Pacetti & Dambrose

[2022] FedCFamC1F 497

Federal Circuit and Family Court ofAustralia

(DIVISION 1)

Pacetti & Dambrose [2022] FedCFamC1F 497

File number(s):

PAC 2061 of 2018

Judgment of:

HANNAM J

Date of judgment:

14 July 2022

Catchwords:

FAMILY LAW – COSTS – Where father seeks an order that mother pay his costs arising from Contravention proceedings initiated by her – Where mother had filed a series of Contravention applications which were each summarily dismissed by the Court – Where the mother’s mental health and functioning is a weighty matter in determining the father’s costs application relating to the Contravention proceedings – Where father also seeks an order that he be awarded costs for the costs application - Where in the circumstances the Court considers this second costs application may be procedurally unfair to the mother – Where Court not satisfied that there is sufficient justification to depart from the usual rule that each party bears their own costs - Orders made that father’s costs application be dismissed.

Legislation:

Family Law Act 1975 (Cth) ss 70NCB, 117

Cases cited:

Earle & Earle [2022] FedCFamC1F 16

Pacetti & Dambrose (No 3) [2021] FCCA 862

Penfold v Penfold (1980) 144 CLR 311

Division:

Division 1 First Instance

Number of paragraphs:

83

Date of last submission/s:

8 December 2021

Date of hearing:

In chambers on receipt of written submissions

Place:

Parramatta

Counsel for the Applicant

Mr Liedermann

Solicitor for the Applicant

Edwards Kirby Lawyers

Solicitor for the Respondent

Litigant in person

ORDERS

PAC 2061 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PACETTI Applicant
AND:	MS DAMBROSE Respondent

order made by:	HANNAM J
DATE OF ORDER:	14 july 2022

THE COURT ORDERS THAT:

1.The father’s application that the mother pay his costs arising from Contravention proceedings initiated by her and costs incurred by him in relation to the present costs application made to the Court is dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

HANNAM J:

introduction

1. An applicant father in parenting proceedings concerning a young girl aged five seeks an order that the respondent mother pay his costs arising from contravention proceedings initiated by the mother.

2. The mother filed three Contravention applications in April and June 2021 (“the mother’s Contravention applications”) alleging that the father failed to facilitate the child’s time with her on numerous occasions, failed to engage with proposed contact services that would help facilitate the child’s time with her, and otherwise failed to file court documents as directed by the Court.

3. Although the mother’s Contravention applications were listed for hearing in October 2021, the hearing did not proceed in circumstances where the mother was unrepresented and an order under s 102NA of the Family Law Act 1975 (Cth) (“the Act”) had been made prohibiting cross-examination.

4. Upon application made by the father, I made orders on 24 November 2021 that each of the mother’s Contravention applications be summarily dismissed. The father then made an application for costs against the mother. The Independent Children’s Lawyer appointed to the proceedings (“ICL”) did not wish to be heard in relation to the father’s application.

5. Directions for the filing of written submissions in relation to the costs application were subsequently made with which only the father has complied. No submissions or evidence in response to the father’s costs application has been filed by or on behalf of the mother.

6. The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs in relation to the Contravention proceedings.

   BACKGROUND

7. The parties (“the mother” and “the father”) have been involved in highly acrimonious parenting proceedings concerning the future parenting of their five year old daughter (“the child”) since 2018.

8. The first tranche of litigation was commenced by the father in the Federal Circuit Court (as it was then known) in May 2018 about a month after the parties separated. At the time, a final Apprehended Violence Order had been recently made against the mother for the father’s protection.

9. The parenting proceedings initiated in 2018 resolved by way of final orders made in August 2020 (“the August 2020 final orders”) providing that the parties equally share parental responsibility for the child and that the child live with father and spend gradually increasing time with mother with changeover to be initially supervised for a period of six months.

10. In the ensuing months the father facilitated the child’s time with the mother pursuant to court orders but on several occasions the mother did not return the child to him at the time provided for in the orders.

11. One such occasion was in November 2020 when the mother withheld the child from the father resulting in the father filing an urgent application in the Federal Circuit Court for the recovery of the child. With the filing of this application the father also initiated the current proceedings for new parenting orders. A recovery order was issued for the child on 23 November 2020 and the child was returned to the father where she has continued to live since that time.

12. Following the making of the recovery order, the mother sought interim orders that the child live with her and spend supervised time with the father. She also sought an order that the child have no contact with the paternal grandmother (who shares a household with the father) until such time the paternal grandmother seeks “psychiatric evaluation and treatment”.

13. It has generally been the father’s case from the outset of the current parenting proceedings that the mother poses a risk of harm to the child on the basis that the mother’s mental health is unstable and that there is a real risk that she will undermine the child’s relationship with him. He also has continued to maintain that there is a real risk that the mother (who is a foreign national and whose immigration status is unclear) may remove the child from Australia. In early December 2020 the father filed a Response to the mother’s application seeking interim orders that he hold sole responsibility for the child and that the child’s time with the mother be limited to six hours each Sunday supervised at a contact centre.

14. On 4 December 2020 interim orders were made with the consent of the parties providing that the recovery order made for the child remain operative for 12 months. The father also agreed to an order that he ensure that the paternal grandmother does not physically chastise the child. Later that month, an ICL was appointed to the proceedings.

15. In the early months of 2021 the child ceased spending time with the mother in circumstances disputed by the parties. Ultimately, the father refused to make the child available to spend time with the mother which led to the mother filing several Contravention applications, and other case applications effectively seeking to vary the August 2020 final orders.

16. The first Contravention application, alleging that the father failed without reasonable excuse to allow the child’s time with the mother to occur between January and February 2021, was filed by the mother in early March 2021. This initial Contravention application was dismissed by a Judge of the Federal Circuit Court a month later following a brief hearing.

17. On 22 April 2021 judgment was delivered by the same judge as to the threshold issue of whether there had been a significant change in the child’s circumstances since the making of the August 2020 final orders such that it is in the child’s best interests to revisit her parenting arrangements. The Court decided[1] that as there had been a significant breakdown in the parental relationship and in the parents’ capacity to cooperate and communicate with each other, the child had been exposed to the parental conflict in an ongoing way and that concerns had been raised about the state of the mother’s mental health and her willingness to consistently comply with the Court’s final orders, these matters justified revisiting the child’s parenting arrangements.

    [1] Pacetti & Dambrose (No 3) [2021] FCCA 862.

18. On the same date that judgment was delivered, the proceedings were transferred to the Family Court due to their complexity.

19. Almost immediately after the proceedings were transferred to this Court, the mother on 28 April 2021 again filed a Contravention application (“the April Contravention application”) relating to the child’s time with her. She alleged that between January and April 2021 the father failed to attend changeover with the child pursuant to court orders, though some of these contact events had already been relied upon in her earlier Contravention application that was dismissed.

20. At a court event before a Registrar on 13 May 2021 the mother pressed her April Contravention application and her other case applications in which she sought to change the child’s parenting arrangements.

21. On 21 May 2021 the matter came before the Court for judicial case management and orders were made providing in summary that:

    ·The child’s time with the mother under the August 2020 final orders be suspended;

    ·Pending further order the child spend supervised time with the mother for not less than two hours each fortnight; and

    ·The child’s supervised time with the mother occur at contact centre or be supervised by a community-based supervision service to be agreed to by the parties or failing agreement, to be nominated by the ICL.

22. At the judicial case management court event filing directions were also made to ready the proceedings for an interim hearing before a Senior Registrar on a future date.

23. On 1 June 2021 the mother filed a further Contravention application (“the 1 June Contravention application”) relating to a purported delay on the part of father in organising the child’s supervised time her. She argued that in declining a contact service proposed by her, the father prevented the child spending time with her.

24. When the proceedings came before a Registrar on 17 June 2021 the Court was advised that the parties had undertaken intake assessments and were now on waiting lists or otherwise in the process of undertaking various actions with a number of supervision agencies. At that court event the mother continued to press her 1 June Contravention application and also indicated an intention to file another Contravention application in relation to the father’s alleged non-compliance with filing directions made in May 2021. To address the last-mentioned issue, the Registrar made orders extending the timetable for compliance.

25. Notwithstanding the Registrar’s orders on the last occasion, on 24 June 2021, as foreshadowed, the mother filed a Contravention application (“the 24 June Contravention application”) alleging that the father failed to comply with the earlier filing directions made by the Court.

26. The father did not file a Response to any of the mother’s Contravention applications but amended his Initiating Application on 29 June 2021 to seek interim orders that the mother be declared a vexatious litigant and be restrained from filing any further application without leave from the Court. In that amended application the father also sought that the child spend no time with the mother and that she be restrained by order from approaching the child or contacting the child’s school.

27. In the following months the child did not spend any time with the mother in accordance with orders providing for that time to occur in a supervised setting. At a court event before me on 12 October 2021, the ICL informed the Court that the supervision services that had been approached to date had declined to provide their services on the basis of risks associated with the mother’s behaviour, a matter which the mother emphatically denied. The mother maintained at the time that there was some form of collusion between the service providers, the ICL and the father preventing compliance with the orders for the child’s time with her.

28. Given the circumstances surrounding the child’s time with the mother, and as there had not yet been any expert evidence obtained in the proceedings at that stage, the Court took a cautious approach to the reintroduction of the child’s time with the mother and ordered that this time be suspended until the preparation of a Child Impact Report by a Court Child Expert.

29. Although on the same occasion (12 October 2021) the mother’s April Contravention application was also fixed for hearing, such hearing did not proceed on that date.

30. At the 12 October court event the father’s lawyer subsequently made an application for summary dismissal of each of the mother’s Contravention applications which was supported by the ICL. The mother did not consent to the father’s application for summary dismissal being dealt with either on that day or through written submissions and sought to adjourn the matter to allow her to organise legal representation. Prior to adjourning, the Court on its own volition raised the possibility of consideration being given to the appointment of a case guardian for the mother. The mother who appeared to understand the nature of the mooted appointment declined to participate in any form of assessment so that the appointment of a case guardian could be further considered.

31. On 24 November 2021 when the father’s application for summary dismissal was listed for determination the mother was again representing herself. After a lengthy interchange between myself and the mother addressing each of the contraventions alleged by her against the father, I summarily dismissed the mother’s April, 1 June and 24 June Contravention applications. As will be touched upon later in these Reasons, I was satisfied that none of the mother’s Contravention applications had a reasonable prospect of success.

32. The father subsequently sought a costs order against the mother in respect of her Contravention proceedings and directions were made for the parties to file directly to chambers their written submissions and any evidence relied upon in relation to that costs’ application.

33. The ICL did not wish to be heard in relation to the costs issue. Upon receiving the father’s written submissions and supporting affidavit in early December 2021, noting that no material had been filed by the mother as directed, the father’s costs application was reserved to chambers.

    THE COSTS APPLICATION

34. The father seeks an order “pursuant to either s 70NCB or s 117 of the Act” for the mother to pay his costs of and incidental to her three Contravention applications filed in April and June 2021 (“the Contravention proceedings”).

35. Although not foreshadowed when the mother’s contravention applications were summarily dismissed, in the Minute of Order attached to the father’s written submissions the father also seeks an order that the mother pay his costs arising from his costs application itself. He submits that if the Court makes an order that the mother pay his costs relating to the Contravention proceedings, the Court can “appropriately rely upon the same justifying circumstances to award the father his costs for his current application”. This is a matter to which I will return.

36. As indicated, the mother did not file any material in response to the father’s application for costs.

    THE LAW AND DISCUSSION

    Costs for the Contravention proceedings

    The application under s 70NCB

37. The first provision of the Act which the father contends supports his application for costs is s 70NCB. It is his submission that he has been required to respond to “consistent and unnecessary” Contravention applications filed by the mother.

38. Section 70NCB falls within Subdivision C of Division 13A and deals with costs in Contravention proceedings where a contravention is alleged but not established. The father relies in particular upon s 70NCB(2) which provides that the Court must consider making an order under s 70NCB if:

    (a) the applicant [being the mother in the present case] has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and

    (b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:  

    (i)  was not satisfied that the respondent had committed a contravention of the primary order or that other primary order.

    …

39. I am satisfied that pursuant to s 70NCB the Court should consider making an order against the mother, particularly in relation to her April Contravention application, as I accept, as contended by the father, that the contraventions alleged by the mother in that application (that the father failed to facilitate the child’s time with her on specified dates between January and February 2021) have not been made out on two occasions.

40. As correctly identified by the father in his submissions, however, the Court’s more general power to make an order for costs is set out in s 117 of the Act.

    The application under s 117

41. Applications for costs in this Court are the exception to the rule. Section 117(1) of the Act sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to subsection (2) which gives a Court a discretion to make an order for costs if there are circumstances that, in the Court’s opinion, justify it in doing so. Any such order for costs is to be pursuant to s 117(2) “as the Court considers just”.

42. The High Court in Penfold v Penfold[2] 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.

    [2] (1980) 144 CLR 311.

43. 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 matters relevant in this case are considered below.

    The financial position of each of the parties to the proceedings

44. The father relies upon an affidavit dated 8 December 2021 in support of this costs application in which he deposes to having been required to commence a second job in order to fund his legal costs which has resulted in him working 60 hours a week. Although there is no dispute that he is the sole carer of the child and he deposes to receiving no child support from the mother and being unable to borrow further money, it is not suggested on his behalf that he is impecunious. In other words he has been able to meet his legal costs of the proceedings in the absence of an order that the mother pay the same.

45. There is no evidence in relation to the mother’s financial circumstances and thus her position is uncertain.

1. I am unable to make any finding other than that the father has incurred considerable expenditure in relation to defending the mother’s Contravention applications, but I cannot be satisfied that he is impecunious. In any event, even if I were to find that the father was in a limited financial position as he contends, this matter of itself does not necessarily provide sufficient justification for making an order that his costs be paid by the mother.

   The conduct of the parties in relation to the proceedings

2. The father relies to a considerable extent on the conduct of the mother in relation to the proceedings and in particular that she declined to withdraw her Contravention applications on the basis that they were hopeless despite being given an opportunity to do so by the Court on 12 October and 24 November 2021. This conduct, in the father’s submission, caused the Court to be required to determine those hopeless Contravention applications rather than determining the substantive issues between the parties.

3. While it may be observed that some weight must be attached to the mother’s insistence on proceeding with Contravention applications that were doomed to fail, her approach must be considered in the context of her presentation, questions that arise about her capacity and concerns about her mental health, a matter to which I will return.

4. I am also not satisfied that the determination of the mother’s Contravention applications on 24 November 2021 created delay in the progress of the substantive proceedings as submitted by the father for the following reasons.

5. Firstly, neither party nor the ICL had at that stage sought orders for the preparation of a Family Report to progress the matter to final hearing. Court records also indicate that at a preceding court event on 12 October 2021 the Court was advised that the child’s supervised time with the mother as provided for under interim orders had not yet commenced as supervision services that had been approached to date had declined to provide their services on the basis of the risks associated with the mother’s behaviour. In taking a cautious approach to these matters, the Court on its own volition ordered a Child Impact Report by a Court Child Expert, which was only completed and available to be released to the parties on the very date that the mother’s Contravention applications were summarily dismissed. Accordingly, when looking at the circumstances of the proceedings as a whole, it cannot be said that the determination of the mother’s Contravention applications delayed the proceedings in any significant way.

6. Although I note that the time spent determining the mother’s Contravention applications at the summary dismissal hearing on 24 November 2021 exceeded the one hour that had been allocated, this matter is of little weight when viewed against the circumstances of the mother’s presentation and mental health and the reality that she was self-represented at the hearing which included lengthy interchanges between she and myself in the course of that court event.

7. The father otherwise contends in support of his application for costs against the mother that at the conclusion of the hearing on 24 November 2021 a costs order against the mother in a fixed amount calculated in accordance with Schedule 3 of the Act was sought on his behalf. He submits that such an application was an “offer” to the mother, and her refusal of such offer necessitated him making his current costs application.

8. In my view, this last-mentioned matter is not weighty given that when this ‘offer’ was made by the father, the costs application he is now pursuing had not been determined. In other words, the father’s offer was made at a stage where the usual rule applied being that each party bears their own costs subject only to the requirement that the Court consider making an order for costs which is the matter currently under consideration.

   Whether any party to the proceedings has been wholly unsuccessful in the proceedings

9. The father correctly identifies that the mother has been wholly unsuccessful in each of her Contravention applications as each were summarily dismissed. It is also to be noted that the reason for summary dismissal is that her applications had no prospects of success.

   Any other matter the Court considers relevant

10. As foreshadowed at numerous points earlier in these Reasons, the mother’s mental health and functioning is in my view a relevant matter to which the Court must have regard.

11. In Earle & Earle[3] I was dealing with a somewhat analogous application where throughout the entirety of the proceedings the mother’s capacity and functioning including in the conduct of her case was contended by the father to be a central issue in relation to her capacity to meet the children’s needs and the parenting dispute more generally.

    [3] [2022] FedCFamC1F 16 (‘Earle’).

12. While the present case differs from Earle in the sense that the costs application under consideration is being dealt with at a much earlier stage in the proceedings and no findings in relation to the mother’s functioning and parental capacity have been made, some contentions about the mother’s conduct and behaviour and concern that these matters may be connected to her mental health functioning have been present at least since the current proceedings were commenced following the mother withholding the child in November 2020.

13. As previously noted when setting out the background to the dispute, a Judge of the Federal Circuit Court determined in April 2021 that there was a sufficient change in the child’s circumstances such that it was in her best interests for the parenting orders to be revisited. That judgment (“the FCC Judgment”) sets out each party’s allegations and evidence. The father’s allegations include that he is fearful of the mother as she is “unpredictable and violent” (at [16]), and that some of the mother’s behaviours were causing difficulty for the child such as the mother contacting the child’s preschool almost every day. The father was also concerned about the mother refusing to return the child to him in October 2020, the child reporting at that time that the mother told her that she would be living with the mother full-time soon, and the mother’s second failure to return the child to the father on 21 November 2020 which precipitated the recovery order and renewed proceedings.

14. The father’s allegations about the mother’s conduct when the recovery order was executed are also set out in the FCC Judgment including that she initially refused to hand the child to police and only did so when police back-up was called and forced entry into the home was threatened.

15. Evidence in relation to the mother’s behaviour at the contact centre where changeover of the child’s care was taking place is also set out in the FCC Judgment. The mother is recorded being late on numerous occasions for changeover and being rude to staff. Reference is also made to the father’s evidence of an occasion on 16 January 2021 when the child was collected from the mother’s care and was not wearing any underwear.

16. Records from the contact centre identified in the FCC judgment indicate that the mother was ultimately advised that changeover services would be suspended on 19 January 2021 because she had been late on the previous Saturday but that regardless of being informed of this suspension the mother arrived at the contact centre for changeover on this day. According to the father’s evidence as outlined in the FCC Judgment, a staff member told him that when the mother was informed that the child’s time with her on that day was suspended, the following occurred:

    [The mother] blew up to such an extent that she scared me and other patrons in the building. [The mother] screamed at staff and video recorded staff and patrons in the centre and screamed constantly. I felt unsafe and moved to the staff area. [The mother] then left and started punching the elevator. A lot of people in the building came out to look at the commotion. I saw a woman downstairs with her jaw wide opened in shock.

17. In relation to the mother’s concerning conduct, it is also recorded in the FCC Judgment that the events on 19 January 2021 occurred at a time where an Apprehended Violence Order (“AVO”) was in place to protect the father from the mother. This AVO included a restraint upon the mother approaching within a nominated distance of the father’s home. The FCC Judgment goes on to record that on this day the mother attended close to the father’s residence and the father alleges that in breach of the AVO she was walking up and down a fence surrounding his home screaming and that police attended upon his residence and took her to a hospital pursuant to powers under the Mental Health Act2007 (NSW) (“the Mental Health Act”).

18. It is recorded in the FCC Judgment that records of the emergency department note that the mother was assessed “under section 22 [of the Mental Health Act] for suicide intent” and that the mother “despite recommendations from nursing staff, left the hospital”.

19. It is also recorded in the FCC Judgment that the father alleged that the mother was heard at his home again on 20 January 2021 and three days later police attended his home as the mother made contact with them reporting that the child could be heard being abused at the premises. The father also alleged at the time that the mother had made several requests along these lines despite police requests that she cease doing so.

20. Other allegations made by the father of the mother’s concerning conduct are recorded in the FCC Judgment including that she had operated an online social media account entitled “Xxxxx”. The father alleged that on this social media platform the mother made various posts “defaming, intimidating and harassing” him including by tagging and naming his employer in the posts, revealing his work address and also labelling him a domestic violence perpetrator. It is further recorded that the mother’s social media account allegedly contained images of the mother on the steps of the Court registry in which the proceedings were being determined “wearing what appears to be mock blood-soaked clothing and two small banners stating, ‘Help’ and ‘My [child’s] life is at risk’ (sic)”.

21. The FCC Judgment goes on to record that the father gave evidence of several other social media “posts” made by the mother containing videos in which the father alleged that the mother can be seen questioning the child about alleged assaults by the paternal grandmother and informing the child that she would live with the mother.

22. Reference is also made in the FCC Judgment to an incident which the father deposed to as occurring on 12 March 2021. According to the father’s evidence as outlined in the Judgment, on that day he telephoned the child’s preschool after messages were left on his phone by staff regarding the mother’s attendance at the preschool. The father deposed that he was advised by staff that after initially informing the preschool that it was her birthday and that she wanted to say hello to the child, the mother approached the child, took the child by the hand and claimed that the court orders allowed her to take the child home from the centre. The father further alleged that when speaking to the staff member on the phone he could hear the mother “yelling in the background and arguing with staff” and subsequently heard a commotion ensue involving staff members attempting to prevent the mother leaving in her car with the child.

23. It is then recorded in the FCC Judgment that the father says that on the evening of 12 March 2021 during a telephone conversation with a staff member from the child’s preschool he was told of unsuccessful attempts made by staff to stop the mother from leaving with the child. The father deposed that the staff member told him that “[the mother] almost ran over a staff member” and had also “accelerated [the car]” towards another staff member who tried to obstruct the exit at the preschool. Ultimately, a recovery order was executed by police who according to the father informed him that the child was “safe with [police]” at the police station but “a little shaken up”.

24. The final matter alleged by the father which is recorded in the FCC Judgment relates to an email the father says he received from the mother three days after the child was recovered to him. The father alleged that in that email the mother told him that the child had a “big red rash” on her private parts. The father says he presented the child to hospital for examination but according to hospital records “no rash and no signs of trauma” were detected.

25. It is recorded in the FCC Judgment that the mother did not challenge most matters deposed to by the father in his affidavit including, for example, her behaviour at the contact centre supervising changeover on 19 January 2021 when she admits she had a “very emotional reaction”. She also did not challenge the father’s evidence about her operation of the social media account which she said she created for the purpose of “asking for help from the media” and “raising awareness…to prevent other parents having to go through the pain and desperation she has experienced” or the incident in which she took the child from preschool after staff had tried to stop her from doing so. It is otherwise recorded that the mother maintained various allegations of risk against the father including in relation to neglect and sexual abuse of the child, parental alienation and physical abuse perpetrated by the paternal grandmother.

26. At [61] of the FCC Judgment, the Judge referred to various matters arising from the evidence before the Court to which he had regard in concluding that there had been a material change in the child’s circumstances such that it is in her best interests to re-open the proceedings. These matters included:

    ·The Judge’s observation that the father had been unwilling to facilitate time between the child and the mother since mid-January 2021 based on his allegations and contentions that the child is at risk of significant harm spending unsupervised time with the mother;

    ·The Judge’s finding that the mother’s ability to consistently control and regulate her emotions including when the child is in her care was “significantly open to question, despite [the mother]’s continued psychological treatment for this issue of emotional regulation”. In this regard, the Judge noted that he was particularly concerned about the father’s allegations of the mother demonstrating “adverse emotional lability and dangerous and erratic behaviour”, both in the presence of the child and otherwise, since the making of final orders in August 2020, and had also noted that he held significant concerns in relation to “the present state of the mother’s mental health and whether it is adequately managed”; and finally

    ·In addition to concerns that the child had been exposed to conflict between the parents and inappropriate verbal comments by the mother, the Judge raised significant concerns about the child’s exposure to “significant emotional dysregulation and dangerous erratic behaviour of and by the mother, to her psychological detriment”.

27. In being satisfied that the proceedings should also be transferred to the Family Court the Judge noted (at [64]) that he was of the view that the parenting proceedings had become much more complex “particularly in relation to the issue of the mother’s emotional dysregulation and mental health”.

28. As can be gleaned from court records and other independent evidence such as the Child Impact Report prepared by the Child Court Expert, many of these concerns relating to the mother and her overall presentation continue to be a salient feature of the current proceedings.

29. In particular, as noted earlier in the background of these Reasons, at a court event on 12 October 2021 the ICL advised the Court that the child’s supervised time with the mother pursuant to court orders had not yet commenced due to issues with organising a supervision service. According to court records, the ICL explained that numerous services approached had declined to provide their services on the basis of “risks associated with the mother’s behaviour”. The mother emphatically denied that this was correct and maintained at the court event that she believed there was some form of collusion between the service providers, the ICL and the father that was preventing orders being complied with.

30. It was in these circumstances that I considered that the Court should take a cautious approach to the reintroduction of the child’s time with the mother and made an order that the child’s time with the mother be suspended until a Child Impact Report could be prepared by a Child Court Expert which was supported by the father and the ICL. At the conclusion of that court event, I also raised on my own volition the possibility of consideration being given to the appointment of a case guardian for the mother, an option which was ultimately declined by the mother.

31. It is recorded in the Child Impact Report that when assessed in November 2021, the father relayed his concerns about the mother’s behaviour, including towards the parenting arrangements following separation, and also maintained that the mother posed various risks towards the child and himself. He told the Child Court Expert that the mother had “threatened to kill him, is unable to regulate her emotions, and is unpredictable”. He added that the mother’s “constant filing” at the Family Court is to cause him financial distress and later expressed his distrust of the mother in relation to complying with any future parenting arrangements. While the mother denied having any mental health issues, she reported being engaged with a psychologist to help her regulate her emotions and “express them appropriately”.

32. The Child Court Expert opined that in her view the “central issue” in the dispute between the parties appears to be “which parent has been primarily responsible for causing disruption to [the child]’s parenting arrangements, conflict, ongoing litigation and allegedly retaining [the child]”.

33. I am satisfied that consistent with the expert’s opinion, the father’s case to date has been to the effect that the mother, in her behaviour and general conduct in the proceedings, has posed various risks to the child and has otherwise acted in a concerning and disruptive manner. This is so, having particular regard to his evidence as outlined in the FCC Judgment, statements he has made to the Child Court Expert and orders he has sought since amending his Initiating Application in late June 2021 that the child spend no time with the mother and that the mother be restrained from approaching the child or contacting the child’s school.

34. Thus, to the extent that it remains the father’s position in the substantive proceedings that the child is at risk of harm in the mother’s care on the basis of the mother’s erratic conduct and overall behaviour, he can be taken to recognise that the mother’s functioning and capacity is impaired and that the mother may have limited insight into the extent of this impairment.

35. Accordingly, while the evidence in relation to the mother’s mental health and functioning is yet to be tested, I am satisfied that such matters are particularly weighty in determining whether it is “just” to make an order that the mother pay the father’s costs.

36. The only other matter I consider relevant matter in determining the father’s costs application relates to the additional costs that he is seeking be paid by the mother being his costs related to the cost’s application itself.

37. According to written submissions made on his behalf, the father relies on the same circumstances argued in relation to the Contravention proceedings to justify an order that he also be awarded costs for the application under consideration. However, as noted earlier, such an order was not sought by the father at the summary dismissal hearing on 24 November 2021 and instead included in his Minute of Order attached to written submissions in relation to his application for costs arising from the Contravention proceedings. In the absence of proper notice given to the mother, I consider that determining this aspect of the father’s application when she has not been given an opportunity to respond to that application, may be a failure to afford the mother procedural fairness.

    CONCLUSION

1. Having regard to all of the foregoing matters, and attaching particular weight to concerns surrounding the mother’s mental health and functioning, I am of the view that there is insufficient justification to depart from the usual rule that each party bears their own costs. Accordingly, the father’s application that the mother pay his costs is dismissed.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.

Associate:

Dated: 14 July 2022