Mirica & Weland
[2024] FedCFamC1F 250
•18 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mirica & Weland [2024] FedCFamC1F 250
File number(s): MLC 2474 of 2024 Judgment of: JOHNS J Date of judgment: 18 March 2024 Catchwords: FAMILY LAW – COSTS – where the mother unilaterally relocated the child from Country B to Australia – where the child ordinarily resided in Country B with the respondent father – where the mother instituted proceedings in the Federal Circuit and Family Court of Australia (Division 1) seeking orders that the child remain in Australia and live with the mother – where the father sought orders providing for the child to return to Country B with him – where orders made by consent that the child return with the father to Country B – where the father seeks a costs order against the mother – where the father submits the mother has been wholly unsuccessful in her application – where the father submits the mother’s conduct warrants a costs order against her – orders made for mother to pay father’s costs Legislation: Family Law Act 1975 (Cth) s 117(2) & (2A) Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 18 March 2024 Place: Melbourne Counsel for the Applicant: Mr Metaxas Solicitor for the Applicant: Van Beveren Lawyers Counsel for the Respondent: Mr Sweeney with Mr Pavone Solicitor for the Respondent: Oakfair Lawyers ORDERS
MLC 2474 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MIRICA
Applicant
AND: MR WELAND
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
18 MARCH 2024
BY CONSENT THE COURT ORDERS THAT:
Return child to the Father
1.That the Mother forthwith returns the child of the marriage, X, male, born 2013 (“the child”) to the Father at the Father’s solicitors’ office no later than by 9am on 19 March 2024, Tuesday.
Residence and responsibility
2.That the child live with the Father in Region C, Country B.
3.That the Father be at liberty to return with the child to Region C, Country B.
Passport
4.That the Mother deliver the child’s Australian passport to the Father by 19 March 2024, 9am contemporaneously with the child.
5.That the child’s Australian passport be retained by the Father.
6.That the parties do all such acts and things and sign all documents as are necessary to renew the child’s passport. In the event that either party refuse to do so, the other party be at liberty to renew the child’s passport without the consent in writing of the other party.
Watchlist Order
7.That the Mother’s watchlist order and all applications in relation to the child be discharged or otherwise dismissed;
8.That the Mother’s solicitor forthwith advise the Australian Federal police of the discharge, with effect from 12 noon on 18 March 2024 Monday, of the orders made by Justice Johns and it be requested that the Australian Federal Police confirm their receipt of this advice.
Time spent with mother
9.That the child spends supervised time in Country B with the Mother as agreed between the parties.
Other
10.That all Applications be otherwise dismissed.
ORDER BY THE COURT:
11.That the Applicant Mother pay the Respondent Father’s costs incidental to these proceedings on scale as agreed and in default of agreement, as taxed.
NOTATIONS:
NOTATION A: That the mother consents to the making of these orders without prejudice to her pursuing an application in Country B or Australia that the parties ought to have equal shared parental responsibility and that X should live with her in Australia;
NOTATION B: The father consents to the making of these orders without prejudice to him pursing an application in Country B or Australia that he ought to have sole parental responsibility in Country B and that X should live with him in Country B.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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
The father seeks orders that his costs of and incidental to his application seeking the return of the parties’ child to his care be paid by the wife on a party/party basis. That application is opposed by the mother.
The background to the matter is as follows.
The mother, Ms Mirica, resides in Suburb D, Victoria. She is aged 40 years.
The father, Mr Weland, is a resident of Region C, Country B, and is also aged 40 years.
The parties commenced cohabitation in 2002, married in 2006 and separated in 2017. They divorced in 2018.
There is one child of the relationship, X, who was born in 2013 and is aged 10 years. X was born in Perth, Western Australia.
The parties were both born in Country B. Following the commencement of their cohabitation they moved to Australia to live. Approximately nine months after X's birth, and at a time when the relationship subsisted, the parties and X returned to Country B where they lived with the paternal grandparents. X was aged nine months at the time he commenced living in Country B. X has lived in Country B since that time.
In 2015 the father returned to Australia to work and the mother followed him to Australia in 2016. Upon the parents' return to Australia, X remained in the care of his paternal grandparents in Country B.
In late 2017, following the parties' separation, the father returned to Country B. Between 2017 and 2021 the father spent time in Australia for various periods. He resumed living in Country B on a permanent basis in or around 2021.
The mother has continued to live in Australia since the parties' separation in 2017. It is common ground between the parties that she has visited Country B on approximately four occasions since the separation to spend time with X. During those periods X has travelled with the mother to Country E for holidays. Save for those periods, X’s care has been the responsibility of the father and the paternal grandparents.
In early 2024 the mother travelled to Country B, ostensibly to spend holiday time with X, it being her proposal that she travel with the child to Country E for a vacation. What in fact occurred was that the mother put into place arrangements for her to bring X to Australia, with the intent that he lives here with her permanently. The mother effected that plan and travelled to Melbourne with X in early 2024. She commenced proceedings in this Court on 4 March 2024.
Upon learning that the mother had travelled to Melbourne with X, both the father and the paternal grandmother travelled to Melbourne, arriving in early 2024.
The father instructed his lawyer to commence proceedings in this Court. The mother’s application was filed first in time, and, as a result, the father is the respondent in these proceedings. Nonetheless, I am satisfied that it has been his intent from the outset to seek the return of X to Country B, which he maintains is the child’s principal place of residence.
The applications before the Court today are:-
(a)the mother's Amended Application for Final Orders filed on 5 March 2024, in which she seeks parenting orders, including an order that she have sole parental responsibility for X and that X live with her; and
(b)the father's application, contained in his Amended Response to Application for Final orders filed 8 March 2024, in which he seeks orders the effect of which is to permit him to return with X to Country B.
The father, for his part, also seeks that the mother’s Amended Application for Final Orders be permanently stayed and/or dismissed. Sensibly, the parties have engaged in discussion today and have resolved the principal issues by agreement. They have presented to me a minute of consent order, the effect of which will be to ensure the return of X to his father’s care at 9:00 am tomorrow, and further orders that will enable the father to return to Country B with X. There is an order, also, that X live with the father in Country B. I will make those orders in circumstances where I am satisfied, having regard to the history of X’s care, that the proposed orders are in X’s best interests.
The issue that now emerges is the question of costs. It is the father's application that the mother ought pay his costs of and incidental to these proceedings on a party/party basis as agreed and in default of agreement as assessed upon taxation. The submission made on behalf of the father is that, firstly, he has been wholly successful in his application before the Court that X be returned to his care and that X live with him in Country B. It is further submitted on behalf of the father that the mother's conduct is such that a costs order is warranted.
It is submitted that the mother's behaviour has been reprehensible; she has, effectively, abducted the child from Country B and brought him to Melbourne without the father's prior knowledge or consent. Further, this is done against the backdrop of X having lived in Country B for almost all his life and having established home, school network and social networks in Country B. The father submits that it is now clear that the mother’s actions were a pre-planned attempt to remove X from his care. In support of that position, he relies upon the fact that the mother purchased airfares for herself and X to return to Melbourne in early 2024, whilst representing to both the father and the paternal grandmother that she had plans to travel with X for holiday in Country E.
It is submitted that the mother's conduct was misleading and that she actively worked towards effecting her plans to remove X from his settled primary residence. I accept that submission.
The mother opposes the father's application for costs. She submits that in circumstances where there were no formal parenting orders or parenting plans in place, she has not been wholly unsuccessful in the proceedings. In support of that submission, she relies upon the fact that I am today asked to, and will make, parenting orders.
The general rule in relation to costs is that each party to proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”) should bear their own costs. Section 117(2) of the Act provides that if:-
...the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the...Rules of Court, make such order as to costs and security for costs...as the court considers just.
Section 117(2A) sets out the matters that the Court should have regard to in considering whether to make an order for costs. Those circumstances are:-
(a) the financial circumstances of each of the parties to the proceedings;
The parties depose briefly as to their financial circumstances. The father, for his part, says that he is self-employed in Country B operating his own business; other than that, there is no evidence as to his current financial circumstances. For her part, the mother deposes as to being in a strong financial position. The evidence of she and her partner is that they own their own property in Suburb D, and that they own investment properties. Further, the mother's current partner, with whom she has been in a relationship for some six years, is employed in primary industry in Victoria and has an income of approximately $190,000 per annum. Accordingly, it would appear that the mother is in a secure financial position.
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
No submission has been made in relation to that matter. I note that both parties are represented by private lawyers.
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limited the generality of foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
I have already referred to the submissions made on behalf of the father as to the mother’s conduct. Having reviewed the material and the chronology of events, particularly the chronology as it relates to how it is that X comes to be in Melbourne, there is much force in the submissions made on behalf of the father as to the mother’s conduct. I am satisfied that the mother has enacted a plan to remove X from the father’s care without his prior knowledge or consent, and further that others in her sphere have potentially colluded to enable that to occur.
Such conduct flies in the face of what might be considered to be appropriate conduct in terms of making decisions regarding a child’s long-term care, welfare and development, and it is that conduct that has given rise to the commencement of these proceedings and in particular, the father’s application seeking the return of the child.
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
There are no previous court orders in relation to the parenting arrangements for X.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
The submission made by the father was that the mother has been wholly unsuccessful in the proceedings. I agree with that submission insofar as I have been asked to, and will, make orders for the return of X to the father’s care and orders that will permit X to return with his father to Country B. The mother opposed that application and sought orders that X live with her; that application is wholly unsuccessful.
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;
No submissions have been made with respect to that matter.
There are no other relevant matters in the consideration of costs.
Accordingly, having regard to my findings in relation to the s 117(2A) considerations, particularly as to the mother’s conduct and the fact that she has been wholly unsuccessful in her claim, I am satisfied that an order for costs in this matter is justified. I will make an order for costs as sought by the father in the proceedings.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 17 April 2024
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