Powell & Powell
[2024] FedCFamC2F 1650
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Powell & Powell [2024] FedCFamC2F 1650
File number(s): BRC 2655 of 2023 Judgment of: JUDGE BERTONE Date of judgment: 22 November 2024 Catchwords: FAMILY LAW – Final Parenting Orders made by consent – Father re-commenced proceedings less than two years later – s 65DAAA hearing – Father withdrew his application upon concluding his cross-examination – Mother seeks costs – whether to order indemnity costs – special costs order made – Mother seeks prohibition order pursuant to s 106QAC – Harmful proceedings order granted Legislation: Family Law Act 1975 (Cth) pt VII, ss 65DAAA, 117, 102QAC, 106QAE, 106QAG
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Carey & Prescott (No 2) [2024] FedCFamC1F 512
Huda & Huda & Anor (Costs) [2017] FamCAFC 104
Kohan & Kohan [1992] FamCA 116
Madin & Palis (Costs) [2016] FamCAFC 25
McEnearney & McEnearny (1980) FamCA 43
Nada and Nettle (Costs) [2014] FamCAFC 207
Penfold v Penfold (1980) 144 CLR 311
Prantage & Prantage [2013] FamCAFC 105
Sfakianakis & Sfakinanakis [2019] FamCAFC 54
Stasiuk & Guild [2021] FamCAFC 62
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 185 Date of last submission/s: 16 September 2024 Date of hearing: 18 and 19 July 2024 Place: Brisbane Counsel for the Applicant: Mr Jordan Solicitor for the Applicant: RK Law Counsel for the Respondent: Mr Linklater-Steel Solicitor for the Respondent: Day Family Law Pty Ltd ORDERS
BRC 2655 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR POWELL
Applicant
AND: MS POWELL
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS:
1.By no later than 21 February 2025, the Father shall pay the Mother’s costs fixed in the sum of $80,000.
2.Pursuant to section 102QAC(1) of the Family Law Act 1975 (Cth) (‘the Act’) the Father MR POWELL born in 1975 is prohibited from instituting parenting proceedings under the Act against the Mother without leave of the Court first being granted pursuant to section 102QAG of the Act.
3.In the event the Father makes an application for leave to institute proceedings against the Mother pursuant to section 102QAE, then a Registrar of the Court is to notify the Mother that such application has been made and whether such application has been dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BERTONE
These parties are parents of X born in 2016. Final Parenting Orders in respect of X’s care arrangements were made by consent on 2 June 2021 (the “Final Parenting Orders”)
The Final Parenting Orders provide for the Mother to have sole decision making for X, that X live with her Mother and spend time with her Father.
Contained within the Final Parenting Orders was an increasing progression of time that X is to spend with her Father, together with the usual suite of authorities, in addition to a drug testing regime with which the Father must abide.
The Father filed an Initiating Application for final orders on 6 March 2023 seeking significant changes to the Final Parenting Orders, such changes including (but are not limited to):
(a)The parents to have joint decision making authority for long term decisions affecting X, rather than the Mother having sole decision making authority;
(b)X to live in an equal time arrangement with each parent; and
(c)A discharge of the drug testing regime.
The Father’s application was opposed by the Mother.
Given the parties had agreed to the Final Parenting Orders on 2 June 2021, less than two years prior to his application, section 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) applied.
The matter wound its way to me for a hearing on 18 and 19 July 2024 in respect to the application pursuant to section 65DAAA of the Act.
The Father was represented by Mr Jordan, of Counsel. The Mother was represented by Mr Linklater-Steel, of Counsel.
The Father was cross-examined for most of the first day of the hearing and also on the morning of the second day. At the conclusion of the Father’s cross-examination, Mr Jordan asked me to stand the matter down so he could take instructions from his client.
When the matter was recalled, Mr Jordan informed me that the Father was withdrawing his application.
Accordingly, on 19 July 2024 the Father’s application filed 6 March 2023 was withdrawn and dismissed.
Mr Linklater-Steel sought leave to amend the Mother’s Response filed 28 April 2023 to seek orders:
(a)For the Father to pay the Mother's costs on an indemnity basis; and
(b)A declaration for a harmful proceedings order pursuant to section 102QAC, which will prohibit the Father from bringing any further parenting proceedings without leave of the Court.
I granted leave to the Mother to file her Amended Response by 5 August 2024, and made orders by consent allowing the parties to file a further Affidavit and written submissions.
Where in the reasons that follow I make statements of fact, these should be regarded as findings of fact.
Issues for Determination
The issues for my determination are:
(a)Whether there are circumstances that justify the making of a costs order against the Father pursuant to section 117 of the Act;
(b)Whether there are circumstances that justify the costs order being made on an indemnity basis; and
(c)Whether there are circumstances that justify the making of a harmful proceedings order pursuant to section 102QAC.
Material Relied Upon
The Mother relies upon voluminous material as follows:
(1)Her written submissions filed 5 August 2024.
(2)Her Amended Response to Amended Initiating Application filed 5 August 2024;
(3)Her Case Outline filed 11 July 2024;
(4)The Father’s Affidavits filed 17 July 2024, 20 June 2024, 6 June 2023, and 15 April 2021;
(5)Certain paragraphs of the Father’s Affidavit filed 15 April 2021;
(6)The Mother’s Affidavits filed 5 August 2024, 20 June 2024 and 24 April 2023;
(7)Certain paragraphs of the Mother’s Affidavits filed 27 April 2021 and 14 April 2021;
(8)The Affidavit of Ms B filed 29 March 2023 filed on behalf of the Father;
(9)The Affidavit of Ms Kirstie Day filed 5 August 2024 filed on behalf of the Mother;
(10)The Affidavit of Ms D filed 11 July 2024 filed on behalf of the Mother;
(11)The Father’s Costs Notice dated 31 August 2023, which is Exhibit 3;
(12)The Father’s Costs Notice dated 19 February 2024 which is Exhibit 4;
(13)The Father’s Costs Notice dated 25 June 2024;
(14)The Mother’s Costs Notice dated 15 July 2024, which is Exhibit 15;
(15)The Mother’s Financial Statement filed 11 July 2024;
(16)The Father’s Financial Statement filed 17 July 2024;
(17)Orders and Reasons for Judgment of her Honour Judge Tonkin made on 2 June 2021;
(18)Orders of Judicial Registrar Bounds made on 4 September 2023;
(19)Orders of his Honour, Judge Bowrey made on 8 November 2023;
(20)Orders of his Honour, Judge Middleton made on 21 February 2023;
(21)Orders I made on 25 June 2024;
(22)The transcript of the proceedings before me on 18 and 19 July 2024;
(23)The transcript of the proceedings before his Honour, Judge Middleton on 21 February 2024;
(24)Pages 25 to 29 of the Report of Dr E filed 4 February 2019;
(25)The Family Report of Mr F filed 16 April 2021; and
(26)The 19 Exhibits tendered in these proceedings before me.
The Father is now self-represented. Despite making orders for the Father to file a minute of orders sought, an Affidavit, and Written Submissions in response to the Mother’s Amended Response, the Father has only filed an Affidavit on 16 September 2024.
The Father therefore relies on his Affidavit filed 16 September 2024 which I note comprises of 219 pages.
I have read and considered all the documents relied upon by the parties.
As the High Court has said, I am not required in these reasons to mention every fact or argument relied upon by the parties, nor am I required to address every submission made by the parties.[1]
[1] Whisprun Pty Ltd v Dixon [2003] HCA 48.
Background
The Father is 49 years of age and is the owner and director of business G Pty Ltd.
The Mother is 45 years of age and is employed as an educator .
The Father and Mother commenced living together in late 2013 and were married in 2015.
They separated in June 2018 and they divorced in late 2019.
Their only child, X, was born in 2016. X is now 8 years old and is the subject of these proceedings.
It is not in dispute that from the time of separation until now, X has lived primarily with her Mother.
What has been in dispute for a very long time is:
(a)Whether the parties ought to share the responsibility for making decisions about X’s long term welfare; and
(b)The amount of time X ought to spend with her Father.
History of proceedings
Relevant to my determination for the orders now sought by the Mother is the history of the litigation between these parties.
The Mother and Father attended Mediation on 22 August 2018.
The Father subsequently filed an Initiating Application on 27 September 2018, when X was not yet 2 years old, seeking orders for parenting and property.
On 3 October 2018, Judge Coates made Interim Parenting Orders with respect to X’s care arrangements.
There were various Interlocutory applications made by both parties in 2018, 2019 and 2020.
The matter proceeded to a Final Defended Hearing before her Honour, Judge Tonkin on 4 and 5 May 2021.
At the Trial before Her Honour, Judge Tonkin, the Mother was represented by Mr Linklater-Steel, of Counsel. The Father was represented by Ms Pendergast, of Counsel. The Independent Children’s Lawyer at the Trial instructed Mr Bunning, of Counsel.
After the Father was cross-examined by both Mr Linklater-Steel and Mr Bunning, the parties entered into negotiations for Final Orders for both parenting and property.
On 6 May 2021, the parties signed consent minutes that were handed up to Her Honour, Judge Tonkin.
Her Honour, Judge Tonkin made final orders by consent for the property adjustment and Her Honour reserved her decision with respect to the parenting orders.
On 2 June 2021, Her Honour, Judge Tonkin issued her Reasons for Decision and made the Final Parenting Orders for X, who by then was 4 years old, which essentially provided the following:
(1)The Mother to have sole parental responsibility;
(2)In the exercise of the Mother’s sole parental responsibility, she will inform the Father about decisions to be made and consider his response;
(3)X shall live with the Mother.
(4)X shall spend time with the Father as follows:
(a)From 2 June 2021 until 24 January 2022:
(i)Week 1:11:00am Wednesday until 8:30am Thursday; and
(ii)Week 2: 11:00am to 7:00pm Wednesday and from 4:00pm Friday to 5:00pm Saturday;
(b)From 24 January 2022 until 27 January 2025:
(i)Each alternate weekend on Friday from after school or 3:00pm on a non-school day until 5:00pm Sunday;
(c)From 27 January 2025 and thereafter:
(i)Each alternate weekend from after school on Friday or 3:00pm if it is a non-school-day until before school on Monday or 8:30am if it is a non‑school day;
(5)In school holidays the child will spend time with the Father:
(a)Commencing end of Term 1 2023 until the start of Term 1 2025:
(i)3:00pm Friday until 3:00pm Monday each alternate weekend commencing the first weekend of the school holiday period;
(b)Commencing end of Term 1 2025 until start of Term 1 2028:
(i)3:00pm Wednesday until 3:00pm Monday each alternate week commencing the first weekend of the school holiday period;
(c)Commencing end of Term 1 2028 and thereafter:
(i)The child will spend time with the Mother and Father on a week about basis;
(6)Provision for special days such as birthdays, Father’s Day and Mother’s Day, Easter and Christmas;
(7)Provision for X to travel overseas with the Mother, during which time the Father’s time would be suspended;
(8)Provision for X to communicate with her Father via FaceTime each Tuesday and Thursday at 6.00pm;
(9)Provision for education, exchange of information and a suite of authorities and injunctions;
(10)A drug testing regime where the Mother is at liberty to request the Father to submit to random hair follicle drug testing on no more than four occasions per calendar year at the Father’s expense; and
(11)Provision for supervised time in the event the Father returns a positive drug test or in the event that he refuses or fails to undergo a drug test when requested.
The Final Parenting Orders set out a regime to increase the time that X is to spend with her Father so that at the time of the hearing before me in July 2024:
(a)The current arrangement for time during the school term, being from after school Friday to 5.00pm Sunday, would extend through to Monday before school each alternate weekend, from the commencement of Term 1 of 2025; and
(b)The current arrangement for time during the school holidays, being from 3.00pm Friday to 3.00pm Monday each alternate week, would increase as follows:
(i)From the commencement of Term 1 of 2025, X would spend time with her Father from 3.00pm Wednesday to 3.00pm Monday each alternate week; and
(ii)From the commencement of Term 1 of 2028, X’s time with her Father would move to week-about during the school holidays.
The Father then filed an Initiating Application on 6 March 2023 (“the new application”) less than two years after the making of the Final Parenting Orders. At the time of filing this new application, X was 6 years old.
The Father’s new application sought to discharge the Final Parenting Orders and replace them with orders that are, essentially, in the following terms:
(a)An order for equal shared parental responsibility (as it was then known);
(b)For X to spend equal time with each parent;
(c)For X to spend block periods of fourteen days during the school holidays with each parent; and
(d)To discharge the drug testing regime.
The Mother filed her Response on 28 April 2023 seeking orders dismissing the Father’s Initiating Application, which would leave the Final Parenting Orders undisturbed. The Mother also sought in her original Response an order for the Father to pay her legal costs.
The Father was therefore on notice from 28 April 2023 that not only did the Mother oppose any change to the Final Parenting Orders, but that she also sought an order for costs against him.
There were three components to the Father’s claim that the Final Parenting Orders ought to be revisited, namely that:
(a)The circumstances surrounding the making of the Final Parenting Orders were problematic, given the deficiencies in the legal advice he claimed he received at the time; and
(b)The change in his personal circumstances and in particular the burden placed upon him by the drug testing regime; and
(c)X’s changed circumstances given she was aged 4 at the time of the Final Parenting Orders, she is now aged 7 and is in school. The Father also claimed that he was planning to move closer to X’s school.
Given that the Father has withdrawn his application, I do not have to make findings as to whether or not there has been a significant change in circumstances in respect of section 65DAAA of the Act.
Whether to make a costs order against the Father
Prior to his decision to withdraw his application, I heard the Father cross-examined at length at the hearing before me. I therefore have had the benefit of the voluminous evidence in addition to the cross-examination of the Father.
I accept the submissions by Mr Linklater-Steel that the findings in respect of the Father’s credit in the first tranche of proceedings are relevant to my determination of the Father’s conduct in proceedings before. I make specific findings as to the Father’s credit later in these Reasons.
The Mother was not cross-examined at the hearing before me, and, in fact, neither was she cross-examined in the first tranche of the parenting proceedings before Judge Tonkin.
Therefore, I will accept the Wife’s evidence and make necessary findings unless it appears to me that the evidence proffered by the Mother is inherently unreliable or otherwise unsatisfactory.
The general principle with respect to costs, pursuant to section 117(1) of the Act, is that each party shall bear their own costs.
Section 117(2) provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to the relevant factors set out in subsection 117(2A), make such order as to costs as it considered just.
As the High Court said in Penfold v Penfold section 117(2) “requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs.”[2]
[2] Penfold v Penfold (1980) 144 CLR 311. Per Stephen, Mason, Aickin, and Wilson JJ at page 315.
117(2A)(a): The financial circumstances of each of the parties to the proceedings
In the Mother’s Financial Statement filed 11 July 2024, she states that she is employed as an educator. Her total gross salary per week is $2,114.00.
The Mother and X live in property owned by the Mother at H Street, Suburb J in Queensland (“the Suburb J property”) which is valued at $875,000.00. There is a mortgage on that property, with a balance owing of $614,603, for which the Mother is solely responsible.
The Mother’s mortgage repayments are $699 per week – this amount is more than the Father pays personally for his rent. She has total weekly expenses of $2,252 per week, which amount is more than the income she receives.
The Father does not pay child support to the Mother for X. I find that the Mother is solely financially responsible for meeting X’s needs.
In addition to the mortgage over the Suburb J property, the Mother’s evidence is that she has five separate personal loans she has incurred to meet her legal fees. The current balance of these loans is $55,305.00. In addition to this, the Mother’s evidence is that she owes her parents $15,000.00 for legal fees attributable to the first tranche of these proceedings.
The Mother’s total net assets, excluding superannuation, are in the order of $240,182.
The Mother does have significant superannuation interests in the order of $322,874.00. However, as she is only 45, it will be many years before she will be eligible to access her superannuation entitlements.
The Father’s Financial Statement filed on 17 July 2024 was prepared at a time he was legally represented.
His evidence is that he is self-employed as a director of his company G Pty Ltd. He is a tradesman.
His evidence is that he earns approximately $1,042.00 per week gross. Apart from his company, the only property the Father has are savings as at 17 July 2024 of $1,005[3] and total investments of about $5,000.[4]
[3] Father’s Financial Statement filed 17/07/2024 at Paragraph 37 of Part I.
[4] Ibid Paragraph 38.
I find that the Mother has greater assets than the Father.
His expenses are approximately $622 per week. One of the expenses included in that total, being the superannuation payment of $120 per week for superannuation, is currently unpaid.
As to child support, the claims he is currently “in credit.” That issue was explored in cross-examination and the credit is $55 [5]. It is common ground that there is a zero child support assessment now.
[5] Transcript of Proceedings Day 2 19/07/2024 at page 23, lines 11 - 34
At paragraph 21 of Part G of his Financial Statement, the Father states he pays “$345 rent for the new property at [K Street]”.
In his Affidavit filed 17 July 2024, at paragraph 2, the Father’s evidence is that by moving his principal place of business to that address, half of the rent will be covered by work. The total rent he says is payable on that property is $690 per week.
Based on the Father’s own evidence, he has an excess of income over expenditure each week of $420 per week.
I find that the Father has a financial advantage by having his business pay half his rent, something the Mother cannot do.
The total debts claimed in the Financial Statement are E$292,000. This total includes $260,000 in ATO debts which are noted at paragraph 54 to be “Under Review by Accountants”.
There is also a sum of $32,000 asserted to be owing to Mr L for legal fees.
The Father has superannuation entitlements with Super Fund 1 in the order of $164,346.00. However, the Father claims that he is required to meet his own superannuation payments, given that he is self-employed, but these payments of $120.00 per week are currently unpaid.
In his Affidavit filed 16 September 2024, filed when he was no longer legally represented, the Father gives new evidence of his financial circumstances. He says his financial situation had become “increasingly dire”, and he currently has a wind-up order on his company, and director penalties have been applied to him potentially forcing him into bankruptcy if the Australian Taxation Office does not accept a payment plan. [6]
[6] Father’s Affidavit filed 16/09/2024 paragraph 40.3
The Father provides documents in relation to his company debts at Annexures MRP17 – MRP20[7] inclusive. At Annexure MRP-18[8], the Father attaches a statement reflecting a superannuation guarantee employer statement of account from the Australian Taxation Office asserting as at 29 April 2024, the Father has overdue superannuation obligations in the order of $128,639.00.
[7] Ibid.
[8] Ibid.
I am unclear as to how much of the amount asserted in his Financial Statement for monies owing to the ATO (which was “under review”) is now part of the asserted debts in his latest Affidavit.
One of the documents at page 176 of his Affidavit states there will be a Court event on 8 November 2024. Within the documents at Annexure MRP-20 are two letters from lawyers offering to assist him in dealing with the wind-up process and providing an estimate of their fees.
While the Father does have some debts payable in respect of his business, I treat with caution the documents annexed to the Father’s Affidavit, given that the legal letters attached to the Father’s Affidavit indicate there is a possibility of successfully contesting the windup notice.
How the asserted debt is going to be dealt with by the Australian Taxation Office, is a matter for the Father and his accountants and any lawyers acting on his behalf.
Given the lack of particulars provided by the Father and given he has not exhausted legal and accounting avenues to deal with this debt, I am not satisfied that such a debt precludes me from making a costs order against him.
Doing the best I can, I accept the Father has debts of around $292,000 as set out in his Financial Statement, prepared at a time that he was legally represented in these proceedings. I find that this debt is around half the debt carried by the Mother.
The Mother has incurred significant legal fees due to the Father commencing, and then discontinuing, the proceedings before me. These legal costs have added to the Mother’s already significant liabilities.
Even if I were to find that the Father was impecunious, which I do not, I accept submissions by the Wife that it is not a bar to a costs order. [9]
117(2A)(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;
[9] Mother’s Written Submissions filed 05/08/2024 at paragraphs 178 and 179; Nada and Nettle (Costs) [2014] FamCAFC 207.
Neither of the parties has a grant of aid from Legal Aid Queensland.
117(2A)(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;
As I have stated earlier, the parties consented to the Final Parenting Orders. This was part-way through a trial in the first tranche of the proceedings where each party was legally represented and where an Independent Children’s Lawyer had been appointed.
Complaint about legal advice
The Father was represented at that time by Ms Pendergast, of Counsel. The Mother was represented by Mr Linklater-Steel, of Counsel. The Independent Children’s Lawyer was represented by Mr Bunning of Counsel.
I have been specifically referred to certain paragraphs of Judge Tonkin’s Reasons for Judgment, particularly paragraphs 57 to 63. Mr Linklater-Steel submitted that this was the catalyst for the Father giving instructions to his Solicitors and Counsel to enter into negotiations with the Mother rather than continue on with the trial at that time.
I note that the Final Parenting Orders provided for a staggered approach to X’s time with her Father increasing over time, given her tender age, by reference to her increasing age and commencing school.
At the time I heard this matter in July 2024, there was still one further increase in X’s time with her Father to take place during the school term, commencing at the start of term 1 of 2025, and two further increases in time during the school holiday periods in 2025 and 2028.
One of the bases argued by the Father to discharge the Final Parenting Orders was to call into question the legal advice he received in the first tranche of the proceedings. This was an attempt to persuade me that his consent had been vitiated by the legal advice, or the absence thereof, that he received at the time of entering into the Final Parenting Orders.
Despite complaining about the legal advice, the Father received at the time, and thus seemingly to waive legal professional privilege, he maintained an objection to the Mother’s requests to obtain documents from his former lawyers, including objecting to subpoena.
I have considered the evidence, with particular regard to Exhibits 2 – 7, and the audio file being Exhibit 8 and I find that there was no basis for the Father’s claim that his legal advice at the first tranche of proceedings vitiated his consent. [10]
[10] Transcript of Proceedings Day 1 18/07/2024 page 39 line 46 through to page 67 line 15
I find there is force in the submissions by Mr Linklater-Steel [11] that the Father’s claims about a lack of legal advice about the consent orders to be “untrue and an attempt at deception”, the consequence of which the Mother was forced to incur significant legal costs.
[11] Written Submissions, supra, at paragraphs 73 – 109.
The various Court events the parties attended included:
(a)27 April 2023 – first return before Judicial Registrar Gray;
(b)16 May 2023 – before Judicial Registrar Gray;
(c)4 September 2023 – before Judicial Registrar Bownds in respect of the objection to subpoena;
(d)8 November 2023 – before Judge Middleton to list the matter for a Rice & Asplund hearing (as it was known before the introduction of s65DAAA);
(e)21 February 2024 – before Judge Middleton to hear the Father’s Interlocutory application to engage a family report writer. That application was dismissed by Judge Middleton;
(f)25 June 2024 – Compliance Hearing before me where I set out the issues for determination; and
(a)18 and 19 July 2024 – the Discrete Hearing pursuant to s65DAAA before me.
I find that the Father’s obstruction with respect to his waiver of legal professional privilege caused the Mother to incur significant legal costs.
Drug testing
The basis for the drug testing regime provided in order 36 of the Final Parenting Orders arose from evidence in the trial before Judge Tonkin.
The Father complained that the drug testing regime was oppressive [12] both in respect of costs and additionally in respect of the restraint upon him not to colour his hair.
[12] Father’s Affidavit filed 20/06/2024 at paragraph 57
By that order, the Mother is at liberty to request that the Father submit to random hair follicle testing on no more than four occasions per calendar year, with the Mother to make the request in writing.
Her Honour Judge Tonkin found that the Father was untruthful about an incident in February 2020, which involved a prostitute attending the Father’s home, the Father taking some type of drug, and X being taken to hospital for medical attention.
The Father was cross-examined at length about this incident in the proceedings before me to test his assertions that he had gained insight into his behaviour since the first tranche of the proceedings.
The Father maintained his allegation that the Police records and hospital records[13] were incorrect. The Father still denies any wrongdoing despite pleading guilty to a drug implement charge.
[13] Transcript day 1 page 83 line 11 through to page 86 line 9; and Transcript day 2 page 30 lines 5 – 14.
I find that the Father’s conduct in February 2020 exposed X to harm.[14] His refusal to take responsibility for his behaviour belies his assertions that he has gained any insight at all.
[14] Exhibit 1 – Reasons for Decision by Judge Tonkin dated 02/06/2021 at paragraphs 54 and 55.
As to the Father being unable to colour his hair, as early as 6 July 2022, the Mother advised the Father’s then Solicitors, M Law Firm, that she “would be prepared to accept sampling of an alternative method of hair follicle sampling, utilising body hair as opposed to hair on [the Father’s] head given that it continues to be coloured.” [15]
[15] Ibid at Annexure MRP1 page 5
The Father did not depose to whether he accepted the Mother’s offer to use hair from other parts of his body for the drug testing. He was cross-examined about this issue and accepted that at the time the offer was made, he did not take it up.[16]
[16] Transcript of Proceedings Day 2 19/07/2024 page 12 lines 1 - 12
As to the costs of the drug tests, the Father claimed that each drug test cost him between $450 - $900 for each test.[17] He does not specify the number of drug tests to which he was asked to submit.
[17] Ibid paragraph 56.
I made an order on 25 June 2024 that the parties were to file a jointly agreed schedule of the drug testing regime to include the date of request, the date the test was undertaken and the costs of each drug test.
The joint schedule is contained in Annexure MSD02 of the Affidavit of Ms D filed 11 July 2024. It clearly shows that the Father was required to undergo only one test in each of the years 2021, 2022 and 2023. The Father was required to do two tests in 2024 – the first being on 3 January 2024 and the second on 11 June 2024.
I find that the Father has undergone five tests since the Final Parenting Orders were made on 2 June 2021.
Given the Mother is at liberty to request no more than four occasions per calendar year, and given three calendar years had passed between the making of the Final Parenting Orders and the date of the orders I made on 25 June 2024, she could have requested twelve drug tests since the Final Parenting Orders were made.[18] She did not do so.
[18] This being calculated assuming 2 tests in 2021 (between June and December), 4 tests in 2022, 4 tests in 2023, and 2 tests in 2024 (between January and June) = 12 tests.
The Mother has asked for less than half the number of drug tests she could have legitimately sought and she made a reasonable compromise in respect of the hair sample.
As to the costs of the drug tests, the joint schedule identifies the costs for each of the cheapest of which was $355 and the most expensive test was $450. There is no evidence before me that the drug tests cost more than $450.
I find that the Father’s evidence that the drug tests cost him between $450 - $900 is patently false.
I am satisfied the Mother has used the drug testing regime appropriately and having to defend against the Father’s baseless allegations has caused her to incur significant legal costs.
Conclusion on conduct
The Father claimed that he had gained insight since the first tranche of the proceedings, due largely to his multiple sessions with Dr N.
However, in cross-examination before me, and in his Affidavit filed 16 September 2024, he remained steadfast in his criticisms of the Mother and was eager to highlight the deficiencies he saw in her parenting.
The Father also claimed he had moved closer to X’s school, but I note that that move had not been completed even at the time of the hearing before me.
I accept the submissions made on behalf of the Mother that in prosecuting the second proceedings before me, the Father “knowingly advanced evidence that was untrue”.
The Father’s conduct in commencing, and then discontinuing, these proceedings has resulted in the Mother incurring significantly greater legal costs than would have ordinarily been incurred.
117(2A)(e): Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
The Father withdrew his application on day two of the two days allocated for the hearing of his application in these second proceedings. He has been wholly unsuccessful in the proceedings.
117(2A)(f): Whether either party to the proceedings has made an offer in writing to the other party to the proceedings and the terms of any such offer; and
I have had regard to the evidence of offers as set out in the Mother’s Affidavit filed 5 August 2024, particularly at paragraphs 76 to 81 and the Annexures marked MSP 10 and MSP 11.
The Mother made an offer to the Father on 16 July 2024, being two days prior to the hearing commencing before me on 18 July 2024. The substance of the offer was for the Father to withdraw his application and pay the Mother’s costs fixed in the sum of $50,000.
The Father did not respond to that offer and he proceeded with the final hearing before me. He then chose to withdraw his application on 19 July 2024 after the Mother had prepared her case and before she was required for cross-examination.
The amount offered by the Mother to be paid by way of costs by the Father is less than half the sum she now seeks.
The Mother urges me to find that the Father has imprudently refused her offer to settle.
117(2A)(g): Such other matters as the Court considers relevant.
The Father says he withdrew his second application after his cross-examination was completed, not because he understood the evidence showed there had been no significant change in circumstances but rather because he felt “bullied” and that his “character was being unfairly denigrated under cross-examination”[19]
[19] Father’s Affidavit filed 16/09/2024 at paragraph 40.
Having read the evidence and observed the Father during cross-examination I accept the observation of Mr F in his family report when he said “a common feature of his [the Father’s] account was an acute emphasis on his feelings in isolation – particularly in relation to what might be best for [X] – pronounced with a degree of obsessiveness and a focus on his personal plight”.[20]
[20] Exhibit 10 page 99 at paragraph 149.
During the cross-examination before me, I asked the Father how he proposed to pay for any future legal fees for these proceedings, given that according to his financial statement he did not have much money in the bank. The Father answered that “if it goes through another process, my parents are kind enough to give me some assistance should it get that far.”[21]
[21] Transcript of Proceedings , day 2, page 137, lines 6-21.
I asked the Father some questions about the costs of the Court proceedings. The Father accepted that his legal fees for these new proceedings would be around $160,000.00, which was based on the amount expended in the first tranche of proceedings which resulted in the Final Parenting Orders.
When I asked him where that money for future legal fees was going to come from, he said “I haven’t thought about it, to be honest”.[22]
[22] Transcript of Proceedings , day 2, page 137, lines 29-47.
I do not accept the Father’s evidence in this regard. The Father knew exactly how much money he paid in legal fees in the first tranche of the proceedings. Having paid those fees, and having engaged new lawyers for the second proceedings, he received invoices for legal work which he paid.
I am satisfied that he also received costs notices in accordance with the Rules about incurred fees and future fees.
I find that the Father would have reasonably known that whatever amount he was incurring in legal fees, the Mother would be incurring similar amounts to defend the proceedings.
I find that the Father disregarded the Mother’s opposition to these second proceedings and forced her to incur substantial legal fees only to abandon the proceedings once again after his own cross-examination.
Conclusion on whether or not to make a costs order
Having considered the relevant factors in section 117(2A) of the Act I am satisfied that there are circumstances justifying the making of a costs order against the Father.
Whether to make an indemnity costs order against the Father
In Written submissions filed on behalf of the Mother, she seeks a costs order on an indemnity basis in the sum of $106,295.87. In her Affidavit filed 5 August 2024[23] and her Amended Response to Initiating Application[24] the sum she seeks is slightly different, being $110,595.87.
[23] Mother’s Affidavit filed at paragraph 41.
[24] Response filed 05/08/2024.
The Father in his Affidavit opposes the making of an indemnity costs order. He says that he does not believe he should have to pay a costs order as he has repeatedly tried to mediate and work things out with the Mother.[25] He says further that he is under such financial pressure with his company that he is potentially facing bankruptcy.
[25] Father’s Affidavit filed 16/09/2024 at paragraphs 2.1 and 52.2.24.
As identified in the Written Submissions of Mr Linklater-Steel,[26] an indemnity costs order is to be confined to an exceedingly rare situation[27] and is a very great departure[28] from the normal standard.
[26] Ibid at paragraphs 169 – 177.
[27] Stasiuk & Guild [2021] FamCAFC 62; Kohan & Kohan [1992] FamCA 116.
[28] Prantage & Prantage [2013] FamCAFC 105.
The Mother submits that the Father’s second proceedings had no real prospects of success. The challenge to the circumstances in which the Final Parenting Orders were made was entirely without foundation.
In the proceedings before me, the Father withdrew his application following his cross‑examination. The Mother asserts, in her submissions,[29] that this is a “fundamental acknowledgment” that the Father had “zero prospects of success.”
[29] Ibid at paragraph 2.
To make an order for indemnity costs, I must be satisfied that this matter fits within that category of cases where there are special, unusual or exceptional circumstances that justifies a departure from the Court scale and justifies the making of an indemnity costs order.[30]
[30] Huda & Huda & Anor (Costs) [2017] FamCAFC 104; Prantage & Prantage [2013] FamCAFC 105; Madin & Palis (Costs) [2016] FamCAFC25; and Kohan & Kohan [1992] FamCA 116.
Despite the manner in which the Father has conducted the proceedings I am not satisfied that the circumstances of this case are “sufficiently exceptional”[31] to justify an order for indemnity costs.
[31] Stasiuk – supra at paragraph 22
Special costs order
In the alternative to an indemnity costs order, the Mother seeks an order for costs in the sum of $63,773.00 calculated in accordance with Schedule 3 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (“the Rules”).
The Mother submits that if I do not make an order for indemnity costs, then she asks me to fix the sum payable so as to avoid the extra expense, delay and aggravation involved in taxation of costs.[32]
[32] Mother’s Written Submissions filed 5 August 2024 at paragraphs 230 – 231.
The costs incurred by the Mother in the order of $110,000 are significantly higher than the calculation in accordance with the scale costs.
I say this not to criticise those representing the Mother in any way. On the contrary, the costs incurred by the Mother are indicative of the manner in which the Father has prosecuted his case.
Taking into account all the circumstances of this matter, I am not satisfied that the amount calculated in accordance with the scale of costs is just in the circumstances.
As the Full Court said in Sfakianakis & Sfakianakis:[33]
It is, however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs … as the Court considers just” permit the Court to fashion an order that is apt to the circumstances. One such well-known example is assessment on a trustee basis, which is more generous than party and party costs, but falls short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party costs nor an indemnity costs order. For convenience, in these reasons we shall refer to such orders as a “special costs order”.
[33] Sfakianakis & Sfakianakis [2010] FamCAFC 54 at paragraph
I am satisfied that the circumstances of this case warrant the making of a special costs order.
Pursuant to Parts 12.5 and 12.6 of the Rules, I have the power to specify the amount of the costs order and the timeframe within which the amount is to be paid.
Accordingly, I am satisfied that it is just to order the Father to pay the Mother’s costs fixed in the sum of $80,000. This sum is payable by 21 February 2025.
Whether to make a harmful proceedings order pursuant to s102QAC
The second part to the Mother’s application is for an order under section 102QAC of the Act.
To make an order under section 102QAC I must be satisfied that either:
(a)The Mother would suffer harm if the Father instituted further proceedings under the Act against her; or
(b)X would suffer harm if the Father instituted further proceedings under the Act against the Mother.
Section 102QAC of the Act provides as follows:
Making harmful proceedings orders
(1)A Court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the Court under section 102QAG, if the Court is satisfied that there are reasonable grounds to believe that:
(a)The other party would suffer harm if the first party instituted further proceedings against the other party; or
(b) In the case of child - related proceedings (within the meaning of Part VII)--the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.
(2)For the purposes of subsection (1), harm may include, but is not limited to, the following:
(a)Psychological harm or oppression;
(b)Major mental distress;
(c)A detrimental effect on the other party's capacity to care for a child;
(d)Financial harm.
(3)In determining whether to make an order under subsection (1), the Court may have regard to:
(a)The history of the proceedings under this Act between the first party and the other party; and
(b)Whether the first party has frequently instituted or conducted proceedings against the other party in any Australian Court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c)The cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).
(4)The Court may make a harmful proceedings order on its own initiative or on application by a party to the proceedings.
(5)The Court must not make a harmful proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(6)An order made under subsection (1) is a final order.
Order about notifying other party in relation to application for leave etc.
(7)If the Court makes an order under subsection (1), the Court must also make an order as to whether the Court is to notify the other party, in the event that the first party makes an application under section 102QAE for leave to institute proceedings against the other party, of either or both of the following:
(a)That the application has been made;
(b)If the application is dismissed--that the application has been dismissed.
(8)The Court must have regard to the wishes of the other party in making an order under subsection (7).
I have had regard to the Mother’s Written Submissions in relation to this aspect of the Mother’s application, and in particular, I note the submission that: “it is no small matter that the Mother and [X] have been involved, if not directly in litigation they have been in the shadow of pending litigation since 2018”.[34]
[34] Mother’s written submissions at paragraphs 240 – 262.
Harm to the Mother
In considering the order sought, I am required to be satisfied that there are reasonable grounds to believe that the Mother would suffer harm if the Father instituted further proceedings.
The Mother’s evidence is essentially that she:[35]
[35] Mother’s Affidavit filed 05/08/2024 at paragraphs 13-40.
(a)Feels scarred emotionally by the litigation;
(b)Felt relieved when the litigation (being the first tranche of proceedings) had come to an end;
(c)Feels distressed and harassed by the Father’s repeated requests for additional time;
(d)Feels she has to make excuses to X for time she spends in the Court proceedings by saying that she has “meetings”;
(e)Is exhausted by the Father’s conduct, in particular he is relentless in his demands, his emails, his jibs;
(f)Says the litigation is like a monster that constantly steals her time and sucks the life out of her;
(g)Is mentally exhausted;
(h)Works full-time and is X’s primary carer; and
(i)Wants peace and to not have to do this [Court] again.
The Mother has also had significant legal fees in both tranches of the proceedings, which has no doubt caused her hardship and thus financial harm.
I accept the Mother’s evidence, and I find that she is worn out and cannot emotionally or financially face another round of litigation.
I accept Mr F’s observation that the long-term effect of the Father’s behaviour and his relentless pressure to have the Mother relinquish the boundaries made by the Court would be to exact a toll on the Mother and may indirectly inflict a cost on her future parenting of X.[36]
[36] Exhibit 10 at page 102
In both instances when these proceedings were before the Court, they were commenced by the Father. It was only the Father who was cross-examined in each of the first and second tranche of the proceedings.
I accept the Mother’s submissions that the Father’s conduct of the second proceedings demonstrated a self-focus and a determination to ignore the impact of the litigation upon the Mother and X from both an emotional, psychological and financial position.[37]
[37] Written Submissions supra paragraphs 199 – 208.
The Father opposes the making of the harmful proceedings order as he does not wish to be prevented from returning to Court. He says that “by preventing me from returning to Court if absolutely necessary, my ability to advocate for our daughter’s evolving needs would be severely limited.”
The Father continues to assert that the Mother has tried several times to stop time on grounds that he says “had no merit since the orders were made in June 2021”. He asks the Court to deny the order to ensure that he can continue to represent “[X]’s best interests and advocate for her as needed in the future should it ever be required and mediation is not an option.”[38]
[38] Father’s Affidavit filed 16/09/2024 at paragraph 8.
The Father claims the Mother refused “every single opportunity to mediate and resolve these issues peacefully” and that “if she truly wanted to resolve the matter without returning to Court, she would have accepted one of my many offers to mediate.”[39]
[39] Ibid at paragraph 39.
The thrust of the Father’s submission is that I ought not to make a harmful proceedings order because he must be free to advocate for X. He seems to have little regard for the Mother’s role in decision making for X, particularly in view of the order granting her sole parental responsibility (as it was then known.)
I find that the Father is unshaken in his belief that the Mother is failing to act in X’s best interests – he criticises decisions she takes for X, such as with respect to sports lessons, and he criticises her for refusing to increase X’s time with her Father.
I find that the Father commenced the second proceedings to highlight the deficiencies he claims in the Mother’s care of X. Both his Affidavits filed 20 June 2024 and filed 16 September 2024 contain a litany of criticisms and complaints about the Mother.
The parties have been locked in litigation, or the shadow of litigation, since X was 2 years old. The Father has been unrelenting in his criticisms of the Mother and his repeated requests for more time. I have no hesitation finding that the Mother has been distressed, worn down and exhausted by the Father’s constant attacks and ongoing litigation.
I am satisfied that there are reasonable grounds for me to conclude that the Mother would suffer harm if the Father were able to institute further proceedings.
Harm to X
As the determination of a harmful proceedings order is not a parenting order pursuant to Part VII of the Act, I am not obliged to consider X’s best interests as the paramount consideration. Of course I must consider the impact of future litigation on X, in particular in respect of the potential that litigation may cause X enormous psychological harm.[40]
[40] Carey & Prescott (No 2) [2024] FedCFamC1F 512 at paragraph 168.
X lives primarily with her Mother. I find that X would be negatively impacted by her Mother’s upset and distress if future Court proceedings are again commenced by the Father. This may result in causing X emotional harm.
The Mother’s evidence is that in the second proceedings before me, she was determined to protect X from becoming directly involved in the proceedings by opposing the making an order for a family report. She said X had already participated in two family reports in her young life – one by Mr O and the other by Mr F – and she desperately wished to avoid exposing X to another expert.
Conversely, the Father was adamant that a family report ought to be prepared and in fact he was eager for this to occur. This would have required X to be interviewed for a third family report process by the time she turned 7 (noting that she turned 8 this year).
I am satisfied that there is sufficient evidence for me to conclude that in his unshaken belief that he is “[X’s] advocate”, the Father will, in future proceedings, seek an order for X to be involved in a family report process.
As Nygh J said:[41]
The last thing, of course, that this Court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
[41] McEnearney & McEnearny (1980) FamCA 43 – recently cited by Brasch J in Casey & Prescott supra, at paragraph 164.
I do not consider it is in X’s best interests to be involved in any further litigation between her parents. I agree with the Mother’s submissions that it is appropriate to shield X as much as possible from future litigation between her parents.
Conclusion as to harmful proceedings order
I accept Mr F’s observation about the Father when he says, “Thus he is single-minded in his efforts to spend more time with her and relentless in the fashion by which he goes about achieving that.”[42]
[42] Exhibit 10 – paragraph 161 on page 101.
And later: “The relentless nature of this behaviour, irrespective of concurrent Court processes, suggests that there is no intervention which will avail [Mr Powell] of sufficient insight to honour boundaries. The effect over time would be a weathering of [Ms Powell]’s emotional resilience”. [43]
[43] Ibid at page 102.
The Father’s lack of insight into his own behaviour and his failure to take responsibility for any of his actions, including his clear consent to the Final Parenting Orders, persuades me to find that, unless restrained, the Father will once again commence proceedings seeking to change X’s parenting arrangements.
I am satisfied that there are reasonable grounds to make an order prohibiting the Father from instituting further parenting proceedings without leave of the Court pursuant to section 102QAC(1).
The making of a harmful proceedings order under section 102QAC does not shut the door [44] to further litigation, but it will require the Father to seek the Court’s leave prior to being permitted to commence future proceedings regarding X.
[44] Casey & Prescott supra.
The Mother seeks an order pursuant to section 106QAC(7) that she be notified of any application the Father makes for leave to proceed pursuant to section 106QAE.
As Justice Brasch opined [45], requiring the Father to notify the Mother of any application for leave under section 106QAE “seems to miss the point, respectfully, of quarantining [the Mother] from the prospect of future litigation pending the outcome of the leave application.”
[45] Ibid at paragraph 170.
I therefore intend to make an order that in the event the Father makes an application under section 102QAE for leave to institute proceedings against the Mother, a Registrar of the Court is to notify the Mother whether such application has been made, and whether such application has been dismissed.
I note that only if leave is granted will the Mother receive copies of the documents filed as directions will only then be made for the Father to serve the Mother.
I make orders as set out at the beginning of these Reasons.
I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bertone. Associate:
Dated: 22 November 2024
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