Mandal & Nayak
[2022] FedCFamC1F 72
•4 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mandal & Nayak [2022] FedCFamC1F 72
File number(s): BRC 14336 of 2020 Judgment of: JARRETT J Date of judgment: 4 February 2022 Catchwords: FAMILY LAW – Parenting – assessment of competing proposals Legislation: Family Law Act 1975 (Cth) ss. 4AB, 60B, 60B(1)(d), 60CC(3), 60CC(3)(a), 61C, 61DA, 61DA(2), 62G, 102NA(1)(c)(ii), 102NA(2), 117(1), 117(2A) Cases cited: Penfold v Penfold (1980) 144 CLR 311 Number of paragraphs: 47 Date of last submission/s: 4 February 2022 Date of hearing: 3 & 4 February 2022 Place: Brisbane Counsel for the Applicant: Mr Cerghofer Solicitor for the Applicant: Norris Law Solicitor for the Respondent: The Respondent was self-represented Counsel for the Independent Children’s Lawyer Mr Selfridge Solicitor for the Independent Children’s Lawyer Brisbane Family Law Centre ORDERS
BRC 14336 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MANDAL
Applicant
AND: MR NAYAK
Respondent
ORDER MADE BY:
JUSTICE JARRETT
DATE OF ORDER:
4 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The applicant have sole parental responsibility for decisions concerning the major long-term issues concerning X.
2.All previous parenting orders are discharged.
3.The child, X born in 2008 shall live between the applicant and the respondent in a weekly arrangement commencing on a Sunday in each week during school terms as follows:
(a)With the applicant, from 9am Sunday to before school Thursday (or if Thursday is not a school day to 5pm); and
(b)With the respondent, from after school Thursday (or if not a school day from 5pm) to 9am on Sunday.
4.During school holiday periods, the child X live equally between the parents with the half and for the purposes of this order, school holidays commence at the conclusion of the last day of school term and conclude the morning of the first day of the new school term.
5.The parties shall:
(a)Keep the other parent informed at all times of their contact telephone number and email address and shall notify the other parent within 48 hours of any change;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the children Y, born in 2004 and X, born in 2008 and authorise those practitioners to provide the other parent with information that they are lawfully able to about the children; and
(c)Inform the other parent as soon as is reasonably practicable of any significant medical/health condition, issue or illness requiring treatment from a medical practitioner.
6.This order is an authority for the applicant and the respondent to obtain information from any treating medical practitioner, hospital and/or health care professional concerning the health of the children.
7.This order is an authority for the applicant and the respondent to obtain information from any school, sporting and extracurricular organisation concerning matters relating to the children, and to attend at any school, sporting or extra-curricular function attended by the children.
8.The parties communicate by email for all communication in relation to the parenting of the children for the purposes of this order, unless in the case of an emergency which case communication will be via text message.
9.During the time the children spend with each party, that party shall:
(a)Respect the privacy of the other party and not question the children unduly about the personal life of the other party;
(b)Speak respectfully of the other party; and
(c)Not denigrate or insult the other party or the party’s family in the presence of or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent or their family in the hearing of or presence of the children.
10.The applicant shall hold X’s passports and the respondent will deliver the child’s passport to the applicant within 48 hours of this order by registered post.
11.Within fourteen (14) days of receiving a written request by the applicant, the respondent shall do all such acts and things and sign all such deeds, documents, instruments and consents as may be necessary to cause a passport or renewal of passport to issue in X’s name.
12.In the event that the respondent refuses or fails to do all such acts and things and sign all such deeds, documents, instrument and consents as may be necessary to cause a passport to issue in X’s name, then notwithstanding s.11(1) of the Australian Passport Act 2005 (Cth), a passport shall issue without requiring the respondent who is in default of his obligations pursuant to paragraph 12 hereof to sign X’s passport/renewal application.
13.The Independent Children’s Lawyer be discharged.
14.Any contraventions filed in relation to these orders shall, at first instance, be listed in the Federal Circuit and Family Court of Australia (Division 1) before the Honourable Justice Jarrett.
Note: The form of the order is subject to the entry in the court’s records.
Note: This copy of the court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mandal & Nayak has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
REASONS FOR JUDGMENT
JUSTICE JARRETT:
This application concerns parenting orders for two children, Y, who is now 17 years and will be 18 this year, and X, who is 13. She will be 14 later this year. They have an older brother, Mr B, who is over the age of 18 years and he is not the subject of this application.
This is a most curious case. The evidence demonstrates that the parties had a relationship that commenced in 1994 and came to an end in either 2015 or 2016. There is a dispute about when the relationship ended, but it does not really matter. Once they separated, the mother continued to reside in the parties’ former matrimonial home with the children and the father visited the children or spent time with them there. I do not think there is any dispute that the father would visit the house notwithstanding her objections to it. I accept the mother’s evidence about that because it is consistent with what Mr B told Mr C when he was interviewed for the purposes of the family report. Indeed, both Mr B and Y told Mr C that they thought that their mother did not want their father there and told him not to come. But she, ultimately, permitted him to be there for the benefit of the children.
There is a dispute between the parties about the arrangements post-separation for the children, in the sense that the father says that, for most of the time, X was living with him. The mother says X was living with her. There is no dispute that the two boys were living with her but it seems that, at some point – counsel for the mother put it as “towards 2018”– X commenced living in an equal time arrangement between the households. I suspect it was a more ad hoc arrangement than that, simply because the arrangements since then and the arrangements since October of last year have also been relatively ad hoc.
In any event, there was an event that occurred in December of 2019 which changed the landscape. There is a significant divergence of the evidence between the parties about what happened in terms of the care of the children post then. Those matters are canvassed by each of the parties in their material. Those matters are also canvassed by the children in their interviews with Mr C.
Mr C is a social worker who was engaged by the parties for the purposes of preparing a report pursuant to s 62G of the Family Law Act 1975 (Cth). He engaged with the parties and conducted interviews. He released his report nearly a year ago now, in March of 2021. Remarkably, it seems that when the children went to be interviewed by Mr C, they were expecting a short interview. They were expecting an opportunity to unload on their mother, as it were, and then leave. They did not expect to see her there. That was their expectation because that is what their father told them to do and what would happen. He told Mr C that he had told the children that, or words to that effect, and it was confirmed on a couple of occasions through the events that occurred during Mr C’s interviews. The father now denies that he said such things to the children. His denials are disingenuous and I reject them.
Mr B told Mr C about his life in his family. He said that life was pretty normal, really. When his parents were together, he remembered going to a new school. He remembers making new friends. He thought everything was good. He began doing well at school, he had friendships and he has continued to do well, academically. As I understand the evidence, he might now be studying medicine. His description of his parents’ relationship is entirely unremarkable. There were ups and downs and one parent attended to some things and the other parent attended to other things. There is nothing remarkable about any of that. He gave a description about what happened after his parents separated. He said that his father was coming and going from his mother’s house. He told Mr C he knew that his mother did not want the father to be there, but she tolerated him, and, in Mr B’s words, “She let him come for us.”
That is important, I think, because, in the context of, first of all, a separated relationship like this and, secondly, what later became a difficult relationship between the parents, the mother was obviously able to understand the importance of the children’s relationships with their father and, notwithstanding the irksome nature of having him around, was able to foster, facilitate and encourage those relationships. There was not much arguing between his parents, according to Mr B.
Things came to an abrupt change when, in December, 2019 Mr B observed his mother get into a blue car driven by somebody that he said he did not know. He did not observe the person in the vehicle, he told Mr C. He simply saw an unfamiliar car and his mother left. When she got back he challenged her about where she had been and she had said that she had been shopping, but she only had one bag, apparently, with her, and that, for some reason, caused Mr B some angst. Of course, people can go shopping and return with one bag – there is nothing remarkable about that. But, from that point on, things spiralled out of control.
Mr B reported his observations to his father. In his submissions to me, the father said, “This is all about a blue car in a driveway.” That is a reference to what Mr B had said to him. But, it is not about that at all. It is about the father’s reaction to that. It is about the father’s reaction to the challenge that Mr B’s observations made to his perceived authority as the head of his household. It was a challenge and it is about the challenge represented by that to his control of his family. It was the beginning of the end, as it were.
I am satisfied that the father has lied to me about the steps that he took concerning the man in the blue car. In cross-examination, he told me that he never looked at any video surveillance and did not ask his sons to look at any video surveillance so as to gain more information about the mother’s actions. But he told Mr C the opposite. He told Mr C that he had accessed the tapes and asked his sons to do so. He was, obviously, plainly concerned about whomever this person might have been.
There is a theme that runs through all of this and the theme can be seen in the children’s statements to Mr C. Each of them make statements to the same effect. They seem to be put upon by the fact that their mother had a life that was outside caring for them and cooking for them. Each of them makes complaints that she would have people to the house, people that, on the one hand, they said they did not know, but, on the other hand, they would say she took the trouble to introduce. Mr B conceded that they were people that their mother knew through her work. They were not strangers to her, even if he had not met them before.
The evidence paints a picture of the applicant getting on with her life post-separation, having a circle of friends and doing what one does with friends – interacting, going shopping, having them to your house, having, as the children describe, “a chat and coffee” – and the children, who might not have been used to that before then, given that the father might have been in the house, having to deal with their mother embarking on those endeavours. Those things were plainly an affront to the children and their sense of what their mother ought to be doing.
The father’s reaction to the discovery of the man in the blue car was extreme and he has painted a picture of himself, to use Mr C’s words, as “somebody who flew into a jealous rage”. His text messages to the mother are appalling and demonstrate a complete lack of empathy for her situation. They demonstrate, as I indicated in the course of discussions with the father at some point during this trial, what seems to be a hatred of her. One could not think of any other explanation, given the language that he directed at her. Worse than that, he included his children in those messages. To the extent that he denies that he did that, I reject his denials. He told Mr C, but more to the point his children told Mr C, that he would share those messages with them. What an appalling thing to have done.
So things have spiralled out of control. It led to the children wishing to have no time at all with their mother. There is nothing in what Mr C has put in his report in terms of what the children told him that would explain that about-face. Why they have gone to living with her to an almost outright rejection of her. The only conclusion one could come to is that they have reached the conclusion that they do not wish to spend time with their mother because of something that their father has said to them. There can be no other explanation. They have no complaints about her care before this particular incident, at least, none which have any substance.
For his part, the respondent says that the catalyst for the text messages was not really the man in the blue car, but, rather, the catalyst for those things was the mother’s reluctance or refusal to go ahead with what he described as “a deal” concerning the house in which she lived. The evidence about the house and the parties’ shares in it and the transfers in relation to it is very confused and confusing. But I do not have to make any findings about that. It is sufficient to say, in my view, that that could well have been the catalyst, or part of the catalyst; but, whether it was or it was not, it still does not explain the father’s outrageous behaviour.
When Mr C saw the family in March, 2021 having regard to what the children told him and what the father told him, more importantly, he formed the view that there was a significant risk to these children from the father. He does not set out in terms just what the risk might be, but he describes it in terms which are concerning. He takes the view that the risk is extreme. Maybe he is suggesting that there was some risk of physical harm to these children from their father or there is some risk of physical harm to the mother from the father. I am not sure. But what he does say, for example, in [180] of his report:
In relation to the question of the current risks to the children, it is of concern that, at points in that history, there were warnings that [Mr Nayak’s] behaviour had teetered into dangerous territory
I interpolate there, I am not sure what “dangerous territory” means:
and it is unsurprising that [Ms Mandal] has been reluctant to involve the police, as she perceived her safety and the safety of her children to be at risk.
The police have been involved and there is now a protection order in place between these parties. There was a temporary order that was made. The temporary order was breached and the respondent pleaded guilty to the breach. He is bound by his actions in that regard. The temporary order matured into a final order, although I am told, made without admissions, but it nonetheless exists. That a protection order exists, of course, engages s 102NA(1)(c)(ii) of the Family Law Act and that means that s 102NA(2) applies in this case. I raised that issue with Mr Nayak at the commencement of this hearing and pointed out to him that if he was planning to cross-examine the applicant he would be unable to do so and that one option might be to suggest an adjournment. He declined that and chose to proceed with the trial, knowing full well that he would not be able to cross-examine the mother. I informed him at the time that that might mean that I accept her evidence as unchallenged.
As it turns out, I do not have to accept the mother’s evidence unchallenged, in the sense that I was impressed by her in the witness box. She was cross-examined effectively by counsel for the independent children’s lawyer and although she strayed occasionally, she did her best to answer the questions that were put to her. It was not suggested that there was anything that would mean that her credit was in question. Not so the respondent. I found his evidence difficult and inconsistent on a number of occasions. There are the clear inconsistencies raised by counsel for the independent children’s lawyer and me with what the respondent said in oral testimony with what he said to Mr C. But, even throughout the course of his cross-examination, his answers varied depending upon the course in which he thought the cross-examination was headed. He was a thoroughly unconvincing witness. That is not to say I reject all of his evidence – I do not – but, where there is a difference on significant matters, I have looked to find corroboration in other areas and, if that corroboration is missing, I have considered the father’s evidence very carefully.
An application for parenting orders like this needs to be determined according to the statutory structure established in Part VII of the Family Law Act. Section 60B sets out the objects and principles of the Act and that part, and it is appropriate, I think, in this case, to remind everybody of just what they are. Section 60B set out as one of its objects, that children should have the benefit of both of their parents in their lives and that they should have a meaningful relationship with them. The Act is intended to ensure that children are protected from physical or psychological harm by reason of being exposed to abuse, neglect or family violence. Children are entitled to have proper parenting from their parents and they are entitled to expect that their parents will fulfil their duties and obligations towards them. Those objects are achieved by children having the right to know and to be parented by each of their parents, by spending as much time as is consistent with their best interests with each of their parents and other people who might be important in their lives, and for their parents to make joint decisions for them.
One will notice in s 60B that it talks nothing of parents’ entitlements. Parents have no entitlements, as far as I can tell, under the Family Law Act. They have, as s 60B(1)(d) says, obligations and responsibilities towards their children. That is all. And so this case is not about whether these children will spend time with their mother and whether their mother gets to spend time with them, but it is about ensuring that their best interests are met by them spending time with each of their parents.
Section 60B sets out how a court might go about working out what is in a child’s best interests. There are a number of factors to be taken into account. The first two stand on their own as primary considerations. The first is the benefit to these children of having a meaningful relationship with each of their parents. Nobody suggests here that there is no benefit to be derived by these children from having a meaningful relationship with either of their parents, and that is sensible because, despite some of the comments that I have made about the respondent, Mr Nayak, the father of these children, I have no doubt that he has considerable benefits to offer these children. The evidence from Mr C’s report demonstrates that the children have a good, if not problematical, relationship with him and their discussion with Mr C about life prior to the parties’ separation and then prior to December, 2019 underscores the nature, extent and importance of the relationship that they had with him and continue to have. So I have no doubt that they will derive a benefit from having a meaningful relationship with him.
I have no doubt that they will benefit, all three of them, from a continuing meaningful relationship with their mother. She too has much to offer them. She struck me as an intelligent and articulate person.
The second of the primary considerations is more problematical. It talks about the need to protect children from a risk of physical or psychological harm by reason of being exposed to abuse, neglect or family violence. Here, there is no suggestion of abuse, in the sense that that word is used in the Family Law Act, nor is there any suggestion of neglect on the part of the father. The father used the word “neglect” in his evidence in cross-examination, but I think, rather what he was attempting to describe was the mother’s parenting style, something with which he took issue. He saw it as much more hands off than his own, he being much more involved in and controlling of the children’s day-to-day activities, according to his case. But, as I have indicated, the children’s descriptions to Mr C were unremarkable. One of the parties attended to some things for the children and the other one attended to others. In a great many families that pass through this place, children are cared for by their parents according to the roles that their parents have assigned themselves and sometimes those roles have little overlap and sometimes they have great overlap. There was nothing remarkable in what the children describe.
The question of family violence looms large. The definition of family violence in s 4AB of the Act is broad and it is plainly broad enough to capture the father’s conduct in this case. He has, in my view, committed acts of family violence towards the mother and I so find. The text messages themselves are evidence of that. The Act is not confined to physical violence. Threats, intimidation and other conduct which makes a person fearful is sufficient to engage the definition. It is also sufficient to engage the definition to take steps to prevent a member of a person’s family from enjoying the benefits of a relationship with somebody else who is a member of that person’s family. That is what the father has done here. He has prevented Y and X from having a proper relationship with their mother. He has controlled them and his actions fall squarely within the definition of “family violence” in s 4AB of the Act.
There are a number of matters that flow from that finding. The first is that the presumption of equal shared parental responsibility set out in s 61DA of the Act does not apply, see s 61DA(2) of the Act. Just because the presumption does not apply does not mean the court cannot make and should not make an order for equal shared parental responsibility if it is otherwise in the best interests of the children. But the starting point is not that I should presume that it is going to be in the best interests of these children for there to be an order for equal shared parental responsibility.
The second significant matter that flows from the finding is the necessity to go on to consider whether there is a need to protect these children from that family violence. I think there is. I think there plainly is. These children should not be subjected to the family violence that I have described. In terms of the father’s poor conduct towards the mother, the vitriol that is represented by the text messages, that has ceased, on the evidence, in July of 2020, but that is not to say that the ill-feeling does not continue. I am pretty sure it does and the parties not only communicate by text message but also by telephone and there is some evidence that the telephone conversations, even of recent times, have been less than wholesome. So the father’s ill-feeling towards the mother probably continues and the children no doubt know about that. That has a real potential to cause them psychological damage or harm by reason of being exposed to that type of family violence.
The significance of a finding of family violence and that there is a need to protect children from a risk of psychological or emotional harm by reason of it is that it then requires a response, a response in the way in which the court frames the orders that it might make in the case. At one end is a response which is extreme, where there is to be no contact between the children and the perpetrator of the violence. At the other end might be said to be what people euphemistically call the “standard orders” which really pay no attention to the family violence that might have been found. This case is at neither end of the range.
The proposal that the father makes here will not see, in my view, the child X receive the benefits from a meaningful relationship with her mother that she is otherwise entitled to receive. I do not think that the orders that he proposes will address the question of family violence, either, and the risk of harm to her by reason of it. His orders are less advantageous than those proposed by the independent children’s lawyer and supported by the mother. The orders proposed by the independent children’s lawyer recognise the benefit to be derived by these children from a meaningful relationship with each of the parties, but more to the point they also recognise the need to protect X from harm. In that sense, those orders have more advantages for X than do the father’s principal orders.
There are a number of other factors that need to be considered. Section 60CC(3) sets them out. The father points strongly towards s 60CC(3)(a) – the views of the children and the matters that inform those views. These are not young children. We are not dealing with toddlers; we are dealing with older children who are, on all the evidence, intelligent and articulate. They are academically gifted. And so their views attract attention. These are not views that can be discarded. But it is important to understand that children’s views are just one matter that need to be addressed. It is one thing for a 17-year-old to say that he or she is not going to spend time with a parent. It is another thing entirely for a 13-year-old to do that. I have made orders in cases against the views of children who are 17 years old, and I have made orders in cases that accord with the views of children who are much younger than 13. What is important is the basis upon which those views have been formed, the reasons for them and how it is that those views might translate into orders.
Y in this case, as I have already recounted, is intelligent and articulate. He has expressed a view most recently communicated in the family report. There is no other material from the independent children’s lawyer to suggest that Y’s view has changed. The history of the matter since the making of orders in October, 2021 for Y to live with the mother have been an abject failure. He continues not to wish to live with his mother. Given his age and given the experiment that has been undertaken since October last year, I think it entirely appropriate to accord his wishes significant weight. He will, in nine months’ time, be 18, in any event. He will, in nine months’ time, be able to make his own decisions about where he lives and who he spends his time with. Between now and then he has school to attend to in an environment which is less than conducive to easy academic learning. These are difficult times and he will have to contend with those as well.
So, even before considering the balance of the matters set out in s 60CC(3), I think I can safely conclude that it is inappropriate to make orders in respect of Y. He will be left to his own devices. That might mean that he decides not to spend any time with his mother. Well, so be it. He has had to put up with enough already. The last thing that he needs is more litigation over the next nine months if he decides to do his own thing and his mother decides to call the father out on it. For the same reasons, I do not intend to make any orders about school holidays. The father agreed, I think, to the orders that the independent children’s lawyer proposed for school holidays and for that to include Y, but I do not intend to make that order. It will be a matter for Y to decide whether he will spend time with his mother or not. He is a young man and he is entitled to have his views respected in that way. Whether he makes decisions with which ultimately he will be comfortable, only time will tell.
X, of course, is in a completely different position. I give her views some significant weight but they do not determine the case. I am required to consider the nature of the relationship between the children and each of their parents. The balance of these considerations will concern X only. X’s relationship with her mother was very problematic. In March of last year it was almost non-existent. It has been restored to some extent. She now spends time with her mother. Her mother says that it is three or four nights a week. The father says it is up to five. I prefer the mother’s evidence about that but the bottom line is she is spending time with her mother, something that she has not done for some time.
It is necessary, I think, to segue from there to the extent to which both of these parents have discharged their parental responsibilities towards these children. The father has not discharged his responsibility towards these children insofar as it requires him to foster, encourage and facilitate a relationship between the children and the mother. Nothing could be clearer. At the very least, his case is, “Well, I’ve left it to my children. They know what she’s like. They don’t want to spend any time with her.” To do that is a complete abrogation of a parent’s responsibility. To do that is to place on X a pressure with which she is not equipped to deal. It asks her to make parenting decisions that she should not be asked to make and it is an easy way out for parents who are in conflict. That is what has happened here.
It is not up to X to decide whether she will have a relationship with one of two of the most important people in her life. There is no evidence to suggest that she is either emotionally or intellectually equipped to make that decision for herself, particularly at the age of 13. Indeed, some argue that it is that very age where parents need to, in fact, be parents and not friends of their children and to enforce decisions. Be that as it may, X has been allowed to make her own decisions by her father, and that should end.
The mother has, in my view, discharged her responsibilities as a parent towards these children insofar as their relationships with their father is concerned. Nothing in the evidence to which I was taken suggests that the mother has attempted in any way to damage the relationship between these children and their father. In fact, it was Y’s perception, according to what he told Mr C, that the mother encouraged that relationship and facilitated it by having the father at her house following separation, even though she did not want him there.
The orders sought by the father would allow these children, and X in particular, to make decisions that are not entirely appropriate and that are outside her realm of responsibility. The orders that the independent children’s lawyer suggests relieve X of that responsibility. They have more advantage for her in those circumstances. It follows from the findings that I have made and for the reasons I have tried to explain that the orders proposed by the independent children’s lawyer really do represent a more advantageous outcome for these children, and X in particular, than do the orders that the father proposes. The orders that he suggests really would not advance their relationship with their mother in any meaningful way.
There is a question of parental responsibility that needs to be resolved. The independent children’s lawyer suggest that an order for equal shared parental responsibility in respect of X will not really work because it is unlikely for these parents to agree. One of the parents will have to be able to make decisions for her and the independent children’s lawyer suggests that it should be the mother. The difficulty with an order for equal shared parental responsibility, I think, is that which the independent children’s lawyer has identified. It is unlikely that these parents will agree. They have not been able to agree about things for a very long time. Neither party put before me an example of any agreements they have reached recently about these children and so to make an order for them to make joint decisions about X concerning her major long-term issues might be to invite disaster for her, in that decisions will not get made in a timely way and there will be an increase in conflict between her parents.
The notion that one or other of the parents should have sole parental responsibility for X is a little irksome. That is because it will send a message to X that her parents have completely given up on the proposition that they should cooperate for her benefit. She will no longer have the benefit of seeing her parents make decisions for her together. Perhaps she does not recall a time when they did, but to take away the opportunity and the chance of that happening in the future is really to do her a disservice. But I accept that something needs to be done. If I was to make no order for parental responsibility, then the position as set out in s 61C of the Family Law Act would apply. That means that both parents would retain parental responsibility for X and they could exercise that parental responsibility separately or severally. In this case, that might be problematic because it might lead to the situation where the father makes one decision for her and the mother makes another. That would be equally intolerable for X.
With some reluctance, I have come to the conclusion that it is appropriate to make an order that the applicant have sole parental responsibility for decisions concerning the major long-term issues for X.
Otherwise, the orders, more generally speaking, that the independent children’s lawyer has suggested should be made. The father says that the time in order 2(a) and 2(b) should start and conclude at 12 noon on a Sunday rather than 9.00am because he and X, apparently, go to church on Sunday. I understand the structure of the orders and that is that they are designed to provide time for X to spend with her mother on the weekend rather than just during the school week. One of the difficulties and disadvantages of the orders that the father proposes is that X would only spend time with her mother after school on a Monday to Friday and to some point – 6 or 6.30pm in the evening and it would only be if the mother was able to “negotiate with [X]” to stay overnights or on the weekends would that happen, again abrogating decision-making about important matters to X. So I am hesitant to interfere with the structure of the orders that the independent children’s lawyer has set out. There is no other evidence before me about the importance of church to X and her attendance at it with her father and, in the absence of any evidence about that, I am content to leave the time at 9.00am.
So 2 will remain. 2(a) and 2(b) will remain unamended. 3 will remain without the addition of Y for the reasons that I have already given. Order 4 will be made. The mother does not press it but it is important that it is made. It is important that there is communication between these parents, albeit by email or, at last resort text message – see paragraph 7 – because they will have to communicate about things concerning X, at least, if not X and Y, and it is important for the children, X in particular, to see her parents communicating in an effective way. So order 4 will remain. There is no opposition from any of the parties to orders 5 and 6, although 6, I accept, should be amended so that the order is authority for the father and the mother to obtain information from any school, sporting and extracurricular organisation concerning matters relating to the children and to attend at any school, sporting or extracurricular function attended by the children.
Orders 8, 10 and 11 are unopposed. Order 9 deals with passports. Although I had my own misgivings about the passport order, the father now agrees to that order. He says the passports, in any event, expired. So I will make order 9 in respect of X’s passport. Otherwise, the orders will be as per the draft and I will discharge the Independent Children’s Lawyer.
The applicant applies for her costs of the proceedings. Section 117(1) of the Family Law Act provides the usual rule, that is, parties to proceedings under the Act bear their own costs. Section 117(2) of the Act gives the court a discretion to make a different order as to costs if it thinks, in the circumstances of the case, it should do so. As counsel for the applicant pointed out, that necessitates a finding that there are circumstances justifying an order for costs. As the High Court explained in Penfold v Penfold (1980) 144 CLR 311, once the finding of justifying circumstances is made, then the discretion is enlivened and is not to be informed by s 117(1).
Section 117(2A) of the Family Law Act sets out a range of matters that can be taken into account when they are relevant for the purposes of deciding whether there have been special circumstances. There are a range of them: whether the parties are legally aided; their financial circumstances; conduct of the parties; whether the proceedings have come about by reason of a breach of an order or the like; and, finally, whether there has been an offer made. Here, the mother points to the father’s conduct and she says that, by reason of his conduct in severing the relationship between these children and her, he has brought about these proceedings. Well, in a general sense that is true, but, ultimately, the reason why the children’s relationship with the mother got to the state that it got to was a matter of contention between the parties and was a matter which was the very subject of this litigation. So I am not particularly enamoured with the argument that we are here because of the father’s conduct. That might well be so in a general sense.
The father, on the other hand, says that he is impecunious and cannot afford an order for costs. That has never been an answer to the making of an order for costs. That would mean that impecunious parties who choose to engage in litigation can do so with impunity and the court has never countenanced that proposition. That he has no money to meet an order for costs is not persuasive.
But, ultimately, I am not satisfied there are any justifying circumstances here. This is what might be described as a parenting case with the usual difficulties attending it. There is nothing in the conduct of either of the parties which has prolonged the proceedings. So the application for costs, despite having perhaps some merit on its face, is refused.
The orders will be as I have pronounced.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 4 February 2022
0
1
1