NUGENT & NUGENT

[2017] FamCA 477

FAMILY COURT OF AUSTRALIA

NUGENT & NUGENT [2017] FamCA 477

FAMILY LAW – CHILDREN – Best Interests of the children – Where the substantial parenting dispute was settled by consent at final hearing – Where there are only discrete issues for determination – Where the parents live a considerable distance from one another – Where the father seeks substantial holiday time with the child to compensate for his lack of time with the child during the school term Where such “compensatory” time is not in the best interests of the child or his relationship with his mother – Where the mother seeks that the child communicate with her on the weekends the child spends with the father – Where such communication would be onerous for the father and child – Where restraints are sought against contact with the paternal grandfather and the mother’s former partner – Where there is no benefit to the child developing those relationships – Orders made.

FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer seeks that the mother pay half of the Independent Children’s Lawyer’s costs – Where the father has consented to paying his half – Where the mother has no financial capacity to pay costs – Where neither party was wholly unsuccessful – Where circumstances do not justify an order for costs – Application for costs dismissed.  

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 117

D & D (Costs) (No. 2) (2010) FLC 93-435
G & C [2006] FamCA 994
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Nugent

RESPONDENT: Mr Nugent

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 2967 of 2011

DATE DELIVERED: 7 July 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 3 and 4 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Houghton

SOLICITOR FOR THE APPLICANT: Soden Legal

COUNSEL FOR THE RESPONDENT: Mr Maddox

SOLICITOR FOR THE RESPONDENT: Barber & Massey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That B born … 2007 (“the child”) spend time with the father as follows:

   (a)       During school term from after school Friday to Sunday at 3pm on the first weekend of each calendar month commencing on the first Friday of each month.

   (b)       On no more than two additional weekends per school term, being the second and fifth weekend, from after school Friday to 5pm Saturday or 5pm Sunday (as elected by the father), with this time to occur in Sydney and the father to facilitate B’s attendance for any extra-curricular sporting commitments during this time with the father to provide 21 days notice in writing to the mother of his intention to spend time with B in accordance with this order.

   (i)For the purposes of facilitating the father’s time with the child referred to in Order (1)(b) above the parents shall meet in the foyer of Suburb C McDonalds at the conclusion of the father’s time.    

   (c)       During the Term One, Two and Three school holidays for the first half of the school holidays from after school on the last day of term to 5pm on the middle Saturday of the holiday period.

   (d)       During the Term Four school holidays:

   (i)In December 2017/January 2018, for the first half of the school holidays from after school on the last day of term to 5pm on the middle Saturday of the school holiday period and each alternate year thereafter; and

   (ii)In December 2018/January 2019, from 5pm on the middle Saturday to 5pm on the last Sunday of the school holiday period, and each alternate year thereafter.

2. That for the purposes of collection and delivery of the child at the commencement and conclusion of the time referred to in Order (1) above the father shall collect the child from school (if a school day) or in the foyer of Suburb C McDonalds (if a non-school day) at the commencement of the father’s time and the mother shall collect the child from the foyer of Suburb D McDonalds at the conclusion of the father’s time referred to in Order (1)(a) above.   

3. That whilst the child is in the care of the father, the mother shall communicate with the child as follows:

   (a)       During school holidays, each Tuesday and Thursday between the hours of 6.30pm and 7.00pm.

   (b)       To facilitate the telephone communication between the mother and the child the father shall initiate the phone call to the mother’s nominated mobile telephone number.

4. That the mother and father are restrained from allowing the child to come into contact with the paternal grandfather, Mr E Nugent, and the paternal step grandmother Ms F Nugent. 

5. That the mother is restrained from allowing the child to come into contact with Mr J. 

6. The application by the Independent Children’s Lawyer that the mother pay one half of the costs of the Independent Children’s Lawyer is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nugent & Nugent has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2967 of 2011

Ms Nugent

Applicant

And

Mr Nugent

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

1. This judgment concerns the remaining matters in dispute between parents about the long term parenting arrangements for their only child, B (“the child”) who is 10.

2. During the final hearing of the parties’ competing parenting applications agreement was reached in relation to virtually all matters in dispute and final orders were made with the consent of the parties.  Under those orders, the mother has sole parental responsibility for the child who is to live with her. 

3. The parties were unable to reach agreement about some small details concerning communication with the mother when the child is in the father’s care, and restraints about the child’s contact with other people said to be in the child’s best interest. Of significance, the parties have not resolved the issue of the father’s time with the child.

4. The only other matter in dispute concerns an application by the independent children’s lawyer (“ICL”) that the mother pay a contribution to the costs of the ICL. The orders made on 4 April 2017 include an order that the father pay his share of the ICL’s costs.

Background

1. The mother is a 35 year public servant and the father is a 39 year tradesman. The parties met in 2000 and were married in 2003. They lived throughout their relationship in the western suburbs of Sydney.

2. The parties’ only child was born in 2007 and is now 10 years old. Following the child’s birth both parents initially took time off from their employment and each was involved in his care.  The father then returned to work and supported the family financially while the mother attended to activities associated with the home and the care of the child. The mother subsequently also returned to paid employment.

3. The parties had a dispute in March 2011 when the father accused the mother of having an affair. The mother reported fears about the safety of herself and the child to police and an interim Apprehended Domestic Violence Order (ADVO) was made against the father with strict conditions for the mother’s protection.

4. The parties separated shortly after this incident. The child continued to live with the mother following separation.

5. A final ADVO was made on 30 May 2011 for 12 months for the protection of the mother against the father. This order did not prevent contact between the parties who reached some agreement about the father’s time with the child. Initially that time was supervised by a person agreed to between the parents and then in the mother’s presence at the former family home.

6. The mother commenced proceedings in a Local Court and in June 2011 those proceedings were transferred to the Federal Magistrates Court, as it was then known.

7. At the beginning of July 2011 the father moved to G Town near H Town, an area in which he had been raised.  G Town it is a distance of 340 kilometres from the mother’s home.

8. Pursuant to the first final parenting orders made in June 2012 the child continued to live with his mother and spend time with his father from after school on a Friday to Sunday afternoon on the first weekend of each month during school terms, for block periods during the school holidays and on special days.

9. For about eight months following the orders made in June 2012 the father spent time with the child at his home in G Town in accordance with those orders.

10. The parties divorced in July 2012.

11. In February 2013 the mother did not make the child available to spend time with the father for three months after she became concerned about an incident of sexualised contact with a cousin. In March 2013 the mother filed an Application seeking to revisit the parenting orders. The matter was once again resolved by orders being made with the consent of the parties in the Federal Circuit Court in May 2013.

12. Although the May 2013 orders were generally followed by the parties for a few months, from August 2014 until July 2015 the father spent virtually no time with the child.  Each of the parents makes allegations about the other parent’s conduct in this period.

13. The mother then commenced parenting proceedings in relation to the child for the third time.

14. An incident which caused significant concern in the proceedings and lead to the break in the father’s time with the child was the child’s complaint that the father punched him in the face while on a camping trip. The father maintains the child ran into a branch and accidently scratched his face.  The father also says that when packing the car for the camping trip he accidentally bumped the child in the face.  During this camping trip issues also arose in relation to the child’s contact with his mother as there was no mobile phone coverage and the mother became concerned and had police carry out a welfare check on the child. 

15. Some of the disputes between the parties at around this time related to the interaction between the father and the mother’s then partner, Mr J (“Mr J”).  The father maintains that on one occasion when he was waiting at the school grounds to collect the child Mr J verbally threatened and abused him and assaulted him.

16. Pursuant to court orders, the child began family therapy with a psychologist from March 2015.  Subsequently, the father participated in the therapy sessions with the child.

17. In June 2015 new interim orders were made in relation to the father’s time with the child. Pursuant to those orders the father spent time with the child for a period of two hours on a weekend day each third week under the supervision of a private supervision service and in a location near the mother’s home. This pattern of time continued from July 2015 to the end of October 2016.

18. The parties were assessed by an expert psychiatrist in April 2016.

19. On 8 November 2016 the orders were amended with the consent of the parties so that the father’s time with the child became unsupervised and for a period of four hours each third weekend.

20. From Christmas Eve 2016 pursuant to further interim orders made with the consent of the parties the father spent a number of individual days with the child during the school holidays. When school began in 2017 the father’s time with the child increased to each third weekend from after school Friday to Sunday afternoon.  Under this arrangement the father collects the child from school and returns him to the mother at a fast food outlet in Suburb D, the midway point between the parents’ homes.

21. There is no evidence filed by the father or paternal grandfather (in the mother’s case) as to the father’s relationship with the paternal grandfather. However, there is no dispute that the two are estranged and that there has been an order in place since June 2012 restraining the parties from bringing the child into contact with the paternal grandfather and his wife. Under cross-examination the father agreed he had a dysfunctional relationship with his father and his father’s wife and that the reasons for the estrangement were “extremely complex”. 

The proposals

1. As noted at the outset the parenting dispute is limited to three matters, being the time the father is to spend with the child, further orders in relation to the mother’s telephone communication with the child when he is with the father and restraints upon the mother bringing the child into contact with various people.

The father’s time with the child

1. As far as the father’s time with the child is concerned the mother proposes that this occur each third weekend during the school term from after school Friday to 3pm Sunday and on two additional weekends in Sydney should the father choose to exercise such time. The father proposes that his time with the child over a weekend occur on the same hours proposed by the mother once per month.  Although the Independent Children’s Lawyer (“ICL”) proposed orders along the same lines as the mother at the conclusion of the hearing, the ICL’s written submissions appear to support the father’s proposal for the time with the child once a month and the mother’s proposal for two additional weekends each school term in Sydney.

2. The dispute concerning the father’s time with the child in the holidays is of very limited compass. The father proposes that he spend 10 days with the child during the holidays at the end of terms one, two and three with the mother and ICL proposing that it be for one week for the balance of 2017 and then increase to half of those holidays.

3. There is also a small dispute concerning Christmas Day. The mother and ICL propose that the father spend Christmas with the child each alternate year when they are spending the first half of the school holidays together.  The father proposes that the father spend time in the first half of the holidays for a couple of years (which would include Christmas Day) and then alternate between the first and second half.

Mother’s communication with the child when in the father’s care

1. The second area of dispute relates to the mother’s communication with the child when he is in his father’s care.

2. In addition to an order providing for the mother to have telephone contact with the child on Tuesdays and Thursdays during school holidays the mother also proposes that she have telephone contact on a Saturday night when the child is in the father’s care on weekends during the school term. This proposed order is opposed by the father and not sought by the ICL.

Restraints on bringing the child into contact with particular people

1. The final area of dispute relates to restraints upon the parties bringing the child into contact with certain named people. The father (who does not have a good relationship with his father and his father’s wife) proposes that the restraint upon the parties bringing the child into contact with the paternal grandfather and his wife which has been in place since 2012 continue.

2. The father also seeks a restraint upon the mother bringing the child into contact with her former partner, Mr J.

3. The mother opposes both of these restraints on the basis that she remains in a friendship with Mr J and has a good relationship with the paternal grandfather and his wife.  The ICL supports the making of these injunctions.

Expert evidence

1. The parties were assessed by Dr K, (“the expert”) a child adolescent and family psychiatrist in April 2016 who prepared a report dated 16 August 2016 (“the expert report”). The expert report was tendered as an exhibit (exhibit 4).

2. The expert interviewed each of the parents and other members of each extended family and interviewed the child with each of the parents and the child alone. He also spoke with a psychologist who has provided therapy to the child, a psychologist who has provided court ordered therapy to the father and child and a psychiatrist who previously provided some assistance to the mother in relation to her claims that she had been a victim of domestic violence at the hands of the father.  The expert also had access to various documents provided by the ICL.  Neither of the parents or the ICL sought to cross-examine the expert and each therefore can be taken to accept the expert’s expressed opinions.  Having regard to the position taken by the parties together with the expert’s training and experience as set out in his curriculum vitae, I accept the evidence of the expert and attach significant weight to it. 

3. The particular opinions expressed by the expert relevant to particular best interest considerations are set out later in these Reasons.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects 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.

3. 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).

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

6. The primary considerations (under 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. 

7. I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.

Benefit to the child in having a meaningful relationship with both parents

1. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[1] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

   [1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.

   [2] (2007) Fam LR 518.

   [3] [2006] FamCA 994.

2. The Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

3. The expert’s overall impression was that the child has a positive foundation of relationship with each parent and it would be of great benefit to the child’s overall wellbeing and character development to maintain a significant relationship with both parents during his upbringing.

4. The child’s meaningful relationship with his mother is assured as he will continue to live with her under the final orders. Each of the proposals of the parties and the ICL provide for the father to spend significant time with the child during both the school term and holidays and on special days that will foster the child’s meaningful relationship with his father.  Each parent therefore recognises that the child will receive a benefit from having such a relationship with his father.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. This consideration relates to the need to protect the child from particular harm arising in particular ways.

2. The mother has at all times maintained that she was the victim of family violence at the hands of the father throughout the relationship and is concerned about psychological harm that may be occasioned to the child if he is exposed to family violence. The expert had the impression that “there were at least elements of a pattern of family violence in the father’s behaviour towards the mother during the parental relationship”.

3. However, having regard to the final orders made with the consent of the mother and the remaining orders that she proposes, the mother must be taken to accept that there is no unacceptable risk that the child will be exposed to family violence in father’s care.

4. The orders proposed by the father restraining the mother from bringing the child into contact with the paternal grandfather, his wife and Mr J raise the issue of the need to protect the child from the parental dispute and conflict.  It is not suggested that contact with these named people would expose the child to abuse, neglect or family violence.

5. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the child and factors underlying those views

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

1. The mother has been the child’s primary caregiver throughout his life and the expert describes this relationship as the child’s “foundational attachment relationship”. Pursuant to the final orders made with the consent of the parties the child will continue to live with his mother, and she will hold sole parental responsibility for him.

2. The relationship of significance and the views of the child in the orders under consideration relate to the child/father dyad.

3. When interviewed in April 2016 the child was spending limited supervised time only with his father.  The child expressed to the expert many negative things about the father including that if he could decide about how much time he would spend with dad he would “live with mum, and never see dad”.

4. The child during the interview with the expert in the mother’s presence said he was scared of the father and told the expert that he feared the father and would likely “put on an act” of positive engagement with the father during the interview. The expert noted that the child then did not display any refusal, reactivity or apparent fear when interviewed in the presence of the father without the mother. The expert expressed the view that his observations of the interaction between the father and the child were not consistent with the mother’s and child’s presentation of the child holding “a cogent and activated fear of the father”.

5. The expert considered the child’s disposition towards his relationship with his father in the context of his relationship with the mother. The expert opined that the child’s disposition arises mostly out of the child’s responses to the mother, and loyalty to the mother rather than out of his own experience of the father.

6. The expert had the impression that the mother projects her own experience and emotion in relation to the father onto the child and then elicits from him identification with that projection.  Although the expert did not believe that the mother had intended to be coercive the child had over time experienced this process as coercive and directive and had adapted by meeting the mother’s need for him to identify with her views about the father.

7. The expert had the impression that “in a day to day way, post-separation the child has a positive relationship with the father” which he describes as an attachment relationship.

8. For the reasons previously given I attach weight to the evidence of the expert that the child’s expressed fear of his father and negative attitude toward spending time with him relates more to the child’s response to meeting the mother’s need for him to identify with her views of the father. I do not regard those views as genuine expressions of the child’s attitude toward his father and for this reason do not attach much weight to them. I also accept the expert’s opinion that the child has a positive relationship with the father. 

9. This is however not a significant consideration is this dispute as both parents propose orders that will promote the child’s meaningful relationship with each parent.

10. The expert also considered the child’s relationship with the paternal grandfather, being a person who the father seeks to continue to exclude from the child’s life through his proposal that the restraint on contact with the paternal grandfather and his wife continue.

11. The father told the expert that he was estranged from the paternal grandfather and the expert noted that “the paternal uncle’s partner spoke of this as a circumstance common to all of the siblings, and arising from dynamics between the paternal grandfather’s partner and the sibling group”.    

12. The child told the expert that he liked his paternal grandfather and used to see him a lot but was not at the time of the interview allowed to see him (as the restraint on that contact has been in place since the June 2012 orders).

13. Neither the father nor mother give any evidence in their respective affidavits about the extent of contact or nature of the child’s relationship with the paternal grandfather and his wife prior to that restraint. The mother says in her affidavit that she would “love for [the child] to have a relationship with [the paternal grandfather].” The father denied under cross examination that the child ever had a relationship with his paternal grandfather.

14. There is no dispute that the mother has a good relationship with the paternal grandfather and his wife. The mother describes the paternal grandfather as helpful and supportive and wishes to have the current order restraining contact between him and the child removed so that the child can develop a relationship with him.

15. The expert expressed the following view about this relationship:

    It would be ideal for the child to be able to maintain a broad relationship with both extended families, but I am concerned that the downside of the child maintaining a relationship with the paternal grandfather through the mother, thus reinforcing the partisan narrative, may outweigh the benefits of any such contact.

16. I do not accept the submission made on behalf of the mother that there is no evidence to suggest that there has been a partisan narrative as opined by the expert. As noted the expert was not cross examined as to his opinions.

17. The expert report is replete with references to the mother’s partisan narrative about the father and the impact that this has had upon the child is a central feature of that report. The father clearly has a long standing dispute with his father from whom he is estranged while the mother regards the paternal grandfather as a helpful and supportive in her life. The father explained to the expert that he and his siblings are estranged from the paternal grandfather in the context of conflict with the paternal grandfather’s wife and the paternal aunt presented a similar narrative to the expert. In these proceedings the mother had obtained an affidavit in support of her case from the paternal grandfather’s wife. I attach weight to the concern expressed by the expert about the risk to the child in him maintaining or re-establishing a relationship with the paternal grandfather in these circumstances. 

18. The next matter to consider relates to the restraint sought against the child’s contact with Mr J.

19. The mother told the expert that she had separated from Mr J in late 2015 and at the final hearing confirmed that she was no longer in a relationship with him, but did regard him as a friend.

20. When expressing an opinion in relation to the mother’s mental state and parenting capacity the expert described the mother’s relationship with Mr J as appearing to have been reasonably mutually respectful. However he added:

    But I note [Mr J]’s criminal history of a conviction for assault in his 20s and one in his 30s and [Mr J]’s admission to police that he had on one occasion threatened the father. So, the mother may have been accommodating to some patterns of coercive behaviour within that relationship, also.

21. At the time the family were assessed by the expert the mother was not reporting that she was then in a relationship with Mr J. The father was also not seeking any restraint with respect to Mr J as he says he was unaware that the mother still regarded Mr J as a friend. Accordingly the expert’s opinion was not sought or given in relation to the father’s proposed restraint on the child coming into contact with Mr J.  There is no evidence in the proceedings concerning the child’s relationship with Mr J.

22. The opinion expressed by the expert regarding the risks associated with the child’s contact with the paternal grandfather and his wife in my view also have some application with respect to contact between the child and Mr J. There is no dispute between the parties that there has been angry verbal interaction between Mr J and the father including in relation to parenting matters such as the payment of child support. It is also not in dispute that the father made a complaint to police that Mr J had threatened him. The expert also refers to Mr J’s admission to police that he had on one occasion threatened the father. The expert expresses the view that the mother’s relationship with Mr J appears to have been positive (albeit with some reservations) and the mother says she currently has a friendship with Mr J. There is therefore some risk that the friendship with Mr J and his conflict with the father may form part of the mother’s narrative of the father to which the child may be exposed.

23. There is in my view arguably an even stronger case for the restraint upon contact with Mr J being imposed where no clear benefits to the child of contact with Mr J have been identified.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

1. It is not in dispute that the father has diligently taken the opportunity to spend time with the child and communicate with the child following separation.  

2. The father seems most concerned about maintaining his relationship with the child through spending time with and communicating with him rather than being involved in long-term decision making.  The parties have consented to orders that the mother have sole parental responsibility for the child

Likely effect of change in the child’s circumstances

1. There will be little change in the child’s current circumstances regardless of the orders made under either proposal.

2. When the expert assessed the family the mother was then proposing that she have sole parental responsibility for the child, that the child live with her and that the father be restrained from approaching or contacting her or child. The father at that stage sought that the mother’s application be dismissed. The expert’s recommendations were made in this context. The general thrust of the recommendations of the expert was adopted by the parties in the final orders made with their consent.

3. Both parties’ proposals with respect to the father’s time with the child are also in accordance with the expert’s recommendations. Overall, the expert recommended that the child’s time [prior to it having been reduced to a limited supervised basis] be reinstated [to the level provided for in the May 2013 orders] and possibly with some increase in the amount of time.  The expert opined:

   this maintenance or increase in time provides a substantial weight of lived experience of the father for the child, to counter maternal projection, and to keep the relationship with the father strong, and based upon that lived experience, rather than upon identification with projection.

4. Although the expert suggested changing the pattern of the father’s time with the child from one weekend per month to each third weekend which is now promoted by the mother, I accept the father’s unchallenged oral evidence that he cannot travel to Sydney more than on one weekend per month. 

5. The additional two weekends each term during which the father may also spend time with the child in Sydney, promoted by the ICL and mother potentially involves a change in the child’s circumstances. That proposal is also however in-line with the expert’s recommendations that the father attend the child’s sporting activities or other extra-curricular activities which the expert felt would “potentially be a very positive and integrating experience for the child”.  Such an arrangement gives the child an opportunity to spend time with his father in his “own world” and break down the dissonance between the child’s “two worlds” as described by the expert. 

6. The restraints upon the child coming into contact with his paternal grandfather and his wife will not bring about any change in the child’s circumstance as the child has not had contact with either of them for many years. 

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. The father lives 340 kilometres from the mother’s home.  There are significant practical difficulties and some expense for the father involved in spending time with the child both at the father’s home or in Sydney.  The child of course also endures long car trips when spending time with his father in the country. 

2. The proposal of the father that the child spend time with him at his home once a month rather than every three weeks reduces the burden of long travel on both the father and the child.  The costs and practical difficulty associated with the father spending time with the child in Sydney is addressed in the proposed orders of the ICL and mother as this additional time is optional and available to the father to meet his convenience. 

3. The issue of practical difficulty associated with communicating with a parent also arises in relation to the mother’s proposed order for her communication with the child when in his father’s care on weekends during the school term. Although in written submissions made on behalf of the mother the issue is identified as relating to the question of which parent is to instigate telephone calls when the child is in his father’s care, in the course of the father’s evidence the father agreed to an order that he be the one to facilitate the telephone calls from the child to his mother. The issue in dispute is whether there should be further telephone communication between the child and his mother on a Saturday night when the child is spending time with the father on weekends during the school term.

4. The mother’s submissions are directed to her concern that she may not know that the child has arrived safely at his father’s home after he is collected from school for the commencement of weekend time. However, the order sought by the mother is for telephone communication on a Saturday night, some 24 hours later.

5. It is not a matter of dispute between the parties that the child enjoys engaging in outdoor activities including camping with his father when they spend time together. On occasions this includes the child and father being in places which are out of mobile telephone range. It would be onerous in my view to require the father when spending weekends with his son once a month to remain within mobile telephone range on a Saturday night.

6. Further, the opinion of the expert as to the child’s adaptation to his mother’s narrative suggests that the child will benefit from spending time with his father without that maternal influence which the child appears to have experienced as coercive. When making recommendations about the frequency of telephone contact the expert refers only to telephone contact with the father when the child is in the care of the mother and with the mother during the holiday time that the child spends with the father. He does not make any recommendation about the child’s contact with the mother during his weekend time with the father.

7. Taking into account the foregoing matters in my view it will be more beneficial for the child that the additional telephone contact as sought by the mother not be ordered during his weekend time with his father.

8. Written submissions made on behalf of the father also refer to an issue of practical difficulty arising from the mother’s proposed orders concerning the child’s time with each of his parents at Christmas. However, the final proposal of the mother as reflected in her Minute of Order (exhibit 3) does not set out any specific provisions for the child to spend time with each of his parents at Christmas. The effect of her proposal that the child spend the first half of the holidays with each parent in each alternate year is that the child will spend the Christmas period with one parent in each alternate year.

9. Issues relating to practical difficulty and expense are not so great as to substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

Capacity of each parent and any other person to provide for the child’s needs

Attitude to the child and the responsibilities of parenthood demonstrated by each parent

1. It is not in dispute that each of the parents are capable of providing for the child’s needs as final orders provide for the child to live with his mother who is to have sole parental responsibility for him and each of the parties and the ICL propose that the father spend significant time with the child including overnight and holiday time.

2. It is also not in dispute that each of the parents loves the child and believes that the orders proposed by them are in the child’s best interests.

3. Neither of these matters is weighty when considering the limited dispute between the parties.

Maturity, sex, lifestyle and background (including culture and traditions) of [the child and either parent

1. The child who is now 10 was only four years old when his parents separated.  The parents present as very different people with different parenting styles.  The father who has generally positive relationships with his siblings and their families and enjoyed outdoor activities such as camping and hunting during his youth, returned to live in the country region in which he was raised soon after separation.

2. The father has developed his meaningful relationship with the child by taking the child to spend time at his home in the country on weekends and during the holidays for many years.  The child has developed good relations with his extended paternal family including many cousins. He presented to his psychologist, the family therapist and the expert as an active “outdoorsy” boy who enjoys activities such as camping, building bridges with sticks, catching fish and yabbies when with his father.  He is interested in gem stones and scientific matters, enjoys playing with his pets at his mother’s home and is a keen soccer player.

3. The child has displayed some aggressive behaviour but in the view of the expert he displays “an impressive degree of insight, knowledge, and constructive attitude of responsibility and of differentiation between anger and the behavioural response to anger and the ongoing use of specific anger/management strategies”.

Family violence

1. As noted previously the mother has consistently maintained that she was the victim of family violence perpetrated by the father against her throughout the relationship and particularly following the birth of the child. The expert noted that when interviewed the mother also gave a consistent narrative of the father’s significant pattern of family violence towards her. The expert observed that the mother’s descriptions of the father’s conduct fall within the broad definition of “family violence” and were not limited to allegations of physical violence. The expert’s use of the terms “family violence” or “domestic violence” in his report “denote a pattern of behaviour within a family relationship that is coercive, intimidating, disrespectful and harmful to the other”.[4]

   [4] This use of that terminology is consistent with the definition of “Family Violence” in s4AB of the Family Law Act 1975 (Cth).

2. On the basis of the information provided by both the parties and other family members, documents including the notes of the mother’s psychiatrist and police records the expert found it difficult to determine the extent of family violence perpetrated by the father during the relationship. It was clear to the expert however that the mother experienced the father’s behaviour towards her during their relationship as “profoundly distressing, intrusive and destructive to her personal security and well-being” and noted that this was in the formative and vulnerable period for both parents of their young adulthood. Overall he expressed the following view:

   I think it likely that there was a pattern of family violence perpetrated by the father against the mother, of moderate severity, but arising more from an interaction between the paternal immature entitlement, and straightforward style in conflict and the maternal vigilant and distressed pre-emptive compliance, rather than from antisocial or narcissistic personality structure in the father.

3. While the expert’s opinions about family violence may provide an explanation for the mother’s disposition toward the father, she does not rely upon this opinion to suggest that there is an unacceptable risk that the child may be exposed to violence in the father's care this is thus not a weighty consideration.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. For a child who has been the subject of protracted proceedings between his parents for much of his life it is always preferable to make an order that is least likely to lead to the institution of further proceedings. However, it is also difficult to predict the likelihood of a parent instituting further proceedings.

2. The dispute under consideration is of very limited compass and as the parties have reached agreement concerning virtually all matters it is hoped for the sake of the child that this will bring an end to the litigation between them.

Any other relevant fact or circumstance

1. The father’s proposal with respect to his time with the child during weekends in the school term would result in him spending less time with the child than under the proposal of the ICL or mother. His proposal that the child spend 10 days of each of the holidays at the end of terms one, two and three (though I note the ICL’s observation that his proposed orders may not achieve this result) appears to be based upon the concept that he should be “compensated” for spending less time under his proposal during the school term than under the mother’s proposal. There was also a theme of “compensation” and “fairness” (to the father) throughout his oral evidence. This was particularly the case in relation to his proposal that the child spend 15 days with him in the April 2017 school holidays which was finally reduced to two days and in seeking Christmas holiday time in the pattern proposed. In my view this is not an appropriate way to approach the matter of the father’s time consistent with the child’s best interests.

2. I accept the submission of the ICL that the father is seeking that the child spend the majority of his leisure time with him during the three short holiday periods in circumstances where the father cannot guarantee that he will be able to be present during the child’s time with him. The effect of his proposal is the mother having very little leisure time with the child during these three school holidays while shouldering the majority of the burden of parenting the child during school terms. I also accept the mother’s evidence that as the child matures he is expressing a desire to spend time with his friends in the holidays. In my view the proposal that is most child focused with respect to school holidays is that proposed by the mother.  

Conclusion – parenting orders  

1. Having regard to the foregoing considerations, I am of the view that the orders proposed by the father with respect to his time with the child during the school term and the mother with respect to the additional weekends during school term and school holidays are in the best interests of the child.

2. I am also of the view having regard to the relevant considerations that it is not in the best interest of the child to make the additional order as sought by the mother with respect to telephone communication when in the father’s care.

3. I am also satisfied that it is proper to make the restraint as sought by the father with respect to the child’s contact with his paternal grandfather and the grandfather’s wife and Mr J.

Costs of the Independent Children’s Lawyer

1. The ICL seeks an order that the mother pay to Legal Aid NSW half of the costs of the ICL within 48 hours of the date of these orders.

2. During the course of the final hearing the father consented to paying his share of the ICL’s costs. 

3. The mother opposes an order that she contribute to the costs of the ICL.

The law & Discussion

1. Applications for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule that each party is to bear his or her own costs.  That principle is, however, subject to the discretion afforded to the trial Judge in subsection (2), and the Court may make an order for costs if there are circumstances that justify it in doing so.

2. The High Court in the matter of Penfold v Penfold[5] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

   [5] (1980) 144 CLR 311.

3. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.The relevant matters will be considered and balanced below, noting that there is nothing preventing any one factor being the sole determinant for an order for costs.[6]

   [6] PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123.

4. The Court is conscious of the restrictions provided in section 117(4) of the Act that the Court must not make an order against a party in favour of an ICL if the party has received legal aid in the proceedings, or if the Court considers the party “would suffer financial hardship” as a result of an order to bear a proportion of the ICL’s costs.

5. As to the section 117(2A) considerations, the mother first submits that she does not have the financial capacity to pay the costs of the ICL. She borrowed money from her parents to conduct legal proceedings and receives extremely limited financial support in the way of government benefits and child support from the father. The mother’s Financial Statement filed 3 March 2017 supports this position. While a finding that the mother is impecunious does not prevent me from making a costs order against her[7] it is a factor to be taken into consideration.

   [7]D & D (Costs) (No. 2) (2010) FLC 93-435.

6. The mother further submits that the father’s conduct of the proceedings, particularly in ceasing to pursue his application, which the mother submits had no merit, that the child live with him, on the first day of the final hearing, prolonged the proceedings and increased the costs of the matter. Therefore the father should have to bear the entirety of the ICL’s costs.

7. I do not accept the mother’s submission that the father’s conduct unreasonably increased the cost of and prolonged the proceedings, as it was always open to him to pursue orders that the child live with him. Neither party was wholly successful or unsuccessful in these proceedings in light of my findings set out earlier in these reasons that some of the orders proposed by each of the parties are in the best interests of the child and those orders made.      

8. Balancing the relevant matters that I have set out, I am satisfied that these circumstances do not justify the making of an order for costs against the mother in favour of the ICL.

9. Accordingly, I dismiss the application for a costs order against the mother.

10. The orders that I make are set out at the forefront of these Reasons for Judgment.

I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 July 2017.

Legal Associate: 

Date:  7 July 2017