Rowe and Helbig (No 2)
[2014] FamCA 942
•23 October 2014
FAMILY COURT OF AUSTRALIA
| ROWE & HELBIG (NO. 2) | [2014] FamCA 942 |
| FAMILY LAW – CHILDREN – Application in a Case – Where the mother seeks a stay of previously made interim parenting orders, which reversed the residence of the two subject children – Discussion of the mother’s Notice of Appeal – Where the mother seeks, in the alternative, fresh orders that the children are returned to either her care or that of the maternal grandparents – Where the mother sought to challenge the previous orders on numerous grounds – Where rupturing the children’s current residence with the father and moving them to live with either the mother or the maternal grandparents would not likely be in their best interests when it is a temporary measure designed to last until only the final hearing in January 2015 – Mother’s application dismissed. FAMILY LAW – CHILDREN – Application in a Case – Where the Independent Children Lawyer seeks an order compelling a Family Consultant to help the father successfully implement the existing interim orders – Where the Independent Children’s Lawyer’s proposal for orders to ensure satisfactory implementation of the existing interim orders is a superior proposal – An order made pursuant to s 68L of the Family Law Act 1975 (Cth). FAMILY LAW – COSTS – Where the father sought costs against the mother – Where the existing interim orders were made on an ex-parte basis – Where this hearing was the vehicle by which the mother was afforded procedural fairness through the opportunity to be heard – Application dismissed. |
| Family Law Act 1975 (Cth) ss 65L, 117 Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| APPLICANT: | Mr Rowe |
| RESPONDENT: | Ms Helbig |
| INTERVENOR: | Secretary, NSW Department of Family & Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 5421 | of | 2010 |
| DATE DELIVERED: | 23 October 2014 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 23 October 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms P Merkin |
| SOLICITOR FOR THE APPLICANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | Family Law Legal |
| COUNSEL FOR THE INTERVENER: | N/A |
| SOLICITOR FOR THE APPLICANT: | Crown Solicitor’s Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | N/A |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Pursuant to s 65L(1)(b) of the Family Law Act, the Director of the Child Dispute Services within the Newcastle Registry of the Family Court of Australia shall, in her discretion, instruct a Family Consultant to give the father such assistance as the Director deems is reasonably required by him to comply with and carry out the Orders made by Justice Cleary on 9 October 2014.
Leave is granted to the father to provide to the Director of Child Dispute Services and the Family Consultant:
(a)A sealed copy of these Orders;
(b)A sealed copy of the Orders made 9 October 2014;
(c)A copy of Justice Cleary’s Reasons for Judgment delivered 9 October 2014; and
(d)A copy of the single expert report dated 29 September 2014.
Otherwise:
(a)The Application in a Case filed by the Independent Children’s Lawyer on 21 October 2014 is dismissed;
(b)The Amended Application in a Case filed by the mother on 22 October 2014 is dismissed;
(c)The Response to an Application in a Case filed by the father in Court on 23 October 2014 is dismissed; and
(d)Any and all outstanding applications for interim orders are dismissed.
NOTATIONS
(A)The proceedings remain listed for final hearing before Justice Cleary on 19 January 2015.
(B)The father’s Amended Application-Contravention filed on 16 April 2014 remains outstanding.
(C)The Notice of Appeal (Appeal no EA 143/2014) filed by the mother on 22 October 2014 remains outstanding.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rowe & Helbig (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: PAC 5421 of 2010
| Mr Rowe |
Applicant
And
| Ms Helbig |
Respondent
And
| Secretary of NSW Department of Family & Community Services |
Intervener
And
| Independent Children’s Lawyer |
EX-TEMPORE
REASONS FOR JUDGMENT
Introduction
These proceedings concern two children who are now aged nine and nearly six years of age respectively.
The parties to the proceedings, who are the biological parents of the children, separated in or about early 2009 when the youngest child was only two months of age and the dispute between them has existed for most of the children’s lives.
Proceedings were first commenced in 2010, but those proceedings were concluded by final consent orders made by the Federal Circuit Court on
21 May 2013. Unfortunately, the parties’ settlement did not last long.
These proceedings were commenced in January 2014, when the father filed an Application-Contravention and the mother filed an Initiating Application only days later to change the existing parenting orders. Since then the litigation has grown like topsy.
In early June 2014, Dr B was consensually appointed as the single expert witness in these proceedings.
In July 2014 there was an interim hearing to determine the parameters of instructions issued to the single expert and, at the same hearing, there was a determination of interim parenting orders.
In August 2014 the mother filed two appeals against both the procedural and interim parenting orders made by Cleary J. Those appeals were heard urgently and dismissed by the Full Court in September 2014.
In fulfilment of the procedural orders, the single expert furnished his report to the Court in either late September or early October 2014. In general terms, the single expert recommended the immediate reversal of the children’s residence by their removal from the mother and their placement with the father.
In reliance upon that report, the Independent Children’s Lawyer made an urgent ex-parte application for fresh interim orders implementing the single expert’s recommendation. Cleary J heard and determined the application on an ex-parte basis, apparently in chambers. Her Honour’s orders were made on 9 October 2014.
The children were collected from school on or about that day, and have since lived with the father and spent no time with the mother, as the orders dictate. Understandably, the mother was aggrieved when she was served with the orders and informed of their effect. Her disenchantment is the reason the proceedings are back before the Court.
Applications and evidence
In essence, two applications now require determination.
The first is the Amended Application in a Case filed by the mother on
22 October 2014, which superseded the original Application in a Case filed by her on 10 October 2014. The mother’s proposal is for the stay of Cleary J’s orders made on 9 October 2014, together with a variety of other procedural and parenting orders, either in lieu or in supplementation of the orders made by Cleary J.
The mother’s application was actively opposed by the father. So much is apparent from the Response to an Application in a Case and his affidavit, both dated 23 October 2014, which he was permitted to file in Court today with the consent of all parties and the Independent Children’s Lawyer. The Independent Children’s Lawyer opposed the mother’s application as well. The intervener neither consented to nor opposed the mother’s application.
I should also say that, in discourse between bench and bar table, counsel for the mother solicited additional instructions and informed the Court that the mother’s pursuit of Orders 1 and 2 within the Amended Application in a Case filed on 22 October 2014 was abandoned; since the mother acknowledged if she was successful in her preliminary request for permission to cross-examine the single expert at this interlocutory hearing, it would have necessitated an adjournment to accommodate the single expert’s availability, which she was unwilling to endure.
The second application pending before the Court is an Application in a Case filed by the Independent Children’s Lawyer on 21 October 2014. The Independent Children’s Lawyer seeks orders under s 65L(1)(b) of the Family Law Act1975 (Cth) (“the Act”) compelling a Family Consultant to help the father successfully implement the orders made by Cleary J on 9 October 2014 and for permission to give the Family Consultant a copy of the orders and a copy of the single expert’s report.
Neither the mother, father, nor intervener indicated to the Court whether they consented to or opposed the Independent Children’s Lawyer’s application. In light of the failure of the father and the intervener to address the issue, I impute their consent. However, in respect of the mother, I imply she opposes the Independent Children’s Lawyer’s application. It is difficult to conceive she would support an application to help implement the orders made on
9 October 2014, which she actively opposes.
The mother relied upon her affidavit filed on 22 October 2014, the affidavit of the maternal grandfather filed on 22 October 2014, the affidavit of Ms M filed today, and the single expert report dated 29 September 2014.
The father relied upon his affidavit filed in Court today.
The Independent Children’s Lawyer relied upon her affidavit filed on
21 October 2014.
The two interlocutory disputes to which I have adverted are determined in the context of the final hearing of these proceedings being listed before Cleary J only a few months hence. On 10 October 2014, her Honour ordered the final hearing would commence on 19 January 2015 and made procedural orders to facilitate that outcome.
Reasons for the Orders made on 9 October 2014
Her Honour published reasons for the orders made on 9 October 2014. Importantly, her Honour acknowledged the sensitivity of the evidence and the urgency of the need to act on the Independent Children’s Lawyer’s application.
In her Honour’s reasons it was noted that:
(a)(at [2]) the single expert report was marked “the Judge’s Eyes alone”, implying its sensitivity required that it be read only by the judge in the first instance;
(b)(at [4]) the application upon which her Honour acted was made by the Independent Children’s Lawyer on an ex-parte basis, supported by an affidavit of the Independent Children’s Lawyer, so her Honour was clearly aware the application was for an immediate change of residence for both children which would entail their removal from the mother and placement with the father without notice to the mother;
(c)(at [5]) the single expert “resolutely recommended an urgent change of residence for the children” and thereafter her Honour extracted parts of the single expert report, which importantly included the observation of the single expert that:
After two family report [sic] it has been unsuccessful in establishing an ongoing relationship with both parents. I believe the only alternative now is for the children to be placed with the father. I recommend that this happen immediately and without notice.
(d)(at [5]), in respect of the issue of sexual abuse which figures prominently in the substantive proceedings, the single expert commented:
I don’t believe the sexual abuse on balance is likely to have occurred, and that this has been more the anxiety of the mother which has been projected onto the children.
(e)(at [8]) the risks to which her Honour had earlier referred were both “profoundly serious and potentially irreparable”, but that the single expert concluded the mother had developed an “illusion of validity” about the sexual abuse of the children; and
(f)(at [6] and [9]) it was indeed a “drastic step” to act on the evidence of the single expert on an ex-parte basis and “not consistent with the usual procedural fairness afforded to parties before orders of such consequence are made.”
Nonetheless, her Honour proceeded in that way, adding a caveat that she might have been unwilling to have done so but for observations made by the single expert, which imputed the apparent warm and loving relationship between the children and the father.
Mother’s Application
At least at the time the mother’s Application was originally filed on 10 October 2014, her application for the stay of her Honour’s orders made on
9 October 2014 was misconceived.
It was misconceived because there is no source of power to stay orders of the Court in the absence of any appeal and it is clear the mother did not file her Notice of Appeal in relation to the subject orders until 22 October 2014.
Nonetheless, although the procedural impediment may have been cured by the subsequent filing of the Notice of Appeal, the mother’s application fails on substantive grounds for several reasons.
The mother seeks orders returning the children to her residential care, or alternatively, the residential care of the maternal grandparents. The evidentiary basis for her application is apparently:
(a)her continuing vehement belief that the children are at an unacceptable risk of harm through their subjection to sexual abuse by the father, which is the undercurrent of the substantive proceedings;
(b)her submission that her Honour made the orders on 9 October 2014 in reliance upon the evidence of the single expert, the correctness of which the mother disputes and which is, as yet, untested; and
(c)her inexpert belief that the change of residence which has already occurred will detrimentally affect the children’s best interests.
It is now evident from the Notice of Appeal filed by the mother that there are additional bases upon which she seeks to challenge her Honour’s orders.
It is desirable to deal with those issues sequentially.
Unacceptable Risk
It will be remembered that final parenting orders were made with the mother’s consent in May 2013. Relevantly, they provided that the children would spend substantial and significant time with the father without supervision. The evidence now adduced by the mother about her concerns of sexual abuse which existed prior to those orders is, logically enough, of little or no value. The mother would not have consented to those orders if she then believed the children were at risk of harm with the father. If she did, and agreed to the orders nonetheless, she cannot now be heard as a voice of reason.
The mother alleged events since May 2013 have heightened her concern and her Honour was furnished with evidence by the single expert about those concerns. I have already referred to her Honour’s reasons (at [5] and [8]). There is no need to repeat them.
The father has always staunchly refuted the allegations. Her Honour was required to consider all of the evidence, not just the mother’s. As was agitated during submissions, in circumstances where her Honour was aware of the parties’ versions, which were polarised and incapable of reconciliation, it is hardly surprising her Honour was prepared at an interlocutory stage to repose greater weight in the evidence of the independent and consensually appointed single expert.
Untested Evidence
True it is the single expert evidence was and is entirely untested. The mother initially sought in her Amended Application in a Case leave to cross-examine the single expert at this interlocutory hearing, but I have already indicated that proposal was abandoned by the mother. Her abandonment was borne of her desire to have these proceedings determined as quickly as possible and not delayed for an indeterminate period until the availability of the single expert was known, particularly in circumstances where she well knew the final hearing is but three months away. It is unnecessary to consider whether or not exceptional circumstances, as required by rule 5.10(2) of the Family Law Rules 2004 (Cth), would have existed to enable the mother’s cross-examination of the single expert had she not abandoned that application.
It is important to understand that all of the evidence placed before her Honour was untested, not just that of the single expert. Her Honour had untested allegations of the mother’s infliction, either deliberately or inadvertently, of emotional harm upon the children, which evidence had to be weighed against the untested evidence of the father’s alleged potential sexual abuse of the children.
The Full Court has repeatedly recognised that the conduct of interim hearings is necessarily an abridged process. As was recognised by the Full Court in Goode & Goode (2006) FLC 93-286 at [68]:
…the Court cannot make findings of fact and it should not be drawn into issues of fact or matters relating to the merits of the substantive cases where findings are not possible.
and at [74] of that judgment:
…because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief.
In Chapa & Chapa [2013] FamCAFC 52 at [9], the Full Court recognised that the Court has finite resources and a limited number of judicial officers, compounded by an ever-increasing work load. If the Court was required to embark on lengthy examinations of interlocutory issues, important though they may be to the parties, it would inevitably lead to an inability to finally determine disputes over parenting orders within a reasonable time frame.
So it is here. Her Honour has already offered the parties a final hearing as soon as January 2015. Acting as her Honour did, on the untested evidence of the single expert when her jurisdiction was regularly invoked by the application of the Independent Children’s Lawyer, was not abnormal.
Detriment to the Children
The mother believes the children will be deleteriously affected by their residence with the father. Of course, her inexpert opinion about that consequence, although genuine, is not probative. The single expert recommended the change of residence and, although his opinion is untested, neither is the mother’s. At least the single expert has the qualifications and experience to lawfully and logically allow weight to be reposed in his opinion.
Somewhat surprisingly, the single expert’s qualifications and experience was challenged at this hearing by the mother, having never before been raised as a contentious issue. Her counsel asserted repeatedly that factual errors had been made by the single expert in the compilation of his report and, even more surprisingly, that the single expert report was inadmissible in evidence. Those contentions are capable of simple retort.
The factual errors contended to exist in the single expert report are not conceded by any of the other parties. Self-evidently it would be impossible for the Court to reach any concluded view about the existence of such errors in the absence of the evidence being tested. That will occur in due course. Today is not the time or a place, as the mother ultimately acknowledged when she withdrew her preliminary application of the single expert to be cross-examined. It may well be that the mother will ably vindicate her submission about the erroneous findings and opinions of the single expert following his cross-examination at final trial.
As to the mother’s contention that the single expert’s report was inadmissible, such submission is rejected because the report was received into evidence at her request. At the outset of the interim hearing, when the mother’s counsel was asked to identify the material which should be read in evidence, one of the documents identified was the single expert report. It was a curious submission to contend the report was inadmissible having already tendered it in evidence. With great respect to counsel, that peculiarity is incurable. Once tendered and admitted, the document and its contents are in evidence for all purposes. The attribution of weight to the contents of that document is another matter altogether, but for reasons I have already given, the issue of what weight ought attend the opinions of the single expert must abide the findings at final hearing.
Notice of Appeal
I turn now to the mother’s Notice of Appeal which was filed only yesterday, and only revealed to the Court and the other parties today.
The filing of that document is significant on two levels. First, it affords the procedural foundation for the mother’s application to stay the orders made by Cleary J, which are now the subject of a valid appeal. Secondly, the contentions within the Notice of Appeal are relevant to the interlocutory application more generally. Discussion of the arguments advanced in the Notice of Appeal is not intended to informally usurp the function of the Full Court. Rather, such arguments are only considered in the present context of whether discretion should be exercised to either grant a stay or make fresh interim parenting orders.
The submissions made on behalf of the parties reveal that there is some divergence of view about the state of the law with respect to the stay of orders which are the subject of appeal. I do not accept the submission made by the mother’s counsel as to the state of the law – at least in the terms it was submitted.
Special circumstances should exist to justify orders being stayed until the hearing of an appeal. Such special circumstances may exist where it is necessary to prevent the appeal from becoming nugatory or there is a risk it will not be possible for a successful appellant to be restored substantially to his/her former position if the judgment against him/her is executed. The Court should also consider the prospects of the appeal and where the balance of convenience lies. Those principles fall from well-established authorities (see Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220 at 222-223; Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 685). Nonetheless, those principles apply equally to judgments delivered in this jurisdiction – including judgments pertaining to parenting orders (see Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]-[15]; Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No.2) [2008] FamCAFC 194 at [38]).
With particular relevance to the stay of parenting orders, the welfare of the child is considered a significant but not the paramount consideration. Residential changes should desirably be limited as far as reasonably practicable. The Court should also consider whether the child’s present circumstances are satisfactory. The bona fides of the appeal, the apparent strength of the appeal and the likely delay before the appeal is heard and determined are also salient.
Dealing with those issues, perhaps in reverse order, there is no evidence at all about the likely delay before the appeal is heard and determined. Given that there is only approximately eight sitting weeks before the Christmas break and the final trial is listed to begin immediately upon conclusion of the Christmas break, it is highly likely the appeal will not be heard and determined before the final hearing. For reasons which I will discuss momentarily, the mother’s proposed appeal does not strike me as being overwhelmingly strong.
The father and Independent Children’s Lawyer both submitted it is important and desirable to limit the frequency of changes of residence for the children. It is a vitally important consideration in the outcome of these proceedings because the orders made on 9 October 2014, which are the subject of challenge by the mother, have already been implemented. The children have now been living with the father for approximately two weeks. If the orders were to be stayed, or alternatively, if fresh orders were to be made returning the children to the care of the mother, or alternatively, the maternal grandparents, there would be another change for the children to endure with the prospect of another change back to the father following the final hearing in January 2015.
Of course, it is always possible the mother at final hearing will be able to persuade the Court that the children’s best interests warrant their continued residence with her, but it would be to ignore reality not to acknowledge that the evidence of the single expert is presently inclined against the mother’s proposal. Therefore, if the children are presently removed from the father’s care, the prospect of the children being returned to live with the father following the hearing in January 2015 is not a flight of fancy; it is a realistic alternative. I conclude that rupturing the children’s current residence with the father and moving them to live with either the mother or the maternal grandparents would not likely be in their best interests when it is a temporary measure designed to last until only the final hearing in January 2015.
Grounds 1 and 2 of the appeal challenge the regularity of the procedure adopted by Cleary J – namely, her Honour’s determination of the Independent Children’s Lawyer’s application in the mother’s absence, thereby depriving her of the opportunity to be heard. The mother complains she was denied procedural fairness by the matter being determined on an ex-parte basis.
It cannot be correct that the Court could never make orders on an ex-parte basis when it is known the absent party remains an active participant in legal proceedings. It is, of course, an unorthodox course, but by no means unique. It will often be necessary to make ex-parte orders when, if the absent party was forewarned and afforded an opportunity to be heard, that party would or might take steps to thwart, frustrate, or impede implementation of the orders. Injunctive orders in the nature of Anton Piller orders are a common example. Another example is those cases in which it is feared a party will take flight with young children and evade detection. Consequently, the mere fact the interim hearing was conducted by Cleary J in the absence of the mother is not of itself determinative of error or the need for amended orders.
Grounds 3 and 4 of the appeal challenge the expertise and experience of the single expert and assert that he was derelict in his duty to the Court. That is an issue upon which I have already touched. Suffice to say, nothing in the contents of the report, nor in the contents of the single expert’s curriculum vitae which was separately tendered as Exhibit M1, bears out the submission of the single expert’s lack of expertise or experience. Moreover, any alleged dereliction of duty could only be made good at a final hearing through his cross-examination.
Ground 5 of the appeal asserts her Honour attributed insufficient weight to the risk of abuse posed by the father to the children and, axiomatically, too much weight to the untested evidence about the alleged risk of emotional harm the mother posed to the children. Arguments about weight are difficult to sustain on appeal at the best of times. It is not a persuasive consideration in these interlocutory proceedings.
I am not persuaded to either stay the orders made by Cleary J or make fresh interim orders disturbing the regime created by those orders. I am persuaded that the Independent Children’s Lawyer’s proposal for supplementary orders to ensure satisfactory implementation of the current interim orders is a superior proposal.
Miscellaneous orders sought by mother
Returning to the mother’s Amended Application in a Case filed on
22 October 2014, she sought a raft of miscellaneous orders which need to be separately addressed.
Orders 6, 7, 8 and 12 were all orders she proposed that bore upon the medical management of the oldest child’s diabetic condition. There is no evidence about the need for such orders. True it is, as was submitted by the mother, orders touching that issue were made by consent between the parties in May 2013, but they were orders of a different ilk from those now propounded by the mother. There is no reasonable basis for an injunction precluding either party from leaving the eldest child, for however long, in the care of anyone who does not have the type of training envisaged by the mother as being necessary.
For his part, the husband deposed in his affidavit to the training he has undertaken in relation to management of that child’s diabetic condition.
Orders 6 and 7 made by Cleary J on 9 October 2014 suspended the former order investing the parties with equal shared parental responsibility for the children and instead vested parental responsibility solely in the father on an interim basis. In fulfilment of that order, the father will make medical decisions for the child. There is no reasonable evidentiary or legal basis to alter that decision by her Honour.
Orders 11, 13 and 15 proposed by the mother address issues related to the children’s scholastic pursuits. The mother, apparently, wants permission to attend school events. Her desire is clearly repugnant to the regime of interaction between the children and the mother imposed by her Honour’s orders of 9 October 2014. Order 8.1 of those orders imposed a temporary embargo on any interaction at all between the children and the mother. Order 8.2 provided that, upon expiration of that embargo, the children should only spend time each fortnight with the mother under supervision at a contact centre. Order 9.2 restrained the mother from attending the children’s school. Clearly, those issues were contemplated by her Honour. No evidence was adduced by the mother, and no submission was made on her behalf, about why those orders should be changed. It was simply her desire.
Order 18 proposed by the mother invites the Court to make an order restraining the children from being enrolled at a different school. It is unnecessary to make that order. Cleary J’s orders made on 9 October 2014 clearly assume that their enrolment will not be changed, despite the father having sole parental responsibility for them on a temporary basis, for otherwise Order 9.2 would not have been made in the terms that it was. The children’s current school was expressly nominated by her Honour in that order.
Order 17 proposed by the mother was to restrain the father from leaving the children in the unsupervised care of a person called Ms G, whom I impute from submissions made during the course of the afternoon is a current friend or partner of the father. Similarly, no evidence was adduced by the mother, nor any submission made on her behalf, as to why such an injunction would be appropriate.
Finally, Orders 4 and 5 address the mother’s desire for certain information to be made available to her. Had that information been in the Court file, I see no reason why copies would not have been provided to her, but I am unable to find on the Court file any of the information meeting the description in her proposed orders. I see no reason why the mother cannot ask for copies from the other parties to the proceedings and, if they exist and are not voluntarily provided, coerce production by the service of a Notice to Produce. There is no need for any order to be made.
For those reasons I make the following orders.
Costs
These reasons relate to the dismissal of proposed Order 2 in the Response to an Application in a Case filed by the father on 23 October 2014.
At the conclusion of the interim hearing, the father pressed his application for that proposed order. In effect, he sought an order that the mother pay his costs of and incidental to this hearing, which determined the mother’s original Application in a Case filed on 10 October 2014 and her Amended Application in a Case filed on 22 October 2014.
Section 117(1) of the Act provides that parties to proceedings in this Court should ordinarily bear his or her own legal costs. Of course, although that is the orthodoxy, s 117(2) of the Act expressly recognises the discretion of the Court to make a costs order, but in the event such discretion is exercised it must be in accordance with the criteria stipulated in s 117(2A) of the Act.
The only two criteria addressed in discussion with the legal representative for the father were the financial circumstances of the mother and the circumstances in which this hearing eventuated.
The father contended the mother’s financial circumstances were satisfactory and would enable her to meet any costs order made against her. It was unnecessary to inquire of the mother whether she agreed because of the strength of the second consideration.
Although the mother’s application was wholly unsuccessful, it was brought in circumstances where she contested orders that were deliberately made on an ex-parte basis without her being afforded an opportunity to be heard about the merit of those orders. The hearing which was conducted today was the vehicle by which she was afforded procedural fairness. She was given a comprehensive opportunity to be heard through her counsel about why the orders made by her Honour on 9 October 2014 were inappropriate and/or should have been changed. I was not persuaded by any of the submissions on her behalf, but that does not impinge in any way upon the importance of the mother being given the opportunity to be heard about the orders made in her absence. Hopefully, the reasons I have already given will explain why the result was as it is.
For those reasons, the application for costs made by the father against the mother is dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 October 2014.
Associate:
Date: 3 November 2014
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