Maynard & Frye
[2023] FedCFamC2F 354
•30 March 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maynard & Frye [2023] FedCFamC2F 354
File number(s): PAC 3231 of 2016 Judgment of: JUDGE OBRADOVIC Date of judgment: 30 March 2023 Catchwords: FAMILY LAW – Final Parenting – Allegations of physical, emotional, psychological and financial abuse – Criminal convictions – Unacceptable risk – Children to live with mother and spend no time with father Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CG, 61DA, 65DAA Cases cited: Banks & Banks [2015] FamCAFC 36
Isles v Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
M & M (1989) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 205 Date of last submission/s: 15 November 2022 Date of hearing: 14-15 November 2022 Place: Parramatta Counsel for the Applicant: Mr Mifsud Solicitor for the Applicant: John Stonham & Co Counsel for the Respondent: Mr Francis Solicitor for the Respondent: City Lawyers & Consultants Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Legal Aid NSW
Table of Corrections 14 May 2024 At [19] the words “The phrase “unacceptable risk” does not appear anywhere in the Act.[1] However,” are deleted.
[1] Isles v Nelissen [2022] FedCFamC1A 97, [58] (“Isles v Nelissen”).
ORDERS
PAC 3231 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MAYNARD
Applicant
AND: MR FRYE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
30 MARCH 2023
THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for X born 2006 and Y born 2012 (“children”).
2.The children shall live with the mother.
3.The children shall spend no time with the father.
4.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother shall be authorised to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.
5.The names of the children, X born 2006 and Y born 2012 be removed from the Airport Watch List and it is requested that the Australian Federal Police do all such things to facilitate this request.
6.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father MR FRYE born 1966 shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the mother MS MAYNARD born 1969 by any means whatsoever, including through any third party and further, MR FRYE is restrained from:
(a)Attending at or being within 100 metres of the ordinary place of residence of MS MAYNARD; and
(b)Attending at or being within 100 metres of any place of employment of MS MAYNARD.
7.Pursuant to Section 68B of the Family Law Act 1975 (Cth), the father MR FRYE born 1966 shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the children, X born 2006 and Y born 2012 by any means whatsoever, including through any third party and further, MR FRYE is restrained from:
(a)Attending at or being within 100 metres of the ordinary place of residence of the children, X born 2006, and Y born 2012; and
(b)Attending at or being within 100 metres of any school, place of employment, or educational institution attended by the children, X born 2006 and Y born 2012.
8.Notwithstanding Orders 3, 6 & 7 above, should the children, or either of them, seek to initiate contact with the father when they are older, they can email him at …@... and should the email from the children invite a response, the father shall be at liberty to reply.
THE COURT NOTES THAT:
A.Order 1 vests in the mother sole parental responsibility for the purpose of the Australian Passports Act 2005 (Cth) such that the mother is accordingly authorised to obtain any passport or travel document required to facilitate the children travelling overseas without first notifying or obtaining the consent of the father.
B.Orders 6 and 7 herein and each of their subparagraphs pursuant to section 68B of the Family Law Act 1975 (Cth) are injunctions to which section 68C would apply and accordingly, any police officer made aware of these orders and whom on reasonable grounds believes that such orders and injunctions have been breached by the father MR FRYE by either harassing, molesting, stalking or physically harming or threatening to harm the mother MS MAYNARD and/or the children, X born 2006 and Y born 2012 may arrest the father without warrant.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maynard & Frye has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are final parenting proceedings concerning the parties’ two children, X born 2006 and Y born 2012 (“children”). The applicant mother Ms Maynard (“mother”), and the respondent father Mr Frye (“father”) separated on a final basis in January 2016.
The Court notes that X has otherwise been known as W during periods of her life. Notwithstanding, the Court will reference her as X for the purposes of clarity in these Reasons for Judgment. No disrespect or findings should be inferred in relation to this.
The parties’ relationship, before and after separation, has been characterised by allegations of family violence by both parties against the other and towards the children. The mother and father have both been subject to criminal proceedings relating to family/domestic violence. It is fair to say that the allegations against the father are significantly more serious than the allegations against the mother.
The children have been living with the mother since late 2016 and have not spent any time with the father since early 2019.
ISSUES FOR DETERMINATION
The mother’s case is that the father has been physically and emotionally abusive, and coercive and controlling towards her and the children whilst they were together and after separation. Accordingly, the mother says that there is an unacceptable risk of harm if the children spend any time with the father. The mother also says that the father has shown no insight into his behaviour and how it may affect his relationship with his children and the mother. The mother subsequently seeks orders that she have sole parental responsibility, that the children live with her and that the children spend no time with the father. She also seeks various restraints on the father, inter alia, contacting, approaching or visiting the mother or the children, or their places of work, residence or education.
The father’s case is that it is in the best interest of the children for them to have a meaningful relationship with him. He says that whilst there may be a risk to the children if they spend time with him, this risk can be satisfactorily ameliorated if such time is supervised. The father says that he was the primary caregiver for the children until late 2016 when the children commenced living with the mother, and that the mother has been physically abusive to X in the past and may be physically abusive towards Y in the future.
On the first day of the hearing, the father handed up a minute of order sought clarifying his position: orders that the mother have sole parental responsibility and that the children live with the mother. The father seeks that time and contact with X be in accordance with her wishes and that time with Y be supervised and be for an initial period of 2 hours each Saturday and Sunday, increasing to 4 hours each Saturday and Sunday after six months. After this period, the father seeks further orders as to time with Y as the Court determines.
The father had filed four responses in the proceedings. Until the interim hearing, the father had sought sole parental responsibility, that the children live with him and that the children spend time with the mother. His subsequent responses were that the children live with the mother and spend time with him. It appears that the father’s ambitions apropos of time with his children diminished as the proceedings continued.
The father submitted that any risk that is posed if he spends time with Y can be ameliorated by supervision, that he had a meaningful relationship with Y in the past and that Y and the father loved each other. The father further submitted that he has shown an ability to respect Court ordered restraints on his behaviour and the Court could have confidence that he would not transgress any orders made for time.
The Independent Children’s Lawyer’s (“ICL”) case is that the Court should have serious concerns that there is an unacceptable risk of harm for the children when in the father’s care, that the children have expressed views to spend no time with the father, and that the father has limited parenting capacity. Subsequently, the ICL says that it would be open to the Court to order that the mother have sole parental responsibility, that the children live with the mother and that the children spend no time with the father. On the final day of hearing the ICL sought orders mirroring those sought by the mother, including the restraints, save that should the children initiate contact with the father by email when they are older, he should be at liberty to reply if appropriate in the circumstances.
The ICL further submitted that any benefit for the children in having a meaningful relationship with the father is likely outweighed by the risk posed by the father spending time with them. In particular, the ICL submitted that the father has shown no insight and taken no responsibility for his actions. It was noted that his late admission to one instance of threating behaviour, which is discussed in these Reasons for Judgment, was not consistent with his conviction. The primary risk the ICL foresaw was emotional harm to the children if they spend time with him.
Regarding supervised time, both the mother and the ICL submitted that the risk of emotional harm is an unacceptable one and cannot be ameliorated by supervision. In cross examination, the mother appeared to concede that there may be some benefit in Y having a relationship with her father, but that this benefit is not outweighed by the risk of harm she would suffer if she was ordered to spend time with him.
As such, the key issues for the Court’s determination are:
(a)Whether the children are at an unacceptable risk of harm when in the care of the father even if supervised;
(b)Whether the benefit of a meaningful relationship with her father outweighs the risks for Y; and
(c)Whether it is in the best interest of the children to make the restraints as sought by the mother and the ICL.
PROCEDURAL HISTORY
The mother commenced these proceedings on 14 July 2016 at a time when the children were living with the father and spending limited time with the mother.
After an interim hearing, the Court made interim orders on 3 November 2016 that the children live with the mother and spend time with the father each alternate weekend, each alternate Wednesday until Thursday before school, half of school holidays and at an agreed time during the Eid festival. The interim judgment of Maynard & Frye [2016] FCCA 2623 should be read together with these Reasons for Judgment.
On 7 July 2017 the Court made orders for the preparation of a Family Report. The Family Report is dated 27 November 2018.
On 17 September 2021, the Court made orders for the preparation of an addendum to the Family Report. The addendum to the Family Report is dated 17 February 2022.
The proceedings were first listed before the Court for hearing on 7 and 8 March 2022 but were marked not reached. The Court ordered on 7 March 2022 that the spend time, contact and changeover orders in the interim orders of 3 November 2016 be suspended.
The proceedings were heard by the Court on 14 and 15 November 2022 with judgment being reserved.
RELEVANT LEGAL PRINCIPLES
The central enquiry is for the Court to determine the outcome that will be best for the children who are the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[2]
[2] See Slater & Light [2011] FamCAFC 1, [45].
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”.[3] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[4]
[3] Mazorski & Albright [2007] FamCA 520, [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92, [121] (“McCall”).
[4] McCall at [122].
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[5].
[5] MRR v GR [2010] HCA 4, [13].
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. The reason for this is that discussion does not mean consideration.[6]
[6] Banks & Banks [2015] FamCAFC 36.
The phrase “unacceptable risk” does not appear anywhere in the Act.[7] However, the “provisions of ss.60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an “unacceptable risk” of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.”[8]
[7] Isles v Nelissen [2022] FedCFamC1A 97, [58].
[8] Isles v Nelissen [2022] FedCFamC1A 97, [59].
As the Full Court held:
The assessment of risk is an evidence-based conclusion… The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[9]
[9] Isles v Nelissen [2022] FedCFamC1A 97, [85].
In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating the whether the risk will occur, but also the potential consequences of the risk being realised.[10] The High Court has stated that “the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access will expose to child to an unacceptable risk of [harm]…”.[11]
DISCUSSION
[10] See for example the discussion in Johnson & Page [2007] FamCA 1235, [62]-[74].
[11] M & M (1989) 166 CLR 69, [25].
Relevant Facts
The father was born in Country C and the mother was born in the Country B. Both parties migrated to Australia.
The parties met in Australia and commenced cohabiting in 2001. They married in 2006.
The father adheres to the Islamic faith. The father says that the mother converted to Islam from Christianity either before or at the time of marriage and that she prayed with the father, learnt about Islam and taught the children about Islam. The mother says that she is a Christian and that she reluctantly agreed to raise the children in the Islamic faith because she was afraid the father would take away the children if she did not agree to this.
Regarding the children’s religion, the father says that:
[X] is a Muslim. Since 4 years old she started to pray with her mother. [X] attends Islamic class in school since Year 1… [The mother] is a Muslim, she converted to Islam before we got married. Both children are Muslim according to the family faith.
The issue of the religious faith of the mother and the children is a re-occurring one.
The parties’ first child, X, was born in 2006.
From the time she was born until late 2014 or early 2015, X’s name was W. The father says that he never agreed with this name and in 2014, the father changed her name to a Muslim name, X. The mother said she reluctantly signed the forms to allow this change to take legal effect.
The parties’ second child, Y, was born in 2012.
The parties separated on a final basis 15 January 2016 and divorced early 2018.
Prior to Separation
The mother says that the father was physically, emotionally, psychologically, and financially abusive and that he was coercive and controlling to her during the marriage.
The mother says that during the marriage, the father would withdraw her wages from her account and require her to seek permission from him to purchase anything. The mother says that the father unilaterally retained her 2012/2013 income taxation return. In cross-examination, the mother said that the father would routinely transfer funds from her personal account to his account to pay the family’s bills and expenses.
The father says that the mother had credit card debts and that she bought a car on finance and didn’t make the repayments. The father says he told the mother that “I have to withdraw money for house rent, your credit card debts and make car payments.” He says he first transferred the mother’s wages to a joint account in 2012 to pay for expenses. The father also claims, somewhat inconsistently, that he paid all expenses regarding the home and the children.
The mother says that the father told her on numerous occasions that “the children are not allowed to know anything about your culture or Christianity and you will never take them to church.”
The mother says that during the relationship the father did not allow the mother to drive a car by herself and insisted on accompanying her everywhere. The mother deposes separately that the father prevented her from driving from June 2012.
The mother says that at an unspecified time during the marriage, the father put wax in the key hole of their front door so he could monitor whether she left the house. The father denies this.
The mother says that after she fell pregnant with X, the father prevented her from having a relationship with her sister and that subsequently, she did not speak to her for a number of years.
The father says that the mother habitually hit X from when she was five years old. He says that the beatings were frequent and were accompanied by bouts of rage, screaming, name calling, throwing of objects and pulling of hair. In the Family Report, the father told the family consultant that these beatings would occur “every day, every day”.
The father also says more generally that the mother used foul language and name calling towards the children during the marriage.
In 2011, the mother deposes that the father was sick and accused her of poisoning him. The father said that this incident occurred in early 2011 and that he was taken to the emergency department where a doctor informed him that he had food poisoning. It is unclear on the evidence whether the father understood this to mean that someone had deliberately poisoned him.
The father says that in 2012 the mother charged at him with a knife and said “I’ll kill you” in front of the children.
In 2012 when the mother was pregnant with Y, she says that the father pushed her to the ground causing her to fall back and hit her head.
In 2012 whilst the mother was pregnant with Y, she says that the father accused her of having an affair and ordered her to strip naked so he could check her breasts and genitals. After finding discharge in the mother’s underwear, the father said to the mother “You had sex with someone before coming home didn’t you?” The mother says that at various other times during the marriage, the father would accuse her of having an affair.
The father’s evidence is that in 2012 the mother commenced a relationship with a shop owner named Mr D who worked underneath the parties’ residence. He says that this shop owner is a “bad guy” and that he monitors the father “using a software devise [sic] my mobile phone, home phone, email and the car since 2012.”
The father further says that in mid-2012 he “reported to police about mother boyfriend [Mr D] who is always coming my house when I was working and in around the locations [sic].”
In the Family Report, the father reported to the family consultant that Mr D is a “member of the bikie gang” and that “he could maybe injure or kill me.”
In or about early 2012, the father says that the mother locked X “in a unit” so that the mother could have “affairs with her boyfriend in downstairs and her boy friend always shut down the power off while I was outside and I was unable to open the electronically system garage door to entire me unit [sic]”.
The mother says that in 2012, when the father was dropping her at work, he enquired with her workplace as to whether employees were permitted to leave the workplace. The mother also says that the father would call her workplace every time she was working a shift to ensure she was present at work.
The father installed numerous CCTV cameras at the various properties that they resided in during their marriage. These cameras monitored the inside and outside of the house, and only the father had access to the recordings. The mother says cameras were also installed inside bedrooms. The father says that he did install cameras from January 2013, but that they were not in the bedrooms or bathrooms and that they were installed for the safety of the children. He also says that one of the main reasons for the cameras “is to protect my life and the children from mother and her boyfriend.” Under cross-examination, the father said that he did not install the camera to control the wife or to ensure she was not being adulterous but that it was to protect the children from the mother.
The mother says that whilst the parties were residing at a unit at E Street, Suburb F, the father demanded that the mother and the children not close the bathroom door when inside.
In or about late 2014, the mother says that the father refused to give the mother her mobile phone after dropping her to work, and subsequently, did not pick her up after her shift ended resulting in the mother having to walk home. The mother says she called the police in 2014 after the father made her walk home from work, and she also made allegations to the police that the father was aggressive and violent towards her.
The father makes numerous allegations of violence perpetrated by the mother against X:
(a)In 2014 and 2015, the mother pulled X’s hair multiple times;
(b)In or about “June/August 2015” the mother screamed at X, pulled her hair and hit her with a wooden spoon and a metal Spatula;
(c)In June 2015, the mother hit X with a metal flat knife;
(d)In August and December 2015, the mother hit X several times; and
(e)In January 2016, the mother hit X multiple times.
On 15 January 2016, the father says that the mother:
….signed an agreement (written by her sister [Ms G] and in my presence at my home) that [X] and [Y] are Mulsim and the mother will not take the children to any Christian activity in the mother’s care.
The father initially denied all allegations of family violence and says that it was the mother who was the violent one, towards him and the children. The father made an admission during the hearing of one instance of threatening X, which is discussed below. The father also denies that he ever controlled or intimidated the mother.
The mother says that she was the primary breadwinner and caregiver during the marriage and that the father only contributed very minimally. The father denies that the mother was the primary breadwinner and says that he was the primary caregiver to the children during the marriage. He says that the mother hardly ever did any housework or any caring duties for the children. He accuses the mother of feeding the children junk food.
In a document titled “Relevant family history” that forms part of the father’s evidence, the father also says, inter alia, that:
(a)The mother’s sister did not like the father because of his religion and culture;
(b)He told the mother in 2001 that he could not have children with or get married to the mother because his “religion, culture and Permanent resident [sic]”;
(c)The mother fell pregnant secretly with X so that she could give the baby to her sister to restore their relationship; and
(d)As a Country C man it is very hard to look after children because in his culture it is the mother who would perform that role.
After Separation
The mother left the matrimonial home in January 2016 which she says was because she could no longer tolerate the father’s family violence and behaviour. The mother commenced living with her sister.
The father says that he:
….could not take [the mother’s] bouts of violence any longer and we separated on 15 January 2016. [The mother] moved out of the house and moved in with her sister [Ms G] at [Suburb H]. The children stayed at their mother’s house after our separation for 2 days a week for 8 weeks only.
…..
From […] January 2016 to […] March 2016 for 8 weeks the children stayed with [the mother] for 2 nights a week in [Suburb H]. I was concerned about [the mother’s] bouts of rage against the children. She was violent towards the children in the past when we lived together…… the children have always been happy and healthier with me…… I never slept in another person’s house in my life, unlike [the mother] who stayed overnight at her boyfriend’s house.”
In early 2016, the father says that X told him that she was scared to see her mum because her mum would beat and hit her.
After separation the father made various complaints and reports to various bodies and persons regarding the mother’s alleged violent conduct towards the children:
(a)Department of Family and Community Services in early 2016;
(b)NSW Police on three dates in early 2016 and on a date in late 2016;
(c)The ICL on 20 April 2018, 22 June 2018, 25 July 2018 and 31 October 2018;
(d)Family Consultant on 11 September 2018; and
(e)NSW Police in late 2020 (the consequences of which are discussed further below).
The mother says the father did not allow her to take the children with her when she left the matrimonial home and they were initially left in the care of the father. During this period, X was attending school, the father was working one day per week, a nanny cared for the children on Sundays and Y attended childcare two days per week.
The mother paid child support to the father during the period the children lived with him in the sum of $630 per month.
The father was the primary caregiver for the children during this period.
The mother spent no overnight time with the children following separation until April 2016.
The father says that X said to him at some point after separation:
“Mum wanted to cut all my hair, cut it into small pieces as I didn’t cut my nails.”
“Mum hit me, when I did not shower fast.”
“Mum pulled my hair”.
“We didn’t sleep until 1am”
The father also says that the children were subject to verbal abuse from the mother’s extended family.
In early 2016, when the mother was spending time with the children at the father’s residence she called the police seeking assistance in spending time with the children. After this call, the mother says that the father slapped her on the face in the presence of the children.
In early 2016, the mother says that X was upset because the father would not allow her to attend the Easter Hat parade at her school. The mother says that the father said “[X] is not allowed to know anything about Easter.” The father says that he never restricted X from attending any school events.
From April 2016, the father asked that he supervise the mother’s time with the children. This time occurred at a shopping centre or at the father’s residence.
When at the father’s residence, the mother deposes that the father would stay in his room the entire time the mother spent time with the children. The mother believes that he would have been watching them on the cameras he had installed in the residence.
The father facilitated unsupervised time with the mother on a sporadic basis on the condition that the mother did not take the children to the mother’s sisters house where she lived.
During this period, the mother says that the father said to her “I don’t want the kids to be converted to Christian.”
On Mother’s Day 2016, X called the mother to arrange time with her which the father facilitated.
In or about mid-2016, when the mother was spending time with the children at the father’s residence, the mother says that the father told her that she cannot take photos of the children.
On 6 July 2016, the parties agreed on a parenting plan which stipulated that the parties have equal shared responsibility and that the mother shall spend time with the children each Saturday and every second Tuesday. A notation of the parenting plan was that “the mother will not to [sic] take the children to her sister, [Ms G’s] house in [Suburb H].”
The mother says that, when she was spending time with the children in accordance with the parenting plan in mid-2016, she bought the children aftershave to give to the father for his birthday. The mother says she was present when the children gave the gift to the father and that the father said to the children “Give the aftershave back to your mother, she can give it to her boyfriend.”
Another time in mid-2016, when she was spending time with the children, the mother says that the father said to the children in her presence “Your mother has sex with her boyfriend” and “Your mother is a prostitute” and “Don’t listen to your mother, she is a prostitute.”
On 12 July 2016 the mother says that the father said to her:
I would have given the kids to you if you were a Muslim, you will never get custody, otherwise there will be bloodshed.
The mother commenced these proceedings on 14 July 2016 seeking, inter alia, that the children live with her.
The children commenced living with the mother and spending time with the father following the Court’s interim orders to that effect on 3 November 2016.
After this, the mother says that X regularly complained that she did not want to spend time with her father.
In late 2016, the mother says that she agreed for the father to drop X to a party at night. The father subsequently picked up X from the party and unilaterally retained her overnight without the mother’s consent and in breach of the interim orders.
Some days later, after weekend time with the father, the father unilaterally retained X and returned Y to the mother’s care. The mother called the police to conduct a welfare check on X.
On 10 February 2017, the mother facilitated additional time for the father to spend with the children until 7:00pm on 11 February 2017. The father subsequently unilaterally retained both children until 15 February 2017. The father did not send X to school on these days.
On 18 May 2017, the mother wrote to the father through her solicitor seeking that his time with Y on 27 May 2017 be amended so Y could attend a party she was invited to. The father did not agree with this proposal.
In late 2017, the parties could not agree on the high school to send X to. The parties agreed a short time before X was due to start high school that she would attend J School.
The father sent a letter dated early 2018 to a government department making a complaint that the mother had stolen items from the place she worked at. No action was taken against the mother as a result of the letter and she denies the allegations. The father maintains that she did steal these items.
In the school holidays in 2018, the mother travelled to the United States. The mother informed the father of this travel and that her sister would be caring for the children during the second week of the holidays when the children were in her care in accordance with the interim orders. The father unilaterally retained the children and did not deliver them to the mother’s sister.
The father says that after separation:
[X] said to me: “Mum and [the mother’s sister] pushed us to Church to change my name.”
And that:
The children’s religion is Islam. [The mother] wanted to change their religion to Christianity and to change [X’s] name to [W].
2019 Incident
In early 2019, the children spent overnight time with the father.
The next day, the father dropped X to school.
The mother says that after she picked X up from school that day, X told her it was her worse day ever. The mother then says that X said to her:
[Y] told dad that I said I want him to go back to his country, then dad threatened me with [a weapon], I was crying and screaming help help. Dad was angry with me when I was screaming. He hit me with his hand on my shoulder and asked why I said that about him.
After this conversation, the mother received a telephone call from X’s deputy principal to discuss the incident. She also called the Department of Family and Community Services and the police to report the incident.
The police attended the mother’s residence and interviewed X. The police told the mother that they would be applying for an urgent Apprehended Domestic Violence Order (“ADVO”).
The mother says that after the incident X told her that she no longer wanted to be a Muslim.
A provisional ADVO was made against the father for the protection of the mother and the children in early 2019. A final ADVO was made in mid-2019. The final ADVO expired in mid‑2021 and ordered, inter alia, that:
(a)The father must not approach the school or childcare of the children;
(b)The father must not go within 200 metres of any place that the mother or children live or work; and
(c)The father must not go within 200 metres of K School, J School or the mother’s residence.
In mid-2019, the father was convicted by a Local Court of New South Wales of two offences. X gave evidence against the father in the proceedings. He was sentenced to a community corrections order.
The father appealed these convictions to a District Court of New South Wales. In early 2020 the appeal was dismissed and he was sentenced to a community corrections order commencing in early 2020 and expiring in early 2022.
The Family Report was prepared prior to the 2019 Incident. The Addendum to the Family Report dated 17 February 2022 was prepared after. The report writer says this about the mother’s impression of the 2019 Incident in the Addendum:
[16]When [Ms Maynard] was asked about the incident in [early] 2019, she reported that [X] “thought she was going to die” when [Mr Frye] threatened her with [a weapon] and identified, when asked, that this incident has had a “really massive effect” on [X] and was “really, really traumatic to her.”….
The report writer says this about X’s impression of the incident in the Addendum:
[24]…. [X] clarified that, while spending time with [Mr Frye], he “got mad at me for saying something” about wanting him to “go back to his country” and he entered her bedroom, where she was sitting, and threatened her with [a weapon]. [X] reported that “I was screaming”, “I started crying”, and that she “felt like I was about to die at that moment” due to [Mr Frye] moving the [weapon] back and forth close to her face and making threats to kill her and “the whole [Maynard] family” and comments that she was turning evil like your mother”
…….
[26][X] described ongoing difficulties following [Mr Frye] threatening her with an […] and subsequently approaching her, including nightmares about “my dad trying to chase me, chase after me” and concerns that “I’m being followed” when outside school and when out with her friends….
Y also appears to have knowledge of the incident. The report writer says in the Addendum that:
[33][Y] confirmed that she is not spending time with [Mr Frye] and said that this is because “he scares me a lot and he frightened me”. She reported that, on one occasion, she was watching television when [Mr Frye] hid the [weapon] behind his back and was then “putting the [weapon] up on [X]”. She stated that she did not really hear that much of the incident but reported [Mr Frye] was “shouting” at [X], including telling [X] “I want to kill you with this [weapon]”. [Y] said that, when [Mr Frye] threatened [X] with [a weapon], she felt “really scared and bad for my sister because I don’t want my sister to die” and said that she was “shaking” while sitting on the couch while [Mr Frye] was threatening [X]. [Y] confirmed that she had thought [X] would die during this incident “because [Mr Frye] was, like, holding the [weapon]” and she is aware that “some people kill people with the [weapon]”.
The father declined to participate in an interview regarding the Addendum.
Despite his conviction, the father had originally, in these proceedings, denied that the incident ever occurred and denied that he was threatening or intimidating towards X. He further speculated, in his sworn evidence, that X made up the story because she did not want to be a Muslim any longer.
The Court granted leave on the first day of the hearing for the father to lead further evidence-in-chief regarding this incident. The father proceeded to give oral evidence that his prior written evidence was incorrect and that in early 2019, the father did go into X’s room and said to her:
Why you tell lie that I want to go to [Country C] ….. Next time you tell that one I will kill you and I will kill your mother.
The father denied that he used any object when he made these threats to X. The father maintained that he did not try to harm X and would never have carried out the threat.
Notwithstanding this admission, it was put to the father that he had given previous evidence and told experts that he had never been violent to the mother or children. In response, the father stated that he is not a violent person. When pressed, the father admitted that the threat did constitute violence.
Unsurprisingly, the father’s further oral evidence in chief during the hearing was subject to much cross examination under which the father said, inter alia, that:
(a)He was convicted of an offence without any evidence supporting the conviction. When it was pointed out to the father that his daughter, X, had given evidence against him in the criminal trial, the father clarified that there was no independent evidence to support his conviction;
(b)X lied about the incident;
(c)The mother had made X lie about the incident;
(d)He had never before told anyone that he did threaten X, because he did not use a weapon and
(e)X would not have been scared by the threat because she would not have taken it seriously, but that it was his intention to scare X when he made the threat.
After the 2019 Incident
Since this incident, the children have lived with the mother in Suburb H and have spent no time with the father.
The Suburb H residence is shared with the mother’s sister. The mother does not pay rent. The mother has her own room and the children share a bedroom. The mother’s sister appears to be quite involved in assisting the mother with the care of the children.
At the time of the hearing the father lived in Suburb L which is a short drive from Suburb H.
The mother continues to work as a health worker and has an income per fortnight of approximately $2,400 after tax.
The father pays child support in the sum of approximately $35 per month which is deducted from his Centrelink welfare benefits.
In early 2020, the father says that he was diagnosed with an adjustment disorder by a psychologist, Mr M. The father had psychological counselling in relation to this diagnosis. The father also says he has a number of medical conditions. In the same affidavit, the father deposes that he “[does] not have medical issues whatsoever.” In cross-examination, the father said that he has recently started suffering further mental health problems in the last two to three months but does not have a diagnosis and does not medicate to treat these issues.
In late 2020, the father attended Suburb N Police Station and provided police with a disc containing seven CCTV files of recordings in 2015 and 2016. The police say that the CCTV files show:
(a)That in mid-2015, the mother committed common assault and intimidation offences by, inter alia, threatening X with a metal spatula, engaging in a scuffle with X and pulling her hair;
(b)That on the same date, the mother committed common assault and intimidation offences by, inter alia, holding her hand out towards X, hitting X twice in her leg area with a towel, threatening X with a metal spatula and pulling X’s towel off her causing her to fall to the ground;
(c)That in mid-2016, the mother committed common assault and intimidation offences by, inter alia, waving a wooden spoon towards X and striking her on the leg and the hand; and
(d)That on the same date, the mother committed the offence of common assault by hitting X with a plastic ruler on her shoulder and arm and by subsequently holding X.
Under cross-examination, the father stated that the reason for the approximate 5 year delay in reporting the matter was because he did not want an ADVO issued against the mother at the time as he thought this would result in him having to be a single parent.
The father subsequently provided a signed witness statement to police in late 2020.
The following day the mother attended Suburb N Police Station and participated in an interview. The police say that the mother believed her actions were disciplinary in nature.
The mother was charged with several offences.
The mother pleaded guilty to all charges on the first occasion and all charges were dismissed without conviction in accordance with s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
A final ADVO was made against the mother for the protection of X in late 2020 that expired late 2021. The ADVO restrained the mother from assaulting or threatening X, stalking, harassing or intimidating X, or intentionally or recklessly destroying or damaging any property that belongs to X.
The mother says that:
The Presiding Magistrate was aghast at the evidence that the Father kept cameras in the home and clearly had used this evidence against me in Court.
…..
I have shown contrition and remorse and apologise for my actions unreservedly. I was subject to an AVO [Apprehended Violence Order] for twelve (12) months thereafter and have not breached the Order in circumstances where my daughter was living with me
In a letter addressed to the ICL and the mother’s solicitor dated 27 September 2021, the father says that during a Court appearance he:
…was trying to inform the judge about current circumstance of my children, unfortunately Judge did not response of my call. I believe that was a technical problem done by Terrorist [Ms O] and the Court Registry
Regarding this incident, in a letter dated 18 January 2022 to the family report writer, the father says:
[In] 2021 I was attending to the FCC […] with a telephone link hearing for 48 minutes but the court registry and Legal Aid lawyer [Ms O’s] conspiracy and interfering that shutdown speaker phone during time of court hearing, therefore no communication has been made between me and the Judge Obradovic and I was unable to get permission to see my children as yet. The Legal Aid Commission of NSW supporting the Christian mother and against the Muslim father and they don’t want that I could meet my children. [sic]
The father was cross-examined on his statement that Legal Aid has a bias against Muslim fathers and the father said that he maintains the views he expressed in the early 2022 letter.
The father deposes that until mid-2021, he was too scared to spend time with the children as he did not want to breach the ADVO.
In mid-2021, after the father had learnt that the ADVO had expired, he attended X’s school to see her. The father says that the mother was present and screamed at X to “get in the car, NOW, don’t talk to him.”
The report writer in the Addendum says of this incident:
[23][X] said that, while she has not spent time with [Mr Frye], she saw him in 2021 when he attended her school and attempted to speak to her. [X] identified that she “got really scared” when she realised [Mr Frye] was present and reiterated that this was a “really scary experience.”
Both parties deny that they have encouraged the children to change their religion.
Expert Reports
Before the Court is a Family Report dated 27 November 2018, an Addendum to the Family Report dated 17 February 2022 and a report by psychologist Dr P that was released to the parties on 10 November 2022. All expert reports were uncontested.
Family Report dated 27 November 2018
The Family Report was made when the children were living with the mother and spending weekend, weekday and school holiday time with the father.
The parties were both extremely critical of each other’s parenting capacity and made allegations that the other party perpetrated family violence during the marriage and that the children are at risk in their care.
Y identified that the parents fought and she referred to X as W. Y generally communicated a positive relationship with both parents and was not concerned about primarily living with either parent.
X was positive about both parents when speaking to the family consultant but reported that they were both overprotective. She stated that she does not have a preference regarding being called X or W. X reported that the reasons the parties separated was because of the mother’s infidelity. She said the father “kept telling me there’s this guy that my mum likes.” X could not recall her mother being violent to her however she was aware of this because the father had shown her videos of it happening. X’s preference was to live in a week about arrangement with both parents.
The family consultant observed that both parties appeared to engage well with the children however both struggled to resolve conflict occurring between the children. It was nonetheless evaluated that the children had a positive relationship with both parties. Notwithstanding, during interviews and observations, it became apparent that both children exhibited, at times, challenging, defiant and aggressive behaviour towards both parties.
The family consultant had concerns that the father had attempted to influence the children’s views in regard to parenting arrangements and subsequently did not give any significant weight to their views. The family consultant further had concerns that the father had attempted to undermine the children’s relationship with the mother, and that this may be psychologically abusive and risk the children’s psychological wellbeing when in his care. It was noted that the father may not facilitate a meaningful relationship with the mother if the children lived with him.
The family consultant also had concerns that the father appeared to be fixated on the mother re-partnering, despite being told that this was not relevant and in circumstances where the mother had denied that this was the case.
The family consultant noted that both parties had alleged coercive and controlling behaviour by the other, but that the mother’s allegations were of a “higher level of potency.”
Ultimately, the family consultant recommended that, inter alia:
(a)The parent with whom the children live have sole parental responsibility because of the high conflict relationship characterised by a lack of trust between the parties;
(b)Unless there is veracity to the father’s allegations, the children live primarily with the mother;
(c)If there is veracity to the mother’s allegations, the children spend no time and have no contact with the father; and
(d)If there is no veracity to the mother’s allegations, the children spend time with the father on alternate weekends and for half school holidays.
The Family Report was delivered almost four years prior to the final hearing and before the 2019 Incident.
In a letter to the ICL dated 15 January 2019, the father says:
The family report is fraud; the family consultant [Ms Q] didn’t include many important issues which I was told her during the conference
Addendum to Family Report dated 17 February 2022
The Court ordered an Addendum to the Family Report on 17 September 2021. The addendum was released to the parties on 28 February 2022.
The Addendum was completed after the 2019 Incident when the children lived with the mother and spent no time with the father.
The father refused to participate in any interviews with or provide any materials to the family consultant for the purposes of the preparation of the Addendum. The father, in his evidence, appears to say that he did not refuse to participate but that he wanted a face-to-face interview rather than a video interview which was not possible in the circumstances. Notwithstanding, in a letter annexed to the father’s trial affidavit dated 18 January 2022, he said to the family consultant:
However, I have rejected your call for update the family report [sic] at present five weeks before the final hearing which is unfair under the current circumstances. We have already family report had been done by the court [sic] on 27th of November 2018.
The mother reported that X had been significantly affected by the 2019 Incident but that the children had developed positively since ceasing to spend time with the father. The mother said that the children do not want to spend time with the father and that X is now old enough to make a decision for herself as to whether she has no contact with her father. The mother reported that X has chosen to attend Christian, rather than Islamic, SRE classes and has encouraged Y to do the same.
X, being 15 years of age when interviewed, wanted to be called W whilst being interviewed and expressed that she wants to have her name changed to ‘W Maynard’ so that she has a connection with her mother’s family, who she identifies with and so she has no ongoing connection with the father. She expressed that she was afraid of the father and had nightmares about him chasing and following her. X said she was now aware that the father had manipulated her into thinking that her mother was not a good parent when she was younger. X was positive about her relationship with her mother and her current living arrangements, and that she does not want to spend any time with the father. On the issue of religion, X said she currently identifies as a Christian and that she believes the father forced her to be a Muslim when she was younger.
Y, being 9 years of age when interviewed was also positive about her current living arrangements and her relationship with her mother and sister. Y also reported that she was afraid of the father, however this appears to derive from her perception of the 2019 Incident involving X. Y said that she loves her mum and dad and has positive memories of spending time with the father. Notwithstanding, Y said she does not want to spend any time with the father because she is concerned he will take her and tell her not to like her mother which she says he had done in the past. After clarification, Y said she would feel “more safer now” by not spending any time with the father. Y also identified as a Christian and says that she attends church with her family where she feels blessed and safe. She stated that her father would be angry if he knew she was a Christian and not a Muslim.
The family consultant evaluated that the children had a positive and established relationship with the mother and that this relationship had improved since the Family Report. Notwithstanding, the family consultant said that the children’s views were suggestive of the mother continuing to expose the children to the parental disputes.
The family consultant observed that the children have become less recalcitrant since the Family Report and that this may be because they no longer feel like that have to align with the father’s hostility towards the mother. The family consultant stated that it appeared that spending no time with the father had a positive impact on the children’s relationship with the mother.
The family consultant observed that the children’s relationship with the father had significantly deteriorated. It was suggested that X may have PTSD from the 2019 Incident and that her spending any time, or having any contact with the father, could expose her to further harm. Y was not observed to be experiencing trauma from this incident despite being aware of it. The children spending no time with the father was not observed to have any detrimental impact on their wellbeing.
Ultimately, the family consultant recommended that:
(a)The mother have sole parental responsibility;
(b)The children live with the mother; and
(c)If there is veracity to the allegations that the father abused and threatened the children and perpetrated coercive and controlling family violence against the mother, the children spend no time with him and that he be restrained from contacting the children in any way.
Report of Ms P received by the parties 10 November 2022
On 7 March 2022, the Court ordered the parties to engage in family therapy with Dr P for the purpose of exploring re-establishing a relationship between the father and Y.
Dr P met with the father on two occasions, the father and Y on one occasion, the mother and Y on three occasions and the mother, Y and X on one occasion.
The father maintained that the mother was a risk to the children and denied that he had ever been violent towards the mother or the children. He denied that the 2019 Incident occurred.
In light of his partial oral admission on the first day of the hearing that he did threaten X in early 2019, it was put to the father in cross-examination that it was important to tell Dr P the truth, which he accepted. The father’s subsequent explanation regarding why he did not tell Dr P about the threat without the weapon was that she did not specifically ask about whether he threatened her without a weapon.
The father was also cross examined on his statement to Dr P that he had never been abusive towards the children in light of this oral admission of the threat. The father said that he did not consider the threat abuse because he was angry at the time of the incident and had not intended to carry out the threat.
The mother made allegations of family violence and coercive and controlling behaviour against the father. She sought to minimise any violence she had perpetrated towards the children. The mother said that she wanted Y to have a relationship with the father but was afraid he may not return her.
Y stated that she was scared of her father because he had threatened to take them to Country C and not return. She also said that her father wanted them to be Muslim which is not what she wanted. She accused her father of withholding their passports and scratching the mother’s sister’s car. Y said that if she was to spend time with the father, he should be more friendly, not make threats to kill them and not stalk them. Y said she did not love the father.
Y and the father were observed together by Dr P. They were observed to exchange polite conversation. The father was observed to comment to Y that he had never hurt his children and made reference to the 2019 Incident, which Dr P subsequently told him was an inappropriate topic of conversation. The father gave Y gifts for her and X as well as some belongings from her room. The pair spent 40 minutes together in total and at the conclusion, the father asked for a hug which Y declined.
When cross examined about Dr P’s observation that the father talked to Y about the 2019 Incident, the father said that he had never talked to Y about the incident and that Dr P lied about this in her report.
After this observation, Y said that she did not want to see the father again and that she wanted the father to leave her, X and the mother alone. She said that she did not want to be a part of his life and cried driving home with the mother from the observation.
In cross-examination, the mother gave evidence that Y was extremely uncomfortable, shaking and crying after her interaction with the father with Dr P. It was put to the mother that her own anxiety and hypervigilance about the father may have influenced Y to also be anxious and fearful of seeing him. The mother accepted that Y may understand the mother’s concerns, but that ultimately she had made her own decision about the father. The mother specifically denied talking to Y about the proceedings and said that she had told the children to respect their father.
Dr P ultimately recommended that:
It is difficult considering the history of the matter and the resistance [Y] would feel from her mother and sister how realistic it will be for [Y] to have a relationship with her father.
COURT’S DETERMINATION
Not all of the s.60CC considerations have been addressed in these Reasons for Judgment. This is not because they have not been considered, but rather because they were of little weight in the relevant circumstances.
The parents live in relative proximity to each other and there is no evidence that there would be any practical difficulties associated with expense, for time to occur between the children and the father.
The father pays minimal child support, while the mother otherwise financially supports all of the children’s needs.
The father is Muslim, and from Country C. The mother is Christian, and from Country B. The children presently appear to identify as Christian, although they were practicing Muslims in the past.
While each of the parents appears to have some shortcomings, particularly in understanding family violence, the mother is by far, the more capable parent, the one with a much higher level of insight and the one who can meet the children’s needs.
It is clear that post-separation, the mother was struggling with the consequences of the breakdown of the relationship, and the violence she says she experienced at the hands of the father. The mother had taken note of her own excessive discipline of the children in the past, and on all accounts changed her approach.
The Court recognises the contributions the father made in parenting the children, during the parties’ relationship, post separation and until February 2019.
However, the father, while the children lived with him post-separation, was manipulative of the children’s feelings, and negatively influenced them against the mother. He spoke to them about inappropriate adult matters, trying to get them on side.
The children were able to maintain a good and relatively meaningful relationship with each of their parents until the 2019 Incident. There were of course difficulties, but by and large, the children managed to navigate the waters of their parents’ high conflict situation in a fairly mature manner.
X is now 17 years old. She is a mature and intelligent young woman. She knows what she wants in terms of her relationships with her parents.
Y is 10 years old. She has been clear in expressing her views that she does not want to have a relationship with her father.
The children have strong and meaningful relationships with the mother and the extended maternal family. They have a strong sense of family and a strong sense of support in the mother’s home.
The children have a fractured relationship with the father. X’s relationship at present appears to be beyond repair, although in future, there may come a time when she is strong enough and willing enough to put out an olive branch. It is entirely understandable why it may take her some time to even consider thinking about such matters.
In respect of Y, the expert opinion is that in the current circumstances, it is not realistic for Y to have a relationship with her father. This is so due to the history of the matter and the resistance from the mother and X which Y would feel. The father proposes that Y spend time with him on a supervised basis. While there is some authority that a long-term supervision order may be made, in the circumstances of this case, the Court does not consider that such would be in Y’s best interest.
The risk to Y of emotional harm, if she was to spend even supervised time with the father is unacceptable. This is not only because of the potential for manipulation by the father, albeit such risks would be minimised with supervision. However, even during the session with Y before Dr P, the father could not contain himself and attempted to persuade the child that he had never hurt them. The father simply has no insight.
It is also because of the impossible position Y would likely find herself in noting her mother’s and sister’s negative feelings and resistance to the father.
The father has continued to minimise his behaviour and the negative impacts the 2019 Incident has had on the children. The father continues to deny that he has ever threatened or harmed the children or the mother.
The evidence is such, that the Court finds the father has engaged in family violence. This is also consistent with the interim judgment where the Court found that the father had engaged in coercive and controlling behaviour within the meaning of family violence in s.4AB of the Act.
The Court finds that the father did threaten to harm X during the 2019 Incident and that he did threaten to harm the mother on more than one occasion. The Court accepts the mother’s evidence in respect of family violence as detailed in these Reasons for Judgment.
On all accounts, the father appears to have been compliant with the terms of the ADVO whilst it was in existence. The mother and the ICL submit to the Court that there should be a restraint on the father pursuant to s.68B, in similar terms to the ADVO that had previously been in place. The Court is satisfied that the order as sought is in all of the circumstances an appropriate and necessary safeguard, noting X’s stated fears of the father. This will provide the mother and the children with a peace of mind that they had during the duration of the ADVO.
In all of the circumstances, and noting the findings of family violence, the presumption of equal shared parental responsibility does not apply in these proceedings. The parents have not been able to have any meaningful communications for many years, and they are at odds in respect of a whole lot of matters.
The father conceded at the conclusion of the final hearing, that the mother should have sole parental responsibility for the children and that the children should live with the mother. Such orders will be made.
The Court is not satisfied that any orders for the children to spend time with the father at present are in their best interest. If such an order was made, the children would be put in harm’s way, such risk being unacceptable. Given the father’s behaviour in front of Dr P, the Court does not have any comfort that the father would behave appropriately even if supervised.
To have Y go through the angst of navigating the negative feelings towards the father in her household, with a view to spending time with him, only to have him potentially try to convince her that he is innocent of his abusive behaviours, would put too much of a burden on Y, with little to no potential benefit to her.
It is therefore appropriate that there be an order for no time.
The ICL has proposed an order that leaves the door open for the children to contact the father in the future, which is an appropriate order to be made, and which will be made.
COSTS
The ICL sought their costs in the sum of $12,797 to be shared equally by the parties.
The ICL submitted that whilst both parties appear to have financial difficulties there are avenues that the parties can take to ameliorate these vulnerabilities even if an order is made for costs, including seeking a waiver of costs from Legal Aid or entering into a payment plan. The ICL noted that if no order for costs is made, it is the taxpayer who will pay the costs of the ICL.
The mother sought her costs of and incidental to her initiating application.
Counsel for the father submitted that he is on Centrelink welfare benefits and only works part time. The father conceded that the orders he sought only changed on the first day of the trial.
The principles in respect of costs orders in family law proceedings are well known. The starting position with respect to costs, as set out in s.117 of the Act is that, subject to sub-section 117(2), each party to proceedings under the Act shall bear his or her own costs.
The Court is not satisfied that there are circumstances justifying the making of a costs order.
CONCLUSION
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Deputy Associate:
Dated: 30 March 2023
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