MEIER & MEIER

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEIER & MEIER

[2018] FCCA 3978

Catchwords:
FAMILY LAW – Parenting – sole parental responsibility – undefended hearing – self-represented litigant – allegations of family violence – views of the children – costs of the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 65DAA, 65DAC

Child Support (Assessment) Act 1989 (Cth)

Cases cited:

Harrison v Woollard (1995) 18 Fam LR 788

Re JJT; Ex parte Victoria Legal Aid (M74/1997) [1998] HCA 44

Allesch v Maunz [2000] HCA 40

Re R & R: Children’s Wishes [2002] FamCA 43

Mazorski & Albright [2007] FamCA 520

Gordon & Gordon [2015] FamCA 616

Applicant:

MR MEIER

Respondent:

MS MEIER

File Number:

BRC 8279 of 2017

Judgment of:

Judge Harman

Hearing date:

30 November 2018

Date of Last Submission:

30 November 2018

Delivered at:

Brisbane

Delivered on:

30 November 2018

REPRESENTATION

No appearance for the Applicant

The Respondent appearing in person

Counsel for the Independent Children's Lawyer:

Mr Cooper

Solicitors for the Independent Children's Lawyer:

N R Barbi

ORDERS

Discharge all prior parenting Orders with respect to the children [X] born … 2005, [Y] born … 2003 and [Z] born … 2001 (“the children”).
The children shall live with the Mother.
The Mother have sole parental responsibility for the children and not be required to confer with the Father regarding any long-term decision to be made regarding the care, welfare and development of the children.
Mr Meier shall spend time and communicate with the children at such times, and by such means and subject to such terms and conditions as may be agreed between the parents from time to time and not otherwise.
The children communicate with the Father at such times as the children may reasonably wish to instigate such communication, with the Mother’s consent and knowledge.
The Father communicate with the children at such times as the children are prepared to receive his communication with the Mother’s consent and knowledge.
This Order shall be an authority directed to the children’s school or school’s teachers, to provide each parent with a copy of school reports, school letters, school newsletters, details of school photographs and to discuss with either parent all matters pertaining to the child’s education and well-being, as they request from time to time and ensure that the school records include the Mother as the person to be notified when necessary of all school and emergency matters and the Mother as the person to solely make all decisions regarding the children’s educational future.
This Order shall be an authority directed to the children’s doctor or doctors and other medical and dental practitioners to provide each parent with all information including documents relating to the health of the child and to discuss with either parent all matters pertaining to the child’s health and well-being as they may request from time to time with the Mother to solely make all decisions concerning the child’s health and well-being.
Each parent be responsible for all costs of and incidental to obtaining a copy of any information or documentation they may request from time to time pursuant to orders 7 and 8 herein and each parent provide the school and doctor with their current contact details and address.
Neither parent will discuss adult issues or court proceedings with, or in the presence of, the children and the parents shall take all steps to remove the children from the presence of any third party engaging in such discussions.
During the times the children are with either parent that parent shall respect the privacy of the other parent and the children and not question the children about the personal life of the other parent or the household in which the children spend time.
In the event that they are not already doing so, each parent is to encourage and foster the children’s relationship with the other parent.
Without admission, neither parent abuse, insult, criticise or denigrate the other parent, their respective partners, their family or their friends or any other person, nor expose the children to the conflict between the parents, in the presence of, or hearing of, the children, and will use their best endeavours to ensure that no-one else does so, and will remove the said children from any environment where such behaviour is occurring.
In the event that a parent re-partners in a full-time live-in relationship they will participate in couples counselling to consider the adjustment challenges for adults and children on formation of a blended family unit.
Each parent shall keep the other informed of the details of the children’s treating doctors and other medical professionals and within seven (7) days of the date of this order, each parent will provide to the other, in writing and via email, a full list of treating doctors and other medical practitioners which the children are attending and for the purposes of same, each parent is authorised to provide a copy of these orders to those treaters.
Each parent shall advise the other as soon as is reasonably practicable, of any serious illness, hospitalisation, accident or medical emergency that relates to the child(ren) and the details of any treating doctors and medical facility the child(ren) is taken to. The parents are to follow the advice and treatment of the doctors until such time as the emergency has passed and as to all decisions to be made in consultation with the treaters, the treaters are to be told that the Mother has sole parental responsibility to make all decisions concerning the treatment that may be required. The parents are authorised to show the treaters a copy of these orders.
Each parent shall keep the other parent informed as soon as is practicable as to any significant medical or health related issue concerning the child(ren).
The Mother and the Father keep each other informed as to any changes in their email and contact telephone numbers and advise the other in writing within forty-eight (48) hours of any such change.
For the purposes of information exchange in accordance with these Orders, the parents shall register with a mobile phone communication application to advise of any:
(a)Time and communication arrangements for the children with the Father;
(b)Non-emergency medical, medication or dental needs of the children;
(c)Cost and requested contribution to any treatment required by the child as well as any and all school needs of the child and the account to be contributed by each party to such treatments and needs;
(d)Extra-curricular activities it is proposed the child attend together with the cost of and details of such attendance and the contribution requested as well as the agreement or otherwise of the other parent and the level of contribution to be made;
(e)Travel intended to be undertaken by the parent with the child; or,
(f)Such other events as affect the welfare of the child with the originals of the communication book, when full, to be stored with the child’s passport.
The Independent Children’s Lawyer to be discharged with the Court’s thanks.
Mr Meier shall pay the costs of the Independent Children’s Lawyer fixed in the sum of $8,632.05, such costs to be paid no later than close of business 28 December 2018 and failing payment by that date:
(a)The Independent Children’s Lawyer or Legal Aid Queensland shall be at liberty to commence proceedings in a Court of competent jurisdiction to recover that sum together with interest accrued there upon calculated from 28 December 2018 until the date of payment and costs of those proceedings;
(b)Interest shall accrue upon that sum from 28 December 2018 at the rate fixed by the Federal Circuit Court Rules 2001 from time to time.
Pursuant to rule 16.05 of the Federal Circuit Court Rules 2001, Mr Meier is entitled to make an Application to reopen the proceedings and be heard by close of business 28 December 2018.

IT IS NOTED that publication of this judgment under the pseudonym Meier & Meier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8279 of 2017

MR MEIER

Applicant

And

MS MEIER

Respondent

REASONS FOR JUDGMENT

These proceedings relate to future care arrangements for three young children:
a)[Z], born … 2001;
b)[Y], born … 2003; and,
c)[X], born … 2005
[Z], [Y] and [X] are the three youngest children of the parties, namely, Mr Meier, the applicant father, and Ms Meier, the respondent mother.
The children also have an elder brother, Mr A, who is now over 18, indeed 20 years of age.
Mr Meier, as the applicant, does not participate in the proceedings today. That is to be expected. Mr Meier filed a Notice of Discontinuance on 8 November 2018, discontinuing all claims for relief in the proceedings.
Ms Meier appears today and seeks orders in relation to the children. Ms Meier seeks orders for sole parental responsibility and an order that the children live with her. A number of consequential orders are also sought.
The relief sought by Ms Meier is supported by the Independent Children’s Lawyer who represents the best interests of these children.

Material considered in dealing with the proceedings today

I have read and considered each of the documents that are filed by Ms Meier and as are identified in the case outline of the Independent Children’s Lawyer. I have also read and considered a report dated 3 April 2018 and an addendum report dated 3 October 2018, both of which reports feature prominently, by quotation, in the Independent Children’s Lawyer’s case outline document, and explicably so.

Due process

If the matter is to proceed on an undefended basis I must be satisfied that it is appropriate that it be so, both by reference to due process and the children’s best interests.
As Forrest J discussed in Gordon & Gordon, paragraphs 3 to 5 thereof:
(3)     Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice, namely the right to know what Court Orders are sought against you, the right to be heard in response, the age old principle that justice is administered in Courts open to the public and public scrutiny, and the right to know what Court Orders have been made against you.
(4)     Those rights stand alongside other important rights well known to this Court, particularly the rights of children to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the right of a child to receive adequate and proper parenting to help them achieve their full potential.
(5)     In the exercise by this Court of its jurisdiction to make parenting Orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sometimes the paramountcy of that consideration brings about tensions between all of the rights and the principles of natural justice that I have referred to, and, in exceptional circumstances, that paramountcy means that some rights must be determined to prevail over others.
The paramountcy principle, as it is often referred to, as created by section 60CA, dictates that the child’s best interests are the paramount consideration for all purposes, including procedural orders or determinations as to the conduct of proceedings.
As the High Court has discussed in Allesch v Maunz [2000] HCA 40, due process must be afforded to all litigants. It is a fundamental and essential aspect of judicial process. Importantly, however, the High Court was clear that what is required to afford due process in any given case is determined by reference to the facts and circumstances of that case.
In this case I am satisfied that the matter can and should proceed on a final and undefended basis.
Mr Meier is clearly aware of the proceedings. He is the applicant and he commenced the proceedings. Ms Meier may well not have approached the Court but for her requirement to respond.
Mr Meier could not be described as an unsophisticated litigant. His professional background makes clear that he would be fully aware of the consequence of his discontinuance of the proceedings and fully aware of the probability that, should Ms Meier, or the Independent Children’s Lawyer, continue to press the Court for relief, that such relief, would, in all probability, be granted.
Mr Meier has clearly had notice of the proceedings. He is aware of today’s return date. He is also aware of the process that would be followed upon his discontinuance.
In those circumstances, I am satisfied that it is entirely appropriate to proceed with the matter today. The best interests of these children require and deserve finality. In this case finality and justice correspond.
The evidence in this case clearly supports the orders that are sought. I do not propose to relate that evidence in detail within these reasons. Suffice to observe two matters:
a)Firstly, Ms Meier’s evidence is unchallenged. Ms Meier’s evidence is plausible and internally consistent. Accordingly, I accept her evidence in its entirety as more probably correct than not;
b)Second, I incorporate herein the chronology of events set out in the case outline document of the Independent Children’s Lawyer’s. That case outline document addresses all relevant circumstances and events for the purpose of this determination. The chronology sets out a mutualised version of events and is not, in any way, partisan. Further, it is extensive and of great assistance.

… 1973	Father born in Country B
… 1974	Mother born
1974	Father emigrates to Australia
1998	Parents commence living together – Father’s case
1998	Parents commence living together – Mother’s case
…1998	Parents marry
…1998	Mr A born (over 18)
… 2001	[Z] born (17y2m)
… 2003	[Y] born (15y6m)
… 2005	[X] born (13y6m)
10.07.2013; 30.01.2014; 08.04.2017; 10.07.2017	Father strikes [Y] on multiple occasions leaving marks on her bottom
2015	[Z] and [Y] change schools from School C to School D
2016	[X] moves from School E primary school to School D
12.2016	Father goes to Country F on solo trip
11.03.2017	Father verbally abuses [Z]
08.07.2017	Parents separate – Mother leaves home with the children Mother alleges father’s behaviour is intimidatory and manipulatory
07.2017	Mother makes arrangements for children to telephone Father
11.07.2017	Father telephones university Mother attends seeking Mother’s timetable
12.07.2017	Mother makes application for DVO at Suburb G; Father makes application for DVO Suburb H 17.07.2017 – mutual temporary orders made against each
14.07.2017	Mother provides Statement to Police deposing to stalking behaviour of Father on 13.07.2017 and 14.07.2017
17.07.2017	Father files DVO against the Mother (Suburb H) Temporary Protection Order made against Mother on Father’s Application Notice of Adjournment issued by Suburb H Magistrates Court adjourning application to Suburb G on 23.08.2017 Father commences ADR process with a barrister
19.07.2017	Mother served with father’s application for DVO against the Mother Father served with Mother’s application for DVO against the Father
09.08.2017	Father commences proceedings FCC
23.08.2017	Mutual temporary protection orders made against each party Suburb G Magistrates Court
03.09.2017	Mother makes arrangements for children to be at paternal grandparents for Father’s Day. Father fails to attend
26.09.2017	Mother commences mediation process through Family Relationships Centre
27.09.2017	Mutual consent orders entered into by parties – Suburb G Magistrates Court DVO proceedings. Orders valid for one year. Order relating to Father longer than the Order relating to the Mother
16.10.2017	First return date of Father’s application FCC; Interim order for children to live with the mother and spend time with the Father; parents to attend FDRC at Family Relationships Suburb J; orders made for handover location and attendance with Family Consultant pursuant to section 11F Family Law Act
21.10.2017	First overnight time per orders, time does not occur as Father fails to attend handover and is not contactable
25.10.2017	Father advises not able to see children as scheduled on 28/29.10.2017, requests change of date to 31.10.2017
28.10.2017 & 29.10.2017	[X] tells the Mother she has started self-harming, as of the previous evening; [X] self-harms
30.10.2017	Father fails to attend rescheduled time with children, paternal grandmother takes children to Father’s residence, Father fails to attend
31.10.2017	[X] self-harms at school
04.11.2017	Father sends messages to Mother through [Z], Father’s behaviour at carpark where handover to occur causes concern and Father fails to spend time with children
11.11.2017	Father abuses children regarding handover arrangements, [Y] and [X] go with the Father, Father does not engage with them during time
18.11.2017	Father attends handover date, does not respond to text messages about children’s health, verbally abuses girls Mr A removed from Father’s residence to Mother’s residence due to Father instigating fights
25.11.2017	Father changes handover arrangements just prior to handover, father does not see children for weekend
28.11.2017	Father advises not able to spend time with the children on 02 and 09.12.2017 due to concert
11.12.2017	Ms K undertakes Child Inclusive Conference interviews 11F report prepared following interviews. Both parents attend. Issues identified: father’s capacity to be available to the children, the children’s relationship with their father, whether the mother is deliberately blocking time, capacity of parents to share decisions and communicate Consideration of psychiatric assessment of each parent suggested. Risk factors: family violence, mental illness, co-parenting of parents. Observations/assessments: children are of an age to vote with their feet; reduce time for children with father; father has been cancelling visits more than he suggests; mother has been “perpetually making the compromise”; Family Report be prepared with psychiatric assessment. Father said report writer intimidating; suggestion made for another report writer to be involved
21.12.2017	Second return date of father’s application. Orders made by Judge Spelleken ICL appointed; Family Report ordered Consent Orders reached reducing father’s time with children after 11F report
24.12.2017	Father fails to attend time with the children. Mother arranges for paternal grandmother to take children to Father
25.12.2017	Father fails to spend time with the children
30.12.2017 & 31.12.2017 & 01.01.2018	[Z] & [X] spend time with the Father three dates arranged as per order
07.01.2018	First weekend time Father and children are to spend together. Father fails to attend and seeks to change weekends
10 & 11.01.2018	Father repeatedly calling children on their mobiles. Mother encouraging to speak
20.01.2018	Children to spend time with the father, handover at paternal grandparents but father fails to return to collect children. Children spend time with the grandparents
04.02.2018	Children to spend time with a father
18.02.2018	Children to spend time with Father, Father fails to take [Y] to work, Father takes girls to paternal grandmother’s residence with grandmother taking [Z] to work
26.02.2018	Mother sends Father invitation of [Z]’s formal
11.03.2018	Rescheduled time for children with Father, Father re-schedules
18.03.2018	Reschedule time for children with Father, Father re-schedules
28.03.2018	Mother sends photographs to Father of [Z] dressed for boyfriend’s formal
03.04.2018	Father advises family that next available date for him to see children is 03.06.2018 due to stalking charge
03.04.2018	Family Report completed by Dr L; father failed to attend appointment Recommendations: children live with mother; time with Father one full day per month, not overnight, at paternal grandmother’s residence; Father engage in parental training; Father attend youngest child’s psychologist; both parents complete Parenting Orders Programme
08.04.2018; 24.04.2018; 28.04.2018; 19.05.2018; 03.07.2018; 05.07.2018; 04.08.2018; 01.09.2018; 14.09.2018; 06.10.2018; 03.11.2018	[X] attends appointments with Psychologist/Psychiatrist
15.04.2018	Father cancels time with children
16.04.2018	Stalking charge against Father, in relation to behaviour towards Mother, scheduled to commence for 3 days
17.04.2018	Hearing before Judge Spelleken. Decision reserved
21.04.2018	Mother completes Co-Parenting Workshop Conflict and Communication
29.04.2018	Father messages Mother to have children available for 9.00am, no further message and no attendance, Mother not well and does not see message until later
08.05.2018	Mother emails Father re: change for weekend of Mother’s Day. Father fails to respond
… 2018	[Y]’s birthday, no contact from Father
14.05.2018	Father found guilty of unlawfully stalking the Mother. Fine $4,000, no conviction recorded due to lack of criminal history. Father told by Presiding Magistrate to inform Employer of guilty verdict
… 2018	[X]’s birthday, no contact from Father
26.05.2018	Father cancels time for following day
29.05.2018	Judgment handed down after reservation of same on 17.04.2018 Orders for time (21.12.2017) discharged with new arrangements made for third Sunday for each month, at paternal grandparents’ residence; parents attend Parenting Order Programme; Father to attend Triple P Positive Parenting Programme; Father to engage with [X]’s psychologist; Father to engage with a psychologist/treating professional; Father to attend further appointment for Family Report interviews Trial directions issued
… 2018	Mr A turns 20. No contact from Father
17.06.2018	Father and [Y] and [X] spend some time together, Father does not engage. Father fails to respond regarding arrangements for [Z] and [Y] to attend work commitments
06.07.2018	Mother learns Father has disposed of furniture items she wanted for children
10.07.2018	Mother files for Divorce
15.07.2018	Father fails to spend time with the children
01.08.2018	Father pays bond and rent for 2-bedroom apartment at Suburb M which commenced on 13.07.2018. rent is $730 per week/$2,920 per month
15.08.2018	Mother attends [Y]’s set plan for school subjects
19.08.2018	Father fails to spend time with children Takes [Z] and [Z]’s boyfriend to dinner to meet his girlfriend
02.09.2018	Children attempt to contact Father for Father’s Day, no response. Father has not contacted the children about Father’s Day, [Y] and [X] do not wish to see the Father for Father’s day, text message sent wishing happy Father’s Day, no response received
07.09.2018	Father calls [Z] and Mr A to invite to dinner following night, to meet girlfriend
08.09.2018	All children have dinner with Father and Father’s partner
11.09.2018	Father texts [Z] to organise dinner the following night. As with previous occasions, Father bypasses Mother regarding arrangements
12.09.2018	Father refuses to communicate with Mother via text message, [Z] refuses to attend dinner
16.09.2018	Father fails to spend time with children
28.09.2018	Mr A, [Z] and [X] go to dinner at Father’s residence with Ms N and her daughter
03.10.2018	Addendum to Family Report completed by Dr L Recommendations: children live with mother; mother have sole parental responsibility; children and father do not spend time alone; father engage in parental training to improve insight; father attend child’s psychologist; parents attend Parenting Orders Programme; parents not to expose children to conflict
11.10.2018	Divorce granted by Federal Circuit Court
21.10.2018	Father fails to spend time with children
23.10.2018	School D Awards night. Father did not attend
31.10.2018	Mother receives message re [Z]’s non-attendance at school. Matters concern behaviour of Father about graduation from Grade 12. The Father contacted the school demanding an extra ticket for Ms N and was quite aggressive towards staff. School accommodates request for extra tickets due to concerns about the Mother attending on her own. School arranges for extra ticket for Mr A to attend for Mother’s safety/security. [Z] does not want Ms N attending
06.11.2018	Father owes Child Support Agency $4,981.79 for child support not paid
06.11.2018	Mother files trial affidavit
08.11.2018	Father files Notice of Discontinuance electronically
13.11.2018	ICL writes to parties regarding position and failure to service Notice of Discontinuance. ICL advises of need for orders to be made in this matter and places Father on notice that a Costs application will be made against him at the trial of this matter
14.11.2018	ICL receives service, by post of Notice of Discontinuance filed electronically on 08.11.2018
21.11.2018	ICL receives further sealed copy of Notice of Discontinuance by post
30.11.2018	Trial by Judge Harman

The fundamental aspect of the evidence, which cannot be overlooked, is the prominence of allegations of family violence suggested to have been perpetrated by the Father, not only towards the Mother, but towards the children. That evidence is abundantly clear from the above chronology, including the fact that the Father has been convicted of a family violence offence, to wit, stalking the Mother. That offence was found proven but no conviction recorded.
As indicated, I accept Ms Meier’s evidence.
Family violence is also apparent from that observed within the family report at paragraph 16. At that point it is observed:
All the children alleged that the Father has perpetrated emotional and verbal abuse towards them during and subsequent to the parental relationship, utilising punitive discipline towards them, physically intimidating and antagonising them.
At paragraph 18 of the report it is recorded that the children all felt uneasy and fearful of their Father at times because he was emotionally unpredictable, would start arguments and conflicts with them, and behave antagonistically.
The children were assessment by the report writer (paragraphs 59 and 62) as being mature and their views being genuine and reflective of their life experience, particularly their experience of their father.
In the same paragraphs the opinion is expressed that the children have suffered significant emotional pain and distress, directly or indirectly, as a result of their relationship with their Father, who has perpetrated family violence towards them, predominantly emotional abuse, has been repeatedly unavailable to them and has failed to prioritise their needs over his own.
The children’s views are expressed clearly within the report. They are happy living with their Mother and their elder brother. They are confident in their Mother’s ability to care for them. They are clear, indeed glowing, in their assessment of their Mother’s warmth and affection towards them, and her capacity as their Mother.
The Father, on the other hand, is assessed by the report writer (paragraph 39) as demonstrating a lack of insight into the needs of the children, a lack of emotional commitment towards them and spending time with them, a difficulty in managing his own emotions, a lack of regard for their opinions and being contemptuous towards the Mother. None of that bodes well for the Father’s relationship with these children. These matters may well have some lasting impact upon these children’s emotional functioning.
I do not propose to canvass the evidence in further detail. I will refer to specific aspects of it by reference to the legislative provisions which must be considered. Suffice to, again, observe that the Mother’s evidence is unchallenged and accepted in its entirety, including with respect to the allegations of family violence that are raised by her, that issue (family violence) being the central focus of the Court’s discharge of its duties under the legislation, appropriately so.
In turning to the legislative provisions, I must commence with section 60CA, which reminds the Court that, in all that is done, the child’s best interests are the paramount consideration.
I must have regard to the objects and principles in section 60B and which I incorporate herein.
(1)     The objects of this Part are to ensure that the best interests of children are met by:
(a)     Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)     Protecting the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)     Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)     Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)     To maintain a connection with that culture; and
(b)     To have the support, opportunity and encouragement necessary:
(i) To explore the full extent of that culture, consistent with the child’s age and development level and the child’s views; and
(ii)     To develop a positive appreciation of that culture
(4)     An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The objects and principles do not form part of the substantive law but assist in informing the Court’s interpretation and application of those provisions, as well as guiding the outcome that the Court should endeavour to achieve in any case.
The objects require that the Court ensure that the children’s best interests are met by ensuring that any orders made permit the children having the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. It is not an object that is without fetter or caveat, as the final words of the provision make clear.
The Court must assess what is best for the children and be guided, in determining the extent of a parent’s involvement, by the children’s best interests. The involvement that these children could experience of their father in their lives is very much tempered by the passages from the report that I have referred to above. These children are somewhat fearful of their father. They are concerned that their relationship with him is poor. The children are able to clearly and maturely articulate their views and the reasons for those views, based in their lived experience of their father, that experience being somewhat negative and disadvantageous to them.
As the father does not participate, it is not possible for his involvement with these children to be furthered or advanced, other than in broad and general terms.
I propose to make an order that the father’s time and communication with the children be at such times, by such means and subject to such terms and conditions as agreed between the parents from time to time. In light of the allegations of family violence, which I find proven, that circumstance is short of ideal. It requires that Ms Meier, as the victim of the father’s violence, (indeed the children having also been victims of that violence), be required to potentially negotiate with her tormentor, the perpetrator of violence towards her, in arranging for the children’s practise of relationship. That will be a matter entirely for her.
Whilst the order is expressed to provide for time as agreed, it does not compel Ms Meier to do anything. If she is not contacted, then it may be that she chooses to not contact the father, (although I am impressed with the mother’s commitment to these children and their best interests, including the need for them to maintain a relationship with their father, as it were, warts and all, and thus she will potentially, as academics such as Michael Flood opine, put herself in harm’s way, at least emotionally, to ensure that the children’s relationship is furthered and supported).
That situation is, however, the best that can be achieved. There is no means by which one could assess a more meaningful relationship between the children and the father or frame an order to further it.
The Court must ensure that children are protected from physical and psychological harm arising from exposure or subjection to abuse, neglect or family violence. In this case, it is a real consideration, the children reporting clearly that this has been their experience of their father. It is on this basis that the term “on such terms and conditions” is included in relation to any time that the children spend with their father. It will be a matter for Ms Meier to determine whether arrangements are safe and what conditions she requires to be so satisfied.
Ms Meier has indicated that there is some difficulty in an order being made in more specific terms, such as an order proposed in one incantation of the proceedings that the father’s time occur at a specific address with certain relatives. The father would appear to have had a falling out with those relatives and, thus, the order would be readily unenforceable, and impractical.
Ms Meier has indicated that the children’s eldest sibling, Mr A, might give some comfort and reassurance both to her and the children if he were attending. She will have control over the terms and conditions of the practice of relationship, and that is the best that can be done towards protection.
The Court must make orders to ensure that the children receive adequate and proper parenting. These children will receive abundantly adequate and proper parenting from their mother. She is a good mother. The children understand and believe it to be so, based in their lived experience. Ms Meier will do all that is required to ensure that these children receive what is best for them in life.
The Court must make orders that ensure that parents fulfil their duties and meet their responsibilities.
One aspect of the case which, regrettably, cannot be addressed, is a plea for relief in relation to payment of the children’s school fees. It cannot be addressed as it is outside of the Court’s jurisdiction. It is not an order that the Court can make as the three children are eligible children under the Child Support (Assessment) Act1989. The Court has no jurisdiction. The issue can be addressed by an application to the Child Support Registrar or by an application for departure made to the Court, which application would, of course, require leave and, thus, notice to the father.
There is little this Court can do that will ensure that the father meets his responsibilities and duties. The children certainly perceive and believe, based on their lived experience of their father, that he has failed in his fundamental duties to them, as created by the International Convention on the Rights of the Child. Within the preamble it is recognised that children “…should grow up in a family environment, in an atmosphere of happiness, love and understanding”
The father would appear to have taken certain steps that has rendered these children’s experience of childhood less than happy. These children have experienced their father’s anger, his disdain, and his contempt towards the mother.
No order is necessary in relation to Ms Meier to achieve the object. She gleefully meets the needs of these children and does so to a very high standard.
The principles underlying the objects create rights for these children. They are not absolute rights. They are subject to the caveat that they are neither enlivened nor practised when to do so would be contrary to the children’s best interests.
Subject to that caveat, children have the right to know and be cared for by both of their parents and to spend time and communicate with both of their parents on a regular basis. The difficulty in this case is that due to the father’s past behaviour, and his non-participation in the hearing, nothing more specific than the order already described can be formulated as regards the children’s practice of relationship with their father. Nothing more specific can be assessed as appropriate.
To the extent that the children’s rights to practice an appropriate relationship with their father can be achieved, it will be at the control of Ms Meier, who will make sensible, pragmatic and informed decisions fundamentally founded in the children’s best interests.
Parents should share duties and responsibilities and agree about future parenting. Clearly, they cannot at this point. That could not be a criticism of Ms Meier. She has experienced violence at the hands of her former partner, inexplicably so, and in those circumstances, should not be expected to assume what would be an onerous and potentially unsafe burden of sharing duties and responsibilities, or engaging beyond the extent that it would be necessary to facilitate a relationship with Mr Meier.
Children also have a right, created by the International Convention, to enjoy their culture. There is no suggestion these children will not. They will practise it with and through their mother.
I must then have regard to section 61DA, the presumption of equal-shared parental responsibility.
In this case the presumption cannot apply. The presumption does not apply if the Court has reason to believe, on reasonable grounds, that a parent has engaged in family violence. A finding has been made that Mr Meier has so engaged. In those circumstances clearly the presumption could not apply.
Lest I am wrong in that regard, I am satisfied that the presumption would be rebutted as contrary to the children’s best interests. As already described it would be an onerous, unreasonable and potentially unsafe burden to impose on Ms Meier to have her seek to discharge the duties and obligations that would arise from an order for equal-shared parental responsibility, as set out in section 65DAC, to consult with and attempt to arrive at joint decisions.
There is simply no reason why such a burden would be imposed upon a woman who has experienced violence at the hands of her partner. That being so, I am not obliged to consider equal and substantial and significant time, before considering any other time arrangement. In any event, no such order is sought.
I will deal with all outstanding issues by reference to section 60CC to which I now turn.
I must commence with the primary considerations, being the benefit to the children of a meaningful relationship with both parents, as well as the need to protect these children from physical or psychological harm, the latter prioritised over the former by subsection (2A). In this case, both of these factors have real meaning.
It would be nonsensical to suggest that a child’s relationship with a parent could be meaningful when they have experienced violence from that parent or been exposed to that parent’s violence.
In this case, the children have experienced each of those phenomena. The children, in their reportage to the family report writer, are very clear that their relationship with their father is less than strong or meaningful, as discussed, for example, by Brown J in Mazorski & Albright, adopted and affirmed by the Full Court.
The children are very clear – as already described – that they have been the victims of emotional and verbal abuse by their father. In those circumstances the need to protect the children must be prioritised and would obviate against any orders save those which Ms Meier seeks. It may well be that Mr Meier, with his professional qualifications and experience, apprehended that this was so, and thus discontinued his role in the proceedings, to avoid the emotional pain of that reality, or possibly to avoid the need to face up to and own the behaviour that would lead inevitably to that reality.
The benefit to these children of a meaningful relationship with their father cannot be achieved as the children do not perceive their relationship as meaningful. The father’s non-participation makes it impossible to further address that relationship. The need for protection similarly would obviate against any more specific order than that proposed.
Those considerations would also, overwhelmingly, support the order sought by Ms Meier that the children live with her and that she have sole parental responsibility with respect to major issues decisions.
In turning to the additional considerations, I will address each briefly.

Views

These children, and each of them, are clear in their views. They do not wish to live other than with their mother. They are not particularly enamoured with their father and do not desire any particular relationship with him in light of their experience of him in the past.
These children, by reference not to their age but their maturity, must have their views heard, as authorities such as Harrison & Woollard and Re R Children’s Wishes make clear. A child’s voice must not only be heard but must be demonstrated to have been heard.
The children’s views clearly support the orders that are sought by Ms Meier and which orders are supported by the Independent Children’s Lawyer. I do not propose to make any order that would be contrary to those views. The ages and maturity of these children is such that their views would, by and large, verge upon being dispositive.

Nature of the children’s relationship with each parent and other persons

The children’s relationship with each parent has already been addressed above. The predominant relationship of importance for these children, beyond the parents, is with their elder sibling Mr A. That is a strong relationship that will be supported, encouraged and facilitated through Ms Meier.

The extent to which each parent has taken, or failed to take the opportunity to participate in decision-making, spend time with or communicate with the children

Ms Meier cannot be faulted in this regard. She loves these children and is devoted to these children. She meets all of their needs. Ms Meier subjugates her own needs and interests to the children’s care, including through the requirement that she continue to negotiate and engage with Mr Meier to ensure that the children’s relationship with their father can continue. That is subject to the complaint that Mr Meier does not respond or communicate back and, when he does respond, he does not respond in a civil or courteous way.
Mr Meier, on the other hand, has failed in this regard. The children are clear that, at times, he has ceased his practise of relationship with them, punitively and causing distress to them. He has failed to participate in these proceedings, a significant absence of his involvement in decision-making.

The extent to which each parent has fulfilled, or failed to fulfil, their obligation to maintain the children

Ms Meier has not failed in this regard whilst Mr Meier has. Significant arrears of school fees have accumulated for the children. He is otherwise delinquent in his meeting of the children’s needs, particularly financially.

Likely effect of change

The evidence in this case overwhelmingly contraindicates any change being beneficial for these children, particularly in relation to their primary care and support provided by Ms Meier.

Practical difficulty and expense

I incorporate here in section 65DAA(5).
The parents do not live any significant geographical distance apart.
Their capacity to communicate and resolve difficulties is very poor, and, as already observed, it would be an onerous and unreasonable obligation to impose upon Ms Meier that she engage more fully in any communication with Mr Meier beyond that which she initiates and desires.
Practicality would certainly obviate against orders save those sought by Ms Meier and supported by the Independent Children’s Lawyer.

Capacity of each of the parents and others to meet the children’s needs including emotionally and intellectually

Ms Meier meets the needs of these children to a high standard. Mr Meier’s parenting of the children has, in the past, from the children’s own description and experience, been abusive. That supports the relief that is sought.

Maturity, sex, lifestyle and background of the children

These children are described, by the report writer, as mature. It is, perhaps, a maturity forged in their experience of childhood, an experience that their father has disadvantaged. That background is relevant. The children should not be forced into a relationship or practise of relationship with their father that they do not desire. Accordingly it is proposed by Ms Meier, and supported by the Independent Children’s Lawyer, that time would be as agreed, and in accordance with the children’s views.
I have no doubt that Ms Meier will ensure that she listens to and takes on board the views of these children in any time that she seeks to negotiate with Mr Meier and that the parents ultimately agree upon.

Aboriginality

This is not relevant, as neither parent identifies as Aboriginal or Torres Strait Islander, nor do the children.

Attitude to the child and responsibilities of parenthood

This is addressed substantially by the evidence. Ms Meier’s attitude is exemplary. Mr Meier’s attitude is poor.
Family violence and family violence orders
Family violence is a significant issue in this case. Violence has been perpetrated not only towards the mother in the knowledge, presence and experience of these children, but towards the children themselves. In those circumstances the orders sought by Ms Meier must be overwhelmingly supported and any lingering doubt, had there been any, would be dispelled.

Whether it is preferable to make orders that will least likely lead to the institution of future proceedings

It is unlikely that there would be any future proceedings. Even if there were, it is improbable that Mr Meier would obtain any greater advantage. He will face the difficulty of Rice & Asplund as reaffirmed by Warnick J, for example, following the 2006 amendments.

Conclusion

These proceedings, whilst dealt with in the father’s absence, are dealt with and determined on their merits. Accordingly, the father will need to demonstrate a substantial change in circumstances to warrant the reopening of the proceedings and the infliction of those proceedings upon these children. In any event, given the ages of these children, it is unlikely that any proceedings would be heard and determined, even if commenced promptly, before at least [Z] has reached her majority, if not [Y] also.
As the proceedings are heard in the absence of Mr Meier, even though he has discontinued, the provisions of rule 16.05 of the Federal Circuit Court Rules apply. That provides a right to seek to reopen proceedings. It is a right to seek to reopen, not a right to reopen. In the event that any such application were made by Mr Meier, it would need to be heard and determined by the judge who had determined these proceedings.
As the right is open-ended, I propose to include provision within these orders curtailing that right, so that it is fixed for the same period as an appeal, or close to it, 28 days from today’s date.
That aside, the evidence overwhelmingly supports the orders that Ms Meier seeks, and accordingly those orders will be made with the support and consent of the Independent Children’s Lawyer.

Costs of the Independent Children’s Lawyer

The Independent Children’s Lawyer also seeks an order for costs with respect to the proceedings. Those costs are itemised in a schedule attached to the case outline document. The costs sought total $8,632.05.
As they are the total costs that have been incurred in facilitating the representation of these children’s best interests, it might be suggested that the application is made and pressed on an indemnity costs basis, as a departure from the general rule that orders for costs, if made, are on a party-party basis. I am not concerned by this for two reasons.
Firstly, the Independent Children’s Lawyer is not a party to these proceedings and, thus, to the extent that the general rule created by section 117(1) might be suggested to apply, it could not. Section 117 makes clear that the Independent Children’s Lawyer has standing to pursue an order for costs, perhaps reflective of the reality, established by authorities such as Bennett, that the Independent Children’s Lawyer is not a party.
Secondly, the costs that are sought are meagre. If the Court were to make an order for party-party costs they would then be determined by reference to Division 21 of the Federal Circuit Court Rules and in accordance with the indicative scale in Schedule 1.
Costs calculated by reference to Schedule 1 would dramatically exceed the costs that are, in fact, sought by the Independent Children’s Lawyer. That is, perhaps, reflective of the meagre sums that are paid to Independent Children’s Lawyers. The level of costs paid by Legal Aid Commissions is, in turn, reflective of the inadequacy of funding to Legal Aid Commissions, notwithstanding the PricewaterhouseCoopers’ 2015 report acknowledging that reality and suggesting the immediate injection, at that time, of $190 million per year. That report would appear to have gone unheeded, if not completely ignored.
I accept that the costs that as sought by the Independent Children’s Lawyer are entirely appropriate in their quantum.
In dealing with the application I must follow that which is set out in section 117. As already indicated, subsection (1) creates the general rule that each party to proceedings shall bear his or her own costs, but the Independent Children’s Lawyer, of course, is not a party. That might suggest that the Court would make an order as costs in the cause. I do not go so far as to suggest that this should be so.
Section 117(5) precludes the Court considering the funding arrangements for Legal Aid Commissions, notwithstanding that on that basis alone, if it could be considered, it would warrant an order for costs to ensure that the public purse is reimbursed.
Section 117(2) reserves to the Court a discretion to make an order for costs.
Section 117(3) removes any doubt that the Independent Children’s Lawyer has standing to seek costs.
The Independent Children’s Lawyer does not seek an order for costs or contribution against the mother, and understandably so. Ms Meier has little support – practical, emotional or financial – from Mr Meier in relation to the care of the four children of this relationship. She has her hands full and would not be in a position to make any contribution. It would cause her hardship, and thus subsection (4) would preclude an order.
I must have regard to each of the factors in subsection (2A). Those factors are prescriptive but non-exhaustive.
I with deal with each briefly.

Financial circumstances of the parties

Mr Meier’s specific assets, resources and income are not known. However, he is a professional. I do not suggest that all professionals are rolling in money, indeed, many are not. However, I can infer that Mr Meier has the capacity to generate a sizeable income should be wish to, and thus his financial circumstances would not obviate against an order for costs.
Mr Meier’s income or potential income would not, of itself, justify an order for costs. If justification were found then it would speak to the justice of an order. Both justification and justice are required (see section 117(2) and JJT Ex Parte Victorian Legal Aid).

Whether a party is in receipt of a grant of Legal Aid

Clearly Mr Meier is not.

Conduct of the parties.

This is the fundamental basis upon which the Independent Children’s Lawyer seeks an order. To that extent, I accept the submissions that are put by the Independent Children’s Lawyer in the case outline document.
Mr Meier initiated these proceedings and then, at the last moment, and after the Independent Children’s Lawyer had represented these children’s interests throughout the proceedings, reports had been obtained and commissioned, and all put to significant expense, Mr Meier discontinued.
Mr Meier has failed to comply with previous orders. He has failed to engage in this process or in family report interviews, save in the most cursory way. He has failed to undertake courses and programs which he was ordered to attend. He has not filed material. He did not discontinue until after counsel was briefed by the Independent Children’s Lawyer.
In all of those circumstances, Mr Meier’s conduct might be validly criticised. On the basis that Mr Meier is a professional, he is more than criticised, it is abhorrent behaviour. To treat these proceedings – let alone Ms Meier and his children – with such disdain, is contemptuous. It borders certainly upon a matter that would warrant referral, although I do not propose to cause that grief in the lives of these children, as no doubt the anger that would flow from any such referral would be meted out to them. However, I am satisfied that this conduct, a course of conduct throughout the proceedings, warrants, indeed justifies, an order for costs.

Whether the proceedings are necessitated by the failure of a party to comply with a previous order

The proceedings are not necessitated on this basis. But clearly, from the above, Mr Meier has failed to comply with orders throughout the proceedings, showing contumelious disregard for the proceedings and his obligations as a litigant.

Whether a party has been wholly unsuccessful

Mr Meier has been wholly unsuccessful.

Whether offers have been made in writing

This is not relevant.

Other matters that the Court considers relevant

I am satisfied by reference to the above, without the need to consider any other factor, that an order for costs is justified and that it is just. Mr Meier clearly would have the means to meet the order. There is no reason, thus, that it should not be made. The quantum of costs that are sought are modest.
For all those reasons orders are made as follows.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 4 March 2019

[2018] FCCA 3978

30 November 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Procedural Fairness

Standing