MARROW & DANE

FAMILY COURT OF AUSTRALIA

MARROW & DANE

[2012] FamCA 503

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – where the mother has a history of depressive illness – where the mother seeks to relocate with the child to the United Kingdom and live with the maternal grandfather and his current wife and work in their business – where the mother’s proposal is dependent on financial matters which are highly uncertain – where it is uncertain that the relocation would improve the mother’s health and the relocation would adversely affect her mental health if her hopes and dreams are not fulfilled – where the relocation would have a significantly detrimental effect on the child’s relationship with the father and her half-brother – orders that the child continue living in Australia with the mother and have substantial and significant time with the father.

FAMILY LAW – COSTS – Between parties – where the father seeks indemnity costs for an earlier application of the mother’s which was wholly unsuccessful – where the circumstances did not warrant the ordering of indemnity costs.

FAMILY LAW – COSTS – Between parties – where the mother maintained applications in financial matters up to the final hearing but abandoned those applications on the first day of hearing – where the father had incurred costs in filing documents in relation to the financial matters – father’s application for indemnity costs rejected – orders that the mother pay for the father’s costs thrown away in responding to the mother’s applications in financial matters as assessed or agreed.

Family Law Act 1975 (Cth) ss 60CC, 117(2A)

Colgate-Palmolive Co v Cussons Pty Limited (1993) 46 FCR 225
Munday v Bowman (1997) FLC 92-784

APPLICANT:

Mr Marrow

RESPONDENT:

Ms Dane

FILE NUMBER:

SYC

2195

2008

DATE DELIVERED:

22 June 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

28, 29, 30 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

SOLICITOR FOR THE APPLICANT:

Paul & Paul Lawyers

COUNSEL FOR THE RESPONDENT:

In Person

ORDERS
IT IS ORDERED

That the parties have equal shared parental responsibility for the child J (“the child”) born … January 2007.
That the child attend G Public School.
That during school terms the child live with the father:
(a)Each Wednesday from the end of school on Wednesday until the commencement of school on Thursday;
(b)Each alternate weekend, commencing on the first weekend of term, from the end of school on Friday until the commencement of school on Monday or the commencement of school on Tuesday if the weekend is a long weekend;
(c) From 9.00 am to 5.00 pm on Fathers’ Day;
(d)From 9.00 am to 5.00 pm on the father’s birthday if it falls on a weekend or during school holidays;
(e)From after school until 8.00 pm on the father’s birthday if it falls on a school day;
That during school terms, the child spend time with the mother as follows:
(a) From 9.00 am to 5.00 pm on Mothers’ Day;
(b)From 9.00 am to 5.00 pm on the mother’s birthday when it falls on a weekend or during school holidays;
(c)From after school to 8.00 pm on the mother’s birthday if it falls on a day when the child would otherwise be in the care of the father.
(d)And at all other times when she does not live with the father.
That during school holidays, the child live with the parties as follows, school holidays being defined to commence on the day after the last day of school and to conclude on the day before the first day the child attends in the next term if the first day of term is a pupil free day;
(a)       For the June/July and September/October holidays in 2012 for one half of the holidays and in the absence of agreement the child shall spend the second half of the holidays with the father. Subject to the provisions of Order 6, the father shall be entitled to take the child to Fiji during the September/October holidays in 2013.
(b)       For the Christmas school holidays in 2012/2013, and each alternate year thereafter, the child shall spend time with the mother from the commencement of the school holiday for four weeks and for that period the mother shall be entitled to travel with the child to England and within Europe. The child shall spend time with the father from the day after her return from England (or the day after the end of the four week period if later) until the last day of the school holidays.
(c)       For the school holidays at the end of term one in 2013 and each alternate year thereafter, the child shall spend the school holidays with the father.
(d)       For the school holiday at the end of terms two and three in 2013 and each alternate year thereafter, the child spend one half of the holidays with the father and, in the absence of agreement, the second half.
(e)       For the Christmas school holidays in 2014/15 and each alternate year thereafter, the child shall spend time with the father from the commencement of the school holiday for four weeks and for that period the father shall be entitled to travel with the child to England and within Europe. The child shall spend time with the mother from the day after her four week period with the father.
(f)       For the school holidays at the end of term one in 2014 and each alternate year thereafter, the child shall spend the school holiday with the mother.
(g)       For the school holiday at the end of terms two and three in 2014 and each alternate year thereafter, the child spend one half of the holidays with the father and, in the absence of agreement, the second half.
In the event that either parent intends to travel overseas with the child during any period of holidays, he or she must give the other parent two month’s notice of the proposed travel and an itinerary including flight details, address of accommodation and telephone numbers where the child can be contacted by telephone.
That the child be enabled to communicate with the parent with whom she is not living:
(a)       during school terms, at any time by telephone, email, Facetime or by Skype;
(b)       during school holidays at any time and at least each alternate day by telephone, Facetime or Skype.
(c)       In the event that the mother and the child are living in the home of the maternal grandfather during any holiday period, the mother shall ensure that the grandfather is not present at any time when the child is speaking to her father by telephone or Skype.
That each party keep the other informed at all times of the numbers and addresses which can be used to contact the child.
That each party keep the other informed at all times of any change in the child’s place of residence.
That each party inform the other immediately of any serious illness or injury which the child may suffer and give all necessary authorities to any treating professional for information to be given to each parent.
That each party give all necessary authorities to any school or organisation which the child attends to provide information to both parties.
That neither party shall cause the child to be seen by any psychiatrist, psychologist or counsellor without the consent of the other.
That the applications of the mother contained in paragraphs 10 to 17 inclusive of her Amended Response filed 14 December 2011 are withdrawn and dismissed.
That the father’s application for costs of the proceedings on 17 January 2012 be dismissed.
That the mother pay the father’s costs incurred in the preparation of his Financial Statement sworn 20 April 2012, his affidavit sworn on 20 April 2012 and the affidavit of Ms K sworn on 20 April 2012 in an amount assessed as fair and reasonable as between party and party on the application of the father to the Manager Costs Assessment to the Supreme Court of New South Wales in accordance with the Legal Profession Act 2004 such costs to be assessed in accordance with the scale provided for in schedule 3 of the Family Law Rules.
That the mother pay the father’s costs referred to in Order 15 as assessed (or as agreed) within 28 days of the issue of the assessment or of agreement.
That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marrow & Dane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2195 of 2008

Mr Marrow

Applicant

And

Ms Dane

Respondent

REASONS FOR JUDGMENT

Before the court is an application by the father, Mr Marrow to restrain the mother, Ms Dane, from relocating the place of residence of their child, J who was born in January 2007 and is now five and a half years old. The mother wishes to relocate the child’s residence to the United Kingdom and that application is opposed by the father.
Until the commencement of the hearing, the mother also had on foot applications to set aside the Binding Financial Agreement between the parties; for leave to institute an application for spousal maintenance out of time; and an application to vary child support.
At the commencement of the hearing, the mother abandoned all of the applications for financial orders and those applications will be noted to have been withdrawn and dismissed. No notice was given to the father’s solicitors that those applications would not be pursued and substantial material had been filed on his behalf to meet those applications.
The father has before the court an application for costs in relation to an earlier application relating to the child’s schooling which I determined on 17 January 2012. At the commencement of his submissions, Senior Counsel for the father sought an order for costs in relation to the mother’s abandoned financial applications.

the evidence

Dr M prepared a report as the single expert.
The father relied on affidavits by himself and his partner.
The mother sought to rely on affidavits by herself, her father, Dr S, her treating psychiatrist, Ms P, her general practitioner and Ms B, her counsellor. At the commencement of the hearing it was made clear to the mother that her witnesses must be made available for cross examination and on the second day the mother told the court that Ms P and Ms B would give their evidence on day three. It was agreed that Ms P would give evidence by telephone.
Dr M and Dr S were cross examined on the third day and the mother then told the court that she had decided not to call Ms P or Ms B. Senior Counsel for the father objected to the mother’s having leave to rely on those affidavits. The mother asked that they be read and given such weight as was appropriate but sensibly conceded that their evidence would not be given as much weight as the evidence of Dr S and Dr M. Had strict objections been taken to the contents of both affidavits, much of the content would have been excluded. Even if admissible because of Division 12A, little or no weight could have been given to much of the material. The affidavits were not admitted into evidence, in circumstances where I had the assistance of Dr M and Dr S in relation to the matters to which the affidavits were directed.

background

Both the parents were born in the United Kingdom. They commenced living together in 1992 and married in 1997.
In November 1993 they moved to Australia for the father to pursue his career with his present employer. The mother gave up her employment to support the father’s career. Neither party had family in Australia.
The mother has a bachelor’s degree in science. After they settled in Australia the mother took other employment and by the time she commenced maternity leave she was employed by X Company as a business development manager earning $170,000 per annum and benefits including a car.
The father continued in his employment and has earned substantially more than the mother.
The parties planned to have a child and J was conceived.
The mother has a history of depressive illness. She gave evidence that she had an episode of depression after she was involved in a car accident in 1998, and was retrenched from her then employment also in 1998 and another bout of depressive illness after the death of her mother in 2003. She next suffered from depression after the parties separated.
There is a dispute between the parties as to the date of separation but there is no dispute as to the events.
In August 2006 the mother discovered that the father was having an affair with a lady whom he had met during an overseas holiday. In September 2006 the father paid for the lady to come to Australia and spent time with her in the parties’ holiday home. Prior to separation the mother also learned that the father was visiting prostitutes and she was understandably concerned for her own health and that of the unborn child.
The mother commenced maternity leave on 31 December 2006.
In January 2011 the father packed a car load of belongings and told the mother that he had rented other accommodation. The father’s evidence is that he intended to trial a separation and had signed a lease for two months.
Whatever may have been his intentions, on the evening of his departure, the mother went into labour and the child J was born 23 hours later as a result of an emergency caesarean operation. The father was present at the hospital for the whole of the labour.
After the mother and the child returned home, the father stayed at the home until 3 February 2007 when he left to live in his rented flat. His evidence is that he left because he believed that the mother’s father was arriving early the next morning and that he wanted to avoid any contact with his father in law.
The mother cross examined the father about his understanding and empathy with her level of distress, fear and desolation in the period leading up to the birth and afterwards. It was clear that she was genuine in her expressions of her feelings at the time, and that those feelings were understandable in the difficult circumstances of their relationship at the time of this child’s birth.
The mother had commenced counselling after learning of the father’s affair. In March 2007 she was prescribed medication for depression and she continues to take medication for depression.
In July 2007 the mother was referred to Ms B who is a mental health social worker. The referral was made by staff at the support facility to which the mother had been referred. She has continued to consult Ms B.
On 30 July 2007 she consulted Dr S, consultant psychiatrist. She continues in his care.
The father has repartnered and is engaged to marry Ms K with whom he formed a relationship in 2009. They have a son, A, who is aged one and a half years.
The parties were able to agree on arrangements for the father to spend time with the child J although the father’s evidence is that the mother was restrictive and unnecessarily curtailed his time. He gave evidence that there was a period of six weeks in the first half of 2007 when the mother would not permit any contact at all. The mother recalls the period as two weeks, at a time when the father’s girlfriend was staying with him, with her small son. It is difficult to criticise the mother for not wanting to facilitate time between the father and the child in those circumstances. However, her willingness and ability to facilitate the relationship between the child and her father at later times will be the subject of further discussion in these reasons.

the mother’s proposals to live in england

The mother wishes to move to live in England with the child. At the conclusion of her cross examination, her proposals for the time that the child would spend with her father were not clear except that she proposed to bring the child to Australia in the English summer holidays each year for three or four weeks and that the father could visit the child in England at other times. She was unable to articulate her proposal for those visits and she was asked to formulate her proposals in writing. She did so on the third day of the hearing and I will deal with her proposals for the child’s time with the father later in these reasons.
Initially the mother proposes to live with her father (“the grandfather”) and his current wife (“L”) who is the same age as the mother, in their home in the West Midlands region of England. That home is occupied by the grandfather, L, two of her children of a previous relationship and the child of the grandfather and L, a little boy who is four and a half years old. An older son of L visits frequently. The house has four bedrooms and a study was converted for the use of the mother and J on an earlier visit.
It is not intended that this arrangement will be permanent.
The grandfather gave evidence that he and L have purchased land at “BB” nearby to their home. There is currently no house on BB. His evidence is that he and L intend to run a “care farm” which he describes as “providing a facility for young people in the community to take part in appropriate activities for their rehabilitation”. At the present time, L operates a livery and maintains seven horses at BB. In his affidavit he describes plans to provide a function and wedding venue. He deposes to an intention to operate a tea room and a plant nursery.
Annexed to his affidavit was a document described as a business plan for BB. The undated document indicates that the business has been trading since 1 November 2011. The business plan indicates that it is proposed to raise capital of £30,000 to provide tractor and catering equipment and refurbish existing buildings (green houses and a hay barn). The capital will be raised by injecting profits of £10,000, borrowing £10,000 and “injecting money” (I infer personal savings) of a further £10,000.
L has qualifications in horticulture and the grandfather is a consultant in health and safety. There is no evidence of their qualifications or experience in running a care facility or a function centre. There is no evidence of any approval by any relevant authority for the care facility or of any of the other proposed activities.
The business plan gives no indication of the current or past income or expenses of the business or its ability to service its expenses and pay staff. There is no evidence of the grandfather’s income from his profession. He is 72 years of age and currently works two to three days each week. He says that the income from the livery business is between £600 and £800 per month. These matters are relevant to a number of issues.
Firstly, the grandfather has discussed with the mother the possibility of her taking over the livery business. How the viability of BB would be affected by the sacrifice of that income is unexplained. Whether that income would be sufficient to support the mother and the child is not clear. The mother deposes to an expectation of earning £450 per week. How that income could be achieved is unclear having regard to the current revenue of the business. There is no evidence that the mother has the skills to run the livery.
The grandfather and L have sought planning approval to erect a temporary dwelling on BB, either a prefabricated log cabin or a luxury caravan. That permission is not yet forthcoming.
If planning permission is not granted, the family, including the mother and the child J, will continue to occupy the current home. For what period of time is not clear.
The mother’s evidence is that she found it difficult to accept her father’s marriage to L in 2006. She says that following her trips to England in 2009 and again in 2012 she speaks regularly to L and that she now considers L to be a dear friend. Nonetheless, they have only spent time together in 2007, 2009 and 2012 for short periods and their ability to share a home is untested. L did not give evidence in the proceedings.

If the grandfather and L and their family move to BB, the mother proposes to rent the current home from her father. She gave evidence that she has some concerns about living in the house where her mother died and may not feel comfortable there. In her oral evidence she expressed concerns that living at the house may “trigger some debilitating event”.
The grandfather gave evidence that he will rent the house to the mother for £400 per month although he says the market rental would be £700. Whether that proposition is financially viable to the grandfather is untested. Whether the mother will choose to live there is also uncertain.
The grandfather also gave evidence that he proposes to sell the house to the mother for an amount less than market rate which he estimates to be between £180,000 and £200,000. No agreement has yet been negotiated. Again that proposal is uncertain as they have no settled agreement and the mother may not wish to live there.
An alternate proposal is that the mother might build a house on BB. There is no evidence that planning permission will be granted for a dwelling in addition to that proposed by the grandfather and L as their home.
The grandfather has given no evidence about his income or his asset position. The mother described his situation in oral evidence as being “asset rich and cash poor”.
In cross examination the grandfather said that if the mother and the child remained in Australia he would provide limited support by telephoning and emailing but would not travel to Australia because of financial constraints. He would not consider travelling to Australia without L and the children.
I do not know what the grandfather’s financial position is and whether he will be able to provide the financial support that he offers. I cannot speculate whether the proposed business at BB will be successful. It appears that he needs to borrow capital for the development of the business beyond the £10,000 he proposes to invest from savings. The business is fledgling and there is no evidence that allows me to assume that it will be viable.
I cannot be sure that the whole proposal will not evaporate. The mother described her hopes and dreams in her oral evidence in glowing terms such as “I saw the vision for the business and something awoke inside me, I had a passion of ‘oh my goodness, you know, I could do this and this’, and all these ideas came to me and I suddenly became alive with all these ideas of creativity and passion and I really, really wanted to be part of that and I wanted [the child] to be part of that too… when I went and actually saw it in England I was totally blown away”.
Those hopes are dependent on financial matters which are uncertain and on her relationship with L, which is untested, and upon her relationship with her father.

the mother’s relationship with her father

The mother’s relationship with her father is problematic. She was raised as an only child.
Dr M reports the mother telling him:
At times she would clash with her father who she described as a ‘strong disciplinarian’. He was a minister in the … church and was ‘fanatical’ about his faith, which was pushed onto her.
In cross examination, the grandfather denied that he did not speak to the mother for a period of time after she announced that she was moving with the father to Australia. In re-examination he agreed this was so.
The grandfather gave evidence that his relationship with his daughter was loving and supportive. The mother had a different perception of their relationship in 2009 when Dr S reports in a letter dated 22 July 2009:
recently, [the mother] made a visit to her family in the United Kingdom. From her earlier description of her father he seemed to be somewhat self involved and on this visit he was, according to [the mother], actively and coldly rejecting of her.
Neither did it seem to be her perception in November 2010 when Dr S reported in a letter dated 11 November 2010, referring to the mother’s proposal to return to England:
[The mother] is an emotionally hungry person; the child of a disappointing family and father who would appear to have a self centredness that matches her husband’s. I am not sure she will find the love and security she is searching for, but I wish her the best of luck.
Dr S in oral evidence said:
Over the time I gained an impression a not entirely easy relationship between [the mother] and her father that the last visit where she made to England things seemed to be extraordinary rosy plans that seemed to be realistic and so on. The previous visit she had expressed – she described to me what happened between her and her father was some disappointment. She said that he seemed to be quite coldly rejecting toward her, from her words, and also that she quoted him as saying ‘you’re not my priority’. It was my impression that she – my guess, this is only my guess – that she had been sort of imploring him for more – a greater degree of support and than he felt himself able to give. Whether that was the function of his lack of ability or her degree of her demand, I don’t know. I certainly gained the impression on the penultimate visit to England that it wasn’t great so while I’m very hopeful from that – there seemed to be a more approachable and a much better relationship from her description this time, and also showed me photographs and things which overall I felt this looks good but of course I have an underlying anxiety about the firmness of that relationship in the face of not such good things as are the cause of that anxiety.
In answer to questions asked by the mother, Dr S said:
Well, you had described what, by secular Australian standards, sounded like a pretty – a very religious family and you described what – it seemed from your description excessive intrusion into your life. You lost your mother. Then your father remarried and I gained the impression that your father, whom you described as a strict disciplinarian, I agree your words, and I guess I added that to my impression from your later description of his being kind of involved in the church, involved in his new family and not really having room for you. So I saw that – I mean, because naturally I take things you say at face value. I extrapolated backwards – can you extrapolate backwards – to the overall flavour I got from you that you were disappointed with the sort of level of care that you had received, interest, involvement you received in your family. Now again, whether that was your excessive needs or lack of ability to transmit, I’m in no position to – well, I don’t know.
Dr M in his report referred to the mother’s symptoms as having “occurred in the context of personal vulnerabilities and dependency issues dating back to her family of origin.” In answer to the proposition put by the mother that his concern was that her proposals were untested, Dr M said:
I certainly do say it has been untested, and certainly it was my understanding that when following the separation, I think there were two significant visits that you did have to the United Kingdom. It was my understanding, certainly from the account of the father – and this is based on his statements – that during that period of time that had not been a perfect and happy experience during that period of time, at least on one of those occasions, and I thought that you had agreed that that was the case, but I can’t identify that in a definite manner. And so there was some indication that when you had returned – and it may have been for a five or six week period on those two occasions- that that wasn’t associated with everything being wonderful. One could argue that there has been the significant passage of time, and there have been other changes over time, however, it was my view that, you know, it’s actually uncertain, and there are many uncertainties about, you know, what that would involve and what your experience would be in the United Kingdom. There are obviously many things that you hope and pray for about what that experience would be like, and I respect that, but actually what that experience would be like in terms of day to day experience I was uncertain.
There is no doubt that both the mother and the grandfather hope and believe that their relationship into the future will be loving and supportive. I cannot be confident, on the basis of their past history, that this will be so.
There is no evidence of other supports for the mother except a reference by Dr M to a friend, Ms E, who lives 20 minutes away. Her circumstances and the extent of support which she could provide to the mother are unknown.

the effect on the mother if the relocation is unsuccessful

Both Dr S and Dr M have expressed concerns about the likely effect on the mother if her hopes invested in the English proposal are not fulfilled.
In his letter dated 11 November 2010, Dr S says:
I fear that England will prove even more difficult and disappointing than Australia became once her marriage broke down.
And later:
I’m not sure she will find the love and security she is searching for, but I wish her the very best of luck.
Dr M at Paragraphs 110 and 111of his report says:
The mother readily acknowledged that her desire to relocate to the United Kingdom was primarily a response to seeking distance from the father. She had difficulty in explaining why this would be in [the child’s] best interest, beyond the proposition that her own mental health would improve in this context and that [the child] would have contact with her extended family in the UK.
There were several difficulties with the mother’s proposition. Firstly, this would necessarily impact upon the significant relationship between [the child] and her father, reducing the frequency of contact and the closeness of this key relationship. Secondly, the mother’s proposition that her mental health would be significantly improved in the context of relocation was untested. The father disputed the likelihood of this, in light of her previous experience. The report writer was unable to predict in the context of the mother’s circumstances as to whether this would necessarily be associated with the positive outcome. This would depend on a range of unpredictable variables, which includes the status of her ambivalent relationship with the maternal grandfather, opportunities for employment and the possibility of re-partnering. The mother would lose significant support structures which are currently in place, including her treating psychiatrist, support services, social supports and friendships which she had been established over 18 years. Of her two close friends in the United Kingdom, one had recently relocated to North America. Thus, her social support would be reduced significantly in the context of such a relocation. These factors would be regarded as predictive of a less positive rather than a more positive outcome associated with this relocation. Nonetheless, the mother’s desire to relocate to avoid further contact with the father was seen to be an understandable response to her unresolved grief reaction. Her vulnerability to pathological grief reactions was well established in response to losses, including her loss of her mother and previous relationship.
Dr S in his report dated 26 January 2012 says:
If required to continue living in Australia, I fear [the mother] will suffer a significant setback, as her desire to return to the United Kingdom is not only motivated by a wish to retire to her homeland, but also to escape her sense of betrayal and injustice and the necessity for ongoing contact with her ex-husband and his new love or loves.
By contrast, if permitted to return to the United Kingdom, as I outlined above, I believe there is every chance she would progressively return to a level of function equal to that prior to the demise of her marriage.
In his oral evidence, Dr S said that if the relocation does not meet the mother’s high expectations then it is likely, on balance, that she will lapse into severe depression.
The mother was, herself, conscious of the possibility that her plans might not develop as she hopes. Her evidence was that “if it doesn’t work out, if it doesn’t work out for [the child], then I would definitely come back (to Australia) for [the child]”.
When it was suggested to her that, given her history, the shattering of her dreams in England might provoke another bout of severe depression, she accepted that this might occur and said that, in that event, she would return to Australia.
Both Dr M and Dr S gave evidence that the move to England, if successful, would be of benefit to the mother. Both gave evidence that the move, if unsuccessful, would be of detriment to her mental health.
Having regard to all of the uncertainties already explored, I cannot be confident that the mother’s great hopes and dreams, invested in her moving to England, will be fulfilled and there is a real risk that her mental health will be adversely affected.

determining best interests

The Family Law Act prescribes the matters which I must consider when determining this application. At the commencement of the hearing I gave the mother copies of sections 60B and 60CC and invited her to consider the matters which are there set out in both her cross examination in her submissions.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

The child has a loving and secure primary attachment to her mother and a loving secondary attachment to her father. There was no issue between the parents that the child would benefit from having a meaningful relationship with both of her parents. Both agreed that the child would benefit from maintaining her relationship with her father. One of the issues which I have to consider is whether the relationship can be maintained under the regime proposed by the mother if she moves to England.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child is five and a half years old and her wishes, such as they have been expressed to Dr M are not determinative. The child emphasised to Dr M that she liked staying at daddy’s house “a lot”. She told Dr M she had had two sleepovers at her daddy’s house and holidays with him. She said “The worst thing was when my Mummy’s here and I don’t want to go home to Mummy”. She told Dr M that she loved her Daddy and that she wanted to have more sleepovers with Daddy.
The child has not been told about her mother’s relocation application.
In so far as there is evidence of the child’s views I find that the child wants to spend more time with her father. While this is not determinative, it reflects the strength and quality of her relationship with her father.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
Dr M describes a close and loving relationship, “a secure positive primary attachment relationship” between the child and her mother, as would be expected in circumstances where the mother has been her primary carer and her father has not lived in the household since the child’s birth.
He describes a positive secondary attachment with her father.
However there are aspects of the child’s relationship with her mother which cause concern.
Dr S who is the mother’s treating psychiatrist, in his report dated 26 January 2012 says:
My chief concern would be that [the mother] is overinvested in and over-identified with her daughter. I have observed the difficulty she has in providing limits and in disciplining her child; a hesitation I believe to be driven by not only her love for her daughter but also a fear of alienating her and thus by default strengthening her relationship with her father. I think there is a potential for difficulty once [the child] begins to develop more as an individual and to rebel. I believe there is a risk of the child attempting to establish a separate territory to which the mother might respond with both hurt and more protection, setting up a positive feedback loop of worsening difficulty.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The mother, in her oral evidence, was adamant that she has always accommodated the father’s wish to spend time with the child and will continue to do so. The father did not agree. Since January 2010, the father has been asking the mother to agree to extend the child’s time with her father to include overnight on Sunday on the weekend she lives with him and overnight on Wednesday. For almost two and a half years, the mother has refused to agree to that extension.
In the proceedings she concedes that it is appropriate to extend the weekend to Monday morning but there is no explanation for her refusing to do so until now.
The orders proposed by the mother, in the event that the child remains in Australia, accommodate his desire for the extended weekend but she continues to object to the child’s spending Wednesday night with her father.
The mother told Dr M that, when overnight time for the child was first introduced, she was “quite traumatised at first, letting her go overnight”. She said that the subsequent establishment of two overnights had been a challenge for her.
The mother’s proposal to move to England is based on her view that she would recover better if she did not have any further contact with the father.
The child’s statements to Dr M reveal the child’s perception of the mother’s attitude towards her relationship with her father. The child told Dr M “I don’t have any daddies. Because mummy’s daddy [the father], he ran away and her heart was broken and it still feels hurtful. He loves someone else called (Ms [K])”.
In relation to her time with her father the child told Dr M “Mummy only likes me staying a little bit but I like staying a lot”. She also said to Dr M that her mummy didn’t let her go to her daddy’s.
The mother’s ability to encourage and facilitate the child’s relationship with her father is diminished by her own reliance on the child and her fixed view of him as the author of all of her misfortunes.
She is supported in that view by the maternal grandfather who gave evidence that he holds the father responsible for his daughter’s suffering.
Her views of the father have not changed despite her having been in counselling and in the care of Dr S for over five years. He described her anger towards him as “relatively unrelenting”. In that light, her attitude towards him is unlikely to change.
The mother does not suggest that the father is either unable or unwilling to support the child’s relationship with her.
She does, however, suggest that Ms K does not support her relationship with the child and she bases that submission on Ms K’s criticism of the mother both in her affidavit material and to Dr M.
She put those concerns to Dr M who said:
Certainly I was concerned that [Ms K] was so overtly critical. She was seen to play a dominant role when I observed the interactions between the father, [Ms K], [J] and [A]. One of the concerns about [Ms K’s] statements about her experience with [J] is that [Ms K] had taken it on face value when she had been told things by [the child] that were negative about her interactions about [Ms K] with the mother. So, you know, sort of if [the child] said, “Mum said this”, [Ms K] would accept that on face value. I have already stated that in my interactions with [the child] she said many things, sometimes in a positive way or sometimes in a negative way, contradicting herself. It was of concern that any negative experiences of [the child’s] appearance or if [the child] was tired, that she had a blaming attitude towards the mother. She was – she regarded nappy rash as an example of neglect by the mother and it was evident that [Ms K] had taken on the role of feeling, “Well, if the mother is so incompetent and problematic as a parent it’s necessary for me, as the step-mother, to take responsibility, to teach [the child] self-hygiene and so on”. And, indeed, [Ms K] used quite strong language, such as talking about [the child] being dressed up like a doll or at other times looking like a street urchin in describing [the child’s] experience of her mother. So I certainly formed the opinion that [Ms K] was highly critical of the mother. I saw that as being problematic. It was interesting because there were a wide range of other sources of material that I was provided with, with many professionals who had been involved in day-to-day contact with the mother and [the child] and I had not observed such criticisms to come from other parties. And so the concern that I had was that [Ms K’s] criticism was not a part of a broader view which identified [the child] as being neglected or at risk, but rather a particular focus for her. And, indeed, [Ms K] identified that she herself had issues dating back from her own complicated family of origin experience which may have contributed to part of her view with regard to the mother, but there was also no doubt – and she certainly identifies this in her affidavit material – there was no doubt that [Ms K] had her own experiences of the mother and the mother’s behaviour towards herself and towards the father which had led her to believe that the mother had been unstable and had issues with regard to her mental health and ability to adequately care for her daughter. And so I saw that [Ms K’s] concerns were significant. They had multiple factors contributing to the development of that view and certainly she was, in my view, highly critical of the mother and I did regard that as being problematic.

As Dr M commented, Ms K’s views of the mother need to be seen in the context of her experiences of the mother.
In her affidavit evidence, Ms K sets out numerous examples of the mother’s behaving inappropriately. For example in March 2011 Ms K reports the mother as saying to her (about the father) in a telephone call “he is a horrible man…I am now on my own with no help with [the child] and I can’t cope…my life is so bad…[the father] left me at the birth and was sleeping with prostitutes and texting his girlfriend in Germany when I was in labour…do you know what kind of man he is”. Ms K says that she could hear the child in the background trying to get her mother’s attention and clearly hearing what the mother was saying.
On another occasion Ms K reports the mother screaming at the father “you are selfish, you left me” while the child was standing beside her. The mother then approached the car in which Ms K was sitting with A and put her head inside the car and screamed “hello [Ms K] who spends time with my daughter…how would you feel if you were me…he left me with a baby”.
In September 2011 there was another incident where the mother screamed at Ms K, who was in her car with the child, “[Z Brothel], tantric sex [Ms K], he is sleeping with prostitutes, he will do the same to you. …[the father] doesn’t love you”. The mother also screamed “[The father] doesn’t love you and he will leave you too and he will not marry you”. The child was present.
The child remained present for an ugly exchange of words between the mother and Ms K. There is a dispute about what was said but on any version both of the women present spoke in a manner that was entirely inappropriate in front of the child.
On 23 October 2011 when the father dropped the child at her mother’s home after a visit, Ms K witnessed the mother chasing the father down the driveway screaming at him.
On 28 January 2012 the father and Ms K collected the child from a park. Ms K could hear the mother screaming at the father from a hundred metres distance.
I have not set out all of the occasions of which Ms K gave evidence in her affidavit. With one exception, where the mother asserted that Ms K used a form of words to her which Ms K denied, her version of those events was not challenged.
Having heard Ms K give evidence, I am satisfied that she understands that the central concern for all of the adults should be the child’s welfare and that she will not allow her concerns about the mother’s behaviour to affect her ability to promote and respect the child’s relationship with her mother.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
In the event that the mother and the child move to live in England, on the mother’s proposal, the child would see her father twice each year. Realistically, more visits could not be accommodated. The mother can only bring the child to Australia in the English summer holidays. The father is only entitled to five weeks holiday each year. The mother would pay the costs of travel for her and the child and would have to pay for accommodation for herself while the child lives with her father. If the father were to go to England, he will have to pay airfares and accommodation for Ms K and for the child A in addition to his own. Logistically and financially, more visits are impossible for both the parents.
Dr M, in oral evidence said that the current quality of the child’s relationship with her father would not survive in those circumstances.
Dr M gave extensive evidence about the effect on the child of her losing the relationship with her father and I will set out the whole of his evidence below:
DR [M]: In the short term, there would be an experience of loss with regard to her experience of day to day life with her father and his new family. That includes the activities that she shares with her father, with her step-mother and with her baby brother, all of which were identified as being something that she enjoyed and delighted in and was motivated to continue to experience. So she would experience the loss of that day to day experience, which was identified to add to her developmental experience. So although her primary developmental needs were appropriately met by her mother, her developmental experience was enriched by these experiences and it was seen very much in her interactions with her baby brother, where she was delighting in that role and interactions as an older sister. Her father was seen to be, you know, more active, physically, than her mother and he would be likely to promote more active physical activities with his daughter and the step-mother also was seen to provide significant guidance and support in a very active and proactive manner. So, in the short term, [the child] would lose that. I think that she would experience some loss and some disorganisation associated with that. However, I think that she would cope with such an experience. She is a competent child. She has the ability to engage with myself as a new figure. When I saw her, she proudly reported having a buddy at her – at the school she was planning to go to at that time, [C] Public School, and she’d already formed a buddy that day. And so my impression would be that she would actually experience that loss but be able to cope with it because she has significant strengths and the ability to adapt to her new circumstances. However, there would be a further intensification of [the child’s] experience of her relationship with her mother as her primary giver but, in this situation, there would be little time away from her mother, particularly if her mother was living and working on the property. There would be a role for her father in her life as well and, you know, his role as – I think is untested but I think he would be a strong figure in -
HER HONOUR: Do you mean the mother’s father or [the child’s] father?
DR [M]: That’s right. Yes. Sorry. My apologies. I meant the maternal grandfather would be likely to play a strong role because, certainly, from everything that I have heard about the maternal grandfather, he is a strong figure and so he would play some role. In the medium term, however, she would grow up without a connection – a significant connection – with the father’s new family. She would be left out of the developmental experience of her younger brother growing up. She may experience a – less of a significant with the – in her relationship with her father, you know, during her developmental years and then, in the longer term, one would expect that that would impact upon her personality development, her approach to relationships, particularly relationships with men. There are issues around the girls’ self-esteem over time and the nature of their relationships with their father. Given her maternal grandfather’s age, there’s the possibility that she may, at some stage in that developmental process, have the loss of the maternal grandfather, who would be likely to be the significant male role model in her life. And so there are those challenges in the longer term and that would be likely, then, to impact upon her perception of men, her approach to relationships with men and her capacity to form and sustain a relationship in the longer term. Now, these factors will be modulated by a wide range of experiences over time. If the mother does successfully repartner, if she does have a good relationship with her step-father, some of those factors may be modulated by other positive influences in her life. Alternatively, if that does not happen, if the mother experiences further mental health problems, if there are challenges associated with the relocation, then such – the absence of the father and the absence of the father’s family and the step-mother, as modulating figures in [the child’s] life, would be more keenly felt.
The relationship with her father is not the only significant relationship that would be affected by the relocation. Dr M also saw the relationship between the children J and A as being a significant relationship for J. Given the age of both of the children, Dr M said that they would have no possibility of growing up with a real sibling bond and explained the significance of that for the child in the following evidence:
Historically, the nature of sibling bonds has been understated by my profession and I think there is growing recognition that the nature of sibling relationships is hugely important. As one can see in [J’s] experience of her younger brother, [A], it arouses a caring role as an older sister. She is – feels a connection with her younger brother, you know, she is a part of a developmental process, not just in herself but in terms of having a connection and looking after her younger brother as an older sister – as a sister four years older. That then enables her to develop parts of her self and her emerging self which would not otherwise develop. In the longer term, the shared experience between siblings is an experience maintained above and beyond the time when parents – when children leave home and do their own separate thing from their parents and there is a plethora of experiences over the years ahead with, both as young adults but then as parents themselves and with their own children, which enriches a person’s life. And so the problem of not having a significant connection with [A] is both something that will impact upon [J’s] development in the short term, her personality development in the medium and longer term and in her life. To have a bond and connection with a sibling is of significance and I don’t think can be understated and that goes beyond the current generation and has a further impact upon [J’s] own children, if she is in a position herself in future years where she has her own family.
The mother asked Dr M whether this could be ameliorated by the child growing up with and having a relationship with the grandfather’s and L’s young son. Dr M explained that that relationship could not replace J’s relationship with A in the following evidence:
I have no doubt that if [the child] was raised in the same environment with her younger uncle that that would be a significant connection for her. One of the difficulties of course is that – it would be a different relationship than with her brother [A] as has been already put to me. It wouldn’t be replacing that relationship. It would be a different value added relationship for her.
The mother sought to ameliorate the effect on the child of losing her important relationships with her father and brother by emphasising that she would be compensated by a relationship with the grandfather and with the grandfather’s and L’s young son but Dr M’s evidence does not support that proposition.
The child’s relationship with the grandfather and her young uncle has developed in the context of two visits to England in 2009 and 2012 for relatively short periods. For the reasons expressed by Dr M, and because of the limited time which the child has had to form the relationships, I do not accept that, at the present time, these relationships have the significance for the child for which the mother contends.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no dispute that the costs of travel between England and Australia will be high and the practical difficulty of the child’s travelling to Australia and the father and his family travelling to England will be great.
I do not accept that the advantages of other communication such as Skype or Facetime, the exchange of letters and cards and the exchange of photographs, can do much to ameliorate the child’s separation from her father in those circumstances.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The mother makes no criticism of the father’s capacity to provide for the child’s needs.
She raises Ms K’s criticisms of her (the mother) as indicating that Ms K does not support the child’s relationship with the mother and I have dealt with that issue earlier in these reasons.
The mother contends that she will be better able to provide for the child if she were living in England and her health improves. This contention is contradicted by her affidavit evidence. The mother’s evidence at Paragraph 27 of her affidavit is “My depression and PTSD has not impacted on my ability to care for [the child] and I am able to meet her day to day needs”.
I have already set out my concerns about the reality of the mother’s conviction that a move to England will have only positive implications.
In response to questions from the mother, Dr S’s observations of the mother’s ability to care for the child were:
MS [DANE]:Would you, from actually assessing me over a number of years, would you see me as a person who is able to deliver to [the child’s] needs?
DR [S]: Certainly.
MS [DANE]:And would you say that I’ve always wanted to act in the best interests of [the child] and explored, done a lot of research about
DR [S]:I think my concern has been, if anything, your over-involvement with her, your over-investment and over-identification with her. So in terms of the degree and depth of your love for her, I would never question in a thousand years. Your anxiety about yourself and your own levels of self-doubt and of course your own sort of relatively unrelenting anger with your husband and his new partner, those things could be a problem.
There must be some concerns about the mother’s capacity to provide for the child’s emotional needs, arising out of the unrelenting anger towards the father and his new partner to which Dr S refers and the extent to which she is dependent on the child for emotional support.
Dr M reports the mother telling him that at times, before the father came to collect the child, she would feel sick and nauseous. At those times, the child would go and hide and the mother would have to find her. The mother acknowledged that the child may be sensing the mother’s anxiety.
In the mother’s home, the child does not have her own bed and she sleeps with the mother. When Dr M conducted interviews in November 2011 the mother planned to have the child in her own room when she commenced school. At the time of hearing the child was still sleeping with her mother. In the interview, Dr M reports the mother saying that the child was happier and safer sleeping with her. She said “It’s not hurting me”. The child responded “It’s hurting me”. The child told Dr M that at her father’s house she has her own bed. In cross examination, the mother said she doesn’t feel that the child is ready for her own bed.
The mother conceded that the child has seen her to be sad and crying on occasion and that she has told the child that she is sad because daddy left. Her explanation was that it was necessary to tell the child the truth. She said that she believed that she had been very honest with the child. She did not think that telling the child “the truth” was burdening the child. She did not wish to convey to the child that she was happy that the father left. She had always wanted a family unit with the mother and the father together and was not going to tell the child anything different.
When it was suggested to her that the child was too young for such confidences she disagreed strongly. She said that she did not want the child to believe that it was alright for the father to leave the marriage.
The father in his affidavit reports a Skype call which occurred in January 2012 when the mother and the child were at the grandfather’s home in England. He says that in the child’s presence the grandfather said “you have caused five years of cruelty to [the mother]” and the mother shouted “how would you like to be taken away from your family”. The father asked several times for the child to be removed from the room so she would not be exposed to such comments and when this was not done he terminated the call.
The father deposes to the child’s saying to him such things as “[A] isn’t a real baby because are not married. Mummy said so”; and “Mummy said Daddy ran away so mummy cries for Daddy and is sad”; and “I’m not going to ever get married because Daddy’s run away and make you sad. That’s what Mummy said”. The child made similar statements to Dr M. Because of the consistency between the mother’s evidence and the child’s statements, I accept that the child said the things the father alleges and that she said them because the mother had said similar things to her.
Dr M said that the mother had expressed a lot of emotional issues with her daughter and that the child has indicated very clearly that she is aware of her mother’s strong feelings.
When asked whether the child was trying to meet her mother’s needs Dr M said:
Certainly, that’s possible and, certainly, [the child] was very aware of her mother’s needs and when I first met with [the child] and she was drawing, there was a very strong connection – kissing her mother’s lipstick, drawing a heart within a heart, talking about not having daddies because mummy is daddy – and certainly, I would interpret that as [the child’s] attempt to respond to her perception of her mother’s needs and overt distress, at times.
Because the mother is either unable or unwilling to shield the child from her overwhelming feelings about the father, it is important that the child have the opportunity to form her own views about him and it is important that there be periods in the child’s everyday life where she is not subjected to the mother’s negative views of the father and does not feel responsible for her mother’s well being.
If the child were living with her mother and the grandfather in England, those opportunities would not exist or would, at best, be very limited.
Both parents have the ability to cater for the child’s intellectual needs.
The mother contends that she will be better able to meet the child’s financial needs if she were allowed to live in England. I do not accept that submission. I have already discussed the uncertainties of the mother’s proposals in relation to the BB project.
The mother has an alternate proposal that she will train as a teacher and she has made enquiries about the availability and cost of graduate training courses both in Australia and in England. There is no evidence which suggests that she is more likely to be accepted to a course of training or to be employed as a teacher in either country.
The father has a substantial income and pays child support of $447 per week.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have discussed these matters under other headings. I consider that the matters referred to Paragraphs 110 to 120 apply equally to this consideration.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The mother, in cross examination of Dr M proposed that her relocation be trialled for a period of time. Dr M strongly disagreed with that proposal.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence suggests to me that the mother has been unwilling or unable to facilitate the child’s relationship with her father when the mother’s own needs were in conflict with the child’s.

conclusion

The effect on the child’s relationship with her father and her half-brother which would follow upon her relocation to England are profound and far reaching.
I am not satisfied that there is any certainty that the mother’s mental health will be positively affected by virtue of her return to England, having regard to the evidence of Dr M and Dr S.
I am satisfied, having regard to the evidence of Dr M and Dr S, that if the mother returns to England and her hopes are not fulfilled, there will be serious negative consequences for her and thus for the child who will have to weather the storm without the support of her father.
The arrangement that best promotes the child’s well being is that she live in Australia and have frequent and regular time with her father and half-brother.
The mother will have the benefit of the support network identified by Dr M and can pursue her plan to train as a primary school teacher. She can move, as she has proposed, to accommodation a little further from suburb Z that will have the benefit of substantially cheaper rent but will still be sufficiently proximate to the child’s school.
Both of the parents agree that they should have equal shared parental responsibility for the child. For the reasons set out below equal shared time is not in the child’s best interests. The orders will provide for the child to spend substantial and significant time with her father.
The father seeks orders that the child live for equal time with each parent. That proposal was opposed by the mother who told Dr M that she viewed such an arrangement as being stressful for the child. The parents’ communication is poor, their changeovers are fraught with difficulty and the child is exposed to acrimony between the adults who are significant in her life. Dr M did not support equal shared time but recommended that the child spend more time with her father. His evidence in relation to that recommendation was not challenged.
The father sought orders, in the alternate, that he spend time with the child each Wednesday overnight and each alternate weekend from Friday after school until Monday morning or Tuesday if the weekend is a long weekend.
Both parents sought orders for time with the child on significant occasions.
The mother wishes to be able to take the child to England in the Christmas holidays in alternate years and to travel herself to England without the child. The father wants to take the child on a family holiday to Fiji in the September school holidays. Otherwise they agree that school holidays will be shared equally.
The father seeks to restrain the mother from moving the child’s place of residence more than twenty kilometres from suburb I. The mother’s position was that she would live in a place sufficiently proximate to suburb Z that the child could remain at her school. I accept the mother’s proposal.
The orders that I will make will reflect their agreements to the extent that it is practicable to do so.

costs

There are two applications before the court in relation to costs.
The first application relates to a hearing of an application before me on 17 January 2012. That application related to the mother’s wish to change the agreed arrangements for the child’s schooling in 2012. The mother was wholly unsuccessful. The father seeks indemnity costs.
In Colgate-Palmolive Co v Cussons Pty Limited (1993) 46 FCR 225 the Federal Court (Sheppard J) dealt with the question of indemnity costs in this way:
I believe that it is appropriate to consider awarding solicitor and client or indemnity costs whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are fortunately rare. But when they occur the court will need to consider how it should exercise its unfettered discretion.
Holden CJ in Munday v Bowman (1997) FLC 92-784, gave examples of circumstances which would warrant the ordering of indemnity costs;
(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397).
(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty Ltd (supra)).
(c) Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd, (unreported, Federal Court of Australia, 3 May 1991)).
(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court of Australia, 5 March 1993)).
(e) An imprudent refusal of an offer to compromise.
Indemnity costs are an exception. The general rule is that each party will pay his or her own costs. In the present case although the mother was unsuccessful in the application I do not consider that her actions come within the criteria referred to by the Federal Court and I do not accept that the criteria for indemnity costs have been established.
The application is governed by the provisions in section 117(2A). Although the mother has money in her bank account she is not presently employed and the father has a substantially superior income to hers. Whilst the mother was wholly unsuccessful in the proceedings I am of the view, in relation to the application heard on 17 January 2012, that it would be inappropriate to make an order for costs.
The second application for costs relates to the hearing of the present application. Up until the first day of the hearing the mother maintained applications in relation to financial matters, specifically she sought to set aside a binding financial agreement between the parties, leave to institute an application for spousal maintenance out of time, and an application to vary child support.
It was not until the commencement of the hearing before me that the father was informed that the mother abandoned all of those applications. In relation to the financial matters the father filed a Financial Statement sworn on 20 April 2012, an affidavit by his partner as to her financial position and an affidavit by the father sworn on 20 April 2012 consisting of 51 paragraphs together with 130 pages of annexed documents. The costs of the preparation of those documents were entirely thrown away when the mother advised that she did not wish to proceed with those applications. The evidence before me relating to the mother’s financial position is contained in her Financial Statement sworn 16 March 2012 where she discloses that she has $405,567.00 in a Westpac E saver account, $734.00 in a Westpac One Main account and options and shares to the value of $58,652.00. Including her motor vehicle, she deposes to assets to the value of $505,955.00. She deposes to liabilities totalling $23,921.00.
Section 117(2A)(c) requires me to take into consideration the conduct of the parties to the proceedings in relation to the proceedings in addition to the financial circumstances of each of the parties.
In circumstances where the father was put to expense in responding to an application which the mother withdrew on the first day of the hearing it is appropriate that she should pay the costs thrown away as a result of her decision not to proceed with the application and I will make an order that the mother pay the father’s costs thrown away as assessed or agreed.
I do not propose to make an order, as sought by the father, that the mother pay his costs on an indemnity basis. When the mother’s application was filed and when her affidavit material in support of the application was filed she was represented by experienced solicitors. Before me the mother represented herself. She advised me that she had been obliged to terminate the retainer of her solicitors because they had asked that she place $169,000.00 in their trust account to cover the costs of the three day hearing. Before me the mother said that she did not understand the financial applications, that she had absolutely no idea what was involved in their prosecution and that she was not in a position therefore to prosecute those applications. I accept that submission and in those circumstances I do not believe it is appropriate to order that she pay indemnity costs.
She must, however, pay the costs thrown away on a party and party basis and I will so order.

I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 June 2012.

Associate:

Date: 22 June 2012

[2012] FamCA 503

22 June 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Remedies

Jurisdiction