Marsden & Winch
[2008] FamCA 1029
•28 August 2008
FAMILY COURT OF AUSTRALIA
| MARSDEN & WINCH | [2008] FamCA 1029 |
| FAMILY LAW – PROPERTY – Application to enforce previous orders – value of property divided at first instance had declined since judgment – subsequent change in value of property does not allow the decision to be revisited – application dismissed FAMILY LAW – CHILDREN – Application to recommence proceedings – matter has previously been decided at first instance – decision was upheld by the Full Court and special leave to appeal to the High Court was refused – consideration of the rule in Rice v Asplund – passing of time not a change in circumstances – recommencement of proceedings not in child’s best interests – application dismissed FAMILY LAW – VEXATIOUS LITIGANT – Cross-application to declare father vexatious litigant – current proceedings not found to be vexatious or frivolous – application dismissed FAMILY LAW – COSTS – Applicant wholly unsuccessful regarding property and children – respondent wholly unsuccessful in cross-application – applicant to make some contribution to respondent’s costs |
| Family Law Act 1975 (Cth) |
| La Rocca (1991) FLC 92-222 Cawthorn v Cawthorn (1998) FLC 92-805 SPS & PLS [2008] FLC 93-363 Rice v Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr Marsden |
| RESPONDENT: | Ms Winch |
| FILE NUMBER: | CAF | 65 | of | 2004 |
| DATE DELIVERED: | 28 August 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 27 August 2008 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Godtschalk |
| SOLICITOR FOR THE RESPONDENT: | Ms Lyndon |
Orders
The father’s application about certain property orders filed on 28 July 2008 be dismissed
The father’s application about child matters also filed on 28 July 2008 be dismissed.
The mothers application that the father’s proceedings be declared vexatious and the father enjoined from further proceedings filed on 14 August 2008 be dismissed.
The father pay the sum of $2,750 to the mother as part of the mother’s costs.
In relation to this matter, the parties, having determined to resolve matters pertaining to costs in relation to the concluded appeal in the sum of $19,000 and noting that the father has agreed to pay such sum from a separate fund other than the NAB account no. …3, therefore, it is ordered by agreement that:
(i)Provided the father pays the total sum of $21,750 ($19,000 plus $2,750) to the trust account of the wife's solicitors on or before 5 pm on 11 September 2008, the National Australia Bank is directed and authorised to pay the amount presently standing to the credit of the account referred to above to the husband together with any accumulated interest upon its maturity in due course.
(ii)If the husband should fail to make the payment referred to on or before 5 pm on 11 September 2008 then, by consent, the total amount due from the husband to the wife will be withdrawn from the NAB account and paid to the wife and the balance will be paid to the husband.
There be no order for costs in relation to the mother’s application referred to above.
The matter be removed from the pending cases inventory.
IT IS NOTED that publication of this judgment under the pseudonym Marsden & Winch is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAF 65 of 2004
| MR MARSDEN |
Applicant
And
| MS WINCH |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Marsden, (“the father”), who is the applicant, filed an application on 28 July 2008. In that application he sought as final orders that:
“1.The child, [S], spend time with her father, [Mr Marsden]. After an appropriate period of refamiliarisation, perhaps initially under the supervision of [M] Family Centre, or alternative facility if [M Centre] are unable or unwilling to facilitate contact unsupervised contact gradually increased to:
a)Alternate weekends from Friday after school to drop off at school Monday morning; if long weekend the previous or next day as the case may be;
b)One half school holidays;
c)Contact on Father's Day, the father's birthday and [the child’s] birthday, of not less than 4 hours;
d)Father allowed to attend [the child’s] school, artistic and sport
activities.2.The father to receive his commensurate share (55 per cent of $67,054 plus interest since final orders of 4 August 2006) of funds distributed to the mother in the final orders of 4 August 2006 in exchange for the [D Corporation] debenture, including accrued interest and any principle [sic] payments returning to joint ownership. Proceeds of this debenture when realised, which is in receivership, to be distributed 55 per cent to the father and 45 per cent to the mother as per property distribution percentiles of final orders of 4 August 2006.
3.The father to receive a commensurate cash distribution from the cash distributed to the mother, being for the expenses, valuation and exchange rate losses the father has suffered relating to the real property in the USA since final orders of 4 August 2006.”
There were procedural and interim orders sought by the father as well.
“1.Pending the hearing of this application and final orders being delivered, the child [S] to spend time with her father [Mr Marsden] of 2 hours per week under supervision. This supervision to be provided by a family member or a friend by agreement, or by [M] Family Centre, or alternate facility if [M Centre] is unable or unwilling to facilitate contact.
2.To save all parties the additional time and expense, I seek that the Court waive the requirement, if applicable, for filing of a financial statement from the applicant and respondent. I do not seek to rehear the entire financial matter the Court has previously determined, but rather to address financial matters confined to 2 specific problems which have subsequently arisen due to the distribution of assets as previously ordered.”
The response was filed on 14 August 2008, and that seeks as follows:
“1.That the application filed on 28 July 2008 be heard and determined in the Federal Magistrates Court.
2.That the hearing of this matter be expedited.
3.That the application filed on 28 July 2008 be summarily dismissed.
4.That the applicant pay the respondent's costs of, and incidental to, this application on an indemnity basis.
5.That the application filed on 28 July 2008 be found an abuse of process and/or the applicant be declared a vexatious litigant and be restrained from filing Applications in any Commonwealth Court in the future without the leave of the Court.
6.In the event that the Court is minded to hear this matter further that the applicant pay $20,000 into Court as security for costs pending that Hearing.”
The interim order sought was:
“1.That the Orders made by Consent on 14 April 2008 be varied such that the amount to be paid to the husband remain in the Account to be put towards the wife's costs in relation to Order 4 and Order 6 of the final Orders above.”
DISQUALIFICATION
I should comment at the beginning that in this matter, after I had engaged in some preliminary discussions with Ms Godtschalk for the mother and the father acting for himself and having made a determination about the property side of things, the father asked that I should disqualify myself.
I determined that I would not do so on the basis that the father did not, in my opinion, advance any reasons which would justify such a decision.. I informed him that what I proposed to do today: was to make a determination in the matters before the Court in accordance with law and in accordance with the evidence before me. The fact that The father acknowledged that he had, in the past, been offensive and unpleasant to me or to the Court is not a matter I regarded as either causing me to feel that I could not do justice to him or to disqualify myself from these proceedings.
I should also indicate, because it is a subset, perhaps, of that application, that the law that is associated with the matters that I am to determine in many cases makes reference to the proposition that the second Court, which, in essence, I am today, may be reluctant to disturb the findings that were made by the previous trial Judge. I can say this is not a matter that has troubled me. I certainly do not have any difficulty in the proposition that any determination I have made previously should be changed if the circumstances should so merit it.
PROPERTY
The father’s application fell into two parts: one related to property and the other related to orders about the time that he might spend with the child S. For convenience, I will deal with the property issue first, because it has a narrower compass.
As the father conceded, this application related to the fact that two elements of the property he received as a result of my orders on 4 August 2006 had, in the case of the US real estate, declined in value and, in the case of the unsecured debenture with D Corporation, that corporation had gone into voluntary receivership which may mean ‑ and probably does mean ‑ that the father will receive only a very little return on his funds. In each case, the (understandable) complaint on the part of the father is that he did not finish up with what he would regard as his proper share, because the value of the items distributing to his share diminished after the trial.
So far as I can recall[1] the items the father was complaining of were items that he, in fact, sought to be transferred or left with him at the time of the trial. In any event, it would not be different if that were not the case. It adds a sense of irony, perhaps, to the present application. If, in fact, they had increased in value, then the father, presumably, would not be asking for a change in the orders and, as he correctly said, it may well be that in such circumstances, the mother would be. My reply to him was it would not matter very much whether they had increased in value or whether they had decreased in value. Sadly for the father, the property did not increase in value, but he is, nevertheless, left with it.
[1] ‑ the file is extensive and I did cause a search to be made and I am reasonably able to be certain
Decisions pursuant to s 79 of the Family Law Act are to divide property between the parties. It is not to divide value in itself between the parties. The Court must do this justly and equitably on the evidence before it. Once the division has occurred, what happens to the value of the property is, (saving only those cases justifying an application under s 79A of the Family Law Act) not a matter for the Court. Any gains or loses fall where they occur. The Court cannot maintain a shifting or adjusting balance sheet, even if changes occur relatively soon after the judgment or orders.
Parties are entitled to rely upon the orders made and to get on with their lives free from the fear or threat of litigation.
There is no application under s 79A before me, but, even if there were, it is hard to see on the evidence before me that the father could make out any of the grounds required to be established by him under that section. In my opinion, therefore, there is no valid jurisdiction to entertain the application and it is dismissed.
I was referred to some decisions by Ms Godtschalk,[2] and, having consulted those decisions, I believe that the matters I have just mentioned are consistent with them.
[2]La Rocca (1991) FLC 92-222 and Cawthorn v Cawthorn (1998) FLC 92-805
CHILDREN
I turn to matters relating to the child. The orders sought about the child are, to some extent, a reopening of the previous proceedings, which ended with the father's being refused special leave to appeal to the High Court of Australia. The proceedings involved the consideration of what is known as the rule (although there is no such thing as a rule in these circumstances) in Rice v Asplund.[3] The respondent, in accordance with the provisions of that decision or, rather, the law behind that decision, seeks that the father’s application be summarily dismissed. I have been referred to the decision of Warnick J, acting as a member of the Appeal Division on appeal from the Federal Magistrates Court in the matter of SPS & PLS [2008] FLC 93-363. I found his Honour's decision particularly helpful and, in my consideration of the issues associated with the father’s application, I have with deference and respect, agreed with his Honour's analysis of the law relating to the so‑called rule in Rice v. Asplund, and I accept his conclusions about the application of the particular rule.
[3](1979) FLC 90-725
In particular, I am guided by what he describes as his “reflection” in paragraph 48 of his judgment, which reads as follows:
“In my view, a reflection on the rule shows that:
(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the Court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of the hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv)Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application to be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v)The application of the rule is closely connected with the nature of, and degree of, change sought in the earlier order.
(vi)“Shorthand” statements of the rule may contribute to its misapplication.
(vii)Any application of the rule must now measure the evidence against the principles set out in Pt VII of the Act, in particular, the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.”
His Honour then examined each of those separately and at some length.
In this matter, it is appropriate to deal with the Rice v. Asplund aspect of the proceedings at the beginning of the proceedings. This will have the effect that if the issue is determined against the father, then there will be no further proceedings. This is consistent with my dealing with the cross‑application by the mother for summary dismissal and consistent with the best use of the Court's time and the litigants' resources and, more importantly, the best interests of the child, for reasons I shall elaborate on.
As Warnick J suggests in (iii) of his summary, the rule is merely a manifestation of the best interests principles set out in the Family Law Act. This arises from a consideration of s 60CA, which proclaims that in deciding whether to make a particular parenting order, a Court must have regard to the best interests of the child as the paramount consideration.
It is to be noted that an order relating to the summary dismissal of a matter is not, it would seem, in itself, a parenting order. However, in my opinion, it is appropriately categorised as being something which a Court is obliged to contemplate or make a decision about in determining whether to make a parenting order and, therefore, in my opinion, s 60CA applies, and the paramountcy of the best interests of the child is applicable.
Warnick J, in the decision to which I have previously referred, said as follows in paragraph 81:
“…Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being the subject of further litigation is more powerfully in the child's welfare than to allow the application to continue.” [Emphasis mine]
Whether this so or not is the essence of the matter for determination I have before me.
What the father submitted to me was that, first, Rice v. Asplund either was inapplicable or, alternatively, was distinguishable. He submitted that there were a number of grounds on which I should permit the reopening of proceedings (or the recommencement of proceedings, to be more technically accurate).
The first was that in Rice v. Asplund, the period between the time of the decision and the time at which it was sought to be reopened was nine months and that, in this case, a period of two years had elapsed.
The second point he made was that in Rice v. Asplund, the orders that were sought in the second set of proceedings were for a change of custody, as it then was called, whereas, in this case, he was seeking that he have time with the child and not a change of custody as such.
The third point was that he had further evidence available which had not been put before the trial Court in which he maintained may have affected the result if it had been put before the trial Court.
The fourth point was he said that he now had evidence relating to the fact that he had been treated by a psychiatrist or a psychologist. He submitted that this was in accordance with the way he interpreted paragraph (or part of paragraph) 49 of my judgment and that, therefore, in effect, at my invitation, he had fulfilled the preconditions for his returning to the Court.
Finally, he said, as I understand his submissions, that, generally, it was in the best interests of a child such as S to have a meaningful relationship with her father. This was not based, it seemed from what he put to me, on any particular view about the principles of law that had been established under the Court but, rather, on the asserted principle that, as a matter of almost judicial notice, it was appropriate that a child should have a meaningful relationship with a father.
Taking the first of these, then, the argument submitted by the father that the time difference between this matter and the decision in Rice v. Asplund being respectively two years and in the case of Rice v. Asplund, nine months, is, in my opinion, untenable. The mere effluxion of time is not a proper change in circumstances itself. There is no magic cut-off or cut-in date in relation to the recommencement of proceedings. It depends on each case, and, in this matter, the father is faced with a dilemma: the longer he waits to make an application, the less likely it is that a Court would find that it is in the child’s best interests to begin a relationship (which is what it would be) given that in almost all respects, there is no existing relationship.
However, that still does not mean that simply because time has elapsed, it is appropriate to begin again. This element of time must be considered in the context of other asserted changes and the assessment of the asserted changes in the best interests of the child. In this regard, I draw attention to Warnick J's judgment in paragraph 82, in which he says, among other things:
“The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.”[4]
[4] In the Marriage of Zabaneh (1986) FLC 91-766 at 75,587 Evatt CJ, Fogarty and Renaud JJ agreeing
The father asserts that he has committed no further offences. I suppose, correctly speaking, he says there have been no further convictions for offences. This was also his assertion at the time of trial, and is, in itself, not a change but, rather, again, part of a context for the consideration of the effect of the asserted change, if there is any.
The difference between seeking a change in the child’s living arrangements and seeking some time with her is suggested as being important and to be of the nature of reducing the significance of change required. This draws, it seems, in part, on Warnick J's references in paragraph 83 of his judgment, which reads as follows:
“Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow inquiry, but may properly prevent a hearing in respect of more far‑reaching changes.”
However, such a submission is somewhat naîve in the context of this matter. In circumstances where the orders sought to be varied were that the father have no parental responsibility for the child and no time with the child, the changes sought are significant and call into question the entire basis upon which the original decision was based. In this regard, I draw attention to his Honour’s statement, again, in paragraph 78, and I quote:
“What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court.”[5]
[5] In the Marriage of Newling and Mole (1987) FLC 91-856 at 76,467, Nygh J with whom Barblett and Fogarty JJ agreed
His Honour also draws attention to the fact, in paragraph 81 that:
“…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with formal procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing.”
The existence of available evidence which could have been before the trial Judge (which, in this instance was me), or before the Appeal Court, (and there was an application put before the Appeal Court) is not a proper basis for showing change, or for suggesting that the consideration of evidence mandates a reconsideration of the whole issue before the Court. Owing to this conclusion, I take account of the evidence sought to be adduced, which would, at its highest, if accepted, cause a trial Judge to reach different conclusions from those reached by me in the proceedings. The evidence, while it may or may not have been relevant in the original proceedings, and it probably would have been relevant, was not put properly before the Court and at the appropriate time.
Allowing that the father is a self‑representing litigant, it does not follow that he or any other litigant can return to Court when a decision has been made against him or her on the basis that he or she has now either located or created ‑ I do not use that term pejoratively ‑ evidence which he or she thinks would have affected the determination of the Court in the first instance and produced a more favourable result.
A further matter raised by the father related to the fact that he wanted to adduce new evidence in these proceedings (and this was clearly different from that which was applicable previously) about treatment that he had undertaken with Dr S, a psychologist. This aspect seems to me to rely mistakenly upon an interpretation by the father as to my, in his words, as I understand them to be, "setting the bar" or providing in some way a condition precedent for his return to the Court.
He quotes part of paragraph 49 of my judgment, but quotes it out of context.[6] The Full Court on the appeal dealt with this aspect of my judgment at some length from paragraphs 38 and following and it is quite clear that their Honours both understood and did not disprove of the approach that I recommended and the reasons for the comment.
[6] Paragraph 49 of the judgment of 4 August 2006 states: “In addition, (again with the qualification that if the father was continuing to engage in such activities) it is feasible/possible that the father could engage in such activities with, or in the presence of friends that [the child] may have to stay when she is with her father. In the past the father has on occasions shown little discrimination about where he conducts his activities and while there is no evidence that he has ever carried them out in the presence of [the child], he concedes that “young women” (at least) are the objects of his sexual fantasies. If there were evidence that the father is having treatment and if there were evidence from an expert about paraphilia about the effect of such treatment and the likely prognosis, I could feel a little more comfortable about the future.”
The comments in that instance were directed to why I had reached the conclusion I had at that point, based on the fact that the father had not, at that point, sought assistance and that that did not give me confidence that the situation would be different in the future. The fact that the father has now returned to court may mean, indeed, that he has received the assistance that I thought he might not, but it does not affect the validity of the judgment, nor does it flow from any real or imaginary invitation on my part that he could undertake the course and then come back to Court. There was no express or implied invitation to return when the specified condition precedent, which the father has identified has being complied with.
In any event, the value of evidence about his treatment is not patent. There is no report. I note that the father’s willingness to obtain one, but even if a report demonstrated unequivocally that the father had been receiving treatment, that would not, in itself, provide a sound basis for a reconstitution of all of the proceedings for the following brief reasons:
a.This is a matter in which there is a need for an end to Court proceedings in the best interests of the child S, in the best interests of her mother and, arguably, in the best interests of her father, whose life has been engrossed in litigation for many years, to the detriment of his health and his mental health, I suspect;
b.Any reopening of the proceedings would, as the father contemplated in his oral submissions to me, require some new report. This must necessarily mean, and he agrees that this is so, that there should be some resumption of the time between the child and him to enable a proper assessment by the reporter to occur. If such time were ordered and subsequently the Court did not, make an order changing the existing situation[7], then the child would be left in a difficult situation. Having now adapted to two years or thereabouts of not having her father as a parent in her life, she would have had a further intervention and the confusion deriving from it, only to be deprived yet again of the influence of her father. That, of course, is not to predetermine the outcome, but, rather, to weigh it and its possible consequences.
c.Of course, if the proceedings subsequently were to determine that it was appropriate that the child should spend time with her father, then, of course, the intervention of having her spend time with her father preparatory to a further report would not have been against her best interests.
d.Ultimately, this issue is a matter of balance, and this is only one of the factors, but the downside consequences in my opinion, outweigh any possible upside factors, because of the consequences for the child. This is perhaps an adaptation of the Hippocratic Oath of the medical profession: First, do no harm.
[7] where there is to be no contact between the child and her father
I turn to the factors to be taken into account in accordance with s 60CC. The father submitted, in my opinion, validly, that this is a matter even in the circumstances of this case that needs to take account of the best interests of the child and, in doing so, I am bound by the Act to take account of the matters set out under s 60CC.
I have not disregarded the presumption that is contained in the Act that that there should be equal shared parental responsibility between the parents. It is quite clear in this matter that the presumption has no appropriate application nor, indeed, do I note, was it sought by the father in the orders that he put before me.
The primary considerations that I am obliged to take into account under s 60CC are: first, that the possibility of a meaningful relationship with each of the child’s parents. The question of meaningful relationship with her father provides no basis for concluding that the reopening would necessarily lead to a change in the existing situation.
During the course of the (first) trial, I gave consideration to the importance of a meaningful relationship between the child and her father, and there is no reason, as I see at this point, to doubt the opinion that I then expressed that, if it were possible, such a relationship would be a desirable thing.
Ultimately, it is, again, a matter of balance. The possibility of establishing not only an ongoing relationship but the expense emotionally and financially of reopening the issues between the parties means that, in my opinion, this ground in itself would not justify giving permission, in effect, to the father to proceed.
The second of the primary elements is the protection from or exposure of the child to physical or psychological harm. If proceedings were reopened, it would not possible so far as supervised orders are concerned, that there would be any physical risk to the child. But there are potential psychological or emotional risks for the reasons that have been previously outlined.
This is reinforced as a ground under this particular sub‑section of the Act by the effect that the reopening of proceedings would have upon the child’s mother and, in effect, also, in my opinion, the effect it would have on the father. I note in this regard and rely upon the evidence of the mother in her most recent affidavit.
The additional considerations I am to take into account follow.
First, the child’s views. The father wants to put forward evidence to show that the child enjoyed the time she spent with him at M Centre. This was available at the time of the trial, and there can be no new evidence about this matter because there has been no involvement between the child and her father. I accept that this logical conclusion may be regarded by the father as unfair, as he could not have had the involvement because of my Orders. Nevertheless, the objective situation is as I have said it is.
Second, there is no change in the relationship between the father and the child as to warrant the expense of reopening the proceedings.
Third, the change would operate detrimentally to the mother for the reasons that I have outlined above.
Further, there are difficulties in the question of the sort of time that the child would spend with her father. There is no change in the consequences of long‑term supervision. If, in fact, the determination of the Court were that supervision was to continue, then there would still remain the problems associated with supervised time that the child spends with her father in circumstances where the parties are deeply in dispute.
There is no evidence before me that the father would be better able to provide for the child’s emotional needs. His emotional presentation during the hearing still seemed to be unduly centred on his own emotional needs rather than the child’s.
There are several other matters which I did not regard as relevant under s 60CC. I do not believe there are any cultural or like matters that affect my conclusion and I take no account of matters relating to family violence.
Taking all these matters into account, I can find no proper basis to permit the reopening of proceedings about S and, accordingly, the father’s application is dismissed.
CROSS-APPLICATION: VEXATIOUS LITIGANT
The cross‑application filed related to seeking a declaration that the father be declared a vexatious litigant and prevented from further bringing proceedings before the Court. This relies substantively upon a determination of certain matters under s 118 of the Family Law Act. Section 118 reads as follows:
The court may, at any stage of proceedings under this Act, if it is satisfied the proceedings are frivolous or vexatious;
a) dismiss the proceedings;
b) make such order as to costs as the court considers just; and
c)If the court considers appropriate, on the application of a party to the proceedings - order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a Court under paragraph (c) has effect notwithstanding any other provision of this act.
During the course of submissions from Ms Godtschalk, I recognised there have been a lot of applications made by the father in these proceedings. It was agreed that it would not be open to me to make an order that would prevent him from filing further proceedings in this Court unless I were able to determine the current proceedings were frivolous or vexatious. In my opinion, the proceedings before me are neither frivolous nor vexatious.
There is some force to the proposition contended for by the father that he has only made two primary applications in relation to the child. There have been many other applications made, but they are part of the process in relation to the first application. There is no doubt that the father, by his conduct and some of his applications, may be vexing, but that is not the test. The test is whether or not these proceedings, as commenced, were vexatious. In my opinion ‑ this is, in fact, supported in part by the fact that I have spent nearly three‑quarters of an hour delivering judgment about them – these proceedings are not such as they would properly be regarded as vexatious. I am satisfied that they emanated from a desire on the father’s part to do what he regarded as best for his daughter. The fact that the Court comes to a different conclusion is not a relevant matter. Accordingly, the cross‑application is dismissed.
COSTS
In this matter there is an application for costs on behalf of the respondent in relation to the proceedings brought by the father. The primary prescription in the Family Law Act is that each party to proceedings under this Act shall bear his or her own costs. However, the Court may, if it believes it is appropriate to do so, make an order as to costs or for costs in relation to the proceedings before the Court.
In determining that, the Court must have regard to the matters set out in s 117(2A).
·These include the financial circumstances of the parties. In these circumstances, each of the parties have some property, although the father asserts that this property is not easily realisable. His income is from a pension; the income derived by the mother is from interest and from her salary.
·Neither party is in receipt of legal aid.
·The proceedings have been conducted with expedition by both the father and by the mother.
·These proceedings were not necessitated by the failure of a party to comply with previous orders.
·However, the father has been wholly unsuccessful in his application to the Court. Equally, it might be said that the application by the mother that he be enjoined from bringing any further proceedings before the Court has also been unsuccessful wholly.
·There is no issue about offers to resolve the proceedings in relation to this matter.
·There are no other matters that I consider to be relevant.
In my opinion, in all of the circumstances of this matter, it is appropriate the father should make a contribution to the wife's costs, but not in the amount sought by her.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks
Associate:
Date: 10.09.08
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