Page and Wainwright
[2011] FMCAfam 90
•31 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PAGE & WAINWRIGHT | [2011] FMCAfam 90 |
| FAMILY LAW – Interim parenting determination – parties directed to attend a Child Dispute Conference – Child Dispute Conference memorandum raises allegations by the Mother of drug use and sexual abuse by the Father – cancellation of the child’s passport – family violence orders in place against the Mother and her current partner prohibiting their contact with the Father – presumption of equal shared parental responsibility should not apply unilateral removal of the child by the mother from day care – costs order made. |
| Family Law Act 1975, ss.61DA, 117, 117AB, 60K, 60CF, 60CG, 65DAA, 60CC, 60CA Australian Passports Act 2005, ss.22, 29, 31, 35 Freedom of Information Act 1982 Federal Magistrates Court Rules 2001, schedule 1 |
| Pitkin & Hendry [2008] FamCA 186 Dylan & Dylan [2007] FamCA 842 MRR & GR [2010] HCA 4 |
| Applicant: | MR PAGE |
| Respondent: | MS WAINWRIGHT |
| File Number: | PAC 4947 of 2010 |
| Judgment of: | Harman FM |
| Hearing date: | 31 January 2011 |
| Date of Last Submission: | 31 January 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 31 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conte-Mills |
| Solicitors for the Applicant: | A R Walmsley & Co |
| Solicitors for the Respondent: | Mr Jakimoski |
ORDERS
All prior parenting orders with respect to the child of the relationship, [X], born [in] 2006 are discharged.
That pending further order, I am satisfied pursuant to s.61DA(3) that the presumption of equal shared responsibility should not apply.
Pending further order, [X] shall live with his father in school terms:
(a)Each alternate weekend during school terms from the conclusion of school Thursday until the commencement of school the following Monday (extending to Tuesday if a long weekend or pupil free day);
(b)From the conclusion of school Thursday till the commencement of school the following day, Friday, in each intervening week.
Pending further order, [X] shall live with his father for one half of each New South Wales school holiday period, being in 2011 the first half, to commence by [X] remaining in the father’s care until 6 pm on the middle Saturday of the holidays and noting that [X] will be in his care from the Thursday preceding the commencement of each school holiday period.
Pending further order, [X] shall live with his father from 6 pm Saturday until the commencement of school the following Monday for the Father’s Day weekend if [X] is not already in the father’s care, and provided that in the event that Mother’s Day falls on a weekend when [X] would be in the father’s care, that [X] shall return to his mother for that weekend at 6 pm Saturday.
Pending further order and at all times save when [X] is living with his father, that [X] shall live with his mother.
For the purpose of [X] passing between his parents, that the parent in whose care [X] is shall be responsible for transporting [X] to and from school and for changeovers that might occur on non-school days, same shall occur at McDonald’s [M].
Each of the parents shall forthwith do all things, sign all documents and give all consents and authorities necessary to:
(a)Cause [X] to be enrolled for the 2011 school year at [W] School and not otherwise;
(b)Ensure that both parents’ details are included in [X]’s enrolment record; and
(c)Enable both parents to obtain such information from the school as they may desire, including copies of reports, photo order forms, newsletters or correspondence and to attend at the school at any time when parents are invited or permitted to attend.
Each parent shall keep the other advised forthwith and contemporaneous with the event of any significant illness, specialist medical treatment or hospitalisation required by [X], including the provision of all particulars of any treating doctor or hospital and such consent or authority as is required to enable each parent to be fully consulted and advised regarding [X]’s treatment and to visit him if hospitalised.
Until further order the applicant and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children [X] born [in] 2006 (male) from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
Airport Watch List order to expire 3 June 2020.
I refer this file together with the copy of the reasons for judgment given today and in particular the affidavit of Mr Page affirmed 21 October 2010 to the Marshal of the Court for the purpose of liaising with the Department of Immigration and any relevant officer thereof as to the probity of transactions occurring with respect to passport applications submitted by Ms Wainwright with respect to the child [X], such applications purporting to be dated 10 and 11 September 2008 respectively and both parents’ signatures purporting to be witnessed by a Ms S, notwithstanding the mother’s evidence that she, in fact, signed each of those applications for and instead of the father and in the presence of Ms S.
Pursuant to s.22 of the Australian Passports Act 2005, I request that the Minister forthwith cancel any passport issued for the child [X], born [in] 2006.
Pending further order, the party shall continue to use a communications book to pass between them at changeovers or to pass in [X]’s school bag when changeovers occur through school, such communications book to be used to advise matters relevant to [X]’s welfare, health and education, and communication within that book shall be written in the English language.
Pursuant to s.117 and 117AB of the Family Law Act 1975 (“the Act”), Ms Wainwright is to pay Mr Page’s costs of and incidental to these interim proceedings. Such costs assessed and fixed in the sum of $4,840 and to be paid within two months of today’s date.
Direct both parents to forthwith contact Centacare and such office of that organisation as is convenient to them for the purpose of seeking assistance regarding inter-parental communication, appropriate support and encouragement of each parent’s relationship with [X] and thirdly, to participate as soon as practicable in the Keeping Kids in Mind program.
These proceedings are adjourned for further mention and directions before me to 9.30 am on Friday, 20 May 2011.
The parties are to be referred to in any document filed with or any address made to the Court and any correspondence generated in connection with these proceedings by their name rather than being identified by generic phrases (such as applicant/respondent or mother/father).
The children of the parties are to be referred to in any document filed with or any address made to the Court and any correspondence generated in connection with these proceedings by their given names.
Each parent or other party shall, within 4 weeks, register with and complete the on-line work book program offered by that site and will, on completion, print the work book they have completed and provide a copy to all other parties and shall be produced to the Court at any final hearing.
All communication between the parties and/or their lawyers shall, as far as practicable, be courteous, non-judgemental, non-accusatory and focused on issues in dispute and towards finding a path forward to address those relevant issues in dispute.
Liberty to the parties to restore the matter to my list if possible by telephone link in Chambers but if not in person in the event of any allegations of non-compliance with any interim parenting order, any difficulties that are encountered or anticipated with respect for preparation for hearing or in the event of fresh matters of urgency relating to the child’s welfare arising and I direct that neither party is to file a further Application in a Case or Contravention Application prior to having relisted the matter.
In the event that the above liberty is utilised by a party then they are to ensure that the other party is advised forthwith of any listing date as well as the basis on which the relisting has been sought and the orders or directions that are to be sought by them when the matter is next before the Court.
IT IS NOTED that publication of this judgment under the pseudonym Page & Wainwright is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4947 of 2010
| MR PAGE |
Applicant
And
| MS WAINWRIGHT |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving a young child, [X], born [in] 2006 and accordingly to turn five this year.
There are a number of applications in a very short space of time in these proceedings.
The matter was commenced by application filed by the father and which sought orders with respect to time on a final and interim basis between he and [X]. That application was shortlisted and came before the Court on 15 November 2010. On that day, interim orders were entered into between the parties which provided for time arrangements pending further order and until the matter could be dealt with at interim hearing.
Those orders provided for the father to spend time with [X] from 3 pm Friday until 5 pm Sunday each alternate weekend and from 3 pm Friday until 6 pm Saturday in the other week. Changeovers were, by agreement between the parties, to occur at a police station and a communication book was to be put into place between the parents.
Those arrangements did occur for some short time. However, an apprehended domestic violence complaint was made by Mr Page, and as a consequence of interim orders being made on a consensual and without admissions basis by a Local Court, it would appear not only against Ms Wainwright but also against her present partner, which placed prohibitions and restrictions upon them.
The child [X] was withdrawn by his mother, Ms Wainwright, from his then-child care centre at [M], such withdrawal occurring on the same day that the above orders were entered on a without admissions basis and Mr Page’s time with [X] ceased.
As a consequence of those actions a further application in the case was filed by the father, who sought further time orders.
A subsequent (third) application was filed by Mr Page which sought to deal with issues regarding this child’s school. This was as a consequence of being advised by Ms Wainwright, albeit in the Mandarin language through the communication book, that the child was no longer to be in enrolled at [W] School for the forthcoming school year 2011, which, on Mr Page’s evidence, had been the expectation of, if not the agreement between, the parties.
Ms Wainwright indicated to Mr Page that [X] had been enrolled by her at a school at [suburb omitted], closer to where she was intending to move so as to take up full-time residence with her new partner.
Both of these parents have children from previous relationships who live with them, and accordingly, [X] has a number of siblings with whom he spends different amounts of time with.
A period of approximately six weeks passed when there was no time exercised between [X] and his father, and it would appear that there was no particular basis for that other than it followed immediately upon the making of interim orders by consent in the apprehended domestic violence proceedings.
This matter came before me on 24 January 2011 with respect to each of the above applications in a case and in an attempt by Mr Page to both restart time and address the issue with respect to schooling. At that time, notwithstanding that the Court was not meant to be sitting and accordingly, no child dispute conferences were available. A Child Dispute Conference was created and the Court’s resources made available to attempt to assist the parties negotiate arrangements and if not, to at least be clear as to the issues that the Court would need to deal with.
The Child Dispute Conference memorandum indicated that there was no agreement on any issue and that would appear to be on the basis that it was suggested by Ms Wainwright that:
a)the father was a drug addict;
b)the father was violent towards all three boys, being [X] and his two brothers, who live full time with Mr Page, as well as towards Ms Wainwright and her two daughters, who live full time with her;
c)Mr Page had physically abused the child [X], and as a consequence, Ms Wainwright was not prepared to countenance, nor propose any arrangement other than supervised time, and it was indeed suggested by Ms Wainwright that [X] was frightened of or, indeed, terrified of his father.
To further muddy the water the father was suggesting that the mother had made previous allegations that he had sexually abused
Ms Wainwright’s daughters;
Ms Wainwright also suggested that the father had made threats that he would rape her daughter in front of her during an argument in a car park and, that as a consequence of this, she had been to the police and sought an apprehended domestic violence order, which is, indeed, listed for a final hearing, it would now appear, on 7 February 2011.
Ms Wainwright has suggested that she cannot read or write in English, and that is proffered as the explanation for why communication by her in the communication book is written in the Mandarin language, which requires that Mr Page seek the assistance of another person to interpret the comments that are written therein.
Notwithstanding that assertion by Ms Wainwright, there are no jurats on any of the affidavits or, indeed, upon a number of applications for passports for the child that have been completed and/or sworn by
Ms Wainwright. There is nothing to suggest that any document has, at any time, been read to her. Whether it is, in fact, the case that
Ms Wainwright does not read or write English well is a matter still of some conjecture and one of many in dispute between these parties.
For Ms Wainwright to suggest that to communicate in the communication book with Mr Page in the Mandarin language when clearly he does not read or speak it is, at best, mischievous and at its worst completely disregards any conception of equal shared parental responsibility. It is indeed a terse demonstration, I would think, of
Ms Wainwright’s attitude towards co-parenting with Mr Page.
The other difficulties that arise with respect to these proceedings are dealt with in a further resource made available to these parties by the Court, being a supervised observation of time between Mr Page and his child, [X]. A further memo of some pages was produced by Ms D, who conducted that observation session, and her observations would totally contraindicate the existence of any abuse of this child by his father or, at the very least, the assertion that [X] is “terrified” of his father.
It is suggested in the evaluation portion of the memo commencing at paragraph 17:
Pending an examination of the allegations of risk outlined by
Ms Wainwright, there did not appear to be any reason why [X]’s time with Mr Page should be supervised. Ms Wainwright appeared to acknowledge this when she offered to negotiate with Mr Page for more time.
Ms D continues on under the heading “discussion and evaluation” to make a number of statements particularly following a discussion between Ms D and Ms Wainwright reflected in paragraph 15, which is reported as follows:
Ms Wainwright acknowledged that it was not good for [X] to be exposed to parental conflict. She stated that she only wanted the best for [X] and said that if the conflict would continue due to the matters before the Court, perhaps she should give [X] to
Mr Page. She was observed to cry. Ms Wainwright asked about the progress of the observation and was informed that there was nothing to indicate concern. She then said that while she would still seek that [X] live with her, she would be willing to meet with Mr Page to discuss offering more spend time time than in her current application before the Court.
Ms Wainwright’s current application before the Court proposes that there be nothing but supervised time at a supervised contact service. That would involve a delay of some months. Even if the Court were persuaded to do that, there would not appear, from Ms D’s observations, to be any basis for that. More pertinently, the proceedings were adjourned from 24 January 2011 and listed today for urgent interim hearing on the basis that Mr Page was not spending time with the child and nothing was proposed of any substance beyond supervised time.
An opportunity was provided to Ms Wainwright to file material setting out her concerns and allegations noting that a summary of allegations had been made to the Court on her instructions on 24 January 2011. It was, at that time, broadly asserted that Mr Page had abused [X].
The only material that appears in any of the affidavits that have now been filed by Ms Wainwright is the following, contained in paragraph 7 of her affidavit filed 28 January 2011 being that at an unspecified time but subsequently clarified during submissions as being in 2007 or 2008, when this child was aged either one or two years of age, that both Mr Page and each of his children who lived with him had been observed to throw tennis balls into the child’s head “as hard as they could”.
That event is suggested to have occurred some time ago, indeed some years before Ms Wainwright entered into orders made by this Court in late 2010. It is put by her counsel, on her instructions, that she did not take any action, did not intervene, did not go to the police, did not make a referral to Department of Human Services, did not seek any medical assistance, and accordingly, this Court intends to place as much substance and weight upon those allegations as clearly
Ms Wainwright did.
The definition of abuse within the Act is clear, specific and objective. It is often criticised for being too constrained but, in any event, provides that abuse in relation to a child means:
a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the Act constituting the assault occurs; or
b)a person involving the child in a sexual activity with that person or another person.
Certainly the material that is filed does not even begin to suggest anything approaching actions as would be caught within that definition. That is so notwithstanding that these proceedings were adjourned after the matter had occupied a substantial portion of 24 January 2011 to allow Ms Wainwright to put on her material. Ms Wainwright has also been somewhat defective in bringing material before the Court in a number of other senses relevant to the Act.
Section 60K compels this Court to take prompt action in relation to any allegation of child abuse or family violence. No material has been filed by Ms Wainwright with respect to any allegation of child abuse or family violence.
Section 60CF requires that the Court must be informed of relevant family violence orders and proceedings. I am told that there are proceedings on foot, as previously referred to, but no order has been filed or suggested as having been made.
Section 60CG requires that the Court consider the risk of family violence and make appropriate orders to ensure that both parents and children are safeguarded from those risks. The court cannot undertake any exercise arising from those matters, as Ms Wainwright has not:
a)Filed a notice of abuse notwithstanding her assertion of abuse; and,
b)Provided this Court with any evidence whatsoever to support the allegation that was clearly put to this Court on 24 January 2011 and which, as a consequence, has consumed more of the Court’s resources in a further child dispute conference as well as the Court’s time today, delayed other matters commencing which were listed for final hearing and occasioned further cost to all concerned.
Another concerning aspect of the evidence arises from exhibit F1 tendered in the father’s case, being a police report relating to incidents on 22 July 2010. It is suggested that this document supports the suggestion - and at this stage, that is all it is –that the police have received false allegations which can be demonstrated as such through independent corroborative evidence, such allegations having been raised by Ms Wainwright.
Also of some concern are documents that are annexed to affidavit material filed by Mr Page, comprising documents he has obtained under the Freedom of Information Act 1982 and comprising a number of applications for passports which would appear to have been lodged with the Department of Immigration and I am advised that a passport has been issued for this child and has been used to enable the child to leave the country with his mother. It is suggested the father has never signed these documents and never been asked to.
The explanation provided by Ms Wainwright to the Court through her counsel, and accordingly not as sworn evidence, is that she had presented the document to an Australia Post franchise office having signed the form on her own part and her signature presumably being witnessed by a witness named Ms S.
Ms S has then, on each of the occasions referred to, also witnessed the purported signature on both 10 September 2008 and 11 September 2008 of Mr Page. On neither occasion was it Mr Page’s signature, and Ms Wainwright’s explanation is that she had contacted Mr Page whilst at the agency, has been advised by him to sign the document on his behalf and that she had then gone ahead in doing so, and Ms S had witnessed her signature. Under the Australian Passports Act, there are serious criminal offences and consequences for such false declarations and making a false and misleading statement.
Sections 29, 31 and 35 of the Australian Passports Act, in fact, create serious criminal offences for both the signer and the person who has witnessed the signature, those penalties being, on conviction, up to
10 years in jail and/or fines of $110,000 per offence. There would appear to be two offences prima facie created through the submission and execution of those documents. I intend to make a referral to the marshal of the Court to enable those matters to be properly investigated and dealt with in accordance with the Australian Passports Act.
The application by Mr Page is to spend with his child [X] from Thursday to Monday each alternate weekend. There is a practical and logistical difficulty created by the school issue which is accordingly connected with it. He seeks that the child be enrolled at and attend the [W] School, being the school which, on his evidence, the parties have previously discussed and agreed he would attend, being the school that Mr Page’s two other children had, for their primary school education, attended.
Ms Wainwright, for her part, whilst having indicated to Ms D that she is prepared to discuss time arrangements, makes clear in her documents that the only proposal she puts to the Court is for supervised time at the contact centre. That is so notwithstanding:
a)that she had consented as recently as November 2010 to orders for unsupervised overnight time; and
b)she has provided no evidence to this Court whatsoever to support the allegation she had raised with this Court, on instructions through her counsel, that this child has been and was at risk of being abused.
Ms Wainwright proposes that the child attend primary school at [omitted], because that is convenient to where she is now residing and is convenient in relation to arrangements for her to take her elder children to the schools which she has now enrolled them at. She accordingly proposes that changeovers occur some distance away from both parents’ homes to accommodate travel that she will be engaged in collecting an elder child.
As parenting proceedings all of the above issues must be dealt with and addressed in accordance with the Act. I am required to consider the objects and principles of the legislation, which clearly support parents making decisions between themselves and children having the maximum involvement with both of their parents as is consistent with their best interests.
I am required to then consider s.61DA and consider whether the presumption of equal shared parental responsibility applied or should apply. If it applies, I am required, pursuant to s.65DAA, to consider equal and substantial time before considering any other time arrangement.
If the presumption does not apply, and in interim proceedings one can rely on subs.(3) and determine that it is not appropriate in the circumstances for it to apply, then I am not required to consider the time arrangements prioritised by s.65DAA, but nor am I precluded from doing so.
A dual test applies to any consideration of arrangements for children being both a consideration of reasonable practicality (set out in subs.(5) of s.65DAA) and what is in child’s best interests, (as set out in s.60CC). As Murphy J has commented in Pitken & Hendry [2008] FamCA 186, both of those tests can usually be best addressed through a consideration of relevant factors pursuant to s.60CC.
The two primary considerations in s.60CC are the benefit to the child of maintaining a meaningful relationship with both parents (as supported by the objects and principles which create, in the child, a right to such a relationship subject to same being consistent with their best interests as defined in s.60CA) and the need for the Court to direct its attention to the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
It was asserted and continues to be asserted in the mother’s case that this child has been and is at risk of being abused, notwithstanding the manifest absence of any evidence and the adjournment of the proceedings specifically for the purpose of enabling Ms Wainwright to place such information and evidence before this Court. She has failed to do so, and I can only infer that this is on the basis that there is no evidence to put before the Court.
I am left with the need to protect this child from parental conflict which Ms D has identified. I am satisfied, on an interim basis, I can best achieve that by, as far as practicable, keeping these parties apart and that such conflict as occurs is not really as a consequence of these parties’ interaction with each other but, indeed, the expression by each of the parents of their views and attitudes to [X].
In relation to the benefit to the child of a meaningful relationship, I am informed in making that determination by the additional considerations as well as by considering those additional considerations as considerations which stand alone for their own part, as identified by Carmody J, as he then was, in Dylan & Dylan [2007] FamCA 842.
There is no evidence regarding this child’s views, and in any event, having regard to his age, I would not find them determinative.
It is suggested, particularly from the observations of Ms D and notwithstanding the conflict in evidence between the parties, that this child enjoys a perfectly good, sound and secure relationship with each of his parents, and importantly, in light of the allegations that were raised with the Court on the last occasion, that he expresses no fear, concern or reservation regarding his father at all other than an insight that is given by Ms D as to the extent to which Ms Wainwright seems prepared to, firstly, imply to the child that he should be fearful, for reasons unknown, and b) the extent to which Ms Wainwright is prepared to discuss matters critical of the father and relevant to the proceedings in front of this child and her other children.
Willingness and ability to recognise the importance of and support [X]’s relationship with the other parent is somewhat criticised by each, and Ms Conte-Mills, on the father’s part, has asked that the Court be highly critical of the mother in that regard. As these are interim proceedings in which findings of fact are difficult to arrive at without concession or clear and incontrovertible corroboration, I will not progress as far as I am urged.
I am satisfied in any event that I should temper that criticism, although one cannot be other than unimpressed with the mother’s attitude as demonstrated by:
a)raising allegations with this Court which are then not supported by any evidence notwithstanding the adjournment of the proceedings to enable her to do so;
b)seeking to communicate with the father in written language which is completely foreign and unreadable to him; and
c)a unilateral action in removing the child from his day care centre on the very day that apprehended domestic violence proceedings occurred between these parties and enrolling this child in a school some 50 kilometres from the father’s residence, the mother’s then-residence, the mother’s then-place of employment and without any reference to or consultation with the father.
The likely effect of any change I am satisfied compels that I at least reinstate the interim orders that were agreed to between the parties and which provided for overnight time but, indeed, I am persuaded time should be extended.
Practical difficulty in expense is not manifest in this case. It is suggested that there is 50-kilometre trip from the mother’s new place of residence to the school that the father proposes. Correspondingly, there will be a 50-kilometre trip from the father’s residence to the school that the mother proposes. They are choices the mother made without consultation with the father.
As to capacity I am satisfied that both parents are able to meet the child’s physical needs. There remain questions as to the child’s emotional and intellectual needs being met, particularly based on the criticisms raised in the father’s case.
Maturity, sex, lifestyle and background, including culture and traditions, are not particularly germane to an interim determination in this case although clearly this child has two cultural backgrounds which he should and will continue to enjoy.
The child is not Aboriginal or a Torres Strait Islander.
There are family violence orders and proceedings between the parties and, indeed, Ms Wainwright’s new partner. The details of those proceedings are not known to this Court, as the parties have not chosen to share them.
In having regard to whether it is preferable to make an order that will avoid future proceedings it is trite to say, in interim proceedings, that the matter will progress to final hearing absent resolution. However, interim orders that are made can lead to further proceedings if they are not precise or they are not sustainable and they can aid resolution on the same basis.
In relation to practical considerations, as set out in s.65DAA(5) and as discussed by the High Court in MRR & GR [2010] HCA 4, I note that the parties do not live at such a distance apart that time arrangements cannot made to work.
Whilst the parties’ communication is fraught at present, there would not appear to be anything that cannot be addressed through the making of orders as proposed by Ms D referring these parties to appropriate services. The difficulties which have arisen in the parties’ communication would appear to be largely, and as criticised by Ms D, based on the parties focusing on their own needs rather than this child’s needs for them to cooperate.
Subsection (4) of s.60CC entitles me to consider the extent to which a parent has participated in decision-making or failed to do so or the extent to which a parent has failed to consult with another parent. I am satisfied that Ms Wainwright has not taken any active step to consult with Mr Page in any of the decisions that have been made and she has ridden rough-shod over him in decision-making to a large extent.
For all of the above reasons, I am satisfied that the arrangements that should be put into place for this child’s time with both of his parents are for him to have substantial and significant time with his father.
The definition of substantial and significant time implies and imports that both parents will be involved in a range of activities and different time arrangements with the child, including weekday time, so as to be able to take him to and from the school, be involved in after school activities and including things such as helping with homework and the like. Accordingly, I will make orders that will facilitate substantial and significant time between the child and his father.
I also propose, as indicated, to make orders as proposed by Ms D referring the parties for individual counselling and/or participation in the Keeping Kids in Mind program operated through Centacare. A number of programs are available at different agencies, and it is a matter for the parties as to which office of Centacare they wish to engage with for that purpose.
As regards the other issue that arises, in relation to this child’s schooling, I am satisfied that the arrangements that can best be put into place are to return to that which the parties had apparently agreed upon, at least until mid-December 2010, being the child attending [W] School.
I intend to make a number of orders, as indicated, referring the matter to the marshal for investigation. I intend also to make orders pursuant to s.22 of the Australian Passports Act requesting cancellation of this child’s passport as well as Airport Watch List orders.
Any passport that has been obtained for this child would appear to have been obtained by deception.
There was also an issue in the proceedings with respect to costs. The provisions of the Act in relation to costs are set out in section 117.
Subsection (1) provides that each party should pay their own costs.
Subsection (2) provides a discretion to the Court to make an order for costs in appropriate circumstances.
Subsection (2A) set outs, non-exhaustively, matters for the Court’s consideration.
Section 117AB also provides specific provision where the Court is satisfied that there has been a false allegation or statement made with respect to abuse. That section provides:
This section applies if:
(a) proceedings under this Act are brought before a court; and
(b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.
Subsection (2):
The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.
In this case, I am satisfied that Ms Wainwright has, through action or omission, made a false statement or allegation to this Court with respect to abuse.
This Court and Ms D, through the child dispute process, were clearly advised by Ms Wainwright that she considered, (and the response to an application in the case filed subsequent to the Child Dispute Conference on 28 January continued that position), that the child had been abused within the definition of the Act and that the child was at risk of being abused in the future. It was suggested by Ms Wainwright that there were sufficient circumstances that this Court consider that would require the Court to invoke its powers under s.60K, s.60CF and s.60CG to ensure that this child was protected through the making of orders for supervised time through a contact centre.
No such evidence has been forthcoming, and, indeed, the only material suggested as relevant relates to events that are alleged to have happened three, if not four years ago and with respect to which it is not asserted by Ms Wainwright that she, at that time or at any other time, took any action. Indeed, those events were alleged to have occurred at a time when these parties were still in a subsisting relationship.
For all of the above reasons, I am satisfied that an order for costs should and must be made in this case.
The father has been substantially successful. The mother, to the extent that she has sought to oppose the father having unsupervised time and has sought to oppose the child going to the school that the parties have previously discussed and agreed, has been wholly unsuccessful.
I have little information with respect of the financial circumstances of the parties, but it is clear from Ms Wainwright’s material that she is involved in or has recently concluded property proceedings with respect to her former husband. She is a new relationship. I have no details as to any aspect of that relationship, including its financial arrangements.
The Federal Magistrates Court Rules 2001 provide an indicative scale of costs in schedule 1, which provide for a lump sum in relation to the initiation of proceedings, including an application for interim orders together with a daily and part day hearing fees. I propose to make an order in accordance with the indicative scale.
The indicative scale provides to a lump sum of $2200 with respect to the institution of proceedings for final and interim relief, a daily hearing fee of $1760 and a half-day hearing fee of $880. On that basis, I am satisfied that I should:
a)certify as to counsel; and
b)
that a full day was consumed, in effect, the matter was not certainly not concluded before the lunch adjournment on
24 January, and that a half day has been incurred today.
Accordingly, I will make an order for the lump sum, a full day and a half day with respect to today, which totals $4840.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 29 July 2011
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