Langham and Yabsley

[2013] FCCA 1566

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANGHAM & YABSLEY [2013] FCCA 1566

Catchwords:
FAMILY LAW – Children – Parenting Orders – contravention.

Legislation:

Family Law Act 1975, s.60CA

Applicant: MR LANGHAM

First Respondent: MS YABSLEY

File Number: SYC 4087 of 2011

Judgment of: Judge Scarlett

Hearing date: 5 September 2013

Date of Last Submission: 5 September 2013

Delivered at: Sydney

Delivered on: 5 September 2013

REPRESENTATION

Applicant: No Appearance

Counsel for the Respondent: Mr Campton

Solicitors for the Respondent: Pearson Family Lawyers

Independent Children’s Lawyer:    Ms Baker

Solicitors for the Independent        Peter Baker Solicitors
Children’s Lawyer

ORDERS

1. All earlier parenting orders are discharged.

2. The Mother is to have sole parental responsibility for the child X born (omitted) 2009.

3. The child X is to live with the Mother.

4. There shall be no Order for X to spend time with the Father except on terms nominated by and acceptable to the Mother.

5. The Mother is permitted to relocate the residence of the child X outside the Sydney Metropolitan Area to another State of Australia and specifically to Melbourne.

6. The Mother is authorised to do all acts and things and sign all documents to enable the issue of an Australian passport and an (country omitted) passport for X and such passports shall remain in the Mother’s possession at all times.

7. The name of the child X born (omitted) 2009 is to be removed from the Watch List otherwise known as the PACE Alert System forthwith, and the provision of a sealed copy of these Orders to the Australian Federal Police will be sufficient for that removal to occur.

8. The Mother is to provide her authority to such school or preschool as the child X shall attend from time to time to communicate with the Father in relation to:

   (a)receiving progress reports for the child;

   (b)obtaining copies of school and group photographs;  and

   (c)attending days of particular significance, including award days and events to which parents are usually invited.

9. The Mother and the Father are restrained from denigrating each other in the presence or hearing of the child or allowing him to remain in the presence or hearing of any person denigrating the other parent.

10. The Mother must provide all permissions necessary to enable the Father to obtain information regarding the child’s progress from any of his treating medical practitioners.

11. In the event of any medical or other emergency involving the child, the Mother must make contact with the Father as soon as possible by SMS and in any event within two hours.

12. The Mother must keep the Father informed of any elective or emergency medical treatment received by the child other than for minor childhood illnesses or injuries.

13. All communication between the parties is to be by email or by SMS.

14. The Father must provide the Mother with a current email address and telephone number at all times, and must notify any changes to those details within seven (7) days of such change occurring.  The Mother is to provide the Father with a current email address and telephone number at all times and notify any changes to those details within seven (7) days of such change occurring.

15. The Mother is to do all acts and things to ensure the following:

    (a)That the child communicates with the Father by telephone and/or Skype on the following occasions each year:

    (i)the child’s birthday;

    (ii)the Father’s birthday;

    (iii)Father’s Day;  and

    (iv)Christmas Day;

    (b)That she is to provide the Father with copies of all of the child’s school reports, sporting and other educational achievements as and when received and no less frequently than twice each year;  and

    (c)That she is to provide the Father with a photograph of the child each year taken on the occasion of his birthday.

16. The Application contravention filed by the Father on 15 May 2013 is dismissed.

17. All other applications are dismissed.

18. The Father is to pay the Mother’s costs of these proceedings fixed in the amount of $11,372.00 and is allowed six months to pay.

IT IS NOTED that publication of this judgment under the pseudonym Langham & Yabsley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 4087 of 2011

MR LANGHAM

Applicant

And

MS YABSLEY

Respondent

REASONS FOR JUDGMENT

1. This Application is before the Court today for mention or undefended hearing.  There is a contravention application brought by the Father.

2. There is also an application in a case brought by the Mother, in which she seeks both interim and final parenting orders.  That Application has been stood over until today. 

3. The Mother has since filed an Amended Response seeking final parenting orders.  This is also for hearing.

4. The parenting proceedings all relate to the parties’ child, X.  X is four years of age.  He was born on (omitted) 2009. 

5. On 11^th July 2013, when the matter was last before the Court, Mr Campton of counsel appeared for the Mother and Mr Fernie, solicitor, appeared as agent for the Father’s solicitor but withdrew, as he held no instructions.  Ms Baker appeared as the Independent Children’s Lawyer, as she does today. 

6. The Respondent himself was not present in Court, but it appears that he had attended earlier, because Kemp J made this order:

   I direct that on the oral application of the applicant’s solicitor, any CCTV recording of the events between 11 am and 1 pm on 11 July 2013 be retained where CCTV recording records any conversation between the independent children’s lawyer, Mrs Adams, the respondent father and any security personnel, such recording to be retained up until 5 September 2013 at 4 pm or until further order.

7. His Honour also made orders pending further order, to which the mother and the independent children’s lawyer consented.  Those orders provided that

   (a)  The parties’ child, aged four years, should live with the Mother; 

   (b) The Mother was permitted to relocate the child’s residence to Melbourne;

   (c) The interim parenting orders made on 10^th August 2011 were discharged; 

   (d) The Mother had to return to Sydney with the child for the purpose of attending upon a family consultant or Court Expert if required;

   (e)  The conduct of the parenting proceedings should remain in Sydney.

   (f) The Mother should facilitate weekly telephone or Skype contact between the Father and the child;

   (g) The Mother should provide details of her residential address and day care details in Melbourne; 

   (h) The Mother was to file and serve a further amended response within 21 days; 

   (i)The Father was to file and serve any response within a further 14 days; 

   (j) The final parenting matter should be listed for an undefended hearing or mention as against the Father on 5^th September;  and

   (k) The Father was to advise the Mother’s solicitor and the Independent Children’s Lawyer about Court proceedings or any child welfare order relating to his child, Mr Langham.

8. The Mother filed a further Amended Response on 16^th August 2013.  The Father’s then-solicitor Mr Horsley of Johnson Horsley Lawyers (omitted), filed a Notice of Withdrawal as Lawyer on 28^th August 2013. 

9. The Mother filed an affidavit sworn 30^th August 2013 on that same day.  No response appears to have been filed by the Father.  The Mother seeks final orders as follows: 

   (a)   That she should have sole parental responsibility for the child;

   (b)    That he should live with her; 

   (c) She should be permitted to relocate the child’s residence outside   the Sydney metropolitan area to Melbourne;

   (d) That she should be authorised to obtain both Australian and (country omitted) passports for the child and retain those passports in her possession; 

   (e)   The child’s name should be removed from the airport watch list;

   (f)The Mother should authorise whatever preschool or school the child attends to communicate with the Father, including providing copies of progress reports, school photographs and invitations to attend school events to which parents are usually invited; 

   (g)The parties are to be restrained from denigrating each other tin the child’s presence or hearing; 

   (h)The Mother will give permission for the Father to obtain information from any of the child’s treating medical practitioners; 

   (i)The Mother will inform the Father or medical or emergency treatment relating to the child;

   (j)    All communication should be by email or SMS; 

   (k)The Father must provide the Mother with his current email address and telephone number; 

   (l) The mother must ensure that the child communicates with the Father on:

   (i) the child’s birthday; 

   (ii) the Father’s birthday;

   (iii) Father’s Day;  and

   (iv) Christmas Day;

   (m) The Mother should provide copies of the child’s school reports and an annual photograph of the child; and

   (n)   The Father should pay the Mother’s costs.

10. The Family Law Act1975 requires a Court, when it is considering making a Court parenting order, to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of section 60CC of the Act.  The primary considerations are in subsection (2), and the secondary considerations or the additional considerations are in subsection (3).

11. The Court must also, under section 61DA of the Family Law Act, consider the presumption under subsection (1) of that section that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for that child. That presumption does not apply in cases of abuse or family violence, and may be rebutted by evidence that satisfies the Court that it is not in the child’s best interests for the parents to have equal shared parental responsibility. If the Court does so find that and makes an order for equal shared parental responsibility, then the Court must consider whether it is in the child’s best interests and whether it is reasonably practicable for the parents to spend equal time with the child. All of those matters have been considered.

12. The fact is that the Father has not attended Court today.  He attended the Court building on the previous occasion but did not attend the Courtroom.  His solicitor was bereft of instructions.  The Father has filed a plethora of material at the Court, including a contravention application which is defended.  That too is listed for hearing today.  The Mother has attended Court.

13. The Mother has relied on material contained in her affidavits of 10^th May and 30^th August 2013.  She has also relied on the Family Report prepared by Dr V, and has relied on material produced under subpoena from the Department of Family and Community Services, from the New South Wales Police, and from the Department of Defence.  The Mother gave oral evidence, and was subjected to a relatively brief cross-examination by Ms Baker, the Independent Children’s Lawyer.

14. It is the Mother’s evidence that she has relocated to Melbourne as a result of the previous order;  that the child is now happily settled at the day care arrangement;  she is staying with relatives.  Her own father has taken steps to move to Melbourne to assist her.  The Mother gave oral evidence which I considered was convincing and persuasive, and it is clear that she has her young son’s best interests in the forefront of her mind.  She does not wish to deprive the child of any knowledge or contact with the child’s father, but she is concerned about his welfare.

15. She is also concerned about the Father’s behaviour and what appears to be some difficulties he has had with his mental health.  In my view, this is a matter where the Mother should have sole parental responsibility for the child.  The communication between the parents is very limited and strained at best, and there is no real likelihood that they will be able to engage in a constructive dialogue about what is in X’s best interests.  I propose to make an order that the Mother should have sole parental responsibility for the child.

16. I propose to make an order that X should continue to live with his mother, as she has been primary caregiver since birth.  It is appropriate that she should be permitted to relocate the child’s residence to Melbourne, where she has obtained employment.  It was suggested that such an order may not be necessary, as she has relocated subject to an earlier order, but for more abundant caution, I believe that it is appropriate to do so.  There should be orders that would permit the Father to retain some contact with the child, but again, this must be dependent very much on the Mother and her concern for this little boy’s best interests.

Costs

1. The question of costs has arisen.  The Mother seeks costs, and her counsel Mr Campton has pointed out that the way in which the Father’s behaviour has affected these proceedings is a very relevant matter.  This is a case where the matter has been before the Court for over two years.  The Father filed his original application for final orders on 5^th July 2011.  There have been contravention proceedings commenced but not followed through, there have been failures by the Father to appear, and there have been episodes where the Father has filed electronically voluminous amounts of material.  That indeed made it necessary for the Court to make an order restraining him from filing further material electronically.

2. Costs, of course, are governed by section 117 of the Family Law Act. There is relatively scant information about the Father’s financial circumstances. He has had an employment history, including having served in the (omitted) for a number of years. He appears to be in employment at present, and appears to maintain his home in the (omitted) area. There is no evidence that he is residing with any other person or has the care of any child under the age of 18.

3. This is a matter where the Mother has been obliged on numerous occasions to respond to applications brought by the Father.  It is quite clear that during the course of this matter when the Court has made directions about filing material and requiring the parties to attend, that the Mother has done so. 

4. The Father could not engage with the family consultant for the purpose of the Family Report. The Mother, however, has dutifully and faithfully complied with her obligations, but this has caused her a considerable amount of strain and expense.  I am of the view that a costs order is appropriate.  I note, as I said, that the Court has relatively scant information about the Father’s circumstances, but in my view he should be allowed a significant amount of time to pay. 

5. The Mother seeks an amount of costs, including counsel’s fees, of $15,821.17.  I have indicated to Mr Campton of counsel that the application of the Court scale amount does not permit counsel’s fees to be added as a disbursement.  I am not prepared to make an order in the sum of $15,821.17, but I do assess the Mother’s costs on a party and party basis at $11,372.00. The Independent Children’s Lawyer has informed the Court that she is not seeking a costs order.

6. As I said during the hearing, it is high time that this matter was brought to finality.  I note that I am making these orders in the absence of the Father;  the Court has power to do so under the provisions of rule 13.03C.  The Father always has the option of making an application under rule 16.05.  If he seeks to vary or set aside these orders, that is a matter for him.

7. I propose to remove the application from the list of cases awaiting finalisation.  I will discharge the Independent Children’s Lawyer with the Court’s thanks.  A sealed copy of these reports will be posted out to the parties’ lawyers or to the Father himself. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  4 October 2013