costs, I have taken into account the factors under s 117(2A) of the Act and particularly the father’s lack of cooperation and avoidance of service. I regard the counsel fees of $1,100 for the appearance on 25 November 2015 as reasonable in the circumstances and propose to order that the father pay to the mother the sum of $1,100 in costs. These do not include any solicitor client costs.

6. The father agreed to pay one half of the costs of the report from Ms E by court orders 9 and 10 of orders made by the Senior Registrar on 15 January 2015.  The mother has paid the full cost of the report being $1,000 and the father is required to pay to the mother his half share which is $500.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 5 February 2016.

Associate: 

Date:  5 February 2016

Annexure A

Documents relied upon by the applicant mother:

• Amended Initiating Application filed 7 September 2015

• Affidavit of the mother filed 7 September 2015;

• Minute of Orders Sought, handed up in Court on 22 December 2015

• Affidavit of Ms I filed 21 December 2015;

• Affidavit of Attempted Service filed 21 December 2015;

• S11F Children and Parents Issues Assessment Memorandum of Ms F dated 9 January 2015;

• Affidavit of Ms E filed 17 November 2015.

The respondent father’s material:

The father filed a Response and an affidavit on 6 November 2014.  The father did not comply with procedural court orders to file a case outline document.  Accordingly, there was no indication as to what material, if any, was relied upon by the father who did not participate in the final hearing.

Documents relied upon by the Independent Children’s Lawyer:

• S11F Children and Parents Issues Assessment Memorandum  of Ms F dated 9 January 2015;

• Affidavit of Ms E filed 17 November 2015.