Moseley and Bonfield
[2014] FCCA 2181
•23 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOSELEY & BONFIELD | [2014] FCCA 2181 |
| Catchwords: FAMILY LAW – Costs – application for costs on an indemnity basis – no unusual or exceptional circumstances – costs awarded according to scale. FAMILY LAW – Passport – Australian passport – issue of Australian passport – where one parent does not consent to issue of passport – travel – international travel – permission for child to travel internationally – where mother seeks to take child on a holiday to (country omitted) – assessment of degree of risk child will not be returned to Australia. PRACTICE & PROCEDURE – Discontinuance – where Application for parenting orders discontinued – where respondent seeks to proceed with orders sought in Response. |
| Legislation: Australian Passports Act 2005 (Cth), s.11 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65H, 65Y Federal Circuit Court Rules 2001, r.13.02, Sch.1, Part 1 |
| Cases cited: Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248 In the Marriage of Kohan (1992) 16 Fam LR 105; (1993) FLC 92-340 Line & Line (1996) 21 Fam LR 259; FLC 92-729 Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 93-544 |
| Applicant: | MR MOSELEY |
| Respondent: | MS BONFIELD |
| File Number: | SYC 7500 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 16 September 2014 |
| Date of Last Submission: | 16 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2014 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor for the Respondent: | Ms Soden |
| Solicitors for the Respondent: | Soden Legal |
ORDERS
All previous parenting Orders are discharged.
The child X born (omitted) 2010 is to live with the Respondent Mother.
The Mother is to have sole parental responsibility for the child X.
The parties are restrained by injunction from permitting the child X to be left in the care of the Father’s sister Ms H or her partner Mr R until such time as the child attains the age of twelve (12) years.
The Mother is permitted to take the child X born (omitted) 2010 out of Australia to a place outside Australia in accordance with s.65Y(2)(b) of the Family Law Act 1975.
The child X born (omitted) 2010 is permitted to travel internationally as provided by s.11(1)(b) of the Australian Passports Act 2005 and for this purpose the mother is permitted to apply for the issue of an Australian passport to the said child X under the provisions of s.11(4)(b)(i) of the Australian Passports Act 2005.
The Applicant Father is to pay the costs of the Respondent’s mother fixed in the amount of $5,742.50.
I allow six (6) months to pay.
IT IS NOTED that publication of this judgment under the pseudonym Moseley & Bonfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7500 of 2013
| MR MOSELEY |
Applicant
And
| MS BONFIELD |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for parenting Orders and an application by the Mother for an order permitting her to obtain an Australian passport for the parties’ daughter X, who was born on (omitted) 2010. The Father, who was the original Applicant, consents to some of the orders but is opposed to the order for a passport, amongst others.
The proceedings commenced with the Applicant Father filing an application for parenting orders in respect of the parties’ daughter. The Mother filed a Response, seeking other parenting orders.
The parties entered into Interim Consent Orders on 24th February 2014 where the following Orders were made until further order providing that:
a)the child would live with the Mother;
b)the parties were to have equal shared parental responsibility for the child;
c)the Father would spend time with the child on specified times during the day on alternate Thursdays and on some other days, including some specified Saturdays and Sundays;
d)the Father would be at liberty to telephone the child;
e)changeovers would be at a Shopping Centre;
f)the child was not to be in the presence of anyone smoking;
g)the Father was to be personally present with the child during his contact visits;
h)the Father would advise the Mother of where he would be spending time with the child and whether he proposed to bring any other persons with him;
i)the parties would keep each other informed of their mobile telephone numbers and leave the telephones switched on;
j)the parties would advise each other of any major medical issues concerning the child; and
k)the parties were restrained from denigrating each other in the presence of the child.
The parties attended a Child Dispute Conference with a Family Consultant on 13th March 2014. They did not reach agreement on parenting issues.
On 18th June 2014 the Application was set down for an interim hearing on 16th September 2014. However, on 6th August the Applicant’s solicitor filed a Notice of Discontinuance, discontinuing the entire Application. His solicitor then filed a Notice of Intention to Withdraw as Lawyer.
The Respondent then filed an Amended Response on 14th August seeking final orders.
The Applicant filed a Reply on 27th August 2014. He then filed a further Reply on 10th September, which was set out in paragraphs like an affidavit but not sworn. This document, with the consent of the Respondent’s solicitor, has been treated as a submission.
Orders Sought
The Respondent, now effectively the party with carriage of the matter after the Applicant’s discontinuance, seeks the following orders in her Amended Response:
1. That the child X born on (omitted) 2010 (“the child”) live with the mother.
2. That the mother has the sole parental responsibility for the child.
3. That the parties are restrained from allowing the child to be left in the care of Ms H and Mr R, the paternal aunt and uncle of the child, at any time.
4. That the mother be at liberty to apply for a passport for the child and to that end, the necessity for the consent of the father to the issue of a passport for the child be dispensed with.
5. That the father pay the mother’s costs of this Application on an indemnity basis.
By his Reply, filed on 27th August 2014, the Father sought the following orders:
1. The child X born on (omitted) 2010 live with the mother until of legal age.
2. The mother has sole parental responsibility of X until she is of legal age.
3. The case of my sister Ms H and partner Mr R have no bearing on my application and as X’s father can determine what is safe and unsafe for her wellbeing.
4. Not until X is of legal age for the consent of a passport.
5. That the mother pays for her own legal representation.
In his later Reply the Father set out matters to which he agreed or disagreed, including:
I do not agree to Ms Bonfield being the sole parent as I want to be in X’s life. I decline on paying Ms Bonfield any costs as I pay child support and will continue to pay it at the formula child support assesses it to my income.
I will not agree to the passport until X is over the age of 12 years. I do want to be in X’s life.
Evidence and Submissions
The Mother relied on her affidavit of 1st September 2014. Her solicitor made submissions on her behalf. The Father did not seek to cross-examine the Mother.
The Father relied on his Reply of 27th August 2014 and his later “Reply”, which was in effect a submission, of 10th September 2014. The Mother’s solicitor did not seek to cross-examine him.
Essentially, there were three issues between the parties:
a)The Mother’s application for an order restraining the parties from leaving the child unsupervised in the care of the father’s sister and her partner;
b)The Mother’s wish to obtain a passport for the child; and
c)The Mother’s application for costs.
As to the Mother’s application for an order restraining the child from being left in the care of the Father’s sister and her partner, the Mother deposed at paragraphs [28] to [34] of her affidavit that in September 2009 the sister’s son aged 8 weeks was hospitalised with a fractured left femur. A full body scan taken whilst the child was in hospital revealed arm injuries which were approximately 2 weeks old.
As a result, the Department of Family and Community Services removed the child and his three year old sister from the care of the Father’s sister and her partner. The children remained in the care of the partner’s parents for a period of about five months, during which time the sister and her partner were permitted to visit the children for four hours each day.
The Mother deposed at paragraph [33] of her affidavit that she asked the Father about the circumstances of the sister’s child being injured but all he said was:
“I know what happened but it is privileged information and not for you to know”.
The Mother wants to obtain a passport for the child as she would like to travel to (country omitted) with the child and some friends in 2015.
As for the application for costs, the Mother deposed in her affidavit:
70.I have spent significant legal costs to ensure that X can be protected whilst having a meaningful relationship with X. Mr Moseley’s decision to remove himself from X’s life has left me with a significant financial burden and no benefit to X.
71.I therefore seek Orders for the sole parental responsibility for X and ask that Mr Moseley pay my costs on an indemnity basis.[1]
[1] Affidavit of Ms Bonfield 1.9.2014 at [70]-[71]
The Father set out in his Reply at paragraphs [22] to [26] his account of the injuries sustained by his sister’s child:
22….(the child)[2] was involved in an accident and suffered an injury to one of his legs and spent some time in hospital.
23.…Small fractures to his arms that may of happened as a result of (the child) falling over.
24.…Both children were removed by docs for approximately 5 months.
25.…Both children were in the care of Mr R’s parents where Ms H and Mr R visited them every day.
26.Ms Bonfield [3] does not need to know any further details as this has been through the family court process over 4 years ago with no charges laid both kids reinstated back to Ms H and Mr R.
[2] The child’s name is not published to protect his privacy
[3] The Applicant
The Father told the Court that he opposed the issue of a passport for the child as he was worried that the mother might not return the child if she took her out of Australia. He was unaware of the operation of the Hague Convention.
The Father opposed any order for costs, pointing out that he, too, had spent a considerable amount of money on legal costs.
The Relevant Law in respect of Parenting Applications
When the Court is required to make parenting orders, it must have regard to the objects of Part VII of the Family Law Act 1975 (Cth), which are set in subsection 60B(1). The objects include:
(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.
These two objects are reflected in subsection 60CC(2) of the Act.
The Court must also have regard to the principles underlying those objects, which are set out in s. 60B(2) of the Family Law Act 1975. These principles include the right of children to know and be cared for by both their parents and the right of children to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents).
Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, having regard to the primary considerations in subsection 60CC(2) and the additional considerations in subsection 60CC(3).
Section 61DA requires the Court to apply the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the child’s best interests to apply the presumption.
Subsection 65DAA applies when the Court has made an order that the child’s parents are to have equal shared parental responsibility. If that is the case, the Court must consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, in the alternative, whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
All of the above matters have been considered, although the parties have agreed that the mother is to have sole parental responsibility for the child, which means that the Court need not consider the matters in s.65DAA of the Act.
Passports and Overseas Travel
The Mother wishes to obtain a passport for the child without the Father’s consent. The Father opposes this application.
Section 11 of the Australian Passports Act 2005 (Cth) sets out the circumstances in which an Australian passport may be issued to a child without the consent of one of the child’s parents. Subsection 11(1) provides:
The Minister must not issue an Australian passport to a child unless:
(a)each person who has parental responsibility for the child consents to the child travelling internationally; or
(b)an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.
Subsection 11(4) provides:
For the purposes of subsection (1), a reference to:
(a)a person consenting to a child travelling internationally includes a reference to a person consenting to the issue of an Australian passport to the child; or
(b)an order of a court permitting a child to travel internationally includes a reference to an order permitting:
(i) the issue of an Australian passport to the child; or
(ii)contact outside Australia between the child and another person.
The term parental responsibility is given a wide definition for the purposes of subsection 11(5) of the Act:
For the purposes of this section, a person has parental responsibility for a child if, and only if:
(a) the person:
(i) is the child’s parent (including a person who is presumed to be the child’s parent because of a presumption (other than in section 69Q) in subdivision D of Division 12 of Part VII of the Family Law Act 1975); and
(ii) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975; or
(b) under a parenting order:
(i) the child is to live with the person; or
(ii) the child is to spend time with the person; or
(iii) the person is responsible for the child’s long-term or day-to-day care, welfare and development; or
(c) [repealed]
(d)the person is entitled to guardianship or custody of, or access to, the child under a law of the Commonwealth, a State or a Territory.
The Court has power to make an order permitting a child to be taken or sent outside Australia under s.65Y of the Family Law Act 1975:
(1)If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).
Penalty: Imprisonment for 3 years.
(2)Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:
(a)it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or
(b)it is done in accordance with an order of a court made under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1)
Costs
Costs in family law proceedings are governed by the provisions of section 117 of the Family Law Act 1975. Subsection 117(1) provides that each party to proceedings under the Act shall bear his or her own costs, this subsection is subject to, inter alia, the provisions of s.117(2), which states:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable rules of court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Subsection 117(2A) provides that in considering what order (if any) should be made under subsection (2), the court shall have regard to the matters set out in paragraphs (a) to (g) inclusive of the subsection.
In summary, those matters are:
a)The financial circumstances of each of the parties;
b)Whether any party is in receipt of assistance by way of legal aid;
c)The conduct of the parties to the proceedings;
d)Whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court;
e)Whether any party has been wholly unsuccessful;
f)Whether either party has made an offer in writing to settle the proceedings and the terms of the offer; and
g)Such other matters as the court considers relevant.
It is the usual case that where costs are ordered against a party they are ordered on a party and party basis. Costs would normally be ordered in accordance with the Court scale, which in this case is contained in Part 1 of Schedule 1 of the Rules.
Costs will only be ordered on an indemnity basis where there are unusual or exceptional circumstances (Colgate Palmolive Co v Cussons Pty Ltd[4]; In the Marriage of Kohan[5]; Prantage & Prantage[6]).
[4] [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
[5] (1992) 16 Fam LR 245; (1993) FLC 92-340
[6] [2013] FamCAFC 105; (2013) 49 Fam LR 93-544
Ms Soden, for the Mother, submitted, correctly, that if a party discontinues an application, Rule 13.02 provides that the other party may apply for costs. An application for costs in those circumstances must be made within 28 days after service on the party of the notice of discontinuance (r.13.02(2)).
Conclusions
The Father, in his Reply filed on 27th August 2014, sought orders almost identical to Orders 1 and 2 sought by the Mother in her Amended Response, namely:
1. That the child X- born on (omitted) 2010 (“the child”) live with the mother.
2. That the mother has sole parental responsibility for the child.
The orders sought by the Father are similar, except that he has added the words “until of legal age” to Order 1 and “until she is of legal age” in Order 2. With respect, the addition of those words is redundant, as s.65H of the Family Law Act 1975 provides that:
65H(1) A parenting order must not be made in relation to a child who:
(a) is 18 or over; or
(b) is or has been married; or
(c) is in a de facto relationship.
65H(2) A parenting order in relation to a child stops being in force if the child turns 18, marries or enters into a de facto relationship.
However, in the Father’s later Reply, he states that he does want to have a relationship with the child and:
I do not agree to Ms Bonfield being the sole parent as I want to be in X’s life.[7]
[7] Reply 10.9.2014 at paragraph [66]
This statement hardly accords with his earlier apparent consent to the Mother having sole parental responsibility for the child. However, he does not oppose the “live with” order nor does he seek any parenting orders in his favour. He makes it clear that he does not wish to have anything to do with the mother, which makes any situation other than sole parental responsibility problematic, to say the least.
I am satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility for her, so I will make an order that sole parental responsibility lies with the mother.
The Father does not oppose an order that the child should live with the Mother, and I consider that to be an appropriate order to make. The Mother has been this little girl’s primary caregiver all her life.
The Mother seeks, and the Father opposes, an order that the child should not be left in the care of the Father’s sister or her partner. The Father’s resistance is curious, noting that he is not seeking any order that the child should spend any time with him.
The Court must regard the best interests of the child as the paramount consideration. The primary considerations in s. 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It will be well-nigh impossible for the child, now aged four years and four months, to develop a meaningful relationship with her father if he chooses not to spend time with her. The Mother has complained in her affidavit of 1st September 2014 that she sought that the Father has not availed himself of her offers for him to spend regular time with the child, saying:
39.Whilst Mr Moseley has spent some time with X in the past, this has been inconsistent. Despite my attempts to contact Mr Moseley, there have been months where Mr Moseley was uncontactable or would refuse my offers to spend time with X. X has been affected by this as she would ask about her father, and I could not give her an answer as to when Mr Moseley would see her.
40.I would like to see Mr Moseley spending short periods of time with X to re-establish their relationship and to show an ongoing commitment to seeing her. I am happy to increase the contact between them once X is comfortable and settled in Mr Moseley’s care. X has only spent 1 night away from me since her birth.[8]
[8] Affidavit of Ms Bonfield 1.9.2014 at paragraphs [39]-[40]
The need to protect the child from harm is a significant issue. There is no issue between the parties that the paternal aunt’s child aged 8 weeks suffered injuries of some seriousness and the Department of Family and Community Services removed that child and his three year old sister from the care of the aunt and her partner for a period of five months.
The Father’s vague explanation at paragraphs [22] to [26] of his Reply is unsatisfactory, to say the least. The fact that a child aged 8 weeks was hospitalised with a fractured femur which led to the child being removed from the parents’ care is very serious. The Father’s explanation that the child’s “small fractures” of his arms that had apparently happened two weeks previously may have been caused by the child “falling over” (at the age of 8 weeks or younger) is hardly credible.
That the Mother need not know the circumstances because the matter went through the “family court” (sic) four years ago and no criminal charges were laid against the parents is an unacceptable explanation.
In my view, the evidence shows that there is an unacceptable risk that this child, at the age of just over four years, could suffer harm if left alone in the care of the Father’s sister and her partner. I will make an order that the child should not be left in the care or in the presence of the Father’s sister or her partner without supervision until she attains the age of twelve years.
The Mother seeks an order permitting her to obtain a passport for the child so that she may take her on a holiday to (country omitted) in 2015. The Father opposes this application, expressing a fear that the Mother may not return the child to Australia. There is no evidence at all that would substantiate such a claim.
Clearly, the Court must consider the degree of risk that the departing parent, once permitted to leave Australia with the child, will, despite assurances to the contrary, choose not to return (see Line & Line[9] at 4.49). There does not appear to be any evidence of any such risk. The Mother is an Australian citizen who does not appear to have any ties with any other country.
[9] (1996) 21 Fam LR 259; FLC 92-729
It is also significant that (country omitted) is a State of (country omitted), which is a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980. The Father was unaware of the existence of the Convention until the matter was raised in Court at the hearing.
There is no evidence to show that there is any real risk that the Mother, if allowed to obtain a passport for the child and travel with her out of Australia, would not return the child to Australia at the end of any proposed holiday.
I propose to order that the Mother is permitted to take the child out of Australia for a holiday and obtain an Australian passport for her.
Finally, the Mother seeks an order for costs. The Father is in employment, as is the Mother. Neither party is in receipt of a grant of legal aid. The Mother’s solicitor submits that the conduct of the Father in respect of the proceedings, by commencing proceedings and then discontinuing them without seeking any parenting orders in his favour, is a factor to be taken into account in making an order for costs.
It is certainly the case that the Mother’s costs application is in time, as the Mother filed her Amended Response seeking a costs order on 14th August, little more than a week after the Father filed his Notice of Discontinuance on 6th August 2014.
It is also a significant factor that the Father can be said to have been wholly unsuccessful in the proceedings, whilst the Mother has obtained almost all of the orders that she has sought in her Amended Response.
I am of the opinion that the above circumstances justify the Court in making an order for costs in favour of the Mother.
I have already made it clear to the parties that there was no evidence of any unusual or exceptional circumstances that would justify an order for costs on an indemnity basis.
I propose to order that the Father pay the Mother’s costs on the usual party and party basis. Costs will be set on the basis of the Court Scale set out in Part 1 of Schedule 1 to the Rules. Costs will be allowed as follows:
a)Item 1 – opposing application up to first court date $1994.00
b)Daily hearing fee 24 February 2014 $ 271.00
c)Daily hearing fee 18 June 2014 $ 271.00
d)Item 3 – interim or summary hearing $1661.00
e)Daily hearing fee plus advocacy loading $1495.50
f)Disbursement – subpoena fee $ 50.00
Total $5,742.50
The Father is to pay the Mother’s costs fixed in the sum of $5,742.50. I will allow six months to pay.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 23 September 2014
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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Costs
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Jurisdiction
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Remedies
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