MORDECH & MORDECH
[2017] FCCA 2950
•17 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORDECH & MORDECH | [2017] FCCA 2950 |
| Catchwords: CHILD SUPPORT – Application for departure. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2A), 60I, 61C, 61DA, 64B, 65DAC, 65F, 67ZBB, 117 International Convention on the Rights of the Child, Article 23 Federal Circuit Court Rules 2001 |
| Cases cited: Other Articles Cited: Blankenhorn, D, Fatherless America: Confronting our Most Urgent Social Problem. New York, NY: Basic Books, 1995 |
| Applicant: | MR MORDECH |
| Respondent: | MS MORDECH |
| File Number: | WOC 780 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 17 October 2017 |
| Date of Last Submission: | 17 October 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 17 October 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Murphy of Southern Coast Lawyers |
| Solicitors for the Respondent: | Ms Williams of Hansons Lawyers |
ORDERS
The child, X born (omitted) 2012, shall live with his mother, Ms Mordech.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged, that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Relationships Australia (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined, then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
Each party shall, within 28 days, register with and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide a copy to all other parties and the Independent Children’s Lawyer (if appointed).
Dismiss the Application for Costs relating to the appearance before this Court 30 August 2017.
IT IS NOTED that publication of this judgment under the pseudonym Mordech & Mordech is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 780 of 2015
| MR MORDECH |
Applicant
And
| MS MORDECH |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today for the second Court event with respect of this tranche of litigation. There have been earlier proceedings between the parties which were concluded by Orders made by consent 13 September 2016. Those proceedings related purely to issues of property adjustment.
The issues involved in the present proceedings are twofold:
a)Firstly, a plea with respect to parenting relief. The parenting proceedings relate to a young child, X, born (omitted) 2012. X recently turned five;
b)Secondly, an Application seeking leave to commence a child support departure Application.
The parties to the proceedings are Ms Mordech, who is the mother of the child, and the Respondent in the parenting plea, although Applicant in the plea relating to child support. Mr Mordech (Mr Mordech) is the Applicant with respect to parenting and the Respondent with respect to child support.
On the first return date of the proceedings, 30 August, 2017, a number of matters were addressed as both Applications were before the Court on that occasion, together with an Objection with respect to a Subpoena addressed to Mr Mordech’s employer, (employer omitted). That subpoena was suggested to have relevance with respect to both Applications on the basis that documents were sought in the nature of rosters, with respect to Mr Mordech’s employment, as well as wage records and other financial documents. The rosters would have been relevant, at least prima facie as regards the parenting issue, as Mr Mordech's Application had sought that any Orders with respect to time be prefaced upon and operate with respect to the roster.
In relation to the child support Application, the Subpoena was suggested to be relevant, as regards the production of material in relation to Mr Mordech’s employment. It must be observed that the Application in a Case, which sought the relief with respect to child support, or purported to, was not filed until 28 August 2017, some nearly two months after the Subpoena had been filed and served.[1] Accordingly, the predominant relevance of the Subpoena must have been suggested to be, other than in anticipation of an Application, which would be an inappropriate use of the Court’s coercive power for the production of material, to obtain the rosters, historical as they would have been, of Mr Mordech.
[1] The Subpoena, together with a further 4 Subpoena (5 in total) were filed 30 June, 2017 and prior to a Response or Notice of Address for Service being filed by the Respondent mother.
It is submitted by Counsel for Mr Mordech that such a Subpoena for that purpose was not necessary as rosters had historically been provided. It was only prospectively that rosters had not been and it was impossible to do so until such time as the rosters were, in fact, produced.
What is clear and apparent from a consideration of the material filed by these parties, (and all documents filed with respect to this tranche of litigation have been read and considered), is that the parties do not like each other. It would seem not inappropriate to describe that these parties hold each other in a degree of contempt. That is highly regrettable for a number of reasons, not the least of which is the simple impact upon their humanity. The more germane and relevant concerns, however, are abundant and clear from the course that these proceedings have now taken.
Since the matter was last before the Court, Mr Mordech has filed a Notice of Discontinuance with respect to his Application for parenting relief. The consequence of that is readily discernible by reference to a message, which is suggested by Ms Mordech to have been forwarded to her by text, in words to the effect, although, not suggesting it is a specific quote thereof, save as to the majority of expletives: “Fuck you. I want nothing more to do with the child”.
I accept that this may well be a reaction of frustration by Mr Mordech. It is, however, the child’s right to a relationship and thus it is the child’s right that is infringed by such a reaction, founded in frustration or otherwise and/or whether generated by actions of one or both parties. In all probability, the latter. The net consequence, however, is that this child will not, in all probability, experience, practice or have their right, as enshrined in the International Convention on the Rights of the Child and repeated as an object of the Family Law Act 1975 (section 60B(4) of the Act), to a relationship and involvement with both parents achieved. That is something which both parents take responsibility for. It is the toxicity in their relationship and their inability to communicate, co-operate, and resolve difficulties that has led to that consequence irrespective of whether the Notice of Discontinuance is filed by one or both.
These parents, through their inability to regulate their own emotions and deal with their relationship with each other and their consequent inability to support, encourage, foster and facilitate the child’s relationship with both parents, and to enjoy and practice his right to that relationship, denied those rights to their child and, indeed, all of the rights set out within the principles (section 60B(2) of the Act). That is regrettable. This is a child who has two parents who are capable and competent, individually, if not collectively and as a team, and the child will miss out on that experience.
The antipathy between the parties would appear to have a very real nexus to their financial dealings with each other, particularly with respect to child support. It is that difficulty, in part, which leads to the Application for child support relief. The Court’s child support jurisdiction is limited. Section 116 of Child Support (Assessment) Act 1989 permits an Application directly to a Court in very limited circumstances. The section provides:
(1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c) in the case of a liable parent--the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).
The Child Support (Assessment) Act 1989 contains substantial provision for administrative determination of such disputes. The intent of the Commonwealth is that access to a Court will be a last resort by way only of either establishing the circumstances of section 116 of the Child Support (Assessment) Act 1989 or by way of Appeal from determinations and decisions of relevant Tribunals who have authority to deal with the very disputes that these parties continue to engage with and no doubt will continue to engage with each other until early 2030 when this child will turn 18.
Clearly, there is no Appeal from a Tribunal’s decision, thus the only basis upon which jurisdiction could be established is section 116 of the Child Support (Assessment) Act 1989. The Court cannot act beyond its powers and express authority. It is the role of each Judicial Officer to establish, before proceeding to determine an Application, that jurisdiction exists and that the Court is vested with all appropriate power and responsibility to determine a judiciable controversy.
Section 116 of the Child Support (Assessment) Act 1989 requires the determination of a threshold issue before hearing an Application for departure, that being a liable parent or carer can establish “special circumstances”. There is a body of case law dealing with that term and, in particular, the use of the prefix “special” before the word “circumstances”.[2] Special circumstances are established when both of the following apply:
a)The liable parent or carer is a party to an Application pending in a Court having jurisdiction; and
b)The Court is satisfied it would be in the interests of the liable parent and the carer to consider whether an Order should be made under this Division.
[2] For example G & G [2002] FMCAfam 25; S & S [2003] FamCA 1133 (unreported); Gyselman v Gyselman (1992) FLC 92-279.
There is an alternative ground, but it relates only to the liable parent. The Applicant in these proceedings is the carer.
The Child Support (Assessment) Act 1989 contains other prohibitions with respect to such Applications, such as time periods which apply to the years of assessment which can be considered, particularly if historical revision is sought.
I am satisfied that to establish special circumstances there needs to be some nexus between the Application that is before the Court and the Application for child support. There is adequate authority to establish that proposition at law.[3] It would be a nonsense to suggest, for example, that if a party made an Application to the Court seeking to have a child placed on the Airport Watch List or made an Application within the Court’s primary jurisdiction for Divorce, that there would then be an automatic entitlement to bypass all administrative processes and bring an Application directly to the Court. There is nothing out of the ordinary let alone special about the circumstances of the case that cannot be dealt with by the Agency.
[3] See for example Kay J at para 10 J & F [2002] FamCA 1067: “That section creates a discretion in the court. It does not create an automatic right in a party or even an expectation in a party that a court will consider a departure application at the same time as it considers other matters before the court”, or Gyselman v Gyselman at para 39 “In Savery's case (p 77-897), Kay J., adopting the view in Philippe (1978) FLC 90-433 at p 77202 in a different context, said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification”.
It is clear that the parties have engaged in administrative processes previously. On one occasion an Application had gone so far as reviewed by the Social Security Appeals Tribunal, as it then was. That Application, it would seem, was ultimately not pressed and was discontinued (perhaps, again, a symptom of the frustration which both of these parties experience in their dealings with each other and in their desire to have their view of reality imposed upon the other at different times). The simple reality remains, however, that the only proceedings that are and have been before this Court relate to parenting arrangements for the child in which there is no need for or nexus with a financial enquiry.
The Application, insofar as it relates to child support, does not seek any relief within the Court’s original jurisdiction. If, for example, an Application for lump sum child support was sought, there is no power within the Child Support Registrar or any administrative process or Tribunal to grant such relief. The Application must come directly to this Court, in which circumstances there would be a sufficient nexus and special circumstances to warrant the Court invoking jurisdiction.
That “leave”[4] is required or apprehended by the wife as required is apparent from paragraph 1 of the Orders sought by the wife wherein leave to proceed with the Application is sought. Thus, this determination is, to some extent, a preliminary issue and a necessary determination to establish jurisdiction. In that regard it is an interlocutory Application which should be dealt with on an acceptance of the Applicant’s evidence on its face as more probably correct.
[4] In reality, a determination of special circumstances such that the Court, in its discretion, allows the Application to proceed is what is required rather than leave. Leave is referred to by adoption of the language of the wife’s Application.
I am not satisfied special circumstances are made out. The parenting relief will conclude today in highly unfortunate circumstances. Whilst I have already indicated that the Court need not express any sympathy or empathy to a litigant for the decisions that they have made, that is a matter of pure objectivity. The Court does not make decisions based upon Misericordia. It makes decisions based upon Application of the law to facts as found by the Court or as agreed between the parents.
It is certainly a fact, as I have already indicated, that this child will be significantly disadvantaged in his life and his ability to achieve his full potential through the absence of a relationship with both of his parents. It is not the Court that has imposed that disadvantage, but the parties jointly. It may well be that Mr Mordech has discontinued his Application through a fit of pique, frustration or otherwise, but it is the toxicity of the relationship between these parties, as it has developed, that has achieved that outcome for this child. It is not a stranger who has visited disadvantage on this child, by abusing or abducting the child. It is the child’s parents, seized with responsibility for his care, who have achieved that negative outcome.
I am satisfied that it is not in the interests of the parties and certainly not of the liable parent for the Application to continue. That is also one of the requirements for establishing special circumstances. It is not in the interests of this child to be poorly maintained, but nor is it in the interests of the child for his parents to be involved in what would seem to be almost never-ending litigation. These parties, I am quite content although not happy to predict, will be back.
In those circumstances, the plea for relief with respect to child support will be dismissed.
I will proceed to deal with and determine the issues that arise with respect to parenting which would appear to be confined to only two issues:
a)Firstly, the making of an Order in the mother’s favour for the child to live with her. In reality that Order has never been opposed. The Application for parenting relief by the mother seeks an extensive suite of Orders. However, most are unnecessary in the circumstances; and
b)Secondly, an issue with respect to costs that arose with respect to an Objection to Subpoena dealt with on the last occasion.
The mother has indicated that, whilst her Response seeks an Order for equal shared parental responsibility, she would seek to amend the Response to seek an Order for sole parental responsibility. That would require adjournment as the father has no notice of that Application, certainly not by way of formal pleading before the Court, and he would be entitled, once an amendment were made, to reconsider his position and determine whether he wishes to continue in the matter or not.
Absent any Order with respect to parental responsibility, the provisions of section 61C of the Family Law Act 1975 would apply in which circumstances the parents would have joint and several parental responsibility, thus the obligations pursuant to section 65DAC of the Act, invoked only upon the making of an Order for equal shared parental responsibility, would not apply. There would be no obligation upon the parties to consult with each other and make genuine effort to resolve disputes between them with respect to their child, not that the evidence demonstrates that this has ever occurred in the past. Accordingly, I propose to take that course, and it would appear to be without objection, at the very least, from the Respondent. The net effect is, in practical terms, the same. The mother, who will have the care of the child, will make decisions without the need for consultation with the father, at such times as the child is with her.
In dealing with the plea for relief as regards to an Order that the child live with the mother, it must be observed that, on one level, it is somewhat unnecessary to prosecute. There is no dispute and never has been any dispute that the child will live with the mother. However, the Application is before the Court. It must be disposed of. It is not withdrawn or discontinued and accordingly, and on the evidence filed, including the evidence of Mr Mordech wherein he had proposed an Order for the child to live with the mother and, thus, evidenced and expressed his consent to such an arrangement, the mother is entitled to the Order. The evidence supports that it is in the child’s best interests.
Notwithstanding that the Order is made on an undefended basis, the legislative provisions must still be considered commencing with section 60CA of the Act, which reminds the Court that in all that is done the child’s best interests are the paramount consideration.
I must then have regard to the objects and principles in section 60B of the Act in which I incorporate herein. I have already made some slight reference to them.
Objects of Part and principles underlying it
(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 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).
The objects require that the Court make Orders that ensure that children’s best interests are met by ensuring that they have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. That cannot be achieved, as the parents cannot procure that outcome, irrespective of any Order that this Court might contemplate making. On the basis that no Order for time with the father is proposed to be made at this time, this need not be addressed further, other than to, again, observe the sad and disadvantaged outcome for this child.
The Court must make Orders to protect the child from physical or psychological harm. There are no such issues raised in this case. The highest that the evidence suggests as regards any issue regarding the child’s disadvantage, or perhaps what might fall within the broad and undefined term “neglect”, is the suggestion that there are issues relating to the diagnosis, proper diagnosis or complete diagnosis – all three terms being used within the evidence – of a gluten intolerance of the child that is far from life-threatening, indeed, rather trivial and unimportant in the overall scheme of this Court’s address of the dispute. It is certainly not trivial for the child, who must monitor their diet, if the child is, in fact, gluten intolerant, so as to avoid the consequences of consumption. It need not, however, even be raised in proceedings between parents. It is simply something that one might expect the parents to deal with.
The Court must make Orders to ensure that children receive adequate and proper parenting. I make clear that there is no suggestion that Ms Mordech is other than a very good parent who meets this child’s needs practically and physically. However, the inability of the parents to put aside their disdain for each other, renders severe disadvantage for this child and these parents must both be aware of that. They should, one would think, take some steps to remedy those problems. They have not to date. It is improbable that they would other than with the Court’s compulsion. Whilst section 65F of the Act would otherwise preclude the Court from making an Order on a final basis until the parties have attended Family Counselling, I am satisfied that, in this case, as the proceedings are to be concluded on an undefended basis, there are circumstances which would warrant dispensation with that requirement.
I do propose, however, to make an Order for both parties to participate in such processes in the future. If they do not attend then it will be a matter for the parties, should they seek to bring any future Application as they may consider necessary, to then address the circumstances of non-compliance. Family counselling might assist these parties. In all probability, it will not. Without seeking to trivialise the issue, one is reminded of the joke used by social scientists, “It only takes one social worker to change a lightbulb, but the lightbulb has to want to change”. These parents must first understand and realise that their attitude to each other is not purely between adults. It affects their child. If they cannot do that, they will gain nothing from taking up the time of community-based Family Counselling services. However, their compulsion to attend is warranted. It might provide some benefit for this child in the future which benefit, as regards co-operative co-parenting, the parents are presently incapable of providing.
The Court must also make Orders to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the child. That, of course, includes the obligation created by Article 23 of the International Convention on the Rights of the Child to maintain and support the child, as well as the obligations created by the principles, to which I will now turn, to support, encourage, foster and facilitate the child’s relationship with a parent.
Parents do not need to like each other to ensure that their child has the benefit of a relationship with both parents and financial support. They need to like and love their child with a sufficient depth, understanding and insight to know that it is of benefit to them. These parents have chosen each other to have a child and bring that child into the world, and yet now they can see no positive whatsoever for the child in continuing those relationships as abundantly as could have been achieved through some modest co-operation.
The rights of this child are clearly established by the principles in subsection (2). They are not absolute rights. They are subject to the caveat that they are neither enlivened nor practiced in circumstances where it would be contrary to the child’s best interests, although the evidence, as it stands, and accepting it on its face as more probably correct than not, does not and could not establish that the principles should not apply in this case.
This young lad, X, has a right to know and be cared for by both of his parents. Regardless of whether they are or were married, have separated, were never married, or, indeed, have never lived together, this child, X, has a right to spend time and communicate on a regular basis not only with both parents but with other people significant to his care, welfare and development, such as grandparents and other relatives. Those relationships, one might envisage, at least with regards to Mr Mordech’s extended family, will also wither.
X has a right to have his parents share duties and responsibilities. They should agree about X’s future parenting. They are two rights that these parents have torn apart and thrown to the winds. They would not appear, from their evidence, to care one jot about those rights, or to have taken any active step to address the problems and barriers which have impeded their ability to deliver those rights for their child. The rights cannot be achieved by the Orders that are sought, save to provide to Ms Mordech, as she is entitled, and to X, as he is more importantly entitled, some sense of security in his placement.
I must then have regard to section 61DA of the Act and the presumption of equal shared parental responsibility. I am not satisfied that the presumption could apply. It is not in the child’s best interests. On a practical level alone, the parents do no co-operate, do not communicate, and, accordingly, an Order for equal shared parental responsibility, which would then invoke the obligations in section 65DAC of the Act, would be a nonsense. These parents have not consulted with each other, do not consult with each other and will not consult with each other.
Accordingly, there will be no genuine effort put into seeking to resolve issues and disputes as and when they arise, and one can only be grateful that young X’s health issues are as modest as they are regarding suggested gluten intolerance. Heaven forbid if this child, for example, needed to address issues of gender identity, needed to address life-threatening conditions for which a medical practitioner sought the consent of both parties. The child would, no doubt, lie on the operating table bleeding out while the parents bickered and squabbled to decide who was right.
That being so, I propose to leave these parties operating, absent any Order made by the Court, under the provisions of section 61C of the Act. No Order need be made as that section operates absent an Order.
I must then have regard to section 60CC of the Act and commence with the primary considerations, being the benefit to this young lad of a meaningful relationship with both parents. That simply cannot be achieved by any Order this Court is invited to make.
Indeed, the only Order that I propose to make, an Order for the child to live with his mother, is made with the somewhat regrettable realisation and acceptance that it will, in all probability, mean very little, if any, relationship is practiced between X and his father, which is not a matter, I make abundantly clear, that this Court determines is in his best interests. Lest anyone might have formed the impression that that which precedes this statement was designed to form such a conclusion, I disabuse all. It is in this child’s interest to have a relationship with both of his parents, as the Act indicates, indeed as common sense would indicate. They are capable and competent parents. They simply do not like each other and cannot co-operate.
The relationship can continue absent any Order. Indeed, it has been practiced at times, albeit, it is suggested, with significant interruptions and unilateral termination at different times, without Order. One would think that circumstance might continue in the future and that these parents might develop a modicum of focus upon this child’s rights, needs and interests.
There is no need to protect this child. Thus, the second primary consideration, prioritised over the former, if it were in play, is not relevant.
I must consider the additional considerations.
Views expressed by the child
There is no real evidence as to the child’s views other than, clearly, he desires and obtains some benefit, indeed, enjoyment from his relationship with his parents. Those relationships should continue, and I am not suggesting that the absence of any Order for its practice with the father is intended to suggest that it should not or could not. It is entirely and abundantly in this little boy’s interests to see and have a relationship with both of his parents and, through them, extended family and others. However, at this point, his views beyond a frustrated desire to have his parents get on better and to facilitate his best interests through practising a relationship with both on a regular basis cannot be achieved.
Nature of the child’s relationship with each parent and others
This child has a perfectly good relationship with both of his parents. It simply cannot be formalised in any Order that would have meaning.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making and spending time or communicating with the child
It is not significantly suggested that this applies. Prior to the June 2012 amendments to the Act, subsection (c) was contained within subsection (4), which also required a consideration, which I am satisfied remains relevant, of the extent to which either parent has interfered in the other’s ability to participate. That is certainly raised as an issue, but I need not pursue it further as the only Order that is pressed does not require that consideration.
Also prior to June 2012, subsection (c) required that the Court consider the extent to which each parent had reasonably supported, encouraged and facilitated the child’s relationship with the other. Both parents would be well advised to consider the erudite Judgment of Justices Fogarty and Nygh in Stevenson & Hughes [1993] FamCA 14 regarding their obligations to their child to support such relationships.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
I have previously referred to the child support proceedings, which will be dismissed for a failure to establish “special circumstances”. However, the existence of that Application should not be taken to suggest that this child is not supported and maintained financially by both parents. It is a question of degree. As is, perhaps common, perhaps even to be expected, the greater the incomes and resources of parents, the greater the expenses which they incur for their child. Also, the greater their complaints as to the equity of contribution by each.
Mr Mordech is not a parent who does not contribute financially for his child. He does, at a rate that exceeds the income of many in the community. The complaint is that his contribution is not sufficient in light of his income, which is quite comfortable from a middle-class perspective, but not outrageously large, suggested to be in excess of $200,000 per year. That income exceeds the cap applicable to the child support formula. A greater contribution than that provided by the formula is sought by the wife.
The child support legislation certainly provides caps and limits post reforms in the mid-2000s, such that portions of Mr Mordech’s income may not be considered for the purpose of administrative assessment. The expenses of this child in relation to education have not yet commenced. It is not suggested, necessarily, that the child will be educated through a program or school that will be a significant expense, but even if so, that can be addressed through a child support departure Application dealt with administratively. In this case, each parent meets their obligation to maintain the child in accordance with law. It is not suggested that either parent is necessarily happy with the contribution that is sought from them or made by them.
Likely effect of change, including separation from either parent or any other child or person
I am not asked to make any Order that will terminate this child’s relationship with either parent, nor, indeed, terminate either parent’s right of parental responsibility. It will simply be that the parents practice those rights separately and distinctly individually. It is not in this child’s best interests to separate him from either parent. He has two good parents. They should both be able to practice a relationship with this child. They should both be able to provide to him the benefit of their competence, their love and affection. One would hope that might be achieved between the parents with such assistance as they may require.
Practical difficulty and expense
The practical difficulty and expense in this case does not necessarily arise from geography or other factors such as Mr Mordech’s work rosters. They create problems, but at the risk of being foolishly optimistic, problems are really just solutions waiting to be found, that is, provided a person desires to find a solution, rather than to focus upon the problem and pathologise it until it becomes an immovable barrier.
The real difficulty in this case is the antipathy, disdain, possibly verging upon hatred, that the parents have for each other. That is something they can, with gay abandon, engage in for themselves. This Court will not condone it nor join in with it. The parents’ capacity to implement arrangements is unfettered. They can put into place any arrangement they desire for this little boy to have a mother and a father in his life.
Perhaps, again, both parents might – as each of them has, to varying degrees, either made it more difficult or has abandoned an Application to spend time with the child on a regular basis – consider literature dating back as far, for example, as the 1980s with the seminal book “Fatherless America”,[5] drawing upon and summarising at that point the data and research that had accumulated, even at that distant point, as to the disadvantage children experience when they do not have their father in their lives.
[5] Blankenhorn, D, Fatherless America: Confronting our Most Urgent Social Problem. New York, NY: Basic Books, 1995.
Research has continued at a pace since then, particularly in the United States, where as a consequence of sentencing principles described, for example, by Michelle Alexander in “The New Jim Crow”,[6] discussing the reality of over 3 million African-American men being incarcerated and thus one in four African-American children living in a household without their father or male role model. Such a population base irresistibly requires and attracts research, and thus there is a significant body of research for these parents to consider as to the impact on this child of growing up without a father. That is not to suggest that growing up without a mother is any better. It certainly is not.
[6] Alexander, M, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, New York: [Jackson, Tenn.]: New Press; Distributed by Perseus Distribution, January 16, 2012.
But for this child to grow up in circumstances where, if these parties considered the research that relates to children who have grown up without a father (and such research is referred to for the elucidation of the parties not as a basis for any finding made), they might understand the harm they are potentially doing to their child. This child’s prospects of being educationally proficient are reduced. His prospects of living in poverty or relative poverty in the future are greatly increased. His prospects of emotional dysfunction are heightened. His prospects of achieving well in life, the very thing that the Act is designed to seek to aid achieving his full potential are significantly retarded. However, those things arise from the practical difficulties that are so objectively discernible and yet which, subjectively, the parents cannot see their individual role in.
Capacity of each parent to meet the child’s needs, including emotionally and intellectually
Each of these parents is entirely capable and competent as a parent, save and except to the extent of understanding the impact of their dispute upon their child. These are not parents who beat and ill-treat each other. Goodness knows this Court has more than enough of that litigation base. These are parents who simply treat each other with such disdain that their child’s needs and interests as set out in the principles – a right to have parents share duties, agree and a right to spend time and communicate with parents on a regular basis – seem forgotten.
Maturity, sex, lifestyle and background of the child
This is a little boy who is 5 years of age. Accordingly, one would hope his cognisance of the parents’ attitudes towards each other is not yet fully developed such that he can innocently, as children might, love both of his parents, see the good in them as well as the bad and be able to interact with them in a loving way, provided their parents permit that to be so. As he grows, he will be far more cognisant of that. It is a danger for the child as well as both parents. If the relationship between this boy and his father cannot be practised, this child will begin, particularly once he starts school next year, to question why he is sadly, in all probability, not the only child, but one of a group within his class who do not have a father living at home with them, let alone a father that he sees. It will create social disadvantage for him. It will create real questions that he has for both of his parents and, because he will be living predominantly with his mother, his mother directly, as to why that is so.
Children can be very innocent at an early age, but as they grow they can also become very self-focused and judgmental, and that is something both of these parents will need to comprehend. They will have to answer this child’s questions and deal with this child’s anger, resentment and hostility when and if he perceives either that he was abandoned by his father (and I do not seek to suggest that this is what is occurring in this case) or that he has been precluded from having a relationship or as abundant a relationship as possible with his father as a consequence of his mother’s actions or attitudes although, again, I do not seek to suggest that that is so. The child’s perception, however, will become his reality.
Neither party identifies as Aboriginal or Torres Strait Islander thus nor does the child and a consideration of subsection (h) is not relevant.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each parent
One of the fallacies that often arises in this jurisdiction is that parents have rights. Indeed, I have referred to one – a right to participate in decision making. That is perhaps the closest that the Act comes to investing a right in a parent.[7] Once an Order is made, then the effect of the Order is to give the parent in whose favour the Order is made, whether it deals with the child living with them or spending time or communicating with that child, a right to practice that which the Order provides. However, in the determination of what Orders should be made, parents have no specific rights as regards their children. Parents have a right to due process, nothing more. Children have rights. Those rights are created by the International Convention on the Rights of the Child. They are incorporated within the Family Law Act 1975. They are the very rights I have referred to, including the right to have both parents meaningfully involved in their lives, to spend time and communicate with both parents and other people and, importantly, the right to have their parents share the duties and responsibilities for their child.
[7] The Orders to be made are determined by reference to the child’s rights, although Orders are made “in favour of” parents, per section 64B(6) of the Act and might be argued to then provide a right in favour of a parent.
That is relevant to the attitude of the parents towards their responsibilities. It is often forgotten, although not by the utilitarians such as Bentham, that rights carry with them responsibilities. They are, if you would have it, the yin and yang. The child has a right to a relationship with both parents, thus it is the responsibility of both parents, individually and collectively, to ensure that this right is given life, meaning and practice. Hence, the reference to and the suggestion that the parents might consider that opined by Fogarty and Nygh JJ in Stevenson & Hughes. It is important for the child that those responsibilities are not only acknowledged but embraced.
Family violence
Family violence is not raised as an issue in the proceedings of any significance and certainly not relevant to the determination to be made. There is and has not been a family violence Order.
As to whether it is preferable to avoid future proceedings, this is an unusual case in the sense that it might well be preferable that there be proceedings in the future. If it becomes impossible, through the Family Counselling assistances that I propose to make Orders about, for these parents to modify their attitudes and behaviours so as to be able to fully and appropriately address this child’s relationship with both parents, then, without wishing to encourage litigation, it would be preferable that an Application be brought than the situation left to fester and rot. However, the best that can be done at this point is to conclude the proceedings and to make the Order that is sought for this young lad to live with his mother.
Costs
The final and remaining issue for the Court to determine is the issue of costs with respect to the last Court event. Costs were reserved on that occasion with respect to the wife and on the basis that the Objection to Subpoena had taken up some modicum of time before the Court that day.
On the last occasion, the proceedings came before the Court on the first occasion. Such first return dates are often treated as a procedural step. They are nothing of the sort. They are a very substantial process in which it is expected that the parties and their legal representatives, if retained, will appear before the Court so that the matter might be appropriately triaged. That is to discharge the Court’s obligations and responsibilities to understand what processes might best assist the parties and the child in resolving the dispute and to do all that is required to move the matter towards, preferably, a consensual resolution and, if not, determination by the Court.
There is much discussion in the present day of delays with Court processes. Indeed, delays occur. All the more reason to ensure that value is added with every Court event and that the Court’s duties are fully discharged expeditiously. Those duties, in a parenting case include, for example, the obligation to direct the parties to Family Dispute Resolution if it has not already occurred (see section 60I(9) of the Act). It includes the obligation to ensure that the parties are engaged in appropriate supports and assistance through Family Counselling services (see Part II and section 65F of the Act). Very importantly, it includes the obligations created by section 67ZBB of the Act to ascertain whether there are issues of risk and, if so, to take appropriate steps to not only gather evidence but ensure protection of all.
On that basis, the matter was listed on 30 August 2017 for that substantial intake and inquiry to be made by the docketed Judge. It is to be remembered that, in the Federal Circuit Court of Australia, there is no use or assistance of Registrars, notwithstanding the delegation of numerous powers to them, that would permit those functions to be undertaken largely if not wholly by a Registrar. As a matter of preference, one which I fully support, the docketed Judge who will in due course, if the matter cannot be resolved, hear and determine the case, will conduct that first Court event so that the parties are fully aware of the Judge who will hear their case and, more importantly, so that all necessary steps can be taken to ensure that the case is on a path towards, if not resolution, at least a hearing as expeditiously as possible. Clearly and apparently, that process was undertaken at some length as my standard checklist and directions intake sheet were completed, ascertaining the very matters referred to such as whether the parties had attended Family Dispute Resolution, whether Family Dispute Resolution is appropriate, whether the parties had engaged with Family Counselling and, if not, whether it was appropriate, whether there were issues of risk, etcetera.
Also, on the first return date, the Application with respect to child support was before the Court. Without intending to be in any way critical – I make clear I am not – the Application is perhaps ill-conceived. That which would render a special circumstance is not readily apparent, even if the parenting issue had continued beyond today.
The third issue that was dealt with by the Court was the issue of Objection. The Objection to Subpoena was also ill-conceived. There is no criticism whatsoever, and I make that absence of criticism abundantly clear as regards Counsel for the Applicant. The Objection that was filed, certainly and particularly in light of submissions filed today, had some basis, but not sufficient to interfere in the right of the Respondent to conduct their case as they considered necessary and appropriate and to obtain, by Subpoena, records which would not be available to her otherwise than through authority provided by the Applicant or Subpoena, the documents being prima facie relevant to one or both Applications that were before the Court.
However, the Notice of Objection, having been filed, was listed as is required by the Federal Circuit Court Rules 2001, as expeditiously as possible which, in the circumstances, was the first return date of the proceedings. Accordingly, the case was already before the Court on that day and the additional time that was taken in addressing the Objection was modest – 10 to 15 minutes at most, including reasons. Accordingly, that which occurred with respect to the matter on the day was substantial, irrespective of the Objection. The cost that could be sought would be in accordance with scale. That would relate to Item 5, an interim or interlocutory Application, together with time at Court. On the basis that certainly the time taken was frugal, the most that would apply would be Item 13A, a short mention at $294. That would produce total costs per the scale of $2095.
The Application must be determined by reference to section 117 of the Act. Subsection (1) creates the general rule, as it is often referred to, that each party shall bear his or her own costs. It is not a complete defence as it is subject to subsection (2), which reserves the discretion to award costs, provided the dual test of a justifying circumstance and justice and equity are met. Subsection (2A) sets out a prescriptive but non-exhaustive list of considerations. Subsections (3), (4), (4A) and (5) are not relevant, dealing as they do with Applications by or involving Independent Children’s Lawyers or child welfare agencies.
I will deal with each of the factors in subsection (2A).
Financial circumstances of the parties
The parties’ financial circumstances are not completely known. Certainly, there would appear little, if any, dispute that Mr Mordech’s income is substantially greater than that of Ms Mordech. Ms Mordech, however, is not unemployed. She has employment, as her Financial Statement, demonstrates. Her income is certainly significantly less than that of Mr Mordech. That financial disparity is relevant, particularly to justice and equity, but does not, in this case, and could not, in this case, demonstrate a justifying circumstance. It is not a case wherein Mr Mordech’s income, wealth and general financial position is such as to completely overbear or oppress Ms Mordech.
Whether a party is receipt of a grant of legal aid
Neither is.
The conduct of the parties in relation to the proceedings
Neither has dallied in any fashion with respect to pleadings, particulars, discovery and the like. Each has attended to their business promptly and efficiently. The matter is concluded on the second Court event, albeit it, regrettably, by discontinuance by the father.
Whether the proceedings were necessitated by the failure of a party to comply with an order
This is not relevant.
Whether a party has been wholly unsuccessful
Mr Mordech was unsuccessful with respect to maintaining his Objection, but he is not wholly unsuccessful, as the section requires, “in the proceedings”. To the extent that he has not obtained a parenting Order, he is unsuccessful through discontinuance. Again, empathy and sympathy for the reasons for that discontinuance are not relevant, although I accept that put by Counsel for Mr Mordech that there are compelling reasons relating to the discontinuance which are not focussed upon seeking to achieve disadvantage for this child, even though, not purely through that action, but for the reasons discussed above, it may well be a consequence. However, Mr Mordech has not been wholly unsuccessful.
Whether a party has made an offer
It is unclear whether any offer was made with respect to the issue of Objection.
Such other matters as the Court considers relevant
Ultimately, I am not satisfied an Order for costs should be made. The proceedings were before the Court on 30 August 2017 to deal with the two Applications that were already before the Court and to undertake the substantial and important case management tasks that flow therefrom. Whether an Objection to Subpoena had been made or not would have done nothing more than perhaps to have shortened the Court event by 10 to 15 minutes. Nothing more.
The matter was set against that background. Also, as a matter of self-interest, the proceedings were called earlier in the list than they would have otherwise been if the strict alphabetical calling that arises from Case Track had been complied with and on the basis that the issue of Objection is of particular interest to me.
In those circumstances, I am not satisfied an Order for costs is justified, although I am satisfied justice and equity might have some impact had justification for departure from the general rule been established. However, it is irrelevant unless both pre-conditions to depart from the general rule are satisfied. Accordingly, Orders are made as follows (see Orders).
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 29 November 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Remedies
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Procedural Fairness