SENFL & BLEE
[2017] FamCA 901
•9 November 2017
FAMILY COURT OF AUSTRALIA
| SENFL & BLEE | [2017] FamCA 901 |
| FAMILY LAW – CHILDREN – Best Interests – Reasons for decision – Where there are allegations of family violence – Where there are allegations the father sexually abused his daughter – Where the Joint Investigative Response Team substantiated the allegations of sexual abuse – Where the father was charged with sexual assault of his daughter – Where the father was found not guilty – Where there are allegations the father physically abused his son – Where there are concerns as to the father’s drug use – Where there are concerns as to the father’s mental health – Where the father poses an unacceptable risk of harm to the children – Where the father no longer seeks parenting orders in relation to the children – Orders made for the mother to have sole parental responsibility – Orders made for the father to spend no time with the children . FAMILY LAW – PRACTICE AND PROCEDURE – Undefended final hearing – Where the father has discontinued his Initiating Application – Where it is appropriate for the matter to be proceed undefended. FAMILY LAW – COSTS – Where the mother seeks the father pay her costs of the proceedings on an indemnity basis – Where the father has unnecessarily prolonged the proceedings – Where the father’s conduct has been inappropriate – Where the father has been wholly unsuccessful – Where the mother has not provided her costs agreement to the court – Where indemnity costs cannot be granted – Where it is appropriate for an order to be made for the father to pay the mother’s costs as assessed. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 69ZN, 117 Family Law Rules 2004 (Cth) rr 16.07, 19.08, 19.34 |
| Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 | ||
| APPLICANT: | Mr Senfl | |
| RESPONDENT: | Ms Blee |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Paramatta Family Law |
| FILE NUMBER: | PAC | 4816 | of | 2013 |
| DATE DELIVERED: | 9 November 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 15 August 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Branston Neville |
| COUNSEL FOR THE RESPONDENT: | Ms Conte-Mills |
| SOLICITOR FOR THE RESPONDENT: | Van Houten Law |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders
The Respondent mother have sole parental responsibility for the children B born … 2007 and C born … 2008 (“the children”)
The children reside with the Respondent mother.
The Applicant father is not to spend time with, communicate with or contact the children.
The Applicant father is to pay the Respondent mother’s costs of the proceedings as agreed within one month from the date of these orders or as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Senfl & Blee has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4816 of 2013
| Mr Senfl |
Applicant
And
| Ms Blee |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements in respect of 10 year old B and her nine year old brother C, the children of Ms Blee (“the mother”) and Mr Senfl (“the father”).
In March 2014 the father commenced these proceedings seeking orders that he and the mother equally share parental responsibility for the children and that the children live with each parent in a “week about” arrangement. The father also sought orders as to property.
Originally the mother sought orders that she have sole parental responsibility for the children and that the children live with her and spend supervised time with the father one Sunday per month for 12 hours. The mother also sought orders as to property.
Following final orders being made by consent as to the property issues in September 2015 and the father discontinuing his application for parenting orders in June 2017 the matter was set down for undefended hearing in August 2017.
The mother sought amended orders that she have sole parental responsibility for the children, that the children live with her and spend no time or communicate with the father and that the father pay her costs of the proceedings.
On 15 August 2017 I made parenting orders as sought by the mother and reserved judgment in regards to the issue of costs. This judgment is concerned with my reasons for making those parenting orders and the issue of costs.
The father’s non-attendance
The father commenced proceedings in the Federal Circuit Court on 13 March 2014 seeking parenting and property orders.
On 27 March 2014 the mother filed her Response to the father’s Initiating Application.
On 29 April 2014 the matter was transferred to this Court. On that date the matter came before the Registrar who allocated the proceedings to the Magellan Protocol[1] and appointed an Independent Children’s Lawyer (“ICL”).
[1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of The Department with the family.
On the next occasion the matter was before the court on 17 June 2014 it was noted that the father had been charged with sexual abuse of his daughter.
On 14 July 2015 the matter was adjourned noting that the father was awaiting trial in March 2016 and was at the time on bail and restrained from contacting the mother or children.
On 11 August 2015 interim orders were made for the mother to have sole parental responsibility for the children and for the children to live with her.
On 15 December 2015 the property issues were settled at a conciliation conference.
At a court event on 13 December 2016 it was noted that the father’s criminal proceedings had concluded and he wished to proceed with his parenting application. It was also noted that the parties agreed that a single expert should be appointed. The ICL was given leave to forward consent orders as to the appointment of a single expert to chambers or to relist the matter in the event no agreement could be reached.
On 28 March 2017 the matter was relisted at the request of the ICL.
On 12 April 2017 the father did not attend court in person but his legal representative made an oral application for orders for parentage testing. Rather than dealing with the application for parentage testing the father was directed to consider whether he wished to continue seeking parenting orders. Orders were made for the father to file an amended Initiating Application within one month in the event he continued to seek parenting orders and that he have no contact or time with the children pending further order.
The father did not file an amended Initiating Application and on 31 May 2017 the proceedings were relisted for further directions.
On 2 June 2017 the father filed a Notice of Discontinuance.
On 24 July 2017 there was no appearance by or on behalf of the father. On that date the mother sought that the matter proceed to finality on an undefended basis. The mother was ordered to file a consolidated affidavit of her evidence and the matter was listed for undefended final hearing on 15 August 2017.
On 15 August 2017 the father was legally represented but sought only an adjournment for the purpose of preparing submissions as to costs. He did not seek any orders as to parenting. The application for adjournment was refused and the father’s legal representative withdrew and made no submissions as to costs. Subsequently judgment was reserved in respect of costs.
The mother and ICL sought that the Court proceed to deal with the parenting matter to finality.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Having regard to the principles for the conduct of child-related proceedings[2], in my view, it was in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the father.
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).
In light of the matter proceeding on an undefended basis, any affidavits filed by the father were not read. On 15 August 2017 I made orders in accordance with the mother’s Amended Response filed 4 July 2017.
Background
The mother, who is 35, and the father, who is 44, were public servants at the commencement of their relationship.
The parties’ first child, B, was born in 2007 prior to the parties living together. Following the birth of the first child the mother moved in with the father and took paid maternity leave until August 2007 when she resumed work on a part-time basis.
In September 2007 the family moved to regional New South Wales for work.
The parties’ second child, C, was born in 2008. The mother again took paid maternity leave following the birth until November 2008. She then took further leave without pay until January 2009 when she resumed work on a part-time basis.
During the parties’ time in regional New South Wales the father worked full time and the mother worked part time for the public service. The mother was the primary carer for the children and was, at times, assisted by her parents particularly her mother (“the maternal grandmother”).
In March 2010 the parties purchased a house in a Sydney suburb (“the former family home”) which they moved into with the children in October 2010.
In January 2011 the father left the mother stating that he did not wish to have a family. At this time, the mother increased her part-time work from 26 to 32 hours per week and cared for the children with the assistance of the maternal grandmother.
Throughout 2011 the father would sporadically return to the family home. At these times the father was often violent and abusive towards the mother in the presence of the children.
In October 2011 the family holidayed together in an attempt by the parents to reconcile. During this holiday the father suffered a mental breakdown which resulted in him verbally abusing the mother and threatening to commit suicide in the presence of the children.
Subsequently, the father was admitted to a psychiatric clinic for treatment for three weeks. He was discharged in November 2011 with a treatment plan and a prescription for anti-psychotic medication.
In 2012 the father was discharged from the public service due to mental illness.
The father returned to live in the former family home but he and the mother did not resume their relationship. The father continued to perpetrate domestic violence against the mother, being verbally and physically aggressive and threatening suicide on a number of occasions during this period and was often unable to care for the children due to the side effects of the anti-psychotic medication he was taking.
In August 2012 the parties separated on a final basis while still both living in the former family home.
On 27 December 2012 the mother asked the father to care for the children while she went out socially. When she returned to the house the father and his current wife were using cocaine in the kitchen and when the mother asked them to leave the father reacted violently, smashing objects and threatening her.
Following this incident the mother moved with the children to her parents’ home and reported the father’s drug use to the police.
The father moved out of the former family home and spent time with the children in the presence of maternal and paternal family members.
In early 2013 when the father became aware that the mother had commenced a relationship with a new partner he became violent and damaged some of the mother’s property.
Subsequently the mother and father came to an agreement that he would again vacate the former matrimonial home and only spend Monday nights there with the children while the mother was working.
On 11 March 2013 the mother was contacted by the father who threatened her life and the life of her partner. The father also sent the mother images of her personal belongings which he had damaged and broken.
The mother reported this incident to police who attended at the former family home, in which the father had barricaded himself with the children. The father was charged with intimidation and malicious damage and an Apprehended Domestic Violence Order (“ADVO”) was taken out against him for the protection of the mother and children.
The father then left the former family home and spent ad hoc time with the children throughout 2013. Around this time the father ceased contributing to the mortgage or any of the children’s expenses.
Following visits with the father in late 2013 and early 2014 the children were very distressed.
B reported to the mother that the father had touched and cleaned her vagina, making her feel uncomfortable and C reported that the father had assaulted him. The children also reported that the father attended their school on multiple occasions.
In November 2013 the mother sought a divorce which was granted on 19 February 2014.
In March 2014 the mother deposes that the children’s distress about seeing their father increased to the point it was affecting their sleep and schooling.
On 12 March the mother took the children to the family doctor who diagnosed the children with stress and anxiety and put a mental health plan in place for them. At this time the mother contacted the police and an interim ADVO was taken out against the father preventing him from contacting the children.
The children have had no contact with the father since this date.
Subsequently, the father commenced court proceedings.
In March 2014 four reports were made to the Department of Family and Community Services (“the Department”) concerning risk of harm posed to the children by the father.
Of particular relevance are two reports made on 30 March 2014 alleging the father had sexually harmed B by placing his hand on and in her vagina when washing her. The reporter also notified that as the children were exhibiting signs of distress and anxiety about having contact with the father the mother had ceased the children’s contact with him. These reports were made following B making disclosures of sexual abuse to the mother and the mother taking the child to the local police station to make a report about the father’s behaviour.
The matter was referred to the Joint Investigative Response Team (“JIRT”)[3] who interviewed the child in 2014. JIRT substantiated that B had been sexually assaulted by the father. As a result the father was charged with two counts of aggravated indecent assault, one count of sexual intercourse with a person under 10 years and one count of contravening an AVO.
[3] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.
The father stood trial for the charges in 2016 at which B and the mother gave evidence. At the conclusion of the trial the father was acquitted of all charges by the jury.
Subsequently, the mother and B have received regular counselling through a sexual assault service on an as needs basis.
The children currently spend no time with the father and live with the mother and her partner with whom the mother has one daughter and is expecting another child.
The Law & Discussion - Parenting
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[4] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[5] and has also agreed with the reasoning of Bennett J in G & C[6]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[4] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[5] (2007) Fam LR 518
[6] [2006] FamCA 994
However, this consideration has not been interpreted to create a presumption that it is in the best interests of a child to have a meaningful relationship with both parents.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
It is clear that the children have a meaningful relationship with their mother who has been their primary carer all their lives and has acted protectively of the children following the father’s aberrant behaviour.
The children have not had contact with their father for over three years since early 2014 and they currently have no relationship with him. The mother’s evidence is that the children are afraid of their father and exhibit distress and anxiety when the possibility of contact with him is raised.
B’s interview with JIRT (Exhibit B) and her evidence given in examination in chief and cross examination during the father’s trial in August 2016 indicate that she is afraid of the father.
The father has discontinued his Initiating Application and is no longer seeking any orders as to parenting. For reasons set out in this judgment I am of the view that the father poses an unacceptable risk of harm to the children. In these circumstances orders that foster the children’s relationship with their father will not be of benefit to them.
The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
I am required to give this consideration primacy and it is largely determinative of these parenting proceedings.
I am satisfied that the father poses an unacceptable risk of harm to the children on a number of bases for the following reasons.
The mother contends that there is an unacceptable risk that the father may sexually abuse the children and that they will be physically and psychologically harmed as a result of contact with him.
In Deiter v Deiter[7] the Full Court explained in the context of interim parenting orders that risk assessment comprises two elements. The Court said at [61]:
Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
[7] [2011] FamCAFC 82.
In M v M[8] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….
In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[8] (1988) 166 CLR 69; [1988] HCA 68.
In finding that there is an unacceptable risk that the father may sexually abuse his daughter I attach significant weight to the findings of the JIRT investigation. In the interview with the JIRT investigator B disclosed that on two occasions on the same day over the summer school holidays (2013-2014) her father showered her and cleaned the outside of her vagina, the inside of her vagina and her bottom. B was able to describe the incidents in detail including that her father had pushed his “pointer” finger “up high” inside her vagina and that it had scraped and stung.
B was able to describe that the incidents had occurred at her father’s house where he lived with his girlfriend and indicated to the interviewer that she had told the truth in the interview.
The findings of the JIRT investigation are significant in that the disclosures made by B lead to a conclusion by JIRT that her allegations were true on the balance of probabilities. As a consequence of the investigation the father was recorded as a person causing harm and was charged with child sex offences.
However I also attach some weight to the fact that the father was acquitted of the offences at trial albeit at a higher standard of proof.
Other factors to which I attach weight in being satisfied as to the risk posed by the father include the uncontested evidence of the distress and anxiety exhibited by both of the children at the prospect of seeing their father following the older child’s disclosures.
It is also of significance that the father has not pursued his application for parenting orders so there is no version of the events to consider against the uncontested evidence of the child’s allegations.
Having regard to all of the foregoing, I am satisfied that there is an unacceptable risk that the father may sexually abuse B when spending time with her.
In dealing with the second of the two elements referred to in Deiter (supra), it is beyond dispute that if the harmful events were to occur, the severity of the impact is of the highest order. The harms associated with children being the victims of child sexual assault are beyond doubt.
For the foregoing reasons and having regard to both the likelihood of sexual abuse and the severity of impact if that were to occur, I find that there is an unacceptable risk of harm to B should she spend unsupervised time with the father.
Although the risk posed by the father in relation to sexual abuse specifically concerns the parties’ female child there is also a risk of physical abuse arising from the parties’ son who alleges that the father assaulted him. This child was also observed to be exhibiting signs of stress and anxiety and a mental health plan was obtained for him. Similarly there is no evidence from the father concerning the incident in which he is alleged to have assaulted this child. Accordingly I am satisfied that there is also an unacceptable risk posed by the father in relation to physical abuse.
The mother alleges that in addition to concerns the father may sexually abuse B, she also holds concerns about the father’s unstable and erratic behaviour, mental health issues and his perpetration of family violence against herself and the children.
The mother, in her affidavit, deposes to a number of incidents during which the father was verbally and physically abusive towards her in the presence of of the children, including throwing her against a wall, threatening her, smashing and destroying her property and threatening to kill himself and the children in the hearing of the mother and the children. The father has had numerous ADVOs taken out against him by the police for the protection of the mother and children.
The father was convicted in 2013 of destroying and damaging the mother’s property and stalking and intimidating the mother following the incident in March 2013 described earlier in these Reasons. When convicted the father was released on a two year good behaviour bond with conditions that he obey all reasonable directions for monitoring of his mental health, counselling and educational development and drug and alcohol rehabilitation.
The 12 month ADVO made following the father’s conviction for the protection of the mother and the children has been breached by the father on a number of occasions. This gives rise to a risk that the father may continue to perpetrate family violence against the mother to which the children may be exposed.
The father’s conviction in 2015 for supplying drugs in February 2013 less than three months after the mother deposes to finding the father and his girlfriend (now his wife) taking drugs in the family home while the children were in his care also raises the issue that the children may potentially be neglected by the father if they were to spend time with him. The issue of the father’s use of illicit drugs is a matter to which I return when considering the father’s capacity.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
The mother has deposed to the children being highly distressed and anxious about time with the father.
Documents from the Department regarding the JIRT investigation and the District Court file indicate that both children have expressed anxiety and fear of the father. In the circumstances these views expressed to police and Departmental caseworkers will be given some weight.
Nature of the children’s relationship with each parent and other significant persons
The nature of the children’s relationships with each of the parents has been dealt with earlier in these Reasons.
The children currently live with the mother and her partner, Mr D. The mother deposes to the children having a close relationship with her partner, whom they call “Dad” and who treats them as his children.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
Attitude to the children and responsibilities of parenthood demonstrated by each parent
Capacity of each parent and any other person to provide for the children’s needs including emotional and intellectual needs
The father’s withdrawal from these proceedings and the risks of harm to the children posed by him discussed earlier in these Reasons clearly support a finding of serious limitations in his capacity to meet the needs of his children and an abandonment of responsibility in relation to his responsibilities as a parent.
It is clear that the father has mental health concerns which resulted in his discharge from his employment in 2012 and appear to have contributed to the breakdown of his relationship with the mother and his perpetration of family violence.
It is also clear on the most recently available evidence that the father has substance abuse issues. In 2015 when he was convicted of drug supply and according to the mother, the father and his wife have engaged in drug use in the vicinity of the children while caring for them.
The father has discontinued his application and there is no available evidence to suggest that the risks to the children when in his care have been mitigated.
There are no concerns raised as to the mother’s capacity to care for the child and she has been caring for the children without the assistance or input of the father for some time.
Likely effect of change in the children’s circumstances
Practical difficulty and expense involved in spending time with and communicating with the other parent
The children currently spend no time with the father and have not spent any time with the father for over three years. The mother’s proposed orders will result in no change in the children’s circumstances and there is, accordingly, no practical difficulty or expense associated with these orders.
Family violence relating to the children or a member of the children’s family
Family violence has been dealt with earlier in these Reasons.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
In light of the father discontinuing his application it is in the best interests of the children for orders to be made that will reduce the likelihood of further litigation. The orders sought by the mother are likely to do so.
Summary and conclusion – parenting
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
Given the father has disengaged from proceedings, the only proposal before the court is for the mother to have sole parental responsibility for the children. In circumstances where I have found that the father poses an unacceptable risk of harm to the children I am easily satisfied that it would be in the children’s best interest for the mother to have sole parental responsibility for them.
Having regard to all of the factors in relation to the best interests of the children orders were made on 15 August 2017 in accordance with the orders sought by the mother and supported by the ICL as set out at the forefront of these Reasons.
Costs
In her Amended Response the mother sought an order that the father pay her costs of the proceedings. The application for costs was pressed at the hearing on 15 August 2017.
On 15 August 2017 the father’s legal representative appeared in court seeking an adjournment on the basis that the father required time to file a response to the mother’s application for costs. The father did not attend in person.
In response to the oral application for an adjournment counsel for the mother tendered a letter dated 10 July 2017 from her instructing solicitors to the father confirming that the mother’s Amended Response and consolidated trial affidavit filed 4 July 2017 had been served on the father at his last known postal address.
As the father had ample opportunity following the receipt of the mother’s documents to file documents in response to her application for costs and did not do so I refused to grant an adjournment.
Subsequently, the father’s solicitor withdrew from the proceedings and was excused from participating further.
The law
The Applicant mother is seeking that her costs of and incidental to the proceedings be paid by the Respondent father on an indemnity basis.
The law in respect of indemnity costs is well settled, and the relevant principles are those set out in the Federal Court case of Colgate-Palmolive Company v Cussons Pty Limited[9] where Sheppard J provides examples where the exercise of discretion to award indemnity costs is warranted, including:
c)false and irrelevant allegations of fraud;
d)misconduct that causes a loss of time to the Court and other parties;
e)where the proceedings were commenced or continued for an ulterior motive;
f)the undue prolongation of a case; or
g)wilful disregard of known facts and clearly established law.
[9] (1993) 46 FCR 225
While the category of cases in which an award of indemnity costs may be appropriate is not closed[10] the Full Court has stated in Joyce & Fante[11] at [11]:
… In short, it is beyond doubt that in order to justify an award of indemnity costs, it must be demonstrated there are exceptional circumstances such that the usual order of party-party costs should be departed from.
[10] Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029
[11] [2013] FamCAFC 141
Section 117 of the Act provides that each party to proceedings under the Act shall bear his or her own costs, but that section is subject to subsection (2) which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make an order to costs as it considers just.
Section 117(2A) sets out matters to which the Court is to have regard in considering what order, if any, should be made under subsection (2). The matters relevant in this case are considered below.
The financial position of each of the parties to the proceedings
It was submitted on behalf of the mother that she is currently in difficult financial circumstances having the care and control of the parties’ two children and the duty to maintain the mortgage with no assistance from the father. The mother’s legal fees were submitted to have been charged at a reduced rate in acknowledgement of her financial hardship.
There is no evidence before me as to the financial circumstances of the father other than that he received funds in a property settlement in December 2015 from the mother. It is to be noted that he was privately represented throughout the course of these proceedings.
Even if there was sufficient evidence before me to make a finding as to the father’s capacity to meet an order for costs, a finding that the father is impecunious would not prevent me from making a costs order against him.[12]
[12]D & D (Costs) (No. 2) (2010) FLC 93-435.
The conduct of the parties to the proceedings in relation to the proceedings
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
It is submitted on behalf of the mother that the father’s conduct in pursuing parenting orders for over three years when no interim orders for the father to spend time with the children were ever made before discontinuing his application in June 2017 prolonged the proceedings and caused the mother to unnecessarily incur costs associated with pursuing parenting orders.
The mother submits that the father has failed to appropriately engage with these proceedings. The mother points particularly to the father failing to attend court himself on the majority of occasions the matter was before me.
On the last occasion the father attended court in person, 13 December 2016, he sought to proceed with parenting orders but then failed to engage with the mother and the ICL regarding the appointment of a single expert requiring the ICL to relist the matter in March 2017.
The mother also submits that the court should take particular note of the father seeking parentage testing of the children on 12 April 2017, an application made orally by the father’s solicitor as the father did not attend in person, at a stage when the proceedings had already been on foot for three years.
Subsequently, the father failed to comply with orders made on that date for him to file updated documents if he sought to continue to pursue his parenting application. It was only when the matter was relisted for 24 July 2017 at the request of the court in May 2017 that the father was prompted to file a Notice of Discontinuance.
The father’s failure to attend in person and instructions to his solicitor to seek an adjournment of the costs proceedings in circumstances where he had been aware of the mother’s application for costs for over a month and had still failed to file documents was a further attempt by the father to unnecessarily prolong the proceedings to the detriment of the mother.
In my view the father’s behaviour is a clear example of the type of conduct warranting indemnity costs to which Sheppard J referred in Colgate-Palmolive Company v Cussons Pty Limited (supra).
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The father has discontinued his Initiating Application.
At the commencement of proceedings the mother had the sole care of the children and the children were spending no time with the father.
Throughout the proceedings the father has sought to equally share parental responsibility for the children with the mother and for the children to live in a week about arrangement. At no point in the proceedings were orders made for the father to spend any time with the children.
Orders were made on 15 August 2017 in accordance with the mother’s Amended Response that she have sole parental responsibility for the children, that the children live with her and spend no time with the father. It is to be noted that the mother filed her Amended Response after the father had discontinued his application and until that point had been seeking that the father spend supervised time with the children once per month.
It is clear that the father has been wholly unsuccessful in these proceedings.
Such other matters as the court considers relevant
Rule 19.34(2) of the Rules provides that if a Court orders costs be paid on an indemnity basis, those costs must be “reasonably incurred” and of a “reasonable amount” having regard to the scale of costs set out in Schedule 3, any costs agreement between the party to whom costs are payable and that party’s lawyer, and charges ordinarily payable by a client to a lawyer for work.
Further, Rule 19.18 provides for the method of calculation of costs, including on a particular basis such as on an indemnity basis and Rule 19.08(3) provides that a party seeking costs on an indemnity basis must inform the Court if the party is bound by a costs agreement in relation to those costs, and if so, the terms of the agreement.
The mother deposes in her affidavit to incurring $18,309.73 in legal fees for the parenting matter. However, the mother has not complied with Rule 19.08(3) to provide the court with her costs agreement and so the terms of that agreement cannot be determined.
But for non-compliance with Rule 19.08(3) I would be disposed to making an order for indemnity costs.
I now turn to the question of whether the circumstances of this case warrant the making of an order for costs on a party/party basis.
The High Court in Penfold v Penfold[13] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
[13] (1980) 144 CLR 311
Section 117(1) and the section 117(2A) factors discussed above are relevant to any order the Court may make for costs.
In circumstances where the father’s conduct has led to these proceedings being unnecessarily prolonged and he is wholly unsuccessful by virtue of his discontinuing his Initiating Application after over three years of litigation an order for the father to pay the mother costs on a party/party basis is warranted.
Accordingly, I make orders as set out at the forefront of these Reasons.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 November 2017.
Legal Associate:
Date: 9 November 2017
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