Philkin & Philkin (No 2)
[2021] FedCFamC1F 160
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Philkin & Philkin (No 2) [2021] FedCFamC1F 160
File number(s): DGC 2894 of 2018 Judgment of: JOHNS J Date of judgment: 26 October 2021 Catchwords: FAMILY LAW – CHILDREN – interim parenting orders – review of a decision by Senior Judicial Registrar – where the children’s attendance at school is argued to be unsatisfactory – where the father seeks orders that the mother ensure the children attend school – where the children are subject to State mandates upon attending school – where the school has not intervened – where the Department of Education has not intervened
FAMILY LAW – COSTS – consideration of s 117(2A) – costs awarded on a party/party basis
Legislation: Family Law Act 1975 (Cth)
Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
I and I (1995) FLC 92-625
Marvel v Marvel (2010) 43 Fam LR 348
Division: Division 1 First Instance Number of paragraphs: 94 Date of hearing: 7 October 2021 Place: Melbourne Solicitor for the Applicant: Mr Thompson Solicitor for the Respondent: Ryan Carlisle Thomas Counsel for the Respondent: Ms Mansfield Solicitor for the Intervener: Robert Halliday & Associates Counsel for the Intervener: Mr Metaxas ORDERS
DGC 2894 of 2018 FEDERAL CIRCUIT & FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PHILKIN
Applicant
AND: MS PHILKIN
Respondent
ROBERT HALLIDAY & ASSOCIATES
Independent Children’s Lawyer
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
26 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Respondent Mother do all such acts and things as may be required to facilitate the child, Z born in 2007 engaging with educational services and return-to-school supports provided by the Navigator Program at H School.
2.The Applicant Father's Application for Review of Orders filed 6 October 2021 be otherwise dismissed.
3.The Applicant Father pay the Respondent Mother's costs on a party-party basis fixed in the sum of $3,750.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Philkin & Philkin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant father, Mr Philkin, and the respondent mother, Ms Philkin, currently have pending property and parenting proceedings listed before the Court. The mother also seeks a vexatious proceedings order in relation to the father. Those applications for final orders are listed for hearing before Hartnett J in February 2022.
The proceedings have had a long history before the Court, having commenced in 2018.
The parties met in 2001 and commenced cohabitation in that year. They married in 2008 and the mother alleges that they separated under the one roof in 2015; the parties physically separated in 2018.
The parties have three children, Z aged 14, Y aged 12 and X aged 9 years. The children currently live with the mother. The father's time with the children was suspended pursuant to orders made 26 November 2019 by Judge O'Sullivan in the Federal Circuit Court of Australia (as it then was).
Since that time there have been numerous applications filed on behalf of the father in relation to both parenting and property proceedings. In addition, there have been notices of appeal filed by him in relation to orders, including the orders suspending his time with the children. The father's appeals in relation to the orders suspending his time with the children have been dismissed.
By Application in a Case filed 11 August 2021, the father sought orders that:-
·The mother do all things necessary to ensure the children's attendance at their schools;
·That the mother supervise and facilitate the children logging-on and attending classes online at their respective schools;
·If any of the children are unable to attend school, the mother provide within 24 hours of such non-attendance a medical certificate detailing the reasons for the child's non-attendance at school and the father be provided with a copy of such report;
·That the father be permitted to obtain records of the children's attendance at school.
That application was heard by Senior Registrar Hoult on 8 September 2021 and orders were made as follows:-
(1)The Applicant father's case application dated 8 August 2021 be dismissed.
(2)The Applicant father pay the Respondent mother's costs of this day fixed in the sum of $5040 with such costs to be paid within 60 days.
(3)The Applicant father pay the Independent Children's Lawyer's costs of this day fixed in the sum of $2590 with such costs to be paid within 60 days.
AND IT IS REQUESTED THAT:
(4)Any further applications from either party not heard before a Division 1 Judge be heard by Senior Judicial Registrar Hoult.
The father seeks to review those orders by his Application for Review filed 6 October 2021. That application was filed pursuant to Part 14.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Rules").
Rule 14.07(1) of the Rules provides that the Court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing; that is, the hearing is conducted as a hearing de novo of the parties' respective underlying applications.
The application before the Court relates to specific issues with respect to interim parenting, namely what orders, if any, should be made against the mother to ensure the children's school attendance. As such, the hearing was conducted on the papers. Each party relied upon material referred to below and the submissions made by their counsel.
Given the nature of the hearing, contentious facts cannot be determined without evidence being properly tested. Accordingly, in determining the matter, I have relied upon those facts which are agreed or not in issue.
These are my reasons for judgment with respect to the father's application.
THE FATHER'S PROPOSALS
The orders sought by the father in his Application for Review differed from those sought by him in his Application in a Case the subject of the orders made by the Senior Registrar on 8 September 2021. Accordingly, I sought clarification from the father's lawyer at the commencement of the hearing as to the terms of the orders sought by the father. The father's lawyer confirmed that the father sought orders in the terms of paragraphs 1 to 6 of his Application in a Case filed 11 August 2021. He also confirmed that the orders sought at Part D of the Application for Review were not pressed.
The mother's counsel confirmed that the mother sought the dismissal of the father's application, albeit that she conceded in the running of the hearing that she would consent to an order that she do all things necessary to facilitate the child Z’s engagement with educational services and return-to-school supports as provided by her secondary college; that concession was made notwithstanding the mother's denial that such order was necessary.
The mother also sought that the father pay her costs of and related to the application for review fixed in the sum of $3,751.88.
The Independent Children's Lawyer supported the mother's positon that the father's application be dismissed. The ICL also agreed to the order as proposed by the mother in relation to her facilitating Z’s engagement in the educational supports and return-to-school program provided by her secondary school.
DOCUMENTS RELIED UPON
The father relied upon the following documents:-
·Application for Review filed 6 October 2021;
·Application in a Case filed 11 August 2021;
·Affidavit of the father filed 8 August 2021;
·Affidavit of the father filed 7 September 2021;
·Documents produced under subpoena by H School (Exhibit R-5);
·Documents produced under subpoena by GG School (Exhibit R-6).
The mother relied upon the following documents:-
·Affidavit of the mother filed 2 September 2021;
·Exhibits tendered during the hearing (Exhibit R-1 to R-6 inclusive);
·Family Report dated 11 May 2021.
The ICL relied upon the Family Report dated 11 May 2021.
LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) ("the Act") sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied.
Section 65D provides that the Court may make such parenting orders as it thinks proper within the context of the objects of the legislation and the principles underpinning those objects as set out in s 60B.
In deciding a particular parenting order, the best interests of the child is the paramount consideration (s 60CA of the Act).
In determining what is in a child's best interests, s 60CC of the Act sets out the primary and additional considerations the Court must have regard to in determining what is in the child's best interests. The above principles apply whether or not the application before the Court under Part VII is considered on an interim or a final basis.
The procedure for conducting interim hearings was established by the Full Court in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286. At paragraph 68 of that judgment the Full Court said:-
… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.
The Full Court also said at 74:-
… the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.
In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court confirmed the decision in Goode. It also considered the approach to be adopted when presented with contested evidence on an interim hearing and stated:-
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
Consistent with the statement of the Full Court in Marvel, I consider that a conservative approach ought to be adopted in circumstances where there is a significant conflict in the evidence of the parties that has not been tested.
THE FATHER'S SUBMISSIONS
The principal issue raised by the father is his concern that the children are not attending school on a regular basis and that the mother is not encouraging or supporting the children's school attendance. The children are currently in Years 9, 7 and 4 respectively. Each child attends a different school. Further, as a result of the global pandemic the children have had significant periods where their schooling has been conducted online due to lockdowns affecting Metropolitan Melbourne.
As to Z, who is in Year 9, the father deposes that she has not been attending school. In support of that positon he relies upon her Semester Two 2020 and Semester One 2021 school reports (annexures PP-2 and PP-3 of his affidavit filed 8 August 2021) which indicate her teachers were unable to make assessments as to her progress due to her lack of attendance in class.
As to Y, who is in Year 7 at a different secondary school, the father alleges that she has only attended school for 60 per cent of the required days during the 2021 school year up to 25 June 2021. He relies upon the letter from Y's secondary school dated 25 June 2021 (annexure PP-6 of the father's affidavit) in support of that contention.
The father expresses similar concerns in relation to X who is in Year 4. He deposes that X's school records indicate that she has attended school for only 47 per cent of the required days in 2021. In support of that submission he relies upon annexure PP-4 to his affidavit which is an excerpt from X's Semester One 2021 school report.
The father submits that the mother has not been diligent in ensuring the children's attendance at school and further that she has not responded to communications from their schools in relation to these issues. As a result, he seeks orders in the terms of his Application in a Case which would require the mother to ensure the children's school attendance.
THE MOTHER'S SUBMISSIONS
It was submitted on behalf of the mother that the orders sought by the father were unnecessary and that the application was an abuse of Court process. It was submitted that the mother is obliged to ensure the children's attendance at school, pursuant to State legislation, and that she was appropriately attending to those obligations; it was submitted that no action has been taken by the children's schools in relation to their alleged non-attendance.
It was also submitted that the father's application was filed without any attempt to raise the issues with the mother through her lawyers. That is, the pre-action procedures contained within the Family Law Rules (as they then were) were not complied with.
The mother relied upon her affidavit filed 2 September 2021 in which she set out the positions of each of the children in relation to their education.
At paragraphs 19 to 20 of her affidavit, the mother deposes as to Z’s difficulties with school attendance. She notes the issues she had at her previous school at which she commenced in Year 7. The mother deposes that Z has been affected by her "unstable home-life" arising from the parties' separation and that in 2019 she had a falling-out with her friendship group which affected her attendance at school.
As a result, the mother deposes that Z was enrolled in a "re-set program" at her current school where she is enrolled in Year 9. The mother deposes that she is working with the Department of Education "Navigator" program to support Z and that Z has an assigned case-worker to support and encourage her school attendance.
The mother deposes that Z has a modified timetable at her school, that she has completed academic testing. The mother concedes that Z’s attendance has declined in Semester 2 but deposes that she is continuing to encourage her attendance at classes. The mother deposes that she has been in meetings with Z’s school and her case-worker to support Z’s school attendance.
It is the mother's position that the father has been mischievous in his account of Z’s school attendance. Annexed at P-3 of her affidavit are entries into the school portal, "Compass", made by the father whereby he has allegedly altered Z’s attendance records citing her reason for non-attendance at school on 12 October 2020 and 20 July 2021 as "truancy". The mother deposes that on each of those occasions Z was not required to attend school.
Further, the mother relies upon annexure P-4 to her affidavit, which are portal entries made by Z’s teachers on various dates between 24 August 2020 and 28 October 2020, where Z is recorded as having received positive feedback from her teachers and awarded points for her conduct in class.
As to Y, the mother deposes at paragraph 21 of her affidavit that she is enrolled at a different secondary school, is currently in Year 7 and that she is progressing "really well" at that school.
Y has been acknowledged by the school for her positive behaviour and persistence at school and the mother relies upon P-6, being a letter from the school's assistant principal regarding Y's progress.
The mother deposes that Y has had some difficulty with school attendance since she fractured her collarbone. The mother also deposes that she has arranged for a tutor to support Y with her numeracy skills where she has been identified as requiring assistance.
Y's Semester 1 2021 school report (annexure P-8) confirms that she is progressing at the expected level in all subjects save for mathematics (for which she is receiving additional support) and physical education.
With respect to X, the mother deposes that she is currently in Year 4 at her primary school and is also progressing well there.
The mother concedes that X has had difficulties with online learning, noting that she does not like attending classes by video. The mother deposes that she is assisting X with her school work outside of the Zoom classes. She notes that X's school report reflects her good progress. X's Semester 1 2021 school report (annexure P-5 to the mother's affidavit) confirms that she is progressing at or above the expected level across all spheres.
The mother submits that the father's manner of communicating with the children's schools is problematic and has created difficulties for the children in the school setting. Reliance was placed upon the assessment of the father by Dr YY, Consultant Psychiatrist dated 6 July 2020 and annexed to his affidavit filed 4 August 2020. At paragraph 74 of his report, Dr YY observes:-
In my opinion, he presents with a very problematic way of interacting which involves rapid escalation, multiple and persistent contacts, not responding to limit-setting, harassment and threats. He has had very negative and sometimes threatening interactions with virtually every professional involved in the case excepting his own counsel.
Further, at paragraph 77 of his report Dr YY observes:-
From a diagnostic point of view, it is very difficult to make a personality disorder diagnosis based on a one-off assessment and without clear evidence of problematic interactions in work or other settings, but I would make a provisional diagnosis of narcissistic, anti-social, paranoid and obsessive-compulsive personality traits if not personality disorder.
(Emphasis in Original)
It was acknowledged by the mother's counsel that at this time, that evidence is untested. Nonetheless, it was submitted by the mother's counsel that the father's behaviour towards staff at the children's school is consistent with the behaviour observed by Dr YY in that assessment.
The mother relied upon the correspondence received from the children's primary school dated 12 June 2019 (annexure P-9 of the mother's affidavit) regarding that school's decision to terminate X and Y's enrolment at the school at the conclusion of Term 2, 2019. At paragraph 3 of that correspondence the school principal stated the father's:-
…behaviour over the years has run contrary to our parent Code of Conduct and the values of the school, this has been addressed previously. Whilst we have been focussed on what is best for your children and continuing with the enrolment, despite all of the challenges we have faced over the years, this cannot continue moving forward.
Despite all best endeavours to attempt to forge a relationship with you both (mainly with you [the father]) in the midst of your ongoing and longstanding family law dispute and current Intervention Order, your previous application at VCAT, new threats to take further legal action at VCAT and reports to DHHS, it is now evident to me and Father CD that the situation is no longer tenable, particularly, as it is now impacting on the staff's occupational health and safety.
Later in that correspondence, the principal states:-
I refer to your recent correspondence Mr Philkin (as attached), where you portend ’I will bring you to account mate just like Mr CE’. I find those comments hurtful and threatening and will no longer tolerate your threats moving forward and am considering legal options around such a threat.
…
Mr Philkin, the adversarial nature of your interaction with me and my staff over the years has placed the school in a very difficult situation at times, particularly in light of the current Intervention Order.
The mother also relied upon reports made by the children's other schools as to their concerns with respect to the father's conduct in his communications with those schools.
For example in relation to Z’s secondary school, the mother relied upon documents produced under subpoena by that school (Exhibit R-5) which evidence that that school had issued a Trespass Warning Notice for a period of 12 months in respect of the father's attendance at that school. That notice was forwarded to the father by email dated 19 April 2021. In his email to the father giving notice of that decision, the principal stated that the notice had issued as a result of the father continuing "to behave in a manner that is inconsistent with school policies and that is adversely affecting members of the school community".
The father responded to receipt of that notice by email dated 20 April 2021 in which he stated:-
I am demanding that you revoke this and pay me $100,000 compensation as well as list the grounds of the trespass warning…I am also demanding your immediate resignation.
The father sent a further email to the principal some six minutes later in which he stated:-
The trespass warning you have issued is an abuse of process and it has taken you two weeks to issue it whereas it is designed to be issued within minutes or hours to protect which vindicates my assertion. Further it has been issued on no valid grounds.
This is a letter of demand.
This email will be used as to costs.
Prior to the issue of the trespass warning notice, Z’s school principal had communicated with the father by email regarding concerns as to his behaviour. On 2 March 2021 an email was sent to the father raising concerns as to his behaviour at the school on 22 and 24 February 2021. On 24 February 2021 the father's behaviour was observed to be "extremely confrontational and aggressive towards office staff who were adversely affected" by that behaviour.
The mother also relied upon the observations and recommendations contained in the family report prepared by Family Consultant ZZ dated 11 May 2021.
Family Consultant ZZ noted concerns with respect to the children's school attendance, in particular in relation to Z’s engagement at school.
She also noted the concerns around the father's behaviour in the school setting and observed that he has created conflict in the children's schools to the extent that the children have been forced to move schools.[1] Family Consultant ZZ's recommendations include that the Court consider preventing the father from contacting the children's schools at any time to ensure that school is a safe and secure place for them and the mother.
[1] Family Report, paragraph 114.
The Independent Children's Lawyer
The ICL adopted the submissions of the mother and supported the orders sought by her.
The ICL did not seek any orders in relation to costs.
CONCLUSION
Whilst I am not in a position to make findings in relation to many of the disputed facts between the parties, the documents produced under subpoena by the children's school do assist the Court in its assessment as to what orders are in the children's best interests in the determination of the current application. Those records indicate that the children are attending at and participating at their respective schools at an acceptable level.
Further, the correspondence from the Department of Education supports the mother's contention that she is encouraging of and supporting Z’s participation in the Navigator program which is designed to assist her re-engagement with school. That this is so was confirmed by the Department of Education and Training in its letter to the father dated 25 July 2021 in which it states:-
…I am assured that the Navigator program and the school-based well-being team are working with Z and her mother to support Z’s re-engagement with her education.
The mother's commitment to that program was confirmed by her Counsel who indicated the mother's willingness to consent to orders that she abide by the recommendations of the school to support Z’s continued involvement in the Navigator program offered by her school.
The documents produced under subpoena by each of the childrens' schools confirm:-
·Y and X attend school regularly;
·Y and X are making sound progress at school;
·Z is engaged in the Navigator program and the mother supports her involvement in the program; and
·That the father has on occasion adopted an aggressive, confrontational and threatening style of communication with the schools.
In circumstances where the parties' evidence and contentions are unable to be tested I have close regard to the information contained in the documents produced by the children's schools. Whilst that material indicates the children have had absences from school, it confirms that the mother is engaging with their schools in relation to their attendance and progress. Those records also confirm that the father has been in conflict with Z’s current school and Y and X's former primary school; it is likely that such conflict has caused the children embarrassment and discomfort in the school setting.
The evidence produced by the schools supports the view that the mother is supporting the children's attendance at and engagement with their schools. Accordingly, I am not satisfied that it is in the children's best interests to make orders as sought by the father. That view is bolstered in circumstances where the evidence of both parties in relation to these and other contentious issues will be tested at the final hearing listed in approximately four months.
That the father pursued this application notwithstanding the imminent final hearing and in the face of the evidence produced under subpoena by the children's schools which confirms the children's attendance and progress at school is a matter of concern and in my view will likely lend weight to the mother's contention that the father is a vexatious litigant.
Given the concession made by the mother and supported by the ICL, I will make orders as proposed by her in relation to her continued support of Z’s participation in the Navigator program. I am satisfied that that order is in Z’s best interests. Otherwise, I will make orders that the father's application for review be dismissed.
COSTS
Legal Principles
The question of costs is governed by s 117(1) of the Family Law Act 1975 (Cth) which provides:-
Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
That is, the general rule in proceedings under the Act is that subject to the provisions of s 117(2), the parties to the proceedings shall bear their own costs of the proceedings.
Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs as the Court considers just.
Section 117(2A) of the Act provides that in determining what order (if any) should be made under subsection (2), the Court must have regard to the following:-
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
Costs are not awarded as punishment of the unsuccessful party, but rather are compensatory in the sense that they are awarded to ameliorate the expense of the successful party as a result of having been required to participate in the legal proceedings.
The discretion in s 117 of the Act is broad and the relevant factors in s 117(2A) are not to be read in a restrictive way; any one of those factors may found an order for costs but all factors must be taken into account and balanced (I and I (1995) FLC 92-625).
The method of calculation of costs is referred to in Rule 12.17 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021. It provides:-
(1)The court may order that a party is entitled to costs:
(a)of a specific amount; or
(b)as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
Rule 12.17 (3) provides that:-
(3)In making an order under subrule (1), the court may consider the following:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c)the rates ordinarily payable to lawyers in comparable proceedings;
(d)whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;
(e)the time properly spent on the proceeding, or in complying with pre-action procedures;
(f)whether expenses (paid or payable) are fair, reasonable and proportionate.
Having regard to the above matters, I consider that I have a wide discretion in respect of matters relating to any costs order. The mother seeks costs in the sum of $3,751.88, such sum calculated on a party-party basis in accordance with Schedule 3 of the Rules. That claim is based on an allowance of counsel's fees in the sum of $2,700, including an allowance for preparation and appearance. In addition, further allowance is sought for her lawyer's work in perusing the father's application and affidavit in support and the briefing of counsel. The mother relies on Exhibit R-1, being a table of costs claimed by the mother in accordance with that scale, in support of her application.
The mother principally relies upon the considerations identified at s 117(2A)(c) and (e) of the Act, that is, she contends that the relevant considerations are:-
·The conduct of the parties in relation to the proceedings; and
·Whether any party to the proceedings has been wholly unsuccessful.
The Financial Circumstances of the Parties
Neither party made any submissions directed to their financial circumstances. In his affidavit, the father deposes that his occupation is "site manager". The mother deposes that she is engaged in home duties.
Whether either party is in receipt of Legal Aid
Neither the mother nor the father is in receipt of legal aid.
The Conduct of the Parties in relation to the Proceedings
The mother submits that the father's conduct warrants an order for costs and in particular she relies upon:-
·The orders sought by the father are no more than what the mother is obliged to do pursuant to State legislation. That is, she is legally required under State law to ensure the childrens' attendance at school. Accordingly, it is the mother's submission that the father's application is an abuse of process and unwarranted, particularly given this matter's procedural history. Having regard to the observations and recommendations contained in the Family Report, as well as the materials produced under subpoena by the children's schools which confirms their attendance at or engagement in programs organised by the schools, there is much force in that submission.
·The failure of the father to engage in the Court's pre-action procedures to address any concerns he may have in relation to the children's school attendance. No correspondence was forwarded to the mother's lawyers by the father's legal representative prior to the commencement of this application.
·The father has filed numerous applications, notices of appeal and applications in an appeal in these proceedings. As part of her application for final orders the mother seeks a vexatious proceedings order in relation to the father. It is the mother's position that this application by the father lends weight to her submission that the father is a vexatious litigant. Again, having regard to the available independent evidence produced by the schools and in circumstances where there is a final hearing listed in approximately 4 months where all issues will have the opportunity to be ventilated and the evidence tested, there is much force in that submission.
·The mother also relies upon the father's conduct towards staff at the schools attended by the children. The documents produced by Z’s school and the children's previous primary school indicate that the father has been observed to be aggressive and confrontational in those settings. There is a recommendation by the family consultant that the father not attend at the children's schools as a result of that alleged conduct. Having regard to those matters, the mother submits that there was no basis for the father's application that he be permitted to take the children to school (as was originally sought in his Review application).
The father rejected those contentions, relying upon the concession made by the mother that she will consent to an order that she ensure Z’s continued participation in the programs offered by her school.
I do not view that concession as being indicative of the father succeeding in his application; rather, it was a concession made by the mother to provide further assurance to the father and the Court that she was attending to Z’s needs. The evidence before the Court from Z’s school indicates that the mother has been actively participating in and supporting Z in the Navigator program at her school.
As noted earlier, the evidence produced by the schools under subpoena indicates that all three children are engaged at school and that the mother is supporting them in those endeavours. Further, as noted earlier, the documents produced by Z’s school indicate that there are significant concerns regarding the manner in which the father has elected to engage with that school. Further, the mother has adduced evidence which raised concerns as to the manner in which he engaged with the children's former primary school. Having regard to those matters, and the history of this litigation, particularly with respect to the children's attendance at school, I am satisfied that the father's conduct has resulted in the mother incurring additional unnecessary costs. The persistence of the father with this application in the face of the independent evidence produced by the schools has resulted in the mother incurring costs and is a compelling consideration in support of her application for costs.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
Neither the mother nor the father made any submissions with respect to this consideration.
Whether a party to the proceedings has been wholly unsuccessful
The mother submits that the father has been wholly unsuccessful in his application. The father challenges that contention in circumstances where the mother has conceded that an order may be made with respect to her ensuring Z’s continued engagement with the Navigator program. The reality is that that was a concession made by the mother during the running of the proceedings as a means of appeasing the father. In circumstances where the independent evidence before the Court produced from the children's schools confirms their engagement with their respective schools and the mother's support of that engagement and further, where the recommendations of the family consultant, albeit untested, support a position that the father should not at this time be in contact with the children's school, I am satisfied that the father has been wholly unsuccessful in his claim
Whether either party to the proceedings has an offer in writing
Neither the mother nor the father made any submissions as to offers made.
Any other matters that the Court considers relevant
There are no other relevant considerations.
Are there circumstances that justify an order for costs?
I am satisfied that an order for costs against the father is warranted in the circumstances of this matter, having regard to the considerations addressed above.
The evidence before the Court at this interim hearing indicates that there is a significant conflict between the parties as to future parenting arrangements. The father is highly critical of the mother's care of the children. The mother disputes the many criticisms levelled against her by the father. Ultimately all of those issues, including issues around the children's school attendance and the mother's support of their education, will be ventilated and evidence tested at the final hearing listed to commence in February 2022, some four months away.
The father's pursuit of his application for orders against the mother, in circumstances where the independent evidence supports her position as to the children's engagement at school and further where she is already mandated under State legislation to ensure their attendance at school, has placed an unnecessary burden upon her and has resulted in her incurring additional legal costs. Accordingly, I am satisfied that the father should be ordered to pay the mother's costs.
Counsel for the father was invited to make submissions as to the quantum claimed by the mother. It was submitted on behalf of the father that the mother's costs ought to be limited to $1000. I do not accept that submission.
Having regard to Schedule 3 of the Rules, I am satisfied that the costs sought by the mother are in all of the circumstances reasonable. Accordingly, I will make orders as sought by the mother in respect of costs.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 26 October 2021
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