Sammut and Sammut
[2013] FCCA 2003
•11 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAMMUT & SAMMUT | [2013] FCCA 2003 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – contested residence – relocation – spend time arrangements with non-resident parent – costs of the Independent Children’s Lawyer. |
| Legislation: Federal Circuit Court Rules 2001, r.21.02 |
| Best & Best [2013] Fam CAFC 5 Collu & Rinaldo [2010] FamCAFC 53 Hardie & Capris [2010] FamCA1046 Howell & Howell [2012] FamCA 903 In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 Kest & Olsson [2012] FamCA 148 McCall & Clark [2009] FamCAFC 92 Morgan & Miles (2007) 38 Fam LR 275; [2007] FamCA 1230 MRR & GR (2010) 240 CLR 461; [2010] HCA 4 Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103 Telfer & Telfer (1996) 20 Fam LR 619; (1996) FLC 92-376 |
| Applicant: | MR SAMMUT |
| Respondent: | MS SAMMUT |
| File Number: | SYC 2512 of 2007 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 27, 28 and 29 May 2013 |
| Date of Last Submission: | 28 June 2013 (written submissions) |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Self-represented litigant |
| Counsel for the Respondent: | Mr Jackson |
| Solicitors for the Respondent: | Filewood Carty Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Sperling |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW, Campbelltown Family Law |
ORDERS
That all existing parenting orders in relation to the child X born on (omitted) 2001 (“X”) be discharged.
Parental Responsibility
Subject to paragraphs 3 herein, MR SAMMUT (“the Father”) and MS SAMMUT (“the Mother”) have equal shared parental responsibility for making decisions about major long term issues in relation to X.
The Father have sole responsibility for making major long term decisions in relation to X concerning:
(a)education; and
(b)health.
Notwithstanding paragraph 3 herein, before any long term decision in relation to X’s education and/or health is made by the Father:
(a)the Father advise the Mother by email of his proposal relating to X (including the details of any professional advice received);
(b)if the Mother wishes to comment on the Father’s proposal, within 7 days after the date on the Father’s email, she advise the Father by return email of her views;
(c)upon receipt of any return email, the Father give consideration to the Mother’s views; and thereafter he make a decision and advise the Mother by further email of the outcome immediately after making that decision.
In the event that the Mother has a proposal as to any long term decision in relation to X’s education and/or health, the Mother advise the Father by email of:
(a)her proposal, including what professional information or advice she has received and, if applicable, the name or names of any relevant educational or health professional; and
(b)upon receipt, the Father give consideration to her proposal and thereafter make a decision and advise the Mother accordingly.
Notwithstanding paragraph 3(a) herein, and unless otherwise agreed between the parties in writing, the parties shall do all things necessary to ensure that X remains enrolled at and attends (omitted) Public School until the completion of Year 6.
Each party be at liberty to attend all school and extracurricular activities of X at which parents would normally attend.
Within 14 days of these orders, and within 14 days of X’s subsequent enrolment at any school, the Father do all acts and things and give all irrevocable authorities necessary to ensure that whichever school X may attend from time to time, that school forward directly to the mother copies of all of X’s school reports and merit cards, any written material pertaining to X’s academic and extra-curricular activities and order forms for school photographs.
Unless he has already done so, the Father do all things necessary to ensure that within 3 months from the date of these orders, he obtain a referral from X’s general practitioner for X to attend upon a paediatrician and thereafter arrange such appointment at the earliest opportunity ensuring that he provides the paediatrician with a copy of the Report of Psychologist, Ms W dated 22 February 2013 and a copy of the report of Occupational Therapist, Ms A dated 21 December 2012.
Except in the case of emergency and/or with the express written consent of the Father, the Mother be restrained from taking X to any appointments with any therapists or counsellors including but not limited to psychologists, psychiatrists, speech therapists, occupational therapists or counsellors.
The Father be at liberty to disclose the details of these orders, when appropriate, to all principals and teachers of schools that X attends together with all hospital, medical, dental and other health professionals attended by X.
Live with and spend time with orders
X live with the Father.
X spend time with the Mother as agreed or, failing agreement, and subject to the Mother’s compliance with paragraphs 14 herein, as follows:
(a)During school terms for one weekend in February, March, May, June, August and November as agreed or, failing agreement the second weekend; and
(b)During school holidays:
(i)for one half the school holidays at the end of Terms 1 and 3 each year, and failing agreement as to which half, the first half in odd numbered years and the second half in even numbered years;
(ii)during the Term 2 school holidays
1. in even numbered years, for two weeks, commencing on the first day after the last day of school term and concluding on the Sunday prior to the commencement of Term 3; and
2. in odd numbered years, for one week commencing on the first day after the last day of school term; and
(iii) for three weeks as agreed in the December/January school holidays or, failing agreement, for the first three weeks in 2013/14 commencing on the first day after the last day of Term 4 and each alternate year thereafter and for the last three weeks in 2014/15 concluding on the Sunday prior to the commencement of Term 1 and each alternate year thereafter.
Paragraph 13 herein is subject to the Mother providing to the Father, at least 5 days prior to each visit, either a satisfactory written report or telephone report from her treating general practitioner, or treating psychiatrist, or community mental health team case worker with such report to:
(a)describe of the background of the person giving the report (if they have not previously provided a report);
(b)the nature of their involvement in the Mother’s care;
(c)refer to the Mother’s looking after X unsupervised; and
(d)provide an opinion on the Mother’s current state of mental health.
The Mother immediately notify the Father in writing if she changes her current general practitioner including details of the names and address of any subsequent general practitioner.
Subject to paragraph 14 herein and for the purposes of facilitating time pursuant to paragraph 13 herein, the Father pre-pay airfares for X to travel as an unaccompanied minor from Sydney to (omitted) and return.
Upon the Mother commencing paid employment, for the purposes of facilitating time pursuant to paragraph 13 herein, the Mother pre-pay the cost of airfares for X to travel as an unaccompanied minor from Sydney to (omitted) and the Father pre-pay the cost of airfares from (omitted) to Sydney.
Communication time
Each party do all things necessary to encourage and facilitate X communicating by telephone with the party with whom he is not living with or spending time with on days and times as agreed and failing agreement on at least two occasions each per week.
Travel
Pursuant to s.65Y(2) of the Family Law Act 1975, each party be permitted to travel with X out of the Commonwealth of Australia, provided such period of proposed travel takes place during the time X is living with that parent pursuant to these orders unless otherwise agreed between the parents in writing via email.
In the event that either party wishes to take X on a holiday out of the Commonwealth of Australia then that party notify the other party no less than 60 days prior to the departure date of such proposed trip, and provide to the other party at this time:
(a)particulars including the proposed itinerary and proposed period of such trip;
(b)at least 10 days before departure, a final itinerary including contact telephone numbers and full street addresses of where X will be staying;
(c)copies of return airline tickets and details of flights once booked and irrespectively at least 10 days before departure; and
(d)in the event that it is the Mother who wishes to travel, she provide to the father a written report from her treating general practitioner, or treating psychiatrist, or community mental health team case worker, provided the written report is no older than 14 days and:
(i)describes the background of the person giving the report (if they have not previously provided a report);
(ii)describes the nature of their involvement in the Mother’s care;
(iii)refers to the Mother travelling overseas with X unsupervised; and
(iv)provides an opinion on the Mother’s current state of mental health.
The parties forthwith apply for an Australian passport for X born on (omitted) 2001 with such passport to be retained by the Father unless it is needed by the Mother for the purposes of travel pursuant to paragraph 20 herein.
Other orders
Each party ensure that the other parent is kept informed of his or her residential addresses, contact telephone number/s and email address, and each party notify the other of any changes to those details no later than 24 hours after any such changes.
Each party communicate by telephone, including SMS in regard to matters of an urgent nature and otherwise communicate by email about day to day matters including arrangements for each party to spend time with X.
In the event of X being hospitalised or receiving medical attention, the party who has care of X notify the other party as soon as possible.
The Independent Children’s Lawyer:
(a)provide a copy of these Orders to X’s school;
(b)provide a copy of these Orders and a copy of the Family Report dated 18 January 2013 to the school counsellor at X’s school;
(c)provide a copy of these Orders to the Mother’s current general practitioner;
(d)discuss these Orders with X; and
(e)be thereafter discharged.
There be no orders as to costs (including the costs of the Independent Children’s Lawyer).
All extant applications before this Court be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)The Father and X live in Sydney, and the Mother lives at (omitted).
(B)The Mother is not presently in paid employment, and is unable to travel to or stay in Sydney to spend time with X.
(C)The Father intends to enrol X at (omitted) School in (omitted) for high school.
(D)X currently attends upon Occupational Therapist Ms A in the (omitted) area and the parents intend for this to continue for as long as deemed necessary by the Occupational Therapist.
(E)For the purposes of paragraph 4 herein, if the Mother does not electronically respond as provided by these orders, the Father be entitled to presume that she does not wish to be involved in the decision-making process and he may decide the issue.
(F)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 those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sammut & Sammut is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2512 of 2007
| MR SAMMUT |
Applicant
And
| MS SAMMUT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR SAMMUT (“the father”) against MS SAMMUT (“the mother”) seeking various parenting orders in relation to their child X born (omitted) 2001 (“X” or “the child”).
Each party seeks orders for X to live with them and spend time with the other parent. Since 2010, X has lived with the father. Despite the child’s view that he would like to return to live with the mother, the Independent Children’s Lawyer (“ICL”) seeks to have X remain living with the father.
The final hearing proceeded before me from 27 to 29 May 2013 and concluded with written submissions received by 28 June 2013 (“the Final Hearing”).
At the Final Hearing, the father was self-represented and the mother was represented by Mr Jackson of counsel. Mr Sperling of counsel appeared on behalf of the ICL.
Background
The father was born on (omitted) 1966 and is currently 47 years of age. The father is currently engaged in full-time employment as a (omitted) with the Sydney office of the (omitted).
The mother was born on (omitted) 1968 and is currently 45 years of age. The mother is currently unemployed and studying to (course omitted) with the (omitted). The mother previously worked as a (omitted).
Neither party had re-partnered at the time of the Final Hearing.
The parties commenced cohabitation in 1989 and were married on (omitted) 1994. The parties separated in August 2006 and divorced in April 2011.
In October 2006 the father commenced parenting and property proceedings. On 3 April 2007 final consent orders were entered into between the parties providing for X to live with the mother and spend time with the father most weekends and overnight each Wednesday during school terms and for half of the school holidays. On 12 April 2007 final consent orders were also made regarding settlement of property matters.
These current proceedings were commenced by the father with his Initiating Application filed on 4 June 2010. The father sought orders including sole parental responsibility for X, for X to live with him, and for the mother to undertake a psychiatric assessment.
It is conceded that in June 2010 the mother was scheduled under the Mental Health Act 2007 (NSW) and admitted into involuntary psychiatric care at the (omitted) Hospital (“the incident”)[1]. Although the mother had been residing in Sydney, it would appear that, in the days before the incident, the mother and the child had travelled to (omitted) area where the maternal grandparents resided at that time. Following the incident, the father made arrangements with the maternal grandparents to collect X and returned to Sydney. X has been in the primary care of the father since this time.
[1] Mother’s affidavit files 8 March 2011, paragraph 41
The mother filed her Response on 4 March 2011 seeking orders for the parties to have equal shared parental responsibility for X and for the mother to spend time with X from 6:00pm Friday until 5:00pm Sunday once every three weeks in (omitted) and for half of all school holidays with the father to pre-pay for X’s travel as an unaccompanied minor.
On 14 March 2011, I made an order seeking the appointment of an ICL. Ms O’Donnell of NSW Legal Aid Bankstown was subsequently appointed, although she was recently replaced by Ms Medland of NSW Legal Aid Campbelltown.
Prior to the Final Hearing, the mother substantially changed the orders she sought. On 24 January 2013 she filed an Amended Response seeking that X live with her and spend time with the father every three weeks during school terms and for half school holidays with the father paying for the requisite travel.
At the time of the Final Hearing, the interim parenting orders made on 18 May 2011 remained in full force and effect (“the interim parenting orders”). The interim parenting orders provided that:
“3.The Applicant have sole parental responsibility for the child X, born (omitted) 2001 (“the child”).
4. Subject to paragraph five (5) herein, the Respondent spend time with the child:
a.The weekend 28/29 May 2011;
b.The weekend 18/19 June 2011;
c.During the winter holidays Saturday 2 to Friday 8 July 2011;
d.The weekend 27/28 August 2011;
e.During the spring holidays Sat 24 Sept to Sat 1 October 2011;
f.The weekend 12/13 November 2011;
g.During the Christmas period from 24 December to 31 December 2011; and
h.During the summer holidays 14 to 20 January 2012;
i.a weekend in February, March, May, June, August, and November and December;
i.the autumn holidays (including Easter) 6 April to Sunday 15 April; the first half of the winter holidays, half of the spring holidays; and
ii.three weeks in January 2013;
j.In subsequent years, a weekend in February, March, May, June, August, and November and half the school holidays, including Easter in even years, and Christmas in odd years
5.Paragraph four (4) herein is subject to the Respondent providing to the Applicant a satisfactory written report (or telephone report) within five (5) days prior to each visit from her treating GP, or treating psychiatrist, or case worker. The report must:
a.describe the background of the person giving the report (if they have not previously provided a report);
b.the nature of their involvement in the Respondent’s care;
c.refer to the Respondent looking after the child unsupervised; and
d.provide an opinion on the Respondent’s current state of mental health.
6.While the Respondent is not in paid employment, the Applicant will pre-pay airfares for the child to travel as an unaccompanied minor from Sydney to (omitted) (return) to spend time with the Respondent, up to a maximum cost of $250.00 for each round trip.
7.The child will otherwise live with the Applicant.
8.Both parties do all things necessary to ensure the child communicates by telephone at least twice per week with the party with whom he is not living at that time.
9.The child otherwise live with and communicate with the parties as agreed from time to time.
10.The Applicant provide regular updates as to how the child is going with life and school and take on board the Respondent’s suggestions and recommendations.
11.The Respondent be at liberty have regular direct contact with the child’s school, including regular updates from his teacher.
12.Each party notify the other if the child is ill or injured while in their care.”
The matter was originally listed for Final Hearing on 4 March 2013. On that date, both parties attended as self-represented litigants. The mother made an adjournment request which, after hearing brief submissions from both parties and the ICL, was granted. As stated, the relisted Final Hearing proceeded before me over three days commencing on 27 May 2013 and concluded with written final submissions received by 28 June 2013.
The father currently lives in (omitted) and, as stated, works in Sydney CBD. The mother relocated to (omitted) in October 2012 and continues to reside there. In February 2007 X commenced Kindergarten at (omitted) Public School. In February 2012, X commenced Year 4 at (omitted) Public School where he remains.
Proposals
The parties and the ICL each provided comprehensive proposals in their Minutes of final orders sought.
Given there was some agreement with the orders sought by the ICL, I will start with that proposal before moving to the proposals of the parents.
ICL’s proposal
The ICL’s Minute of Final Orders sought (“the ICL’s Minute”)[2] was provided to the parties and the Court at the conclusion of the evidence. As the minute is quite comprehensive, I will summarise the orders sought as follows:
[2] See Exhibit “ICL6”.
·equal shared parental responsibility, qualified in that the father have sole parental responsibility in relation to education and health with a process for consultation and notification between the parties on those areas;
·the mother be restrained from taking X to medical practitioners without the father’s consent;
·X live with the father;
·on the condition that the mother provides the Father with a report from her GP/psychiatrist/community mental health team case worker 5 days before each visit then X spend time with the mother for two weekends each school term (failing agreement commencing on the 3rd and 6th Friday each term), for half of each school holiday period at the end of terms 1, 2 and 3 and for 3 weeks in the school holiday period at the end of term 4, and for such other times as agreed;
·communication orders including for phone communication between X and the parent he is not living with at least twice per week;
·the father pre-pay the airfares for X to travel unaccompanied from Sydney to (omitted) and return and once the mother commences paid employment then the mother pre-pay the airfare from Sydney to (omitted) and the father pre-pay for the (omitted) to Sydney airfare;
·the parties be at liberty to provide the final orders to X’s school and relevant health professionals;
·the ICL provide the final orders to X’s school and the mother’s GP as well as a copy of the Family Report to the school counsellor at (omitted) Public School;
·the father arrange for X to attend upon a paediatrician within 3 months and provide such paediatrician with a copy of relevant reports;
·should either party wish to travel overseas with X they provide the other with specific information and for the mother, to include a written report from the mother’s treating GP/psychiatrist /community mental health team case worker; and
·several useful notations as to the current and proposed circumstances of the family which provide context.
Father’s proposal
The father had provided a minute of proposed orders,[3] however, a slightly amended minute was attached to the father’s written submissions received on 17 June 2013. I have taken this amended minute as the father’s final proposed minute; it states as follows:
[3] See Exhibit “AF1”.
“1.The Applicant father have sole parental responsibility for the child X born (omitted) 2001 (“the Child”).
2.Subject to Order 3, the Respondent mother spend time with the child:
(i) a weekend in February, March, May, June, August, and November; and
(ii) half the school holidays, including Easter in even years, and Christmas in odd years.
3.Order 2 is subject to the Respondent providing to the Applicant details of accommodation arrangements, and a satisfactory written report (or telephone report) within 5 days prior to each visit from her treating GP, or treating psychiatrist, or case worker. The report must:
(i) describe the background of the person giving the report (if they have not previously provided a report);
(ii) the nature of their involvement in the mother’s care;
(iii)refer to the mother looking after the child unsupervised; and
(iv)provide an opinion on the mother’s current state of mental health.
4.While the Respondent is not in paid employment, and the Applicant is in paid employment, the Applicant will pre-pay airfares for the child to travel as an unaccompanied minor from Sydney to (omitted) return to spend time with the Respondent, up to a maximum cost of $250 for each round trip.
5.The child will otherwise live with the Applicant.
6.Both parties do all things necessary to ensure the child communicates by telephone at least twice per week with the parent with whom he is not living at that time.
7.The child otherwise live with and communicate with the parties as agreed from time to time.
8.The Respondent may have regular direct contact with the child’s school, including regular updates from his teacher.
9.Each party notify the other if the child is ill or injured while in their care.
10.That there be no orders to costs, including any reserved costs, to the intent that each party pay their own costs of and incidental to parenting issues.
11.All existing parenting Orders be discharged.
12.All other Orders as the Court
and ICLconsider appropriate.”[4][4] The bolded words were added to the father’s proposed minute in his final written submissions.
As stated, there is significant agreement between the father and ICL as to the final orders required in this matter. Both seek an outcome whereby X lives with the father and spends defined time with the mother. They also agree as to the necessity for the mother to provide a ‘report’ from her relevant health professional as a pre-condition to any time being spent (although the father now also seeks that the mother also provide details of her accommodation arrangements in advance of each visit).
The father presumably agrees with, or does not oppose, any order sought by the ICL that is not inconsistent with his proposal.
That said, the father’s proposal differs from the ICL’s proposal in a couple of ways:
·firstly, he seeks an order for sole parental responsibility;
·secondly, rather than the child spending two weekends (commencing on the third and sixth Friday) in each school term with the mother, the father proposes it occur on one weekend (presumably as agreed) in February, March, May, June, August, and November. The effect of the father’s proposal would be that X would only spend one weekend with the mother during the third and fourth school terms. That said, the current parenting orders reflect this outcome.
·thirdly, while the father and ICL are in agreement that, until the mother commences paid employment, the father will meet the costs of X’s air travel, the father seeks to place a maximum amount of $250.00 for the pre-purchase costs of return air fares for each visit.
The father’s Minute generally reflects the current interim orders and the orders that the previous ICL, Ms O’Donnell, presented to the Court when the matter was listed for Final Hearing commencing 4 March 2013.
Mother’s proposal
The mother also provided the Court with a case outline document and minute of proposed orders sought.[5]
[5] See Exhibit “RM2”.
In summary, the mother seeks orders for equal shared parental responsibility and for X to live with her and spend time with the father. In the event that the Court finds it appropriate for X to live with the father, the mother seeks orders for X to spend time with her on every third weekend during school terms and for one-half of the July and long summer school holidays, and the entire April and September/October school holidays. Interestingly, the mother only proposes that the child spend half of all school holidays with the father in the event that X is living with her. The mother also seeks an outcome whereby the father pays all relevant airfares for X to spend time with the parent with whom he does not live with.
For the sake of completeness, the mother seeks the following orders:
“1. That the parties have equal shared parental responsibility for the child, X born (omitted), 2001.
2. That the child live with the Mother.
3. That the child spend time with the Father from 6.00 pm Friday to 5.00 pm Sunday once in every three weeks, during school term, in Sydney.
4. That the child spend time with the Father for one-half of all school holidays.
5. That the child spend Christmas Eve from 6pm until Boxing Day at 6pm with the Father on even numbered years.
6. That the child spend Christmas Eve from 6pm until Boxing Day at 6pm with the Mother on odd numbered years.
7. That the Father pre-pay airfares for the child to travel as an unaccompanied minor from (omitted) to Sydney and return.
8. Those by way of a communication order, the Mother facilitate the child speaking with the Father by telephone at all reasonable times.
That in the alternative to paragraphs 2 to 8 above:
That the child live with the Father
9. That the child live with the Father.
10. That the child spend time with the Mother from 6.00 pm Friday to 5.00 pm Sunday once in every three weeks, during school term, in (omitted).
11. That the child spend time with the Mother for one-half of the July and Summer school holidays, and the entire April and September/October school holidays.
12. That the child spend Christmas Eve from 6pm until Boxing Day at 6pm with the Father on even numbered years.
13. That the child spend Christmas Eve from 6pm until Boxing Day at 6pm with the Mother on odd numbered years.
14. That the Father pre-pay airfares for the child to travel as an unaccompanied minor from Sydney to (omitted) and return.
15. That by way of a communication order, the Father facilitates the child speaking with the Mother by telephone at all reasonable times.”
It is clear that the mother’s proposal differs significantly from the orders sought by the ICL and the father. That said, during final oral submissions, the mother indicated that she was agreeable to a number of less controversial orders sought in the ICL’s Minute. More specifically, the mother was not opposed to the orders sought in paragraphs 18, 19, 21, 22, 23, 29 and 30 of the ICL’s Minute. The mother also was not significantly opposed to order sought in paragraph 31 but sought a reduction to ‘60 days’ in advance for any overseas trip notifications. That said, the mother opposes any requirement that she provide any ‘report’ from a relevant health professional as a pre-condition to any time being spent by her with X.
Lastly, the mother was in agreement with the Notation C of the ICL’s Minute.
Issues
Given the various proposals, it is clear that the major issues in dispute are:
·firstly, whether or not the presumption of equal shared parental responsibility applies and, if not, whether the father should have sole parental responsibility (and if so, whether such sole parental responsibility should be limited to the specific areas of education and health);
·secondly, whether X should live with the father in Sydney or with the mother in the (omitted) area;
·thirdly, what time X should spend with the parent with whom he is not otherwise living with; and
·fourthly, whether the father should bear the burden of all relevant air fares for the child.[6]
[6] The father also sought that the cost be limited to no more than $250.00 for each return airfare.
I note that during the course of the Final Hearing several other issues were raised (such as the use of a passport for X), however these did not appear to the Court to be of major dispute and were not the subject to any specific submissions by the parties. The ICL also sought costs against the father.
During final submissions a further legal issue was raised by the mother; namely whether, in light of the recent decision of the Full Court of the Family Court of Australia in Best & Best [2013] FamCAFC 5, the Court had the power to make the order contemplated by paragraph 26 of the ICL’s Minute.
Evidence
Both parties provided the Court with affidavit and oral evidence and were cross-examined. In addition, the family consultant, Ms M, and a psychiatrist consulted by the mother, Dr D, were required for cross-examination.
The ICL provided a case outline on 23 May 2013 and filed written submissions on 13 June 2013 and 28 June 2013 which have been considered in this decision.
The parties and the ICL also tendered a large number of documents which have also been considered in this decision.
Father’s evidence
The father relied on the following documents at the Final Hearing:
·Initiating Application filed 4 June 2010;
·his affidavit sworn and filed on 4 June 2010;
·his affidavit sworn on and filed on 26 June 2010;
·his affidavit sworn and filed on 12 October 2011;
·his affidavit sworn and filed on 13 December 2011;
·his affidavit sworn and filed on 12 February 2013;
·his affidavit sworn and filed on 25 February 2013;
·his affidavit sworn and filed on 23 May 2013;
·case outline dated 1 March 2013 (as prepared for the final hearing listed in March 2013 and subsequently adjourned); and
·supplementary written submissions filed 17 June 2013.
The father was a well spoken witness; his responses were both considered and polite. He was never confrontational, despite some very robust cross-examination from both counsel for the ICL and the mother. The father was willing to make concessions where appropriate and, in fact, I found him to be almost overly ‘apologetic’ at times when propositions were put to him.
Despite being clearly frustrated by this process and the current circumstances, as stated, the father was very candid in making concessions, even to the detriment to his case and against his interest. For example, when he was questioned by Mr Jackson as to the mental health issues that the mother has suffered, the father acknowledged that the mother’s mental health has now “dramatically improved”.[7] This made his honesty and genuine care for X (whom he and the mother fondly referred to as ‘X) only more apparent.
[7] Transcript 27 May 2013, page 65.
Mother’s evidence
At the Final Hearing, the mother relied on the following documents:
·Amended Response filed 24 January 2013;
·her affidavit sworn on 4 March 2011 and filed on 8 March 2011;
·her affidavit sworn and filed on 31 August 2011;
·her affidavit sworn and filed on 19 February 2013;
·her affidavit sworn and filed on 9 May 2013;
·affidavit of Dr D, psychiatrist, sworn and filed on 28 May 2013;
·case outline filed on 24 May 2013; and
·further written submissions filed on 20 June 2013.
The mother presented as softly spoken and she certainly considered the questions put to her carefully before responding. At times, however, the mother was unfocussed. That said, like the father but to a lesser degree, the mother was prepared to make some concessions. Nevertheless, the mother clearly rejects any suggestion that she has a mental illness.
Overall, while both parties were generally child-focussed and clearly have X’s best interests at heart, the mother presented as more self-focussed than the father.
Family Report
Ms M, a Regulation 7 Family Consultant, prepared a Family Report in this matter released on 15 January 2013 (“the Family Report”).[8]
[8] The Report was also tendered by consent and marked as Court Exhibit “B”.
The interviews for the Family Report were conducted on 10 December 2012 with further telephone interviews on 11, 14, 19 and 21 December 2012.
Ms M outlines the relevant background, current parenting arrangements, proposals and issues in paragraphs 1-7. She then goes on to outline her interview with the father in paragraphs 8-19, her interview with the mother in paragraphs 20-34 and her interview with Ms P (“the paternal grandmother”), in paragraphs 35-38. Details of Ms M’s interview with (and observations of) X, appear in paragraphs 39-44 and will be discussed later in this decision. Ms M also makes some brief comment in respect of a conversation she had with X’s current teacher in paragraph 45.
Ms M thereafter provides her evaluation in paragraphs 46-65. In summary she states that:
·The primary issues are:
o the parenting capacity of both parties (in particular the mother’s mental health issues) and further noting that the parties have extremely different parenting styles;
o X’s apparent learning difficulties (noting that the parties’ differ in their views as to what has caused this to occur); and
o X’s wish that he live with his mother;
·The father “seems much less concerned about X’s progress at school” and was “unaware that the school believes that X does suffer from dyslexia” (which may suggest that the father “has little communication with X’s teachers, which is a concern”);
·While X appears to be improving in his studies, he continues “to be behind most children of his age in many aspects of his schooling”;
·X has a number of carers during each week as it is apparent that the father is unable to care for X without considerable support from both family and paid workers;
·If the father were to spend more time with X this would probably have a positive impact on the child’s self esteem ;
·It is possible that the paternal grandmother’s health may impact on her ability to care for X;
·The mother presents as “extremely anxious” about the child’s apparent learning difficulties (which appears to have increased in the period since she commenced her teaching studies) and this anxiety appears to have influenced the mother’s decision to seek that X now live with her (and in relation to the mother’s apparent anxiety about X’s learning difficulties, I note with some concern the comments made by Ms M in paragraphs 53 to 56 of the Family Report);
·The issue of the mother’s mental health status appears unresolved; I this respect Ms M comments at paragraph 57 that the mother “does not appear to have been in contact with a psychiatrist or other mental health professional since 2010, when she was diagnosed with “atypical schizophrenia”. She remains on anti-psychotic medication but maintains that this is unnecessary. Her presentation at times during the interviews and during later telephone calls to the consultant was of someone who was very agitated, anxious and perhaps even obsessed about X’s learning problems. Unfortunately, Ms Sammut seems to have little insight into her mental health issues. She also appears to have been rejected her diagnosis of schizophrenia since this diagnosis was made”;
·While the mother may be able to offer the child “much more one-on-one time than his father”, it was difficult to predict whether the mother could provide X with “a stable home”;
·The father appears to have little empathy for the mother’s mental health issues and this may be due to those issues going undiagnosed for some time (and possibly even before the end of the marriage) with the consequence that this may be affecting the father’s ability to communicate with the mother about X;
·The father may benefit from some counselling so that he can focus more on X’s needs;
·Although X is of an age when his views should be given some weight, “it is not possible to recommend that he live with his mother” because the child may have “little stability and may become more anxious about his learning difficulties given his mother’s great focus on this”; that said, Ms M states that it would be in X’s interests for him “to spend as much time with his mother as possible”;
·X may be assisted if “an assessment by an independent educational psychologist were conducted so that both parents can be provided with a clear outline of X’s educational needs”;
·Given their communication difficulties, it does not appear practical for the parties to share parental responsibility and consequently, “the parent with whom X lives may need to be granted sole parental responsibility for his long-term wellbeing, unless evidentiary material indicates otherwise”.
In conclusion, Ms M recommended that the father have sole parental responsibility for X and that the current Orders remain in place.[9]
[9] Family Report, paragraphs 66 and 67.
At this point I note that the decision of the Full Court of the Family Court of Australia (“the Full Court”) in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 contains an authoritative statement about how family reports should be treated in proceedings such as this case:
“In view of the comments in this case as to the weight to be given to a family report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11,182; (1976) 11 ALR 657; [1976] FLC 90-098 at 75,447; In the Marriage of Harris (1977) 3 Fam LN No 33; (1977) 29 FLR 285; [1977] FLC 90-276.
(b) Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong, or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the family report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”[10]
[10] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
As stated, Ms M was required for cross-examination by the parties and the ICL. By consent, Ms M heard Dr D’s oral evidence before being cross-examined. I will therefore consider Dr D’s evidence before considering Ms M’s oral evidence.
Dr D’s evidence
Dr D gave evidence by phone in relation to her report dated 21 May 2013.
When cross-examined, Dr D confirmed that she had seen the mother based on a referral from the mother’s General Practitioner (“GP”), Dr M and had undertaken 5 sessions with her. Dr D acknowledged that the primary material used by her in writing her report was based on what the mother had told her. That is, she did not have documentation such as full discharge papers (though she did have a short discharge summary), mental triage notes, progress reports, risk assessment or even the April 2011 report.
Dr D gave helpful oral evidence, she acknowledged that her diagnosis was based on the mother’s statements and the limited material she had been provided. That said, Dr D confirmed that the continuation of the mother’s independent living and study are indicative of functional recovery, however that does not necessarily equate to full remission.[11]
[11] Transcript, 29 May 2013, page 259.
Ms M’s oral evidence
In summary, Ms M indicated that she was still concerned about the mother and was not prepared to significantly change her recommendations.
Ms M saw benefit in there being an assurance that the mother was maintaining contact with her GP “perhaps not every occasion but certainly at least every 3 months or so”[12]. She conceded that a GP report each and every time the mother has X in her care is ‘a little onerous’ but in the circumstances, appropriate.[13]
[12] Ibid, page 272.
[13] Ibid, page 273.
That said, Ms M has confidence that X is safe in the mother’s care which is indicated by her recommendation for the current orders to continue which includes up to a 3 week block unsupervised over the long summer holidays.[14]
[14] Ibid, page 273.
Ms M gave evidence that though the father has indeed paid for the various appointments the mother made for X, he has also consistently expressed concerns over the mother’s engagement with so many services. Under cross-examination, Ms M stated that:
“Parenting involves a lot of things other than making arrangements for a child to attend various health workers. There’s – I felt there was some – in spite of what the psychiatric report said, I felt there was a certain amount of lack of insight on the mother’s part about her – her condition and her ability to deal with things. She – her focus was such that I felt – her focus on his educational needs was such that I think it might impact negatively on him.”[15]
[15] Ibid, page 278.
I agree with Ms M in that the father’s way of dealing with this aspect of parenting X was to avoid exacerbating the situation.
It is clear that the mother has taken action in taking X to various medical and educational related appointments. The suggestions from the mother’s counsel that the father’s payment for these appointments should be taken as approval for the mother’s actions in this regard is not accepted. I accept the father’s evidence that he paid such bills and permitted such appointments to occur as they needed to be done and did not want to exacerbate the situation.
Ms M sees benefit in there being a “more global assessment of his [X’s] needs and problems”.[16] I agree with the ICL’s submissions and comments made by Ms M that there has been a total lack of co-ordination in respect of the parties addressing X’s medical and educational needs. This situation cannot continue.
[16] Ibid, page 285 and 276.
Ms M conceded that should the current dynamic change so that the father exercises sole parental responsibility and arranges all relevant appointments for X, there is a possibility that this may have negative consequences. That said, Ms M was clearly concerned about the mother’s behaviour and her approach to parenting matters. Ms M stated that:
“I think that the mother’s general attitude to – to her son is obviously one of care and concern, but when I … saw her and in the communication I had with her afterwards, a lot of which was by telephone and I don’t have records of it – some of the phone calls were quite numerous at times when I was engaged in other activities – she appeared to me to be extremely anxious and quite – extremely focused on issues to do with X’s learning to the extent that I formed a view that I thought it may – her intensity about those issues may have been counterproductive for X.”[17]
[17] Ibid, page 278.
Ms M disagreed with Dr D’s assessment that the mother has the capacity to care for him on a full time basis. Ms M explained, in answer to a proposition put to her by Mr Jackson, that it does not necessarily follow that because she agrees that the mother has the capacity to care for X for 3 weeks over summer, necessarily means that she would have the capacity to care for X “in a residential sense”.[18] Indeed, Ms M went on to state that the mother presented as “someone who was not able to focus on the bigger picture about her child’s welfare.”[19]
[18] Ibid, page 278.
[19] Ibid, page 279.
Ms M also stated that her Family Report highlights some lapses in the father’s care and attitude to parenting X, particularly in not being pro-active which, when combined with the parties’ communication difficulties, likely heightened the mother’s anxiety.[20]
[20] Ibid, page 279.
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”).
Parenting orders are defined in s.64B of the Act and may provide for, inter alia:
·where a child is to live;
·the time a child is to spend with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of a child, such as X in this case, as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case; different circumstances require different resolutions.
That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations set out in s.60CC of the Act. These specific provisions will be examined in light of the evidence shortly.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[21] In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child.”
[21] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This not only includes those duties and responsibilities relating to such matters as health and education, but also the “general direction in life that is so important for children in teenage years.”[22]
[22] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility. However, s.61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence. In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in s.60CC of the Act in light of the evidence.
If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of the child – again, taking into account the considerations set out in s.60CC of the Act.
In this case the mother seeks an order for equal shared parental responsibility and the father seeks an order for sole parental responsibility. The ICL seeks a combination of both approaches whereby the parties would have equal shared parental responsibility for X but subject to a provision that, if following consultation with each other, the parties are unable to agree about major long-term decisions for X’s education and health, then the father have the responsibility to determine those issues.
The effect of the Court not making an order for parental responsibility would be that parental responsibility could be exercised by both parents either jointly or independently. Given the circumstances of this case, I am satisfied that such an outcome would not be in the best interests of X. Indeed, an interim order providing for the father to have sole parental responsibility for X has been in place since 18 May 2011.
It is possible for the Court to order that one or more aspects of parental responsibility be allocated to one parent alone and the remaining aspects either subject to no order or an order for equal shared parental responsibility. Such possibilities were discussed by the Full Court of the Family Court in Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103.[23]
[23] Newlands & Newlands [2007] FamCA 168 at [84]-[91] (per Bryant CJ, Finn & Boland JJ).
In this case I note that Ms M recommends, in both the Family Report and reiterated in cross-examination, that the father have sole parental responsibility for X. The basis of Ms M’s recommendation for the father to have sole parental responsibility for X appears to be the lack of real communication between the parties.[24] On this point, Ms M made the following comment:
“It seems to me that in this particular – that was the – there was – there was certainly a lack of harmonious communication between the parents. There was a fair bit of distress expressed by both parents about the lack of communication and what was actually happening with X. So I think that in those circumstances it would be appropriate for the parent with whom X resides to have parental responsibility for some matters that are important…”[25]
[24] Transcript, 29 May 2013, page 297.
[25] Ibid, page 277
It is clear that the parties have difficulty consulting each other on most issues and particularly on issues to do with X’s education and medical needs.
When pressed by Mr Jackson, Ms M acknowledged that a Court order for the father to have sole parental responsibility may increase the mother’s anxiety.[26] While pertinent, the level of the mother’s anxiety is not the test for determining parental responsibility.
[26] Ibid, page 280.
The Court will consider this issue further following its discussion and analysis of the matters relevant under s.60CC of the Act. Before doing so, however, the Court will consider the evidence in light of s.65DAA of the Act.
Equal time or substantial and significant time
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, the Court is then required under s.65DAA of the Act to consider whether the relevant child’s best interests would be served by making an order that the child spend equal time,[27] or alternatively substantial and significant time,[28] with each parent.
[27] Section 65DAA(1) of the Act.
[28] Section 65DAA(2) of the Act.
Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances. I note that neither party in this case is seeking an equal time parenting arrangement.
Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
That said, s.65DAA(4) of the Act stipulates that:
“Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.”
In considering the reasonable practicality issue for both an “equal time” or a “substantial and significant time” order, s.65DAA(5) of the Act requires the Court to have regard to:
“(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
Relocation
The mother is seeking to relocate X’s residence from Sydney to the (omitted) area.
The Act does not contain any presumption against a ‘relocation’ order and nor is there any presumption that favours the parent that the children have been primarily residing with.[29] In other words, ‘relocation cases’ are not a special category of parenting orders. What the Act does is provide the Court with a structured discretion to determine what order is appropriate in the circumstances of the case.[30] I note that the impact of the 2006 amendments to the Act in relation to relocation cases was described by Boland J in the case of Morgan v Miles (2007) 38 Fam LR 275; [2007] FamCA 1230, at paragraphs 79 to 81.
[29] Morgan v Miles (2007) 38 Fam LR 275 at 289 (per Boland J sitting as a single appellate judge pursuant to s.94AAA(3) of the Act).
[30] Ibid.
The High Court’s opportunity to consider relocation post the 2006 amendments to the Act came in MRR v GR (2010) 240 CLR 461; [2010] HCA 4 (“MRR”). The High Court stated at paragraph 15 of their decision that s.65DAA(1) is concerned with “the reality of the situation of the parents and the child” and “not whether it is desirable that there be equal time spent by the child with each parent”. The presumption in s.61DA(1) is not determinative of the questions arising under s.65DAA(1). What s.65DAA(1)(b) requires is a “practical assessment of whether equal time parenting is feasible”.[31] Had a proper consideration been given to the issue of ‘reasonable practicability’, the High Court opined that “only one conclusion could have been reached, one which did not permit the making of the order”.[32]
[31] MRR v GR (2010) 240 CLR 461; [2010] HCA 4; at [15] (per French CJ, Gummow, Hayne, Kiefel and Bell JJ).
[32] Ibid.
At paragraph 19 in MRR, the High Court states:
“19. The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child's best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.”
The High Court’s interpretation of the mechanics of Part VII does not change the triggering effect of s.65DAA if the presumption for equal shared parental responsibility arises pursuant to s.61DA. While s.61DA requires a consideration of s.60CC factors, it is clear that s.65DAA, and the issue of ‘reasonable practicability’, is not solely determined by a consideration of the s.60CC factors. Some of these factors may, of course, be relevant. The capacity of the parents to encourage a meaningful relationship between the child and the other parent would be one example. That said, there are a number of other factors that are not specified in s.60CC, such as opportunities for accommodation, employment and extended family support, which would arguably be relevant to issues of reasonable practicability. Consequently, these ‘reasonable practicability’ factors must be considered separately.
In Collu & Rinaldo [2010] FamCAFC 53 (“Collu”) the Full Court, after referring to and quoting s.65DAA, stated at paragraphs 339 and 340:
“339. In considering s 65DAA of the Act there are two important matters a Court must deal with first, namely:
1. whether the child spending equal or substantial and significant time with each parent is in the child’s best interests; and
2. whether the child spending equal or substantial and significant time with each parent is reasonably practicable.
340. The best interests considerations in s 60CC of the Act are therefore of importance when considering the equal or substantial and significant time requirements of s 65DAA of the Act. Also s 65DAA(5) sets out matters that the Court must have regard to in determining whether it is reasonably practicable for a child to spend either equal or substantial and significant time with each parent.”[33]
[33] Collu & Rinaldo [2010] FamCAFC 53 at [339]-[340] (per May, O'Ryan and Strickland JJ).
The orders sought by the mother would be reasonably practicable in theory if the father relocates to the (omitted) area. This is not likely to occur because the father is a (occupation omitted) in a Sydney-based (employer omitted) and his extended family lives in Sydney. Moreover, the father gave evidence that he would not relocate to (omitted) given that he would be very unlikely to find work in this field of (omitted) in that area.[34]
[34] Transcript, 28 May 2013, page 163-164.
It is noteworthy that the mother’s proposal to relocate is more for lifestyle reasons. There is little evidence to suggest that the mother would be better off financially in remaining in the (omitted) area apart from lower housing costs. As her parents have since moved to Queensland's (omitted) the mother would not have the support of extended family to assist her in the care of X.
I note that should the mother be successful in her primary proposal, X would not just be living further away from the father; he would also be living further away from his Sydney-based paternal grandmother.
Best interests of a child
As stated above, the Court is under an obligation to make parenting orders that it determines are in a child’s best interests. For this purpose, the Court will now turn to a consideration of the factors in s.60CC(2), (3) and (4) of the Act in the context of this case.
Primary considerations: s.60CC(2) of the Act
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
It is clear from the evidence that, despite their difficulties in communicating with one another, both parties accept the need for X to have a meaningful relationship with the other party. That said, the parties differ on how this can best be achieved.
The Full Court considered this provision and the concept of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92 (“McCall”).[35] In summary, what the Court is required to do is consider and weigh the available evidence (as at the date of the hearing) and determine (assuming the Court is satisfied that it is in X’s best interests) how and what orders can be framed in order to ensure that X has a meaningful relationship with both his parents (and by implication his extended family).
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[35] The Full Court, comprised of Bryant CJ, Faulks DCJ, Boland J.
No allegations are made or raised by either party regarding any violence or abuse being directed towards X.
Additional considerations: section 60CC(3) of the Act
Section 60CC(3)(a): any views expressed by the child and any other factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
This is a live issue in this case. There is evidence to suggest that X wishes to return to live with the mother.
As part of the family report process, Ms M interviewed X and observed him with each of the parties. At paragraphs 39-44 of the Report, Ms M states the following:
“39. X, who was aged ten years and eleven months when the report interviews were conducted, presented as a healthy looking child. Although both parents had said that X is a shy child he seemed comfortable when speaking with the family consultant and during the family report interviews.
40. X said, “it is okay living with Dad”. He seemed, however, to have difficulty identifying many positive aspects of living with his father, other than playing computer games. He said that his father does not spend much time with him during the week and that on Saturdays his father goes fishing early on Saturday morning. X spoke about a day when his father did not come home from fishing until very late and he said that he was very worried when this happened.
41. X expressed a clear wish to live with his mother. He spoke about his mother getting a job in about October in 2013 and he seemed hopeful that he might be able to live with his mother then. He said that he did not know where he mother might be living and what school he might be attending if he went to live with her. X seemed unconcerned about changing schools and having to make new friends.
42. X mentioned that his mother is a good cook and makes really good curries but that she is “a bit of a worrier” and that she worries a lot about his reading and writing. He said that she also worries about him “going out too far” when he is at the beach. X said, however, that his mother “lets me do most things” but she worries “a bit more” than his father.
43. X said that “it has been ages” since he has seen his parents together and he said that this is because “they fight too much”. As X was leaving the interview room he commented, “Last time Mum won”. He explained that when his parents had gone to Court about him previously, his mother had won and he indicated that he hopes that she wins this time.
44. X was observed individually with both parents and he seemed very comfortable with both parents. He chatted more with his mother than his father but this may have been related to not having seen her for a while. X seemed slightly more physically relaxed with his mother and there was more physical affection between them than between X and his father.”
Ms M made the following comments as to evaluation in the Family Report:
“60. Although X is of an age when his wishes should be given some weight, it is not possible to recommend that he live with his mother due to the unresolved question of his mother mental health status. His mother may be able to provide him with the emotional support and affection that he needs but it is possible that, if he were to live with her, he may have little stability and may become more anxious about his learning difficulties given his mother’s great focus on this.
61. It would, however, be in X’s interests if he were to spend as much time with his mother as possible. The distance between the parents’ homes creates practical difficulties for X spending more frequent time with his mother than he currently does. If it is at all possible it would benefit X if he were able to spend additional weekends with his mother each month, either in Sydney or the (omitted) area.
62. It is clear that Mr Sammut loves X a great deal, is concerned for his wellbeing and was obviously very ready to care for X full time when his mother became unwell. Although Mr Sammut provides X with a reasonably stable life, his care of X, at times, seems to border on neglect. This may be due to his apparent inability to understand X’s emotional needs, especially in regard to X’s need to have a strong parental presence in his everyday life.”
In her oral evidence Ms M reiterated that X was “unequivocal” about his wish to live with the mother and moreover, has cogent reasons for this wish.[36] That said, in response to a question from Mr Jackson as to whether it would be distressing for X to remain with his father in light of his clear wish to live with the mother, Ms M gave evidence that “even though he expressed a clear wish to live with his mother, he didn’t seem adverse to continuing living with his father.”[37]
[36] Transcript, 29 May 2013, page 282.
[37] Ibid, page 283.
On this point, the father made the following comment in relation to X’s expressed wish to live with the mother:
“Mr Jackson: You don’t think he has the maturity to understand a change in residence, where he can move from living with his mother to living with you, as occurred in 2010? He doesn’t understand the concept of going the other way; is that ‑ ‑ ‑?
Mr Sammut: Of moving into (omitted) to live with his mother now? I don’t think he understands the realities of what that entails as far as – well, what would – what his situation would be like if he was living with his mother, not just, as you say, on holidays but on weekends where it’s an adventure and it’s for a short period and it’s fun to go somewhere different and it’s fun to go on the aeroplane. I don’t think he understands the realities of what it would be like living with his mother permanently.”[38]
[38] Transcript, 28 May 2013, page 99.
The assessment of the views of the child has been canvassed in several recent Family Court decisions. In the matter of Hardie & Capris [2010] FamCA1046, Murphy J commented that, whilst attaching significant weight to the views of the child in that case, such views do not form a “safe basis for attributing a preference for person or place or, to be determinative of the ultimate issue before me”.[39]
[39] Hardie & Capris [2010] FamCA1046, at [116].
I consider that whilst X has expressed a clear wish to live with his mother, in the broader context, this says more about his perception of his mother and her ‘worrying’. On consideration I accept Ms M’s evidence and consequently I have placed limited weight on these views.
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons …
There is no doubt in the Court’s mind that both parties love X.
The mother was clearly the primary carer post-separation and until 2010 however it is more questionable as to what occurred during the relationship. That said, though there may be an argument that the mother was more available than the father, there was clearly extensive use of nannies and daycare as well as evidence that the mother’s overseas travel for work were clearly prevalent in the parties’ care of X when they were together and both working.
X is close to both his parents, though it appears ‘emotionally closer’ to the mother and, as stated, aware of her feelings and worries.[40] Ms M further commented:
“I certainly do think he [X] provides the – a certain amount of emotional support. I think his – his – his mother is able – provides him with – with more. I think they have a warmer, closer relationship – emotional relationship. You could sort of say that, you know, it’s more father/son relationship than mother and son relationship.”[41]
[40] Transcript, 29 May 2013, page 283.
[41] Ibid, page 304.
I note Ms M’s observation that the parties have very different parenting styles. The father appears very focussed on the practicalities of parenting. The mother’s style is more personalised and intense. In her evidence Ms M stated that:
“I certainly have concerns about [the mother’s] ability to parent in terms of the focus that she has on those aspects of X’s wellbeing.”[42]
[42] Ibid, page 284.
I note that throughout the Family Report and her cross-examination, Ms M describes the mother as “highly anxious”, “even obsessed” and as having “quite a desperate need to have every tiny detail of X’s problems and what people have said”.[43] The mother appears to have made several phone calls to Ms M after the reports as well with the same presentation.[44]
[43] Ibid, page 284.
[44] Ibid, page 291.
Ms M foreshadowed that too much focus on X’s “difficulties” could make him more anxious about these, which, in turn could make it harder for him to overcome them.[45]
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
[45] Ibid, page 287.
This is also a live issue in this matter. While the communication between the parties is business like, it is far from harmonious. That said, given the history of litigation between these parties, it is perhaps somewhat naïve to think that the parties could have a meaningful dialogue at this low point of their relationship. Although the Court will not make a formal order, there may be merit in the parties researching and completing an appropriate parenting course that has a focus on improving parental communication.
While both parties argue that they have individually been willing to encourage a closer relationship between X and the other party, they each make criticisms of the other in this regard.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation …
As previously stated, the mother’s case involved the relocation of the child.
I accept the father’s evidence with respect to the difficulties he would encounter should he move to (omitted) – which, I reiterate is not his proposal at all. The father is a (occupation omitted) and has built up a career in a Sydney-based (employer omitted).
I note that the parties raised X in Sydney and it was only following separation that the mother moved to (omitted). While the maternal grandparents and the maternal uncle used to live in the (omitted) area, they have since relocated further north to the (omitted) of Queensland.
It is unfortunate that the mother has formed the view that she cannot relocate her residence back to Sydney as, without doubt, many issues that are in dispute between these parties could be overcome by the tyranny of distance no longer being in issue.
Overall, I find that mother’s argument against relocation back to Sydney on the grounds of ‘costs of living’ to be somewhat over-stated. It does not follow that the mother’s need to be in a ‘country’ environment requires her to reside in (omitted).
The Court is also concerned about how X might progress at a new school that is located a considerable distance, not just from his father and paternal grandmother, but also presumably from the friends he has in his current school and neighbourhood.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
At the final hearing, the father did not seek to be heard against the ICL’s proposal for time except with respect to the school terms. The father submitted that it would not be in X’s best interest and not reasonably affordable (or presumably, reasonably practicable) for X to frequently travel to and from (omitted). The father asserted that an increase of four more flights each year would be logistically and financially difficult to accommodate.[46]
[46] Transcript, 28 May 2013, pages 144-148.
The parties do not agree as to when the ‘weekend’ should be taken to commence (i.e. Friday evening or Saturday morning). When asked for her opinion on this point Ms M said that, ideally, the time would commence on a Friday however she understood that there are practical considerations to factor in such as flight times.[47]
[47] Transcript, 29 May 2013, page 304 -305.
While no evidence was tendered or otherwise put before the Court in respect of the flight costs, the father made some comments at the final hearing as to both the costs and the logistics involved in facilitating X’s travel to (omitted).[48]
[48] Transcript, 27 May 2013, page 80-82; 28 May 2013, page 151- 152.
The ICL’s proposed order in relation to the payment of X’s travel did not have a maximum or ‘ceiling’. The ICL submitted that the weekend time with the mother could commence on Fridays and be accommodated with proper planning.
Common sense will need to be adopted by the parties when making the necessary travel arrangements for X. I acknowledge that the expectation may be that suitable and affordable airline flights might be available on Fridays after school to fly up to (omitted) and again on the Sundays to fly back to Sydney. That said, flying times are determined by the airlines and the air travel regulators. Cost is determined by the market often translating to higher airfares being charged at peak times.
Mr Sperling specifically asked Ms M whether there are any difficulties with the mother’s ‘spend time’ proposal with her response as follows:
“Ms M: Well, one of the difficulties of when parents live a long way away and there’s – because that would be every month or more … especially as children get older and they get involved in extra curricular activities and sporting activities, time away from their residential parent can mean they miss out on those things, and they miss out on the social engagements that become important peer relationships as kids grow older, so there has to be a balance and as children grow older sometimes it needs to taper off.”[49]
[49] Transcript, 29 May 2013, page 299.
Ms M considered that it was ‘reasonable’ for X to visit his mother twice each term given the circumstances and factoring in practicality and distance.[50] She also considered it appropriate for half school holidays (rather than all the 1st and 3rd school holiday periods as proposed by the mother) and up to a 3 week block in the summer holidays, provided appropriate safeguards were in place in respect of the mother’s mental health.
Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide to the needs of the child, including emotional and intellectual needs
[50] Ibid, page 300.
The father asked Ms M as to what she meant in paragraph 50 of the Family Report in that ‘Mr Sammut is not prepared to put aside his own needs…” to which Ms M gave the following response to explain:
“…the reason I wrote that is that X made it clear that he would like to spend more – more time with his father, so – and I understand that those – that’s difficult. I felt that he really needs – arrangements need to be made so that that can happen, irrespective of the inconveniences and difficulties that that might cause.”[51]
[51] Ibid, page 289.
Ms M went on to suggest that X is a child who needs a little more attention than other children and “I think it would be important for him to perceive that a parent is actually going out of their way to meet his needs.”[52]
[52] Ibid, page 290.
I note that the comments Ms M made in paragraph 60 of the Family Report (i.e. that the father’s care “borders on neglect”) was qualified to be in reference to those times when the father left X at home alone.[53]
[53] Ibid, page 290.
The mother’s mental health is a clearly an unresolved issue.[54] Ms M believes that a safeguard ‘of sorts’ is still required; that being in the form of medical reports being provided prior to X coming into the mother’s care. That said, Ms M also indicated that it would be appropriate for the frequency of the reports could be reduced to “every second” visit, including before block visits but would be particularly appropriate in the short term (12 months) after the making of final orders.[55]
[54] Ibid, page 295.
[55] Ibid, page 301 - 302.
While the mother was candid in her admissions that she determined that she should reduce and stop taking the antipsychotic drug, Risperdal, it is concerning that she would do so without having received medical advice as to the effects of doing so.[56]
[56] Transcript, 28 May 2013, page 184-187.
I note that Ms M was of the view that both parties have areas and limitations in their parenting of X that they can improve upon:
“Mr Sperling: Are there any other significant limitations that you’re talking about as parents, when you say that?
Ms M: Well, I think that the limitations I would speak about in relation to the mother would be her lack of insight, I think, into the difficulties that she has suffered in the past, and acknowledgement of that and the – at least the possibility that that may reoccur. And also her apparent lack of insight into what does appear to be an over-focus on some aspects of X’s development. On the other hand, I think she’s a very loving, warm mother who only has her child’s interests at heart and has a good relationship with him. In relation to the father I think – as I’ve mentioned before – I think he – X needs him to spend more time with him and…Well, primarily it’s a matter of time and I think it would be helpful if the father was a little bit more responsive to some of the mother’s concerns about X as opposed to perhaps not entering into a conversation about those things.”[57]
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
[57] Transcript, 29 May 2013, page 296
There are no specific additional matters here that assist the Court that have not already been discussed in this decision.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child …
This consideration is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Both parties question the other’s parenting ability.
I refer to the applicable comments made earlier in this decision.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
This consideration is not relevant to the present dispute.
Section 60CC(3)(k): any family violence order that applies to the child or remember of the child's family …
This consideration is not relevant to the present dispute.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
While the Court proposes that any order that it makes be subject to any agreement between the parties that benefits X, it is clear that the parties will continue to require specific orders to assist them in their future parenting.
Generally speaking, the Court is hopeful that, once these parenting proceedings are resolved and further defined orders are in place, there is a reduced likelihood of any further proceedings in the immediate future. In any event, the Court believes the parties would be assisted by a Court order that would require the parents to resolve any future difficulties with the assistance of a Family Dispute Resolution Practitioner.
I would also note here that I believe the father when he says that he was a ‘reluctant applicant’ in both these proceedings and the previous proceedings. The father believes and is motivated by the mother’s mental health issues and desire to not have X at risk.
I also agree with the comment made by Mr Sperling in his closing submissions that this matter needs finalisation.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
An issue arose during final submissions as to the appropriateness of the Court making the following order sought by the ICL:
“26.That a copy of these orders shall be provided to the child’s school and the Mother’s current general practitioner by the Independent Children’s Lawyer”
Mr Jackson submitted that in light of the recent Full Court decision Best & Best [2013] FamCAFC 5 (“Best”), the Court does not have jurisdiction to make the abovementioned order.
In Best, the Full Court held that the following order made by the trial judge was “unenforceable, or probably unenforceable, was in its terms, erroneous”:[58]
“The mother and the Independent Children’s Lawyer may from time to time request from Doctor [D] or such other clinician as the father has been recommended to consult details of the father’s treatment and this order is authority to the mother and the Independent Children’s Lawyer to obtain such information.”
[58] Best & Best [2013] Fam CAFC 5 at [157].
The ICL presented written submissions on this point on 13 June 2013. The ICL submits that the order successfully appealed against in Best is different to their proposed order. The ICL’s order “does not seek to disturb doctor/client confidentiality or provide any authority to the Independent Children’s Lawyer or the Father to obtain ongoing information about the mother’s treatment.”[59]
[59] The ICL’s written submissions filed 13 June 2013 at [7].
Having considered the issue, I agree with the ICL that the proposed order is different from than that considered by the Full Court in Best and that I have the power to make the order sought.
Otherwise, there is no other additional fact or circumstance that the Court thinks is relevant to the present dispute.
Section 60CC(4)
The Court is also required under s.60CC(4) of the Act[60] to consider the “extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent”.
[60] This section, now repealed, is applicable to this case as the proceedings were commenced before 7 June 2012.
I again refer to and reiterate the comments made earlier in this decision.
Conclusion
After considering the evidence and submissions in light of the structured discretion contained in the Act, the Court is satisfied that, with some adjustments, orders in terms of what is proposed by the ICL are in X’s best interests.
Parental responsibility
I am satisfied that the ICL’s proposal for the allocation of parental responsibility is in X’s best interests. Consequently, there will be orders for the parties to have equal shared parental responsibility for X, subject to the father having sole parental responsibility for long-term education and medical decision-making in the event of a disagreement between the parties.
There will be orders of the Court to assist the parties in dealing with issues relating to X’s long-term education and health. In drafting the Orders I have reduced the complexity and length of the consultation process as proposed by the ICL. Given the parties’ need to communicate into the future, there would be benefit to both parties voluntarily undertaking a parenting course designed to improve their inter-personal communication.
The parties also need to recognise that X will soon become an adolescent and will seek to take a more active role in the decision-making processes in his life, in both the short and long term.
Given there will be a qualified order for equal shared parental responsibility, s.65DAA of the Act is triggered and consequently the Court is required to consider whether X’s best interests would be served by making an order that he spend equal time[61] or, alternatively, spend substantial and significant time,[62] with each parent. In this case, an equal time parenting arrangement is not sought by either party and would not be practicable given the parties’ respective residential locations. Before considering this issue further, I must determine where X should live.
[61] Section 65DAA(1) of the Act.
[62] Section 65DAA(2) of the Act.
X’s residence
I am satisfied that despite X’s views, he should remain living with the father in Sydney. The benefits to the child in remaining in Sydney outweigh the benefits of any relocation to the (omitted) area.
As previously stated, the mother ruled out any option of her coming back to live in Sydney. I would ask her to seriously reconsider her position as I suspect that X’s need to travel will, over time, become onerous for him.
Spend time with arrangements
I am satisfied that X should spend as much time as possible with the mother that is both practicable and reasonable.
One problem with the mother’s ‘spend time with’ proposal (i.e X spending time with the mother in (omitted) every 3 weeks) is that it would preclude X from doing any organised sport or other extracurricular activity in either Sydney or (omitted). While there is no evidence that X is currently playing weekend sport, there has been a history of this which appears to have ceased due to the parenting arrangements in place.
To some extent, the same criticism can be made in respect of the ICL’s proposal for two occasions per school term.
In light of the evidence before me, and in particular the reality that the interim orders have been in place for some years now, I am satisfied that the father’s proposal should be favoured during school terms.
The ICL’s minute provides for X’s time with the mother in (omitted) to commence on Fridays. As stated, the reality is that contact in this case is facilitated by air travel. Consequently, given that the arrangements are dependent upon airlines and their procedures for travel by unaccompanied minors, a level of flexibility is needed. I reiterate that common sense needs to be adopted by the parties when making travel arrangements for X.
Regardless, I do not want X being taken out of school unnecessarily to facilitate air travel, particularly as he has already missed an amount of school over the years. Moreover, X clearly has some learning difficulties which require focus and stability at school. That said, I also have concerns about X flying and arriving at either residence late in the evening.
Should the parties (presumably, at this stage, the father) find flights at reasonable times on Fridays then these should be booked. Presuming that X would be travelling from school to the airport, the flight time should be organised so as to ensure that X is settled with his mother in (omitted) by 9:00pm at the latest. The other option, of course, assuming there are no cost-effective or otherwise available flights on Fridays, would be for X to travel on a Saturday morning flight.
I will now consider school holiday and special day arrangements.
The mother’s proposal for Christmas, given the distance between the parties, simply would not work. The father proposes that half of all holiday periods that X spends with the mother include Easter in even years and Christmas in odd years. The ICL also submits that X should spend half of each school holiday period with each party (failing agreement, with the mother from the day after the last day of school term) and for 3 weeks in the long summer school holidays, (failing agreement, with the mother from 2 January each year).
I am satisfied that X should spend half of the school term holiday period with each party and up to 3 weeks with the mother in the long summer school holiday period. In the circumstances, I am further satisfied that there is merit in X spending additional time with the mother for a further week during the July/Term 2 school holidays, in even numbered years. In other words, there will be orders for X to spend two weeks of the Term 2 school holidays every second year with the mother.
I note again that the ICL did not seek orders in respect of arrangements for Christmas or any particular special days (ie. Mother’s or Father’s Day). Considering both parties seek orders for X to spend Christmas with the mother in odd numbered years, I will make orders to that effect.
There will be an ongoing requirement for the mother to provide the father (and ICL) with reports from her general practitioner/treating psychiatrist/mental health caseworker prior to X spending time with her in (omitted). The reality is that the mother has a concerning mental health history which resulted in her being hospitalised and her financial matters being put under the care of the Protective Commissioner.
Other orders
There will be orders flowing from the ICL’s Minute that were agreed to and/or were not contentious. This includes an order for the father to arrange for X to attend upon a paediatrician in the next three months (assuming he has not already done so).
As there was agreement that would enable either party to travel with X outside Australia, then it would be appropriate for the parties to apply for a passport for him. Accordingly, there will be an order that both parties make an application for a passport to be obtained for X which can be retained by the father unless used by the mother for such travel.
Given this decision and particularly being aware that X has expressed a desire to live with the mother, there will be an order for the ICL to meet and explain the effect of these orders to X.
I will now consider the ICL’s cost application against the father.
ICL’s Application for costs against the father
In NSW, the Legal Aid Commission’s ‘ICL guidelines’ oblige an ICL to seek an order for costs unless NSW Legal Aid has waived a party’s liability to contribute to the ICL’s costs.[63]
[63] NSW Legal Aid, ‘Information for Independent Children’s Lawyers’, available at accessed on 27 November 2013.
The ICL sought such costs at the final hearing against the father. An order against the mother is not sought. The mother is in receipt of Legal Aid funding and, pursuant to s.117(4) of the Act, cannot be required to contribute towards the costs of the ICL.
Pursuant to reg.21.02 of the Federal Circuit Court Rules 2001 (“the FCC Rules”), this Court has the power to make an order for costs at any stage in a proceeding.
In family law matters, the Court also needs to consider s.117(1) of the the Act, which states the principle that each party shall pay their own costs. The exception to that rule is contained in s.117(2), which relates to circumstances where the Court finds there is justification for departing from the principle. This exception is subject to the matters referred to in s.117(2A) of the Act.
Pursuant to s.117(2) of the Act, the Court has the power to make a costs order in favour, or against, an ICL. That said, s.117(3), (4) and (5) of the Act are of particular relevance to the issue of costs involving an ICL.
While the applicable wording of s.117(3) now makes it clear that an ICL’s costs can be the subject of a costs order, s.117(5) stipulates the Court is required to disregard the fact that the ICL is funded under a Legal Aid scheme. This revised provision was considered by Dawe J in Kest & Olsson [2012] FamCA 148 (“Kest”). The consequence is that, the reasoning discussed in Telfer & Telfer (1996) 20 Fam LR 619; (1996) FLC 92-376 and subsequent cases no longer appears to be appropriate.
Therefore, the question for the Court to decide is, using the words of Dawe J in Kest:
“… in relation to both the mother and the father in these proceedings, whether, considering the provisions of subs (2A), an order for the Independent Children’s Lawyer’s costs to be paid by the father or the mother or both the father and the mother should be considered just.”[64]
[64] Kest & Olsson [2012] FamCA 148 at [7].
In the event that the Court decides that the making of a costs order is just, then, unless the Court specifies otherwise, such costs are to be paid on a “party/party” basis.
Submissions
As stated, the father and the ICL made brief submissions on this point.
The ICL seeks the father pay $3,223.00 towards the ICL’s costs of these proceedings.
The father opposes the ICL’s cost order. The father has paid his initial contribution of $1,650.00 and indicated that should the Court decide that he should pay the ICL’s costs in the sum of $3,223.00 then he would arrange for his overdraft to be extended in order to meet the payment.
Law and discussion
As to s.117(2A)(a), “the financial circumstances of the parties”, I note that the father earns taxable income of $150,000.00 per year as a (occupation omitted). Despite him also being responsible for all costs involved in parenting X (not limited to funding and facilitating him spending time with the mother) and receiving no child support from the mother, I am satisfied that there is evidence that the father has the capacity to meet the costs order.
As stated, the mother is in receipt of legal aid however s.117(2A)(b) does not apply to the father.
Pursuant to s.117(2A)(c), I must consider the conduct of the parties in relation to the proceedings. The usual type of conduct considered relevant under this sub-paragraph includes actions or issues of delay, the raising of extraneous issues, failure to comply with the requirements of the Court’s rules, and failure to disclose and so on. This criteria was not the subject of any particular submissions by the parties. That said, I see no reason not to accept the father’s evidence that he was a ‘reluctant litigant’.
Sections 117(2A)(d) and s.117(2A)(f) are not relevant to the circumstances of this case.
As to s.117(2A)(e), “whether any party to the proceedings has been wholly unsuccessful in these proceedings”, it would be fair to say that the father’s position, and not that of the mother, was supported by the ICL.
As to s.117(2A)(g), I am satisfied that there are no other matters which I find to be relevant to the application for costs before me that I have not already referred to.
Before going any further I note that pursuant to s.117(3), an order may be made under s.117(2) to the effect that “each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings”.
I further note that I have previously referred to the effect of s.117(4).
Pursuant to s.117(5), I also note again that the Court must disregard the fact that the ICL is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Conclusion
Having regard to the relevant paragraphs of s.117 of the Act and in light of the submissions and available evidence, the Court is satisfied that there should be no order for costs against the father in favour of the ICL. The ICL can, however, retain the initial contribution of $1,650.00 paid by the father.
For the sake of completeness, the Court also finds that it is unable to make the costs order sought against the mother because of the application of s.117(4)(a) of the Act.
Otherwise there will be final Orders and Notations of the Court to reflect this decision, the Court being satisfied that such Orders are in X’s best interests.
I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 11 December 2013
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