MADSEN & FANCHER
[2016] FCCA 142
•5 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MADSEN & FANCHER | [2016] FCCA 142 |
| Catchwords: FAMILY LAW – Costs – application for costs – costs granted. |
| Legislation: Family Law Act 1975, ss.43, 60B, 60CA, 60CC, 60I, 60J, 61DA, 65DAA(5), 65DAC, 69ZN, 106A, 117 |
| Allesch v Maunz [2000] HCA 40 Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 Bryant v Hawkesbury Radio Communication Co-operative Society Limited [2014] NSWSC 848 Other Articles Cited: Harman, “Should Mediation be the first step in all Family Law Act proceedings”? (2016) 27 ADRJ 1) | ||
| Applicant: | MS MADSEN | |
| Respondent: | MR FANCHER |
| File Number: | PAC 4716 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 9 December 2015 |
| Date of Last Submission: | 9 December 2015 |
| Delivered at: | Parramatta |
| Orders Pronounced: | 9 December 2015 |
| Delivered on: | 5 February 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Humphreys of Godden Lawyers |
| No appearance by the Respondent |
ORDERS
Ms Madsen shall have sole parental responsibility for the child X born (omitted) 2008.
X shall live with her mother.
IT IS NOTED that the intention of the above Order for sole parental responsibility is to vest sole parental responsibility in Ms Madsen for both the purpose of the Family Law Act 1975 and section 11 of the Australian Passports Act 2005.
Dispense with any requirement for the signature of X’s father Mr Fancher for any Application for the issue of an Australian Passport or travel document.
Pursuant to section 65Y of the Family Law Act 1975 Ms Madsen shall be and is hereby authorised and permitted to remove X from the Commonwealth of Australia at such times, for such periods and to travel to such destinations as she may desire.
IT IS NOTED that these Orders are made in the absence of Mr Fancher who was personally served with process 29 October 2015 and has failed to file a Response or appear before the Court today, although in those circumstances the provisions of rule 16.05 of the Federal Circuit Court Rules 2001 apply.
In the event that Mr Fancher should wish to make Application and be heard then he shall ensure that:
(a)No later than close of business 22 January 2016 he has made a written request for relisting by email, direct to my Associate and in accordance with Federal Circuit Court protocols;
(b)At or contemporaneous with such request that he has filed a Response, Affidavit sufficient to comply with Federal Circuit Court Rules 2001 and Notice of Risk.
The Respondent Mr Fancher shall pay the costs of the Applicant Ms Madsen assessed in the sum of $1456.57 such costs to be paid no later than close of business 22 January 2016 and failing payment by that date:
(a)Interest shall accrue upon that sum at the rate prescribed by the Federal Circuit Court Rules 2001; and
(b)The Applicant shall be entitled in a Court of competent jurisdiction to seek to recover that sum.
Reserve reasons with respect to the above Orders to be delivered in due course.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Madsen & Fancher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4716 of 2015
| MS MADSEN |
Applicant
And
| MR FANCHER |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to an Application for parenting relief.
The child whose best interests are the subject of the proceedings is a young girl X born (omitted) 2008.
The parties to the proceedings are X’s parents being her mother Ms Madsen, who is the Applicant, and her father Mr Fancher, the Respondent.
The proceedings were commenced by an Application Initiating Proceedings filed 25 September 2015. The Application is returnable before the Court for the first time today.
The Respondent Mr Fancher has filed no material.
The Applicant, Ms Madsen, appears today and is represented by Counsel. There is no appearance by or behalf of the Respondent Mr Fancher.
Service and due process
Prior to commencing proceedings Ms Madsen had attempted to attend Family Dispute Resolution (FDR). Ms Madsen contacted a Family Dispute Resolution Practitioner (FDRP) and attended an intake appointment with that FDRP. Following attempts to engage Mr Fancher in FDR a certificate was issued by the FDRP indicating that Ms Madsen had not attended FDR due to the refusal or failure of Mr Fancher to attend.
Whilst the details of those attempts are not known I do not doubt that appropriate attempts, in accordance with the Family Law (Family Dispute Resolution Practitioner) Regulations 2008, were made to engage Mr Fancher in the FDR process. Regulation 26 (4) provides as follows:
(4) A family dispute resolution practitioner may give a certificate under paragraph 60I (8) (a) of the Act only if the practitioner, or a person acting for the practitioner, has, at least twice, contacted each party who has failed to attend, with at least 1 contact in writing:
(a) giving the party a reasonable choice of days and times for attendance at family dispute resolution; and
(b) telling the party that, if the party does not attend family dispute resolution:
(i) the practitioner may give a certificate under paragraph 60I (8) (a) of the Act; and
(ii) the certificate may be taken into account by a Court when determining whether to make an order under section 13C of the Act referring the parties to family dispute resolution or to award costs against a party under section 117 of the Act.
I have every confidence that the accredited FDRP who issued the certificate has complied with their obligations under the above regulation.
The certificate deposes to the last attempted attendance at FDR having been on 4 August 2015. The certificate is issued 11 September 2015.
Clearly Ms Madsen attempted to resolve such issues as were in dispute between herself and Mr Fancher regarding X’s welfare appropriately and consistent with that required by the Family Law Act 1975.
It is important to note that a party cannot commence proceedings for parenting relief without either having first attended or having attempted to attend FDR or having obtained an exemption from attendance at FDR.
Applications for exemption are addressed by section 60I(9) of the Family Law Act 1975 and need not be considered further by me.
If a party has attended or attempted to attend FDR then, in order to commence proceedings, they must obtain and file with the Court, at the same time as filing their Application, a section 60I certificate. So much is made clear by section 60I(7) which provides:
(7) Subject to subsection (9), a Court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the Court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.
Section 60I(1) also contains an independent statement of objects (additional to those in sections 43 and 60B and which apply to all parenting proceedings under the Act) in the following terms:
(1) The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.
The intention of Parliament is clear being that litigants must, save in cases of urgency, family violence and abuse, endeavour to resolve parenting disputes between themselves without the need for intervention by the Court. In cases involving family violence and abuse there is still an obligation to consult with an FDRP or family counsellor as section 60J makes clear[1], being:
(1) If:
(a) subsections 60I (7) to (12) apply to an application for a Part VII order (see subsections 60I (5) and (6)); and
(b) subsection 60I (7) does not apply to the application because the Court is satisfied that there are reasonable grounds to believe that:
(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii) there has been family violence by one of the parties to the proceedings;
[1] Evidence compliant with section 60J or specific address of the provision in determination of Applications for exemptions is as rarely sighted as the Thylacine (see Harman, “Should Mediation be the first step in all Family Law Act proceedings?” (2016) 27 ADRJ 1).
a Court must not hear the application unless the applicant has indicated in writing that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to Court action) available in circumstances of abuse or violence.
(2) Subsection (1) does not apply if the Court is satisfied that there are reasonable grounds to believe that:
(a) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(b) there is a risk of family violence by one of the parties to the proceedings
The above is of some significance particularly as:
a)Parliament’s intent that parenting decisions are made by parents rather than the Court should not be readily frustrated through action or inaction by one or both parents;
b)The workload of the Court is such that the resolution of disputes in a consensual fashion and away from the Court (and violence and coercion as is provided by FDR) is clearly desirable.
Once the above certificate was issued Ms Madsen, as she was entitled to do and as her evidence makes clear was necessary, commenced these proceedings.
Ms Madsen's Initiating Application and supporting material was served personally upon Mr Fancher 29 October 2015.
Prior to personal service upon Mr Fancher a letter was forwarded to Mr Fancher care of the home of his mother, X’s paternal grandmother. It is to be noted, as will be addressed further in a discussion of the evidence, that Ms Madsen and Mr Fancher’s mother, Ms J, maintain a good and cordial relationship. Ms J spends regular time with X, something which Mr Fancher does not do.
The letter forwarded to Mr Fancher enclosed a copy of each of the documents filed by Ms Madsen. The letter was dated 25 September 2015 and was forwarded by ordinary prepaid post to Mr Fancher on that day.
After referring to the documents attached to the correspondence and the effect of the relief sought by the Application the letter concluded:
Our client is eager to avoid the necessity of contested court proceedings and we therefore also attach a “Consent Order” for your signature. If you happy (sic) to consent to the above orders we ask you to sign the Orders at the bottom of each page together with a Notice of Address for Service so that we can forward these orders to the court and avoid the need for either party to attend. This will also avoid you needing to sign any further paperwork regarding X. Our client is also happy to drop her application that you pay her legal fees. In our view our client will be successful as you have refused to participate in compulsory mediation.
Ms Madsen’s evidence is that neither she nor her attorney has received a response to the above correspondence and, accordingly, arrangements for personal service were made and personal service duly affected.
Following service Mr Fancher would appear to have taken no active step to address the issues in dispute or to participate in these proceedings.
Rule 4.03(2) of the Federal Circuit Court Rules 2001 (FCC rules) provides:
A response must be filed and served within 14 days of service of the application to which it relates
A period of 14 days following personal service has most assuredly expired. Based upon the time period provided by the FCC rules a Response was to have been filed by Mr Fancher on or before 16 November 2015. None has been filed.
A period in excess of five weeks has passed since Mr Fancher was served. Mr Fancher has failed to file a Notice of Address for Service, a Response or any other document.
Rule 13.03B of the FCC rules provides as follows:
(2) If a respondent is in default, the Court may…:
(d) give judgment or make any other order against the respondent;
The above rules, I am satisfied, all make clear the importance of matters proceeding promptly, efficiently and effectively. This desire for efficiency is also reflected in rule 10.02 of the FCC rules (dealing with that which is to occur at the first Court event) and which provides:
(1) If the parties agree that, because of short service or other special circumstances, it is not appropriate to proceed on the date fixed the parties may ask a Registrar in writing to adjourn the first Court date to another date.
The FCC rules make clear that the Court’s business is intended to be dealt with efficiently and, where possible, on the first return date of proceedings before the Court.
As the High Court of Australia has discussed in Allesch v Maunz [2000] HCA 40 due process must be afforded to parties. So much is inherent in the judicial process. However, for due process to be afforded to a party what is required is that they be given an opportunity to be heard, an opportunity to participate, rather than opportunities plural or opportunities which arise without Application for adjournment or justification for delay. The time that is “reasonable” is dependent upon the circumstances of each case.
As Eleanor Roosevelt opined some little time ago “Justice cannot be for one side alone but must be for both”.
I am satisfied that:
a)Mr Fancher has been personally served with process;
b)Mr Fancher is fully aware of the Orders sought by Ms Madsen and the evidence relied upon by her in seeking those Orders;
c)Mr Fancher is aware that the proceedings are listed before the Court today;
d)Mr Fancher is aware or ought to be aware (had he made any cursory enquiry, such enquiries being his responsibility in accordance with the ancient maxim that “ignorance of the law is no excuse”) that the proceedings would, in all probability, be dealt with in his absence today and in the absence of material filed by him;
e)Mr Fancher has been afforded due process;
f)Ms Madsen would be denied due process by adjournment. Her material makes clear that she has a time imperative in relation to the relief that she seeks, particularly as regards the issue of a passport for X so as to enable X to participate in a holiday with Ms Madsen and with X’s stepfather.
Mr Fancher has made no Application for adjournment. There is nothing known to the Court nor, I am satisfied to Ms Madsen, that would explain Mr Fancher’s lack of participation, lack of attendance or which would suggest a valid basis, through misadventure, illness or otherwise for Mr Fancher’s non-attendance today and his failure to file material.
Mr Fancher has made no approach to Ms Madsen or those representing her to seek to resolve or compromise the proceedings and bring them to a conclusion on a consensual basis.
Mr Fancher has declined to participate in FDR which process would have afforded to him (and Ms Madsen) the opportunity to discuss and resolve issues relating to their child.
I propose to proceed with the hearing of and determine Ms Madsen's Initiating Application today. The Application will be heard and determined on a final basis.
There is no Application for adjournment made by Mr Fancher nor by Ms Madsen. There is, accordingly, no basis for adjournment. Further, there would appear nothing to be achieved by adjournment. Ms Madsen is clear in the relief that she seeks and she presses for Orders in accordance with her Application. She is ready to proceed with the hearing of that Application today.
Mr Fancher has not filed material such as to oppose the relief sought by Ms Madsen and there is no contra agitator. Mr Fancher has not sought to challenge Ms Madsen’s evidence.
On the basis of the matter proceeding today in the absence of Mr Fancher the provisions of rule 16.05 of the FCC rules will apply. That provision is in the following terms:
(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party.
In light of the Full Court’s decision in Broughton & Broughton [2014] FamCAFC 206 I propose to include within the Orders issued by the Court clear notice to Mr Fancher of his right to make Application to reopen and be heard together with the imposition of a time limit upon the exercise of that right by Mr Fancher.
Ms Madsen is entitled to certainty and entitled to the benefit of that which she will obtain from the Court. I see no reason to leave Ms Madsen in the invidious position whereby her final Order is perpetually at risk of challenge by Mr Fancher, granted a right to apply to reopen by the Courts rules, when Mr Fancher has, prior to the hearing of Ms Madsen's Application, failed to take any step reasonably required of him.
In all of the above circumstances I will proceed to hear and determine the totality of Ms Madsen’s claim for relief. I cannot simply enter Orders in accordance with Ms Madsen's Application as the relief that Ms Madsen seeks requires the exercise of the Court’s discretion. Even though Ms Madsen's Application is undefended the Court must still be satisfied that the Orders that she seeks will best meet and promote the interests of X.
Evidence
In dealing with these proceedings I have read and considered each of the following documents:
a)Ms Madsen's Application Initiating Proceedings filed 25 September 2015;
b)Ms Madsen's Affidavit sworn or affirmed 24 September 2015 and filed 25 September 2015;
c)The Notice of Risk filed by Ms Madsen 25 September 2015. The Notice of Risk is filed by Ms Madsen in compliance with rule 22A.02 of the FCC rules. No allegation of family violence or abuse is raised;
d)Affidavit of personal service filed 8 December 2015;
e)Exhibit A – a handwritten calculation of costs sought;
f)Exhibit B correspondence from Ms Madsen’s attorneys to Mr Fancher 25 September 2015;
g)Exhibit C the section 60I certificate filed in the proceedings.
I do not propose to canvass the evidence in great detail. Suffice to say that it has been read in its totality. Ms Madsen’s evidence is internally consistent and plausible. It is not challenged or contested in any fashion by Mr Fancher. Accordingly, I accept Ms Madsen’s evidence in its totality. I make findings of fact in accordance with her evidence.
Set out hereafter is a summary of Ms Madsen’s evidence so far as it is relevant to the relief that she seeks:
a)The parties commenced a relationship together during 2007. The relationship involved a brief period of cohabitation;
b)The parties separated on a final basis in about September 2008;
c)The child of the relationship X was born (omitted) 2008 that is some two months after the parties had separated;
d)At all times since her birth X has lived with her mother and has been cared for by her mother on a full-time basis;
e)Mr Fancher has played a very limited role in X’s life. Immediately following her birth Mr Fancher would spend brief periods (between minutes and hours) with X approximately once per fortnight. Around the age of one this increased to brief, day only periods approximately once per week;
f)From the time that X was approximately 3 years of age Mr Fancher’s involvement with her has become almost non-existent. Such time as has occurred has been brief, sporadic and at the home of Mr Fancher’s mother. Ms Madsen and Ms J have maintained a good and cordial relationship with each other (as observed above) and Ms J spends regular time with X once per fortnight or so.
Ms Madsen’s evidence is that at or about the time of X’s third birthday (when Mr Fancher’s time and involvement with X dramatically reduced) Mr Fancher spoke with her and said to her words to the effect of, “I just bought a car, I can’t afford child support anymore. Anyway Mr S [Ms Madsen’s partner at the time] is more of the father figure to X than I am. I don’t want anything to do with her any more”.
When X was three years of age a passport was obtained for her. This enabled X to travel with Ms Madsen to (country omitted) (in 2011) and the (country omitted) (in 2014).
X’s passport expired early in 2015.
In about April 2015 a passport application form was provided to Mr Fancher by Ms Madsen and Ms J. The passport form would appear to have been signed by Mr Fancher, although in May 2015 Ms J indicated to Ms Madsen that the form had been lost by her and she requested a further copy. Ms Madsen then provided a further copy of the form. A short time later and whilst attending at Ms J’s home to collect X after she had been visiting with her grandmother, Mr Fancher, who was present, said to Ms Madsen, “fuck you and your paperwork”. The second copy of the form has never been signed or returned to Ms Madsen.
Since the above event Ms Madsen has heard nothing from or of Mr Fancher, save that on one occasion Ms Madsen’s brother told her that he had come upon Mr Fancher in a public place and that Mr Fancher had shoved him [Ms Madsen’s brother] up against a wall and said to him “I’m going to fuck your sister over”.
Ms J has intimated to Ms Madsen that “Mr Fancher [Mr Fancher] has recently lost his job and ended his relationship, so he’s been pretty down”.
Ms Madsen has arranged, booked and paid for a cruise to (country omitted) for herself, her partner and X. To participate in the cruise she requires a passport for X.
Orders sought
Ms Madsen seeks Orders in the following terms:
a)The mother have sole parental responsibility for the child;
b)The child live with the mother;
c)The child is permitted to travel internationally and the mother is permitted to apply for the issue of an Australian passport for X.
Legislative pathway
I am reminded by section 60CA of the Act that in all that is done the child’s best interests are the paramount consideration.
I must then have regard to the objects and principles of the Act set out in section 60B. I incorporate that provision herein:
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects and principles do not form part of the substantive law but guide the interpretation and application of the substantive provisions of the Act. The objects and principles provide in general terms for the outcome that the Court should endeavour to achieve and, on that basis, they require some brief consideration.
Regrettably the majority of the objects cannot be achieved in any meaningful fashion. The Court cannot ensure that X has the benefit of both of her parents being meaningfully involved in her live. There has been no impediment to Mr Fancher’s meaningful involvement in young X’s life, save a lack of will on his part. The Court cannot cure that. I do not suggest that Mr Fancher does not love his daughter. However, for whatever reason, he has been unable to achieve meaningful and consistent engagement with his daughter even though Ms Madsen has supported such engagement.
Ms Madsen, to her credit, has done all that is possible for her to do to ensure that X has maintained a relationship with her father and, in his absence, her paternal family.
Clearly X’s needs are well met and she is more than adequately cared for by her mother. She does not have the benefit of input or contribution from her father and there is no Order that can be fashioned by the Court that will achieve this.
The principles create certain rights for children. They are not absolute rights as they are subject to the caveat that the Court must not make Orders in furtherance of those rights in circumstances whereby their exercise would be contrary to the child’s best interests.
The child’s rights, as created by the principles, include the right to know and be cared for by and to spend regular time with both parents as well as other people of significance. The child’s rights have been met, to the extent that it has been practicable, through Ms Madsen’s efforts in ensuring the continuation of her abundantly deep, loving and meaningful relationship with X and through fostering, encouraging and facilitating X’s relationship with her paternal grandmother.
X has a right to have both of her parents participate in decision-making and to have her parents agree about matters relating to her future care, welfare and development. They are rights which have been frustrated by Mr Fancher and his action and/or inaction. This is particularly demonstrated through:
a)Mr Fancher’s voluntary withdrawal from X’s life at an early age;
b)Mr Fancher’s failure to assist financially in X’s care;
c)Mr Fancher’s failure to engage in FDR; and
d)Mr Fancher’s failure to engage with these proceedings.
I am satisfied that the Orders proposed by Ms Madsen will go as far as it is possible to go in enlivening, furthering and allowing meaningful practice of X’s rights as created by the principles.
I must then turn to section 60CC of the Act and address each of the factors contained within that provision in determining X’s best interests.
I must commence with the primary considerations being:
a)The benefit to X of having a meaningful relationship with each of her parents; and
b)The need to protect X from harm through exposure to abuse, neglect or family violence.
There is no significant issue raised regarding protection from harm and, accordingly, I need not pursue that issue further.
As regards the benefit to X of having a meaningful relationship with each of her parents there is, again, no Order which can be framed by the Court that will achieve that end. Both Ms Madsen and the Court can, as it were, “lead the horse to water” but it is not possible to then cause the beast to drink. Mr Fancher has, for whatever reason or reasons, determined that he will not pursue a relationship with X. He would also appear, through his failure to participate in these proceedings or FDR, to have determined to abandon any role in decision-making for X.
There would be benefit to X of developing a relationship with her father. She does not presently have a relationship and certainly not a relationship of any meaning or depth. That benefit is denied to X not through Ms Madsen’s action or inaction nor through any lack of will by the Court that it be so. Mr Fancher has not been precluded from a relationship with his daughter by anyone other than himself.
The primary considerations would support the relief sought. The relationship with a parent of meaning is X’s relationship with Ms Madsen. Ms Madsen’s ability to make decisions for X, as she has done for some years without input or assistance from Mr Fancher, should not be interfered with by an unachievable and thus burdensome requirement, as would arise in the event of an Order for equal shared parental responsibility which, as a consequence of section 65DAC, would require that Ms Madsen consult with Mr Fancher and make a genuine effort to arrive at joint, consensual decisions with him. Ms Madsen does not even know where he lives or how to contact him.
The very issue that has prompted the commencement of these proceedings would dictate that an Order for sole parental responsibility should be made. Ms Madsen wishes to obtain a passport for X and to be able to travel with X from time to time.
Section 11 of the Australian Passports Act 2005 is in the following terms:
(1) The Minister must not issue an Australian travel document to a child unless:
(a) each person who has parental responsibility for the child consents to the child having an Australian travel document; or
(b) an order of a court of the Commonwealth, a State or a Territory permits:
(i) the child to have an Australian travel document; or
(ii) the child to travel internationally; or
(iii) the child to live or spend time with another person who is outside Australia.
(2) Subsection (1) does not prevent the Minister from issuing an Australian travel document to a child if:
(a) circumstances specified in a Minister's determination as special circumstances exist; or
(b) the Minister is satisfied that the child's welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally; or
(c) the Minister is satisfied that:
(i) the child urgently needs to travel internationally because of a family crisis; and
(ii) if there is a person who has parental responsibility for the child and who has not consented to the child having an Australian travel document--it is not possible to contact that person within a reasonable period; or
(d) in the case of a child who is outside Australia--the child departed Australia less than 12 months before the application for the Australian travel document was made and the Minister considers that an Australian travel document should be issued to enable the child's return to Australia.
(3) If the Minister refuses to issue an Australian travel document to a child, the Minister may declare that he or she is refusing to exercise the discretion under subsection (2) because the matter should be dealt with by a court.
(5) For the purposes of this section, a person has parental responsibility for a child if, and only if:
(a) the person:
(i) is the child's parent (including a person who is presumed to be the child's parent because of a presumption (other than in section 69Q) in Subdivision D of Division 12 of Part VII of the Family Law Act 1975 ); and
(ii) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 ; or
(aa) the person:
(i) is the child's parent (including a person who is presumed to be the child's parent because of a presumption (other than in section 189) in Subdivision 3 of Division 11 of Part 5 of the Family Court Act 1997 (WA)); and
(ii) has not ceased to have parental responsibility for the child because of an order made under that Act; or
(b) under a parenting order:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child; or
(d) the person has guardianship or custody of, or has parental responsibility for, the child under a law of the Commonwealth, a State or a Territory.
Whilst the section has recently been amended to address difficulties arising from the inferred allocation of parental responsibility to any person in whose favour an Order is made to spend time or communicate with a child, the section still requires the signature of any Application for a passport by each of the persons invested with parental responsibility for a child. The provisions of section 106A of the Family Law Act 1975, permitting a Registrar to sign a document in the place of a party, have no application as regards the Australian Passports Act 2005 and, accordingly, the only way to effectively ensure that a passport can be issued, when a parent cannot be located or, as is the case with Mr Fancher, has expressed an uncooperative attitude, is for an Order for sole parental responsibility to be made.
The ability of X to travel with her mother, as she has done in the past and clearly enjoyed, could not do other than further cement and develop the meaningful relationship between X and her mother.
Ms Madsen’s evidence would establish and satisfies me that an Order for sole parental responsibility for X is warranted. As Mr Fancher would appear to have abandoned any role that he would be or have been entitled to play in decision-making for X and for some few years now I am satisfied that an Order for sole parental responsibility can and should be made in Ms Madsen’s favour. That determination will be addressed in a consideration of the balance of section 60CC of the Act.
The primary consideration would, for the above reasons, support the granting of relief as is sought by Ms Madsen.
Additional considerations
Child’s views
Ms Madsen’s evidence, which I accept, is that X is aware of the intended travel and excited in anticipation of travel.
I am satisfied that X would wish to participate in events such as travel with her mother and that the child’s views support the Orders sought.
Nature of the child’s relationship with each parent and others of significance
X clearly enjoys an excellent relationship with Ms Madsen’s partner and with her paternal grandmother. The Orders that are sought by Ms Madsen will not interfere in these relationships and will, in fact, bolster and continue them. X’s relationships with each of these people of importance to her would be aided by the Orders that are sought.
The extent to which each parent has participated in the child’s life in decision-making
I need say no more with respect to this factor than is already addressed above.
Mr Fancher has, for reasons not only to himself, abandoned his role in this child’s life. A concrete manifestation of Mr Fancher’s inability to appropriately participate in decision-making for the child is Mr Fancher’s failure to participate in either FDR or these proceedings. Upon being given the opportunity to take an active step in decision-making and to provide some assistance towards X (through signing a passport Application form) Mr Fancher has, again, failed.
Whilst it is a serious step for the Court to make an Order for sole parental responsibility, having the effect of removing the right of Mr Fancher to participate in decision-making, the Order that is sought, in reality, does nothing more than to continue that which has been in place for some years and being a circumstance which was created by Mr Fancher.
Child support
X is supported solely by Ms Madsen. Mr Fancher has not made financial provision for X since her early years. Whether this is reflective of Mr Fancher’s financial position or simply his attitude towards his legal and moral obligations (the International Convention on the Rights of the Child (ICRC) including a right, at Article 27, to be maintained) is unclear. The reality, however, is abundantly clear. Mr Fancher has abandoned, in every respect, his rights, duties and responsibilities as X’s parent.
Likely effect of change
The Orders proposed by Ms Madsen will not, in reality and as regards X’s knowledge and perception of events, affect any change whatsoever. The Orders will legally recognise the de facto position that has been in place for most of X’s life, namely, that she lives with her mother, has little or no relationship with her father, is supported in her relationship with her paternal grandmother and has all important decisions affecting her life made by her mother.
I am satisfied that there would be a positive change for X in cementing arrangements for the future to avoid the need for proceedings such as these commenced to enable and facilitate X’s travel with her mother and which are necessitated by her father’s failure to engage or respond appropriately to her needs and interests.
Practical difficulty and expense
I incorporate herein the provisions of section 65DAA(5) of the Act.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
It is unclear whether the parties live any real distance apart from each other. This is largely irrelevant as Mr Fancher does not pursue a relationship with X.
The parents do not cooperate or communicate and have demonstrated their incapacity to make joint and consensual decisions.
I am satisfied that it would be impracticable for the presumption of equal shared parental responsibility to apply or for an Order to that effect to operate. The obligations that would be created by section 65DAC of the Act would be illusory and unachievable. To continue equal shared parental responsibility, as would arise from the section 61DA presumption, would be to perpetrate a fiction.
If that were not bad enough it would also continue an arrangement which is disadvantageous to X in that it has frustrated her ready participation in travel, which she would have enjoyed and was looking forward to and has necessitated financial disadvantage to her mother and household, Ms Madsen having been required to commence proceedings to obtain something which should have occurred without Court intervention, namely, the signature of a passport Application and the issue of that travel document to enable X to travel. X has a right to a passport and her father, if focused upon X and her interests would have co-operated in obtaining one.
Capacity of each parent to meet the child’s emotional needs
On the basis of Mr Fancher’s withdrawal from the child’s life I would have some concern as to his ability to meet X’s emotional needs. He would appear to lack some insight into her emotional needs not having paused to consider the impact upon her of her likely perceived “abandonment” by her father.
I have no such concerns as regards Ms Madsen and her capacity to meet X’s emotional needs. She has done so without assistance from Mr Fancher and, at times, notwithstanding his interference. Ms Madsen has also taken active steps to ensure X’s continued relationship with her paternal grandmother demonstrating her understanding of young X’s needs.
Maturity, lifestyle and background of the child
X is a little girl of seven years of age. Regrettably, X is accustomed to the absence of her father from her life.
Allowing this young girl to engage in travel and to have prompt and effective decisions made for her welfare is of real importance to her. The Orders that Ms Madsen proposes will ensure that this is so.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander. Nor does X.
Attitude to the child
The above brief discussion of evidence would make clear that I have some concern as to Mr Fancher’s attitude as a parent. I have no such concerns with respect to Ms Madsen’s attitude as a parent. Indeed, she has struggled and raised this child without assistance and, at times, with interference from Mr Fancher. She is to be commended.
Family violence and family violence orders
This is not raised as a significant issue on the evidence.
Avoidance of future proceedings
As has been set out above there is no purpose to adjournment of these proceedings. No Application for adjournment is made and there is no opposition to nor contra agitation with respect to the relief sought by Ms Madsen.
The Orders that Ms Madsen seeks will simply give legal force and effect to the reality of arrangements that have applied for most, if not all, of this little girl’s life. I am satisfied that to do so will best avoid future proceedings.
Overseas travel and removal from the Commonwealth
Ms Madsen’s evidence is clear that she was born in Australia, is an Australian citizen and intends to remain residing in Australia. Ms Madsen is equally clear that she has no ties to, connection with or any entitlement to reside within any overseas jurisdiction.
With respect to overseas travel I have had regard to authority such as Kuebler & Kuebler (1978) FLC 90-434 and Line & Line (1996) 21 FamLR 259. By reference to those authorities and Ms Madsen’s evidence I am satisfied that:
a)The travel which would be undertaken by Ms Madsen in the foreseeable future or at any time in the future would be for appropriate periods and to appropriate destinations free from readily predictable or known risk or danger. Ms Madsen has demonstrated her capacity to make sensible and well informed decisions for herself and her child;
b)Ms Madsen is a citizen of and ordinarily resident within Australia and is likely to return to Australia where all of her social and economic connections are found;
c)Travel for X with her mother would be beneficial to her, would deepen her already meaningful relationship with her mother and would provide a wonderful life experience for the child.
I am satisfied by the above authorities, facts and circumstances that Orders to facilitate travel as sought are appropriate.
Conclusion
I am satisfied that Ms Madsen has made out her case to obtain the benefit of the Orders that she seeks. She has demonstrated that the Orders that she seeks will best meet and promote the child’s best interests and accordingly, those Orders will be made.
Costs
Ms Madsen presses her Application for Costs. Costs are sought in the sum of $1,456.56 calculated in accordance with Exhibit A.
An Application for Costs under the Family Law Act 1975 is determined by reference to section 117. I incorporate that provision, so far as is relevant, herein:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(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.
Section 117(1) (above) establishes what is often referred to as the “general rule” that each party shall pay his or her own costs.
Section 117(2) reserves a general discretion to award costs when the dual test of justifying circumstance and justice and equity are met (for a discussion of those tests see Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812.
In determining whether an Order for Costs is to be made I must have regard to each of the factors in subsection 2A. I will deal with each of those factors individually.
Financial circumstances of the parties
Little is known of the financial circumstances of either parent.
Ms Madsen is in employment as a (occupation omitted). Whilst her income is not specifically disclosed there is no reason to presume that it would be or be much beyond average weekly wages.
Ms Madsen has the full-time care of X and receives no financial support and assistance towards her care of that child.
Whilst Mr Fancher’s financial circumstances are not known it is clear that the cost of these proceedings will be a significant impost upon Ms Madsen. The costs that are sought are modest and less than the amounts which Schedule 1 of the FCC rules provides. However, even the amount as sought would create significant hardship, I am satisfied, in Ms Madsen’s household and would disadvantage X, directly or indirectly. The funds that have been expended in addressing these proceedings, modest as that expenditure is through the good grace of Ms Madsen’s attorneys and through the proceedings being resolving at the earliest opportunity, are funds which will not be available for Ms Madsen’s nor X’s use and enjoyment nor will they provide for X’s daily needs.
Legal aid
Neither party is in receipt of Legal Aid.
Conduct of the parties
I am satisfied that this is a significant issue in this case.
As is recorded above, Mr Fancher has failed to participate not only in these proceedings but in FDR attempted prior to the commencement of the proceedings.
As regards FDR, in addition to the object set out in section 60I(1), I must also have regard to the note to section 60I(8), which is in the following terms:
Note: When an applicant files one of these certificates under subsection (7), the Court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (see section 13C) and in determining whether to award costs against a party (see section 117).
If one has regard to each of the above provisions as well as section 60I(10), (which provides for the Court, whenever an Application is made in circumstances where FDR has not been attended prior to filing, to consider “…making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues”, it is clear that Parliament’s intention is that parents will make decisions with respect to the future parenting arrangements for their children and will use FDR as a primary means of dispute resolution and Application to the Court as a last resort only.
This is also clear from the explanatory memorandum to the 2006 amendments which includes the following statement:
Compliance
107. If a person does not attend family dispute resolution in accordance with this new section 60I…The Court could also order costs in appropriate cases. This will discourage parties from trying to avoid the provisions and will ensure that the Court considers the reasons for exemption [or non-attendance].
The difficulties created by the failure of Mr Fancher to participate in FDR have been compounded by Mr Fancher’s failure to respond to the correspondence forwarded to him by Ms Madsen’s attorneys on 25 September 2015. That correspondence invited Mr Fancher, as he should have, to consent to the Orders that were sought by Ms Madsen at least as regards the issue of the passport and overseas travel. It was made clear in that correspondence that if consent was provided to those portions of the Application that costs would not be sought. I am satisfied that the correspondence makes sufficiently clear that if it were necessary for Ms Madsen to attend Court, as she has, that costs would be sought.
In an earlier decision of Prior & Burton (No.2) [2014] FCCA 2723, I had said the following:
70. In the recent decision of Bryant v Hawkesbury Radio Communication Co-operative Society Limited [2014] NSWSC 848 Sackar J opined [at 110]:
In my view, in the modern era and consistent with section 56 of the Civil Procedure Act parties have an obligation to constructively collaborate not just on the issues to be ventilated but on the most efficient methods to do so. As has been otherwise said, litigation is not a game and the expense of the Courts to the public is so great that their use must be made as efficient as is compatible with just conclusions.
71. Sackar J further opined [at 157]:
Whilst the system of justice administered by Courts in this state is adversarial, in the modern era in my view parties have a distinct and clear obligation to cooperate with each other and the Court to achieve a quick and inexpensive solution to their grievances including in my view good faith settlement discussions.
72. Commentary on the decision, in an excellent case note by Clayton UTZ in the LEADR Update August 2014 concludes:
As Sackar J's judgment shows, even a party with an 'open and shut' case may be effectively penalised on the issue of costs if they have exploited their position in the litigation for tactical advantage at the expense of a genuine attempt to resolve the dispute.
73. A growing body of case law, such as Ken Tugrul v Tarrants Financial Consultants Pty Ltd (No. 5) [2014] NSWSC 437 have begun to evince and demonstrate a particular attitude, albeit in that case founded upon a legislative “overriding purpose”, towards costs when parties have acted other than with a keen, deliberate focus upon limiting issues and exploring resolution of disputes.
74. In Setka v Abbott [2013] VSCA 345 the plurality of their Honours constituting the Victorian Court of Appeal (Warren CJ, Ashley and Whelan JJA) observed in a joint judgment:
…the over-arching purpose which, by operation of the Civil Procedure Act 2010, applies to both litigants and their advisers, is not simply a pious but toothless statement of the considerations which are to motivate participants, lay and professional, in civil litigation. So much was powerfully emphasised by this Court in Yara Australia P/L v Oswal. The just, efficient, timely and cost effective resolution of the real issues in dispute in a case cannot be facilitated if a party and the party’s advisers do not take adequate steps to identify the issues which require determination early in the life of the proceeding.
75. In Yara Australia P/L v Oswal [2013] VSCA 337 the Court, within the context of the “overriding purpose” established by the Victorian Civil Procedure Act 2010, referred at [52] with disapproval to “… the culture of unnecessary expenditure in civil litigation”.
…
184. “Hardball” or “scorched earth” litigation of this nature has no place in modern litigation and certainly not in litigation before the Federal Circuit Court of Australia. Such an approach sits uncomfortably with the mandated lack of formality which underscores the exercise of jurisdiction by this Court, whether in family law or general federal law. Such an approach cannot be reconciled with informality.
185. Whether or not there is a legislative mandate or a rule-based requirement to mediate and attempt to limit and define issues and resolve litigation, there is a clear expectation that parties will conduct their litigation in an outcome, resolution focused fashion. It is the clear expectation of Courts that it will be so. Such expectations are signalled, for example, by the High Court in Haset Sali v SPC Ltd [1993] HCA 47 and Aon Risk Services & ANU [2009] HCA 27 as well as by Supreme Courts of each State and Territory and the Federal Court of Australia. The jurisprudence dealing with such approaches and expectations has occurred both prior to and post-legislative mandates such as section 60I of the Family Law Act and the Federal and the various State Civil Dispute Resolution Acts. Whilst such provisions may not strictly apply to proceedings pursuant to part VIIIAB of the Family Law Act it would be nonsensical (and create unwarranted and unnecessary inconsistency within the law) to suggest that within one area of specific jurisdiction and nowhere else that an obligation to conduct one’s legal affairs in a sensible, appropriate, cost-effective and resolution focused fashion does not apply.
186. Ignoring an obligation to conduct litigation in good faith (comprising, if nothing else, an expectation to make “genuine attempts” at settlement and with a view to resolution and effective use of resources, including time and money of both parties and the Court), is not to be encouraged, condoned nor rewarded. There is some particular parallel between the circumstances of this case and the Bryant v Hawkesbury Radio Communication Co-operative Society Limited [2014] litigation referred to above.
…
193. Litigation of this sort simply need not occur. Four days of Court time (plus the other Court events) should not and would not have been expended on these proceedings if the parties had been focused on the real issue in dispute between them and its resolution and had made any genuine attempt to achieve a resolution. I am concerned that considerations, issues and agendas unconnected with the attainment of justice have motivated one or both of these parties in conducting their litigation in the fashion that they have. In the case of Mr Prior, whose application for costs I must deal with, has conducted his litigation as a “fight to the death” on a jurisdictional point (together with the application to exclude evidence upon which he failed) and refusing to engage in any discussion, settlement negotiation, alternate dispute resolution or other process that might have achieved a resolution of the primary or real dispute.
This case differs in some respects from the authorities discussed above. Significantly, there is no “overarching purpose” as such contained within the Family Law Act 1975 as there is in the various State Uniform Civil Procedure Rules (UCP). However, the object of section 60I is relevant and whilst not going as far as the UCP codes does make clear Parliament’s intent that “…all persons who have a dispute…make a genuine effort to resolve that dispute by family dispute resolution before…” approaching the Court. Parliament’s intent in that regard is also signalled by section 3 of the Civil Dispute Resolution Act2011[2] which provides that “…as far as possible, people take genuine steps to resolve disputes before…” making Application to a Court and including, in the case of that Act, by attending “facilitated negotiation”.[3]
[2] Whilst proceedings under the Family Law Act 1975 are expressly excluded from the Civil Dispute Resolution Act 2011 the consistency in provision adds force to the clear intent of Parliament that parties will privately order rather than use litigation to resolve disputes.
[3] Civil Dispute Resolution Act2011, section 4.
If such objects are expressed, then there should be consequence for non-compliance with those objects. The available consequence is an Order for Costs.
Non-compliance with the objects of the Family Law Act 1975 is, I am satisfied, a relevant consideration as regards the exercise of costs jurisdiction and, including determination of justifying circumstances and the justice and equity of an Order being made. In this case that would support a finding that a Costs Order and departure from the “general rule” is justified.
Another distinction between this case and the above authorities, especially Bryant v Hawkesbury Radio Communication Co-operative Society Limited, is that, in this case, the Applicant who seeks Costs has not only been wholly successful in obtaining the relief that they sought, but had tried to avoid proceedings completely through attendance at FDR. Upon Mr Fancher’s refusal to participate the proceedings were “necessitated” as Ms Madsen had a valid and pressing legal need to address and no other means to resolve that claim.
I wholeheartedly and respectfully agree with Sackar J that parties have “an obligation to constructively collaborate” to resolve issues. I am satisfied that this is all the more so when the issues requiring resolution relate to the best interests of their child as:
a)The 69ZN principles give clear guidance on the matter. Whilst the section 69ZN principles impose obligations upon the Court the parties also have responsibility for ensuring that the principles are observed. The first principle provides that the Court and, I am satisfied, the parties, must “…consider the needs of the child concerned” as well as, specifically as regards the conduct of litigation “…the impact that the conduct of the proceedings may have on the child”. Whilst the principles apply to litigation and thus might be argued to have no application to that which proceeds litigation, I am satisfied that this is not so. In making a decision to commence (or creating a trigger for the commencement of proceedings by not attending FDR) the principles should be considered by litigants. By taking or failing to take a step that will leave no alternative to resolve a controversy other than litigation a party should be conscious of such matters. Indeed, in all that is done by parents they should be concerned with the needs and interests of their child. There is little or no evidence that these were matters that operated in Mr Fancher’s mind in either refusing to sign the replacement passport Application form or in failing and refusing to attend FDR. The impact on the child of the need to commence litigation simply to obtain a passport (to replace a recently expired passport that had been procured without the need for Application to the Court) especially as regards delay, uncertainty, missed opportunities for travel and cost, would also not appear to have been considered by Mr Fancher when he determined to rudely reject Ms Madsen’s requests for signature of the form or the FDRP’s equally polite requests to attend FDR. The fourth principle, that proceedings and, I am satisfied the affairs of the parties, should be “…conducted in a way that will promote cooperative and child-focused parenting by the parties” is also relevant and would appear to be another consideration absent that demonstrated by Mr Fancher’s actions and inactions;
b)The cost to the child, the parties, their parenting alliance and the cost to the Court and community of litigation is well established as an important consideration in parenting proceedings. Those costs are well beyond financial and as is discussed, for example, by the High Court of Australia in AMS & AIF (1999) CLR 160;
c)The child has rights created by the International Convention on the Rights of the child (incorporated in its totality as objects of the Family Law Act 1975). Many of those rights can only be fully enlivened and enjoyed through “constructive collaboration” between the child’s parents. The child’s “right” as addressed in sections 60B(2)(c) and (d) to have their parents “jointly share duties and responsibilities” and “agree about the future parenting of…” the child cannot be achieved absent such “constructive collaboration”;
d)Having regard to the facts and circumstances of this case Ms Madsen has an overwhelming case and the relief she sought was, for all intents and purposes, irresistible. I will consider this factor further as regards offers of settlement. However, as regards “conduct” I am satisfied that the corollary of Sackar J’s view that “even a party with an 'open and shut' case may be effectively penalised on the issue of costs if they have exploited their position in the litigation for tactical advantage at the expense of a genuine attempt to resolve the dispute” would, conversely, support the view that a litigant with an “open and shut” case who has sought to engage in a genuine attempt to resolve the dispute and whose approaches have been rejected or ignored, is all the more entitled to their costs or, at the very least, a finding that costs are justified. Similarly, that expressed by the Victorian Supreme Court in Yara Australia P/L v Oswal has some bearing, namely, that “…the culture of unnecessary expenditure in civil litigation” is to be disapproved. Such disapproval is best expressed, in light of the above facts and circumstances, in a finding that costs are justified.
One aspect of Sackar J’s Judgment with which I again respectfully concur and adopt is that “…parties have a distinct and clear obligation to cooperate with each other and the Court to achieve a quick and inexpensive solution to their grievances including in my view good faith settlement discussions”. That obligation is, again and by reference to the above matters, heightened in parenting proceedings whereby two parents, whom Parliament intend and recognise as the appropriate decision makers (indeed, the ICRC gives some further strength to Parliament’s intent providing that the family is to recognised as the fundamental unit of society)[4] are given not only encouragement but assistance and legislative mandate to discuss and resolve issues through publically funded FDR before or preferably without the need for recourse to litigation.
[4] Section 43(1)(b) of the Act which provides for “…the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children”. The family does not cease to exist as a consequence of separation. It simply changes form. The family as a unit is, consistent with the objects and principles in section 60B and as discussed above, to be preferred as the maker of decisions as regards children of that family.
Once proceedings were commenced Mr Fancher has, again, failed to take any active step required of him to participate in the proceedings. One might infer that Mr Fancher may have failed to act on the basis that he does not oppose the relief that is sought by Ms Madsen and does not wish to agitate that the Orders sought by Ms Madsen are other than in furtherance of the child’s best interests. If that were so it begs the question as to why Mr Fancher has not, simply attended to execution of the further passport Application form provided to him or of the “consent Orders” sent to him under cover of the letter 25 September 2015.
I am satisfied that Mr Fancher’s actions and inactions and his conduct generally towards his responsibilities as a parent, his responsibility to seek to resolve disputes with respect to the future welfare of his child in a prompt and appropriate fashion and, ultimately, to address these proceedings, is a sufficient justifying circumstance for an Order for Costs.
I am also satisfied that Mr Fancher’s conduct establishes the justice and equity of an Order for costs in favour of Ms Madsen. It would be unjust and inequitable for Ms Madsen to be required to meet her own costs in the above circumstances and particularly when she has been wholly successful and has made a genuine attempt to resolve the matter without recourse to litigation and, upon commencing proceedings, has made an open offer of settlement.
Where proceedings are necessitated by failure to comply with an order
Clearly this is not so. However, the proceedings are “necessitated” by Mr Fancher’s failure to comply with a statutory obligation, namely, attendance at FDR.
Whilst the correspondence to Mr Fancher from Ms Madsen’s attorneys (Exhibit B) refers to “compulsory mediation” there is no such thing. There is a statutory obligation, as imposed by section 60I of the Act, for parties to attend or attempt to attend FDR prior to making Application to the Court. Mr Fancher, of course, has never made Application to the Court, whether as an Applicant or Respondent. Mr Fancher’s failure to “engage” has necessitated the proceedings, however, as the only means available to Ms Madsen to obtain the outcome she desired or, perhaps more correctly, to obtain an outcome for X to which she is entitled, was litigation.
I am not satisfied that I can take Mr Fancher’s failure to comply with the statutory obligation or, at the very least, the object set out in section 60I(1) of the Act and read in conjunction with the balance of section 60I of the Act, as a failure to comply with a previous Order. I am satisfied, however, that Mr Fancher’s non-attendance is relevant as the provisions of subsection 2A are mandatory to consider but are not prescriptive of consideration. The Court is entitled to take into account such other matters as appear relevant. Non-attendance at FDR is relevant.
Disputes such as this need not and should not come before the Court. These are matters which parties should resolve between themselves with a focus on the child’s rights and interests. If not resolved between themselves disputes of this nature should be the subject of attendance at FDR through which process such matters should with “genuine effort” be resolved.
The Court has an obligation to manage its own affairs and all the more so in the present environment of under resourcing and ever-increasing delays. Such obligations have been discussed at some length by the High Court of Australia cases such as Haset Sali v SPC Ltd, Aon Risk Services & ANU and Expense Reduction Analysts Group Proprietary Limited & Armstrong Strategic Managing and Marketing (2013) 303 ALR 199. A matter such as this, which should be resolved through appropriate child focus and sensible compromise, simply takes up times that the Court could better devote to cases of urgency and genuine need, cases where children are at risk, exposed to and traumatised by family violence, neglect or abuse or not spending time with a parent who wishes to pursue a relationship with them. That is not to criticise Ms Madsen. An Application to the Court was the only option available to her to address this child’s right to a passport absent the father’s consent or engagement.
An Order for Costs is intended to do justice as between the parties. An Order for Costs, in a common law system such as ours, reliant upon precedent and prior authority, also serves an ancillary purpose of being a clear indication to the community of what is expected in resolving disputes and what consequence will flow from failing to act reasonably.
Considerations such as the above could not be dispositive of this issue. The issue must be determined by reference to the ambit of discretion set out in sections 117(2) and (2A). I am satisfied however, that it is a relevant consideration.
Whether a party has been wholly unsuccessful
It is difficult to describe Mr Fancher as being unsuccessful. He has not sought anything from the Court. He has, however, been wholly unsuccessful in opposing or resisting the making of Orders as sought by Ms Madsen. In fairness to Mr Fancher, he has never taken any active step towards that end and thus, his lack of success is not as a consequence of action on his part.
The Court’s consideration by reference to this provision is upon a complete or substantial absence of success rather than a party being wholly successful. Again, however, the provisions of section 117(2A) are prescriptive but non-exhaustive. The Court is entitled to have regard to the complete success of Ms Madsen as the Applicant in these proceedings obtaining all that she sought. Ms Madsen has obtained everything that she had sought and has been put to the cost and expense of approaching the Court to do so in circumstances whereby:
a)She had attempted to discuss and resolve issues between herself and Mr Fancher, albeit through the paternal grandmother as conduit or third-party, using the oldest legal remedy of “self-help”;
b)Upon self-help being unsuccessful Ms Madsen has attempted to arrange and attend FDR and has been frustrated in that endeavour by Mr Fancher’s inaction or positive refusal (which is unclear due to the statutory wording of the certificate);
c)She was, as her lawyers observed in their letter 25 September 2015, always likely to obtain the relief that she sought.
I am satisfied that the above matters are relevant and lend support to both the finding of a justifying circumstance for departure from the general rule and the justice and equity of doing so.
Offers
Clearly, an offer in writing was made to Mr Fancher, which offer he should have accepted. The relief that is sought by Ms Madsen is and always was irresistible on the evidence as it stands.
Prior to the written offer, which Mr Madsen has now had some 11 weeks to consider but has failed to respond to, further entreaties were made and overtures put to Mr Fancher as discussed above. Acceptance of those offers would have seen not only a resolution of the dispute but would have obviated against the need for Ms Madsen to attend Court today or at all. The inevitable path to the listing of the matter before the Court today has been created by Mr Fancher.
This factor overwhelmingly, particularly in combination with Mr Fancher’s general conduct with respect to a resolution of issues in the proceedings combined with his failure to attend FDR, supports the making of an Order for Costs. Mr Fancher has acted unreasonably. That unreasonable behaviour has occasioned cost to Mr Madsen and the unreasonableness of Mr Fancher’s behaviour justifies and makes just and equitable an Order for Costs.
Other relevant matters
I am satisfied that all relevant issues are discussed above.
Quantum of costs
Division 21 of the FCC rules is relevant with respect to costs and particularly quantum.
Rule 21.10 of the FCC rules provides:
Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1; and
(b) disbursements properly incurred.
Whilst I must have regard to Schedule 1, the schedule is not prescriptive. The Court must take into account the schedule but is not bound by it. Departure is permitted.
By reference to Schedule 1 Ms Madsen would be entitled to the following costs:
a)Item 1 - initiating an Application up to the first Court event – $2048 plus time at Court;
b)Item 13 – half day hearing – $1024;
c)Disbursements. It would not appear that a service fee was incurred as service was effected by the paternal grandmother. However, a filing fee may well have been paid, although it is unclear whether it was, in fact, paid or an exemption obtained.
The costs in fact sought in these proceedings total $1,456.57. That amount is extremely modest by reference to fees and charges of legal practitioners generally and certainly as regards the schedule of costs which would apply as set out above. If they are the costs in fact charged and sought to be recouped, then it is entirely appropriate that the claim is limited to that sum.
Clearly there is no need to consider whether costs as sought are to be ordered on an indemnity basis. Schedule 1 describes that which would be anticipated on a party/party basis. As the costs sought fall significantly short of the amount the schedule provides I do not propose to take the issue further and I accept that Ms Madsen and her attorneys are entitled to the Order that they seek the amount being entirely reasonable.
Accordingly, and for the reasons above I make Orders as follows (see Orders).
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 5 February 2016
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