PENNINGTON & REDDEN (No.2)
[2018] FCCA 2867
•5 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENNINGTON & REDDEN (No.2) | [2018] FCCA 2867 |
| Catchwords: FAMILY LAW – Final proceedings for parenting arrangements of children aged 16 & 13 – high conflict – undefended proceedings – numerous contravention applications – wishes of children – best interests – meaningful relationship – protection from emotional harm – costs – matters to be considered. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Taylor v Taylor (1979) 143 CLR 1 |
| Applicant: | MR PENNINGTON |
| Respondent: | MS REDDEN |
| File Number: | ADC 1511 of 2011 |
| Judgment of: | Judge Brown |
| Hearing date: | 22 June 2018 |
| Date of Last Submission: | 7 July 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 5 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Ms Dickson |
| Solicitors for the Respondent: | Barnes Brinsley Shaw Lawyers |
ORDERS
The mother have the sole parental responsibility for the children [X] born 2002, [Y] born 2005 and [Z] born 2005.
The children live with the mother.
The children spend time with the father during the school term as follows:
(a)From the conclusion of sport on Sunday (or 3:00pm), whichever is the earliest, until the commencement of school on Monday, (with such time to extend to the commencement of school on Tuesday if the Monday is a public holiday);
(b)That paragraph 3(a) of the orders be subject to the child [X]’s wishes.
The children spend time with the father during the short school holiday periods as follows:
(a)As to [Z] and [Y] until they attain the age of 15 years:
(i)In 2018 and each alternate year thereafter, from the conclusion of school on the last day of the school term until 12noon on the second Saturday of the school holiday period; and
(ii)In 2019 and each alternate year thereafter, from 12noon on the second Saturday of the school holiday period until the commencement of school on the first day of the following term.
(b)As to [X] and as to [Y] and [Z] once they attain the age of 15 years:
(i)In 2018 and each alternate year thereafter from the conclusion of school on the last day of the school term for a period of four nights (with any such extension to be subject to the child’s wishes) with handover to occur at 5:00pm on the fifth day or such day as may be subject to the children’s wishes; and
(ii)In 2019 and each alternate year thereafter for four nights prior to the commencement of the school term, commencing at 5:00pm until the commencement of the school term (with any such extension to be subject to the child’s wishes).
The father spend time with the children during the December/January school holiday periods as follows:
(a)As to [Z] and [Y], until they attain the age of 15 years, on a week about basis as follows:
(i)In 2018 and each alternate year thereafter, from the conclusion of school until 5:00pm on the second Saturday of the school holiday period and each alternate week thereafter;
(ii)In 2019 and each alternate year thereafter, from 5:00pm on the second Saturday until 5:00pm on the third Saturday and each alternate week thereafter.
(b)As to [X] and as and from [Z] and [Y] attaining the age of 15 years:
(i)In 2018 and each alternate year thereafter, for four consecutive nights each fortnight from the conclusion of school until 5:00pm on the fifth day and each alternate fortnight thereafter; and
(ii)In 2019 and each alternate year thereafter, for four consecutive nights each fortnight from 5:00pm on the second Saturday until 5:00pm on Wednesday and each alternate fortnight thereafter.
That the parties shall spend time with the children on special occasions as agreed or failing agreement as follows with such orders to override any other within orders:
(a)For Christmas:
(i)In 2018 and each alternate year thereafter, the mother shall spend time with the children from 4:00pm on 24 December until 12noon on 25 December and the father shall spend time with the children from 12noon on 25 December until 4:00pm on 26 December; and
(ii)In 2019 and each alternate year thereafter, the father shall spend time with the children from 4:00pm on 24 December until 12noon on 25 December and the mother shall spend time with the children from 12 noon on 25 December until 4:00pm on 26 December: and
(b)For Easter:
(i)The mother will spend time with the children for each (religion) Easter from 9:00am on the Friday until 4:00pm on the Monday;
PROVIDED THAT in the event (religion) Easter falls on a weekend during which the children would otherwise be in the father’s care, then by way of make-up time, the father shall spend time with the children during the weekend following (religion) Easter from the conclusion of school on Friday until the commencement of school on Monday;
(ii)The father will spend time with the children for each Western Easter from 9:00am on the Friday until 4:00pm on the Sunday;
PROVIDED THAT in the event Western Easter falls on a weekend during which the children would otherwise be in the mother’s care, then by way of make-up time, the mother shall spend time with the children during the weekend following Western Easter from the conclusion of school on Friday until the commencement of school on Monday
SAVE AND EXCEPT where such period coincides wherein the following will apply:
(iii)The mother will spend time with the children from 4:00pm on the Thursday until 4:00pm on the Saturday; and
(iv)The father will spend time with the children from 4:00pm on the Saturday until 4:00pm on the Monday;
(v)There shall be no make-up time for either party.
(c)For the children’s birthdays the party who does not have the care of the children, will instead spend time with them as follows:
(i)When such day is not a school day for a period of four hours from 12noon until 4:00pm;
(ii)When such day is a school day from the conclusion of school until 6:00pm.
(d)For the parties’ birthdays:
(i)For the mother’s birthday when the children are not spending time with the mother as set out herein, the mother shall spend time with the children as agreed between the parties or failing agreement from 9:00am until 7:00pm if a non-school day and from the conclusion of school until 7:00pm if a school day;
(ii)For the father’s birthday when the children are not spending time with the father as set out herein, the father shall spend time with the children as agreed between the parties or failing agreement from 9:00am until 7:00pm if a non-school day and from the conclusion of school until 7:00pm if a school day.
(e)For Mother’s and Father’s Day:
(i)The mother shall spend time with the children from 9:00am until 7:00pm on Mother’s Day, in the event she is otherwise no spending such time; and
(ii)The father shall spend time with the children from 9:00am until 7:00pm on Father’s Day in the event he is otherwise not spending such time.
The parties shall facilitate the children contacting the other parent when the children are in their care, as and when the children may request the same and with such contact at first instance to be via landline telephone and if not available then mobile telephone.
The parties shall complete and exchange by e-communication, such communication to contain all relevant information in respect of ay issue pertaining to the care, welfare, development, health and education of the said children that should reasonably be brought to the other’ attention (with each party to ensure that they maintain a current and working email address and provide the same to the other party).
The parties shall otherwise communicate by way of email or SMS with each other SAVE AND EXCEPT in the event of an emergency.
Each party shall:
(a)Forthwith inform the other of any serious accident, or illness of the said children and in the event of hospitalization, each parent shall be entitled to attend at the hospital in order to spend time with the child or children;
(b)Forthwith inform the other of the name, address and contact details of any relevant treating medical professional and each parent is hereby authorized to consult with the medical practitioner in respect of the treatment of the child or children;
(c)Authorise the children’s school to release to the other parent copies of all school newsletters, school reports, school photographs and the like.
Each party do ensure that the children complete all specified homework whilst they are in their care.
Each party be restrained and an injunction granted restraining each party from:
(a)Denigrating the other to the children of in the presence of the children or allowing any other person to do so;
(b)Discussing the proceedings with the children or permitting other persons to do so.
Each party shall facilitate the movement of the said children’s books, toys and belongings between each home SAVE AND EXCEPT for any such items not permitted by the said children’s school to be on school grounds.
The father be restrained and an injunction granted restraining the father from attending inside the grounds of the school attended by any of the children including but not limited to School 1 Primary School and School 2 High School.
The father be restrained and an injunction granted restraining him from attending at any extracurricular activities attended by the children including but not limited to school sport and club sport SAVE AND EXCEPT that the father be permitted to deliver the child [Z] to the (sports) at the commencement of each (sports) game and to return to collect the said child at the conclusion thereof PROVIDED THAT the father shall vacate the (sports) after such delivery and he shall not remain at the (sports) for the duration of the game.
The father be restrained and an injunction granted restraining the father from denigrating the mother’s late partner Mr A to the children or in the presence of the children or allowing any other person to do so.
As to communication:
(a)The father facilitate the children speaking to the mother on [X]’s mobile telephone at 8:00am each morning when the children are in the father’s care;
(b)The father facilitate the children speaking with the mother on [X]’s mobile telephone at 7:00pm when the children are in the father’s care.
In respect of any handovers that are scheduled to occur at school:
(a)The father shall deliver and collect the children from the front gate of the school and outside of the school grounds;
(b)The father shall ensure that he does not exit his motor vehicle while delivering the children to school or whilst waiting to collect the children after school.
The father shall ensure that the children attend all extracurricular activities, schooling activities and social events (including birthday parties) as nominated by the mother during the time that the children spend with the father UPON NOTING THAT the mother will not respond to any invitation to any party that occurs in the father’s time.
In respect of the delivery of the children to their extracurricular activities referred to in paragraph 19 herein or the collection of the children from activities referred to in paragraph 19 herein:
(a)The father shall deliver or collect the children from the front gate of the school or venue to be attended by the children;
(b)The father shall ensure that he does not exit his motor vehicle whilst delivering the children to the school or the said venue and while collecting the children from the school of the said venue SAVE AND EXCEPT that the father be permitted to deliver the child [Z] to the (sports) at the commencement of each (sports) game and to return to collect the said child at the conclusion thereof PROVIDED THAT the father shall vacate the (sports) after such delivery and he shall not remain at the (sports) for the duration of the game.
Any handovers not scheduled to occur at school do occur at the parties’ respective residences ON CONDITION THAT they do not enter the residential property of the other SAVE AND EXCEPT in the event that they are delivering the children’s bags/sports equipment in the absence of the children.
Within 28 days, each party is to make payment to Psychology and Mediators the sum of $1,416.00.
Within 28 days the father is to pay to the mother on account of costs:
(a)The sum of $2554.00 on account of the outstanding costs order made on 6 April 2016;
(b)The sum of $5,000.00 on account of the mother’s costs of and incidental to the contravention applications filed 2 June 2016, 25 July 2016 and 6 October 2018;
(c)The sum of $5,000.00 in respect of the current proceedings.
All extant applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Pennington & Redden (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1511 of 2011
| MR PENNINGTON |
Applicant
And
| MS REDDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Pennington “the father” and Ms Redden “the mother” were married for seventeen years, between 1993 and 2011. They have three children – [X] born 2002 and twins, [Y] and [Z], born 2005.
The seven years, which have passed since their separation, have been difficult for all concerned, including the children. They have been marked by protracted litigation and much conflict.
The most obvious areas of conflict, between the parties, arise in the context of the children’s sporting activities. These activities have involved Ms Redden’s late partner, Mr A, from time to time, as well as other coaches and sporting official at clubs of which the children are members.
Mr Pennington is 56 years of age. He lives alone and is not currently working in the paid workforce. He has not been employed since the parties separated. The main focus of his life is looking after his elderly parents, who live close by to him. They do not currently enjoy good health.
Mr Pennington has qualifications and a background in (employment omitted). He is very interested in sports, particularly (omitted). Mr Pennington has wished to be involved in the children’s various sporting activities, particularly (sports) for [X] and [Y] and (sports) for [Z]. As is to be expected, he has also wished to be a spectator at the children’s various matches.
It is Ms Redden’s evidence that Mr Pennington finds it impossible to behave appropriately at the children’s sporting activities and is incapable of preventing himself from making gratuitous or aggressive comments to coaches and other sporting officials at either training activities or matches involving the children. This was particularly marked when Mr A was involved, either as a referee or coach.
Essentially, although Ms Redden accepts Mr Pennington loves the children and they love him, it is her case that there is something amiss in Mr Pennington’s parenting, which she characterises as frequently inappropriate and inadequate. It is her case that this behaviour is having a seriously deleterious effect on the children and they are becoming increasingly resentful of it, particularly [X].
On the other hand, Mr Pennington views himself as being child focussed and appropriate in all his interactions with the children, including at their sporting activities when he has been focussed on their safety and ensuring their various coaches and club officials discharge their obligations towards the children in their care.
It is his case that he is entitled to attend the children’s sporting venues and provide his input to the coaches and officials concerned because of his expertise in the area. As I will explain in more detail shortly, it will ultimately be my finding that Mr Pennington cannot be described as a reticent or retiring personality. Nor is he always tactful.
Against this background, it is hardly surprising that both parties provide a history of compromised communications between them regarding parenting issues relating to [X], [Y] and [Z]. In this context, it is Mr Pennington’s position that Ms Redden is intent on excluding him from playing a significant role in the children’s lives, including being involved in making significant decisions about their care, welfare and development.
On the other hand, it is Ms Redden’s position that she would be only too happy to support the children’s relationship with their father and share decision making with him if Mr Pennington could restrain his emotions and act responsibly. However, it is her case that her experience of him, over the last seven years has led her to the conclusion that regrettably Mr Pennington is incapable of doing so.
Ms Redden is employed as a (occupation omitted) by a (employer omitted). It is her case that she has provided the necessary financial support for the children, with little, if any, assistance from Mr Pennington. This has included paying for the children to take part in their various sporting activities.
In these circumstances, she believes that it is oppressive that Mr Pennington should be in a position to dictate to her and others the manner in which the children engage in their various sporting activities, particularly that the children should miss activities because of their father’s unreasonable behaviour.
In all these circumstances, Ms Redden seeks orders that would see her being conferred with sole parental responsibility for the children and that the father’s time with them be curtailed, so as not to clash with sporting activities. So far as [X] is concerned, given his age, Ms Redden proposes that his time with his father should be subject to his wishes.
Mr Pennington vehemently resists such an outcome. It is his position that previous orders, which were agreed between the parties in the context of long-running proceedings, in the Family Court, between 2011 and 2012, should be reinstated.
In general terms, these orders provided for equal shared parental responsibility and for the children to live for nine nights per school fortnight with their mother and for five nights per fortnight with their father. These proceedings were bitterly contested and included a family assessment.
In the lead up to the most recent hearing of proceedings between the parties, it was agreed between them that they should commission a further expert to examine the dynamic of their family, including any wishes of the children concerned. The resulting report was prepared by Ms M, an experienced clinical psychologist.[1] In her report, Ms M reported as follows:
“Given the significant history of parental conflict (noting, for example, that this is the second time lengthy legal action has been required, and Orders have recently been breached), the writer does not see an arrangement of shared care meeting the children’s needs, nor shared parental responsibility. Mr Pennington and Ms Redden are unable to communicate effectively in relation to the children’s daily needs, or to coordinate the children's consistent attendance at commitments, and the children are all exhibiting varying levels of distress in regard to this. Although the obvious disagreements occur in relation to sport, the co-parenting relationship is fundamentally unworkable and disrespectful. This points to an arrangement of primary care and sole parental responsibility.
Given the children’s description of care with Ms Redden being stable and predictable, their current good progress at school, and their consistent wish for their sporting commitments to be supported, the writer recommends that primary care continue with Ms Redden, and that she hold sole parental responsibility.”[2]
[1] See family report of Ms M dated 1 December 2017 being annexure D to the affidavit of Timothy Adey filed 4 December 2017
[2] Ibid at page 20
Ms Redden has been legally represented throughout these proceedings. Mr Pennington has largely acted on his own behalf, although he did engage a solicitor at one stage. This was Mr Adey, who had acted for him in earlier proceedings. Against this background, the progress of the case has been convoluted and difficult.
Ms Redden would ascribe much of this difficulty to Mr Pennington’s querulous and contrary personality and the fact that he does not abide by court directions. For his part, Mr Pennington asserts that his life has recently been beset with a number of crises, including serious illnesses which have befallen his parents and through which he has been required to nurse and support them.
The final hearing of the parties competing applications was fixed for 22 June 2018 on 6 December 2017, with the hearing and necessary trial directions made on 13 April 2018. Mr Pennington was to file his affidavit material, for this trial, on or before 24 May 2018. He did not comply with this order. Accordingly, on any view, Mr Pennington had a significant period of time in which to prepare for the case.
For her part, Ms Redden filed her affidavit material as directed. In these circumstances, she sought that the court deal with her amended application (made in response to the father’s application) on an undefended basis.
It is also her position that she accepts the evidence and opinion of Ms M and, as such, she did not seek to ask her any further questions and therefore no arrangements had been made for her to attend at court. Primarily, it is her position that one parent needs to be conferred with decision making responsibility for the children concerned and it should be her, given they live predominantly with her and she maintains them financially.
Mr Pennington’s previous solicitor, Mr Adey, withdrew from the proceedings in mid-May of 2018. As such, the father appeared on his own behalf on the date scheduled for final hearing and sought the adjournment of the proceedings.
Given the fact that the case had been on foot for such a significant period of time and Mr Pennington had previously failed to attend at other scheduled hearings relating to the case, I was not prepared to adjourn the proceedings further. I felt that this outcome would be oppressive to Ms Redden, given she was ready to proceed and had done all that was required of her.
However, at the same time, I was not prepared to deal with the case without any evidentiary input whatsoever from Mr Pennington. Rightly or wrongly, I perceived that he would view this as constituting a grave injustice to him and this, of itself, would further perpetuate the conflict between the parties, which would not be helpful to anyone.
On the other hand, I was also concerned that the proceedings needed to be finalised to bring some form of closure to all concerned, particularly Ms Redden. In these circumstances, I decided that each party should be given the opportunity to provide some oral evidence about the relevant issues and make submissions about what was the appropriate outcome in the case.
In this way, both parties would have been heard by the court and their different perspectives on the issues canvassed to some degree. Accordingly, I have had the opportunity to make my own assessment of both the father and the mother. I have also had the opportunity to view the material previously filed in the case, which occupies two cardboard document boxes.
The nature of an undefended hearing
It is a significant thing for proceedings to be determined without the formal or considered input of one of the parties. The court has an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings.
Before a person can be adversely affected by judicial order, he or she must be afforded an adequate opportunity to be heard.[3] I am satisfied that Mr Pennington has been given more than an adequate opportunity to appear in these proceedings and put his position before the court.
[3] See Taylor v Taylor (1979) 143 CLR 1
Ms Redden has done all that is required of her in terms of preparing her application for final hearing. As such, she is entitled to have her application in respect of the children determined within a reasonable period of time, pursuant to the applicable principles of law.
As such, she needs neither Mr Pennington’s formal imprimatur nor his cooperation to have her application determined. Rather, there is an obligation, on Mr Pennington’s part, if he wishes to be involved in the proceedings, for him to attend at court as required and pursue any application put by him or on his behalf with due diligence.
In any event, as discussed above, Mr Pennington has had some level of input into the case and I have had an opportunity to assess what sort of parent and person he is. I have had the same opportunity in respect of Ms Redden. It is, in my view, in the best interests of [X], [Z] and [Y] that the proceedings between their parents be finalised. I am satisfied to do so notwithstanding the absence of any lengthy final affidavit material from the father.
Order 13.1A of the Federal Circuit Court Rules deals with the court’s authority to enter judgment against a respondent if that respondent defaults in complying with a court order or fails to prosecute any proceedings with due diligence.
Pursuant to Rule 13.03A(2) a respondent is in default if, amongst other things, he or she has failed to:
·Comply with an order of the court in the proceedings;
·Produce a document as required; or
·Defend the proceedings with due diligence.
I am satisfied that Mr Pennington has not defended the proceedings with due diligence. In these circumstances, pursuant to the provisions of Rule 13.03B(2)(d) Ms Redden is entitled to proceed with her application.
However, the applicant is not entitled, as of right, to the orders which she seeks. Rather, the onus remains on her to establish to the court that the orders which she seeks, are in the best interests of the children concerned, pursuant to the principles contained in Part VII of the Family Law Act 1975.
The legal principles applicable
Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:
(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.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(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) 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.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(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).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[4]
[4] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[5] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[6]
[5] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[6] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[7]
[7] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care and the child concerned gains the benefits of this involvement.[8]
[8] Goode & Goode (2006) FLC 93-286 at 80,901
The previous proceedings between the parties
On 21 April 2011, the wife first commenced proceedings, in the Federal Magistrates Court (as this court was then known), at Adelaide, seeking final orders in respect of arrangements for the parenting of the three children and the division of the parties’ marital property.
The case was allocated to the docket of FM Cole (as his Honour then was). At an early stage, it became apparent to all concerned that the parties’ relationship with one another was extremely difficult. In July 2011, Family Consultant Ms T wrote as follows, in an advice to court:
“Both parties spent much of the conference being argumentative with each other. It was difficult at times for the family consultant to keep them focussed on the issues at hand. … This matter will continue to be a difficult one for some time. Neither party is prepared to concede very much and both seem more intent on having their analysis of any given situation involving the children being accepted as the ‘right’ one than they are in actually looking at what is best for the children.”[9]
[9] See Family Consultant brief advice to court dated 22 July 2011
Ms T’s view was prescient. The various documents, filed by each of the parties in the period since, now occupy six files and two cardboard boxes. Needless to say, the parties continue to have great difficulty agreeing about anything. In this context, the effluxion of time seems to have had little emolliating effect.
On 12 December 2011, Cole FM appointed an independent children’s lawyer to safeguard the interests of the children concerned. The parties instructed Ms R to prepare a family assessment report, which did not recommend an equal time regime.
On 13 February 2012, Cole FM transferred the proceedings to the Family Court on the basis that the matter was estimated, by the parties’ lawyers, to need between five and six days to accommodate a final hearing. At the time, this was beyond the capacity of the Federal Magistrates Court to accommodate.
As a consequence, the parties’ competing applications were listed before Dawe J, for a five day trial, on 18 June 2012. On 21 June 2012, after three full days of evidence, the parties reached an agreement, in respect of children’s issues. However the property aspect of the proceedings continued, being adjourned for completion to 15 & 16 August 2012. Dawe J delivered judgment, in respect of the property proceedings, on 1 March 2013.
The consent order, made on 21 June 2012, in respect of the children, envisaged, [X], [Y] and [Z] living with their mother and spending five nights per fortnight with their father. The parties were conferred with equal shared parental responsibility for the children.
There was no lessening of tension, between the parties, following the delivery of the property judgment by Dawe J. On 20 May 2013, Ms Redden felt compelled to issue an application seeking enforcement of the property orders by way of having an agent appointed to effect the sale of the former matrimonial home and a registrar of the court appointed to execute all necessary documents.
The next event of any legal moment, so far as the filing of legal proceedings between the parties is concerned, occurred on 29 January 2014, when the wife applied to dissolve the marriage between the parties. This application was dealt with on its first return date in the husband’s absence. It was not opposed. The divorce between the parties became effective on 18 April 2014.
I have already recounted the history of the previous proceedings in an earlier judgment relating to proceedings in which the mother sought to restrain the father’s previous solicitor from acting for him due to a perceived conflict of interest.[10]
[10] See Redden & Pennington [2017] FCCA 194
The history indicates that there has been a significant level of vitriolic conflict between the parties, extended over many years, which has manifested itself in protracted litigation. There is no indication that there has been any mitigation in this conflict in the ensuing years.
Essentially, this litigation and conflict has been the backdrop, to the children’s lives, for a large proportion of their childhood. In my view, this litigation has been characterised by the obduracy of the father, particularly his propensity to obstruct any order which he perceives favours his former wife and disadvantages him.
Regrettably, it is my view that there is no evidence to indicate that Mr Pennington has been able to resolve the powerful emotions, which the end of his marriage to Ms Redden precipitated for him. He is likely to view her as an opponent and, as a consequence, attempt to frustrate her whenever he is able.
The current proceedings
The mother commenced the current round of proceedings on 14 December 2015. On my calculations, this is approximately three and a half years after the parenting proceedings, between the parties, had been concluded by the consent order made by Dawe J.
In her application, Ms Redden sought to have sole parental responsibility, for the children, conferred on her and for the father’s time, with the children to be reduced to four nights per fortnight. Significantly, she also sought injunctions restraining the father from attending at the children’s respective schools and at their sporting and extracurricular activities.
The wife deposed a lengthy affidavit in support of her application. In her affidavit, Ms Redden alleged that Mr Pennington had been behaving in an erratic and aggressive manner, which was injurious to the children’s psychological wellbeing.
In particular, she alleged that the father had been behaving in an intrusive and inappropriate manner at the children’s sporting events and had been banned from school sporting events at School 1 Primary and from attending at [X]’s (sports).
The application was made returnable on 7 March 2016. It was served on the father personally on 20 January 2016. On the first return date, the wife was represented by her previous barrister, Ms Dickson; whilst the husband appeared in person.
By 7 March 2016, Mr Pennington had not formally responded to the application. In these circumstances, no substantive orders were made. Rather, the proceedings were adjourned to 6 April 2016, for interim hearing, and, in the meantime, Mr Pennington was directed to file answering documents.
The parties themselves were also directed to attend a family dispute resolution conference, pursuant to section 11F of the Family Law Act, primarily to see if it was possible for them to reach some agreement to resolve the issue of how the father could attend at the children’s extramural activities without conflict and disputation.
I was concerned that it was a very significant thing for a court to prevent a parent doing what is commonplace for parents to do – namely attend their children’s sporting matches and so share in their children’s athletic triumphs and tribulations. These are the modest pleasures of parenthood.
In my view, it is only in extraordinary circumstances that a court should prevent a citizen doing what is his/her ordinary entitlement, which is to attend at public events, held in public places, in order to enjoy the unexceptional suburban pleasures of the weekend. I hoped that sanity would prevail and some reasonable accommodation reached between the parties.
Mr Pennington did not attend the child dispute conference. Nor did he file any responding documents. In addition, he did not appear at court on 6 April 2016. In all these circumstances, Ms Redden sought that her application be finalised on an undefended basis.
As indicated above, pursuant to the provisions of rule 13.03B of the Federal Circuit Court Rules 2001, the court has authority to give judgment, if it is satisfied that a party has failed to take a necessary step in the proceedings concerned or has not defended them with due diligence.
In the circumstances of this case, at that stage, I was persuaded that I should exercise my discretion to enter a summary judgment in Ms Redden’s favour. I reached this conclusion primarily because Mr Pennington had been present in court when the order for him to file material had been made and the case adjourned. He had not attended the conference. The formal order in question indicated that it had been sent to Mr Pennington’s home address.
No explanation had been proffered in respect of the missed conference. The order had not been returned undelivered or unclaimed. Given the size of the court file before me, it seemed a reasonable inference that Mr Pennington had some familiarity with the court’s processes and had decided, for reasons unclear to me, to withdraw from the proceedings commenced by his former wife.
The orders of 6 April 2016 were comprehensive. They discharged central aspects of the earlier consent order of June 2012, which provided for the parties to have equal shared parental responsibility for the children and for them to live in a 9/5 regime with each of them. In lieu thereof, the children were to spend time with their father, as follows:
·During school terms, on alternate weekends, from after school on Friday until the commencement of school the following Monday;
·For four consecutive nights during each short school holiday period;
·For a period of four consecutive nights, on a fortnightly basis, during the December/January school holiday, each year.
In addition, the following injunctions were made:
·The father was restrained from attending at the children’s schools, particularly School 1 Primary School and School 2 High School;
·The father was restrained from attending at the children’s extracurricular activities, including both their school and club sport activities.
Fresh orders were also made regulating handover arrangements for the children, which restrained the father from leaving his car, whilst delivering or collecting the children and ensuring that wherever possible, such handovers occurred at their school or, if this venue was unavailable, at the Suburb K Police Station. Orders were also made to facilitate the mother’s telephone communication with the children during periods when they were in their father’s care.
At the time of making these orders, I was fully aware of how controversial they would be. From my brief dealings with Mr Pennington, he did not strike me as the sort of parent who was disinterested in his children’s activities, nor one who would easily accept any reduction in his time with them.
However, at the time, it was my perception that I had no alternative other than finalise the proceedings, given Mr Pennington’s apparent intransigence in respect of dealing with them, in an appropriate way, given Ms Redden had done all that had been required of her in pursuing her application.
Ms Redden sought her costs of the proceedings. An order for costs was made in her favour in the sum of $3,754.00 plus $800.00 in disbursements. I was persuaded that it was appropriate to make such an order in the circumstances prevailing at the time.
From the mother’s perspective, the husband did not abide by the orders made by the court on 6 April 2016. This accorded with her previous experience of the father, who had simply not done what was expected of him in respect of the earlier made property orders. Accordingly, on 2 June 2016, she filed a contravention application alleging various breaches of the order relating to the husband’s involvement or lack thereof in the extracurricular activities of the children.
On 23 June 2016 the husband filed an application, in which he sought the reinstatement of the earlier orders of 21 June 2012. In his supporting affidavit, he asserted that he had believed that he could attend the family dispute resolution conference, scheduled on 7 March 2016, by telephone and so had not personally attended at court in the mistaken belief the court would telephone him.
He also asserted that he had misunderstood the court’s order in respect of the requirement for him to file answering documents and the adjourned date. In support of his assertion that he had misunderstood his obligations, he deposed that his father had been very ill of late, which had added a significant level of stress to his life, which may have resulted in him (Mr Pennington) becoming confused.
He refuted any suggestion that he had previously misbehaved at any of the children’s sporting events and was anything other than a well-motivated and interested parent. The wife filed a further contravention application on 25 July 2016, alleging further contraventions of the ex-parte orders of April 2016, which the father had applied to set aside. Again, the contraventions related to the children’s extramural activities, particularly [Y]’s attendance at (sports) and matters relating to [Z]’s (sports).
Mr Pennington’s application was prepared by a solicitor whose then firm had had an association with a firm which had previously represented Ms Redden. Ms Redden was gravely concerned at this and sought to restrain the solicitor concerned from acting.
Yet more alleged contraventions were filed by Ms Redden on 6 October 2016. Again, the subject matter of the alleged contraventions related to the children’s extracurricular activities and the father’s attendance at them.
Ms Redden filed a response to the father’s application on 1 November 2016, seeking its dismissal, in which she evoked the so-called rule in Rice & Asplund.[11]The essential ethos of the rule is an exemplar of the paramountcy provision, particularly the fact that a child’s best interests are not usually served by there being endless litigation in respect of arrangements for their care. Final orders are intended to be just that – final.
[11]Rice & Asplund (1979) FLC 90-725
From her perspective, the father had been given a more than ample opportunity to participate in the proceedings, which she had initiated in late 2015. In essence, she believed that the father’s election not to take part in them in an orthodox fashion was emblematic of his feelings of passive aggression harboured against her and his continued disdain for any orders with which he personally disagreed.
In this context, Ms Redden deposed as follows:
“Since 6 April 2016, the time the children spend with the father has been reduced. I have observed in all three children, a reduced level of anxiety displayed across the week and a greater ability to focus on such tasks as their homework or work around the house.”[12]
She also reported that the children, on occasion, exhibited some level of anxiety in the lead up to their sporting activities because of concerns that their father may attend.
[12] See mother’s affidavit filed 1 November 2016 at [48]
Ultimately, I declined to grant the mother’s application to restrain the father’s then solicitor from continuing to act for him.[13] In any event, the solicitor concerned has subsequently withdrawn from the proceedings.
[13] See Redden v Pennington [2017] FCCA 194
After the dismissal of the mother’s application, regarding the restraint of Mr Pennington’s solicitor and whilst both parties were represented, I was motivated to do whatever I could to ensure that the proceedings, as far as possible, remained contained and focussed on what was best for the children.
At this stage, there were multiple contravention applications; various applications in case; the Rice & Asplund aspect of the case; and competing applications for final orders; all against the background of the earlier controversy of the undefended orders, made in the mother’s favour, which the father sought to set aside.
Given the potential length and complexity of the proceedings, there was an examination of whether the disposal of the case could be more appropriately dealt with in the Family Court. However, it was the consensus of all the lawyers involved that this court would be likely to be able to allocate an earlier hearing date than that court, notwithstanding the pressures upon it. On 6 December 2017, in the presence of both Ms Dickson and Mr Adey (the father’s then solicitor) the case was listed for final hearing
The central evidentiary issue centred on the perception of the children regarding their father’s behaviour at sporting events and the dynamic of their relationship with him. In these circumstances, it seemed to me that it would be of assistance for all concerned if some form of expert assessment of the family was undertaken, which could provide some form of focus of what were the central issues, from the children’s perspective, which needed the court’s resolution.
Accordingly, on 12 April 2017, it was ordered that a family assessment report be commissioned by Ms M, an experienced child psychologist, at the parties’ joint expense. Ms M’s report was produced on 1 December 2017. Mr Pennington took part in the report but has reneged on his agreement to pay his half share of the cost of its production.
It also seemed to me that the various contravention applications were something of a legalistic cul-de-sac, which would not be helpful in resolving the central issues in the case. In these circumstances, to their credit, the parties and their then legal advisers, were able to resolve the contravention proceedings by way of the father acknowledging his breach of orders with pleas of guilty to three representative counts.
No penalties were imposed. This seemed to me to be an act of good faith on the part of both parties who expressed some guarded optimism that an agreed position might be found in respect of on-going arrangement for the parenting of the children.
The resulting orders, resolving the contravention proceedings, were made on 4 August 2017. At this stage, it was noted that Ms M would be in a position to commence her family assessment report, with interviews with the parties and children on 24 August 2017. In these circumstances, the following orders were made:
·The wife’s costs of the various contravention applications were reserved to trial;
·The 6 April 2016 orders were varied so that the father could deliver [Z] to her (sports) and return to collect her at the conclusion of any match concerned provided that he did not remain during any such match;
·Arrangements for handover were varied so that non-school handovers could occur at the parties homes provided neither entered the residential address of the other save and accept to deliver bag/sporting equipment, in the absence of the children.
Given the potential length and complexity of the proceedings, there was an examination of whether the final disposal of the case could be more appropriately dealt with in the Family Court. However, it was the consensus of all the lawyers involved that this court would be likely to be able to allocate an earlier hearing date than that court, notwithstanding the pressures upon it.
On 6 December 2017, in the presence of both Ms Dickson and Mr Adey (the father’s then solicitor) the case was listed for final hearing on 21 & 22 June 2018. By this time, Ms M’s report had been released and, perhaps unduly optimistically, the parties hoped that they might be able to reach an agreed final position through participation in some form of mediation.
This proved to be a forlorn hope and the matter returned to court on 13 April 2018, on which occasion, the June trial was confirmed and formal orders were made for the filing of affidavit material. In particular, the father was to file his trial affidavit on or before 24 May 2018; with the mother to file her affidavit evidence on or before 7 June 2018.
On 14 May 2018, the father’s solicitor withdrew from the proceedings once again. Mr Pennington has not instructed any further solicitor in the period since. Mr Pennington did not comply with the order for filing affidavit material.
The operative applications
The father is the applicant in these proceedings, as a consequence of his application filed on 23 June 2016. On a final basis, he seeks the total reinstatement of the Family Court order made 21 June 2012.
The mother filed an amended response, to this application, on 14 June 2018. She seeks orders, which can be summarised as follows:
·The father spend time with the children, during school terms, from the conclusion of sport on Sunday (or 3:00pm), whichever is the earlier until the commencement of school the following Monday (or Tuesday, in the event that Monday is a public holiday);
·The children’s time be subject to [X]’s wishes;
·Until the twins turn fifteen they spend one half of each short school holiday period, with their father and alternate weeks during the December/January school holiday each year;
·After the twins attain the age of fifteen, they spend such school holiday periods, with their father, as they effectively wish.
Although the proceedings are undefended, it is the father’s preferred position that the previous status quo arising from Dawe J’s order of 2013 be reinstated and there be no restriction on his attendance at any of the children’s sporting activities.
The evidence
In his presentation to the court, the father presented as bitter, opinionated and self-sabotaging. Significantly, he had great difficulty in accepting that he had made any significant contribution towards the current acrimonious impasse between him and Ms Redden, other than acknowledging that he could be something of a pedant when it came to issues of child safety, particularly in the context of the sporting field.
Rather, Mr Pennington sees the conflict arising in the family as being largely driven by the mother and her deceased husband, to whom he referred, somewhat insensitively, in my view, given Mr A’s passing, bluntly as “Mr A”. In the father’s view, he was simply pushing back against what he would characterise as the mother’s controlling and provocative behaviour of which he is the long suffering victim.
Mr Pennington does not believe that any previous episode of his behaviour, particularly on the sidelines of sporting events involving his children, can be considered as threatening or intimidating. He presented himself as a passionate person, who would not sit quietly by in the face of anything dangerous or wrong without trying to right it.
However, the fact remains that he has been excluded from being on land owned by the South Australian Education Department; the premises of and activities organised by the (sports) Club; the (sports) Team; and Life Be In It; each organisation being the sponsor of an activity in which one or other of the children have been involved from time to time.
Ms Redden has been able to obtain documentary proof of these exclusions, which I accept have been made at arm’s length from any involvement with her. In these circumstances, I reject any submission that she has been able to engage in some form of conspiracy to discredit Mr Pennington or that Mr Pennington is the victim of circumstance or some form of vendetta by these various organisations, who seek to silence him. On balance, it is far more probable that the clubs concerned and the Education Department regard him as a nuisance and threat to the users of the services which they provide.
I do not consider that Mr Pennington is a dangerous or violent person, rather, he seems incapable of controlling his feelings and deferring to others, including other parents and teachers who have either volunteered or been appointed to coach or oversee his children’s various sporting activities.
In this context, he appears to be unable to restrain himself from offering gratuitous advice or criticism of how these individuals go about their activities. This was particularly marked so far as Mr A was concerned, who passed away tragically, as a consequence of illness, in 2018.
As previously indicated, Mr Pennington has a background in the (occupation omitted) and deposed that he has some expertise in respect of the treatment of sporting injuries. I also accept that he loves his children dearly and would not want either they or indeed any other children to be exposed to any danger, whilst they engage in potentially dangerous activities, such as (sports) and (sports) practice.
For all I know, Mr Pennington may well have had a point about what particular tape was used to bind an injured finger or in respect of safety in the (sports). However, it is my view that he is incapable of conveying his views in a non-confrontational manner. In addition, he is incapable of seeing that he could have raised his concerns in a different way, which would have avoided an escalation in conflict.
In fact, in his evidence to me, Mr Pennington indicated that “the Club was wrong”, whilst his behaviour was “justified” in each case. This seemed to me to be an extraordinary view to hold, in the face of the views held not by just club or official, but by several clubs and several individuals, the majority of whom had no reason to hold any personal animus against the father.
To his credit, Mr Pennington did concede that, from time to time, his behaviour would have been embarrassing for [X]. However, in Mr Pennington’s view, although [X] may have been upset his behaviour was justified by the issues which he felt compelled to raise.
The contrast in presentation between Ms Redden and Mr Pennington was extreme. She presented as calm, reasonable and focussed on what was best for the children. In particular, although she was clearly frustrated by many aspects of Mr Pennington’s behaviour, she did not appear to me to be intent in acting in any recriminatory or punitive way towards him. Rather she presented as wearied by Mr Pennington’s behaviour.
By way of example, Ms Redden enjoys a reasonably well paid position as a (occupation omitted) in the (employment) industry. She has been able to provide the children with a comfortable and well-resourced middle class lifestyle, without any contribution whatsoever from Mr Pennington since the parties separated. Ms Redden did not express any bitterness in respect of this situation, which must have been challenging for her from time to time. Rather, she indicated her acceptance that the father loved the children and they loved him.
Accordingly, it is my finding that Ms Redden is not motivated by any malice for Mr Pennington or a desire to get back at him, through the agency of the children. Rather, she presented as a person, who was at the end of her tether and just wanted mechanisms put in place, which would protect her and the children from what she regarded as the father’s irrational and extraordinary behaviour, which somewhat balefully she indicated she believed he was incapable of moderating.
The children concerned each has a complicated sporting calendar, which changes seasonally. They have a mixture of school based and club based sporting commitments. Perhaps naively I attempted to canvas with the parties, particularly Mr Pennington, some mechanisms which would enable him to be able to at least spectate at these activities, without conflict arising.
As a consequence of this process, I formed the view that it is extremely difficult for Mr Pennington to make any compromise or concession and certainly that he has no great capacity for self-reflection. To utilise a cliché, it is either his way or the highway. He has a propensity to become fixated on what he perceives as being the injustices to which others have imposed upon him.
In all these circumstances, I have come to the view that the mother’s evidence is to be preferred to that of the father. Significantly, I find that it is Mr Pennington who has been driving the conflict between the parties, both before and after their separation and it is he, rather than any of the clubs or schools concerned, who has created the discord and disagreement leading to his exclusion from the children’s sporting events.
In my view, it seems improbable that he will be ever able to adjust emotionally to the end of the parties’ relationship. He presented as a bitter and broken person, who seemed incapable of letting go of his long-held grievances against Ms Redden.
I accept Mr Pennington’s evidence that his responsibilities to care for his aged and ailing parents place many calls on his time. However, these demands, onerous as they are, do not provide a reasonable explanation as to why he has chosen to dip in and out of these proceedings. I reject his evidence that he overlooked proceedings or did not understand what was required of them.
Rather, it seems more likely than not that he has been desirous of frustrating the mother and causing her to rack up unnecessary expense. In this context, he presented as being affronted that Ms Redden would attempt to challenge aspects of his conduct towards her and the children.
In the context of these proceedings, it is not necessary for me to make a specific finding as to whether or not this behaviour constitutes family violence within the definition provided by section 4AB(1) of the Family Law Act, which defines the expression as meaning:
“… violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful.”
In my view, there are many aspects of Mr Pennington’s conduct towards Ms Redden, which have certainly had the effect of being at the very least, attempts to coerce and control her. In my view, there has been nothing conciliatory in Mr Pennington’s attitude towards Ms Redden, over very many years. Sadly, it seems unlikely that Mr Pennington has any wish or capacity to let go of his aggression for Ms Redden.
The family report
Due to the manner in which these proceedings have been conducted, Ms M’s evidence and the methodology informing the preparation of her report and its recommendations have not been subject to any scrutiny through a process of cross-examination. Notwithstanding this deficit, her report appeared to have been thoroughly and professionally complied and, as a consequence, I have no difficulty accepting its content and recommendations.
Ms M has a significant advantage over me in these proceedings. She has been able to interact directly with [X], [Y] and [Z] and speak directly with them. As such, she was in a position to determine what sort of children they are and what are their particular preferences, particularly in regards to sport. In this context, there is nothing to suggest that Ms M considered that any of the children had been subjected to the outside views of others or were parroting what was expected of them.
[X] was described as being generally unhappy in his interview with Ms M. However, he indicated to her that he accepted that his parents needed to know how he felt about current arrangements for his care. In addition, [X] described to Ms M a successful life at school, sports and socially. He reads as a pleasant and well-motivated child and one who is fanatical about sport.
In terms of his life with his mother, [X] said he enjoyed his mother’s household, which was organised and comfortable with everyone concerned knowing what was expected of them. In general terms, [X] was not opposed to the continuation of the existing April 2016 regime, so far as his time with his father was concerned. However, this approval was subject to his desire that his father would be able to take him and his siblings consistently to all of their sporting and social commitments.
However, Ms M described [X] as being clear in his overall preference to spend more time living with his mother than with his father. In this context, his preference was to spend two weeks/one week with his mother and father during school holiday periods.
Significantly, when asked how he would utilise a magic wand to change any aspect of his life, [X] responded by indicating that he wanted his parents to stop fighting and for everyone to get to their sport. In this context, the parties are united in their view that sport is important for all the children concerned, particularly [X]. In these circumstances, I accept that it is incumbent upon the court to do whatever it can to minimise disruptions to [X]’s sporting engagements.
In this context, Ms M summarised [X]’s response to his father’s interruption of a (sports) match in the following terms:
“[X] spoke with some distress of a time when his father interrupted his (sports) in order to question a coaching decision. He said that his father has interrupted sports training and practice a number of times to raise an issue with the coach. Although [X] felt that his father might be correct in his views, the way he goes about addressing matters is not. [X] spoke of feeling embarrassed, and ashamed, at those times. He reported that it does not happen any more because his father has to stay in his car, and [X] prefers it that way. When he was living more equally between his parents, [X] also described holding onto school notices (e.g. that required a parental response) until he was with his mother, knowing that way they would be responded to promptly.”[14]
[14] See family assessment report at [7]-[8]
[Y] was described by Ms M as being quiet and guarded in his conversation with her. He too reported enjoying school, sports and his friends. The impression left by Ms M’s report of her interview with [Y] is of a child who was torn between his parents and of one who derived significant sense of identity and satisfaction from being involved in sports. In this context, Ms M reported as follows:
“[Y] said he has missed his father since time with him was reduced and he would prefer to live equally between his two homes. Equally, however, he expressed a strong wish to be able to attend his sports every weekend. [Y] did not like the idea of continuing not to attend sport, or of having time with his father further reduced. [Y] was teary when speaking (albeit without detail) of feeling confused about how things could be better. On the weekends that he is with his father, [Y] reported that his mother expects him to ask his father to take him to his sport. [X] said that he often does ask, but he knows it will not help.”[15]
[15] Ibid at [8]-[9]
When [X] was presented with a magic wand, he indicated that he would like to go to his sport. Again, as with [X], sport is a central concern for [Y]. He is close to his father and obvious love him. However, it seems clear that he is also emotionally stressed by being subject to the constant push and pull between his parents.
Ms M described [Z] as a gentle and polite child, who readily engaged with her. She, like her twin, wanted to spend more time with her father than currently occurred, but only on the proviso that Mr Pennington would take them to their sport and would respond appropriately to her social invitations. Unlike her brothers, Ms M offered [Z] three magic wishes, which she indicated she would use as follows:
“…[Z]’s first wish was for [Y] to be able to go to his sport. Her second wish was for her father to manager her “social stuff” better, and if those two wishes worked, her third wish was to spend more time (than currently occurs) with her father.[16]
Again, [Z] is obviously close to her dad, but is wanting to achieve some social autonomy and independence. This is understandable given her age. She does not wish for her social activities to be impinged upon.
[16] Ibid at [9]
In her report, Ms M summarised the children’s respective sporting commitments. In winter, [X] plays (sports), with training on Wednesday and Friday evenings and a game on Sunday. He is also a (sports) referee with training on Monday and Wednesday evenings, with obligations to referee multiple games on Sundays.
In summer, [X] plays (sports) for his school, with training on Wednesday night and a match on Saturday mornings. He also plays seven aside (sports). It is Ms Redden’s perception that [X] is becoming more independent, and as such, places a greater weight on his friendship group than on his familial relationships. In this context, his very many sporting commitments are obviously of great importance to him.
[Y] plays (sports) in winter, with training on two nights per week and games on Sundays. He also plays (sports) for School 1 Primary School with games on Saturday morning and training on Fridays. In summer, he plays (sports). [Y] plays (sports) on Tuesday evenings. She also attends a regular (hobby) class.
In the past, Ms Redden has arranged for the children to have therapeutic counselling, which was provided by one of Ms M’s colleagues, Ms A, a clinical psychologist. In the context of preparing this report, Ms M consulted with Ms A, who reported that all three children found the conflict between their parents upsetting.
It was also Ms A’s view that the children had been exposed to the father’s negative views about their mother and had been distressed about some aspects of their father’s behaviour, particularly in respect of past sporting events and interacting with coaching staff and other parents. However, Ms A was also of the view that the children enjoyed spending time with their father.
In my view, this evidence encapsulates the essential conundrum of the case. The children love their father, who is interested in every aspect of their care, including their sporting activities. However, Mr Pennington is not able to attend these activities and enjoy them, with the children, without being influenced by his essentially negative view of Ms Redden and the late Mr A. Also, he is incapable of being an appropriate spectator and of deferring to the club and school officials, who administer the children’s various sporting activities.
In this context, Ms M described Mr Pennington in the following terms, which coincide with my own impressions of him.
“Mr Pennington’s care for the children, their wellbeing, their development, was evident throughout his interviews. He presented as heavily interested in the children's sporting involvements, and focused upon the problems he found with them. Mr Pennington also, however, presented as finding it difficult to take on board feedback regarding his behaviour, viewing himself as reasonable, assertive and child-focused, in contrast with the reports of others who have described him as hostile and aggressive. In interview during this assessment, again, although his care for the children is undisputed, it was often overshadowed by his determination to discuss matters he viewed as important.
Mr Pennington’s opinion was that Ms Redden has manipulated the legal process and has catastrophised simple situations to suit her position. His continuing focus upon Mr A, and his reports of Mr A’s past behaviour, present as hindering his capacity, focus solely upon the children's interests. As such he has been unable to facilitate the children's attendance at commitments, despite both the children's wishes and Orders to do so, because of his own views about what is right and reasonable. Unfortunately, and sadly, this has created continuing stress and uncertainty for the children.”[17]
[17] Ibid at [19]-[20]
In my view, for the reasons I have already outlined, there is no evidence to indicate that Ms Redden was motivated by feelings of vindictiveness, when she brought her application in December of 2015 to reduce Mr Pennington’s time with the children and restrict his capacity to engage in their sporting activities. Rather, she seems to have hoped that the orders proposed by her would provide the children with some form of emotional airlock, which would also permit them to engage in their various sporting activities, whilst maintaining their relationship with their father.
It is her position that the orders have been successful, up to a point, but Mr Pennington himself has learnt nothing from there inauguration. Rather, he has continued to behave in a manipulative and difficult manner towards her, notwithstanding the very many positive aspects of his relationship with the children and them with him.
In the context of this difficult situation, post the April 2016 orders, Ms M posed herself the following question, which she then answered;
“If there were a way to ensure that Mr Pennington would support the children's attendance at sporting and social events on his weekends then the writer would support the current arrangement continuing. Again, unfortunately, Mr Pennington’s acknowledged breaches of recent Orders (which result in uncertainty, stress and distress for the children) would indicate that this is not possible. Mr Pennington’s ability to be a bigger, positive influence in the children's lives is sadly hampered by his inability to accept a situation he disagrees with (e.g. that Mr A is also a significant part of their world).”[18]
[18] Ibid at [20]
I share Ms M’s regret. It is my assessment that Mr Pennington is simply incapable of attending at the children’s various sporting and social events in a manner which does not infringe upon the entitlement of the children concerned in this case and indeed the rights of other attendees at these occasions to enjoy them without interruption from him.
Why Mr Pennington has this difficult and peevish personality is a matter of conjecture. However, I am satisfied that he does have such a querulous personality and is incapable of any personal insight into its causes and so the capacity to restrain its more extreme manifestations. The children do not like this aspect of his personality and exposure to it does not appear to be in their best interests in Ms M’s professional opinion.
In these circumstances, Ms M made the following recommendations:
“… the writer recommends that the children spend time with Mr Pennington every Sunday, from the conclusion of all of their sporting commitments (or from 3pm on Sundays at the latest) until the commencement of school on Monday morning. It is recommended that Ms Redden be restricted from enrolling or accepting any invitations for social or sporting events for the children within that time (i.e. 3pm onward on Sundays) or of placing pressure upon the children to request attendance at such directly from their father. If a public holiday falls on the Monday, it is recommended that Mr Pennington’s time extends to the commencement of school on Tuesday morning, and that if there is no sport occurring on the Sunday, that wherever possible his time with them commences on Saturday afternoon following the cessation of all three children's commitments then (i.e. that they are transported together).”[19]
[19] Ibid at [20]
Ms M conceded that her recommendations did not accord with the preferences expressed by the twins. However she indicated her view that this deficit was unavoidable given the need to protect the children from the ongoing stress, which the parties’ difficult relationship posed for them.
Ms Redden accepts Ms M’s recommendations. Indeed, her amended response, recently filed, both in terms of school term times and arrangements for school holidays, is in accord with Ms M’s recommendations. In addition, she accepts that, given [X]’s age, it is appropriate that he be given the imprimatur to decide what periods of time he spends with his father.
Discussion
The applicable legislation requires me to consider two criteria primarily – protective concerns relating to the exposure of a child to abuse, neglect and family violence – and the benefits of a child having a meaningful relationship with both of his or her parents. As previously indicated, the former criterion is to be given pre-eminence in appropriate cases [section 60CC(2)(a) & (b)].
The central dilemma arising in this case is how arrangements can be made to ensure [X], [Y] and [Z] continue to benefit from having a sufficiently meaningful level of relationship, whilst at the same time being protected from the worst aspects of their parents’ difficult relationship with one another, which has been manifested in Mr Pennington’s aggressive and confrontational behaviour at their sporting activities.
Sport is important to these children, particularly [X], who lives and breathes (sports). As indicated above, in applying the legal principles contained in Part VII of the Family Law Act, I am directed to bear in mind some central philosophical tenets applicable to parenting. These objective should inform and underpin whatever order I ultimately make. One of these aim is that: “children receive adequate and proper parenting to help them achieve their full potential.”
[X], [Y] and [Z] are not likely to reach their full potential, certainly in a sporting context, if their activities on the playing field are disrupted and their attention from their games and training distracted. In addition, such behaviour cannot be regarded as constituting adequate and proper parenting.
In Mazorski v Albright[20] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned. The expression meaningful is also used in section 60B(1)(a).
[20] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
In my view, Mr Pennington’s conduct at the children’s sporting activities have not added meaning to the children’s lives in the beneficial manner envisaged by Brown J in Mazorski. He has caused the children distress and embarrassment. This is not helpful to them.
In Goode & Goode[21] the Full Court said as follows:
“In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.”
[21] See Goode & Goode (2006) FLC 93-286 at 80,901 [72]
Clearly each of the children love their father and he loves each of them. This love, of itself, will be of great benefit to the children. However, in my view, in the medium to longer term, steps need to be taken to protect the children from coming to emotional harm, as a consequence of exposure to the more extreme aspects of their father’s personality, which seem to come to the fore when he finds himself in a sporting context.
I am satisfied that the orders, envisaged by Ms Redden, represent a balance between ensuring the children have the benefits of an on-going and meaningful level of relationship with their father, whilst providing an appropriate level of protection, both for them and their mother.
At this stage, it seems apparent that the children’s relationship with their mother is the central and most important one in their lives [section 60CC(3)(b)]. [X], [Y] and [Z] are well brought up and accomplished children. This is due to the influence of Ms Redden, who has provided the greater proportion of the children’s care since the parties separated.
In these circumstances, in my view, Ms Redden is entitled to continue her parenting of the children without undue interference from Mr Pennington. It is likely to be beneficial for the children, if she has a sense that she can continue her parenting of [X], [Y] and [Z], including organising their sporting and extramural activities, can occur without the apprehension that Mr Pennington will engineer some crisis or confrontation, which will disrupt these activities for the children.
I acknowledge that Mr Pennington and members of his family, particularly the paternal grandparents, also enjoy very significant relationships with the children, which need to be maintained. In my assessment, the regime proposed by Ms M, and which has been adopted by Ms Redden, will enable the children to maintain these important relationships with their father and members of his family.
The time proposed includes some overnight time and is regular. Although it is significantly less than the time allocated under the earlier orders, given the ages of each of the children concerned, in my assessment, it is sufficient to maintain the current level of relationship, with their paternal family, in the difficult circumstances of this family.
I also acknowledge that the orders proposed do not accord with the views of the twins [section 60CC(3)(a)]. For all sorts of reasons, the longstanding conflict between the parties, which has been made manifest at sporting activities, particularly those involving the late Mr A, has placed great emotional stress on the children.
As a consequence, they are each torn in their respective loyalties to their parents. However, one thing is clear from what they have said to Ms M – each of them wants to continue to enjoy their sporting commitments without interference from their father.
This is particularly so in the case of [X], who is fast becoming a young adult, who is entitled to level of self-determination in his life. In these circumstances, in my view, it is appropriate that he be given the imprimatur to determine what time he spends with his father.
In my view, when the court attempts to catalogue what are the views of the children and what is impacting upon those views, this is the most important consideration. In my view, the children need predictability and certainty, to enable them to undertake their extramural activities, which will be provided for the orders through the orders proposed by Ms Redden. Any reversion to the previous arrangements is likely to lead to more disruption, in these activities, and so more emotional angst for the children.
As I have indicated, it is my finding that Ms Redden has not been motivated by any feelings of malice for Mr Pennington. In my assessment, she is a person who has a well-honed insight into what are the responsibilities incumbent on being a parent [section 60CC(3)(i)]. In this context, I accept that she has been motivated, in her various applications, by her desire to protect the children from suffering emotional harm, as a consequence of their father’s behaviour not to advance her own desires.
As previously indicated, Ms Redden has provided the vast majority of the children’s financial support, since the parties separated [section 60CC(3)(ca)]. I acknowledge that Mr Pennington is not in a strong financial position but, in my view, this factor also supports my assessment that Ms Redden is committed to the well-being of the children.
In my assessment, her application in these proceedings, is not influenced by any desire to remove Mr Pennington as a significant influence in the children’s lives. Rather, it is a response to what has become an untenable situation, on her part. Given her role, as the children’s main provider of care, this too must be an important consideration, which militates in favour of the court making the orders proposed by her.
Finality is generally preferable in children’s cases [section 60CC(3)(l)]. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
Regrettably, a large proportion of the lives of the children concerned in these proceedings, has been subject to vitriolic litigation between their parents. In this context, it was noteworthy to observe the reticence of the children in interview with Ms M. In my view, it is likely that the children are exhausted by the conflict between their parents and wish it to stop.
In my assessment, the best mechanism to achieve this end is to remove Mr Pennington from the children’s sporting activities and to put in place a regime of orders which will allow him to continue his relationship with the children but, at the same time, minimise the potential for confrontation and so lessen the prospects of yet more litigation.
I am required, in all cases concerning children, to consider the application of the presumption of equal shared parental responsibility, created by section 61DA of the Act. In my view, the evidence is unequivocal that it would not be in the best interests of these children for their parents to be conferred with such a level of parental responsibility.
The evidence clearly indicates that they do not communicate well; mistrust one another; and find it close to impossible to agree on any arrangement for the care of their children.
In these circumstances, given Ms Redden has been the parent more instrumental in the development of [X], [Y] and [Z], up to this stage and will continue to be so, it is in the children’s best interests that she be conferred with sole parental responsibility. In this way, I am satisfied that appropriate decisions will be made for the children’s care, welfare and development.
I have endeavoured to consider all the appropriate considerations relevant to this case, as delineated by section 60CC. In my view, an assessment of these factors supports the orders sought by the mother.
Although these proceedings have proceeded without a full level of input from Mr Pennington, they cannot be considered to be considered to be entirely undefended. Out of deference to him and given his obvious interest in these proceedings, I allowed him to give evidence and make submissions to the court. I appreciate, however, that he did not file any updating affidavit material and was not legally represented. However, in my view, these deficits were solely attributable to decisions made by him alone.
Ms Redden is entitled to have her application for parenting orders considered and concluded by the court, notwithstanding Mr Pennington’s passive opposition. Having considered the presentation of both parties, in the case, and the expert evidence of Ms M, I have reached the conclusion that the orders sought by Ms Redden are the ones best calculated to serve the interests of [X], [Y] and [Z]. Accordingly, I will make orders in the terms sought by Ms Redden.
Costs
Ms Redden has been represented by experienced solicitors and counsel throughout these proceedings. Although she is employed, in my view, she cannot be regarded as a wealthy person. As such, these proceedings represent a significant financial impost upon her.
In my assessment, Ms Redden is likely to be a prudent person. In addition, as already indicated, I do not believe that she instituted the proceedings with any ulterior motive in mind. Accordingly, in my view, it is clear that she inaugurated these financially onerous proceedings because she formed the view that she had no alternative but to seek the court’s adjudication and, to a certain extent, its protection.
Regrettably, the proceedings have become protracted. This has not been due to any action on Ms Redden’s part. Rather, Mr Pennington has not chosen to engage in the proceedings, with any proper level of diligence or rigor. This has led to the proceedings being prolonged and increased the level of expense.
In the initial stages of the proceedings, for reasons about which I can only conjecture, Mr Pennington elected to stone wall in respect of them by not taking part. Perhaps he hoped nothing would happen or they would go away. Neither outcome was tenable. In these circumstances, neither the court nor Ms Redden had any other viable option other than to proceed to final judgment in the absence of Mr Pennington.
Thereafter, Mr Pennington did not abide by the court’s orders. I appreciate that he did not agree with those orders. However, after having not elected to take part in the proceedings, he did not have either the legal or moral authority to ignore the court’s determination. He was bound by the court’s orders.
In these circumstances, Ms Redden again had no alternative but to bring contravention proceedings. Ultimately, these were compromised but with an acknowledgment of guilt on Mr Pennington’s part. He acknowledged a breach of the court’s orders without reasonable excuse.
Mr Pennington has had legal representation from time to time. When he has been represented, his capable legal advisors have had a positive input into the proceedings. This input assisted in focussing on the children’s requirements, rather than on those of their parents. In this context, it was clearly a useful intervention that Ms M was commissioned to prepare a family assessment report for the court.
Mr Pennington agreed to provide one half of the costs of Ms M’s report. However, he has not made good his commitment in this regard. This is not to his credit, and in my view, characterises his somewhat desultorily attitude to these proceedings – he is dismissive and resentful of them; but, at the same time, unwilling to engage in them constructively.
In all these circumstances, Ms Redden makes application for costs, on an indemnity basis, in respect of the various contravention applications and of this current proceedings, on an indemnity basis.
The normal rule in civil proceedings is that costs follow the event. Essentially, the unsuccessful pays the costs of the party, who has succeeded. This is not the position in family law proceedings, rather, the starting point is that each party should bear his or her own costs.
The rationale for this rule is that the subject matter of family law proceedings is intensely private, dealing as it does with arrangements for the care of children and the division of property, which has been privately acquired.
Necessarily these issues, often highly controversial, frequently precipitate strong emotions in the parties concerned. In addition, the law pertaining to such decisions is discretionary, based on the court’s assessment of very many factors.
Accordingly, what will be the ultimate outcome of family law proceedings may be difficult to predict with certainty. Inevitably, in such circumstances, the parties concerned will each be able to present valid and compelling reasons as to why they have proceeded. In children’s cases, these reasons invariably relate to issues centred on filial affection. The love of a child is one of the most powerful of all human emotions.
In short, the subject matter of the court, in children’s proceedings, is different in character and quality from other species of civil litigation, which does not always have the same emotional quotient.
Essentially, in children’s cases, the parties concerned are usually each able to present valid proposals as to how a difficult and controversial situation should be resolved and the strong feelings inevitably created by the situation concerned may stand in the way of easy compromise.
Considerations such as these make it potentially unjust for there to be any rule that costs should be routinely awarded to a successful party. However, notwithstanding these considerations, the court retains a discretion to award costs in appropriate circumstances.
Section 117(1), abolishes, for the purposes of Family Law Act proceedings the general rule that in civil proceedings costs follow the event. Section 117(2) then provides the court with a general discretion to make costs orders if it is of the opinion that there are circumstances that justify it in so doing. The court may make such order for costs as it “considers just”.
Section 117(2A) sets out the matters that the court shall have regard to in exercising this discretion. They include the following: the financial circumstances of the parties concerned; the receipt of legal aid by the parties; the conduct of the parties to the proceedings; whether the proceedings were necessitated by the failure of a party to comply with previous court orders; whether one of the parties to the proceedings have been wholly unsuccessful in them; any offers to settle the proceedings; and any other relevant matter.
The court has a wide discretion as to the calculation of costs. Pursuant to Rule 21.02(2) of the Federal Circuit Court Rules:
“In making an order for costs in a proceeding the Court may:
(a) set the amount of costs; or
(b) set the method by which the costs be calculated; or
(c)refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of costs which may be before the proceedings is concluded.”
However, pursuant to Rule 21.10:
“Unless the Court otherwise orders a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1 and
(b) disbursements properly incurred.”
The court’s discretion to make an order of costs is a wide one but it is one which must be exercised carefully and judicially. Orders for indemnity costs are extraordinary or exceptional. In Kohan & Kohan[22] the Full Court of the Family Court characterised an order for indemnity costs as “being a very great departure from the normal standard.”
[22] See Kohan & Kohan (1993) FLC 92-340 at 79,614
Accordingly, the Full Court said “the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind.”
In Colgate-Palmolive v Cussons Pty Ltd[23] it was held that indemnity costs are not commonly ordered and will only be ordered if the Court is satisfied that there is “some special or unusual feature of the case to justify the Court in departing from the ordinary practice” of ordering the costs be paid on a party and party basis.
[23] See Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
There is no closed category of cases in which indemnity costs might appropriately be ordered, but in Colgate Palmolive v Cussons Pty Ltd, the Court said that the kinds of situation in which indemnity costs might be considered were where a litigant had:
·commenced or continued an action knowing it to have no chance of success;
·made false or irrelevant allegations of fraud;
·made groundless allegations which prolong a case; and
·imprudently refused an offer to compromise.
I accept that neither party can be considered to be in a strong financial position. In particular, Mr Pennington is not in regular employment and is independent on social security payments for his financial support. He also has obligations to care for his aged and ailing parents.
The main focus of these proceedings has not been on the financial circumstances of the parties. As such, I am unaware of what is Ms Redden’s precise level of income or asset backing. I do know that both parties own their homes but for each of them, particularly Ms Redden, it is likely to be the case that whatever sums have been expended in legal costs, has resulted in some level of financial privation.
As I have previously observed, it is a significant factor that Ms Redden, along with the burden of these proceedings, has had to continue to support the children financially. I have no doubt that the many activities, in which the children engage, are a significant call on Ms Redden’s budget.
For the reasons outlined above, I accept that the conduct of Mr Pennington rendered these proceedings necessary. In addition, due to the manner in which he has chosen to approach the litigation, Mr Pennington has been totally unsuccessful in them. He has also formally acknowledged a failure to comply with previous court orders. Neither party is in receipt of legal aid.
Having considered all these factors, I am of the view that an order for costs should be made in Ms Redden’s favour. I do not consider that the costs should be awarded on an indemnity basis as the circumstances of the case, in my view, are not sufficiently exceptional to justify such an award, particularly given the straitened financial circumstances of Mr Pennington.
In all the circumstances of this case, particularly its protracted nature, which has resulted in a number separate proceedings having to be inaugurated on behalf of Ms Redden, which have necessitated multiple court appearances and the production of many documents, I propose to award costs against Mr Pennington, in a composite amount, which I have calculated should be $10,000.00.
In general terms, I have calculated $5,000.00 as being attributable to the contravention proceedings, in respect of which costs were reserved and $5,000.00 in respect of these proceedings. In addition, Mr Pennington continues to have liability for a previous cost order in an amount of $2,554.00. Accordingly, he will be liable to pay costs amounting to $12,554.00 together with his half share of Ms M’s report, which amounts to $1,416.00.
In my view, this total sum represent a just one, given Mr Pennington’s personal circumstances. It is likely to be both significantly less than the cost of the proceedings for Ms Redden but also a very significant impost upon Mr Pennington. I will also reiterate the order that he pay one half of the costs of Ms M’s report.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment
I certify that the preceding two hundred and thirty two (232) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 5 October 2018
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