SELMAN & SELMAN
[2012] FCWA 72
•31 JULY 2012
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: SELMAN & SELMAN [2012] FCWA 72
CORAM: THACKRAY CJ
HEARD: 30 & 31 MAY, 1 JUNE 2012 AND
WRITTEN SUBMISSIONS (LAST SUBMISSION RECEIVED ON 12 JULY 2012)
DELIVERED : 31 JULY 2012
FILE NO/S: PTW 696 of 2010
BETWEEN: MR SELMAN
Applicant
AND
MRS SELMAN
Respondent
Catchwords:
CHILDREN - RELOCATION - Application by mother to relocate to the United Kingdom - The mother has no family support in Australia and is in serious financial difficulty - Her capacity to provide for the child's needs will be greatly enhanced by being permitted to live in the UK where she will have the support of her large family - Relocation permitted
COSTS - Dollar for dollar order - Payment to be characterised at trial - Effectively wife is seeking a costs order against husband - No circumstances that make it appropriate for husband to pay wife's costs - Costs order discharged
Legislation:
Family Law Act 1975 (Cth), s 60CC, s 60CC(4), s 117(1), s 117(2A)
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Category: Reportable
Representation:
Counsel:
Applicant: Ms N Hossen
Respondent: Ms T Farmer
Solicitors:
Applicant: Calverley Johnston
Respondent: Kim Wilson & Co
Case(s) referred to in judgment(s):
Champness & Hanson (2009) FLC 93-407
G & C [2006] FamCA 994
Marsden & Winch (No. 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Mulvany & Lane (2009) FLC 93-404
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1[Ryan], aged three, has loving and competent parents who have lived apart for most of his life. His mother now wants to take Ryan to live in [in the United Kingdom] (“the UK”) near her family. His father wants Ryan to stay in Western Australia, preferably on his farm in the [Wheatbelt], but otherwise in Perth where Ryan lives at present.
2The decision will affect Ryan for the rest of his life in ways that cannot be confidently predicted. The outcome will be devastating for one of the parents, and their extended families. My task is to determine which proposal is in Ryan’s best interests, knowing that none of the alternatives are entirely satisfactory.
Background
3The mother, aged 36, was born in the UK and is a full-time student. She lives in rental accommodation in the northern suburbs of Perth.
4The father, aged 44, was born in Western Australia and works on his family farm, near [town L]. The farm is about [80] kilometres south-east of [town M]. The other towns in the region are [town Q] and [town F] (both about 70 kilometres from the farm). The [600] kilometre round trip to Perth takes about seven hours.
5The parties met in town L in July 1999 while the mother was on a working holiday. She had been in Australia since September 1998. She commenced living with the father on the farm in September 1999, and they were married in 2004. Neither had been married before. They have one child, Ryan Selman, born [in] June 2009.
6The parties separated in February 2010, when the mother left the farm, taking Ryan, then aged eight months, with her. The marriage had become increasingly unhappy, but the mother claims her departure was precipitated by witnessing the father having sex with another woman in their own home. Whether or not that was true, the mother had already begun making preparations with a view to leaving.
7After leaving the farm, the mother spent a few days in town M, where she obtained an ex parte restraining order against the father. She was in a highly agitated state at the time. Her distress was such that her mother immediately flew out from the UK, although she had only recently returned home after a holiday here.
8The mother and the maternal grandmother travelled to Perth with Ryan on 12 February 2010, and promptly attempted to fly to the UK. The mother had a return ticket, but was stopped at the airport. They then flew to Melbourne, where they stayed with old family friends before coming back to Perth on 17 February 2010, when they moved into a granny flat provided by a friend of a friend.
9In the meantime, the father had commenced these proceedings. He wanted Ryan to live with him, at least on an interim basis (the orders he sought on a final basis were not particularised). He obtained an ex parte injunction restraining the mother from removing Ryan from town M, and an order placing him on the Airport Watch List. The order was not served prior to the mother’s departure for Melbourne.
10On 23 February 2010, the mother applied to set aside the ex parte order, and sought permission to reside in Perth with Ryan. She proposed that the father see Ryan at a supervised centre for two hours each weekend. On 23 March 2010, a consent order was made (on a “without admission” basis) for the father to spend two hours with Ryan every weekend, supervised by the father’s sister, [Sheila]. Prior to this, the parents had arranged a visit supervised by the mother’s [doctor].
11At a further hearing on 13 May 2010, the father proposed that the mother return to live in town M or town Q, and that he be allowed time with Ryan from Monday morning to Tuesday evening and from Friday morning to Saturday evening every week. The father’s request was denied, and instead orders were made allowing the mother to remain in Perth, but extending his time with Ryan to six hours each Saturday. The supervision requirement was removed by consent. The Magistrate otherwise reserved his decision until 29 June 2012, when an order was made for the father to continue to have six hours each Saturday, but with the addition of an overnight stay each fourth Saturday, to be exercised at the home of the father’s sister.
12The father complained that these orders effectively removed him from Ryan’s daily life. The journey from the farm to Perth is a long and expensive one. Even had the orders permitted it, the distance prevented Ryan from returning home for visits. The father missed 11 of the short periods he was permitted to have with Ryan, on each occasion giving notice of his inability to attend, citing the cost. I accept this was no indication of any lack of desire to see his son.
13Ryan was able to return to the farm at Christmas 2010, after the mother consented to an order that he spend four nights with the father. The mother had previously agreed, in August 2010, to lift the restriction requiring the father to spend his overnight time at Sheila’s home. She later agreed to Ryan spending four nights on the farm at Easter 2011. Ryan also spent Christmas 2011 with the father.
14In September 2011, the mother sought, and obtained, leave to apply for permission to relocate to the UK. The father says she only did so after he insisted on a $20,000 bond before he would allow Ryan to travel to the UK for a holiday.
15On 23 November 2011, the contact order was varied by consent. Since then, Ryan has spent time with the father in blocks of four nights, on the second and fourth weekends of each month, commencing at 10 am on Friday and concluding at 6 pm the following Tuesday. The father has not missed any of these periods. The orders also allow each parent to speak with Ryan by telephone each Sunday.
16Financial issues were settled at the start of the trial. The result was that the mother received nothing except her car and furniture (although she obtained relief from a costs order and from reimbursement of a child support overpayment). Her application for spousal maintenance was dismissed. Agreement was also reached that the father would pay child support of $500 per month for four years, rather than the $453 per month recently assessed, which assessment he had challenged.
The parties’ extended families
17The father’s anguish about the impact on him and his family of Ryan being taken to the UK was matched only by the mother’s anguish at the prospect of being forced to remain in Australia, far away from her family. Both parents come from close and loving families and, as these connections are of great importance, I will discuss them first.
The mother’s family
18The mother comes from a large family, who mostly live in and around [town B in the UK]. She is the second of six children, and the eldest daughter. Her parents live on their own farm near a small village which is about a 10 minute drive from town B, a substantial town in [County F], which is a little more than an hour’s drive from [city U]. The mother speaks with her mother by telephone almost daily and they Skype at least weekly. The maternal grandmother is aged 58. The age of her husband was not given, although I note the paternal grandfather, who is himself 74, referred to him as “old [Harry]”.
19The mother has three sisters and two brothers. Her sister, [Roslyn], aged 33, is married with two children, one a boy the same age as Ryan, the other just a baby. Roslyn and her family live within a kilometre of the parents’ farm. The next sister, [Jeanette], aged 27, lives at home on the farm. The youngest sister, [Mary], is aged 24. She is single and works as a nurse in city U. The mother’s elder brother is married with three children, aged between four and eight years, and lives in town B. Her younger brother, who is married without children, lives in [Chicago].
20Notwithstanding having lived in Australia for many years, the mother remains deeply attached to her siblings, especially her sisters. She is in contact with them by telephone and email on a very regular basis, and has contact by Skype at least weekly. The father’s sister, Shelia, commented on the closeness of the relationship between the mother and her sisters.
21Apart from her parents and siblings, the mother has a grandmother, aunts, uncles and about 40 cousins in County F. The family gets together often, and these relatives are well known to the mother. The mother still keeps in regular touch with close friends in the town B area, who have children Ryan’s age.
22The mother has been back to the UK six times between 1999 and 2008. The visit in 1999/2000 was an extended one. Although the father did not acknowledge they were there as long as five months, as the mother and maternal grandmother asserted, they were there long enough for the mother to take up work in city U, to where she commuted daily. The father accompanied the mother home to the UK each time, except for the visit in 2006 for Roslyn’s wedding.
23The mother’s parents and fifteen of her relatives came to Australia for her wedding in 2004. Roslyn and her husband came out for Christmas 2007, and Roslyn came out in 2002, 2004 and 2006. The mother’s parents, Roslyn and her husband, and Jeanette and her boyfriend all came out for about three weeks to attend Ryan’s baptism in January 2010. As already noted, the grandmother then came back immediately following the separation, and stayed for 18 weeks. The mother has had no time with her family since her mother went home in 2010, save for a visit by Mary and Jeanette in the middle of 2011. This is the longest the mother has not seen her parents since coming to Australia.
24Although the father asserted that the mother “has family out here”, who he described as “cousins”, it turned out that the two people in question are, at best, distant relatives, who the mother only met after she came to Australia. The mother has not seen one of them for two years, and she sees the other (aged in her 70s) only infrequently when they “bump into each other at the shops”.
The father’s family
25The father has lived at town L all his life. He has his own land, but his residence is located on his parents’ property. His mother and father (aged 71 and 74) live in their own home, a few kilometres from the father’s residence. They were regular visitors to the parties’ home before the separation, and thus saw Ryan often, but not much thereafter until the longer visits commenced in November 2011.
26The father has three sisters, all of whom are married. Sheila lives in Perth, [Melanie] lives in Bunbury and [Lucy] lives in [town X]. The father’s sisters are all older than him, and the father did not deny the mother’s assertion that all their children are now grown up. Whilst the family appears close, the distances prevent them from spending much time with each other, although they try to get together on special occasions, usually Christmas or Easter.
27Sheila and her husband do not go to town L often – with visits being restricted to about once, or twice a year at most. The father and mother mainly saw Sheila’s family when they came to Perth and stayed with them, which they did about every six to eight weeks. Sheila and her family continue to see the father when he comes to Perth, but see Ryan only when he is with his father. These visits must now be fairly brief, as Ryan returns to the farm during contact periods. Sheila’s husband acknowledged the frequency of their visits to the farm would be unlikely to change, even if Ryan was living there.
28Melanie and her family rarely travel to the farm, with the frequency of the visits having been affected by a health problem Melanie suffered some years ago. She has not seen much of Ryan, but keeps in touch with him by telephone. Lucy did not provide an affidavit, but the evidence suggested that her contact with the father and the mother was no greater than Melanie’s. Thus, it will be seen that, of the father’s siblings, it has only been Sheila who has had any significant involvement with Ryan. Sheila and her husband also appear to have been the only members of the father’s family who have visited the mother’s family in the UK, having stayed with them for a few days in 2007.
29The only other relatives of the father of significance are his cousin, [Steve], and his partner, [Lynette], who live a few hundred metres from the father’s house, and are thus by far his closest neighbours. Although they used to visit regularly, Steve and Lynette have been busy with their own children (aged 5 to 11 years). Lynette said their commitments meant their lives had gone “in different directions” by the time Ryan was born. They only visited every four to six weeks, although they now try to see Ryan each time he comes home to the farm.
Orders sought by the mother
30The orders ultimately sought by the mother were contained in a Minute handed up at the trial. She sought liberty to relocate to the UK after 15 December 2012, with a view to being home for Christmas this year (the father having had Ryan for the last two Christmases). She proposed that, pending the move, Ryan would spend time with the father in terms of the current order, which allows the father to see Ryan for four nights, twice a month. She proposed that after she moved home to the UK, the father would spend time with Ryan:
•in 2013 and each alternate year thereafter for:
• three weeks during the summer holidays, in the UK; and
• up to three weeks during the Christmas holidays, in Australia;
•in 2014 and each alternate year thereafter for:
• up to three weeks during the summer holidays, in Australia; and
• up to three weeks during the Christmas holidays, in the UK.
31In addition, the mother proposed that, with effect from June 2014, when Ryan turns five, the father have one further period with Ryan each year, for up to three weeks, in either Australia or the UK. This would mean that, after 2014, the father could have “up to” nine weeks each year with Ryan, spread over three visits. For what it is worth, the mother also said she was agreeable to the father having such extra time as might be agreed when the father is in the UK or she is in Australia. She proposed one telephone call to the father each week, as well as one Skype session, and such other telephone contact as Ryan might wish to have.
32The mother proposed that all of the child support payments should be set aside to pay the costs associated with the contact visits, on the basis that any shortfall be met equally. This arrangement was to continue until 30 June 2017, after which the mother proposed that all costs be met equally.
33The mother sought sole parental responsibility after she moves to the UK, on condition she would “continue to consult” the father about issues of health, education and religion, and keep the father informed about Ryan’s health and education.
Orders sought by the father
34The father’s proposals were contained in his Amended Response in which he sought sole parental responsibility if the mother was not living in WA. He proposed that Ryan live with him, and spend three weeks each year with the mother, to include each alternate Christmas, as well as having “liberal telephone communication”.
35In the event the mother stayed in WA, the father sought equal shared parental responsibility, and a fortnight-about equal shared care regime, which would continue until Ryan commenced full-time school. After Ryan starts school, the father proposed he should live with him, and see the mother each alternate weekend from 10 am Saturday to 5 pm Sunday, as well as two weeks in the first and third term school holidays and half of the summer holidays, including each alternate Christmas.
36The father proposes that both parents be able to take Ryan out of Australia for holidays of not longer than three weeks, but only on certain conditions, including the deposit of a $20,000 bond.
Credibility and impressions of the parents
37The mother and father impressed me as decent and responsible people who are united in wanting the best outcome for Ryan. As would be expected, they viewed the past from their own perspective and, when in doubt, tended to answer questions in a way that would increase the chances of achieving their objective.
38The most important matter about which their evidence differed concerned their conduct toward each other during the relationship. I will discuss this later, it being sufficient here to say that I thought the mother had to some extent dramatised her evidence about the father’s conduct, while the father failed to acknowledge the extent to which his behaviour had been controlling and unpleasant.
39I found the father inclined to see things in black and white terms, with an emphasis on what he considered “right” and “fair”. I thought his responses did not always immediately focus on what was best for Ryan. On the other hand, the mother appeared more inclined to consider first the impact on Ryan, albeit I was inclined to think she was somewhat “over protective” in contemplating various scenarios.
40One matter about which there was stark conflict was the mother’s claim that she heard, and saw, the father having sex with a Mrs M in a spare room in their house in the early hours of the morning on which she left the relationship (7 February 2010). Viewed alone, I do not consider this to be of significance in deciding what outcome will be best for Ryan. However, the stories need to be carefully assessed, since if one has deliberately lied, it would affect my view of the reliability of their other evidence.
41Mrs M and her husband are long-time friends of the father, Mr M having been groomsman at the parties’ wedding. The father freely acknowledges he and Mrs M are close friends. Amongst other things, they are both office bearers in a [local club]. The father acknowledged he had confided in Mrs M about his marriage problems (albeit he spoke to others as well). The mother had also been on good terms with Mrs M, but she had become suspicious of her association with the father prior to the separation, so much so that the father said she asked him to stop being friends with Mr and Mrs M, which the father found “strange”.
42The mother claimed that on his birthday in February 2009, after returning from the hotel in the early hours, the father had an angry exchange with someone on the telephone. The father explained that he was angry with the person to whom he had been speaking because they had said he was “having something on” with Mrs M. The mother said she became suspicious and asked if it were true, but the father then become very angry with her, and started pushing her around.
43Later in 2009 the father and Mrs M had a day trip together to Perth, each having separate business in the city. Although given in a different context, the evidence revealed that the father and Mrs M also went to town M together on 6 February 2010, the day before the separation, to purchase a gift on behalf of the community for a local family. The father had also gone to Mrs M’s home with Ryan on 5 February 2010, while the mother was away from the property for the day having lunch with friends for her birthday. The father and Mrs M said he had to leave Ryan with Mrs M while he attended to an emergency at the local hall.
44These two meetings between the father and Mrs M immediately preceded what the mother claims to have witnessed in the home during the early hours of 7 February 2010. The father acknowledged he had not returned from the hotel until 4.30 am that morning, but he denied bringing anyone home with him. His testimony was given in a convincing fashion. Mrs M, who appeared to be of good character and a reliable witness, denied having been in the father’s company at all that night. I should say it also seems implausible that a respectable married woman, who was pregnant at the time, would travel to the isolated farmhouse in the early hours of the morning and have sex with the father, almost certainly knowing the mother was home. Had such conduct ever come to light, I doubt that Mrs M would have been able to show her face in local society, of which she seems to be a prominent member.
45There is, of course, another possibility, namely that the father did bring a woman home, but not Mrs M. By this point, the marriage was at its lowest ebb. The mother had told the father she did not want him in the house and he had started sleeping in his ute, not being prepared to stay with his parents. He was angry with the mother for the way she had been behaving towards him, and admitted having recently told her she was “acting like a cunt”. I was inclined also to accept the mother’s description of the ungracious way he handed over her birthday present when he came back from the trip to town M with Mrs M (which was, in fact, the day after her birthday).
46In any event, following his return from his trip to town M with Mrs M, the father spent the evening at the town L hotel. Although he says he did not have much to drink, the father did not return to the farm until the early hours of the morning. He said that after the hotel closed he had stayed on outside, on what was a very hot night, talking with a group of people, including some he named, as well as an unnamed “barmaid”. It is not beyond the realms of possibility that, under the influence of at least some alcohol, and in a high dudgeon about the mother having “kicked [him] out of the house”, the father persuaded one of his drinking companions to come home to engage in conduct he knew would humiliate the mother.
47In this context, I note the mother’s evidence that one of the father’s cousins had, a few months previously, stayed with them for a couple of days, during which time the father and his cousin had come home from the same hotel very late. The mother said she had heard some “weird noises and movements” which appeared to be coming from the cousin’s room, and wondered if the cousin had a woman with him or if he was watching pornography. The mother said that when she wanted to get out of bed to check on Ryan, the father had held her arm tightly and refused to let her leave their bedroom, saying she should “let [the cousin] be”.
48The mother’s evidence about what happened on the morning of 7 February 2010 was also given with great conviction, so much so it seemed she truly believed what she was asserting. The first question is what would be her motive for making up such an apparently preposterous story? One potential answer is that she had decided to leave the marriage, but felt the need to explain to others why she had uprooted their little baby and taken him away from his father, who appears to have been well-liked and respected in the local community.
49The mother may also have thought that alleging such conduct might assist her in future legal proceedings. In this regard, however, it is noteworthy the mother did not mention the incident in the restraining order proceedings commenced immediately after separation. She did, however, tell her then good friend, [Ms W], about it within a few hours of the alleged incident. Ms W, who gave evidence for the father, said the mother sounded distressed when she spoke to her. Ms W said the mother had told her she heard sounds of sexual intercourse from the spare room, and smelled a woman’s perfume, but when she asked the mother whether she had actually seen the father having sex, she said she had not. The mother now says she did, in fact, see the father having sex, albeit from a distance across the house.
50Ms W seemed to be a credible witness, and if she is, then the mother’s claim that she actually saw the father having sex would be an embellishment on her original story. I should note, however, that when asked in cross-examination whether she remembered the conversation she had with the mother, Ms W said, “sort of”, although she sounded much more confident in recalling that the mother had denied that she had seen the sexual activity. It is noteworthy, however, that Ms W also gave evidence that she had asked the mother whether the father had been violent toward her, to which the mother responded in the negative. Had the mother been willing to lie in order to provide justification for leaving, it would seem surprising she would deny the father had been violent when presented with that suggestion, especially in light of her claims in these proceedings of rough handling by the father.
51Turning to explanations other than fabrication, it is important to realise the mother’s life was in turmoil. She was living an isolated existence, and was very miserable as her parents had just gone home. On the father’s own evidence, they only went out socially “once in a blue moon” after Ryan was born. Even their nearest neighbours, with whom they had once socialised often, now rarely saw them. The marriage was unhappy. The mother and the father had recently been on a harrowing journey to Perth for counselling, and had had a frightful argument on their return, which could have been what caused Ryan to be badly distressed that night. Ryan suffered from reflux and indigestion, and was often hard to settle, which caused the mother to be very tired. It is at least possible the mother had lain awake, ruminating over the father’s trip to town M with Mrs M, and his visit to Mrs M’s home the previous day, waiting for sounds of his delayed return from the hotel, when she fell into an exhausted sleep, during which she dreamed what she now so vividly recalls.
52Ultimately, I am left in doubt about what to believe. I am unable to make a finding that the father brought anyone home with him. However, I am also unable to find the mother intentionally lied. This prolonged discussion therefore ultimately does not assist me in arriving at any view other than that the mother and the father both appear to be generally honest people. In any event, I would not judge them by what they did or said during this time of crisis in their lives.
53I found all the other witnesses, including the mother’s mother and sister who gave evidence by video, to be pleasant, honest and sensible people, who were united in wanting the best for Ryan, although having the usual tendency to be somewhat supportive of the party for whom they were giving evidence.
54The father’s parents impressed as gentle, candid folk. The grandmother at times seemed to have be caught between her natural inclination to be frank and her realisation that part of her evidence might lend support to the mother’s case. The grandfather volunteered that he “quite liked” the mother, who he thought was a “wonderful person” when he met her, and with whom he could not remember having had “a cross word”. He also did not like the fact that he had not been able to speak with the mother since the separation because of possible legal ramifications. It is unfortunate the father’s family have felt obliged not to “engage” with the mother, given their previous generally friendly relationship. That said, the mother did not give any indication of wishing to have ongoing engagement with them either.
55In summary, all of the witnesses seemed to be decent and well motivated people, deeply aware of the likely impact of the proceedings on Ryan and his parents.
The parents’ proposed arrangements for Ryan
56If the mother is permitted to relocate, she will live with her parents until she is “settled”. The parents have a large house, and both the mother and Ryan will have their own room, and will share their own bathroom. There is a spare car available for the mother’s use.
57Ryan would start school in the UK in September 2013. He would attend the local Catholic school, which the mother attended. Some of his cousins will attend the same school. The school is said to be free, unlike the Catholic schools the mother would hope Ryan could attend in Perth.
58The mother is currently studying for her Bachelor of Education, with a view to becoming a teacher. She will not complete her studies until 2014. If she relocates, she anticipates being able to obtain credits for units already undertaken in Perth. She will complete her degree by commuting to city U or city R, although she expects to be able to undertake some studies externally. She hopes to enrol in what will be the second semester in January 2013, and complete her studies in 2014.
59The university holidays straddle the school holidays, thus making it possible for the mother to care for Ryan during holidays and facilitate contact visits. The mother anticipates that her family will assist by minding Ryan while she is studying. Her mother works part time in the family business, which is run from the farmhouse. There is also a good crèche in town B, which Roslyn has used.
60The father has no concerns about the mother’s arrangements for Ryan in the UK, save for his concern about the impact on his time with Ryan and his fear the mother will not facilitate an ongoing relationship. The mother similarly does not have any real concerns about the father’s arrangements. Although his work is flexible, he would rely on his mother for help (especially in busy times on the farm). His mother expects to have a “fair bit” of involvement in Ryan’s care.
61There was some confusion in the evidence given by the father’s family about whether Ryan would be going to school in town M or town Q. However, the father was clear that Ryan would be educated at town M, to where he would catch the school bus daily from age five. The bus to town Q goes near the father’s home, but Ryan would need to change buses to get to school in town M.
62When it was put to the father that his plans would involve Ryan travelling two hours every day (which seems perhaps an underestimate), the father’s response was, “I had to do it”. I am not sure that this is so, since it emerged from his mother’s evidence that the father’s older siblings at least all went to the primary school in town L, which has since closed down. The father and his siblings did not catch the bus to high school, as they boarded in town M. If Ryan caught the bus, it seems he would need to leave home every day well before 7.30 am. (Mrs M said her child is collected at 7.30 am, but she lives about 30 kilometres closer to town M).
63The school at town M goes to year 12, and there is also a TAFE. There is a hostel in the town, albeit the father said he probably would not be able to afford to have Ryan board there unless he had better seasons on the farm. Lynette, the partner of the father’s cousin, [works at the school in] the town Q school, which goes only to year 10. She said there had been discussion about Ryan going to her school, which was easier to access because of the proximity of the bus. She noted that some other children have to travel as far to school as Ryan would.
64The farm is apparently about 38 kilometres from town L. There are no shops nor any other facilities in town L, save it seems for the hotel and the hall. The maternal grandmother expressed astonishment, when she first visited, about the isolation and absence of services. This is, however, nothing unusual in rural WA, where distances are large and services limited. Having myself grown up in similar circumstances, I do not think this is a significant factor. Nevertheless, the length of travel to school does not advance the father’s case, especially given the possibility that Ryan might eventually end up boarding in town M if he lived with the father.
Applicable law
65These proceedings are governed by the Family Law Act1975 (Cth) (“the Act”). Importantly, the Act makes Ryan’s best interests the paramount consideration.
66In deciding what orders will best promote Ryan’s best interests, I must be guided by the objects of the legislation and the principles underlying them. The objects provision makes clear that children’s best interests are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
67The principles underlying those objects are that, except when it would be contrary to the children’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
68The Act also requires me to apply a presumption that it is in Ryan’s best interests for his parents to share parental responsibility equally. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with either parent, has engaged in child abuse or family violence (as defined in the Act). This presumption may be rebutted by evidence that it would not be in Ryan’s best interests for the parents to have shared parental responsibility.
69Importantly, the presumption concerns only the allocation of parental responsibility, and does not govern the time Ryan will spend with each parent. However, if I did decide to make an order for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time with each parent, or substantial and significant time with the “non-residential” parent, would be in Ryan’s best interests. If either of those alternatives is in Ryan’s best interests, then I must consider making such an order, provided I have also found the arrangement to be “reasonably practicable”.
70In determining what is in Ryan’s best interests, I must consider the matters referred to in s 60CC. These are divided into two “primary considerations” and many “additional considerations”. I am also required to consider the matters in s 60CC(4), which relate to the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent. Recent amendments made to s 60CC do not apply as these proceedings started before the commencement of the Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 (Cth).
71The dichotomy between the “primary” and “additional” considerations has been discussed in judgments of the Full Court which have considered the significance of Parliament having described just two of the factors as being the “primary” considerations. In Marsden & Winch (No. 3) [2007] FamCA 1364 the Full Court (Warnick and Thackray JJ, with whom Le Poer Trench J agreed) said (at [77]):
The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
72Similar views were expressed in Champness & Hanson (2009) FLC 93-407 at 83,502 [101] - [103] and Mulvany & Lane (2009) FLC 93-404 at 83,450 [84].
73I also respectfully adopt the following analysis, provided by the Honourable Professor Richard Chisholm in “The Family Law Amendment (Shared Parental Responsibility) Act 2006: An Overview”:
It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolute. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration… Third, and most obviously, it is expressly stated in [paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.
74It is within this legal framework that I must determine this case.
The primary considerations
75I will discuss the two primary considerations first.
The benefit to the child of having a meaningful relationship with both of the child’s parents
76This factor needs to be examined in light of the first of the objects of the Act, namely that of “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”, and also in light of two of the underlying principles, namely that, except when it is or would be contrary to a child’s best interests (my emphasis added):
•children have the right to know and be cared for by both their parents…, and
•children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).
77Although this provision has been given a prominent position, the term “meaningful relationship” is not defined in the Act. However, I accept that “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child” and that “meaningful” is “a qualitative adjective, not a strictly quantitative one”: see Mazorski v Albright (2007) 37 Fam LR 518 at 519.
78It will also be observed that the focus of this consideration is on “the benefit to the child” of the child’s relationships with both parents. I respectfully concur with Bennett J’s analysis in G & C [2006] FamCA 994, where her Honour said (at [72]) the benefit to a child of having a relationship with both parents cannot be treated as “a given”, and that it is necessary to “evaluate the extent to which a meaningful or significant relationship with both of [the child’s] parents is going to be beneficial and of advantage to [the child] into the future”.
79In my view, it would be in Ryan’s interests to have a meaningful relationship with both his mother and his father. As I said at the outset, they are loving and competent parents, who want only the best for him. I accept that the father’s ability to maintain a relationship will be compromised if Ryan relocates, given he is young and the father could have only very occasional visits. However, his capacity to retain a relationship with Ryan will be enhanced by speaking to him on the telephone regularly, and especially by keeping in touch by Skype. This is one of the advantages of the mother having remained in WA for what will be nearly three years, as it has allowed Ryan to form a strong relationship with his father and with the paternal grandparents. This provides a basis from which to maintain and ultimately build their relationship, even if separated by even greater distances.
80In considering the likely quality of the father’s future relationship with Ryan, it is vital to appreciate that the current four day visits will no longer be viable when Ryan commences school, assuming the mother remains in Perth. Thereafter, contact would be restricted to weekends (probably alternate weekends at best) and school holidays, since the father made it clear he has no intention of moving to Perth. The reverse might not be the case if I were to order that Ryan should live with the father. In that event, although it was not put to her, I consider there would be a prospect the mother would try to live in town M or town Q, unpalatable as this would be, as this would allow her more time with Ryan.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
81The father’s Papers for the Judge said there was no risk of physical or psychological harm to Ryan. The mother’s Papers for the Judge did not mention this factor, but in the course of giving evidence the mother expressed concern about the way the father might treat Ryan, given how he treated her in the past.
82I have already recorded my view that the mother’s complaints about the father’s behaviour may have been dramatised to some extent, but I accept that the father’s conduct would, on occasions, have been upsetting for Ryan. I do not consider, however, that there is any prospect of him behaving in the future in a way which would subject Ryan to, or cause him to be exposed to, abuse, neglect or violence.
The additional considerations
83I next turn to the “additional considerations”.
Any views expressed by the child
84Ryan is not old enough for his views to be relevant.
The nature of the relationship of the child with each of the child’s parents and with other persons (including any grandparent or other relative)
85Although the father was not prepared to acknowledge it fully, I find that the mother was Ryan’s primary caregiver. She breastfed him until two months prior to separation, and was the parent who provided for most of his daily needs. She has been principally involved in his care since separation. I consider Ryan’s relationship with his mother to be one of primary significance to him.
86The father has always taken great interest in Ryan’s well-being. He was a competent, hands on parent, who provided the mother with assistance in caring for him, including looking after him on occasions when the mother went to town M or town Q. Through no fault of his own, the father had limited involvement with Ryan for nearly a year after the separation, which is a significant period of Ryan’s life. Since then, the father has had Ryan for eight days each month.
87Whilst I consider the quality of Ryan’s relationship with his father is likely to be of a different nature to that of his relationship with his mother, it is nevertheless a most important one. Although the father’s Papers for the Judge claimed that Ryan has not been allowed to “bond sufficiently” with him, the fact is that Ryan goes off happily with his father and greatly enjoys the time he spends with him.
88It was noteworthy, however, that when the father’s mother, a mature and sensible witness, was asked if it was in Ryan’s best interests to live permanently on the farm and not with his mother, she said the question was “a bit hard to answer” and that she “did not know” and that she had a “mental block”. Lest the father’s mother be worried she damaged her son’s case by what might be seen as her prevarication, it is important to record I would have concluded anyway that it would not be in Ryan’s best interests for him to live primarily away from his mother.
89Turning now to Ryan’s relationships with the father’s parents, it is clear they were a regular part of his short life prior to separation. The grandmother assisted with some babysitting, and household tasks. Ryan’s mother volunteered that he enjoys his time with his grandmother. The grandfather also takes great interest in Ryan. He accepted he had not “had a great lot” of involvement with Ryan before the separation, having held him “a few times”. However, I accept the grandfather’s description of his current relationship with Ryan as one of being “great mates”.
90I therefore accept the father’s assertion, given immediately before he burst into inconsolable tears, that his parents have a very good relationship with Ryan, and “love him to bits”, which is why they had offered their “life savings” to finance the father’s legal representation. In an ideal world, Ryan would continue to spend a great deal of time with these very good grandparents.
91Ryan has never lived in the home of the paternal grandparents, but he did live with his maternal grandmother when she came to stay for 18 weeks in 2010, during which time they resided together in the granny flat. She remained here for Ryan’s first birthday. Two of the mother’s sisters stayed with Ryan for nearly three weeks in 2011, at the time of his second birthday. Ryan has also been kept in close contact with his mother’s side of the family by telephone and Skype.
92I accept that, at present, Ryan’s relationship with the mother’s family is not as important to him as his relationship with his paternal grandparents. However, given his young age, and what I find to be the warmth and strength of the mother’s family connections, I consider it is probable Ryan will form many family attachments in the UK that are as strong as, and in the fullness of time likely to be stronger than, those he presently has with his paternal grandparents, who are, as the paternal grandmother herself said, “getting on in years”. Importantly for an only child, some of those attachments will be with cousins who are Ryan’s age and who he will go to school with. They could be attachments that will last a lifetime.
93Although Ryan would benefit from the relationships he has with his father’s sisters and their families, and with his father’s cousin Steve and his family, these relationships have, for a variety of reasons, not had an opportunity to become strong. Nor are they likely to flourish if Ryan remains living with the mother, since the father’s family has no contact with her. In particular, Ryan’s relationships with his aunts Lucy and Melanie and their families are not likely to be of great significance, given that the families come together so rarely, and that their children are so much older. These relationships are of a nature quite different to the relationships I consider it is likely Ryan will forge with his aunts [in the UK] and other members of his mother’s family.
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
94I am satisfied the father would facilitate Ryan’s relationship with the mother if Ryan lived with him. Apart from the fact I perceive him to be respectful of authority, and hence likely to comply with court orders, I consider that he appreciates it would be important for Ryan to see his mother. I recognise that his original proposal was for the mother to see Ryan for only one night each fortnight during school terms, however that proposal recognised the problems arising from the great distances involved. The father’s proposal in his oral evidence for Ryan to see his mother every weekend, whilst commendable, was scarcely realistic unless it was assumed the mother would move back to live near the farm.
95Although the father doubts the mother would facilitate his relationship with Ryan, I am satisfied she would do so. To some extent the proof of the pudding has been in the eating. In my experience it is difficult, if not impossible, to achieve a satisfactory contact regime with a very young child without the cooperation and encouragement of the “residence parent”. The father now has such an arrangement, and the mother should be given some credit for this. She has always made Ryan available to the father pursuant to court orders, notwithstanding Ryan’s various illnesses along the way. She has ensured Ryan has a photo of his father by his bed, and photos of his family in his bedroom. She has made up a “special book” of photos, and points out relatives to Ryan. Some of these photos are of when the father and mother and Ryan were together. In this context, I thought it telling that one of the very few times the mother “lightened up” at trial was when she was describing the good times Ryan has during contact visits. She seemed to take genuine pleasure in the fact that Ryan enjoyed these activities with his father and grandparents.
96The only concrete complaint the father was able to make about the mother not facilitating contact was that he was once not able to speak to Ryan by telephone. This apparently occurred on the first occasion telephone contact was meant to occur, when the mother told the father she and Ryan had been at Carols by Candlelight. This was not put to the mother in cross-examination.
97I accept that the mother has not kept the father informed about the arrangements she has made for Ryan since coming to Perth. She did not tell him she was studying, nor did she inform him of the childcare arrangements. He was also left in doubt about where she was living. I consider the mother should have told the father at least that she was studying and explained the childcare arrangements.
98The father’s lack of confidence about the mother facilitating his relationship with Ryan probably stems from her conduct after separation, when she proposed only very limited and supervised contact. However, I find the mother had legitimate initial concerns about how the father would handle the separation. In particular, whatever truth there may be in her allegations about his other behaviour, I accept the father had made remarks which led the mother to entertain some fear he might harm himself.
99In considering the mother’s behaviour, it has to be appreciated that Ryan was very young at the time. It is common for a primary carer to have anxieties about their child being away from them for too long. That said, as the mother had been prepared to allow the father to care for Ryan all day before separation, I consider the initial two hour visits were far too short, especially given the distance the father had to travel to enjoy them.
100I am not persuaded the mother intended to go home to the UK permanently at the time she was stopped at the airport after separation. There were many indicators she was planning to come back after the [holidays in] March 2010. Amongst these was the fact she had purchased a return ticket and that she would not have bothered to have her mother come out here if her plan had been to catch the next plane home. Whether the mother would actually have come back voluntary, once she settled in the UK, is another matter.
101In making her plans to travel to the UK so soon after separation, I accept the mother had taken into account the fact that the father would not be seeing Ryan for at least four weeks anyway because of the restraining order. She had also discovered that all the funds in the joint account, to which she needed access to live, had been removed. I also accept she wanted to “clear [her] head” and had been persuaded by her sisters to “just come home”, which is a perfectly normal thing for a mother to do at such a time.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or from any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
102I do not have the benefit of a family report or any expert evidence to assist me in assessing this important factor. However, it seems to me that Ryan has a fairly robust personality. Thus, for example, the father did not deny that he was a child who, when he falls over, generally gets up “and gets on with it”, and only cries if “hurt significantly enough”. The father said Ryan had adapted well to the four night contact regime and never asks after his mother. The father also believes Ryan would adapt to his proposal for, first, a shared care arrangement, and then seeing his mother only on weekends. He also considered that if Ryan did go to the UK he would cope with a seven to eight week block period with him in Australia once a year.
103Although I doubt that Ryan would cope as well with spending so much time away from the mother as the father believes, he does appear to have resilience in his makeup. Thus, while he has understandably become tired with the travelling and excitement associated with the regular long journeys to the farm, he nevertheless has coped with this and is ready and eager to head off again for the next visit.
104A child with such a robust personality, in my estimation, is more likely to be able to cope with picking up his relationship with his father and extended family on infrequent visits than would a child who has difficulty separating from his primary carer. Nevertheless, I accept that a move to the UK is going to have an adverse impact on Ryan’s relationship with his father and with his paternal grandparents. These negative impacts, however, need to be assessed in light of the fact that the move will give Ryan an opportunity to form important new bonds with the mother’s extensive and close-knit family in the UK. There are also other benefits that I will discuss below.
105I understand the father’s concerns about Ryan not seeing the children with whom he is familiar at town L, who seem mainly to comprise the tiny group he sees at the hall once a fortnight. The reality, however, is that once Ryan starts school, if he remains in Perth, he is unlikely to be able to keep up such associations. In my estimation, the negative impact of losing contact with these friends would be more than made up by joining a larger group of young relatives (and their friends) in the UK. This is a matter of some significance for an only child.
106It is also worth mentioning that the mother expressed a strong desire for Ryan to take part in sporting activities in the UK. No doubt he could do the same in Perth (albeit probably not the sports the mother mentioned) but any weekend team sports would be disrupted in the event the father decided, as I consider likely, that Ryan should go home to the farm as often as possible. While this is not a factor of great importance, it shows that any contact arrangement has “plusses and minuses”. One other possible “plus” associated with infrequent visits is that Ryan will have less exposure to what appear to be the rather “chilly” handovers that presently occur.
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
107There will be much difficulty and expense associated with Ryan spending time with his parents, regardless of which scenario is preferred. In considering this fact it is important to record again that the father is not prepared to move to Perth, and the mother does not wish to return to live in any of the towns “near” the farm. In my view, both those positions need to be respected, since each parent has perfectly good reasons, even if the father has difficulty in understanding why the mother could not see her future in town Q or town M.
108If the mother is required to remain in Perth, there will be 14 hours of travel associated with every visit (seven hours for Ryan) unless the father stays over in Perth, or the mother stays over in town M, which would create its own difficulties as a routine arrangement. However, returning to the farm regularly for anything other than long weekends will be problematic once Ryan starts school. It would certainly be unreasonable to expect him to make the journey more than once a fortnight, and even that is likely to become tedious as the years roll by.
109Driving back and forth will be expensive, both in terms of fuel and wear and tear. This is so regardless of whether the father continues to do all the travelling, or the mother shares in that duty. In any event, there is no proper basis upon which the mother could be made to share the travel until she has a regular income, since she clearly could not afford the cost on her present income.
110There would, of course, be even greater problems associated with contact if Ryan were to relocate to the UK. The time would be restricted to school holidays, unless the father is willing and able to spend time in the UK during school terms, the chances of which would seem to be fairly remote. In fact, the father eschewed the idea of spending time with Ryan in the UK at all, even in the holidays. His reasons for this (apart from the obvious financial one) were far from persuasive, being mainly confined to concerns for his “safety”. I should mention that no consideration was given at trial to the father relocating to the UK, even if he were legally able. His Papers for the Judge said only this, “The Father has never in the past expressed a preparedness to live in the UK. The Father is committed to continuing to work on the family…farm”.
111It was agreed the cost of a return airfare to city U is in the range of $1,800 to $2,500, with the father candidly suggesting figures at the lower end, and being prepared to proceed on the basis that a “working figure” of about $2,000 would be appropriate. No evidence was given about the cost of short-term accommodation in the UK, nor the cost of vehicle hire.
10.In the event the Applicant ceases to instruct a solicitor in these proceedings, the Respondent have liberty to relist her Application on short notice, with the dollar for dollar order commencing 12 September 2011.
172It will be noted that paragraph 9 of these orders dealt with the characterisation of the anticipated payments, notwithstanding Kaeser AM had made his orders by reference only to the costs power in s 117 of the Act. In deciding to make these orders, his Honour accepted the husband was “not generally in a strong position”, but considered he was nevertheless in a position of “relative financial strength” by comparison with the wife, albeit that was because the husband had “greater access to debt than she does”. By “access to debt”, his Honour meant that the husband had been able to pay his then legal costs of about $35,000 by way of a combination of loans and drawings from the farming partnership and with assistance from his family.
173The husband did not seek to appeal the costs order. Instead, on 23 January 2012, he filed an amended response by which he proposed that the order be “dismissed”, and that funds paid pursuant to it be characterised as partial property settlement. The husband has made two payments under the order. The first was for $7,760 on 4 January 2012 and the second was for $2,376 on 16 April 2012.
174At the time of the making of the order, the husband was represented by Mr Nathan Laird. On 13 March 2012, Mr Laird ceased to act for him. The husband thereafter represented himself until a week before the trial commenced. Mr Laird was (and still is) owed $25,000 in fees, although he will accept $15,000 in full payment. Although the wife had been given liberty to relist her costs application in the event the husband ceased to be represented, she did not seek to do so.
175On 22 May 2012, Calverley Johnston filed a Notice of Address for Service, indicating they were now representing the husband. Ms Noelle Hossen was engaged as his counsel for the trial. The wife was represented by Kim Wilson and Co, and Ms Teresa Farmer was engaged as counsel for the trial.
176At much the same time as the husband engaged Calverley Johnston, the wife instructed her solicitors to correspond with the husband, advising she was prepared to resolve the property issue essentially in the terms he had always proposed. This correspondence led to the signing of the Minute of Consent Orders handed up at the commencement of the trial on 30 May 2012. It essentially provided for the wife to receive nothing other than her car and furniture and for the husband to retain all of the other assets, on the basis he would indemnify the wife against the substantial liabilities. The wife also abandoned her claim for spousal maintenance.
177Calverley Johnston had informed the husband that his costs for the trial would be somewhere between $40,000 and $50,000. In order to secure those costs, the husband’s parents lent him $100,000, which the husband paid into Calverley Johnston’s trust account. The husband borrowed double the amount of his anticipated costs so as to be in a position to comply with his obligations under the dollar-for-dollar order in the event his application for discharge of that order failed.
Discussion
178The intention of a “dollar-for-dollar” costs order is to ensure that one party to proceedings does not achieve an advantage during the course of the litigation by being able to fund their own representation whilst the other party is unable to fund theirs. Ironically, in this case it was the husband who was left without representation in the months leading up to the trial, whereas the wife had representation at all times.
179In the wife’s written submissions, by way of explanation for the decision not to continue with the property settlement application, it was said that “the solicitors instructed by the wife and Counsel instructed at trial both undertook the work on the basis that if no funds were paid the wife, no fees would be paid”.
180The wife and her advisors were aware that at all material times the husband’s case has been that:
•his liabilities exceeded his assets;
•the wife had no entitlement to payment of any money; and
•the dollar for dollar order should be discharged.
181As a result of the wife abandoning her financial claims, the husband’s assertion that his liabilities exceed his assets has not been tested. The wife therefore properly accepted in her submissions that “on the face of it, the husband is in a position which is not much stronger than that of the wife”.
182The highest at which the wife was therefore able to put her case was to suggest I should proceed in the same way Kaeser AM did, namely to treat the partnership as “a resource available to the husband”. The wife also asked me to keep in mind what she claimed was the husband’s evidence of a “real expectation [that] the farming partnership will one day become his enterprise to the exclusion of his parents upon their retirement or death”. The latter proposition lacks a sound evidentiary basis for the reasons given in the husband’s submissions.
183It is convenient at this point to repeat paragraph 9 of the orders made on 23 November 2011:
The determination as to whether the payments referred to in these orders made by or on behalf of the Applicant to the Respondent’s solicitors, are to be treated as part of the Respondent’s entitlement to property settlement the provision of maintenance for the Respondent, or in payment by the Applicant of the Respondent’s costs of or incidental to these Family Law proceedings, be adjourned to the final hearing of these proceedings.
184As the wife will receive no payment by way of property settlement and nothing by way of spousal maintenance, the only basis upon which the dollar-for-dollar order can now be sustained is if any moneys paid pursuant to it can properly be treated as being “in payment by the Husband of the Wife’s costs of or incidental to these Family Court proceedings”.
185In the husband’s submissions, it was properly observed that the order of 23 November 2011 was “interlocutory”, and it was therefore argued that in now opposing the discharge of that order, the wife is seeking a final costs order against the husband. In my view, there is merit in this proposition, and I note that both parties addressed the various s 117(2A) factors in their submissions.
186The proper approach to this dispute, therefore, is to consider if there is any basis for making an order for costs against the husband. If there is no entitlement to costs then the order must fall. However, a distinction needs to be made between the costs of the parenting proceedings (which have not yet been finalised) and the costs of the property settlement proceedings (which were resolved by consent).
187Logically, a decision about the costs of the parenting issue is premature, given that the parties have not yet had an opportunity to make submissions about that topic. However, it is difficult to see any basis upon which the husband could be required to pay the wife’s costs of those proceedings, notwithstanding he has been unsuccessful. His case was far from weak, and his motives obviously genuine.
188I am also not persuaded there is any basis for ordering the husband to contribute to the wife’s costs of the property settlement proceedings. Although complaint has been made about the husband’s conduct of that part of the proceedings, in particular concerning disclosure, there have been no findings to support those complaints, and nor could such findings be made on the basis of the controversial material contained in the wife’s submissions. In this regard it is noteworthy that in dismissing the wife’s application for disclosure orders, Kaeser AM recorded his view that “there has been significant compliance with the disclosure obligations to date”.
189Furthermore, whatever the wife’s motives for abandoning her claim, the fact remains that the property settlement issue has been resolved essentially on the basis of what the husband had proposed from the outset. The wife can thus be seen as having been entirely unsuccessful in this part of the proceedings.
190It follows, in my view, that the only possible basis upon which the husband might properly be required to pay some of the wife’s costs would be by reference to some disparity in their financial positions. Whilst I recognise that in some respects the husband’s position may be seen as being stronger than that of the wife, it has not been established that he is mistaken in asserting that his debts exceed his assets. Nor has it been established that the husband could sell an asset to realise funds to meet legal costs. Thus, his only means of meeting legal costs has been by borrowing.
191I am not satisfied the husband could borrow the money required to pay his legal fees from commercial sources, even though the partnership overdraft was not at its limit. This would likely have required the agreement of his parents and there is no evidence such consent would have been forthcoming. Therefore the only source from which the husband could reasonably hope to obtain significant funds was the source used to pay the $100,000 into his solicitors’ trust account – namely his parents’ private resources. However, it is one thing for a party to litigation to borrow money from parents to meet their own legal costs, but quite another to expect parents to meet the legal costs of the other party. This is especially so here where the parents are themselves not in a strong financial position, and have lent money not to advance the husband’s property claim but rather to stop their grandchild being taken overseas. It is also noteworthy that the husband’s parents themselves incurred costs of nearly $10,000 in responding to the wife’s requests for disclosure and a subpoena issued against the farming partnership.
192The reality appears to be that neither the husband nor the wife were able to afford the costs run up during these proceedings. Requiring the husband now to fund not only his own costs but also those of the wife would place an intolerable burden on him. Importantly, it would potentially place a further obstacle in the way of him being able to afford to contribute toward the costs of contact with Ryan. As it is, the husband will be dependent upon his parents being prepared to forgo immediate repayment of the loan, which I accept is what is likely to occur.
193Section 117(1) of the Act evinces a legislative intention that each party involved in family law proceedings will bear their own costs unless there are circumstances that make it appropriate for one to be required to meet the other party’s costs. I see no such circumstances in the present case. I therefore propose to discharge the dollar-for-dollar costs order. In doing so, I record that the husband has said he will not seek the reimbursement of the two payments already made and agrees these can be treated as a contribution toward the wife’s costs.
194These reasons strictly deal only with the application for the discharge of the dollar-for-dollar order. However, given the way the parties presented their cases they can be seen as also dealing with any claim they have for the costs of the property settlement proceedings. I have already expressed my preliminary view that there would be no basis for an order for costs being made in relation to the parenting proceedings, but judgment on that issue would need to be postponed pending any application being made following delivery of these reasons.
Further orders
195The orders I propose to make dealing with this discrete issue are as follows:
1.Paragraphs 5 to 10 of the orders made on 23 November 2011 be discharged.
2.By consent, the two payments made pursuant to the provisions of the said orders be characterised as a contribution to legal costs.
I certify that the preceding [195] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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