Parks and Alford

[2016] FCCA 2379

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARKS & ALFORD [2016] FCCA 2379

Catchwords:
FAMILY LAW – Costs – Father’s application to reopen parenting matter unsuccessful.

SPS & PLS [2008] FamCAFC 16

Applicant: MR PARKS

Respondent: MS ALFORD

File Number: WOC 206 of 2015

Judgment of: Judge Henderson

Hearing date: 29 July 2016

Date of Last Submission: 29 July 2016

Delivered at: Sydney

Delivered on: 29 July 2016

REPRESENTATION

Counsel for the Applicant: Ms Murphy

Counsel for the Respondent: Mr Mackay

Solicitors for the Respondent: Christopher Mackay Lawyer

ORDERS

1. The father’s application to re-open the parenting matter be dismissed.

2. The father pay the mother’s costs in the sum of $5,747.00 to her solicitor or as otherwise directed, by 28 October 2016.

IT IS NOTED that publication of this judgment under the pseudonym Parks & Alford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 206 of 2015

MR PARKS

Applicant

And

MS ALFORD

Respondent

REASONS FOR JUDGMENT

1. In the matter of Parks & Alford an application brought by the father seeking, for a second occasion, to reopen a parenting matter. He seeks to reopen the parenting matter to provide;

   a)that he and his daughter spend five nights a fortnight with each other, currently it is four;

   b)that he have a block period of time in the Christmas school holidays with her being at least half the school holidays rather than the one week that is currently provided by the orders; and

   c)that he permitted at least once a year to take his daughter to (country omitted) to visit her family in (country omitted).

2. A similar application was brought before me and was filed by the father in June 2014 and I dismissed that application on 10 September 2014. The father then brought further proceedings on 4 June 2105, filed them in (omitted) before Judge Altobelli seeking the orders which are now before the Court. That matter was properly transferred to me and I am now hearing that particular application.

3. The matter did come before me on 29 September 2015 where Mr Mackay, representing the mother, was ready to proceed. I granted the father leave to file further affidavit material to support his application, that there had been a sufficient change in his or the child’s circumstances that would cause me to reopen a final parenting matter which had been dealt with by way of consent orders before Judge Altobelli on 14 August 2013.

4. The father’s affidavit, being filed on 19 July 2016, does not satisfy me nor does it provide any substantial change in the child’s circumstances from any perspective that would cause me to reopen this parenting matter.

5. The evidence in fact is from the mother’s point of view, that there would be sufficient evidence for her to reopen the parenting matter as there have been significant difficulties with the father and his new partner, such that the father’s partner took out an AVO against him. They had a period of separation and she was living in a women’s refuge. There were concerns about the father’s behaviour vis-à-vis his new wife which Ms S witnessed.

6. So it seems to me on the evidence, which is not denied by the father, that he and his wife have separated. Although the mother has reasons why the Court would reopen this matter she does not seek to do so. I could not see the father had any such reasons that would cause me to reopen. The mother does not seek the matter be reopened as she is most concerned about further litigation and the impact that will have upon her daughter.

7. The mother describes her daughter as being a sensitive child who becomes anxious and can be worried about events. The mother describes her daughter as a child who is concerned that the father wants to take her to (country omitted), concerned about spending that period of time with him overseas away from her mother and she is a child who does not necessarily cope well with being separated from her primary carer.

8. This in no way is diminishes the father. We are talking about the child and the child that she is. It is caler her mother’ description is the type of child she is and her anxieties are part of why the agreed orders are as they are. There was a slow introduction of the child’s time with her dad, both in holidays and during the term, such that now he has the benefit of significant and substantial time, four nights a fortnight, school holidays, Father’s Day, Christmas and the like.

9. Order 9 provided that the parties were to attend mediation by the end of 2014, with the mediator selected and arranged by the mother, share any costs and address the following at the mediation:

   a)any travel by the child overseas or to (country omitted). This applies to both parents;

   b)any increase in the child’s time with the father;

   c)any rearrangement or increase of the father’s two blocks of one-week time in the Christmas holidays.

   Thus it was clearly contemplated by the parties they would endeavour to reach some agreement in relation to those issues which are not otherwise provided for in the orders.

10. The parties have negotiated and have attended mediation. There are email trails of polite and courteous emails to each other, which is a pleasure to read, treating each other with respect and courtesy they deserve. The father asking for time with his daughter and to travel overseas; the mother responding with her concerns. They have not been able to reach an agreement. This is not sufficient to re-open a matter for an 8 years old child.

11. An application by either parent to take their child overseas for a specific trip or event and with the specific details including an itinerary is something this Court would entertain as a one-off event.

12. Although I take Ms Murphy’s point that this Court should make orders to end litigation and not continue litigation, any other way of approaching this matter, that is, to accede to the father’s request that he be able to take the child to (country omitted) for three weeks each other year, would require and necessitate the Court reopening the matter, a report being prepared as to the child’s capacity to cope with that period of time away from her mother in another country albeit with her father.

13. The Court would be required to assess the relationship the child has with the father’s wife and her little sister. There are a whole range of issues to be dealt with. These are not matters that are unimportant or of small compass that the Court would summarily accede to the father’s request such as for example an application to vary a date or a time or a place of pick up.

14. Clearly, an application to have block periods of time with the child and to be taken overseas when the child has not yet spent such lengthy time with a parent are not matters in the decision of SPS & PLS[1]  which Justice Warnick described as a small alteration.

    [1] SPS & PLS [2008] FamCAFC 16

15. These changes may be quite profound and may, for this particular child, have quite a significant impact on her functioning. I am not satisfied the evidence supports my exercising my discretion to re-open this matter.

16. The child is spending good quality time with her father. Her relationship with her father is developing and there is still some instability and uncertainty in the father’s relationships with his wife and his child, and these are matters that the father needs to address. This child needs to cement her all-important relationship with her father, but also be assured and continue her stable and usual care arrangements which have been progressing well. In circumstances where I am not satisfied that there is sufficient evidence before me today to exercise my discretion, I dismiss the father’s application to reopen this matter.

17. This then takes me to the issue of Mr Mackay’s costs of $5,747. Scale costs would amount to some seven and a half thousand dollars for I have already reserved costs from the last occasion. Mr Mackay asks that I make that costs order.

18. In any costs application I need to consider whether I ought to exercise my discretion to make a costs order and it must be something impacting upon me to say I should. Ms Murphy says there should be no costs order made. The father is not a man of means. He has incurred the costs. The application from his perspective was not one that was doomed to failure. He had good, sound reasons for his application. It was reasonably brought and he just seeks to spend this enriching and additional time with his child in (country omitted). The child is (nationality omitted) and has family in (country omitted) and should be able to visit that family. I disagree with those submissions.

19. This application was doomed to failure. There is simply insufficient evidence of change impacting upon the child or parent to support me reopening a parenting case. The mother is only here because of the father’s application. The father brought an application earlier in time for a re-opening which I dismissed and made a costs order well before the orders stated he and the mother were to attend mediation.

20. He has now brought another application a year later seeking the same order after he and the mother were unable to come to an arrangement.

21. However, the father’s needs are not necessarily orders in the child’s best interests. A parent’s needs are not the matters I have consideration of in these applications; it is the child’s needs. This child is a child that requires more time perhaps than other children to become settled and used to an arrangement and there has been some significant upheavals in her father’s life since the last occasion this matter was before me.

22. The mother is here to defend the application. She has filed her material. She has been wholly successful in having the father’s application dismissed and he has been wholly unsuccessful in making the orders he sought. In those circumstances, the fact that he is perhaps not a man of great means is not something the Full Court tells me namely impecuniosity is a necessarily a reason for not making a costs’ order and, given this is a second occasion this has occurred, I find that I ought make the order for costs as sought by the mother.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 12 September 2016