LLEWELLYN & HYDE

[2011] FamCA 934

FAMILY COURT OF AUSTRALIA

LLEWELLYN & HYDE [2011] FamCA 934

FAMILY LAW – CHILDREN – Application for passport for child – Application  by mother for dispensation with father’s signature ─ Father not opposed to signing application but sought conditions after issue of passport as to its holding and use – At the hearing some conditions agreed and ordered – Further condition sought by father that passport be held by mother’s solicitors not ordered

FAMILY LAW – CHILDREN – Existing final parenting orders including dealing with parental responsibility in relation to the major long-term issues – Application for issue of a passport for a child and its use are not a major long-term issue – Parenting orders need expressly to provide for parental responsibility in relation to application for and the issue of a passport for a child or such power as a matter of construction be “necessary to give effect” to an order  

FAMILY LAW – COSTS – Application by mother for costs – Application dismissed  

Family Law Act 1975 (Cth) ss 4(1), 60CC, 61C, 61DA, 61D(1) and (2), 64B(2), 64B(3), 117(1), 117(2), 117(2A)

GDPW & IDPW (2004) FLC 93-206
Penfold and Penfold (1980) 144 CLR 311
Wiltcher & Wiltcher [2010] FamCA 369

APPLICANT: Ms Llewellyn

RESPONDENT: Mr Hyde

FILE NUMBER: BRC 12269 of 2007

DATE DELIVERED: 29 November 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 28 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blond

SOLICITOR FOR THE APPLICANT: Okamoto Lawyers

COUNSEL FOR THE RESPONDENT: Mr Nelson

SOLICITOR FOR THE RESPONDENT: McNamara Stevenson

Orders

Passport

IT IS ORDERED BY CONSENT

1. The parties do all acts and sign all documents necessary to facilitate the issue of a passport for B born … 2004.

2. To facilitate such order:

   a.     the mother, within 10 days, provide to the father for his signature a completed passport application for the child

   b.    the father, within 10 days of receipt of the completed application, sign it and return it to the mother.

3. If for any reason the father has not signed an application for the issue of a passport for the child and returned it to the mother within 21 days from today a Registrar who is satisfied of such is authorised to sign the application instead of the father and the requirement of the father’s signature on any such application and consent for it is dispensed with, with effect that the child may leave the Commonwealth of Australia without the consent of the father.

AND IT IS FURTHER ORDERED

1. The child’s passport when issued be kept by the mother in her possession and not be used other than in accordance with orders 5 and 6.

AND IT IS FURTHER ORDERED BY CONSENT

1. Prior to the mother taking the child outside of the Commonwealth of Australia she must give not less than 28 days written notice to the father of the following:

   a.     the child’s itinerary

   b.    details of the child’s proposed accommodation and contact addresses while abroad

   c.     evidence of payment arrangements for the child’s return airfares

   d.    registration of the child’s trip on Smartraveller with the Department of Foreign Affairs and Trade.

2. The mother must not take the child to any country which is not a signatory to the Hague Convention.

AND IT IS FURTHER ORDERED BY CONSENT

1. If any overseas trip coincides with the time the child ordinarily would spend with the further pursuant to the consent orders made on 20 August 2010 the mother must ensure that there be equivalent make up time to be arranged by the mother and the father with Ms C or other supervisor.

2. During any overseas trip the mother must facilitate the child to initiate telephone communication with the father at least once in each week.

Costs

AND IT IS FURTHER ORDERED

1. The mother’s application that the father pay her costs of and relating to these proceedings is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12269 of 2007

Ms Llewellyn

Applicant

And

Mr Hyde

Respondent

REASONS FOR JUDGMENT

Application

1. This is an initiating application by Ms Llewellyn, the mother, for orders relating to the issue of a passport for the child B born in 2004 who is nearly 7 years. 

2. The mother’s initiating application, so far as is relevant, I will set out:

   2.     That the father and the mother sign all documents and do everything possible to have the child [B] issued with a separate passport.

   3.     That the mother furnish to the father or his legal representatives a child passport application form within 7 days.

   4.     That the father shall sign and return such child passport application form to the mother or her legal representatives within 7 days of receipt of same.

   5.     That in the event the father refuses or neglects to sign within seven (7) days of written request to do so, any documents necessary to have the child issued with a separate passport a Registrar of the Brisbane Registry of the Family Court or Federal Magistrates Court of Australia is appointed to execute all documents in the name of the father.

3. Mr Hyde, the father, yesterday said he would consent to an order that he sign a passport application and that in default his signature and consent be dispensed with. The parties agreed that orders be made that prior to any overseas travel by the child the mother provide the father with written notice of certain matters and that any travel by the child be only to Hague Convention countries.

4. The father sought a further condition that upon issue of the passport it be held by the mother’s solicitors to be released only for the purpose of notified travel and then returned to the mother’s solicitors for holding.

Issues

1. The primary issue for me to determine, in the child’s best interests, is whether the child’s passport when it issues be held by the mother, as she seeks, or whether as the father seeks it be held by the mother’s solicitors, and if so, the conditions of its release to the mother for the purpose of travel by the child and its return to the mother’s solicitors after the child’s return to Australia.

2. Subsidiary issues arose as to whether the matter for determination involves a major long-term issue (a legal issue) and whether if the condition the father seeks is not imposed there may be risk to the child of the mother absconding with her (a factual issue).

Power

1. There is no doubt as the power to determine this matter, it being an incident of the exercise of parental responsibility for a child:  DPW & IDPW (2004) FLC 93-206 at [4]-[5]. The paramount consideration in determining the primary issue is the child’s best interests: Wiltcher & Wiltcher [2010] FamCA 369 at [3]-[7].

Principles

1. I am required in determining the child’s best interests to consider each of the relevant provisions of s 60CC of the Family Law Act 1975 (Cth) because that is what the statute has provided I must do in order to determine what is in a child’s best interests. A cursory glance at those provisions shows that most of them are not relevant to this type of application, as opposed to living with and spending time with arrangements. However, the statutory mandate is one I must follow.

2. It is appropriate however that I make observation also upon some of the more traditional things that the judges have decided are relevant in these types of applications.

Background facts – the subsidiary issues – whether the matter for determination involves a major long-term issue (a legal issue) and whether if the condition the father seeks is not imposed there may be risk to the child of the mother absconding with her (a factual issue) - observations and findings

1. The mother and the child live in the D Region. The father lives in E Town.

2. By final consent orders made on 20 August 2010, the matter having come on for hearing in the Magellan Trial List, the mother has “unfettered” parental responsibility for the child, subject only to a regime of consultation with the father in relation to the major long-term issues: orders 3-17.

3. Mr Blond of Counsel, for the mother, submitted that orders 3-17 should be interpreted as “sole” parental responsibility overall (subject to the consultation process in respect of the major long-term issues), and that the issue of a passport for the child and conditions relating to such is not one of the major long-term issues so that the father should not be heard now as to the further condition he seeks to have imposed.

4. To date, the mother has been unsuccessful in obtaining a passport for the child absent the father’s signature, necessitating her application.

5. The father, as I understand the matter, has not been unwilling to sign an application for the issue of a passport but has not done so to date because of the conditions he seeks to which I have referred.

6. By the final consent orders, the child lives with the mother and spends supervised time with the father about each 3 months, namely for a few days during the Easter, September/October and Christmas school holiday periods, and 2 other periods in each year upon the giving of 6 weeks written notice to the mother: order 18.

7. The mother seeks the issue of a passport for the child to enable her to take the child to the Country F in June-July 2012 for a trip arranged by the child’s school, namely the “Country F Tour 2012”:  annexure TLL/B to the mother’s affidavit filed 12 August 2011; and other trips as may be arranged for holiday purposes.

8. The issue of a passport and the mother’s present plans are unlikely to interfere with the child’s time with the father.  The parties in any event have agreed a further order to be made by consent dealing with this aspect of the matter.

9. The father is concerned that unless the child’s passport be held by the mother’s solicitors, there is a risk that the mother might abscond with the child and indeed as has “motive” to do so.  He alleges that in November 2007 the mother made threats of “disappearing with the child” and said to the effect “I will move and you will never be able to find her or ever see her again”.  The mother denies these allegations.

10. Indeed, at the time, the mother held the child’s then current passport, which expired on 19 June 2011, and in the 3½ period after the alleged threats despite opportunity has not done any such thing as contained in the alleged threats.

11. The father said that he thought that during that period a PACE or similar Department of Foreign Affairs and Trade restriction was in place.  However, according to the mother’s Counsel, there was none ever applied for or made.  It seems that the father had made inquiry about such to the Department but not followed up on that: annexure JKH/D to the father’s affidavit filed 28 September 2011.

12. The father’s current concern also is supported by what he considered to be undue “urgency” in April 2011 in the mother endeavouring to have a new passport issued for the child, in circumstances in which the first stated proposed travel for the child is not to occur until June-July 2012 and other matters addressed in his affidavit, including a change in that proposal from initially a 7-9 day trip expanded then to potentially a trip of one month.  However, the mother’s affidavit material in my view adequately explains these matters, in particular by reference to the itinerary prepared by the child’s school and advice from the travel agent organising the proposed June-July 2012 trip, G Travel Services, and another travel agent from H Travel.

13. In brief oral evidence yesterday the mother said that whilst she does not own any real property in Australia or elsewhere, her fiancé, Mr J, with whom she and the child live, owns a house property where they plan to live as a family.  The mother said that she and Mr J are employed by a manufacturing business based in Australia owned by Mr J’s parents.  Whilst that business involves export to Asia, Country F and Europe, the mother and Mr J intend to continue to live in the D Region and to continue their involvement in what the mother described as “the family factory business”.  The mother said that both she and Mr J have attended and from time to time will continue to attend trade shows in Country F and Europe, and that when that occurs her mother, the maternal grandmother, cares for the child who is about to commence Year 2 in 2012 at the K School.  The mother said also that she and Mr J have extended family in Australia and no family overseas.  The mother said that she and Mr J plan to marry and that they have not as yet set a date for financial reasons relating to the cost of renovation of Mr J’s home and these Court proceedings.

14. I am satisfied on all of the evidence that the mother does not have any intention to abscond with the child and is not a “flight risk”, as contended by the father in his material, and is unlikely upon or after any overseas trip with the child not to return herself and the child to Australia.  The father expressed a concern that if the mother’s relationship with Mr J should break down, the mother could become a “flight risk”.  However this is speculative with no evidentiary foundation in my view of such risk.

15. In my view on all of the evidence the father’s concerns, whilst they may be genuine, are unwarranted.  In so determining I take into account the submissions of Counsel briefly summarised below.

16. In brief submissions, Mr Blond of Counsel, for the mother, relied on two factors, first the mother’s past opportunity to flee with the child between November 2007 and June 2011 but that such had not occurred so that the alleged risk is proven to have no basis;  and secondly the circumstance that by the final consent orders made on 20 August 2010 the mother has “unfettered” parental responsibility for the child other than in relation to the major long-term issues so that in essence the father simply is not in the position to require the conditions he seeks; or at least that the mother’s “unfettered” parental responsibility for the child has effect that it should not now be “fettered” in the manner sought by the father.  Thus, he put, it is not necessary to “safeguard” the child’s best interests by the fetter sought to be imposed and the fetter would be contrary to the final parenting order as to the mother’s parental responsibility.

17. Mr Nelson of Counsel, for the father, urged that the mother has “no economic ties to Australia”; she is merely an “employee of her fiancé’s parent’s business”; if her relationship with Mr J should break down the mother could become a “flight risk”; it would put “little burden” on the mother to have the child’s passport held by her solicitors;  and it would be in the child’s best interests not to have the father worried by a perceived “flight risk”.

18. I have determined, however, taking all of these submissions into account that the father’s concerns are unwarranted. Further, as I will mention below, whilst the matters of “burden” on the mother and “worry” by the father are not irrelevant considerations, the matter of the child’s best interests is the paramount consideration.

Is the question raised a major long-term issue/if not does the mother otherwise by the existing final order have sole parental responsibility for matters concerning application for a passport for the child and its use

1. I turn now to the question whether the present matter involves a decision as to a major long-term issue concerning the child, so that orders 3-17 have operation requiring the mother to have consulted with the father in the specific manner set out in those orders before requiring him to sign, or, as the father alleged, “demanding” that he sign a passport application for the child.  

2. Section 61B provides that parental responsibility in relation to a child means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

3. Section 61C provides that each of the parents of a child who is not 18 has parental responsibility for the child.

4. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

5. Section 61D(2) provides, importantly, that a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any) expressly provided in the order or necessary to give effect to the order.

6. Section 64B(2) provides that a parenting order may deal with one or more of the several matters listed in that provision including a “catch all” subparagraph:

   (i)     any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. (emphasis added)

7. Section 64(3) then provides:

   64B(3)  [Decisions about major long-term issues]   Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.

8. “Major long-term issues” is defined in s 4(1) as:

   "major long-term issues", in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a)    the child's education (both current and future); and

   (b)    the child's religious and cultural upbringing; and

   (c)    the child's health; and

   (d)    the child's name; and

   (e)    changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent. (emphasis added)

9. Plainly, subparagraphs (a) and (d) are not relevant to the question of the issue of a passport for a child.

10. I turn now to an analysis of subparagraph (e).

11. A passport is neither a “living arrangement”, nor a matter related to a “living arrangement”, but relates to “overseas travel arrangements”, which conceivably could be for proposed long-term or intermittent travel, the passport being necessary to facilitate the travel. It does not thus relate to the “living arrangements”, for example, the place or places where the living is conducted or proposed to be conducted.

12. Whilst it is true that an overseas relocation proposal comes within subparagraph (e), and that to effect such, as a necessary incident a passport for a child would be necessary, it is the circumstance of a proposed relocation, and not the issue of a passport as an incident of it, that would bring such within subparagraph (e).

13. Further, whilst the question of which parent or both should have responsibility for the issue and holding of a child’s passport is capable in my view of being conceptualised as a major long-term issue, it is neither a defined major long-term issue nor a matter relating to a change in a child’s “living arrangements” within the meaning of or for the purpose of subparagraph (e).

14. Further, to the extent that the definition of "major long-term issue" is non-exhaustive, and expressly is not limited to the five defined categories, the question of the issue of a passport is not necessarily a matter of a "long-term" nature, although, as I have observed, it is capable of being conceptualised as such.

15. However, unless and until Parliament should see fit to define the matter of an application for, holding and use of a child's passport as a major long-term issue, it seems to me that the proper legal conclusion on the present state of the legislature is that it is not.

16. I would conclude thus that the matter of the issue of a passport for a child, and whether one or both parents should sign it, is a discrete issue. In my view s 61D(1) and (2) have effect that unless a parenting order expressly provides for parental responsibility in relation to application for and the use of a passport for a child, or that this particular aspect of parental responsibility is “taken away” from one parent as “necessary to give effect” to the order, as a matter of construction of it, both parents must sign the application or there be new proceedings to deal with the matter.

1. In this case, the mother has “unfettered” parental responsibility for the child, apart from the required consultation process in relation to the major long-term issues. As a matter of construction, or interpretation of the order, the mother in effect has “sole” parental responsibility for all other parenting matters, being all of the duties, powers, responsibilities and authority which by law parents have in relation to children: s 61B.

2. The mother thus in my view by the order in effect has sole parental responsibility for and power for matters relating to any application for the issue of a passport for the child and after its issue its use.

3. To conclude otherwise would be to not give effect to the literal and apparently intended meaning of “unfettered” as used in the consent order; and such interpretation further is “necessary to give effect” to that order as a whole, on the basis that the expression “unfettered” as used in the order otherwise would be meaningless.

Best interests

1. The question for determination is whether the further condition the father seeks is in the child’s best interests.

2. Mr Nelson argues that it is in the child’s best interests because otherwise the mother could abscond with the child without giving the agreed written notice of travel plans and that the father potentially would not discover that for 3 months, that is, until the next scheduled time for the child to spend time with him.

3. Mr Blond argues that it is not in the child’s best interests because even if the child’s passport be held by the mother’s solicitors and written notice of travel plans be given to the father, the mother if she be minded to do so could provide a spurious travel plan and abscond with the child or fail to return her to Australia once the child’s passport be released to the mother.

4. In my view, there is merit in Mr Blond’s argument, with little utility thus and no advantage to the child in her best interests of requiring the passport when issued to be independently held.  Further, such potentially would involve further and future legal costs of unnecessarily but compulsorily involving attendances by the parties upon their solicitors, or at least by the mother upon her solicitors, and/or the costs of correspondence between the parties’ respective solicitors, as to release and return of the passport, which would defeat the purpose and intendment of the final parenting orders already made that solicitors no longer be involved.

5. There is already a fetter upon the mother relocating the child unilaterally on the long-term basis, that is, without consultation with the father, by the consultation process in the final orders to which I have referred, by reference to the definition of "major long-term issues", subparagraph (e).  There presently is no more reason to conclude that the mother would breach that order than there is reason to conclude that if the child’s passport be left in her possession she would abscond with the child to an unknown overseas location, and, as I observed, if she were minded to do that she could achieve that result whether or not the child’s passport after its issue be held by her solicitors and conditionally released.  In short, she could breach the condition so that even in such a scheme, if minded to abscond with the child, the mother could achieve that upon any occasion of release to her of the child’s passport by means of a spurious travel plan.

6. In relation to the specified s 60CC matters, it would be artificial, in the circumstances which I have outlined, to deal with the matter of the benefit to the child of having a meaningful relationship with both of her parents. Whether there is a need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence is not a matter presently raised for determination in this limited application. The child's views have not been expressed in relation to the present application, and indeed she is too young to express a meaningful view about it. The remaining so 60CC matters either do not arise and/or were not argued as relevant considerations.

7. Having considered the matter very carefully, I conclude that there is no evidentiary basis having regard to the child’s best interests to require the condition the father seeks.  The condition he seeks is tantamount to a restraint upon or injunctive relief against and/or in relation to the mother’s parenting of the child.  No basis for such relief is made out.  Mr Nelson’s argument that the condition that the father seeks would put “little burden” on the mother is outweighed by my conclusion that there is no necessity in the child’s best interests of that burden, being the burden potentially of unnecessary legal attendances by the mother and incurrence of legal fees by the mother in the future. Further, there is no evidence to conclude that the father’s “worry” would impact on the child, all occasions of time spent by her with the father being or to be supervised.

8. I am satisfied, in all of the circumstances, that the proper exercise of my discretion is to not require the condition the father seeks.

9. Otherwise, the orders agreed will be made by consent.

Costs

1. The mother makes application that the father pay her costs of and relating to the proceedings. As is well understood, under s 117(1) of the Family Act 1975 (Cth), subject to s 117(2) (and other stated sections not presently relevant) each party to proceedings under the Act is to bear his and her own costs.  Subsection (2) invites consideration, however, of the matters in s 117(2A) as mandatory matters to consider. 

2. In Penfold and Penfold (1980) 144 CLR 311 the High Court said at 315:

   It is an accurate description of s.117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s.117(2).  As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order.  Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. … (emphasis added)

3. Mr Blond, for the mother, essentially relies upon three of the s 117(2A) grounds, first, the party’s financial circumstances; secondly, conduct by the father resulting in costs incurred by the mother; and thirdly, that the father was wholly unsuccessful in relation to the ultimate condition that he sought to be imposed upon issue of the passport.  I will deal with these each in turn. 

Financial circumstances

1. Limited evidence is available as to the financial circumstances of the parties.  The mother works part time. She gave evidence yesterday that she and Mr J’s financial circumstances are such that they have delayed their marriage because of costs relating to renovation of Mr J’s home and the costs of these proceedings. The evidence concerning the father is that he has a managerial position in an optical store but there is no indication of his income.

Conduct 

1. Mr Blond made detailed submissions and allegations concerning conduct by the father causing the mother to incur the costs of these proceedings, and lengthy solicitors' correspondence, primarily focused upon the father’s assertion that the matter involved a major long-term issue and thus that the consultation process set up under the final consent orders should have ensued.  I will not take time in these brief reasons to summarise the other matters of alleged conduct. Such is available on transcript if required.

2. In contrast, in relation to conduct, Mr Nelson, for the father, emphasised that the father’s position in relation to the mother was that wrongly she had given the passport application to the child’s supervisor on a contact occasion, without any prior warning or discussion, in effect demanding his signature on that day, without opportunity properly for him to consider the matter; and that he had concerns legitimately that a consultation process was required under the consent final orders because the matter came within the statutory definition of a major long-term issue, whereas the mother contended that it did not.

3. In this regard, I would refer to the reasons for judgment just given. The legal issue as to this aspect of the matter was not straight forward, and indeed required a very careful analysis by me not only of the relevant statutory provisions, but also the use of the term “unfettered” in the orders in relation to parental responsibility, other than in relation to the major long-term issues, instead of, as might easily have been done, conferring in plain terms sole parental responsibility on the mother for all of the duties, powers, responsibilities and authority which by law parents have in relation to children save in respect of the major long-term issues the subject of specific treatment in the final consent orders.

4. Thus, in my view, the legal uncertainty as to this aspect of the orders, until clarified by argument and a decision, has effect that it was not unreasonable of the father to question the matter, resulting unfortunately in expensive and lengthy correspondence between the parties’ solicitors and then these proceedings.

Wholly unsuccessful

1. As to the contention by Mr Blond that the father has been wholly unsuccessful in seeking to impose the ultimate condition on the mother which he sought to impose, to my mind, the matter has to be considered from the point of view of whether it was reasonable for the father to ask the Court to assess risk for the child, rather than there being a concession by him that there was no risk, or no identifiable risk, in the circumstances of the lengthy background to the matter, the child’s age and that the father sees the child infrequently. In my view, the matter is one in which it was appropriate for the father to require a Court determination as to the matter of risk.

Conclusion

1. The mother has not made out a justifying circumstance in relation to the 3 grounds argued to support an order that the father pay her costs of the proceedings, and I will dismiss her application.

Other observations

1. Further, in my view the mother was compelled to bring her application, as explained, because the final consent orders made on 20 August 2010 contained the expression “unfettered”, which is not one of the “concepts” of parental responsibility under the statute: s 61DA; and the provisions following it, especially s 61D(1) and (2).

2. To make myself clear, the mother’s application in my view was necessary because the final consent parenting orders did not expressly cover this matter; and the orders arguably were unclear as to the matter in dispute, until clarified by reference to s 61D(2), as explained, on the narrow basis of being “necessary to give effect” to the orders; so that the parties, not surprisingly, were unable to come to an agreement about it requiring a Court determination.  

3. Further, as expressed, in my view it was reasonable for the father to require that the Court assess the matter of risk in the unfortunate circumstances of lack of real and proper communication between the father and the mother on the issue, precipitated by the mother’s conduct in giving the passport application to the child’s supervisor, with the child’s knowledge, with effect that the child said to the father on the same day to the effect:

   Mummy said that if you don’t sign my passport that I will never get to go anywhere, or do anything again.

4. This was inappropriate conduct by the mother, to involve the child in this matter on a contact occasion, and to not instead send the passport application to the father with an appropriate covering letter by her. A child’s time with a parent, in particular when it occurs only every 3 months or so, ought not be used for the resolution of adult issues. The use of a child as a conduit for the resolution of adult issues can never be condoned.

5. The mother thus, I think, by her precipitous conduct, instead of meaningful engagement with the father on this issue, in reality caused or created a "stand off" by the father necessitating these proceedings.

6. If that observation is unfair to the mother, and leaving it aside, however, the matter nonetheless turned ultimately on a question of law. I have said enough about this in the reasons for judgment.

7. The mother has failed to establish a justifying circumstance for the father to pay her costs.

8. Accordingly, her application for costs is dismissed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 29 November 2011.

Associate:     

Date:              13 December 2011