Rupert & Rupert
[2022] FedCFamC2F 1077
Federal Circuit and Family Court of Australia
(DIVISION 2)
Rupert & Rupert [2022] FedCFamC2F 1077
File number(s): WOC 1287 of 2021 Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND Date of judgment: 16 August 2022 Catchwords: FAMILY LAW – PARENTING – Where final consent orders were entered into in 2018 – Where the father sought to reopen proceedings in 2020 pursuant to the principles of
Rice and Asplund (1979) FLC 90-725 – Where the father withdrew his consent in 2020 for the youngest child to be home schooled – Where the applicant mother seeks the discharge of certain consent orders and seeks an alternate order for sole parental responsibility for the children in respect to health and education – Where the youngest child requires home schooling due to significant health issues – Where the father failed to comply with orders for filing of evidence – Where costs orders have been made against the father in both the 2020 and current proceedings – Where the father has failed to comply with costs orders – Application granted – Costs ordered on a party-party basis
Legislation: Family LawAct 1975 (Cth) ss 43, 60CC, 61DA, 117 Cases cited: Barendregt v. Grebliunas [2022] SCC 22
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158
I and I (No 2) (1995) FLC 92-625; [1995] FamCA 80
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Rupert & Rupert [2020] FCCA 1469
Division: Division 2 Family Law Number of paragraphs: 125 Date of hearing: 1 July 2022 Place: Sydney (via videolink) Counsel for the Applicant: Mr Ford Solicitor for the Applicant: Maguire & McInerney Lawyers The Respondent: Litigant in person ORDERS
WOC 1287 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RUPERT
Applicant
AND: MR RUPERT
Respondent
order made by:
DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:
16 august 2022
THE COURT ORDERS THAT:
1.Order 2(a) and Order 2(c) of the Consent Orders made in proceedings SYC7633/2018 and dated 3 December 2018 be discharged.
2.The applicant, Ms Rupert (“the mother”), have sole parental responsibility with respect to the children of the relationship, namely, Y born in 2005 and Y born in 2012 (“the children”) in relation to:
(a)the education of the children, both current and future; and
(b)the health of the children.
3.The respondent, Mr Rupert (“the father”), is to pay the costs ordered:
(a)by Judge M Neville in proceedings WOC229/2020 on 10 July 2020 in the sum of $10,000 (plus interest), payable to the mother within 28 days; and
(b)by Senior Judicial Registrar F on 2 May 2022 in the sum of $11,484.50 (plus interest), payable to the mother within 28 days.
4.The respondent pay the applicant's costs of and incidental to these proceedings, on a party-party basis, within 28 days of those costs being agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rupert & Rupert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
introduction
Z (“the child”) is 10 years old. He has significant health and developmental challenges including severe autism. His mother, Ms Rupert (“the mother”), wishes to continue to home school the child in circumstances where his older brothers have both been home schooled since 2010. The child has been home schooled since he became of school age. The respondent father, Mr Rupert (“the father”), previously agreed in consent orders dated 3 December 2018 (“the consent orders”) for the child to be home schooled. However, during the course of 2020, the father changed his mind.
The mother, who is the child’s primary carer, also has concerns that the father has unilaterally taken the child to a practitioner for psychological therapy without the mother’s consent. This is despite the fact that in a judgment delivered on 5 June 2020, Rupert & Rupert [2020] FCCA 1469, a judge of the Federal Circuit Court of Australia (as it was then known) cautioned against that occurring.
The consent orders provide for equal shared parental responsibility. The mother contends that orders should be made for her to have sole parental responsibility in respect to both health and education for the child. This is due to the difficulty she has had in reaching agreement with the father regarding the child’s ongoing schooling, and also, what she contends is the father’s failure to agree on consistent healthcare arrangements for the child.
For reasons which I set out, I am satisfied that such orders should be made.
I am further satisfied that, in circumstances where the father has failed to comply with previous orders for him to pay costs incurred by the mother in respect to proceedings before the Court, it is also appropriate to make an order for the father to pay those outstanding costs.
In circumstances where the mother has been wholly successful in this litigation and the father has failed to properly engage in the proceedings, I am satisfied that it is appropriate for an order for costs to be made in favour the mother in respect to these proceedings.
Application
By way of the minute of order filed in her case outline dated 29 June 2022, the mother seeks the following orders:
1.That Order 2(a) and Order 2(c) of the Consent Orders dated 3 December 2018 be discharged.
2.That the mother have sole parental responsibility with respect to the children of the relationship namely Y born in 2005 and Z born in 2012 in relation to:
a.The education of the children, both current and future; and
b.The health of the children.
3.That the respondent pay the applicant’s costs of an incidental to these proceedings.
4.That an order be made by the Court enforcing
a.the costs order made by Judge M Neville on 10 July 2020 in the sum of $10,000 (plus interest) payable by the father to the mother; and
b.the costs order made by Senior Judicial Registrar F on 2 May 2022 in the sum of $11,484.50 (plus interest).
Evidence
The evidence of the mother was set out in her affidavit filed on 4 November 2021. The mother also tendered a schedule of outstanding child support payable by the father in respect to the parties’ three children. The schedule was marked as Exhibit “1” during the final hearing.
The father did not file any evidence in respect to the proceedings.
Factual background
Despite her allegations against the father that he had engaged in acts constituting family violence, the mother did not object to being cross-examined by the father, in circumstances where there is no family violence order in place and where the proceedings were conducted remotely via Microsoft Teams.
The father asked several questions of the mother which she answered in a forthright and respectful manner. The answers she provided did not detract from the credibility of her evidence as set out in her affidavit filed 4 November 2021. That evidence is plausible and I accept its veracity. The following summary is based on those parts of the mother’s evidence that are relevant to the orders that I have made in these proceedings.
The mother was born in 1976. The father was born in 1972.
The parties commenced living together on about 1998 and married in 2000. They separated on 12 October 2018.
There are three children of the relationship: X born in 2002, Y born in 2005 and Z born in 2012 (“the children”). As previously noted, these proceedings only concern the youngest child Z, who is now 10 years of age.
At the time of separation, the parties were living in the C Region, Queensland. After the parties separated, the mother returned with the children to resume living in City D, New South Wales.
On 3 December 2018, the parties were able to reach an agreement in respect to ongoing parenting arrangements and entered into consent orders on that date. The orders provided for the children to live with the mother and for the subject child to spend time with the father twice each calendar month, with such time to be spent in New South Wales unless otherwise agreed in writing between the parties. The orders provided for X and Y to nominate the time that they spend with the father.
On 24 February 2019, the mother enquired of the father by way of electronic messages to why he was not answering his phone to receive a phone call that the child had made to him. The father responded with an electronic communication that included the statement "Maybe my phone hates you like I do".
On 16 March 2019, the father sent an electronic communication to the mother which included the following statement:
You are such an ignorant person and think your untouchable and up and beyond the law.. many adjectives words come to mind to describe you.. all I'll say is karma will come to you what goes around comes around. How could a so called mother as you call yourself not give her children the best start in life.. you want them to be like you selfish, lazy and money hungry
If you think this is the end think again this is just the beginning.. I have made a formal complaint about you to NSW child protection services and also sort (sic) legal advise to obtain custody of [Z].. the agreement can be overturned.
(As per the original)
On 13 April 2019, the father sent an electronic communication to the mother which included the following:
I am going to get the consent order overturned I going to take half the money and take [the child] off you I'm working in [City D] now which means I can get consent order over turned because my circumstances have changed that’s how I can do it ask your solicitor. I can’t wait to divorce you and then I am going to marry [Ms E] then she will be [the child] mum
I also want you to change your name back to your maiden name.. you don't have the privilege anymore to carry my last name.
(As per the original)
On 21 April 2019, the father sent an electronic communication to the mother which stated:
Adjective words come to mind to describe you.. but in essence you are not worth the air you breath you're a waste of space on this earth.. By the way I know exactly where you live the number and name of the street your (sic) paying rent between 450 and 500 dollars a week... you think you can hide but you can’t.. wait til the court date.
(As per the original)
On 4 May 2019, the father sent an electronic communication to the mother which read:
There is a problem [the child] lives with you.. so why don't you give [the child] to me and you have the two older ones.. that's fair.. so he can have a decent education and life instead of that home school crap.. or do you want him to become like you sit around and collect welfare payments.. let me guess you wont give up your meal ticket because you mite (sic) have to work.
(As per the original)
On 31 July 2020, the father sent an electronic communication to the mother requesting that the mother agree to the child spending time with him every weekend. The mother declined the father’s request. The father sent a further email to the mother which included the statement that:
you should be ashamed of yourself not letting me have my son because it affects your benefits. Yes [the mother] that's why your saying no because it mite affect benefits your choosing money over your son happiness. You don't send enough warm clothes for him, so we will be buying him clothes leaving them here for him to wear and I will be having it deducted from the child support this also includes the fees I have paid for his sports which he loves.
(As per the original)
On 14 September 2020, the father sent an email to the mother stating “stop your lies and bullshit. You are a selfish bitch that does not care about anyone but herself.”
In December 2020, the parties exchanged emails regarding the child’s glasses and orthotics. The father proposed taking the child to a different podiatrist because he was of the opinion that the inserts in the child’s shoes were inappropriate. The mother informed the father that she was of a different opinion because the inserts had been designed by the child’s podiatrist in consultation with his physiotherapist. In response, the father sent an electronic communication to the mother in which he stated “im [sic] not Centrelink how you scam benefits, so stop your nonsense” and “you are the worst scum there is”.
On 27 February 2020, the father filed an Initiating Application in the Federal Circuit Court of Australia (as it was then known) seeking to set aside the consent orders.
On 15 April 2020, the mother filed a Response seeking that the father’s application be struck out on the basis that it lacks reasonable prospects of success.
On 5 June 2020, Judge M Neville acceded to the mother’s application and ordered that the father’s application be dismissed on the basis that the father had been unable to establish that there had been a material change in circumstances in the period that had elapsed since the consent orders were made.
On 3 July 2020, the father filed a Notice of Appeal with regard to the orders made by Judge M Neville on 5 June 2020.
On 10 July 2020, further orders were made by Judge M Neville requiring the father to pay the costs incurred by the mother in responding to his application filed on 27 February 2020 in the sum of $10,000. This payment remains outstanding.
On 29 September 2020, the father withdrew his Notice of Appeal and was ordered to pay the mother the sum of $2,000 within seven days. The father has complied with this order.
On 4 November 2021, the mother filed an Application for Final Orders seeking that the consent orders for equal shared parental responsibility in respect to the children’s education and health be discharged and that the mother have sole parental responsibility in relation to education and health for the parties’ children, Y and Z. On an interim basis, in accordance with her Application in a Proceeding filed 4 November 2021, the mother sought for the child to be authorised to enrol in home schooling from 6 November 2021 until 5 November 2022.
On 31 January 2022, the mother filed an Amended Application for Final Orders which sought interim orders for the mother to have sole parental responsibility in respect to education and health in addition to authorisation for the child to be enrolled in home schooling.
The interim application was listed before Senior Judicial Registrar F on 1 March 2022 for interim defended hearing. Following the hearing, interim orders were made on 4 March 2022 for the mother to have sole parental responsibility in relation to education and health for both Y and Z. The mother was also authorised to enrol the child in home schooling without a requirement for the consent of the father. All interim applications were therefore marked as finalised, with the parties being ordered to file and serve submissions in relation to costs of the interim application.
On 13 April 2022, Judicial Registrar Q referred the matter for a compliance and readiness hearing before a judge and ordered the parties to file an undertaking as to disclosure and a certificate of readiness. A notation was made that the father was reminded of his obligations to comply with Court orders, including directions for the filing of documents within the given time frames.
On 2 May 2022, Senior Judicial Registrar F ordered the father to pay the mother’s costs of and incidental to the Application in a Proceeding filed 4 November 2021, fixed in the sum of $11,484.50, within 28 days. This payment remains outstanding.
On 26 May 2022, my chambers received correspondence from the parties prior to a compliance and readiness hearing listed on 27 May 2022 seeking, by consent, an adjournment of the compliance and readiness hearing. I ordered, in chambers, for the father to file and serve his Response to the mother’s Initiating Application no later than 8 June 2022 and for the required undertaking as to disclosure and certificate of readiness to be filed by no later than 10 June 2022. By consent, the parties agreed that if the respondent failed to comply with the orders then the matter would proceed on an undefended basis.
The father did not file any material in accordance with the orders made in chambers on 26 May 2022. I heard the matter for the adjourned compliance and readiness hearing on 17 June 2022. I set down the matter before me for final hearing on 1 July 2022 and allocated a timetable for the father to file an affidavit in reply to the mother’s affidavit filed 4 November 2021 and the parties’ respective case outlines. As noted above, the father failed to file any materials in support of his application as directed by the Court.
The child’s circumstances
The child has been diagnosed with Autism Spectrum Disorder, a medical condition and faecal overload with chronic constipation.
In May 2016, the child was diagnosed with Autism Spectrum Disorder Level 2.
The mother has enrolled the child in therapeutic programs including equine therapy and the engagement of an exercise physiologist.
The child wears orthotics for his shoes in circumstances where his left leg is turning out and one leg is longer than the other. The child is being treated by a physiotherapist and podiatrist in respect to those issues.
The child also has issues with his sight and it is necessary for him to wear glasses in respect of both long-distance and short vision observation.
Home schooling
The mother was approved to undertake home schooling by the relevant Queensland Home Education Unit. It was not an issue in the proceedings that the mother has also been approved by the relevant New South Wales authority, NSW Education Standards Authority (“NESA”). That approval was obtained by the mother in March 2022 after she succeeded in obtaining an interim order permitting her to make application to NESA following the above mentioned contested interim defended hearing. That approval is for the period until November 2022.
The child’s older brother Y continues to be home schooled. It does not appear that the father has any issue with that occurring.
The education plan implemented by the mother for the child includes speech therapy, physiotherapy, equine therapy, exercise physiologists, home school groups, play dates and tutoring.
The consent orders signed by the parties on 15 November 2018 confirm that the father was aware that the children were being home schooled and agreed for the children to continue to be home schooled. This is confirmed in Pt 13A of the Application for Consent Orders that outlines:
the mother is currently unemployed, however when she did work, was able to work casually in order to continue her primary care of the children. It is anticipated that this will continue. This will also allow the children to continue to be home schooled by the Applicant, as has been the case throughout the relationship.
Further, Pt 24 of the Application for Consent Orders confirmed that “the child is on the Autism Spectrum and has been diagnosed with a medical condition. The child is in Kindergarten and is home-schooled (registered) by the Applicant Mother. He is going well.”
Father’s unilateral therapy treatment for the child
In August 2020, the father unilaterally engaged a psychologist, Ms L, to complete a psychological assessment of the child without the knowledge or consent of the mother. The mother emphasised in her affidavit at paragraph 74 that this was despite the fact that Judge M Neville noted that “the process of psychological assessment can be invasive and intrusive for a child.”
In September 2020, the father’s solicitors sent correspondence to the mother’s solicitors advising that the father did not consider the child’s home schooling was sufficient to meet his educational needs and threatened to file an application with the Court if strategies were not put in place to prevent the “further deterioration of [the child’s] academic development.”
On 24 November 2020, the mother received an email from the father stating “I hope you enjoy your surprise I do.”
On 27 November 2020, the mother was informed by NESA that the father had advised them he does not consent to home schooling registration for the child. NESA advised the mother that:
As [the child] is the subject of a court order providing for equal shared parental responsibility and [the father] objects to [the child] being registered for home schooling, NESA is commencing a process to cancel [the child’s] home schooling registration.
This letter provides formal notice that NESA recommends that [the child’s] current home schooling registration be cancelled.
It can reasonably be inferred that this communication was the anticipated “surprise” as referred to by the father.
On 3 December 2020, the father sent the mother an email stating:
I want [the child] to go to school at [Suburb M] next year as we are moving out there. And yes [the mother] [the child] is going to school next year as your licence is cancelled and you will not be able to get it back.
(As per the original)
The father sent the mother a further email on 4 December 2020 stating:
… you are not permitted to teach [the child] anymore, what part of that don’t you understand. Your licence has been cancelled. You will also have to put my name on [the child’s] enrolment to school
Following receipt of that email, the mother made a request for an internal review of the decision by NESA.
In a report dated 14 December 2020, the child’s treating doctor Dr J stated that the child has an inability to attend consecutive days at mainstream school.
In a report dated 11 December 2020, the child’s physiotherapist Ms N stated that the child has been attending since 25 October 2019 for generalised joint pain, strengthening and motor control. The physiotherapist further stated that the child has not met the goal for independent sitting at a desk for home schooling and “requires repeated repositioning to prevent subsequent joint pain.”
In a report dated 9 December 2020, the child’s speech pathologist, Ms O stated that the child’s medical and developmental issues made school attendance and sitting in classroom seating an issue for the child.
Following completion of the internal review, on 8 February 2021, NESA advised the mother that they had not cancelled the child’s school registration and it would remain in place until 5 November 2021.
At paragraph 83 of her affidavit, the mother attests that the father sent her an email on 14 February 2021 stating:
as of 6 November [the child] is required to attend school. The education department has informed me that when your licnence is due for renewal, if I don't agree to it your licence application will be refused as they will take my claim into conisderation . Just to remind you again the licence expires on 5 November.
(As per the original)
On 12 June 2021, the father sent the mother an email accusing the mother of treating the child as her “cash cow” and that he couldn’t “wait until November so that [the child] can go to school.”
On 28 July 2021, the mother instructed her solicitor to send correspondence to the father confirming her intention to renew the child’s registration with NESA. The mother’s solicitor also sent supporting documentation from the child’s medical providers that had previously been provided to the father.
On 11 October 2021, the father sent the mother’s solicitor an email stating:
I am willing to participate in a mediation session with [the mother] to discuss [the child’s] schooling etc, however please be aware that my stance to home schooling will not change as I believe [the child] is way behind in school and should attend mainstream school.
On 26 October 2021, the mother’s solicitor sent correspondence to the father requesting that he provide his consent for the child to remain registered with NESA for the remainder of 2021. In the correspondence, the solicitor noted that father had provided advice that he was not able to participate in a mediation until 6 December 2021 and the child’s registration was due to expire on 5 November 2021.
On 26 October 2021, the father sent the mother’s solicitor an email stating that he would “not give [his] consent for [the child] to be home schooled in any way, shape or form” including “for the rest of the 2021 year”, further stating that:
Commencing the week of the 8th November [the child] must attend mainstream school, I will be having [the child] on the weekend of the 5th November and I must have schooling essentials and name of school for me to be able to take him to school on Monday the 8th November.
The father also sent the mother an email on 29 October 2021 stating:
make sure you send [the child’s] school uniform on Friday, as I will drop [the child] off at school on the Monday morning. You have util [sic] Friday next week to arrange this.
On 3 November 2021, the father sent the mother an email stating:
This is the last opportunity that I will be giving you, I am not mucking around with you, you need to take this seriously. What school is [the child] attending on Monday?? As I will be taking him there. Make sure he has all his school essentials and school clothes. In relation to his other clothes, if I am required to buy them, that's not a problem but I will be letting child support know and sending them the receipts and having the amount deducted which I can do because I have spoken to them, this is due to you calling them to find out my current address.
Despite his initial objections, on 11 November 2021 the father agreed to interim consent orders that included:
That pending further order, [the child] born [in] 2012 be enrolled and registered with the New South Wales Education Standards Authority (NESA) for home schooling for the period 6 November 2021 until 5 November 2022.
Relevant legal principles
Presumption of equal shared parental responsibility
Section 61DA of the Family LawAct 1975 (Cth) (“the Act”) relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
…
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
As evidenced by the content of the text messages and emails to which I have referred, the father has engaged in coercive and controlling conduct in his communication with the mother. This constitutes family violence as defined in s 4AB of the Act.
In those circumstances, s 61DA(2)(b) applies and it negates the presumption of equal shared parental responsibility.
Nonetheless, I must determine whether an order for equal shared parental responsibility is in the child’s best interests, having regard to the matters set out in s 60CC and other relevant provisions of the Act. I will shortly set out those relevant s 60CC considerations.
The other relevant section of the Act is s 43, which relevantly provides that the Court must, in the exercise of its jurisdiction, have regard to a number of factors including:
·the need to protect the rights of children and to promote their welfare: and
·the need to ensure protection from family violence.
To similar effect, s 60C(1)(b) provides:
(1)In considering which order to make, the court must, to the extent that it is possible to do so with the child’s best interests being the paramount consideration, ensure that the order:
…
(b) does not expose a person to an unacceptable risk of family violence.
The history of the manner in which the father has communicated with the mother, as evidenced in the electronic messages to which I have referred, satisfies me that the father is likely to continue to engage in ongoing communication of that nature if the parties are to share parental responsibility. The probability that he will continue to engage in such communication with the mother exposes the mother to an unacceptable risk of family violence.
This finding, together with the fact that I am satisfied that the orders proposed by the mother are in the child’s best interests, underpins my decision to make order in those terms.
The child’s best interests
In circumstances where the mother’s application is for orders that relate to issues of parental responsibility in respect to both education and health, authorities that deal with the issue of what school a child should attend are of little assistance.
It is necessary to undertake a broader consideration than has occurred in those authorities and, to do so, I have considered each of the matters set out in s 60CC of the Act to the extent that the relevant considerations have influenced the decision that I have made in these proceedings. I explain the relevance of each immediately below.
Primary considerations
Meaningful relationship
The orders proposed by the mother will not impact upon previous orders that have been made for the child to spend time with the father and will not, in my view, adversely impact upon the child’s ability to have a meaningful relationship with his father.
Risk
It has not been contended that the child is at direct risk of being exposed to physical harm in the care of his father save to the extent that, in the absence of it being challenged, I accept the mother’s evidence that the father has not acted in accordance with advice in properly administering medication prescribed by the child’s treating doctors. This is detrimental to the welfare of the child.
I am satisfied that the father’s conduct in unilaterally taking the child to a psychologist for therapy in circumstances where the child is already engaging in extensive treatment to address his challenges, and in circumstances where a judge of the Federal Circuit Court in June 2020 cautioned against that occurring, also presents a risk of the child experiencing over servicing of his medical and therapeutic needs.
I further note that the father has proposed to unilaterally take the child to a mainstream school in circumstances where the child has not attended such a school at any stage of his life. In the context of the significant challenges that the child faces, such conduct on the part of the father would likely be extremely distressing for the child and has the potential to cause the child emotional and psychological harm.
The risks that I have identified are not such that I have been asked to vary the spend time orders that are currently applicable. Nevertheless, I am satisfied that giving the mother sole parental responsibility in respect to both education and health will mitigate against those risks occurring.
Additional considerations
Views expressed by the child
In terms of any views expressed by the child, I note that the mother has stated that the child would be extremely distressed in being separated from her and his brothers in order to attend mainstream school. This is in circumstances where he has no familiarity with that environment and in circumstances where he would have significant physical and psychological challenges in that environment.
The father, from the virtual bar table, advised the Court that the child wished to attend mainstream school. However, I give little weight to that evidence because it is unsworn; it is expressed as a conclusion rather than direct evidence of the child’s statement and it is counter intuitive in circumstances where the child has had no experience of mainstream school.
Significant relationships
In terms of significant relationships, the mother has been the child’s primary carer since birth and I accept that the child has a close relationship with her. I am also satisfied that he has a close relationship with his brothers who have also been home schooled.
The mother has not questioned that the child has a close relationship with his father. The mother is not seeking orders that would impact upon the time that the child spends with the father.
Decision-making, spending time and communicating with the child
In terms of the extent to which each parent has taken the opportunity to participate in decision-making, spending time with the child and communicating with the child, I am satisfied that the mother has spent a considerable amount of time with the child, including through home schooling the child.
I am satisfied that the child has been spending time with the father in accordance with orders that are currently in place, although it was common ground, in the proceedings, that the father has returned to live in Queensland during the last three months. The child’s time spent with the father has not impacted upon the orders that I make in these proceedings.
Clearly, the father has sought to participate in decisions about major long-term issues in relation to the child. Regrettably, however, that has given rise to conflict and has resulted in the father sending unacceptable communications to the mother which, as I have explained, constitutes coercive and controlling conduct.
Responsibilities to maintain the child
In terms of each parent fulfilling their responsibilities to maintain the child, the evidence presented in these proceedings indicates that there has been some tension between the parties regarding the extent of child support payable by the father to the mother in respect to the care of the child. The father accepted that he owes in excess of $17,600 in respect to unpaid child support for all three children. The father contends that this has been due to periods of unemployment that he experienced when he moved from Queensland to New South Wales.
While regrettable, the amount of outstanding child support has not influenced the decision that I have made in this matter. It is most regrettable however that the father has placed the mother in a situation where she has no alternative other than to litigate in respect to the issues which are the subject of these proceedings in circumstances where he has not satisfied his child support obligations.
Practical difficulty
Section 60CC(3)(e) refers to the practical difficulty and expense of a child spending time with and communicating with a parent, and the ability for the child to maintain contact with a parent. The orders sought by the mother in these proceedings will not impact upon those matters.
Parenting capacity
In terms of the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, I am satisfied that the mother has demonstrated that capacity. In that respect, I note that she has previously been certified by relevant education authorities as being capable to home school her children.
The mother has not questioned the capacity of the father to parent the child, save to the extent that I am satisfied that the father’s failure to properly medicate the child in accordance with professional advice reflects adversely upon his parenting capacity. I am further satisfied that the father’s proposal to unilaterally take the child to a mainstream school in circumstances where the child has significant challenges and where the child has never attended such a school shows a lack of empathy for the child’s emotional needs.
The child’s youth and other characteristics
The child’s youth and other characteristics including, most relevantly, the developmental challenges that he faces is a highly relevant consideration in these proceedings. Having regard to the reports from the child’s doctors and therapists that have been attached to the mother’s affidavit, I am satisfied that the child would experience significant challenges, including at a minimum physical discomfort but, in all likelihood, emotional distress in the event that the mother is no longer able to home school the child.
The mother has annexed to her affidavit:
(a)Report from Ms O Speech Pathology dated 31 March 2021.
(b)Report from the P Physio dated March 2021
(c)Report from R Clinic dated March 2021.
(d)Report from S Equine Services dated 26 April 2021.
I have had regard to the content of those reports and I am satisfied that the mother has accurately summarised the primary findings at paragraph 86 of her affidavit as follows:
a) [The child] is chronically affected in his ability to function in all of his activities of daily living which requires increased support and surveillance by [the mother].
b) [The child] is only able to maintain a corrected seated posture momentarily before he is seen to "hang on his joints" in all postures, including slumping into posterior pelvic tilt (sitting on his tail bone) due to reduced muscular endurance and core stability.
c) It is paramount that [the child] receives one on one and close supervision for both his self care and activities of daily living and for social/emotional and recreational activities to enable safe participation in the community.
d) It is painful and difficult for [the child] to remain seated at the table and can only assume a seated positon for 6 to 10 minutes.
e) If something unexpected occurs or if [the child] is exposed to an environment that is very noisy, [the child] can shut down and disengage.
f) [The child] can become easily “overwhelmed”, fidgets and withdraws regularly. These are ways in which [the child] copes with the sensory environment he finds himself in.
I am satisfied that the child receives assistance to address these challenges in circumstances where he is home schooled and that it is unlikely he would receive a similar level of assistance at a mainstream school.
Attitude to the child and parental responsibilities
In terms of the attitude towards the child and the responsibilities of parenthood, I am satisfied that the mother has acted entirely responsibly in the particular circumstances of this case, having regard to the challenges faced by the child to which I have referred, in requesting the father to agree to the child continuing to be home schooled.
Conversely, I do not have that same view in respect to the father’s conduct in the circumstances of this case, including where the parties’ other children have been home schooled and where, in December 2018, the father agreed to consent orders for the child to continue to be home schooled.
For reasons which I have explained, it is my view that the father’s proposal to unilaterally take the child to mainstream school in circumstances where he has never attended a day of school in his life and where he is confronted by the significant challenges to which I have referred, would be grossly irresponsible.
Further, I have earlier set out my finding that the nature of communication engaged in by the father towards the mother has been coercive and controlling and constitutes family violence.
Minimising the prospect of future litigation
The parties have been engaged in protracted proceedings for a number of years.
The mother attests to being extremely distressed by those proceedings. As noted by the Supreme Court of Canada in Barendregt v. Grebliunas [2022] SCC 22 at [68], protracted litigation places both an emotional and financial strain on litigants, with it often being the case that women shoulder a disproportionately larger impact.
An aggravating factor in this case has been the fact that the mother has also incurred extensive legal fees which, despite benefiting from costs orders in her favour, remain outstanding.
I am satisfied that failing to make the orders sought by the mother would perpetuate the situation of ongoing conflict between the parties because there would be ongoing protracted argument as to how parental responsibility should be exercised in respect to health and educational issues for the child.
Conversely, making the orders sought by the mother to give the mother sole parental responsibility in respect to the child’s education and health is likely to minimise that ongoing disputation and, consequently, reduce the likelihood of ongoing litigation.
Outstanding legal Costs
I accept the evidence of the mother that she has received the benefit of costs orders in her favour in previous proceedings and, despite demands for those costs to be paid, they remain outstanding.
It is unacceptable that this remains the case.
Those costs should be paid by the father and I will make orders as sought by the mother for that to occur within 28 days.
Disposition
For the reasons which I have set out, I am satisfied that orders should be made in terms of those sought by the mother. By way of summary, this is because those orders will minimise the extent to which the mother will be exposed to coercive and controlling behaviour on the part of the father and because I am satisfied that the orders are in the child’s best interests.
I am also satisfied that orders should be made confirming the father’s obligation to pay outstanding monies in respect to costs incurred by the mother.
Costs of these proceedings
The issue of costs in respect to proceedings under the Act is to be determined in accordance with s 117. That section relevantly provides that:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
…
The general rule, as set out in s 117(1) of the Act, is that each party to the proceedings shall bear his or her own costs. This is, however, subject to s 117(2) of the Act which provides that, if the Court is satisfied that there are circumstances justifying it, the Court may make an order as to costs as it considers just. Beyond the “essential preliminary” consideration of those matters set out in s 117(2A) of the Act, there is no “additional or special onus” on the applicant for the Court to make an order for costs: Penfold v Penfold (1980) 144 CLR 311 at [13].
The Full Court has held, in I and I (No 2) (1995) FLC 92-625 at 82,277, that the relevant matters in s 117(2A) of the Act “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.
No one factor under s 117(2A) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the trial judge’s discretion: Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at [24] per Strickland J.
In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123, the Full Court confirmed that it was not necessary for each of the factors listed in s 117(2A) to be met in order for the Court to make a costs order. The Full Court per Kay, Warnick and Boland JJ stated, when referring to s 117(2A), at [41]:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
In this matter, the father has been wholly unsuccessful in respect to his opposition to the orders sought by the mother in terms of s 117(2A)(e).
Also, in terms of s 117(2A)(c), it is of relevance is that the mother has been required to seek final orders despite the father failing to properly engage in the proceedings by, in particular, the non-filing of evidence and a case outline responding to the case presented by the mother.
The mother has articulated the emotional and financial cost of the litigation. The financial impact of the litigation has been aggravated by the fact that the father has failed to pay costs previously awarded to the mother.
Having regard to those matters, I am satisfied that the father should be required to pay the costs incurred by the mother in respect to these proceedings.
The mother has sought costs on a lump sum basis. While such an order is possible, the mother’s solicitors have not particularised party-party costs that have been incurred by the mother in respect to these proceedings. I am therefore not in a position to determine whether the costs sought are logical, fair and reasonable.
Accordingly, the order for costs will be that they are to be assessed on a party-party basis and subsequently paid by the father within 28 days of being agreed or assessed.
Orders
Accordingly, for all of the reasons above, I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge McClelland. Associate:
Dated: 16 August 2022
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