Raju & Raju
[2021] FedCFamC2F 158
•20 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raju & Raju [2021] FedCFamC2F 158
File number(s): TVC 134 of 2019 Judgment of: JUDGE BOWREY Date of judgment: 20 October 2021 Catchwords: FAMILY LAW – parenting – children in primary care of Mother until late 2018 – Mother takes children to Country B in late 2018 and remains there – Father institutes parenting proceedings in Country B and Australia – children return to Australia several months apart and in Father’s primary care since then – question of parental responsibility, residence and spending time
FAMILY LAW – COSTS – whether any order for costs should be made in a parenting case – consideration of Mother taking children overseas and remaining there without Father’s agreement – Father’s need to commence Court proceedings – Mother wholly unsuccessful – costs calculated on relevant scale
Legislation: Family Law Act 1975 (Cth)
Child Protection Act 1999 (Qld)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Federal Circuit Court Rules 2001
Cases cited: Colgate-Palmolive v Cussons (1993) 46 FCR 225
Hawkins v Roe [2012] FamCAFC 77
Re F: Litigants in Person Guidelines [2001] FamCA 348
SCVG & KLD [2015] FamCA 687
SCVG & KLD [2017] FamCAFC 95
Division: Division 2 Family Law Number of paragraphs: 181 Date of hearing: 27-28 September 2021 Place: Townsville Counsel for the Applicant: Ms Black Solicitor for the Applicant: Sarinas Legal Respondent: The Respondent appearing on her own behalf Counsel for the Independent Children's Lawyer: Mr Raeburn Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
TVC 134 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RAJU
Applicant
AND: MS RAJU
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE BOWREY
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1.All previous orders regarding the children X, born in 2006 and Y, born in 2011 (‘the children’) be discharged.
Parental Responsibility
2.The Father have sole parental responsibility for the children including but not limited to:
(a)the children's education, both current and future;
(b)the children's religious and cultural upbringing;
(c)the children's health;
(d)the children's names; and
(e)any changes to the children's living arrangements which make it significantly more difficult for the children to spend time with each parent.
3.In the exercise of his parental responsibility, the Father shall:
(a)Notify the Mother in writing prior to making decisions about major long-term issues for the children, including but not limited to decisions about the children’s education and health.
(b)Invite the Mother to indicate her views about the decision to be made. Should the Mother wish to respond, she must do so within seven (7) days of receiving notification from the Father.
(c)Take the Mother’s views into account in making such decisions.
(d)Inform the Mother in writing within seven (7) days after making the decision.
4.Notwithstanding Order 2 the Mother and Father be responsible for the day to day care, welfare and development of the children while the children are in their respective care.
Living and Care Arrangements
5.The children live with the Father.
6.Each parent shall take the children or either of them to any school, sporting or extra-curricular activity during the time the children spend with that parent.
7.Unless otherwise ordered, Mr Raju born in 1972 and Ms Raju born in 1973, their servants and/or agents be and are hereby restrained by injunction from removing or attempting, causing or permitting the removal of the children X born in 2006 and / or Y born in 2011 from the Commonwealth of Australia prior to 2 December 2024.
Family Law Watchlist
8.It is requested that the Australian Federal Police give effect to this order by placing or retaining the names of the children referred to in paragraph 7 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the period until 2 December 2024.
Time with Mother
9.The children spend time with the Mother as agreed between the parents in writing and if no agreement, then as follows:
(a)From the conclusion of school or 3:00pm on Wednesday until before school or 8:30am Monday, each alternate week and commencing Wednesday 27 October 2021.
(b)If the Monday referred to in (a) is a holiday or pupil free day, the children shall spend time with the Mother until before school or 8:30am on the Tuesday.
(c)For one half of the school holidays at the end of Terms 1, 2 and 3, and 4 being the second half of the school holidays in odd numbered years commencing in 2021 and the first half of the school holidays in even numbered years commencing in 2022.
(d)Notwithstanding any other order, each year from 5:00pm on Saturday until 5:00pm on Sunday on the Mother’s Day weekend.
(e)Notwithstanding any other order, each alternate Easter from 5:00pm on Thursday until 5:00pm on Easter Monday, commencing in 2022 and in even numbered years thereafter. If Easter falls during the school holidays at the conclusion of Term 1, the time in this sub-paragraph shall form part of the Mother’s time for that holiday.
(f)On each of the children’s birthdays, both children shall spend time with the Mother for three hours as agreed and failing agreement from 5:00pm to 8:00pm.
(g)The Mother shall return with the children to Town C on the weekends she spends with the children pursuant to (a), (b), (c) to the extent that the children may be with the Mother in the second half of school holidays as referred to in (c) and (d), by 6:00pm on Sunday prior to the commencement of a school week.
(h)The Mother shall advise the Father via the Talking Parents Application, when she and the children return to Town C on a Sunday as referred to in (g). The Father is not required to reply.
Christmas Arrangement
10.Should the parents and the children be in the same locality on Christmas Day, the children shall spend not less than three (3) hours with the parent they are not otherwise with on Christmas Day. If no agreement, that time spent shall be from 12 noon to 3:00pm.
Changeovers
11.If changeover is to occur at the commencement or conclusion of school it shall occur at the school which the children attend.
12.During school holidays and on other occasions while the children are not at school, changeovers shall occur at McDonald’s in Town C.
13.The Mother shall be responsible for the collection and delivery of the children at the times set out in paragraph 9.
14.Any toys, clothing and personal items sent with the children at the commencement of each visit shall be returned with the children at the end of each visit, unless otherwise agreed.
Travel
15.If either parent wishes to travel with the children, any such travel shall occur during the children’s time with that parent pursuant to this order, unless otherwise agreed between the parents in writing.
16.If either parent intends to travel with the children away from the City D – Town C districts, that parent shall provide the other parent with the addresses of where the children will stay and shall advise a contact telephone number for the children. The information referred to in this paragraph may be sent to the other parent via the Talking Parents application.
17.If the parents reach agreement about international travel for the children prior to 2 December 2024, the conditions that shall apply are outlined in the following paragraphs.
18.Upon the non-travelling parent filing an Affidavit in this Court deposing that they agree to the proposed international travel for the children, setting out details of the proposed travel including all information to be provided by the travelling parent, the Court may based on that Affidavit make an order removing the children from the Family Law Watchlist for the dates of travel set out in the Affidavit.
19.During periods that a parent has the children in his or her care pursuant to this Order or at other times agreed in writing between the parents, each parent is permitted to travel overseas with a child or the children upon the following conditions:
(a)if a parent wishes to travel overseas with the Children:
(i)the travelling parent shall give the non-travelling parent four (4) months written notice of the intended travel, including details of intended dates of travel and destination with such notice to be given via the Talking Parents application;
(ii)the non-travelling parent is to respond in writing within seven (7) days via the Talking Parents application confirming that they have notice of the intended travel and consent to the Children travelling overseas. The non-travelling parent shall not unreasonably withhold consent to the Child/Children's travel;
(b)Not less than thirty (30) days prior to the intended date of departure, the travelling parent is to provide to the other parent:
(i)a written itinerary for travel, including flight details and accommodation;
(ii)a copy of the return ticket to Australia for the Children and the travelling parent;
(iii)a contact number or numbers and addresses at which the Children and the travelling parent may be contacted while overseas.
(c)The travelling parent must take into account any existing Australian Government travel alert or travel warning (however described) and they are restrained from travelling with the Children to areas that are assessed by the Australian Department of Foreign Affairs and Trade as being subject to the following travel advice levels:
(i)Level 3 (Reconsider your need to travel); and / or
(ii)Level 4 (Do not travel).
(d)While overseas the travelling parent shall facilitate the children communicating with the other parent by telephone or video call at least twice per week.
20.Neither parent shall unreasonably withhold consent to obtaining passports for the children and / or the children’s overseas travel should this involve:
(a)School organised travel.
(b)The children travelling with the Father to the United States to visit members of the Father’s family.
Communication
21.The children shall be able to communicate by telephone or video call with either parent at any reasonable time.
22.When the children or either of them are with the Father, the Father shall facilitate and make the children available to communicate with the Mother via telephone or video call as agreed between the parents and with the Mother to initiate the call. If no time is agreed, calls may be made each second day with the changeover day being counted as day one, between 5:00pm and 5:30pm.
23.When the children or either of them are spending time with the Mother, the Mother shall facilitate and make the children available to communicate with the Father via telephone or video call as agreed between the parents and with the Father to initiate the call. If no time is agreed, calls may be made each second day with the changeover day being counted as day one, between 5:00pm and 5:30pm.
24.For the purpose of telephone / video communication:
(a)Except in the event of an emergency, telephone communication between the child and a parent shall be to the mobile telephone of the child or of the parent should the parent’s telephone be used for the call, with the parent then handing the telephone to the child without comment.
(b)The parent the children or child are with shall ensure that the children are able to speak to the other parent in a quiet environment.
(c)If the children miss the call, the parent they are with shall ensure that the children telephone the other parent as soon as possible.
Exchange of Information
25.The parents shall:
(a)Communicate with each other about non-urgent issues relating to the children, by the Talking Parents application. Each parent shall within seven (7) days of the date of this order, do all things necessary to register on and with the Talking Parents application.
(b)Communicate with each other about urgent issues relating to the children by Talking Parents application or mobile phone text message.
(c)Not require the children to pass on messages or information to the other parent.
(d)Keep the other parent informed at all times of their residential address and mobile telephone number.
(e)Keep the other parent informed as to the names and addresses of any treating medical practitioner and/or healthcare practitioners who treat the children.
(f)Inform the other parent as soon as reasonably practical and on the same day, about any injury or illness affecting the children that requires any medical or hospital attention.
(g)Keep the other parent informed of and supply the other parent with, the dates of the childrens’ school, sporting and extra-curricular activity.
Authorities
26.Any educational and / or childcare institution attended by the children is hereby authorised and empowered to provide to each parent any information about the children’s educational progress and school related activities and to supply each parent with copies of school reports, photographs, certificates and awards obtained by the children. The cost of obtaining any of the information or documents referred to in this paragraph shall be paid by the parent making the request for same.
27.Any medical and / or healthcare practitioner treating the children is hereby authorised and empowered to provide to each parent any information about the children that such practitioners may lawfully provide about the children. The cost of any such information shall be paid by the parent making the request for same.
28.Each parent is authorised to discuss matters concerning the children’s health directly with the children’s medical and / or healthcare practitioner, at that parent’s cost and each parent is authorised to discuss matters concerning the children’s education directly with the children’s school.
29.Subject to the privacy and non-denigration paragraphs of this order, the parents are at liberty to attend the children’s school, sporting and extra-curricular activities.
Privacy, Non-denigration
30.During the time the children spend with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent.
(b)Speak of the other parent respectfully.
(c)Not denigrate or insult the other parent or the other parent’s family in the presence or hearing of the children and use his or her best endeavours to ensure that other persons do not denigrate or insult the other parent or the other parent’s family, in the presence or hearing of the children.
(d)Not discuss these court proceedings with the children.
(e)Not involve the children in or discuss with them, any issues about the personal adult relationship between the parents.
Injunctions
31.The Mother shall not:
(a)Approach the Father’s residence except by prior written invitation or agreement of the Father.
(b)Approach the Father in a public setting such as at the children’s school or sporting or extra-curricular events.
(c)Apply for any passport for or on behalf of the children or either of them, in any country including Australia and / or Country B.
Passports
32.In relation to the children’s passports:
(a)the Mother shall sign and provide any documents necessary to the Father, within fourteen (14) days, in relation to any passport renewals or further applications;
(b)the Father shall meet the costs associated with lodging any passport applications for one or both Children.
33.In the event of the Mother's default of paragraph 32 of these Orders, these Orders specifically authorise the Father to dispense with the need to obtain the Mother's signature on any passport applications or obtain any documents from the Mother necessary to lodge the passport applications.
34.It is ordered and declared that the Father may do all acts and sign any documents necessary to obtain or renew the passports for each child as may be necessary without the requirement of any signature by the Mother.
35.The Father be permitted to hold the children’s passports.
36.The Father shall provide the children’s passports to the Mother when the children change over to her at the start of her time for any overseas travel. The Mother shall return the children’s passports to the Father when the children change over at the end of the children’s overseas travel time with the Mother.
Counselling
37.Pursuant to the Father’s sole parental responsibility referred to in paragraph 2 the Father is entitled to arrange psychological and / or other counselling for the children or either of them as he deems fit or as recommended by the children’s medical practitioner/s.
38.Both parents attend within three (3) calendar months from the date of this order, relevant components of the Triple P Parenting Program (also available online at with particular focus on developmental guidelines for school aged children and young adolescents as well as for teens. Each parent shall provide to the other within seven (7) days of receipt, a copy of the certificate of completion of parenting program.
Independent Children’s Lawyer
39.The Independent Children’s Lawyer be discharged.
Costs Order
40.The Mother shall pay to the Father within 60 days of the date of this order, the sum of $28,649.50.
AND THE COURT NOTES THAT:
A.Paragraph 9(g) is to ensure that the children are properly rested for the start of the school week.
B.In relation to the children spending one half of school holidays with each parent pursuant to paragraph 9(c) of this order, the Father indicated that his work roster may be eight days on, six days off, on some occasions. The Father indicated that if so, he was content for the children to spend time with the Mother for the whole of the period of his work roster during school holidays, resulting in the children spending more than one half of relevant school holidays as applicable, with the Mother.
C.Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these orders titled “Parenting orders – obligations, consequences and who can help”.
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 Raju & Raju has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOWREY
This parenting matter was heard on 27 and 28 September 2021.
The Applicant is the Father MR RAJU. He is a healthcare professional working in Town C.
The Respondent is the Mother MS RAJU. She is also a healthcare professional. She has been working in town C this year.
There are two children the subject of these proceedings namely:
(a)X born in 2006. X will be 15 at the end of this year.
(b)Y born in 2011. Y has turned 10.
The dispute between the parties is about where the children live and following from this, the time the children spend with the other parent. There was also dispute about whether there should be shared or sole parental responsibility.
DOCUMENTS
The Applicant Father's Outline of Submissions document was amended on 24 September 2021. In that document, the material relied on by the Father is:
(a)Second further amended Initiating Application filed 24 September 2021.
(b)Father's Affidavit filed 6 September 2021.
(c)Affidavit of Mr E filed 9 September 2021.
(d)Affidavit of Father filed by leave on 27 September 2021.
(e)Report of Ms F (the Family Report) dated 12 April 2021.
(f)Order and Reasons for judgement of Judge Dunkley of 11 March 2019, shown in the Father’s document as 27 March.
The Mother represented herself in the proceedings. I advised the Mother on a number of occasions when this matter was mentioned, that she should have legal assistance. At the commencement of the hearing, I gave the Mother a copy of the guidelines for self-represented litigants as set out in Re F: Litigants in Person Guidelines [2001] FamCA 348. I advised her of the way the trial would be conducted. During the trial I advised the Mother of certain issues about her cross-examination of the Father and I explained objections which were taken by Counsel.
The documents relied on by the Mother were not set out in her Case Summary filed 22 September 2021. The Mother's documents were her amended Response and her Affidavit both filed on 20 September.
To the extent that the Mother's Response and Affidavit were filed quite late and considerably later than permitted in the trial directions, I advised Ms Black of Counsel for the Father and Mr Raeburn of Counsel for the ICL Ms Jensen, that they would be able to take instructions from their clients and adduce evidence from the Father and / or cross-examine the Mother in some detail, regarding issues raised in her material which had been filed about one week before the trial commenced.
OTHER COMMENTS ABOUT THE TRIAL
The Affidavit of the Father filed by leave on 27 September referred to above, was allowed by me on the basis only that the Affidavit deals with arrangements the Father has made for the children, should he be called away to work at night. On that basis, the Mother and the ICL did not object to the filing by leave of that Affidavit.
The Father’s Affidavit filed by leave says that in his eight (8) days a fortnight work roster, he works 7:30am to 6:00pm for five (5) days and from 11:00am to 9:30pm for three (3) days. This would include therefore, the children being at home on three (3) nights until presumably just after 9:30pm, with their Father not being present. The Father says that additionally, he is on call two (2) or three (3) days (he means nights) in a fortnight, usually from 9:30pm until about 7:00am.
The children remaining at home at night and without adult supervision while the Father is called into work at Town C Hospital, was a significant point for the Mother in the hearing. I refer to this below.
I refer below to the Family Report of Ms F.
The order of Judge Dunkley dated 11 March 2019 with the reasons for judgement that day, reflect that these proceedings were commenced by an Initiating Application filed by the Father on 7 February 2019. A Notice of Risk, Affidavit of Non-Filing of Family Dispute Resolution Certificate and an Affidavit by the Father, were filed on the same day.
The Father's Initiating Application and other documents were filed because the Mother travelled with the two children to Country B at the end of the 2018 school year, for the Christmas holidays. The Mother then refused to return from Country B to North Queensland in time for the commencement of the 2019 school year. The Father deposes in his first Affidavit that the agreement between the parties was that the Mother and the children would be in Country B from around 29 December 2018 and return on 25 January 2019.
Following the Father’s urgent application on 7 February 2019, it was heard by Judge Dunkley on 11 March. His Honour ordered on an interim basis that:
(a)The Father have sole parental responsibility for the two children X and Y.
(b)The Children live with the Father.
(c)The Mother shall not later than 18 March 2019 cause Y to be returned to Australia. X had been returned by the Mother to the Father's care by the time of the first hearing. She returned on 7 March 2019, with the Mother and Y remaining in Country B.
(d)The parents be restrained from removing the children from Australia, including that their names be placed on the Family Law Watchlist.
In his short ex tempore judgment, Judge Dunkley made it clear that he saw no basis for the Mother remaining in Country B with the younger child Y. Apart from making it extremely difficult for the Father to have any relationship with Y, the Mother's unilateral relocation of the children had damaged the sibling relationship between Y and his older sister, when X returned to Australia.
I referred above in paragraph 15 to the return of the children to North Queensland. This is because at the time of the Father’s application, a short history of the parties living in North Queensland was as follows, according to the Father’s first Affidavit:
(a)In or about 2009 the parties and the children relocated to City D from City H. The Father continued his professional training at City D Hospital.
(b)The parties purchased land in Suburb J, City D in 2011 and built a house on it. The parties still own this house and the Mother uses it from time to time for accommodation.
(c)The Mother commenced working in 2010 / 2011.
(d)The parties became Australian citizens as did the children, in 2012.
(e)In 2017 the Father commenced work at Town C Hospital, working eight (8) days on and six (6) days off. In Town C the Father lived in employer accommodation. He would return to the Suburb J, City D home on his days off.
(f)Around the same time the Mother secured employment in Town K. The parties decided to relocate to Town K.
(g)The Father secured employment as a healthcare professional in Town K at the Employer L, in 2019, to commence work the week after his Initiating Application and Affidavit were filed.
(h)More recently the Father ceased working at Employer L and remains working on an eight (8) days on / six (6) days off basis at Town C Hospital.
The Mother deposed in her recently filed Affidavit that she has obtained employment as a healthcare professional at Employer N in 2020. The Mother is renting a home in Town C.
FAMILY REPORT
On 9 September 2020 Judge Jarrett ordered that there be a Family Report in this matter.
Ms F prepared a report in April this year. Ms F is a Regulation 7 Family Consultant and her Report is dated 12 April 2021.
As the Mother represented herself, I will quote at some length from paragraphs in the Family Report and comment on the evidence given by Ms F at the trial.
The Family Report contains the following:
(a)The parties were born in different States in Country B. When they married in Country B in 2002, their respective families disapproved of the marriage. This disapproval moderated over time.
(b)Both parties are qualified healthcare professionals.
(c)The Mother said that she and the Father “especially appreciated one another's caring attitude and that this extended to their professional and personal lives and towards family members”.
(d)The parties lived in England and the United States before migrating to Australia in 2007 which was a few months after X was born in Country B. Y was born in City D.
(e)The Mother said that the Father disapproved of her participation in the workforce and said that he would be the bread winner with the Mother looking after the children. She claimed that the Father was “always controlling in the relationship”.
(f)The Father said that he was genuinely shocked and concerned when it appeared that the Mother would not return from the Christmas school holidays travel to Country B in 2019. His concern extended to the two children having “no exposure to Country B culture and language whatsoever” and that for both parties and the children, Australia is their home.
(g)The Father travelled to Country B and says that the Mother made it very difficult for him to see the children and he did not see them for any substantial period of time. The Mother had made some form of complaint to the police which caused the Father to be arrested at the airport when he arrived in Country B.
(h)The Mother acknowledges that she took the children to Country B in the 2018 / 2019 Christmas school holidays, intending to be there for the holidays only. She said that the Father had become abusive when she asked him to send money and that the level of dispute between them presumably by email and on the telephone, made her feel that she was the victim of family violence. This made her question whether she felt safe to return with the children to Australia.
(i)Eventually the Mother did return X to Australia but held Y in Country B. This caused the Father additional travel to and from Country B and for court proceedings in Australia and Country B to continue through the rest of 2019.
(j)The Father says that the children have been greatly affected by the unilateral relocation of the children to Country B by the Mother, including for Y, being kept there for the whole of calendar 2019. The children have had psychological assistance since their return to Australia.
(k)The Mother seemed equally surprised by the Father pressing in court for sole parental responsibility for the children, that they live with him and spend less than substantial time from the Mother's point of view, with her. Just as much, the Mother has been significantly upset by the Father's decision that he does not trust her any further, that he applied for a Family Violence Protection Order, applied for a divorce (which the Mother opposed) and wishes to have little to do with her.
(l)In relation to the divorce, the Mother not only opposed it formally but following the divorce being granted, contacted the Father on a number of occasions to the extent of harassing him from his point of view, seeking that they re-marry.
(m)The Mother’s view about the possibility of continuing or rekindling her relationship with the Father notwithstanding her taking the children to Country B, is confirmed at paragraph 136 of the Family Report where despite the Mother describing the Father as “uncooperative”, she told the Report Writer that “I love him even now, even though so many things have happened”. In paragraph 137, it is reported that the Mother accepts although I suspect not happily, that the Father is not ready to discuss anything with her. Then taking a different view about the Father, the Mother said that she would be “very emotionally upset” in the event that her proposals (which include that the children live with her) are not successful, because “I feel that my kids are not safe”.
(n)At paragraph 138 of the Family Report, Ms F says that the parents are not capable of and seem not yet ready to, communicate in relation to their children's overall well-being. The Father complained that the Mother “intrudes on my personal space” and stated that “because of the past I do not want to give her more chances”.
(o)The Mother confirmed that it is a major challenge not being able to discuss the children's issues directly with the Father as he refuses to communicate with her face to face. She sees the Father's position over the last year or more as being “revenge since last April”. It is from her point of view, the Mother being punished for taking the children to Country B and keeping them there.
(p)The Mother said that she has told the Father that she could find a job in Town C and “we can be together as a family” to which the Father answered “no”. It does seem to me that after many years of a good relationship where the Mother was likely to have been the primary carer of the children and the Father was a diligent worker and breadwinner and in circumstances where the children would have had a loving relationship with each of their parents, there has been a very significant breakdown in the marriage relationship which has affected the parents and the children greatly.
In her oral evidence the Report Writer Ms F said that the children want their parents to communicate well and co-parent. At present, discussing major decisions for the children will not be easy.
Mr Raeburn of Counsel for the ICL referred the Report Writer to paragraph 143 of her Report, which states that the Mother complained that the Father refuses to communicate with her face to face. The Mother told the Report Writer that the Father had not agreed that she attend parent – teacher meetings. Mr Raeburn asked whether that situation may improve “in time”. Ms F said that she thought this was correct.
At paragraph 203 of the Family Report it is recommended that be children spend alternate weekends and perhaps longer weekends, with their Mother. Ms F said that as the parents and the children are in Town C, this would be a good idea.
Ms Black on behalf of the Father asked whether it would be of benefit to the children to travel overseas when they can. This was in the context of the Father saying in his evidence that he would like to visit his brother who lives in the United States, for the children to meet other members of the Father's family which would include their cousins, the brother's children. Ms F agreed and said that she did not think that there was any risk for the children travelling with the Father and that there would be no risk that he would not return with the children to Australia.
Ms F said that she can understand the Father's lack of trust of the Mother with international travel, given the 2019 experience in Country B. Ms F was of the view that the children should stay on the Airport Watchlist in Australia unless there was a specific agreement between the parties about international travel.
I thought that it was significant that the children who are intelligent and doing well at school, seem to have different views about the time they will spend with each parent.
In the Family Report, X is recorded at paragraph 160 as saying that her Father is away “pretty much twice a month” although it is hard to estimate this because sometimes it is three times in a row and then it is only once a month. As I understand it, “away” means the Father being called to work at Town C Hospital. X said that she is a little scared at night because there is no Nanny at night, the two children remaining in the Father's Hospital accommodation in Town C, by themselves. This accommodation is close to the hospital.
At paragraph 160 of the Family Report, X is recorded as saying that she has given the present arrangement quite a deal of thought. She would like “two weeks with Dad and then weekends with Mum and two weeks with Mum and then weekends with Dad, with holidays being shared”. X asserted that “Dad would not be happy with that”. X told the report writer (see paragraph 155) that she was happy with the current arrangements and that “I don’t want to live with Mum because I am comfortable here, I feel like home at Dad’s”.
I record the above comments by the children because at paragraph 169, Y told the Report Writer that the Mother has told him, that she wanted to stay with Dad (the Father) “but dad does not want to stay with Mum”. Y said that he wants his parents to stay together although at paragraph 170 of the Family Report it is noted that Y said “I’d like to stay with Dad if they don't stay together, dad tells me that they will never be together again”.
Ms F said in her evidence that despite the views the children have expressed, they do understand that their parents will not be together any longer. She said that X is happy and comfortable with her Father. The Report Writer records that the Mother has maintained or at least was maintaining in April this year, the somewhat unrealistic view that the parties may reconcile. The Mother is recorded at paragraph 181 of the Family Report as saying “we live close by and I was hoping for the reconciliation to happen” and at paragraph 182 as saying “Mr Raju has changed his attitude and he will now be more considerate”.
Soon before the Family Report interviews, the Father had employed a Nanny, although I should record that this is during the day and not at night when the children may be left alone. The Mother said that such arrangement would support her career and her studies, saying “I feel certain that he will support me and we can all live together”.
The Report Writer recommended that the parents have equal shared parental responsibility for the children. She recommended that there be a continuation of the children's current living arrangements namely that they are with the Father and spend alternate weekends with the Mother. That weekend time could be extended. School holidays could be shared.
I noted that during his oral evidence, the Father said that during the school holidays and if he continues to work on a on an eight (8) days on, six (6) days off arrangement, the children could spend the eight (8) days during the holidays with their Mother.
The Report Writer said that she can understand the Father’s lack of trust about the Mother travelling overseas with the children, given the events which commenced in early 2019.
The Report Writer Ms F said that it would be difficult for these parents to communicate and co-parent, given the lack of trust, particularly from the Father to the Mother. The Report Writer said that it would be important if possible, for the parents to discuss major decisions for the children. She said that the children want their parents to have a decision-making role in their lives, just as they want to spend time with each parent regularly. Ms F said that it would be not easy and in fact hard at present, for the parents to communicate and co-parent.
Finally, the Report Writer was asked about the effect or possible effect on the children of the Mother’s desire for a reconciliation with the Father. Ms F agreed that the separation however it occurred, was very distressing for the Mother. She has continued to hope that the parents may reconcile. Ms F said that the separation between the parents is irretrievable, in her view. The Mother has to move on, as difficult as this may be. It is sad for the children to hear regularly about relationship and reconciliation issues from the Mother. This discussion has to stop.
Ms F said that the children need emotional energy for their lives now and for their school studies. She meant that the children cannot spend their emotional energy on dealing with the Mother’s sadness about the separation and her hope that there may be a reconciliation. Going down that path is not only pointless as far as I can see but it will lead to further emotional upset for the children.
To the extent that the Report Writer recommended the parents have equal shared parental responsibility, this was not supported by the ICL. The ICL proposes that the Father have sole parental responsibility although he keep the Mother informed about decisions he makes for the children. This reflected evidence about the Mother's behaviour in recent months after the Family Report was prepared. I refer below to this matter including that a video taken by a body camera worn by Town C Police, was played at the commencement of the trial.
POLICE INVOLVEMENT
I referred above about concerns the Mother has had and it was a major issue in her case, that the children X who will soon be 15 and Y who is 10, are left by the Father in his hospital-supplied accommodation in Town C if and when the Father is required to work in the evenings.
The Mother mentioned this situation to me on each occasion this matter was before the court.
The Mother said in her submissions that the Father acting in this way, put the children at considerable risk. From the Mother's point of view, this matter alone justified the children living with her.
In the Mother's Affidavit filed 20 September, she said that on 9 September which is about two (2) weeks prior to the trial, she was extremely worried about the safety of the children when X told her (the Mother) on the telephone that she was scared. This was because the Father was not at home (he was at work) and X was home with her brother Y. It is not clear who made the telephone call although I suspect it may have been the Mother. The Mother says that her phone discussion with X was at 8:20pm that evening.
The Mother says in her Affidavit that she heard shouting and sounds of blows over the phone in the background when she was speaking to X. There seems to be no issue that any such sounds could not have come from the Father's flat in the hospital accommodation complex in Town C where the children live with him.
The Mother says that the phone became disconnected and she called X twice and there was no answer.
The Mother then says in her Affidavit that she “sensed imminent danger” and called Queensland Police to check on the children.
What followed from the above may have been distressing or at least confusing for the children, with the police and the Mother arriving at the Father's residence. The police arrived in two cars and there appears to have been three police officers present, by reference to the video which was played at the commencement of the trial. The video was taken from a body camera worn by one of the police officers.
The Mother says in her Affidavit filed 20 September that she arrived at the Father's residence having travelled from her residence in Town C, at 9:04pm. She said that she knocked on the door but there was no response from the children. The police arrived five (5) minutes later at 9:09pm according to the Mother and knocked on the flat door. It took a couple of minutes for the children to answer.
The Mother says in her Affidavit that the children were scared and glad to see her. The video film is not close enough although one can hear the Mother and the children speaking with the police, to confirm whether the children were in fact afraid at that time.
It is the case as the Mother says in her Affidavit, that the children were unharmed and that they were alone in the Father's flat.
The police video shows the Father arriving by car around 9:20pm, thus a few minutes after the incident started and after the police arrived. The Father was not aware of the police being called. It can be seen from the police video that there is a high metal fence at the front of the hospital accommodation complex which fronts Street O Town C. The Father had to activate the metal gate on the driveway to open, to drive his car in.
A smaller metal gate near the vehicle gate appears to be unlocked and persons can walk through it. This would include other hospital employees who live in the hospital accommodation but would of course include anyone else who wanted to enter the grounds of the accommodation block.
In any event, police spoke to the children, they spoke to the Mother and then spoke to the Father. The police left soon afterwards, having been there for about ten minutes.
The Mother's voice on the police tape can be heard as rather loud and anxious. She makes it clear to the police on a number of occasions that she is concerned about children's welfare and words to the effect that they should record that the children were in the Father's flat alone.
The Mother has annexed to her Affidavit filed 20 September a copy of a Right to Information application with respect to the incident, namely that she is seeking the Queensland Police Service documents relating to the police attending at the Father's residence in Town C on 9 September. The Mother made the information request to Queensland police on 16 September after contacting them apparently on 14 September asking how to request the relevant file.
As referred to on page 2 of this judgement under the heading “other comments about the trial” the Father confirmed in his Affidavit filed by leave on 27 September that he does leave the two children at home when he works at Town C Hospital, on at least three (3) evenings per fortnight until around 9:30pm. The Father deals with this in his Affidavit as follows:
(a)He and the children live in a secure gated set of units provided by the hospital. As referred to above about the time on 9 September when the police were called by the Mother, the gate in the large steel fence at the front of the property did not appear to be locked.
(b)The hospital is 200 metres away from the Father’s flat.
(c)The Father is one of five occupants of the six flats in the complex, who work at Town C Hospital and they are colleagues of the Father. The sixth person living in the flats is a healthcare professional who works at the hospital. All of the occupants know each other, are friendly to each other and have met the two children. This includes the Father’s next door neighbour who has two children younger than the subject children.
(d)The Father has spoken to the children extensively about the times he will be at work. This includes that the Father and the two children have been in the same bedroom when he is on call, so that if Y wakes up when the Father is working, X will be there.
(e)The children know that they can call on the neighbours if there are any problems.
(f)X has a mobile telephone.
(g)As referred to above, the Father has employed a Nanny. She is at home with the children until 7:30pm if he works on a late shift.
The Father says in his Affidavit filed by leave, that he denies that the children are not safe in his care, notwithstanding that the Mother thinks this. The Father confirms that he came home on the evening of 9 September at around 9:20pm and saw the police with the Mother, outside his flat. The police told him that the Mother had complained to them that the children were not safe. They told the Father they had investigated and “everything is fine” to use the Father’s words.
The Father says in his Affidavit that he had last spoken to the children about 8:40pm (30 - 40 minutes previously) by phone and all was fine at that time.
The Father says that when he went inside his flat and spoke to the children, they said to him that they were scared that the police were here at the unit, asking if they were safe. The Father asked whether the children had been fighting and they said no.
I would mention that in her submissions at the end of the trial, the Mother indicated that:
(a)She was and is very concerned about the children being left at home alone in the Father's hospital flat in Town C.
(b)She does not accept that the Father has taken reasonable precautions for the safety of the children as set out in his Affidavit filed by leave on 27 September.
(c)It is important that this court take action to secure the children's safety by removing them from the Father's care and ordering that the children live with the Mother.
(d)If this court does not take action satisfactory to the Mother, she will make an application in the Supreme Court.
(e)The Mother submitted that the Father is in breach of Child Protection legislation in Queensland, by leaving the children alone on occasions in the evening when he goes to Town C Hospital to work. I refer to this matter under the heading “Child Protection Legislation” later in this judgment.
THE PARTIES’ EVIDENCE
There was not a great deal of factual dispute between the parties in their evidence. The dispute between the parties centres around the matters which I have referred to in the paragraphs above.
EVIDENCE OF FATHER
Before dealing with the evidence of the Father personally, I refer to the Affidavit of his only witness Mr N filed on 6 September.
Neither the Mother nor the ICL required Dr. E for cross-examination.
Dr. E is a healthcare professional and is currently a healthcare professional at Town C Hospital. As a result, he knows the Father on a professional basis.
The Affidavit by Dr. E is with respect to an incident at Town C Hospital on the morning of Saturday 31 July this year.
Dr. E says that he was requested to go to the hospital that morning by a healthcare worker. He was told that there was a patient at the hospital whose behaviour was concerning and who was making threats to hospital staff.
Dr. E identified the patient as the Mother in these proceedings although in reality the patient was her son Y who was complaining of a sore throat.
Dr. E says that the healthcare worker told him that the Father in these proceedings had requested that the Mother come back to the hospital with Y in about an hour when a second healthcare professional was scheduled on duty. The Father did not feel comfortable seeing his own child as a patient. In the circumstances including that the parties were in family law litigation, I find that this was a reasonable position for the Father to take. Y’s sore throat would not be considered to be an emergency.
Dr. E says that his information from the hospital healthcare workers was that the Mother had threatened staff with legal action and other unidentified complaints for refusing to immediately attend to Y. She further threatened legal action and complaints against the Father for not seeing Y immediately.
Dr. E said that he was informed by the hospital healthcare worker that she had called another healthcare professional to come to the hospital early, to treat Y. Following the request from the healthcare worker, Dr. E went to the hospital. By the time he arrived, Dr N says that the examination of Y by the second healthcare professional had been completed.
Dr. E goes on to say in his Affidavit that he introduced himself to the Mother however the Mother did not want to speak to him and dismissed his approach. Dr. E informed the Mother that healthcare workers had made complaints about her behaviour. He further told the Mother that in his view, the Father was within his rights to refuse to see his son in a non-emergency situation.
Dr. E said that he expressed concern to the Mother about her behaviour and threats that she had made to staff, telling her that her actions may warrant a notification to the Australian Health Practitioner Regulation Agency. Finally, Dr. E says that the Mother left the hospital with Y and did not communicate with him at the time. Two (2) days after this incident, the Mother telephoned Dr. E and apologized for her behaviour.
In her Affidavit filed on 20 September, the Mother refers to the incident with Y at Town C Hospital in paragraph 28 of that Affidavit, at the top of page 7.
Having observed the Mother give evidence and notwithstanding that some of the evidence in the Affidavit of Dr. E is hearsay in that he received information from a healthcare worker, I am inclined to believe the information in the Affidavit of Dr. E and to take the view that the Mother has skipped over details about her behaviour at Town C Hospital that day and has sought to minimise her behaviour to the staff there. In my view and this applies to the Mother calling the police to carry out some form of welfare check on the children on 9 September, the Mother is prone to exaggerate reasonably straight-forward matters for the children and to insist that the children are at risk or in danger, to a greater extent than is factually correct.
Given the fact that the Mother is herself a healthcare professional and given the well-known Queensland Government policy expressed in media advertisements that there is no tolerance for staff abuse, it is unfortunate and concerning that the Mother behaved in the way which she did this year.
The Father gave evidence. He confirmed the contents of his Affidavits. He was cross-examined by the Mother.
On a few occasions either Ms Black of Counsel on behalf of the Father or Mr Raeburn for the ICL, objected to the way in which the Mother cross-examined the Father. As is often the case with a self-represented litigant, the Mother's questions to the Father commenced as statements and effectively, self-serving statements, before going on to ask a question or put a proposition to the Father.
The Mother is an educated person. Having said that, almost anyone who is not a lawyer or who does not appear in court regularly, can be confused and anxious. This is particularly the case if a person is “on their feet” conducting their part of a trial. Taking this into account, I did allow the Mother some latitude in the way she conducted her case generally and cross-examined the Father.
The Father answered questions in an appropriate and direct manner. He was quietly spoken. It was clear that he listened to questions put to him by the Mother and by Mr Raeburn of Counsel. His answers were relevant to the questions asked.
The Father confirmed the breakdown of the marriage relationship and the negative views he holds about the Mother, following her travel with the children to Country B in late 2018.
I think that it is the case, that the Father's negative view about the Mother arises from:
(a)Her taking the children to Country B and determining that she would stay there with the children, in late 2018 or early 2019. This must have been traumatic for the Father and the children when the Mother's intentions became apparent.
(b)The very substantial cost to the Father personally and financially, of court proceedings in Australia and apparently even more so, in Country B. There is always uncertainty about the result of court proceedings and the Father would have been very worried about what would happen to the two children.
(c)The Mother wishing to reconcile with the Father after she returned to Australia. His view seems to be that the Mother's approaches to continue the marriage relationship and that she has told the children this, borders on harassment.
(d)Notwithstanding the Mother's desire for the parties to be a family unit again, her constant criticism as he perceives it, of his parenting. This includes that the Mother portrays the Father as neglecting the children or putting them in actual danger, by leaving them in his hospital accommodation on some evenings.
I have referred to these matters as I had the impression from the Father's evidence and observing him in court, that his evidence reflected his anger and frustration about the Mother’s behaviour since late 2018 whilst at the same time, the Father not necessarily disliking the Mother as a person.
The Father was open to the Mother speaking to X about development both physical and emotional, as X progresses through her teenage years. The Father said that he would expect the Mother to be part of X’s developmental discussions. As the Father is a trained healthcare professional, he would be familiar both in an academic sense and in dealing with patients, about the range of matters which are important to teenagers including teenage girls. This includes the children growing through puberty and emotional challenges which teenagers face.
It is significant that although the original order made by Judge Dunkley on 11 March 2019 and following orders do not provide specific times for the children to spend time with the Mother, the Father has arranged that this occur and the children spend time with the Mother each alternate weekend. This shows that there can be a level of cooperation between the parents and that the Father is open to and has facilitated, the children spending regular time with the Mother. Of course, the time the children have been spending with the Mother over the last two years is less than what the Mother seeks.
EVIDENCE OF MOTHER
The Mother gave evidence. She was cross-examined by Ms Black of Counsel for the Father and Mr Raeburn of Counsel for the Independent Children’s Lawyer (ICL).
The Mother understood the questions and her answers were generally appropriate. The Mother was more emotional and more defensive than the Father was. The Mother felt that she had to justify her remaining in Country B with the two children in early 2019 which I refer to in the following paragraph. She wanted to make it clear that the Father leaving the children by themselves in the hospital accommodation in the evenings, was inappropriate and potentially a danger to the children.
The Mother's evidence about the travel to Country B was that:
(a)The holiday was planned during the 2018 Christmas school holidays for the children. This appears to be agreed.
(b)The purpose of the holiday was for the children to meet their extended family. This appears to be agreed.
(c)It was not the Mother's intention to remain in Country B with the children. In other words, there was no decision by her in Australia before the travel, to relocate the children to Country B.
(d)An argument or arguments occurred between the Mother and the Father when the Mother was in Country B, about her expenditure including withdrawals or attempted withdrawals, from bank accounts.
(e)The level of the husband's anger about financial matters and his abuse of the Mother on the telephone presumably, made the Mother consider the future of the marriage and whether she should return to Australia, including with the children.
(f)At some point in Country B in 2019, the Mother decided to stay in Country B.
Accordingly, the Mother’s evidence is that she went to Country B on a holiday of about one month with the children. A breakdown in the parties’ relationship and abuse of her by the Father when she was there, made her frightened and caused her to decide to remain in Country B.
I am not satisfied that the above chain of events as described by the Mother in her evidence, is factually correct or that it accurately portrays the decision making by the Mother. To the extent that there is a conflict in the evidence of the Mother and the Father, generally I accept the evidence of the Father.
The Mother said in her Trial Affidavit that the children’s health has deteriorated in the time they have spent with the Father, because they have put on weight considerably. The Mother’s evidence about this allegation was not always clear. She did make it clear however that she thought the weight increase for the children was more than would be expected, even taking into account that children of the age of these subject children can grow quite quickly and sometimes in growth spurts.
When cross-examined, the Mother was asked whether the Father overfed the children. She replied yes. She was asked whether she alleges this still occurs. She replied no.
The Father denied in his cross-examination that there was any health issue for each child, that their putting on weight was within the normal range. He said that some of the Mother’s allegations about the children’s actual weight compared with their weight previously, were factually wrong.
There is insufficient evidence for me to find that the children have put on weight to an unhealthy degree or that the Father has intentionally overfed them. Further, my overall impression of the Father’s evidence leads me to think that the Mother’s allegations on this point are unlikely to be correct or at least exaggerated.
The Mother said in cross-examination that the Father’s allegation that she took 45 days to hand over travel documents for Y in Country B so that he could return with the Father to Australia, was wrong. This is in the context of the court in Country B ordering that Y return to Australia with the Father and that the Mother facilitate this. The Mother said that it was “maybe 25 days” before the Father had all of Y’s travel documents which were needed. I think that taking nearly one month to hand over travel documents in the face of a court order, was not in any way reasonable compliance by the Mother.
Despite complaining about the difficulty in communication between the parents and that from her point of view the Father has limited her time with the children, the Mother denied in cross-examination that there was difficulty between them regarding trust. This was not the impression I had from the Father’s evidence.
The Mother confirmed the Father’s evidence that she had gone to his residence unannounced and / or uninvited. She had requested the Father to consider that they marry again. The Mother denied that she had harassed the Father.
When it was put the Mother that the Father was beyond a reconciliation with her, she answered “maybe”.
When cross-examined by Mr Raeburn on behalf of the ICL, the Mother agreed that sharing parental responsibility for making decisions about the children needs trust between the parents. She agreed that flexibility in co-parenting was needed. She agreed that neither parent should interfere with the children’s time with the other parent. I have a real concern that despite the Mother agreeing about matters which are needed for shared parental responsibility, it is unlikely for this to be workable in practice.
Despite her optimistic view about the parents cooperating, when asked by Mr Raeburn whether shared parental responsibility was possible, the Mother replied “it should be”. This was perhaps a more accurate and realistic answer, accepting that there appear to be a number of matters preventing the parties from having a good co-parenting arrangement at the present time.
Cross-examination of the Mother included at some length, discussion about the children attending school, subjects which they will undertake and their progress generally. The Mother’s answers were positive in that regard, acknowledging the need for the parents to have similar views about education for the children. This reflects my view that whatever these parents’ difficulties are including in their personal relationship, they have a real interest in their children maintaining high academic standards.
When the Mother was asked if she accepted that the hospital flats where the Father lives in Town C are secure, she replied “maybe”. The Mother then said “The children should not be put through this much stress”. While the Mother was referring to her view that the children are stressed when they are home alone in the evening, it may also be the case that the children being stressed if this is in fact correct, reflects their knowledge about the Mother’s anxiety regarding their living arrangements. The Father says that the children are not stressed about their living arrangements.
In answering questions about international travel in the future, the Mother said that the Father would have no reason for concern about the children travelling with her. It was put to the Mother that given what happened on the last occasion namely the travel to Country B, that the Father may have some fear about the children travelling overseas with the Mother, the Mother answered “no”. She also answered “no” when asked whether the children themselves may have some concerns about travelling overseas with her.
CHILDREN WITH THE FATHER
The Father points to a number of matters for the court to consider about the Mother’s actions when she travelled with the children to Country B, to suggest that the Mother had the intention of relocating the children to Country B before leaving Australia or in the alternative, came to that decision and without proper regard for the children's best interests, soon after her arrival in Country B. Among the matters the Father raises in his Affidavit and about which he was cross-examined, are:
(a)Soon after the Mother left Australia with the children, the Father found that she had logged-on the parties’ internet banking account and tried to transfer $160,000 to a Country B bank account. This transaction failed because of the quantum of the attempted transfer. This action by the Mother was without notice to the Father.
(b)The Father telephone the Mother in 2019 which was about one (1) week after the Mother and children had left Australia and the same day he discovered the attempted internet banking transfer. The Father deposes that the Mother said to him amongst other things:
“We aren't coming back. The children and I are staying here in Country B. If you want to see the children again you will need to come and be with us here. That is the only way you will get to see the children. I am not sending them back to Australia”.
(c)The Father had tried many times through friends and family members to communicate with the Mother but she would not do so.
(d)The Father travelled to Country B in 2019 arriving where the Mother was staying. He deposes that X saw him and said “I miss you and I want to come home”. The Mother then appeared telling the Father that the children were staying with her in Country B and threatening to have the Father arrested.
(e)The Mother refused to have contact with the Father until 2019 when she refused to let him see the children and again threatened to have the Father arrested.
(f)The Father returned to Australia in 2019, having not seen Y at all and seeing X for a very brief period.
(g)The Mother opposed the Father's applications for Family Law Orders in the Courts in Australia and Country B, going so far as to appeal to the Supreme Court in Country B when the High Court determined that the children should live with the Father.
(h)My reference above to the Supreme Court of Country B refers to a parenting order made on 28 November 2019. Paragraph 14 of the judgment reads:
From the peculiar facts and circumstances of the case, it clearly transpires that the welfare of the minor child (Y) is with the Father and considering his will and wish, it is for the benefit of the minor child that he be permitted to retain with the Father, especially when the Mother is also going to reunite in 2020 as per her additional Affidavit dated 2019.
The above reference to the Mother “going to reunite in 2020” refers to the Mother’s intention apparently, to return to Australia.
(i)After losing her appeal from the abovementioned Supreme Court decision, the Mother made it very difficult for the Father to return to Australia with Y, by refusing to provide travel documents to the Father despite Court Orders.
(j)Apart from the Father seeing Y on one occasion when he was brought to the High Court in Country B as a result of the Court Order, the Mother did not allow the Father to see Y in the period from late 2018 when he left Australia to late 2019, a period of 11 months.
It was agreed between the parents that the children would go on holidays to Country B with the Mother during the 2018 / 2019 Christmas school holidays. They were to return in time to start the 2019 school year here. Even if the Mother did not deceive the Father by taking the children to Country B with no intention to return here, she certainly broke the agreement between the parents that the children would return to Australia after several weeks holiday in Country B. That agreement was broken by the Mother in a complete and substantial way. The Mother then resisted court proceedings in Australia and Country B, seeking the return of the children and in particular Y, to Australia.
While I am not able to pinpoint whether the Mother left Australia with the children intending to relocate them to Country B or whether she made that decision early after arriving in Country B and prior to 6 January 2019 – see paragraph 86(b) above, it seems clear that in 2019 the Mother had no intention of returning to Australia with the children. This must have been confusing and upsetting for the children to a high degree, particularly as they are old enough to realise that saying goodbye to their Father when going overseas on a holiday for a month, is quite different from saying goodbye to him for potentially a lengthy period of their lives. This observation is quite separate from the fact that the children were not asked about nor told about, being relocated to Country B. The children would not have had any opportunity to say goodbye to friends including at school and to a range of people they know in City D and Town C.
It was not at all a child-focused decision by the Mother to relocate the children to Country B or to decide to stay in Country B with the children, once she arrived there. In my view, the Mother could not have properly considered the emotional and psychological impact on the children following that decision.
What flows from this is that dealing with this parenting matter now, I am of the view that the children should continue to live primarily with the Father as they have done for the last approximately two years pursuant to courts orders. It is in the best interests of the children that they remain living with the Father as their primary carer. The children told the Family Report Writer that they are happy to live with the Father.
It is also the case which I express in the following parts of this judgments under “parental responsibility” and “care of children” that the Mother should be a significant presence in the lives of the children. This is notwithstanding the quite appropriate strong criticism of the Mother by the Father and the ICL, regarding the Country B relocation.
PARENTAL RESPONSIBILITY
Section 61DA of the Family Law Act provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
There are grounds on which the presumption of equal shared parental responsibility may be rebutted. The primary ground for the rebuttal of the presumption is referred to in s. 61DA(2) namely that there are reasonable grounds to believe that a parent of the child has engaged in:
(a)Abuse of the child; or
(b)Family violence.
I have left out some of the wording of this sub-section which does not apply to the present case.
Although the Father may not surprisingly take the view that the Mother unilaterally relocating the children to Country B and / or keeping the children in Country B was abusive of them, this is not necessarily what is referred to in s. 61DA(2)(a). Further, there is no evidence of family violence in the present case. This is notwithstanding that the Mother complains about the Father being controlling or at least financially controlling, during the marriage. The parties made applications seeking family violence orders one against the other, in 2020 but both applications were withdrawn.
Section 61DA(4) of the Act says that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility. In the present case, my view is that the evidence does satisfy that finding. As a result and in accordance with the recommendations of the Independent Children's Lawyer and notwithstanding the recommendation in the Family Report, it is my view that the sole parental responsibility should be held by the Father.
The Family Report documents the distrust between the parties and their inability to communicate. This is referred to in the following paragraphs of the Family Report.
(a)138 – The parents are not capable and seem not yet ready, to communicate in relation to their children's overall well-being.
(b)141 – The Father stated that “because of the past I do not want to give her more chances”.
(c)143 - The Mother stated that it is a major challenge not being able to discuss the children's issues.
The above comments were borne out in the trial. This included:
(a)As referred to previously in this judgement, the Mother accusing the Father of putting the children at risk by leaving them in his Hospital accommodation on the rare occasions that he is working at the hospital at night.
(b)The Mother being quite upset and sometimes reduced to tears, during submissions where the breakdown in the marriage relationship was being discussed by her.
(c)The Mother being quite defensive about relocating the children to Country B, effectively saying that it was all the Father’s fault (my summary of what she said) in the sense that she claimed there was no intention to relocate the children but that this arose after the Mother arrived in Country B, from the Father's harsh words to her on the telephone.
(d)Despite the Father’s quiet and measured way in answering questions from the Mother's cross-examination of him, there was certainly a sense of the Father trying hard to control himself during the cross-examination process. I had the impression that from the Father's point of view, what the Mother had put him through in the last approximately two and a half years including exhaustive and exhaustively expensive court proceedings in Country B and here, then attempts to reconcile at every opportunity and then criticism of his parenting, were barely tolerable.
I agree with the comment by the Family Report Writer at paragraph 193 of her Report that in spite of past conflict and related challenges, the parents may in time come to establishing a functioning co-parenting approach and support a meaningful relationship between each parent and the children.
In my view, the position referred to in the previous paragraph is in the medium to long term ahead, not the short to medium term. I do not think that it is in the children's best interests at the present time for there to be equal shared parental responsibility.
CARE OF CHILDREN
The Mother says that during the marriage, she was the primary carer of the two children. At paragraph 37 of her Affidavit filed 20 September 2021, the Mother says:
During our marriage, my role was that of full-time Mother and Mr Raju’s that of full-time breadwinner. Since 2016 Mr Raju did not help me as he was away from the home because of his working hours for 10 – 12 days away from home in a fortnight and I cared for the children every day.
The Mother says at paragraph 38 of her Affidavit filed on 20 September, that since the children's birth she was a daily part of their lives, that it was her who made all arrangements for the care of the children including going to and from school, that she and the Father made major decisions about the children's health and welfare and that she was the primary homemaker. The Mother repeated this in her submissions at the end of the hearing.
I accept the Mother's evidence that when the parties were together up to late 2018, she was the primary homemaker and carer for the children. It is clear from the Father's own evidence that he was working long hours as is the case for many professional people and that the Mother was more available for the children.
I record the above matters to give context to the order which I will make about the time the children spend with the Father and with the Mother. In my view and as recommended in the Family Report and supported by the ICL, the children should live with the Father for more of the time. The children are settled and comfortable with the Father and they continue to attended school and achieve well.
Attending school and achieving well is what the children appear to have done in the Mother's primary care until almost three years ago. I do find that the Mother was the primary carer of the children with the Father being involved and helping whenever he was home, as much as he could.
Paragraph 203 of the Family Report recommends that the court consider extended times for the children when they spend time with the Mother on alternate weekends. The suggestion is that the children spend time with the Mother from Friday after school until Monday morning before school. The Report Writer says and I agree, that additional time will facilitate the Mother's own involvement with the children's education.
The ICL took up the suggestion in the Family Report. The final draft of the orders proposed by the ICL includes that the children's time with the Mother be from the conclusion of school on Friday until before school on Tuesday each alternate week. This is 24 hours or perhaps 36 hours longer than what has traditionally been regarded as weekend time.
In my view, the children's time with the Mother should be extended further than this. The Mother that was the primary carer of the children when the parents were together. There seems to be no doubt that the children have a close and loving relationship with each of their parents.
So that the Mother can see the children and the children spend time with her for a significant period of time, so that the Mother can be involved in the children's education (notwithstanding the Father having parental responsibility) and so that the children can continue to be comfortable in the Mother's care, I intend to order that on each alternate weekend, the children spend time with the Mother from after-school on a Wednesday until before school the following Monday. This is five (5) nights per fortnight.
I appreciate that the Mother is working full-time as a healthcare professional in Town C. She may have to reduce her working hours on Wednesday afternoon, Thursdays and Fridays each second week when the children are with her. It seems to me from what the Mother said in her trial Affidavit and during the trial, that the Mother would be willing to do this.
I make it clear that whilst I consider it important for the children that they spend significant time with each parent, this opportunity should not be taken by the Mother to interfere with the Father’s parental responsibility for the children and role as the parent who has the greater amount of care of them. The Mother must be told by the Father of major parenting decisions he intends to make. The Mother can respond if she wishes. The Father is however the final decision-maker about children's issues.
CHILD PROTECTION LEGISLATION
At the end of paragraph 9 of her Affidavit filed 20 September, the Mother makes reference to the Child Protection Act 1999 (Qld) By reference to the sections of the Act the Mother quotes, my view in relation to this matter is as follows:
(a)Sub-section 5B (j) - This sub-section provides that a child should only be placed in the care of a parent or other person who has the capacity to and is willing to care for the child. The Mother submits that as the Father does not have the capacity to care for the two children or at least does not have that capacity when he has to work at nights, the children should be placed in the Mother’s care. In my view, the Father has made appropriate arrangements given the age of the children and the nature of his accommodation close to Town C Hospital, for the care of the children when he works. I refer to the Father’s Affidavit filed by leave on 27 September which sets out in detail the arrangements he has made.
(b)Section 9 – This section describes Harm as any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. Harm can be caused by physical, psychological or emotional abuse or neglect. It can be a single act or a series or combination of acts. In my view, the children are not at harm in the Father’s care. I listened carefully to the Father’s evidence in the witness box and I have read his filed material. The Family Report Writer says and this is certainly my impression, that the children are comfortable and happy in the Father’s care and that he has made appropriate living arrangements for them.
(c)Section 10 – The Act says that a child in need of protection is a child who has suffered significant harm, is suffering significant harm or is at unacceptable risk of suffering significant harm and does not have a parent able and willing to protect the child from the harm. I have commented above about the harm which I believe the Mother inflicted on the children by taking them to Country B and keeping them there. This harm was particularly difficult for the younger child Y who was in Country B during 2019. To the extent that the Mother says that the children are at risk of harm in the Father’s care, I reject that.
(d)Section 13A – This section says that a person may inform the Chief Executive of the relevant government department, if the person reasonably suspects a child may be in need of protection. I assume the Mother including reference to this section in her Affidavit indicates that she has or that she intends to, approach the Department on the basis that the two children are in need of protection. If so, I do not agree with or accept the Mother’s view in that regard.
(e)Section 13B – This sub-section provides that if a person has a reportable suspicion about a child, the person is required to report the matter to the Chief Executive of the Department. It may be as I refer to below that the Mother means her role not only a parent of the children but as a healthcare professional. In any event, I do not accept that these children are at risk of harm in the Father’s care.
(f)Section 13C – This sub-section applies to a person who is forming a reasonable suspicion about whether a child has suffered significant harm or is suffering significant harm. That person’s consideration may be informed by an observation of the child and / or knowledge about the child. I do not accept the Mother’s view that the children have suffered harm or are at risk of suffering harm, in the care of the Father.
(g)Section 13E – This sub-section applies to a person (called a relevant person) in various categories and who have a mandatory reporting requirement with respect to children who may be at harm. One of those professions is a health care professional. In this case, both parents are healthcare professionals. I take it from this that the Mother’s view is that she must report to the Chief Executive of the Department, that she has a reportable suspicion that the children are at risk of harm in the Father’s care. As I do not accept the Mother’s view about the alleged risk to the children, I do not accept that she must report her suspicions whatever they are (and presumably they are about the times when the children are alone in the Father’s flat), to the Department.
(h)The Mother refers to sub-sections 2(a) and 2(b) of sub-section 13E. This is relevant to a person having a reportable suspicion that a child has suffered, is suffering or is at unacceptable risk of suffering, significant harm. The reference in the relevant sub-sections is to physical or sexual abuse. The sub-sections then refer to the child not having a parent able and willing to protect the child from harm. To the extent that the Mother seems to rely on this sub-section, I find that it is not applicable to these children. They are not at risk of significant harm caused by physical or sexual abuse. They do have a parent in fact two parents, able and willing to protect and care for them. The children will spend time with each parent.
The Mother refers at the end of paragraph 35 of her Affidavit filed 20 September, to the Human Rights Act 2019. In the following paragraphs of her Affidavit 36 – 40, the Mother complains that the Father has kept the children from her. I assume she means from this that her human rights have been violated in that she was for most of the children’s lives effectively until each of the children returned from Country B, the primary carer of the children. This has now been taken away from her.
I would make two comments about the above observation. The children being taken from the Mother’s care to the Father’s care when they returned from Country B, is as a result of court orders made in Australia. I note that the same court orders were made in Country B, for the return of the children to the Father and in particular, the child Y who had remained in Country B with the Mother.
Secondly, the order I will make will provide for the children to have substantial time with the Mother. To the extent that the Mother complains that between 2020 and 2021 the Father restricted her contact with the children – see paragraph 36 of her Affidavit filed 20 September – I am not sure that this is factually correct in an absolute sense. In any event, my orders today will remedy such issue.
In the middle of paragraph 43 of the Mother’s Affidavit filed 20 September, there is reference to “Section 20.13: Child Protection Legislation”. I am not sure what the Mother means by this reference although immediately following in a sub-paragraph, the Mother refers to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. This is one of the primary considerations in s. 60CC of the Family Law Act which I refer to and take into account in this judgment.
The Mother in her oral submissions referred to the Criminal Code of Queensland. I think she was referring to provisions in criminal law similar to those in the Child Protection Act 1999 which I have referred to above. To the extent that the Mother may say that there is a breach of criminal law in the present circumstances of and arrangements for the children, I reject that view.
SECTION 60CC OF FAMILY LAW ACT
Section 65DAA of the Family Law Act provides that if a parenting order is to provide that a child's parents are to have equal shared parental responsibility for the child, the court must consider whether the child spending equal time with each of the parents would be in the best interest of the child and weather that is reasonably practicable.
Whilst I am conscious of the recommendation in the Family Report, I prefer at this time the recommendation of the ICL that the Father have a sole parental responsibility for the children. My consideration of the evidence and viewing the parties during the trial, has resulted in my conclusion that it is not in the best interests of the children that the parents have equal shared parental responsibility for them and following from that, that the children spend equal time with each of the parents.
Section 60CA of the Act requires the court when deciding to make a particular parenting order in relation to a child, to regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act provides that in determining what is in the Child’s best interests, the court must consider the matters set out in sub-sections (2) and (3).
The primary considerations about what is in a child's best interests are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.
I am comfortable that the proposed orders will give these children the benefit of having a meaningful relationship with both their parents. Further, I am comfortable that the proposed orders will protect the children from physical or psychological harm.
In addition to the primary considerations pursuant to s. 60CC(2) there are additional considerations pursuant to sub-section (3) about the child’s best interests. By reference to the numbering in that sub-section and the facts of this case, I find as follows:
(a)These children are mature and are able to express a view about parenting for them. The children told the Report Writer that their ideal position would be that their parents cease fighting and get back together. This will not occur.
Each of the children said that they are comfortable with the present arrangement which is that they spend the greater period of time with the Father and spend time with the Mother regularly.
(b)The children have a good and close relationship with each parent.
(c)Each of the children's parents has taken the opportunity to participate in making decisions about major long-term issues for them. It may be more correct to say that that the Father was not given the opportunity to do this during 2019 when the children were not with him because of their relocation to Country B. I accept the Father's evidence that when he travelled to Country B, the Mother prevented him from having anything but very brief time with the children.
(ca)The parents are able to and have, fulfilled their obligations to maintain the children.
(d)My view is that there will be no effect on the children of any separation from either parent because the children will spend time with each parent on a regular basis.
(e)There will be no practical difficulty for the children spending time with and communicating with each parent. Even if one of the parents leaves Town C for example to return to City D, this will not present an insurmountable difficulty.
(f)Subject to what I say in the following sub-paragraph, each of the parents has the capacity to provide for the emotional and intellectual needs of the children. The children have done well and are continuing to do well at school, with the encouragement of each parent.
The Mother taking the children to Country B and keeping them there until the Father took court action, was not providing for their emotional needs.
(g)Although the parents are from Country B, they have not lived there to any great extent in their adult lives. They have been in Australia since 2007. As I understand it, the children have not had any significant exposure to Country B culture or language.
(h)The children are not Aboriginal or Torres Strait Islander.
(i)Except for the very significant issue of the Mother taking the children to Country B in late 2018 and keeping them there for different periods of time for each child, each parent has demonstrated an appropriate attitude to the responsibilities of parenthood.
(j), (k) There can be no finding of any family violence of significance.
(l)I would hope that the orders I will make will be less likely to lead to the institution of further proceedings in relation to the children but I cannot be definite in that regard. I the note the following:
(i)At paragraph 163 of the Family Report, X is recorded as commenting that the Mother would be “unhappy” if there was no change to the present arrangements.
(ii)I think that the Mother will continue to make complaints to this court, the police and to the Department of Child Safety, about the Father leaving the children at home on some evenings when he works.
(iii)The Mother told me that if this court did not act on the Father's disregard of the children (my description) by leaving them at home alone she would take the matter to the Supreme Court, or words to this effect.
I am of the view that the orders I will make are in the best interests of the children.
LEGAL COSTS
The Father seeks that the Mother pay his legal costs. The amount involved is $116,355.10 which apparently reflects costs on an indemnity basis, according to the Affidavit of his solicitor Mr Sarinas filed on 6 September.
Annexed to the Affidavit of Mr Sarinas are the documents about his engagement as Solicitor for the Father, the costs agreement, advice / estimates of costs and in paragraph 9 of the Affidavit of Mr Sarinas, there is a schedule of work which has been done and the cost of that work.
I would comment that the schedule at paragraph 9 of the Affidavit of Mr Sarinas does not disclose itemised costs. Having said that, it is not really surprising in this particular matter and taking into account that legal work for the Father commenced in 2019 when the Mother failed to return with the children from Country B, that costs in excess of $100,000 could have been incurred.
The Father entered into two costs agreements with Mr Sarinas. They were in January 2019 and September 2021. The second agreement is with respect to the trial including work leading up to the trial.
The second costs agreement is dated 1 September 2021 on behalf of Sarinas Legal Pty Ltd and was signed by the Father on 4 September. The covering letter to the Father with the costs agreement which is called a Client Services Agreement, is dated 1 September.
I think that the schedule in paragraph 9 of the Affidavit of Mr Sarinas is more accurate. It describes the work involved for the preparation for trial, as commencing from 24 July 2021. This date is more understandable than 1 September, with respect to the preparation for trial and all of the matters necessary for that, together with the appearance at the trial itself.
With respect to the quantum the amount referred to in the second costs agreement is $66,000, presumably $60,000 plus GST and plus $2,282.35 disbursements overall excluding some Counsel’s fees. As referred to above, there is no itemisation of the costs in the Affidavit of Mr Sarinas. For the first costs agreement, work from 29 January 2019 to 23 July 2021 was $48,072.75.
The Mother would be entitled to require an itemised list of the costs charged to the Father. However the costs order I will make is not an indemnity costs order based on the costs the Father has paid.
CASES REGARDING INDEMNITY COSTS
Ms Black of Counsel referred me to the decision of Justice Cronin in SCVG & KLD [2015] FamCA 687 and the appeal arising from His Honour’s judgment which is found at SCVG & KLD [2017] FamCAFC 95.
In each of those cases, a number of other decisions are referred to. Both refer to the well-known judgment in Colgate-Palmolive v Cussons (1993) 46 FCR 225. In my view, the facts of this case are not similar to what was discussed in Colgate-Palmolive.
In his primary judgment in SCVG, Justice Cronin was dealing with a litigant (the Father) who had continued litigation for about ten (10) years.
His Honour commented at paragraph 21 of his judgement, that the starting and concluding point is that set out in s. 117 of the Act, namely whether it is just to make a costs order. His Honour quoted the majority in Hawkins v Roe [2012] FamCAFC 77 that:
In proceedings involving childrens or parenting matters, the general rule (that costs orders not be made) is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family law litigation in relation to children is quite different to a commercial dispute in the State or Federal Courts. White the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made or where one party is clearly motivated by self-interest rather than the best interests of the children, then a judge may well conclude that there are circumstances justifying an order for costs.
I would comment that in this case, it might be said that there was an absence of preparedness to compromise by each party. This in itself is not unusual where each parent seeks that children live with him or her. It is not the case that false allegations as such were made, although I find that there was either deception by the Mother in taking the children to Country B and keeping them there or at least, a complete breach of her agreement with the Father that the travel to Country B was for a holiday only. There was self-interest on behalf of the Mother who until very recently and perhaps still, wants to reconcile with the Father.
It is interesting that in Hawkins & Roe, Justice Thackray dissented. In explaining that he would have allowed the costs order to stand, His Honour said:
I also respectfully agree with May v Ainsley-Wallace JJ that the “general rule” that each party will pay their own costs is not often displaced in parenting cases and that the nature of such litigation is quite different to a commercial dispute in other courts. However, the stature itself does not differentiate between parenting and financial cases. The discretion given to a Trial Judge to determine a costs dispute even in a parenting case, is a very wide one and I am not persuaded that there is inadequate basis for overturning the order.
The primary Judge in SCVG found that the Father’s conduct in that case exacerbated the litigation and caused the Mother an unnecessary account of costs or in the alternative, caused the Mother’s costs to be unnecessarily higher.
After considering the issue of indemnity costs, His Honour made an award of 50% of indemnity costs against the Father.
In this case, 50% of the full or indemnity costs incurred by the Father is greater than the amount I intend to award against the Mother, given other s. 117(2A) considerations.
When the Full Court dealt with the appeal in SCVG, it held that an appellate court will not interfere with the order of the court below unless the result is plainly unjust or the primary judge’s discretion was exercised on wrong principles. Taking into account the court’s discretion in family law generally and including the issue of costs, the appeal court decided that no error had been established by the Father who was the appellant.
At paragraph 172 of its judgment, the Full Court said:
The Trial Judge set out the submissions of the respondent as to why an order for costs should be made and the basis for it to be on an indemnity basis. The judge referred to the financial circumstances of the appellant, his conduct of the litigation and the substantive reasons for the parenting orders made. The judge decided that there were circumstances which justified an order for costs.
At paragraph 181, the Full court held:
The Trial Judge, faced with a complex parenting matter, made the appropriate findings and properly exercised the discretion to make an order for costs. His Honour made costs orders which were well supported by reference to the factors contained in s. 117(2A).
I am not persuaded to make an order that the Mother pay costs on an indemnity basis. Despite the fact that the Mother relocated with the children to Country B, the costs this court is concerned with are costs in the Australian litigation.
I note that in this matter, there was no breach of an existing order.
I acknowledge that it could be the case that following a separation of the parties, one of them could have sought orders about where the children live and the time the children spend with the other parent. This dispute could have occurred separately from and with or without, the relocation issue. For example, the parties lived in City D and own a house here. They were in the process of or had relocated to, Town K. They would have further considered a relocation of their residence to Town C, both the Town K and Town C locations being relevant for the Father’s work. The point to be made is that in any of those scenarios, one of the parties may not have wanted to live in the town the other party lived in, thus causing a dispute about where the children should live. Of course, a dispute about where the children should live and how much time they spend with the other parent, could have arisen even if the children and the parents were in the same town following separation.
SECTION 117(1) OF FAMILY LAW ACT
Section 117(1) of the Family Law Act provides that subject to sub-section (2) and other sections not relevant here, each party to proceedings under this Act shall bear his and her own costs. This is the usual position in family law. There is no automatic award of costs but rather the court shall if considering making a costs award, refer to the matters in s. 117(2A).
SECTION 117(2) OF FAMILY LAW ACT
Section 117(2) deals with costs awards, providing that if in proceedings under the Family Law Act the court is of the opinion that there are circumstances that justify it in doing so, the court may subject to sub-section (2A) and the applicable Rules of Court, make such order as to costs as the court considers just.
SECTION 117(2A) OF FAMILY LAW ACT
By reference to the matters in s. 117(2A) of the Family Law Act and the facts of this case, the relevant sub-sections will apply as follows:
(a)I refer below to the financial circumstances of the parties which I have taken from the property settlement consent order entered into this year and the Application for Consent Orders setting out their financial circumstances, in which each party made a declaration as to the truth of that document.
(b)Neither party is in receipt of legal aid.
(c)In my view, it is not surprising and would have been expected, that the Father would commence an Application for Parenting Orders. At the time he did so, both children were with the Mother in Country B and the Mother was refusing to return the children to Australia. At that time, X had not been returned to Australia although she was here around the time the Father’s application came before the court. Y was in Country B and the Mother refused to return him to Australia, including that she defended and then appealed, the Father’s application in Country B and an order in his favour, about the return of Y.
I told the Mother on a number of occasions when this matter was mentioned, that she should obtain legal advice regarding preparation of documents and representation at the hearing. As she was entitled to do, the Mother did not attend to this.
The Mother’s documents were filed and served quite late. As referred to at the commencement of this judgment, the other parties did not take issue with that.
(d)The proceedings were not necessitated by the failure of a party to comply with previous orders of the court. If the Mother had taken the children to Country B and kept them there contrary to an existing order, there is little doubt that any order for costs made now would have been in a much larger amount and probably, on an indemnity basis.
(e)It could be said that the Mother has been wholly unsuccessful in these proceedings. I note that she was wholly unsuccessful in the proceedings in Country B when the court there ordered that Y go into the Father’s care. She was also unsuccessful on appeal. In relation to the proceedings for which the Mother is facing a costs application namely the proceedings in this court, she seeks that the children live with her. That will not be the order of this court. Further, the Father will have sole parental responsibility for the two children.
(f)Neither party made an offer in writing to the other party to settle the proceedings. It was clear from the documents filed for each party that their positions were wide apart, namely that each of them sought that the children live with that parent. That fundamental issue became the main point of the trial.
(g)The court’s order will give the Mother a greater amount of time with the children than the Father seeks in his Amended Application, more than the Family Report Writer recommended and more than the ICL recommended. I have made that decision that the children spend five (5) nights per fortnight with the Mother and nine (9) nights with the Father, on the basis of the Mother most likely being the primary caregiver of the children up to 2018 and when each child was in Country B, the apparently good relationship which the children have with each parent and my view that the Mother will provide appropriate and supportive parenting for the children. Despite these comments, it remains the case as referred to in (e) above that on any view, she has been wholly unsuccessful.
THE PARTIES’ FINANCIAL CIRCUMSTANCES – APPLICATION FOR CONSENT ORDERS
The parties completed a consent order for property settlement four (4) months ago. The Application for Consent Orders was filed on 3 June 2021.
The financial circumstances of the parties deposed to by each of them in late May when the Application for Consent Orders was signed by each, sets out the matters which I must consider pursuant to s. 117(2A)(a).
According to the Application for Consent Orders, the parties financial circumstances are as follows:
(a)The Father earns a gross weekly income of $7,500 and the Mother earns a gross weekly income of $3,750.
(b)The former matrimonial home at Suburb J in City D is to be transferred to the Mother. It is said to be worth $520,000.
(c)The home is subject to a NAB Loan in the sun of $390,000. The Mother must refinance this in her sole name. As a result of the home loan, she is receiving an asset worth approximately $130,000.
(d)The Wife is to retain motor vehicle 1 said to be worth $30,000 and which is debt free.
(e)Each party will retain funds in banks of approximately $10,000.
(f)The Father will retain an investment with Company P worth $254,000 against which there is a loan of $140,000. Therefore, the nett value of the investment is less than the nett value of the matrimonial home.
(g)The parties have life insurance in Country B with a surrender value of $60,000.
(h)The Father will pay $15,000 to the Australian Tax Office in respect of taxation liabilities of the Mother, over a period of twelve (12) months.
(i)The Father will retain his superannuation entitlements worth $285,172 at the time the Financial Statement was signed in June. The Mother will retain her superannuation estimated to be worth $50,000. There will be no superannuation split.
I take the following matters into account in considering the financial circumstances of the parties relevant to a costs order:
(a)The parties do not have a substantial amount of property when liabilities are taken into account.
(b)The parties do have reasonable incomes. The Father’s income before tax is about double the Mother’s income. After tax, the difference in incomes will not be quite as great.
(c)The Mother will have a child support liability if the Father applies for an assessment. The amount is unknown and will be based on the incomes of each of the parties and the time the children spend with each of them.
(d)The Father will have the primary financial obligation to support the two children.
(e)The division of matrimonial property is approximately equal and a little in favour of the Mother, for the non-superannuation pool. The division is greater for the Father in the superannuation pool and in an overall sense. I assume this has taken into account balancing an adjustment for the Mother due to the disparity of incomes and an adjustment to the Father for the ongoing care of the children.
(f)The court has found that the proposed consent order for property settlement was just and equitable. Registrar Clarke signed the order on 9 June 2021.
In my view, there is a sound basis for finding that s. 117(1) will not apply in this matter.
QUANTUM OF COSTS ORDER
I have calculated the costs which would be payable according to the Federal Circuit Court Rules 2001 and then the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as follows:
(a)Up to the last item for 15 July 2021, on the Federal Circuit Court Rules scale pursuant to those Rules;
(b)From and including the preparation for final hearing, on the scale set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
The costs have been calculated by me with respect to the relevant schedules as follows:
Date Item No. Description Cost 07/02/2019 2 Initiating an application which includes interim orders $2,802.00 11/03/2019 3(a) Interim hearing as a discrete event $1,867.00 11/03/2019 13(b) Daily Hearing Fee – half day $1,120.00 11/03/2019 12 Advocacy loading for 13(b) $560.00 09/07/2019 13(a) Short mention $305.00 09/07/2019 12 Advocacy loading for 13(a) $152.50 07/09/2020 13(a) Short mention $305.00 07/09/2020 12 Advocacy loading for 13(a) $152.50 09/09/2020 13(a) Short mention $305.00 09/09/2020 12 Advocacy loading for 13(a) $152.50 11/11/2020 13(b) Daily Hearing Fee – half day $1,120.00 11/11/2020 12 Advocacy loading for 13(b) $560.00 27/05/2021 13(a) Short mention $305.00 27/05/2021 12 Advocacy loading for 13(a) $152.50 15/07/2021 13(a) Short mention $305.00 15/07/2021 12 Advocacy loading for 13(a) $152.50 Aug/Sept 2021 8 Preparation for final hearing – 2 day matter $6,227.00 27/09/2021 13(c) Daily hearing fee - Solicitor $2,357.00 27/09/2021 13(c) Daily hearing fee - Counsel $2,357.00 27/09/2021 12 Advocacy loading for 13(c) $1,178.50 28/09/2021 13(c) Daily hearing fee - Solicitor $2,357.00 28/09/2021 13(c) Daily hearing fee - Counsel $2,357.00 28/09/2021 12 Advocacy loading for 13(c) $1,178.50 20/10/2021 9 Attendance of solicitor at hearing to take Judgment $321.00 TOTAL $28,649.50
I find that the Father did have to bring proceedings in this court, given that the Mother had travelled to Country B with the children and kept them there. Accordingly, I find that the Mother should pay the Father’s costs which I have calculated on the relevant scales.
It seems to me having seen the Mother give evidence and having read her Affidavit material and the judgment of two superior courts in Country B, that this matter was unlikely to settle. Not only did the Mother disagree with or try to minimise the seriousness of her retaining the children in Country B and how this must have affected the children, her until now unrealistic view that the parents may reconcile whilst at the same time being critical of the Father’s parenting, made it extremely unlikely I think, that an agreement could be reached.
I have taken into account the matters which I have considered pursuant to s. 117(2A) of the Family Law Act. These include that the Father earns greater income than the Mother although he will have the significant cost of supporting the children and the reasonably small net value of the parties’ assets which have been divided pursuant to the consent order. In the circumstances and as I am dealing with the Father’s costs of the proceedings in Australia only, I think that he should have his costs based on the applicable scale, which I have calculated to be the amount of $28,649.50. Based on evidence of the Father’s actual costs, the Mother will pay a little more than one quarter of those costs.
I said in paragraph 150 that the Mother is entitled to see the Father’s itemised costs. This will not be relevant or applicable given that the costs I am ordering are based on the scale only, not on what the Father has paid.
If these proceedings had been conducted in the Family Court, costs would have been higher. On an indemnity basis, the costs would have been much higher. I have taken those matters into account as well, in coming to the view that the Father should have all of the scale costs in this court which are available to him.
I certify that the preceding one hundred and eighty-one (181) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bowrey. Dated: 20 October 2021
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