Landring & Landring
[2025] FedCFamC2F 147
•24 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Landring & Landring [2025] FedCFamC2F 147
File number(s): BRC 6170 of 2024 Judgment of: JUDGE PARKER Date of judgment: 24 January 2025 Catchwords: FAMILY LAW – PARENTING – Review of consent order made in exercise of delegated judicial power – overarching purpose – costs Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG, 69ZL, 69ZN, 95, 96, 117 Cases cited: Accardi & Russo [2022] FedCFamC1F 253
Banks & Banks [2015] FamCAFC 36; [2015] FLC ¶93-637
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104; (2015) FLC ¶93-654
Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286
Harris & Caladine [1991] HCA 9; (1991) 172 CLR 84
Lawson & Glenning [2021] FedCFamC2F 118
M & M [1988] HCA 68; (1988) 166 CLR 69
Marvel & Marvel [2010] FamCAFC 101
Nowell & Nowell [2021] FedCFamC2F 170
Salah & Salah [2016] FamCAFC 100; (2016) FLC ¶93-713
Division: Division 2 Family Law Number of paragraphs: 37 Date of hearing: 24 January 2025 Place: Adelaide Counsel for the Applicant: Mr Wise Solicitor for the Applicant: Sunshine Coast Legal Pty Ltd Solicitor Advocate for the Respondent: Ms Murchie Solicitor for the Respondent: Legal Aid Queensland Solicitor Advocate for the Independent Children's Lawyer: Ms Fairon Solicitor for the Independent Children's Lawyer: Life Law Solutions ORDERS
BRC 6170 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LANDRING
Applicant
AND: MS LANDRING
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
24 JANUARY 2025
THE COURT ORDERS THAT:
1.The Application for Review filed by the Applicant on 2 December 2024 is dismissed.
2.The Applicant pay the Respondent’s costs of and incidental to the Application for Review, fixed in the sum of $1,350, such sum to be paid into the trust account of the Respondent’s solicitors within six (6) months of the date of these orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE PARKER:
These reasons were delivered ex tempore and have been settled from the transcript. Grammatical errors have been corrected, citations have been added and amendments have been made to make the orally delivered reasons clearer and easier to read.
I give these reasons in short form pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’).
The application before the Court is the Father’s application for review of an order made by consent by a Senior Judicial Registrar on 13 November 2024 with respect to the parties’ children W born in 2008, X born in 2010, Y born in 2012 and Z born in 2014 (collectively ‘the children’). That order provided that the children spend no time and have no communication with the Father on an interim basis.
The order was made in the context of serious allegations made by the Mother concerning risks posed to the children if they spent time with the Father. These included risks relating to family violence; substance abuse; serious mental ill health and concerns as to its management; neglect; inadequate supervision; and lack of insight.
The allegations with respect to family violence in particular are very serious and include allegations of serious physical assaults against the Mother, physical abuse of the children, coercive control and threats to kill the Mother, and threats against the Mother articulated towards the children.
Although many of the Mother’s allegations are denied by the Father, he has made some admissions of wholly inappropriate and concerning conduct. In addition, while the evidence remains untested, there are matters which cast some considerable doubt upon the veracity of the Father’s evidence such as a drug screen which is positive for an illicit substance, which directly contradicts his evidence of abstinence from that drug.
When interviewed for the purposes of a Child Impact Report, the children reported direct and indirect exposure to family violence inflicted by the Father on the Mother and also reported having themselves been subjected physical aggression and intimidation by him. The two older girls also reported the Father having spoken to them about selling their virginity.
The Court Child Expert who conducted the Child Impact Report recommended that until such time as the Father developed insight and learned how to respond to the children’s emotional needs, it was possible that the children would be at risk of further emotional harm if any contact were to proceed.
There is a family violence order in place for the protection of the Mother and the children. The Mother’s case, supported by the Independent Children’s Lawyer (‘ICL’), is that the Father poses an unacceptable risk to the children.
The Father, by his review, seeks a discharge of the order providing for no time or communication and instead seeks an order for supervised time, though counsel on his behalf clarified at the hearing this day that he does not seek to force any of the children to spend time with him against their will. The Mother and the ICL both seek the dismissal of the Father’s review.
Being a review of an exercise of delegated judicial power, the hearing before me proceeded as a hearing de novo.
The written submissions of the ICL emphasise the overarching purpose, which is now found in section 95 of the Act. I give that section and the corresponding obligations in section 96 consideration and significant weight. I also have regard to the principles for conducting child related proceedings as contained in section 69ZN. The ICL also emphasised case law cautioning parties against conducting litigation in a manner that causes unnecessary costs or unnecessarily consumes the limited resources of the courts.[1]
[1] Nowell & Nowell [2021] FedCFamC2F 170; Lawson & Glenning [2021] FedCFamC2F 118; Accardi & Russo [2022] FedCFamC1F 253.
It is indisputably the case that a consent order made in an exercise of delegated judicial power can be reviewed.[2] However, a Review Application can be as unmeritorious as any other application and the mere fact that an exercise of power can be reviewed does not mean that it should. In the circumstances of this case, it is contrary to the overarching purpose, inappropriate, and insightless for the Father to have consented to an order only to seek to disturb it on review shortly thereafter.
[2] Harris & Caladine [1991] HCA 9; (1991) 172 CLR 84.
In any event, in determining the substantive parenting application brought by the Father’s review application, I note the following principles.
I am required by section 60CA of the Act to have regard to the children’s best interests as the paramount consideration. It is well established in cases including the decision of the Full Court of the Family Court of Australia (as that court was then known) (‘the Full Court’) in Goode & Goode, [3] that at an interim hearing where the evidence is untested, the Court must be circumspect with respect to findings of fact in relation to disputed issues, and the process of enquiry is necessarily curtailed.
[3] [2006] FamCA 1346; (2006) FLC ¶93-286.
However, as emphasised by the Full Court in Eaby & Speelman, [4] Salah & Salah, [5] and various other cases, the fact that the evidence has not been tested does not mean that it can be ignored and the likely impact on the children of each available course action if the evidence is ultimately accepted must be taken into account. This is especially the case with respect to evidence of risk and family violence. As the Full Court held in Marvel & Marvel, [6] where risk is alleged in interim parenting proceedings, a conservative approach that is likely to avoid harm to a child is warranted.
[4] [2015] FamCAFC 104; (2015) FLC ¶93-654.
[5] [2016] FamCAFC 100; (2016) FLC ¶93-713.
[6] [2010] FamCAFC 101.
The Full Court has held in other cases, such as Deiter & Deiter,[7] and Salah & Salah,[8] that even where a determinative finding cannot be made in relation to allegations of violence at the interim stage, sufficient weight must be given to allegations of violence, and an interim assessment must be made of the likelihood of the violence and the severity of its likely impact. In accordance with the decision of the High Court of Australia in M & M, [9] a Court will not make an order for a child to spend time or communicate with a parent if to do so would expose the child to an unacceptable risk of harm.
[7] [2011] FamCAFC 82.
[8] [2016] FamCAFC 100; (2016) FLC ¶93-713.
[9] [1988] HCA 68; (1988) 166 CLR 69.
In determining the children’s best interests, I have regard to the factors in section 60CC of the Act, although, as the Full Court held in Banks & Banks,[10] it is not necessary at an interim hearing to expressly consider each and every factor.
[10] [2015] FamCAFC 36; [2015] FLC ¶93-637.
In the present case, the evidence of risk to the children is extremely serious, and if it were ultimately accepted or even if parts of it were ultimately accepted, it would almost certainly lead to a finding of unacceptable risk. Added to that is the recommendation in the only available independent expert report which is that there be no time or communication in the interim. While that report is untested, being independent expert evidence, it is amongst the weightiest of the evidence available at this interim stage.
Section 60CC(2)(a) requires me to consider what arrangements would promote the safety (including safety from being subjected or exposed to family violence, abuse, neglect or other harm) of the children and each person who has care of the children, having regard to any history of family violence, abuse, or neglect and the family violence order. I am also required by section 60CG to ensure that the orders made do not expose a person to an unacceptable risk of family violence. This factor alone weighs very strongly in favour of the no time order being preserved.
Although it was submitted on behalf of the Father that supervision would ameliorate the risk, I am not satisfied that this is the case. If even a small proportion of the evidence as to risk is ultimately accepted, there is a very real risk that any requirement to have any involvement with the Father could cause the children emotional harm. I accept the submissions of the ICL in this regard and note that the risk identified by the Court Child Expert when making the recommendation for no time or communication was specified to be emotional harm.
A further relevant factor in section 60CC is the children’s views, which were expressed both to the Court Child Expert and to the relevant child protection authorities, and which are wholly consistent with the maintenance of the existing order, particularly given the ages of the children. It was submitted on behalf of the Father that throughout the reports of the children’s views, there was a theme of consistency and potential alignment with the Mother. That might be true, but one possible explanation for this could of course be that the children and the Mother are all reporting their experiences truthfully. It was also emphasised on behalf of the Father that the Mother is effectively the children’s sole source of information. I accept that that is a relevant consideration, but I am not satisfied that it addresses the very significant risks apparent on the evidence.
The other factors include the needs of the children, which of course include the need for safety from harm and the need for stability; and the capacity of the parties to provide for the children’s needs which, in the case of the Father, would appear, if the Mother’s evidence were ultimately accepted, to be very limited. I note also the emphasis in the legislation on considerations of safety when it comes to consideration of any benefit to the children of having a relationship with both of their parents.
I accept the submission made on behalf of the Mother that it is appropriate for the Court to act cautiously where the evidence and, particularly, the expert evidence before the Court remains incomplete. Having regard to these considerations, I am satisfied that it is not presently in the children’s best interests to spend time or have communication with the Father and the review application will be dismissed.
The Mother seeks a costs order in the sum of $1350.00, being the amount of her legal aid grant relating to the present application. The general rule, as set out in section 117(1) of the Act, is that each party must bear that party’s own costs. Section 117(2) provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may depart from that general rule. Considerations relevant to such departure are set out in section 117(2A).
Those relevant to the present application are as follows.
Firstly, the financial circumstances of the parties.[11] In this regard, the Father is employed on a full-time basis, and the Court has been told today that he earns between two and three thousand dollars per fortnight and does not have the capacity to accumulate savings. He is self-funded in the litigation, though I am told that he is being represented on a no-fee basis for today’s hearing. The Mother is reliant on legal aid, and the Court is told that she is not receiving any child support from the Father and is supporting all four children on her own.
[11] Family Law Act 1975 (Cth), s 117(2A)(a).
The next relevant factor is whether any party to the proceedings is in receipt of assistance by way of legal aid.[12] In this case, the Mother is in receipt of legal aid funding, meaning that limited public funds have been expended on engaging in this review after a consent order had been made, which should have been the end of the matter.
[12] Family Law Act 1975 (Cth), s 117(2A)(b).
A further relevant factor is the conduct of the parties to the proceedings in relation to the proceedings.[13] In this regard, I take account of the Father’s conduct in consenting to an order only to review it shortly thereafter, thus requiring the other parties and the Court to embark on another hearing, utilising scarce judicial resources in the process.
[13] Family Law Act 1975 (Cth), s 117(2A)(c).
Finally, I have regard to whether any party to the proceedings has been wholly unsuccessful in the proceedings.[14] The Father in this case has been wholly unsuccessful, and this is the factor primarily relied upon by the Mother. I accept the submission made on behalf of the Father that being unsuccessful does not necessarily mean that an application was vexatious. However, in my view, the present application was ill-conceived and was contrary to the Father’s obligations as a litigant. In relation to this issue, I have regard to the overarching purpose imposed by section 95 of the Act and the Father’s related obligations imposed by section 96.
[14] Family Law Act 1975 (Cth), s 117(2A)(e).
I also have regard paragraph 1.4 of the Court's Central Practice Direction: Family Law Case Management, which provides that:
The court expects parties and their lawyers to have in mind, at all times, the cost of each step in the proceedings and whether it is necessary, and to avoid unnecessary process-driven costs and unjustified use of Court resources. In everything they do, parties and lawyers are expected to approach proceedings in a manner directed towards identifying the issues in dispute and ascertaining the most efficient, including cost-efficient, method of resolution or determination.
This includes, relevantly, making appropriate admissions, pressing only issues of genuine significance and, at all stages of the proceedings, avoiding filing evidence that is unnecessarily lengthy.
Paragraph 1.5 of the Central Practice Direction provides that any failure to comply with these requirements may attract costs orders against parties. One of the core principles outlined in schedule A to the Central Practice Direction provides that:
Non-compliance with orders, Practice Directions, the Rules, or the obligations imposed on parties or their lawyers to conduct proceedings in a manner consistent with the overarching purpose will be taken seriously by the Court. Non-compliance may lead to serious consequences for parties and for their lawyers including… costs orders being awarded against parties and/or their lawyers.
I have already commented upon the Father’s conduct in light of his obligations.
Having regard to these considerations, I am satisfied that the circumstances justify an order for costs.
The quantum sought is modest and reasonable, and the order will be made as sought by the Mother to be paid to the trust account of the Mother’s solicitors.
The Father sought a period of six months within which to make the payment, and that was not opposed. As a consequence, that timeframe will be ordered.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Parker. Associate:
Dated: 11 February 2025
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