Salvi & Mandava
[2022] FedCFamC2F 1771
Federal Circuit and Family Court of Australia
(DIVISION 2)
Salvi & Mandava [2022] FedCFamC2F 1771
File number(s): MLC 10012 of 2012 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 June 2022 Catchwords: FAMILY LAW – costs orders – where one party unilaterally relocates a child interstate without knowledge of the other parent – urgent relocation orders made – one party in financial difficulties – one party recently made unemployed – one party in arrears of child support – section 117 considerations. Legislation: Family Law Act 1975 (Cth) ss 60I, 69ZL, 117
Federal Circuit and Family Court of Australia Family Law Rules2021 (Cth)
Federal Circuit Court Rules 2001 (Cth) r 16.05
Cases: Mandava & Salvi [2021] FCCA 1730 Division: Division 2 Family Law Number of paragraphs: 37 Date of hearing: 15 June 2022 Place: Melbourne The Applicant: On his own behalf Solicitor for the Respondent: Mr Lennon of Lennon Lawyers Counsel for the Independent Children's Lawyer: Ms Hutchings Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 10012 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SALVI
Applicant
AND: MS MANDAVA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 NOVEMBER 2022
THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting orders be discharged.
2.The Mother have sole parental responsibility for the child X born in 2008 (“X”).
3.X live with the Mother.
Spend Time
4.X spend time and communicate with the Father as follows:
(a)During the long summer holidays in Queensland by agreement and failing agreement, from the Saturday after school ends until 22 January in each year;
(b)During school term holidays, in Queensland at an agreed time in writing and failing agreement, for half the school holidays commencing on the Saturday after the last day of school term until the midpoint of the holidays in even numbered years, and from the midpoint of the holidays until the Saturday prior to the recommencement of the school term in odd numbered years;
(c)By telephone or electronic means in accordance with X’s wishes;
(d)By telephone or electronic means with the Father to initiate the contact with X, no more than three times per week (and in default of agreement, Monday, Thursday and Saturday at 7.00pm).
(e)As otherwise agreed in writing between the parties.
5.The Mother shall communicate with X by telephone or electronic means whilst she is spending time with the Father during the long summer holidays pursuant to paragraph 4(a) herein as follows:
(a)No more than twice a week (and by default, each Monday and Thursday);
(b)In accordance with X’s wishes.
6.The Father shall be responsible for arranging and paying the cost of X’s flight from Tullamarine Airport to Brisbane Airport/ Region B Airport (at the Father’s election) together with any necessary permit and/or quarantine requirements to enable X to enter Queensland and for arranging and paying the cost of X’s flight from Brisbane Airport/ Region B Airport (at the Father’s election) to Tullamarine Airport.
7.Each parent shall ensure that X attends for any COVID-19 test in time for her to receive the result and apply for any permit prior to any travel interstate as required by the government of the state she is travelling to (and for completeness, this is required to be done by the Mother prior to X travelling to Queensland, and by the Father prior to X travelling to Victoria).
8.Each parent shall ensure that X attends at the airport/s for her flights on time and at their own cost and in the event X misses her flight, that parent shall do all acts and things at their own cost for X to fly on the next available flight and the Mother ensure the delivery and collection of the child to and from Tullamarine Airport for this purpose.
9.The Father shall provide the Mother with details of X’s proposed return flights by email at least 28 days prior to such travel and within 3 days thereafter the Mother shall provide the Father with confirmation by email that such arrangements are acceptable and the Father shall immediately finalise the booking of such flights and provide email confirmation to the Mother.
Illness/Injury
10.Each parent shall advise the other as soon as practicable of any serious illness/injury to X and provide the contact details of any treating medical practitioner, and the other parent be at liberty and is authorised to make enquiries with any treating medical practitioner.
Education
11.Each parent is at liberty to obtain from X’s school any information usually disseminated to parents (at their own expense) and can provide a copy of these orders to the school as authorisation to do so.
12.Each parent is at liberty to attend school events parents are ordinarily invited to attend.
Communication between the parents
13.Except in an emergency, the parents shall communicate by text message or email and such messaging at all times is to be child focussed, respectful and civil.
14.Each parent shall keep the other updated as to any change of address, mobile or email address within 24 hours of such an occurrence and if the parents are not already aware of such details, they are to be provided to the other within 48 hours of the making of these orders.
Supervised Drug Screen
15.The Mother may, at her election, request no later than 7 days prior to the commencement of time, that the Father undergo a supervised drug screen with the results to be available within 48 hours of the commencement of any time spent with X (provided that such request by the Mother occur on no more than two occasions in any calendar year), save and except in the event that the Father either:
(a)Produces a positive drug screen result;
(b)Fails to comply with the Mother’s request for a drug screen in accordance with this Order;
in which case the Mother may suspend the time that X spends with the Father until such time as the Father, at his election, produces two consecutive negative drug screen results to the Mother and/or complies with the Mother’s request to undergo a supervised drug screen (in the event he has failed or refused to do so).
Restraints
16.The parents, and their servants/agents be restrained by injunction from:
(a)Denigrating the other or their family members to or in the hearing or presence of X or allowing anyone else to do so;
(b)Exposing X to parental conflict;
(c)Discussing X attending any school in Queensland; and
(d)Allowing X to view any documents filed in these proceedings, or discussing any documents filed or that form part of these proceedings with X or within her hearing or presence, or allowing any one else to do so.
17.Without admitting the necessity for same, for 24 hours immediately prior to the commencement of any time spent with X and during all such time spent, the Father be restrained by injunction from digesting, consuming, using or otherwise being under the influence of, alcohol or any legal or illegal drug or substance, save and except for:
(a)any legal medication prescribed for the Father by a registered medical practitioner, and taken and used by the Father strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance and taken or used by the Father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
Travel
18.In the event either parent intends to travel overseas with X, then that parent provide the other at least 28 days’ notice in writing (including itinerary and other relevant details) of the overseas travel proposal and if the parents’ consent in writing, then that parent is permitted to travel overseas with X as agreed.
Father’s overseas travel
19.The Mother and the Father, within 14 days, each make written application or submissions to the Child Support Agency to the effect that the existing prohibition or restraint on the Father from travelling overseas be removed and/or lifted so as to permit the Father to travel overseas.
General
20.The Independent Children’s Lawyer is discharged from the conclusion of the hearing this day.
21.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.The matter was listed for a three-day Final Hearing commence 12 September 202 and such hearing is vacated.
B.The parties agree that at the time of the making of these orders, the Father had not complied with paragraph 14 of the orders of 14 December 2021.
C.The parties agree the purpose of the intended removal of the existing prohibition or restraint on the Father travelling overseas is to assist him earn an income.
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 a pseudonym Salvi & Mandava has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
These are reasons in regard to the costs application of the applicant mother (‘the Mother’). These reasons should be read together with the reasons that were delivered on 8 July 2021 in the proceedings, anonymised as Mandava & Salvi [2021] FCCA 1730.
In regard to this application, I must apply section 117 of the Act, which reads:
Section 117 Costs
(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.
…
In this matter, the Mother was born in 1986, is 35 years old, and works as a public servant. The respondent father (‘the Father’) was born in 1982, and until about a month ago, has been employed in sales where, at one point his income was approximately $84,000 per annum. The parties have one child born in 2008 (‘the child’), who is now 14 years old.
The parties married in 2008. They separated in 2011 and divorced in 2013. There have been many court events and proceedings between the parties, but the second last wave of proceedings ceased on 20 March 2019 when Judge Small made final orders on an undefended basis. Those orders were as below:
THE COURT ORDERS THAT:
1.The Applicant has leave to proceed to Final Orders on an undefended basis this day.
2.There be final parenting Orders, in terms of the Minute of Orders proposed by the Applicant and dated 20 March 2019 (“the Minute”).
3.The lawyers for the Applicant Mother engross the Minute and provide a clean, duly certified copy of the same in a Microsoft Word format (“the Copy”) to the Registry of this Court within seven (7) days.
4.All extant applications be otherwise dismissed and the proceedings be removed from the list of pending cases.
IT IS DIRECTED THAT:
5. The Minute be placed upon the Court file and marked Exhibit “A”.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
B.The Respondent Father has liberty to apply to set aside these orders pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 provided that:
a.He makes such an application within 28 days of service upon him of these orders; and
b. He files an affidavit setting out the basis of the application and explaining his non attendance at Court today.
Since those orders were made, there has been rare occasions when the Father has been able to exercise or spend any time with the child. The Mother has a number of concerns about the child’s environment when with the Father.
The last intervention order that the Mother had was taken out on 18 February 2019 and expired on 21 April 2021. That intervention order prevented the Father from committing family violence, approaching the Mother and remaining within 200 metres of any place where she lived, worked or attend school. However, it had the paragraph 9 usual carve-out of the Victorian Magistrates Court that would permit the Father to do anything permitted by a Family Court order, or to negotiate changes to child arrangements by letter, email or text, or to communicate with the Mother through a lawyer or mediator, or to arrange or participate in counselling or mediation, but only if he did not commit family violence.
The Father was not at court when that order was made on 18 February 2019, and he was not at court when the order of 20 March 2019 was made. In what I regard as frank statements to me this day by him, he told me that he was not in a good space at that time, and lost track of the competing events. He did not allege that he did not have notice of the proceedings. I have no reason to doubt his statement to me that he lost track of the proceedings and did not participate in it at that time. Nonetheless, he was aware of both of those sets of orders, and was generously (on one view) alerted to the fact that he could set aside those orders pursuant to the then rule 16.05 of the Federal Circuit Court Rules 2001 (Cth), were he to make such an application within 21 days. Indeed, though the Father may not have been aware of it, that time limit itself could have been expanded. Nonetheless, that was the order in place for some considerable time.
Evidence includes the Mother's affidavit of 1 July 2021 that has annexure 3 that is an email of 10 November 2020, where the Mother emails the Father responding to his request to spend time with the child. In that email, the Mother sets out what she regarded as sensible conditions for that to happen. It reads as such:
Hi [the Father],
I am writing in response to your request for [the child] to spend time with you for a week this Christmas.
You are obviously aware that, since the Final Orders made In March 2019, you have not spent any time with [the child]. In fact, you have not spent any time with [the child] since September 2018, notwithstanding a very short time spent with [the child] in January 2019.
Notwithstanding that telephone contact is quite regular i.e. FaceTime and/or a variation of telephone contact, it would obviously be a gigantic step for [the child] to spend a week with you without any graduation to seeing you, let alone spending a week in another state given the history, I could not sanction such a proposal at this time.
Notwithstanding the reservations about the issue, I am keen to encourage and facilitate [the child] having as positive a relationship with you as is possible.
I would much prefer that you initially make arrangements to visit [the child] in Melbourne and I would be present so as to ensure a smooth transition/handover to you.
I want to assure you that I would not be obstructive and, on the contrary, I think it would work best if a mechanism along these lines is adopted.
I am more than happy to consider overnight visits once an initial rapport/familiarity has been established.
I am also happy to host [child [D]] and [child [C]] overnight at my apartment if you and [[Ms E]] are comfortable with this.
If you can navigate an initial visit, I am than happy to accompany [the child] to Queensland for 5 or so days.
It will obviously be too ambitious, given the recent COVID-19 restrictions, for it to happen over this Christmas.
I would need you to undertake and/or pay in advance travel and accommodation before committing to this arrangement.
I suspect the total amount would be $2,700 made up as follows:
•Return flights - $700
•Rental vehicle In QLD - $70 par day
•Accommodation - $300 per night
•Airport transfers In Melbourne - $150
Obviously, I will require written assurance that you will comply with the court orders and particularly in relation to the denigration or belittling of me or my family.
I also note that you have yet to address the child support arrears and request that you do so immediately.
If you could make an immediate contribution of $1,000 towards uniform, technology and camping fees for [the child’s] high school next week, this would be much appreciated.
I obviously want to ensure that you do not have any issues with any drug dependency.
It seems you have moved a number of times and this does flag concerns in my mind about risk issues relating to [the child].
This latter is sent in good faith and I look forward to a response.
Kind Regards,
[the Mother]
The intervention order expired on 24 February 2021.
The events then heated up significantly. On 30 May 2021, there was a serious confrontation between the child and her mother. The Mother's account of this in the section 11F report that was prepared subsequently was that it involved an attempt to exert parental authority over the child’s use of technology. Following that confrontation, late on 30 May 2021, the child communicated with her father, including via text message, and those communications included the following:
[S]he pulled my hair slapped me bit me and said the she wanted to stragle [sic] me and laughed and said that it would be funny if she punched out my teeth all because i wouldnt [sic] give her my phone
…
[S]hes [sic] a psychotic bitch.
…
[S]he bit me.
…
[Photo of marks on a wrist]
…
[D]ad
…
[P]lease
It is quite clear that following receipt of those text messages, the Father communicated with the child without communicating with the Mother, to arrange for the child to travel to Brisbane without letting the Mother know. The Father was able to organise that at the time. He was then working, and he organised for his partner to travel to Melbourne for the purpose of accompanying the child back to Brisbane. That occurred without notice to the Mother on 30 June 2021, a month after the distressing messages that the Father would have received.
The Mother’s account of the events, which is not disputed, reads:
20. [The child] left the house around 2pm and informed me that she was going to her school friend…
…
26. Around 5:13pm I was advised by the AFP member [[Mr F]] that staff at [Airline G] counter informed him that [the child] departed on a [flight] to Brisbane at 4:40pm, accompanied by a female passenger under a name [[Ms E]]. At this point it was my belief that [the child] was instructed by her father [the Father] (also known as [the Father’s alternate name] an elaborate and detailed lie to evade my suspicion, take an Uber or a taxi service to the airport, board a plane with his wife [[Ms E]], to avoid questioning by the staff and fly to QLD. I discovered that [the child’s] expired passport and birth certificate were also missing.
27. At 6:53pm [[H]] sent me a photo of [the child’s] location from Snapchat app as bushand [sic] near [[Suburb J]], QLD. [Child [H]’s] mother [[Ms K]] suggested I contact QLD police to conduct a welfare check at her father's last known address and the location identified by her son via Snapchat.
…
32. Since [the child’s] departure I have perused her iPad and discovered a series of text exchanges between [the child] and her father planning her getaway. [The Father’s] actions provide no comfort that it is [the child’s] best interest to remain in his care. Encouraging [the child] to steal her passport and birth certificate from my home office, to lie to me and to encourage her to travel to another state without my knowledge or consent is shocking and shows that he has little to no insight into what is in [the child’s] best interest.
The Mother was able to organise her solicitor to make an urgent application to the Court, supported by an initiating application and an affidavit and the other necessary documents, and the matter came before me on 8 July 2021. The Father prepared two affidavits on 2 July 2021 and another on 6 July 2021, and they were before me on 8 July 2021. I have re-read them, and I have not forgotten what they have got to say. The Mother responded on 8 July 2021 with a further affidavit. On 8 July 2021, as set out in the first decision, I ordered that the child be returned to the Mother's care, and ordered what was then known as a section 11F report, as described in the first proceeding.
The orders of 8 July 2021 included my reservation of the Mother's costs because she sought costs at the time. The parties attended electronically for a section 11F report, and that was duly prepared at the Court, and of course, ultimately at taxpayer expense. The interviews and report were conducted on 5 November 2011. That report recommended that the child remain living in Melbourne with her mother.
On the next return date on 14 December 2021, the parties entered into detailed consent orders with the assistance of the Independent Children's Lawyer (‘ICL’). Essentially, that provided for X to travel to Brisbane for school holiday time at the Father's expense.
The matter was listed for a final hearing, including the ordering of a family report. The parties attended family dispute resolution on or about March 2022 and reached substantial agreement. The substantial agreement they reached was not quite put into writing. Today has been taken up with fine-tuning what they agreed and disagreed about. Further negotiations took place to refine those orders sought. That involved agreement for the removal of the hitherto watch list order in addition to an order compelling each party to make a submission to the Child Support Agency to remove the block on the Father's overseas travel.
That is the background of the matter.
The Mother's application is not only for costs of 8 July 2021, but for the costs of the proceeding and on an indemnity basis. Very fairly, the cost submissions of the Mother are detailed, and acknowledge and point out that indemnity costs are only ordered in exceptional circumstances. The costs sought are on scale, pursuant to Schedule 3 of the Federal Circuit and Family Court of Australia Family Law Rules2021 (Cth) (‘the Rules’), which is the scale applicable in the Court, and are $11,039. The indemnity costs sought are $23,141.
The Rules set out the matters that I must take into account in costs matters. One of the matters that I am to take into account is ensuring, to the extent the Court can, that costs are proportionate to the relief sought. The circumstances are that there has been a significant amount of affidavit material, subpoenas issued, a return to Court on 8 July 2021 in an application issued with urgency, and then again in December 2021, family dispute resolution counselling, and then discussions today. The indemnity costs sought of $23,000 demonstrate an efficiency on the part of the Mother's solicitors.
Of course, that is a very significant amount of money to a parent and a sole parent who earns a gross income before tax of about $92,000.
The Father's position is that it was reasonable for him, and indeed he asserts that he felt compelled to take action in the circumstances of the communications that he received. He asserts that he thought she was in danger. That is consistent with his affidavit material, and indeed consistent with the text messages.
The philosophy behind the Act, and in particular behind section 60I, is against parties taking matters into their own hands save in the direst emergency. Section 60I(1) reads:
Section 60IAttending family dispute resolution before applying for Part VII order
Object of this section
(1)The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.
It may well be that had the Father initiated an application in the circumstances and relied upon the exception to a section 60I certificate relating to family violence and, in particular, the biting incident, that he would have been permitted to proceed without a 60I certificate because of the urgency of the matter. The Father should have communicated with and contacted the Mother about his concerns. Indeed, he should have been the one to have been bringing the application to Court on the basis of the information that he had.
He chose the self-help route. The child was in his care at all material times from 30 June 2021. Further, the actions that he took effectively put him in breach of the order that provided that the child would live with the Mother. The Father then proposed to unilaterally change the child's school.
Turning then to section 117. The starting point is each party should bear their own costs. The issue in this case is whether there is sufficient reason, by taking into account all of the matters, including the starting point under section 117(2)(A), to impose on the Father a costs order.
I must take into account the parties' financial circumstances. As I discussed with the Mother’s solicitor, the Mother's financial circumstances are indeed very modest. She now has a significant bill to her solicitors. She has money in the bank that covers one month's rent, and that will be due shortly. Hence, she lives pretty much from pay cheque to pay cheque, but would appear to do so with some efficiency and ability. She and the child do not want for significant material matters, and the child seems to be prospering in that environment. By community standards, she earns a reasonable but modest income, after rates of marginal tax. She rents a home, and has a significant car payment to make on a modest motor car. She has a credit card or modest credit card liabilities. She is an efficient financial manager of her household, but she could not afford these proceedings.
The Father's circumstances, I find, are precarious. He was employed as a sales representative up until four weeks ago, and from lack of sales was either "let go" or dismissed or sacked (depending on the phrase). In addition to that, the Father has warrants for dishonesty offences outstanding in Victoria which, however you cut it and despite the Father's optimism, cannot help his employment prospects. He frankly told me that he hoped to have employment within the next month or so. The ICL fairly raised with him in cross-examination the existence of warrants, which to the ordinary observer would be likely to impede his employment prospects. The Father remains more optimistic about employment. However, at the moment, he has considerable credit card debt. He is relying upon his parents’ generosity to assist him pay the rent. He has no money in the bank to pay next month's rent. His partner (and mother of his other two children) works as a cleaner on a part-time basis. The Father's financial circumstances are precarious. Neither party is in receipt of Legal Aid.
I must take into account the conduct of the parties in the proceedings. It needs to be noted that costs are compensatory, not by way of punishment. The Mother was, not unreasonably, upset and her solicitor was outraged by the Father's secret arrangements with the child, to leave her mother's house and go to Brisbane. The law does not permit me to make a costs order as a sanction against that conduct per se. However, such conduct is entirely contrary to the spirit of section 60I, outlined above, and indeed the other objects of Part VII of the Act, including:
Section 60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
[Emphasis added]
The Father opposed the orders sought by the Mother on 8 July 2021, but on that occasion stated to me that I did not need to make a recovery order; that if I was to order that the child be returned, he would cooperate with that. Indeed that is what happened. The Father then cooperated with the section 11F report on 14 December 2021. He then entered into consent orders. He cooperated with the alternative family dispute resolution process in March 2022, reached substantial agreement, and this day has been courteous and sensible in his submissions to me. Indeed today he has made concessions that were reasonable to make. From the day after the proceedings on 8 July 2021, the Father's conduct of the proceedings has been reasonable, notwithstanding that he has not filed material, and notwithstanding that he has not participated in a drug test.
The next matter I must consider is whether the proceedings were necessitated by a failure of a party to the proceedings to comply with previous orders. As I have already indicated, the proceedings were necessary because the Father acted in breach of the previous final order of 19 March 2019. The Mother’s solicitor, in written submissions, submits that the Father has been entirely unsuccessful in the proceedings. In my view, that is not correct. By sensible concession and with the cooperation and sensible concession of the Mother, the Father has managed to obtain orders for regular time between the child and himself. Those regular orders for sensible arrangements should have been pursued much earlier, but in the event when they were pursued, they were able to be negotiated with the assistance of the ICL.
The outline of case annexes an offer that the Father made in writing that I did not have regard to until this point as I regarded it as a "without prejudice" offer. However, the Father's position in writing was that he would agree to the 14 December 2021 orders being made final, provided the Mother pay one-half of the travel. Ultimately, he retreated from that position, and agreed to pay all of the travel.
I might also add, the Father is in arrears of child support. He asserts that the arrears of child support relate to a period when he was not in employment, he was assessed on the period when he was in employment and he was too late and too slow in attempting to regularise his child support arrangements. I make no finding about that. I do not know if that is the case or not, but it is common ground that there is recorded the sum of some $15,000 child support arrears. The Father has been prevented from travelling overseas by the Child Support Agency because of those arrears, and he says that that has restricted his ability to earn an income. That allegation was not tested by the Mother’s representatives. However, I am not satisfied that the Father's prospect of overseas employment is as rosy as he would put it to me today. I hope it is, but I am just not satisfied that that is an accurate or realistic account, in all the circumstances.
I must now consider any other matters that are relevant. Were the Father in regular employment, I would have made an order that he pay the Mother's costs on scale of the proceedings of 8 July 2021 because of the manner in which that urgent proceeding arose. I must take into account section 117(2A)(a), particularly the Father’s financial circumstances. I am not satisfied that he has any capacity to pay, or that he will have it any time soon. Further, the Child Support Agency has not been able to extinguish the significant arrears.
I take into account that the Father was placed in a difficult position, having received the text message from the child. However, he did entirely the wrong thing in not contacting the Mother and dealing with teenage rebellion in a more mature manner. Nonetheless, the sheer vivid nature of that text message would cause any parent concern.
I take into account the sense of injustice that the Mother will feel as a result of my decision. She will feel that she has had to take expensive court proceedings without recompense because of the Father's actions. I take that into account, but nonetheless, the Father's financial position is parlous, and balancing all those matters, I am not going to make any cost order.
In all of those circumstances, by the skin of his teeth, he escapes a cost order because of his incapacity to pay. However, these reasons will be settled, and will be sent to the parties, and the Father would be wise to take note of how close it was to an order for costs against him.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 20 December 2022
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