Rindler and Cooper

[2009] FamCA 21

FAMILY COURT OF AUSTRALIA

RINDLER & COOPER [2009] FamCA 21

FAMILY LAW – PARENTING – 10 year old boy with strong and consistent preference to live with his father – mother to relocate from Central Coast to live with her partner in Sydney whatever the outcome of the proceedings – order for child to live with father and spend time regularly with mother

FAMILY LAW – COSTS – costs related to the mother’s application to review orders of Judicial Registrar finding she had breached orders – review application withdrawn - her financial circumstances – application dismissed

Family Law Act 1975 (Cth)
APPLICANT:	Mr Rindler

RESPONDENT: Ms Cooper

FILE NUMBER: SYC 3761 of 2007

DATE DELIVERED: 21 January 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 5 September 2007, 8 February, 2 April, 8 May, 30 September, 10 & 11 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Brazel Moore Lawyers

COUNSEL FOR THE RESPONDENT: Ms Friedlander

SOLICITOR FOR THE RESPONDENT: Simone Legal

Orders

1. The orders of 8 June 2001 are discharged.

2. The parents are to have equal shared parental responsibility for the child … born … August 1998. 

3. The child is to live with his father as from the commencement of the 2009 school year. 

4. The child is to spend time with his mother as follows:

   (a) during school terms during the soccer season:

   (i)every second weekend from after the child’s soccer match on Saturday until 6pm Sunday;

   (b) during school terms outside the soccer season:

   (i)every second weekend from after school Friday until 6pm Sunday;

   (c) during school holidays

   (i)for one half of the holidays following the first term;

   (ii)for 10 days of the holidays following the second and third terms; and

   (iii) for one half of the Christmas school holidays, to alternate between the first half of the holidays during odd numbered years and the second half during even numbered years.

5. For the purpose of implementing these arrangements the mother is to collect the child from school or the father’s residence at the commencement of any period of time in her care and the father is to collect him from the mother’s home at the conclusion of the time provided. 

6. Each parent is to do all things necessary to ensure the child has contact at all reasonable times with the other parent by telephone or email or post. 

7. The father’s application for costs is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3761  of 2007

MR RINDLER

Applicant

And

MS COOPER

Respondent

REASONS FOR JUDGMENT

Proceedings

1. The parties have a 10 year old son.  They cannot agree about his future care arrangements or about the responsibility for making major long term decisions related to his upbringing. 

2. In particular, a decision is required about whether or not the child’s best interests will be met by moving from the primary care of his mother to live with his father on the Central Coast and by giving his father sole parental responsibility or whether his mother can take him with her when she moves from the Central Coast to live with her fiancé at V in the western area of Sydney and they continue to share parental responsibility. 

3. Whatever the outcome, his mother rules out remaining on the Central Coast where she now lives and, contrary to an earlier intention, his father rules out moving to the vicinity of V should the child be living there.  Both parents propose that he spends time regularly with the other during school terms and during school holidays, though they differ about the detail, but there is no common approach to the vexing question of how a balance can be achieved between the child continuing his keen interest in playing soccer at the weekends and spending the weekend with his other parent who will be living some distance away. 

Approach

1. In making parenting orders, the best interests of the child are the paramount consideration [s 60CA].  The factors which determine best interests are ‘primary considerations’ and ‘additional considerations’ [s 60CC (2) and (3)] which are wide ranging and in some instances elaborated in other sub-sections [eg s 60CC(3)(4)].  These considerations are underpinned by the obligation to have regard to certain stated objects and underlying principles [s60B(1) and (2)].  These matters will be evaluated later after discussion of the material facts when it will also be necessary to consider the application or otherwise of the presumption of equal shared parental responsibility and consequently [possibly] to consider whether certain outcomes apportioning the child’s time would be in the child’s best interest and reasonably practicable. 

2. In weighing all of these considerations the options for this child are limited to living on the Central Coast with his father and having regular time with his mother, though more limited than would otherwise be the case were she to remain living in the vicinity, or moving with his mother when she relocates to Sydney and having regular time with his father, though more limited than would otherwise be the case were his father living nearby.  This introduces for consideration the case law about relocation which is not a term expressly mentioned in all of the decision making directives to be found in Part VII of the Act.  Many of the cases predate the amendments introduced from 1 July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 – for example, AMS v AIF (1999) 199 CLR 160, (1999) FLC 92-842, (1999) 24 FamLR 756; Paskandy and  Paskandy (1999) FLC 92-878; A and A: Relocation Approach (2000) FLC 93-035; U v U (2002) FLC 93-112, (2002) 29 FamLR 74; D and SV (2003) FLC 93-137; and Bolitho and Cohen (2005) FLC 93-224 – and since the amendments there has been, for example, Taylor and Barker [2007] FamCA 1246.

3. Within the framework imposed by Part VII and with those cases in mind, I have summarised elsewhere the core principles of these cases as being:

   ·    ‘relocation cases’ are parenting cases to which the same provisions of Part VII apply as they do to any other parenting case;

   ·    the child’s best interests is the paramount but not the sole consideration;

   ·    each of the proposals advanced by the parents has to be identified;

   ·    in evaluating the evidence (i) neither parent bears an onus to establish a proposed change or continuation of an existing arrangement will best promote the best interests of a child; (ii) regard must be had to the right of freedom of movement of a parent though that may have to cede to the child’s best interests; and (iii) matters of weight are to be explained;

   ·    the evidence is to be evaluated against the relevant Part VII provisions under the span of the objects and underlying principles in any convenient order, though logic suggests the s 60CC factors would come first before the application or otherwise of the presumption about parental responsibility and the resulting time considerations; however, if the presumption applies the obligation to consider equal time or substantial and significant time is to be undertaken separately initially by looking to the child’s current circumstances before balancing the advantages and disadvantages of either outcome against the advantages and disadvantages that would flow from the proposed relocation. 

   ·    the outcome is not confined to the proposals put by the parents but all options to secure the child’s best interests may be considered;

   ·    one option may be the other parent’s willingness or ability to move to be nearer the child after the move; and

   ·    the parent proposing to move does not need to establish compelling reasons to justify the relocation.

Evidence

1. To support his case the father called evidence from three witnesses, all associated with the child’s soccer in one way or another: Ms R has known the child for about five years through soccer; Mr W has known the father for two years as the coach of the soccer team which includes his nephew; and Mr D has known the father for about five years through their association with soccer.  Amongst other things, their version of certain incidents at soccer put in dispute what was said of the situation in the mother’s case.  The mother called evidence from her fiancé, Mr N.  There are also two Family Reports available - the first dated November 2007 and the second September 2008 - and the reporter elaborated by giving some further evidence at the hearing. 

Background

1. The father (54) and the mother (45) met in 1992 and had an intermittent relationship when they occasionally lived together.  They were again living together when their son, the child, was born in August 1998.  They separated in 2001 when he was around 3 years of age. 

2. After the separation both parents remained living on the Central Coast.  The child lived mainly with his mother and saw his father regularly.  He attended kindergarten and school in due course and he became involved in activities including soccer for which apparently he shows considerable aptitude.  In July 2007 the mother became engaged to Mr N who lives at V in Sydney.  In May 2007 she left the Central Coast to go and live with Mr N, but she returned some months later with the child after court orders were made at the father’s instigation.  She will remain where she is until she moves to V following the outcome of these proceedings. 

3. The father has three adult children from an earlier marriage – sons aged thirty four and thirty two, and a daughter aged thirty two – whom he raised after separation from their mother.  He has had no contact with his second son for many years for reasons he relates to his son’s heroin use and theft from the family.  He lives alone on the Central Coast and is not in a relationship.  A butcher by trade, he suffered an injury some years ago and now works part time as a kitchen hand. 

4. The mother has a daughter, T (17), who lived with the parties when they were together – her father was nowhere on the scene.  The care arrangements for T since the separation from the father have taken some unusual turns.  T lived with her mother until 2003 when, at the age of 12, her mother handed her care to Mr C who was said to be her father.  She lived with Mr C for six months and then returned to live with her mother, but there were ongoing difficulties - running away and not going to school - so she went back to live with Mr C.  Then in August 2007 she went to live with Mr N at V – this was around the time her mother said Mr C is not, in fact, her father.  She was living with Mr N when she was interviewed for the first family report.  Her time there came to an end around July 2008 when she moved to Queensland where she now lives with her boyfriend at his parents’ place. 

History

1. The history predating their separation involves for the most part mutual accusations of violence.  Certainly it can be accepted there was violence in their relationship because on the heels of their separation an AVO was made against the mother for the protection of the father and she was convicted of assaulting him. 

2. Yet the mother describes him as ‘violent and vindictive’ and she alleges a history of ‘verbal, mental and, in the end, physical abuse’ over the years of their intermittent relationship.  T’s observations to the reporter support her mother’s position on the topic although her statements are not tested and so her reliability as a corroborator is unknown.  The mother nominated her fear of the father as a reason for moving away from the Central Coast, saying she was too scared to tell him.  But it is difficult to see that as a plausible motive when there is simply no evidence of any such behaviour by the father over the many preceding years.  For his part, the father accuses her of making false allegations against him; in fact, she was the perpetrator of violence in their relationship which he supports by pointing out that she is the one with an AVO against her, issued for his protection, and she is the one who was convicted of assaulting him. 

3. Their separation was more than seven years ago and these events predated that so probably the dilemma about the child’s future living arrangements can be brought into focus without a finding one way or the other.  But if a finding were thought to be necessary, his argument would prevail and therefore his version of it would be accepted. 

4. Parenting proceedings were instituted in the Wyong Local Court and orders were made by consent on 8 June 2001 providing for the child to live with his mother and spend time with his father every second weekend, for 2 hours on Wednesday afternoons, on special occasions and during school holidays, and they also provided for each parent to ensure that the child attend all sporting events for which he is enrolled.  These orders remain in place although it is common ground that the child has spent additional time over the years in his father’s care.  In 2001 they also agreed to property settlement. 

5. For the most part the evidence of events to follow concentrates on the last two years or so and what follows summarises developments to mid-2007:

   (a)In May 2006 the father notified the Department of Community Services of the child’s complaint that his mother had hit him with a dog chain.  Intervention by the Department followed and records indicate the mother acknowledged hitting the child, but with a dog collar and not a dog chain, because he was hitting T and she ‘lost it’.  Records also indicate the child’s school spoke positively of her involvement and the Department seemed satisfied with the explanation. 

   (b)At the end of 2006 the father became aware the mother was proposing to move from the Central Coast to live with Mr N in Sydney and by letter dated 12 December 2006 his solicitors wrote to her advising of his opposition to her removing the child from the area. 

   (c)Despite this letter the mother did move on 13 May 2007 without forewarning the father.  On her account of it she did so after advice by a lawyer at Legal Aid that she was free to do so.  Controversially, she either sold or gave away the child’s school clothing in the process.  The father instituted proceedings and sought interim orders for the child’s return to the Central Coast.  An order was made by a Judicial Registrar on 30 May 2007 providing for the child to live with his father but that order would be discharged and the 2001 order revived if the mother returns to live on the Central Coast.  She did so the following month.  After some initial temporary accommodation she re-established herself in the area, the child was re-enrolled at his previous school, and he resumed his former activities. 

6. But the difficulties did not end there because disputes were being agitated about various issues, including the child’s dental arrangements.  Against that background the interviews for the first family report took place.  Unsurprisingly, one of the issues identified there was the level of conflict between the parents – their mutual antipathy is apparent from a reading of the report - and the negative impact of that on the child. Without being comprehensive, this is the substance of the report:

   (a)The father was suggesting the mother was not a good mother [apparent from the way she had parented T], he alleged she had made false accusations about his role in violence [she was the perpetrator], he was critical of the way she provided for the child [he was dressed inadequately when he was returned to the Central Coast and she had sold his school uniform], she yells and screams at the child, she had hit him with a dog chain, and she does not support the child’s relationship with him.  His proposal, on the other hand, would ensure stability for the child by continuing the arrangements he was familiar with, including his soccer.  The child would have time with his mother at the weekends but that would be subject to the child’s soccer on Saturdays. 

   (b)For her part, the mother was alleging a long history of abuse by the father [she was afraid of him], he had exposed the child to swearing and screaming at her in public places, she is more comfortable when they do not communicate at all, she expressed concern that she would not see the child if he lives with his father and she is living at V, she suggested the father discourages interests or friends outside soccer, and he does not provide the basics of child care such as taking him to birthday parties, having friends stay over, and he does not supervise his homework or even wash his clothes when the child is in his care.  She also alleged he undermines her discipline of the child who plays one parent off against the other and the child’s wish to live with his father is the result of being ‘brainwashed’ and ‘spoiled’ with the resources his father has available.  As for the move to V, she believed she could make the move after receiving advice from Legal Aid, that was where T was living at the time and she did not believe T would want to move back to the Central Coast.  Mr N is committed to his own children who live nearby and he has a permanent job in the area.  Being required to live on the Central Coast would be a disadvantage to the child because neither she nor Mr N had work there and they would not be able to provide for him in the same way they could at V. 

   (c)The child was described as ‘reserved and wary at times’ and aligned with his father.  He told the reporter he was sad when he moved away because he did not want to leave his friends from school and his soccer team.  He consistently said he wants to live on the Central Coast with his father, describing him as ‘nice’, that he does not yell, he is ‘kind’, and he plays with him whereas his mother ‘doesn’t that much’.  He would be happy to live with his father on the Central Coast even if his mother were to be living in Sydney.  He reluctantly acknowledged he might miss his mother ‘a bit’ [the reporter thought he might be minimising the extent he would miss her and his sister if living with his father] and that he had wanted to live with his father ‘for ages’.  He described his mother as yelling and screaming at him about things like his homework.  He said he would not play soccer if he had to live in V because ‘my Dad wouldn’t be there to watch me.’ He seemed diffident about Mr N, reporting tearfully at one point that Mr N had told him to ‘shut up’. 

   (d)When observed with his mother the child was described as initially diffident and sullen but he relaxed and enjoyed the games with her and T and Mr N.  He was also a bit reserved with his father but he loved the close contact with him and they teased and joked with each other.

   (e)It was the reporter’s evaluation that the child was seemingly self-contained and aligned with his father while resigned to a high level of conflict and bitterness between the parents.  While he was critical of his mother this did not seem to be reflected in his interaction with her, except possibly when his father is around.  She described as ‘disturbing’ the mother’s account of the child contacting his father when disciplined by her, she noted the parents to be extremely critical of the other’s parenting, and she thought neither seemed to be willing or able to facilitate and encourage the child’s relationship with his other parent.  Neither seemed able to protect the child from the ongoing conflict.  If he were to live with his father he may see his mother less and less over time and be further influenced against her by his father.  On the other hand, the mother’s proposals involve him seeing his father less and the move she made to Sydney suggests she tried to minimise the father’s role.  Nonetheless, the reporter recognised she had managed to facilitate the 2001 orders and had allowed extra time. 

   (f)The reporter saw some difference in that the mother’s conduct is ‘largely round making decisions whereas [the father’s] conduct is around attaining some emotional influence over [the child].’  In her view, while the child wants to live with his father his alignment is possibly partly the result of the father’s ‘intense and determined’ personality, encouraging the child to turn to him when there is conflict with his mother, thereby undermining his relationship with his mother.  She had some concern about the weight to be put on the child’s views in light of the father’s influence.  As she put it: ‘It seems preferable to dilute the impact of the paternal alignment by [the child] having regular time with his mother so [the child] is forced to accommodate the attitudes of both his parents to some degree.’

   (g)The reporter did not put much store on the mother’s argument that the child is close to his sister who was then living at V.  In her view that would be outweighed by the prospect of the child not seeing his father as much and she did not think there was an especially close or supportive relationship with T. 

   (h)The concerns about the child living with his mother in V included him being very unhappy about the prospect of not seeing his father as much and he may choose to drop out of soccer altogether, his father could possibly influence him against settling into the move, and he may put himself at risk by running away to his father when in conflict with his mother.  While the mother would be significantly disadvantaged by having to remain on the Central Coast, on balance it would be in the child’s best interests that he live with her rather than with his father - she thought equal time would thrust the child continually into the acrimony and neither parent seemed to have insight into the impact of their conflict on the child. 

   (i)In the end the reporter recommended equal shared parental responsibility and that the child live with his mother on the Central Coast and live with his father from after school Thursday until the beginning of school the following Tuesday every second week.  To this she added a raft of recommendations for orders about his soccer including practice and games, his homework, going to school with items needed in the other’s household, the parents attending a program run by Unifam, the creation of a communication book to be kept in his school bag and the information to be recorded in it. 

1. But this recommendation has become redundant since the mother is moving to V whatever the outcome and the father will not move to the V area to make it practicable there. 

2. Since the release of the first family report the father has completed a course with Burnside ‘Resolve Conflicts and Build Relationships’ and the mother has also completed a parenting course.  They instituted a communication book as recommended.  Yet while these steps are only to be encouraged as heading in the right direction, it has to be said that there was nothing about their manner or attitudes at the hearing to indicate any improvement in their capacity to contain conflict or parent in a co-operative fashion.  Some indication of the atmosphere in which this child negotiates his way is apparent from this summary of further events over the past year:

   (a)Early in the year there were a number of conflicts about soccer and the child’s attendance at soccer matches, including allegations that his mother refused to take him to matches and she had failed to take him to soccer grading in February which led to the father bringing contravention proceedings in June 2008.  The mother rejects the allegations and lays the blame elsewhere; however, there was a finding that she did breach the orders and an order for costs was made against her.  She sought a review but this was withdrawn and costs remain in contention. 

   (b)The problems continued.  On 5 July 2008 there was an incident at the soccer about which different versions are given.  The description of events given by Mr W and Mr D is wholly inconsistent with the mother’s case.  But despite the suggestion put in cross-examination that what they said was ‘made up’ there is no reason to doubt the accuracy of it, either by reason of their relationship with the father, or any inconsistency or implausibility arising from their evidence, or from their manner and general presentation while giving their evidence.  It is accepted, therefore, that Mr N did reply rudely to the father’s enquiry about the child and that Mr N was talking in an ‘aggressive and threatening tone’.  It is also accepted that Mr N reacted in an aggressive manner towards Mr D after being asked to move from the particular area at the soccer field where he was not supposed to be. 

   (c)On 2 August there was another unpleasant incident at the soccer and again there is evidence inconsistent with the mother’s case describing what occurred.  However, it is accepted that there was an exchange between the parents about whether or not the father could put a shirt on the child before being taken off to the other side of the field by his mother and Mr N contributed to the episode by loudly calling the father a ‘fucking cunt’ and a ‘fucking wife basher’ and a ‘fucking bad parent’.  It is accepted that Mr D heard Mr N yelling: ‘[…]I’ll get you, your day is coming’.  Ms R, whose son is friends with and plays in the same team as the subject child, was also a witness to the events on this day and her evidence, accepted as reliable, is that Mr N shouted at the father calling him an ‘idiot’, that he has ‘no balls’, calling him an ‘abuser and wife beater’ and telling him his ‘day is coming’.  All of this occurred in front of children and parents present for the soccer game. 

3. In September 2008 there were interviews for the second family report.  Conflict and its negative impact were again identified as issues along with the capacity of the parents to support the child’s relationship with his other parent.  By this time the parents’ proposals had changed: the father was proposing that the child live week about with each parent and the child continue to attend his school at K; the mother was proposing that the child live with her at V where she would be moving and spend time with his father every second weekend and half the school holidays during Easter and Christmas and all of the June/July and September/October holidays. 

4. Some of the reporter’s conclusions can be discussed in the context of the relevant s 60CC considerations but for now what follows is sufficient summary of her evaluation:

   (a)She noted the child’s continued exposure to the parental conflict and the parents being embroiled in an ‘ongoing and bitter’ dispute about who gets to decide what about the child, the latest avenue being the soccer field with Mr N taking up the cudgels on the mother’s behalf.  Mutual accusations of inappropriate behaviour in front of the child and other children and parents are exchanged with little understanding of how the child feels or giving priority to that.  Neither appears to have been able to protect him from the ‘emotionally abusive patterns’.

   (b)The parents remain highly critical of each other’s parenting.  The entries in and response to what is in the communication book is one source of dispute.  There are mutual accusations of manipulation of the child’s opinion and of troubles in parenting their other child/ren.  The reporter repeated concerns about their ability to facilitate and encourage a close and continuing relationship between the child and his other parent.

   (c)In resolving to move to V regardless, the reporter sees the mother as having given priority to her own need for security and her relationship with Mr N over the child’s views and feelings; however, the reporter acknowledges the emphasis the mother places on advantages for the child in living with her in Sydney - primarily being the financial and emotional security she can provide by reason of her marriage to Mr N as well as what she regards as a more balanced lifestyle for the child rather than being focussed solely on soccer. 

   (d)The reporter did not see the father’s week about arrangement on the Central Coast as realistic because the mother is going to V.  She had adverted to concerns in the previous report about the child living primarily with his father because of the risk of further alliance between them and the possibility of estrangement between the child and his mother.  As she put it, ‘(g)iven the potency of the relationship between [the child] and his father, this continues to be a concern and a deciding factor in not recommending that [the child] lives primarily with his father where he would only spend time with his mother every fortnight.’She added that although the child strongly identifies with his father as a boy soon to enter adolescence, his mother has been the primary carer and significant attachment figure for him as a younger child. 

   (e)On this occasion she found the child to be more confident and relaxed than in the earlier interview.  She noted that he continues to say he wants to live with his father and remain living on the Central Coast.  He seemed more even handed about his mother and less aligned with his father.  He seemed more mature and could identify the freedom and privilege he is afforded there as being what he likes in his father’s home.  In her opinion he has been susceptible to his father’s ‘inability to draw appropriate boundaries about discipline in the past but, for some inexplicable reason, he seemed more resilient and better able to cope during this assessment’.

   (f)The reporter discussed the options at paragraph 24 as being: (A) the child lives primarily with his father on the Central Coast and sees his mother on alternate weekends or (B) the child lives in a shared arrangement based in Western Sydney.  Option A is based on the mother working around the child’s soccer commitments which is likely to remain a problem.  If she does not collect him until after his soccer game there is only a day and a half to spend time with his mother each fortnight which the reporter did not see as sufficient.  Option B, on the other hand, relies on the father moving to Sydney and she went on to discuss considerations related to equal time arrangements.  However, while the father was then contemplating making the move to Sydney if that is where the child would be living, he has abandoned that so B is no longer an option. 

   (g)The reporter recommended the parents have equal shared parental responsibility, that the child be permitted to move to Sydney and live in a week about arrangement between his parents if the father were living in relatively close proximity; if not, that the child live with his mother and spend alternate weekends with his father from Friday afternoon to Sunday evening as well as time during school holidays and special occasions.  There was a repeat of the recommendation that the parents attend a Unifam course, there were recommendations about the parents ensuring the child continue to participate in soccer and that the parents attend all games, and it was also recommended that they continue to use the communication book. 

5. By the time she gave further evidence at the hearing the reporter was aware the father would not move to Sydney but would remain living on the Central Coast.  It would be a fair summary of her further evidence to say that while she maintained her view that her recommendation would be an appropriate outcome, balancing the relevant considerations was difficult and the case for one result or the other finely balanced. 

Future proposals

1. To summarise, the father’s position is that he will not move from the Central Coast but continue to live where he does now.  As he sees it, the child should move to live with him where he can be given the continuity and stability of schooling, friends, soccer, and environment which he enjoys and where he wishes to remain.  On his case, he can provide good care for the child, he rejects the suggestions of the mother to the contrary, and he maintains he can provide an environment where the child is not subjected to the type of inappropriate discipline and direction he receives from his mother.  From the parenting course he has learned some strategies which he is trying to put into practice.  As for the child’s time with his mother that is reflected in the terms of the orders he seeks. 

2. The mother’s position is that she will move to V to live with Mr N; she does not see a future for herself or Mr N on the Central Coast.  They will have security through his employment, his place of residence is where he sees his own children regularly, and she hopes to find work in the area again.  She maintains the father cannot offer the same quality of care for the child, he tends not to go to school events, he is not able to contribute much towards the child’s education generally, he is only interested in soccer for the child, and he has ‘brainwashed’ the child into saying he does not want to move with her to Sydney.  In short, she is able to offer a more rounded experience of family outings, friends and interests.  Her proposal about the child’s time with his father is reflected in the terms of the orders she seeks. 

Best interests

1. I come now to the considerations to be assessed in determining which proposal is in the child’s best interests. 

Primary considerations

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. Counsel made no particular submission about this consideration.  Like most children, this child would benefit from having a meaningful relationship with both of his parents and like most children the benefit he would derive is commensurate with the extent to which each parent is able to meet his many needs.  Here, there is no suggestion that he does not already have a meaningful relationship with both of his parents.  The continuation of that requires the support of both his parents who seems to be short on insight about its importance to his upbringing and that poses risks for him from both directions on either outcome. 

2. As is their right, his parents have made decisions about where they will live and, wherever he is, the child is not going to have his parents living in reasonable proximity when these proceedings conclude.  It follows that whether he continues to live on the Central Coast with his father or he moves to Sydney with his mother there will be a good deal of regular travel involved for him at weekends during school terms and during holidays to maintain his relationship with his other parent and to secure the benefit of their input into his upbringing.  It also follows that his time with his other parent will necessarily be more limited than would otherwise be the case, putting aside his interest in soccer, because of the distance involved.  If he lives with his father and maintains his involvement in soccer, which is highly likely, his time with his mother during the soccer season, which in reality covers much of the year, will be limited to after the Saturday game until Sunday evening, at least during school terms.  If he lives with his mother and he takes up soccer at V, despite saying he would not unless his father was there to watch him, the same restriction will apply to his time with his father. 

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. In 2006 the child was hit by his mother with an implement and whether it was a dog collar as she said or a dog chain as alleged, resort to this as a means of intervention or discipline is a concern.  That said, she appears to have satisfactorily explained herself to investigating authorities at the time and there is no evidence of any repeat episode.  It is probable, therefore, that he does not need to be protected from harm coming from that direction. 

2. More starkly apparent is the potential harm of exposure to the high level of conflict between his parents, with Mr N adding to the problem by his contributions.  It is enough to cite the shouting and abuse recently at the soccer games to appreciate the very difficult burden this ongoing battle obviously places upon the child.  On that topic it should be said that while the preponderance of evidence about the specific events at soccer does not implicate the father in abuse and name calling, that does not necessarily mean he can occupy the high ground.  Plainly he holds strong critical opinions of the mother and Mr N and obviously the child is completely aware of it.  But the child does not exonerate his father from responsibility entirely since in his discussion with the reporter he referred to his father and Mr N being involved in ‘verbal clashes’ and that while Mr N tends to raise his voice the most, both of them tend to get agitated when they see each other.  The child described this as occurring in front of everyone, that ‘everyone notices’ and ‘they don’t like each other I guess.’ 

3. Regrettably none of the three adults appears to have any real insight into the difficulty this contest to prevail delivers to the child who is left to deal with it in any way he can. 

Additional considerations

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child has consistently expressed a wish to remain living on the Central Coast and to live with his father, he wants to continue to go to the school he attends now and, importantly for him, he wants to continue his involvement in soccer as he does now.  He has been unwavering in this attitude and that has been over the many months spanning both family reports.  It was put in the more recent family report this way:

   ‘18.     [The child] was adamant that he wants to remain living on the Central Coast because all his friends are there.  He confirmed that he still wants to live with his father.  [The child] was less critical of his mother’s home and her parenting (than he had been in the previous Report interviews) and he was able to acknowledge that part of his preference for his father’s home was that his mother “yells” at him to do things (tidying or homework) whereas at his father’s place “I get to do whatever I want.”’

2. That he is a 10 year old boy expressing an undoubtedly strong preference about his living arrangements might be thought deserving of considerable weight.  But since the mother alleges the father’s malign influence is behind his views and his attitude is the result of his father’s ‘brainwashing’, that calls weight into question. 

3. The reporter’s ultimate recommendation was against the child’s preference because she put more weight on her assessment of other factors.  But when asked about the implications of not giving expression to the child’s strong preference she acknowledged he would find it difficult to adjust.  She saw the child’s ability to cope with the move to V with his mother as dependent upon his father’s attitude; that is to say, if his father assists him to adjust to the change he could, but if he does not then the child would have great difficulty accepting an order contrary to his wishes. 

4. For my part, the question of weight is not without its complexity.  I say that because this is a boy who has been exposed openly and directly to the dispute about his future arrangements – by both parents - and it can be taken he is completely aware of the options on offer from each of them.  In that sense, he has been exposed to the ‘influence’ of both parents as they have each gone about the task of having their view about his future prevail.  That the child has not seen it his mother’s way and been persuaded to want to move with her to join Mr N’s household does not mean he has not been exposed to her ‘influence’ towards that direction - there is a window into this in the second family report [paragraph 16] which reports the mother saying she understands that the child still wants to remain living on the Central Coast, that the child is ‘afraid of the potential change and is concerned about whether he would make new friends, not wanting to leave his old friends’.  So I am not persuaded to discount the weight of his views by considerations of ‘influence’ per se. 

5. The more important question is how the influence has been exerted, whether in some benign fashion or more in a deliberate campaign aimed at undermining the child’s view of the other parent’s proposal via the many and varied ways children can be manipulated.  There is a suggestion that the father had established a pattern of undermining the mother’s discipline of the child and the reporter was certainly right to be concerned about the impact of that.  It is recognised also that his father may have offered inducements along the way such as letting him do what he wants when he is in his house – the child was able to acknowledge [paragraph 18] that part of his preference for his father’s home was that his mother ‘yells’ at him to do things whereas at his father’s place ‘I get to do whatever I want’.  That can also be taken into account. 

6. Therefore not only has his father been an ‘influence’ in the child’s preference, the influence may not always have been entirely benign.  That said, it is apparent that the child identifies some other sound reasons, as did his mother in discussion with the reporter [see paragraph 16, second report]; namely, the child’s concern about making new friends and not wanting to leave old friends - and to that there can be added the undoubted pleasure the child takes in playing soccer with his current team and his pride in achievements and opportunities available there, his identification of his father’s role with his soccer, by no means surprising for a boy of his age, and his attachment to his father.  Also into the mix of what motivates him, it is entirely possible there may be other ingredients such as his short experience at Mr N’s home or the quality of his relationship with Mr N.  The point is more that there are identifiable and understandable reasons for him expressing the preference he has and it is not so easy to dismiss them as attributable to his father’s influence or even to discount them.  Added to that, the child expresses his position strongly and he has been consistent in it over time in the face of his knowledge of his mother’s contrary proposal.  Also, from the reporter’s assessment of the difficulties he would have in adjusting to living at V if his father does not support it – almost certainly he would not – there is the spectre of some risk to his well being because he cannot or will not accept a decision contrary to his wishes. 

1. So it is not all malign influence; there is a lot to put on the scales.  But when it is all balanced I am satisfied that his preference should attract real rather than token weight, which is not to say it is the only relevant consideration. 

(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

1. The reporter observed the child and his father together and concluded they had an affectionate and warm relationship free of tension.  She also observed him with his mother with whom he was at ease and gently competitive.  She described the child as laughing freely and visibly enjoying his interaction with both parents.  It can be accepted therefore that the child has good relationships with his parents. 

2. There is a submission for the father that the child’s relationship with his mother is not as strong as his relationship with his father and that she has placed significant strain on it by removing him from the Central Coast and by her opposition to his soccer games and practice.  But this was not elaborated and it is difficult to find support for it in any of the evidence.  While there can be no doubting the child’s identification with his father and their common ground through a shared interest in soccer, it is probably more accurate or less controversial to say that the child has a different relationship with each of his parents.

3. As for his relationship with Mr N, the family reports do not flag it as a relationship of significance to the child and in the first report the child spoke of being upset by Mr N telling him to ‘shut up’.  Of course there has not been all that much opportunity for a close relationship to develop because they have not had the experience of the day to day routine of living in the same household other than for a short time. 

4. His relationship with T was the subject of comment by the reporter; namely, they do not seem to have a particularly close relationship.  That is not surprising since T was absent during the time she lived with Mr C for about a year and then when she lived with Mr N before she moved to live in Queensland in the middle of 2008.  No doubt age and gender and lack of shared interests also play their part. 

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
[(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
                      (a)      has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)      to spend time with the child; and

(iii)     to communicate with the child; and
  (b)      has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii)      spending time with the child; and

(iii)     communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. All of the indicators are that the child is progressing satisfactorily and achieving his developmental milestones.  Obviously he is very keen on soccer and has some aptitude with the sport.  More recently he had been selected to try out for elite teams for his age group on the Central Coast and he acknowledged to the reporter being thrilled about being chosen along with other boys in his local team.  His father is very supportive of his interest in soccer – apparently seeing himself as helping the child fulfil his ‘dream’ of playing soccer at an elite level – while his mother, not so enthusiastic, appears to see it as limiting his interests.  Whatever the case, and despite the challenges of exposure to parental conflict over many years, the child can be seen as developing normally.  No doubt that is partly because each of his parents in their own way has properly met their responsibilities as a parent. 

2. As for parental capacity, there are mutual allegations of shortcomings in the standard or style of parenting offered by the other.  The upshot of what is said against the father is that he is something of an isolationist, over-focussed on soccer and unable to provide the fundamentals that underpin the day to day routine of a child’s upbringing such as parties and sleepovers and homework and the like.  It is possible there is something in this but it hangs on an allegation levelled by the mother, who could not be seen as sufficiently objective, and there is nothing to be found elsewhere to support deficits in that area of responsibility.  Plainly soccer receives some emphasis from the father, and it may be the child’s friends are drawn largely from there, but that could hardly support a valid concern.  In her affidavit Ms R describes the child playing at her place with her son and that suggests he has available the normal range of friendship opportunities while in his father’s care.  Added to that, the child himself has described his father as ‘kind’ and ‘nice’, implying there is nothing amiss from his point of view.  So ultimately there is nothing sufficient to support a finding that the father is unable to see properly to the child’s physical needs or to supervise his day to day arrangements to an acceptable standard. 

3. Turning to the mother, it is recognised that the episode of hitting the child with an implement leading to the intervention of the Department in 2006 has not been repeated and, while the child described his mother yelling at him, it is accepted his mother can properly see to his physical needs and supervise his daily routine to an acceptable standard. 

4. As for his emotional needs, the child has been exposed to a high level conflict and negativity for a long time now.  The responsibility for that is not one sided but has to be seen as shared between both parents.  Added to that, Mr N’s contribution has not been helpful and one could only hope the sort of behaviour and language he exhibited at the soccer will not continue. 

5. It hardly needs to be said that one of the child’s needs is for a close and continuing relationship with each of his parents, but there is some doubt here about the willingness and ability of both parents to facilitate that.  This was a matter of some concern to the reporter whose commentary about it was directed to both parents although in the final analysis her opinion favoured the mother. 

6. The reporter expressed some concern at the time of her first report about the ‘alliance’ between the child and his father possibly leading to estrangement from his mother if the child were to be living mostly with his father.  Despite seeing the child as less critical of his mother’s home and her parenting by the time of the second report and assessing the child as more confident, relaxed and mature, the reporter continued to express concern at the prospect of estrangement ‘(g)iven the potency of the relationship between [the child] and his father’ [paragraph 22].  Indeed, she called it a ‘deciding factor’ in not recommending that the child live primarily with his father where he would only spend time with his mother every fortnight. 

7. It is accepted that the child does appear to have ‘aligned’ himself with his father, he seems to identify rather strongly with him, certainly he enjoys being with his father, and they have a strong shared interest.  With all that and his father’s critical attitude towards his mother, if the child is living with his father it is easy enough to appreciate the possibility of him becoming distant from his mother and their relationship being sacrificed bit by bit to other more immediate interests, either by reason of time and distance but also because his father does not sufficiently value the importance of that relationship for the child. 

8. The reporter’s assessment of the situation must be taken into account and there has to be weighed in the balance the risk that the situation she was concerned about might develop.  It is also borne in mind that the father has not been tested in the role of primary parent with the responsibility for ensuring the child’s other important needs, including his relationship with his mother, are given their proper place. 

9. By the same token, it is not too fanciful to contemplate the possibility that the child’s relationship with his father would not be given its proper place if the child is living with his mother.  Given her critical attitude of the father and Mr N’s unhelpful contribution to the family dynamics, there may not be much enthusiasm for supporting and facilitating the child’s relationship with his father when they are living at a distance, with the routine and interests of the new household in place, and the child seeing his father much less than he does now.  Having said that, of course it is recognised that the mother has supported the child’s relationship with his father over the years since the consent orders were made not only by complying with the times stipulated but by permitting extra time.  Even so, her unannounced move away from the Central Coast, whatever advice she may have been given, hardly instils confidence that she maintains a proper appreciation of the father’s role in the child’s life and or the impact on him of spending less time in his father’s company. 

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. If the child is to live with his father, much about his life will remain the same – his school, friends, soccer, and he will continue to live in the general environment where he has been brought up.  The important change will be the less time he will spend with his mother as part of her household.  Very likely the child will miss her, despite his preference to remain on the Central Coast with his father, yet there is no indication he could not make the adjustment required. 

2. If he is to live with his mother, there will be considerably more change for him.  He will attend a new school and be required to make new friends and leave old friends – understandably a source of concern for him.  If he decides to play soccer this will be a new scenario for him and no doubt he will have to carve out his place there.  He will also join Mr N’s household for the longer term and he has had little experience of what that will be like to this point.  These all represent new challenges for him to deal with, but a very significant challenge will be living in circumstances contrary to his expressed preference some distance from his father and not having his father as readily accessible as he is now.  This means he is likely to have difficulty making the adjustment, as the reporter recognised, and that is not without its risks.  His father is unlikely to assist him because there would have to be doubt about whether his father could contain his own disappointment and give the arrangement unconditional support.  If he did not settle, it is difficult to see either parent being able to constructively address the situation. 

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. As noted earlier, as is their right, both parents have made a choice about their living circumstances – the mother to move to Sydney and the father to remain on the Central Coast – and there is no criticism of either for that.  It is accepted that the mother has sound reasons for wanting to join her partner and pursue the circumstances she believes will bring a secure and happy future.  It is also accepted that the father has sound reasons for not wanting the upheaval involved in following her, for whatever period, but to remain where he is and continue with his apparently stable lifestyle where he has a home, friends or associates and interests. 

2. However, it is obvious that the distance between their residences will represent practical difficulties and some expense in seeing that the child spends time regularly with each of his parents.  Wherever he is living, practical difficulties and expense will be a consideration and will need to be confronted as practicably as possible. 

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. This has been sufficiently addressed already. 

(j) any family violence involving the child or a member of the child’s family

(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

1. Mention was made earlier of the allegations of violence during the relationship and the long since expired AVO against the mother and her conviction for assault as well as the mother having hit the child with an implement in 2006.  No further elaboration is required here. 

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It is not being suggested there be a ‘trial’ arrangement or anything of that kind and there are no barriers to making final orders to bring this litigation to an end. 

Parental responsibility

1. As well as seeking an order that the child live with him, the father seeks an order for sole parental responsibility. 

2. There is a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility [s 61DA(1)] which of course is about decision making, not time, although there are time implications if the presumption applies.  The Act permits two grounds to exclude or rebut it: where there are reasonable grounds to believe a parent has engaged in child abuse or family violence or if the evidence establishes equal shared parental responsibility would not be in the best interests of the child. 

3. In this case the first ground can be put aside since findings could not support it.  The second is more problematic.  There is an abundance of evidence demonstrating a long term acrimonious relationship between the parents, the mother’s new partner being abusive and hostile towards the father, the father very likely reciprocating that attitude, disputes about things such as dental appointments and soccer attendance and the state of the child’s clothing, communication difficulties that had to be addressed by a recommendation for a communication book which has not been steeped with success, the mother’s attitude that she is more comfortable with no communication at all, unilateral decisions having been made about change of residence and schooling before court orders restored the position, amongst other things. 

4. This does not give rise to confidence that the parents could make major long term decisions about their son in a co-operative fashion and there is a lot to recommend sole parental responsibility going to the parent with whom the child lives.  Yet I cannot see that as being in his best interests, mostly because there is already a risk of both parents falling short of properly supporting his relationship with his other parent and to give the one with whom he lives the responsibility for making major decision without the involvement of the other seems to me to increase the risk of the other being sidelined or marginalised.  Whatever the difficulties, it will be best for the child to have both his parents involved in decisions and therefore both parents will have to continue to find ways of communicating about such matters as they arise for the remainder of his upbringing. 

5. In other words, I am satisfied there should be an order for equal shared parenting and the father’s application to the contrary dismissed. 

Time

1. That imposes an obligation to consider whether it would be in the best interests of the child to spend equal time with each parent and whether that would be ‘reasonably practicable’ and if it is to make that order [s 65DAA(1)].  The factors which determine what is ‘reasonably practicable’ are the distance between the parents’ residences, their capacity to implement an equal time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child and such other matters the court considers relevant [s65DAA(5)]. 

2. This obligation can be disposed of briefly.  Apart from anything else, the distance between the parents’ proposed residences rules out an equal time arrangement. 

3. There follows an obligation to consider whether it would be in the best interests of the child to spend ‘substantial and significant’ time with each parent and whether that would be ‘reasonably practicable’ [s 65DAA(2)].   ‘Substantial and significant time’ requires that the child spend days that fall on weekends and holidays and those that do not and also allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and also allows the child to be involved in occasions and events of special significance to the parent [s65DAA(3)]. 

4. Again that can be disposed of briefly.  If the definition of ‘substantial and significant’ time is read in anything other than a contrived way, it can also be ruled out as not being reasonably practicable given the distance involved. 

5. It follows that the decision must lie elsewhere having regard to the bounds of what is reasonably practicable in the circumstances of the parents choosing and consistent with the child’s best interest.  While the scales do not tip in a pronounced way, the evidence as a whole leads me to conclude that the child’s best interests will be served by living with his father, to remain living on the Central Coast, and to see his mother as regularly as circumstances permit. 

6. In coming to that result, it is recognised that his mother has been his primary carer to this point, by and large she has fulfilled her parental responsibilities adequately, and it can be accepted she would continue to do so.  Notwithstanding the unilateral decision she made to move the child to Sydney and change his schooling without forewarning, she has complied with the orders for his regular contact with his father and she has permitted time outside the formal orders.  Unlike her, the father has not been tested in the role he will now undertake and he has not yet had the experience of seeing to the child’s many day to day arrangements and routine.  But in the final analysis the greater weight goes to the combined force of the child’s express and consistent preference to live with his father, the likely prospect that he will not settle into his mother’s new household which is not his preference, as a new household it is untried for any extended period of time, his father’s proposal offers the continuity of school, friends, soccer and environment, and I am satisfied that his father is able to care for him adequately. 

1. I noted earlier the reporter’s recommendation tipping the other way.  She identified her main concern as arising from the child’s alignment with his father and her view that there had developed a pattern of the father undermining the child’s relationship with his mother and her consequent concern that if living with his father their alignment would become more solid and this might bring about the child’s estrangement from his mother.  She was also influenced by the fact that the father had not been accustomed to taking the day to day responsibility for the child’s arrangements and the mother would provide a wider range of interests than soccer.  I acknowledge these considerations and agree they carry weight but in my opinion other considerations carry the day. 

Form of orders

1. As for the orders, I see no need for complexity.  The father’s proposed orders are relatively simple and they can be adopted with some changes more suited to the situation.  In particular, the orders envisage that the child will play soccer on Saturday in the soccer season, which is appropriate, and therefore his time with his mother will need to commence after the Saturday game.  Outside the soccer season the father proposes the time commence at 6pm Friday.  However, I can see no reason it cannot be earlier, say after school Friday, if the mother can fit her arrangements around that. 

2. As for the travelling involved, the father proposes that handover occur at the H Railway Station which, I gather, would be roughly half way.  It is difficult to know whether this would be appropriate – changeover venue is one of those issues barely addressed in the running of the case and the topic does not fully crystallize until the outcome is known.  Certainly the travelling involved should be shared, and the father’s proposal may be suitable to both parents.  On the other hand, contingencies such as delay caused by traffic and so on can present difficulties with a designated meeting point such as this and the better option can be for the child to be collected from one home or the other or from school.  The orders as drafted provide for the mother to collect after school or later at the beginning of the times in her care and the father to collect at the end, but the parents will be free to come to some other arrangement if they wish. 

3. As for the school holidays, the father proposes one half of each period alternating between the first and second half which of course would deal with the Christmas period.  However, I have provided for some additional time for the child with his mother during the two mid year holidays, giving him also some time at his father’s home, and the orders are drafted to reflect that. 

4. As for the suite of other matters referred to earlier in recommendations, I have made no provision for any of it.  For one thing, the more directives imposed by court order the more likely it is that disputes will develop about compliance, as they have with interim orders.  In any event, the sorts of things proposed – about sports practice, homework, providing a school bag, what is to go in the school bag, establishing a communication book and prescribing its contents, amongst other things - are basic parenting responsibilities.  This trend of proposing a multitude of court orders designed apparently to shepherd the parenting of children through everyday life should not be encouraged.  It is the function of parents to make fundamental every day decisions about such things; it is not the function of court orders. 

Costs

1. It remains to resolve a dispute about costs which was the subject of very brief submissions at the end of the hearing. 

2. The father filed a contravention application which resulted in a finding by a Judicial Registrar of breach by the mother and an order was made on 23 June for her to pay the father $2,000 costs within 60 days.  It had not been paid at the time of the hearing. 

3. On 30 July the mother filed a review out of time.  It came before Rose J on 11 September 2008 but his Honour declined to hear it and adjourned it to be heard by me on 10 November which was the date allocated for the final hearing of the parties’ parenting dispute.  On 30 September when the matter was before me for mention, the mother withdrew the review application. 

4. By an application filed 17 October 2008 the father now seeks costs of and incidental to her review application in the sum of $5,487.  He has entered into a costs agreement with his solicitors and a fee agreement with counsel who appeared on his behalf in the proceedings.  If his costs were calculated according to the Scale of Costs, his counsel submits, the amount would be $3,400. 

5. Giving a brief outline of the history, it is submitted the father was represented by counsel to defend the review application when it came on for hearing and the costs claim is supported by reference to several sub-sections of s 117(2A); namely, the parties’ respective financial circumstances, the mother’s conduct and that she was ‘wholly unsuccessful’. 

6. In reply, reference is made to the circumstances leading to the mother withdrawing her review application, there is no Bill to show what costs have been incurred or how the amount claimed has been calculated, and the mother’s financial circumstances weigh against a costs order – she is legally aided and she is not in paid work. 

7. Of course it is the primary rule under s 117(1) that each party is to bear his/her own costs in proceedings in this court.  However a costs order can be made if the court is of the opinion there are circumstances to justify it and that is considered by having regard to the various matters set out in ss (2A). 

8. It is apparent that the particular sum of money claimed have no transparent basis although that is no barrier to a costs order of course since the uncertainty could be dealt with by an order for costs to be paid in the sum agreed or failing agreement as assessed.  Putting that to one side, there is merit in the application.  Having been served with the review application, filed out of time, the father had to incur the costs of meeting it and he had to be prepared to run his case when the matter came on for hearing before Rose J.  The adjournment to the first day of the final hearing, however, meant time would have to be diverted from the parenting proceedings to run the contravention review application and so the mother withdrew it.  While seeing the sense of that is to her credit, it came at a stage when the father had long since incurred the costs of addressing her application.  The father no doubt has incurred other costs in the litigation, he is not a big wage earner, and he will have primary responsibility for their son in the future.  These are all weighty considerations. 

9. On the other hand, there is the question of the mother’s financial circumstances and the implications of that for a finding of justifying circumstances.  She is not in paid work at the moment, although she intends to look for work once she moves to V, and she has no demonstrable means of meeting a costs order, at least none that were established on the evidence presented.  She has still not paid the $2,000 she was supposed to have paid by late August.  True it is she will be looking for work when she moves to V and she will have whatever financial assistance flows from her relationship with Mr N, but of course he has other responsibilities and in any event no one has suggested he might be a resource from which she could meet financial obligations arising from these proceedings. 

10. Therefore while I am of the opinion that there is merit in the father’s claim, I am unable to find justifying circumstances in light of the mother’s financial position.  The claim will be dismissed and each will be left to pay his/her own costs. 

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: