Shaw and Brennan & Anor

[2011] FamCA 538

FAMILY COURT OF AUSTRALIA

SHAW & BRENNAN AND ANOR [2011] FamCA 538

FAMILY LAW - CHILDREN – Final parenting orders made at previous hearing – parties seek to vary final orders – mother also seeks new parenting orders regulating father’s care of the child – Rice v Asplund (1979) FLC 90-725 principles – where there has been no change in circumstances – some orders proposed by the parties are made by consent – all other applications for parenting orders dismissed

FAMILY LAW - COSTS – Independent Children’s Lawyer’s application for costs of and incidental to previous hearing – father agrees to pay his share of the costs – mother opposes the application for costs – where the mother is unemployed – where the mother’s husband earns comfortable income – finding that the mother’s husband’s income relevant to her capacity to pay costs – parties shall bear the costs equally

FAMILY LAW - COSTS – Father’s application for costs in opposing mother’s application for parenting orders – where both parties are self-represented – costs are confined to liabilities incurred for professional legal services – costs do not include compensation for litigant in preparing and conducting case – father’s application dismissed – Mother’s application for costs – where mother’s costs relates to legal consultations – no basis for mother’s application – mother’s application dismissed

FAMILY LAW - PROCEDURAL ORDERS – Injunction – Father’s application to restrain mother from filing further applications – mother’s applications were not frivolous, vexatious or abuse of process – application dismissed – father’s application to destroy subpoenaed documents from previous hearing – existing orders restrain mother from showing documents to the child – mother wishes to retain documents – order for mother to deliver up and destroy all subpoenaed documents

Family Law Act 1975 (Cth) ss 21(2), 38(2), 61B, 64B, 65DAC, 65DAE, 65LA, 68B, 114, 117(2A)(g), 117(3), 118
Family Law Rules 2004 rr 11.04(1)(b), 15.30(4), 15.27(2)
High Court Rules 2004 r 8.07.2(a)

Allesch v Maunz (2000) 203 CLR 172
Cachia v Hanes (1994) 179 CLR 403
Hearne v Street (2008) 235 CLR 125
Marsden v Winch (2009) 42 Fam LR 1
Miller v Harrington (2008) 39 Fam LR 654
Northern Territory of Australia v GPAO (1999) 196 CLR 553
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Rice v Asplund (1979) FLC 90-725
Marriage of Vlug & Poulos (1997) FLC 92-778
Williams v Spautz (1992) 174 CLR 509

APPLICANT: Mr Shaw

1st RESPONDENT: Ms Brennan

2nd RESPONDENT: Mr Brennan

INDEPENDENT CHILDREN’S LAWYER: Adamson Solicitors

FILE NUMBER: SYF 3250 of 2006

DATE DELIVERED: 12 July 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 15, 16 & 17 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE 1ST RESPONDENT: Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT: Not Applicable

COUNSEL FOR THE 2ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT: Middletons Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P. Braine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adamson Solicitors

Orders

1. The father shall within 7 days pay the Independent Children’s Lawyer’s costs of and incidental to the proceedings concluded by orders and reasons published on 27 August 2008, fixed in the sum of $3,632.20.

2. The mother shall within 7 days pay the Independent Children’s Lawyer’s costs of and incidental to the proceedings concluded by orders and reasons published on 27 August 2008, fixed in the sum of $3,632.20.

3. Order 9 made on 27 August 2008 is amended to include the father’s wife as a person permitted to collect the child from the mother on behalf of the father.

4. For the purposes of compliance with Order 10 made on 27 August 2008, the father is permitted to excise his employee number and the official transportation numbers from the work roster provided by him to the mother.

5. The mother shall forthwith deliver up to the Registrar of the Sydney registry of the Family Court of Australia for destruction all documents presently in her possession which are copies of documents produced pursuant to subpoenas issued in proceedings number SYF 3250/2006 prior to 27 August 2008.

6. The Initiating Application filed by the mother on 17 September 2009 is dismissed.

7. The Response to an Application in a Case filed by the father on 20 October 2009 is dismissed.

8. The Reply filed by the mother on 5 May 2011 is dismissed.

9. The Application in a Case filed by the father on 5 May 2011 is dismissed.

10. The Response to an Application in a Case filed by the mother on 14 June 2011 is dismissed.

11. Leave is granted to the father to furnish to the principal of any school attended by the child, O, born on … March 2006:

    (a)       A sealed copy of the orders made on 27 August 2008; and

    (b)       A sealed copy of these orders.

12. Costs of and incidental to the applications determined by these orders are reserved for 28 days.

13. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Shaw & Brennan and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3250 OF 2006

Mr Shaw

Applicant

And

Ms Brennan

First Respondent

And

Mr Brennan

Second Respondent

And

Independent Children’s Lawyer 

REASONS FOR JUDGMENT

Introduction

1. This litigation represents the protracted aftermath to a trial that concluded between the parties in August 2008 with final parenting orders.

2. The parties were still locked in dispute about liability for costs associated with that trial, but the dispute then broadened to encompass applications for further parenting orders relating to the child who is the subject of the final orders, together with further injunctive and procedural orders.

3. Regrettably, the parties perceived that their differences of opinion were insoluble.

Contested issues

1. The parties to the present proceedings before the Court are the mother and father of the subject child, and the mother’s brother, who represented the mother at the trial in 2008 in his capacity as a lawyer. Although not formally a party, the Independent Children’s Lawyer is also still involved.

2. The numerous applications pending in these proceedings were as follows:

   a)The Application in a Case filed by the Independent Children’s Lawyer on 5 August 2008, in which he sought:

   i)An order that the father and the mother pay in equal shares the costs of the Independent Children’s Lawyer and his counsel relating to the proceedings concluded at trial in 2008 (Order 1);

   ii)An order concerning the payment of the fees of the single expert witness in the proceedings concluded at trial in 2008 (Order 2).

   b)The father’s Application in a Case filed on 9 September 2008, in which he sought:

   i)Payment by the mother and the mother’s brother of his costs in the proceedings concluded at trial in 2008 on an indemnity basis, which costs were computed at $105,415 (Order 1);

   ii)Payment of his costs on the determination of that application (Order 2).

   c)The mother’s Initiating Application filed on 17 September 2009, in which she sought:

   i)Various orders regulating the father’s care and supervision of the child (Orders 1-3);

   ii)An order that the father provide her with a “criminal history check” for his current girlfriend and all future partners who have any interaction with the child (Order 4);

   iii)An order that the father complete a course to improve his parenting skills (Order 5);

   iv)An injunction restraining the father from smoking when the child spends time with him (Order 6).

d)The father’s Response (erroneously filed in the form of a Response to an Application in a Case) filed on 20 October 2009, in which he sought:

i)Dismissal of the mother’s Application filed on 17 September 2009 (Order 1);

ii)Payment of his costs (presumably in relation to his defence of the mother’s Application) by the mother on an indemnity basis (Order 2);

iii)An injunction restraining the mother from filing further applications without the leave of the Court (Order 3).

e)The mother’s further application (erroneously filed in the form of a Reply) filed on 5 May 2011, in which she sought:

i)Payment of her costs by the father in the manner “outlined” in the mother’s affidavit filed on 5 May 2011 (Order 1);

ii)Another order regulating the father’s care and supervision of the child (order not numbered).

f)The father’s Application (erroneously filed in the form of an Application in a Case) filed on 5 May 2011, in which he sought:

i)Variation of numerous of the final parenting orders made by the Court on 27 August 2008 (Order 1);

ii)An order requiring the mother to return to the Court all documents (and copies thereof) produced in answer to subpoenas issued before the trial in 2008, and further restraining the mother from using those documents in any way (Order 2).

g)The mother’s Response to an Application in a Case filed on 14 June 2011, in which she sought wholesale revision of the parenting orders made on 27 August 2008 (Orders 2.1 – 2.12).

1. The lateness of the mother’s Response to an Application in a Case filed on 14 June 2011 was an issue confronted at the commencement of the trial. The mother sought an adjournment of her Response to enable its separate determination on another day, but the adjournment application was dismissed consistently with the joint objection of the father and Independent Children’s Lawyer.

2. All outstanding applications came before Fowler J for hearing on 26 May 2011, but were adjourned at that time. Orders were then made that the matter be re-listed for trial urgently and that Fowler J be disqualified. The matter was then listed for trial on 15 June 2011.

3. The mother filed her Response to an Application in a Case only the day before commencement of the trial, and did not serve it until the morning of the trial. Adjournment of the entire trial simply to accommodate the mother’s belated filing and service of her Response would work an injustice to the father. The trial he expected to conduct on 26 May 2011 had already been adjourned once. Another adjournment by reason only of the mother’s dilatory conduct would be unreasonable. Alternatively, proceeding with the trial, but adjournment of the belatedly filed Response for separate hearing, would only unjustifiably cause proliferation of litigation.

4. The father sought amended parenting orders in his Application in a Case filed on 5 May 2011 and so the discretion of the Court was already enlivened and at large in respect of any fresh or amended parenting orders to be made following trial. Contemporaneous consideration of the further parenting orders proposed by the mother in her Response was an efficient utilisation of Court resources and the fairest outcome for the parties. The whole purpose of listing the trial on 15 June 2011, following its earlier adjournment on 26 May 2011, was to bring the litigation to a conclusion by determination of all outstanding applications.

5. The trial therefore proceeded, with all outstanding applications to be considered and determined.

6. The father’s costs applications, contained within his Application in a Case filed on 9 September 2008, were settled on the cusp of the trial. Pursuant to the parties’ agreement the Application in a Case was dismissed. Consequently, the mother’s brother was released from the proceedings as he had no interest in the outcome of the remainder of the litigation.

Primary evidence of the parties

1. In support of his application for costs against the parties, the Independent Children’s Lawyer relied upon:

   a)His affidavit filed on 5 August 2008; and

   b)His affidavit filed on 10 November 2008.

2. In support of his applications, and in rebuttal of the applications made by others, despite having filed many other affidavits, the father relied upon only:

   a)His affidavit filed on 5 May 2011; and

   b)His affidavit filed on 19 May 2011.

3. The father also sought to rely upon his affidavit filed and served on 10 June 2011. The mother objected because of her late service with the document, understandably contending that she was prejudiced in being unable to meet the late evidence. The father could not offer any persuasive reason why the late evidence should be admitted and so it was rejected.

4. In support of her applications, and in rebuttal of the applications made by others, the mother relied upon:

   a)Her affidavit filed on 8 November 2008;

   b)Her affidavit filed on 6 April 2009;

   c)Her affidavit filed on 17 September 2009;

   d)Her affidavit filed on 14 January 2010 (comprising 91 paragraphs);

   e)Her affidavit filed on 5 May 2011; and

   f)The affidavit of her husband, Dr E, filed on 9 May 2011. The deponent was not required for cross examination.

5. The mother also sought to rely upon her affidavit filed on 14 June 2011, which was not served upon the father until the morning of trial. She was not permitted to do so in the face of objection by the father, as the father also contended that he was prejudiced by the late notice of the material. Having regard to the mother’s earlier successful objection to the father’s reliance upon late evidence, consistency favoured the rejection of the mother’s late evidence, which was filed and served even later than the father’s.

6. The mother could not offer a persuasive reason for the lateness of her affidavit either. Although the mother explained that until recently she regarded the trial as confined to consideration of only “safety issues” and not “parenting orders”, I do not accept that explanation as convincing. She knew when she attended Court for trial on 26 May 2011 before Fowler J that the father’s Application in a Case filed on 5 May 2011 proposed “parenting orders”, and that Application was listed before the Court on 26 May 2011. She did nothing to prepare a case for varied “parenting orders” at any point between August 2008 and 26 May 2011. She conceded that she prepared a case for “parenting orders” only to meet the father’s proposal for fresh parenting orders.

7. At the commencement of the second day of trial the mother made application for an adjournment of the trial by reason of an alleged denial of procedural fairness, said to be caused by the rejection the day before of her affidavit filed on 14 June 2011. The mother envisaged that the adjournment would permit the father time to peruse her affidavit and file any affidavit in reply that he desired, after which the trial would resume. The father and Independent Children’s Lawyer opposed any adjournment. Although the Independent Children’s Lawyer was prepared to consent to the mother’s reliance upon her late affidavit as a salve, the father was not. The mother’s application was dismissed for the reasons already explained. Any unfairness she perceived through an inability to rely upon her affidavit filed on 14 June 2011 was caused by her alone.

8. Given that the parties were self-represented, it was explained to them that they each had the opportunity to cross examine the other about issues raised in their rejected affidavit material and to tender documents that may be annexed to those affidavits. As it transpired, the mother adverted to that advice by cross examining the father at length on the contents of her rejected affidavit and reading tranches of it in answer to questions posed to her during her cross examination. No disadvantage was outwardly apparent.

Short background

1. The mother and father were never married and did not cohabit, but did previously enjoy an intimate relationship which resulted in the birth of a daughter, O, in March 2006. The child is only 5 years of age.

2. The relationship between the parties broke down irretrievably during August 2005, before the child was even born.

3. Proceedings were subsequently instituted before the Court for parenting orders in respect of the child. The litigation proceeded to trial before Fowler J in July 2008. Judgment was reserved for a short time, with final orders being pronounced on 12 August 2008. The orders were amended slightly on 27 August 2008 pursuant to the slip rule.

4. Relevantly, the final orders made provision for the following:

   a)The parties to have equal shared parental responsibility for the child (Order 1);

   b)The child to live with the mother when not living with the father (Orders 2, 12);

   c)The child to live with the father for gradually increasing lengths of time, beginning with single overnight or daytime stays during each week and concluding with an equal time regime once the child attains 10 years of age (Orders 6, 7, 8);

   d)Restraint of the mother from causing or permitting the publication to the child of any documents or account of the proceedings, and from discussing the proceedings with the child (Order 23);

   e)Any application for costs was to be filed within 28 days (Orders 25, 29).

5. The orders made by Fowler J were the subject of an appeal by the mother, which was later abandoned.

Application of the independent children’s lawyer

1. The Independent Children’s Lawyer confirmed during the trial that the totality of the fees previously outstanding to the single expert had in fact been paid. Consequently, the Independent Children’s Lawyer only pressed for the first order within his Application in a Case filed on 5 August 2008 and abandoned his application for the second order.

2. The application brought by the Independent Children’s Lawyer for costs orders against the parties in respect of the trial conducted in 2008 necessitates consideration of s 117 of the Family Law Act 1975 (“the Act”).

3. Section 117(3) of the Act expressly acknowledges the Court’s power to order the parties to bear the costs of the Independent Children’s Lawyer in such proportion as the Court considers just.

4. Shortly after appointment of the Independent Children’s Lawyer, the parties were notified in writing of their responsibility for payment of the Independent Children’s Lawyer’s costs of the proceedings. Each party was well aware of that liability, as each paid their share of the preliminary costs.[1]

   [1] Affidavit of Luke Adamson filed 5 August 2008, pars 1-3

5. The appointment of an Independent Children’s Lawyer afforded the Court with a distinct advantage in ultimately judging what the best interests of the child objectively required, as distinct from what the parties urged, coloured by their own interests and perspectives (see Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 203).

6. In the circumstances, it is entirely proper that the parties bear the costs of the Independent Children’s Lawyer, subject to the extent of their capacity to do so.

7. Neither party is now represented, although both were at the time of trial in 2008. The mother was represented by her legally qualified brother, who acted for her pro bono publico, and the father was represented by both solicitor and counsel. Neither party was then in receipt of a grant of legal aid. Nor are they now.

8. Despite the abundance of affidavit material, there is scant evidence about the parties’ current financial circumstances. The grossly argumentative affidavit material filed by the parties since 2008 addressed the continuing dispute between them about the parenting orders, but not the issue of outstanding costs. The Independent Children’s Lawyer adduced some evidence about the parties’ financial circumstances, but that material pre-dated the filing of his affidavit on 10 November 2008 and was no more recent than that provided by the parties themselves.

1. For his part, the father did not contest the order sought against him for payment of an equal share of the costs of the Independent Children’s Lawyer. However, the mother opposed the order sought against her by the Independent Children’s Lawyer by reason of her allegedly difficult financial circumstances. Although she said in cross examination that was one reason for her opposition, she did not offer any other reasons. Her resistance of the order was predicated entirely upon her allegedly impecunious state.

2. The mother simply deposed recently that she has been unemployed for 18 months and cannot afford legal representation.[2] Prior to that, the last evidence she adduced about her financial circumstances was contained within an affidavit filed on 6 November 2008, and the last evidence about her husband’s financial circumstances was contained within her affidavit filed on 6 April 2009.

   [2] Affidavit of mother filed 5 May 2011, par 17

3. The oral evidence at trial revealed that the mother cares for her children on a full-time basis. She is not employed outside the home. Her husband is a medical practitioner, whose income is sufficiently comfortable to support the mother and their family and to accommodate the mother’s choice to remain a homemaker. The mother declined to be drawn on the quantum of her husband’s income, resisting even requests for an estimate. I do not accept her protestations of ignorance about the quantum of her husband’s income. Her disavowal of even sufficient knowledge to permit an estimation of her husband’s income was wholly unconvincing.

4. The mother chose to adduce no fresh evidence about her husband’s income. She asserted his income was irrelevant, since he should not be expected to bear any liability she incurs for costs. If that were so, there was no need for her to file an affidavit on 6 April 2009 deposing to her husband’s financial circumstances. The fact that she did so implies her recognition that her husband’s income and assets do bear upon the question of her capacity for payment of the Independent Children’s Lawyer’s fees in circumstances where they choose to structure their domestic affairs so that the mother is the primary homemaker and her husband is the sole breadwinner, whose income provides for the entire family unit. That is a relevant consideration under s 117(2A)(g) of the Act.

5. The mother lives with her husband in rented accommodation in a desirable Sydney suburb and they each drive leased motor vehicles. The mother also has access to sufficient financial resources to enable the child to attend P School, a prestigious private school for girls. I find that the mother, through reliance upon her husband if necessary, would be able to meet the very modest costs of the Independent Children’s Lawyer if called upon to do so without causing financial hardship.

6. The father did not adduce any evidence at all about his financial circumstances in the two affidavits he relied upon. The father does however still describe himself as a “[professional in the transport industry]”, from which I impute that he remains employed and in receipt of a salary. He will not suffer financial hardship either.

7. The parties will therefore each bear liability for one half of the Independent Children’s Lawyer’s costs of and incidental to the trial concluded in August 2008.

8. The costs were quantified by the Independent Children’s Lawyer at the very modest amount of $7,264.40, meaning that each party’s one-half liability would amount to $3,632.20. Neither party contested the proposal that the costs should be quantified at that amount, should the Court be persuaded to make the costs orders sought. For that reason, the quantification is accepted so as to avert the prospect of the litigation being protracted through an assessment hearing.

Substantive orders

1. It should be observed at the outset that neither party nor the Independent Children’s Lawyer sought to invoke the principle established by Rice v Asplund (1979) FLC 90-725 to summarily thwart further inquiry about the existing parenting orders. That principle enjoins the Court to prevent endless litigation concerning arrangements for the care and supervision of a child, unless there has been a change of circumstances of sufficient magnitude or disclosure of some new factor not disclosed at the previous hearing which would have been material, to justify review of those arrangements.

2. The parties’ dispute over the child was thoroughly evaluated and determined at trial by the Court, resulting in the final parenting orders made in August 2008. None of the affidavit evidence adduced by the parties appeared to prove any material change of circumstances concerning the child since then so as to warrant review of the orders or their operation.

3. It would have been open to the Court to conduct a threshold inquiry to determine whether another trial was even justified, but the parties were permitted to litigate their lingering grievances to, hopefully, finally sate their hunger for continuing recriminations against one another and to permit comprehensive determination of whether there really was a proper basis for the amended and additional orders they each proposed (see Marsden v Winch (2009) 42 Fam LR 1 at [40-56]; Miller v Harrington (2008) 39 Fam LR 654 at [72-82]).

4. The mother sought orders designed to:

   a)Amend Orders 11, 17, 18, 20 and 23 made by the Court on 27 August 2008; and

   b)Make additional or substitute parenting orders regulating the living arrangements of the child, the transaction of the child between the parties, the identity of persons permitted to drive the child, and the telephone communication between the child and the parties

5. The father sought orders from the Court changing the manner in which he and the mother would interact with one another in respect of the child, the effect of which orders was to:

   a)Discharge Order 9 made by the Court on 27 August 2008; and

   b)Amend Orders 10, 11, and 15 made by the Court on 27 August 2008.

6. By the time the evidence was completed it was plain that there had been no material change in circumstances since the last trial was concluded in August 2008. The issues agitated in the current proceedings were the same as those agitated in the first trial. The mother’s distrust of the father is just the same as it was, the father’s exasperation with the mother is just as it was, and their ability to negotiate and compromise seems as elusive as it ever was.

7. Nor is there any difference in the father’s employment circumstances. The time that the child can spend with the father is still influenced by the father’s work commitments, which commitments are dictated by his employer’s periodic publication of a work roster, over which the father has no control, and the variability of which causes some inconvenience to the mother. Exactly the same problems presented at trial in 2008.

8. The force of the principle established by Rice v Asplund may, but need not, be diminished merely because the Court embarks upon a hearing and does not determine the issue at a preliminary stage (see Marsden v Winch at [47]). It ordinarily should be applied with similar rigour, otherwise the principle is emasculated and the mischief intended to be eradicated remains. Subject to qualifications explained below, the parties’ applications should be dismissed.

9. The mother contended there were circumstances that warranted the Court making the orders she proposed, curtailing the time spent by the child with the father. It was an agreed fact that the child had spent only approximately 50% of the time with the father that could have been spent through optimum application of the orders made in August 2008. However, at least on the mother’s version of events, that level of interaction between the child and father is much the same as it was before the orders were made in August 2008.[3] That being the case, there is no change in circumstances at all.

   [3] Affidavit of mother filed 8 November 2008, pages 6, 35, 47

10. There were a number of reasons for the child spending less time with the father than the orders envisaged, but the father was not contradicted on his evidence that the reasons were mostly all beyond his control. The only reason that was within his control was his decision to take leave from work, which leave was spent away from Sydney. The child did not generally spend time with him whilst he was away. But that only accounted for a relatively small percentage of the time the child missed spending with him.

11. The Independent Children’s Lawyer submitted, and I accept, that the reduced time spent by the child with the father over the last 3 years is not an indication of irresponsibility by the father towards the child’s welfare, and that the father has maintained a genuine desire to have the child in his care whenever his work commitments allow. I agree that there should not be any ordered reduction of the time spent by the child with the father on account of those facts.

12. Otherwise, the only reason advanced by the mother for revision and restriction of the time spent by the child with the father was her opinion that the existing orders were contrary to the child’s best interests. The mother said words to the effect of “time with the father is escalating at a faster rate than the child can cope with in my opinion”. Suffice to say, the mother’s uncorroborated opinion is unpersuasive. It alone is certainly insufficient reason to revise the orders made by the Court less than 3 years ago following a comprehensive hearing.

13. The parties both seem to entertain a belief that the parenting orders made on 27 August 2008 are susceptible to ambiguity, at least in respect of those orders that make provision for the child to spend time with the father. But no ambiguity is apparent to the Court, even with the explanations offered by the parties. Under the existing orders, the child lives with the mother when not living with the father (Orders 2, 12). The child is to spend time or live with the father during certain defined times (Orders 6-8). If the father is unavailable to collect the child by reason of work commitments, she may be collected by other identified nominees of the father (Orders 9, 13).

14. The orders do not require either party to be in the physical presence of the child for the entirety of the time the child is living or spending time with them. That would be an absurdly onerous restriction. I do not accept the mother’s submission that the child should always be with one parent or the other. The orders contemplate that the child should experience individual interaction with a wider circle than only her parents, as is the case with all children. Children are often cared for by grandparents, extended family members, and parents of their friends.

15. The existing orders require the father to cancel any period the child is due to spend time with him if, during those periods, he is “required to work whilst on standby”. In that case, the parties can, but need not, agree that the child spend that time with the father’s nominees or other agreed person (Order 11). That order represented the Court’s acceptance of the orders proposed by the Independent Children’s Lawyer in preference to the orders proposed by the father, and rejection of the orders proposed by the mother.[4] If the mother is unduly inconvenienced by the father’s obligatory late notification of cancellation in accordance with Order 11, it is always open to her to agree that the child remain in the care of members of the paternal family, as the Order contemplates.

    [4] Shaw & Brennan [2008] FamCA 656 at [61-63]

16. There is no existing order that obliges the father to cancel the child’s time with him for any other reason than his “require[ment] to work whilst on standby”, and in the absence of the father for any other reason, the child is able to spend time with other members of the extended paternal family.

17. The mother ultimately submitted that there was no need for the amendment of Order 11. Although the father’s final position was less clear, he seemed content with the existing orders provided the parties’ perception of ambiguity was clarified. In any event, there was no changed circumstance that either party could identify which warranted amendment of Order 11.

18. The evidence disclosed the mother’s failure to comply with the order requiring her to retain a non-family member as the child’s treating doctor (Order 20). The reasons for that order were previously explained by the Court.[5] The mother has been content for her medically qualified parents or husband to treat the child, which the father contends has the effect of precluding him from access to information about the child’s health care. The mother conceded that she did not rectify that situation until she recently sent an email to the father on 19 May 2011, nearly three years after the order was made, appointing an unrelated general practitioner for the child. It simply suited the mother not to comply with the order, even though she admitted she understood it.

    [5] Shaw & Brennan [2008] FamCA 656 at [110]

19. The past breach of that order does not necessarily now afford a basis for amendment of the order so as to reflect a state of altered affairs desired by the father, or for that matter the mother.  For abundant clarity, each party should appreciate that the Court expects the orders it makes to be the subject of compliance, irrespective of whether the parties individually believe the orders to be pointless or misconceived. Ordinarily, only express agreement between the parties could justify non-compliance with orders.

20. The only basis for any amendment or supplementation of the existing parenting orders is the existence of the parties’ consent to such a change, subject to the Court’s determination that such a change would be in the best interests of the child. The child’s best interests always remain the paramount consideration.

21. There were some issues over which the parties did arrive at consensus during the trial, but not all agreed issues should be the subject of further order.

22. The parties agreed that Order 9 could be amended to include the father’s wife as a person who could collect the child from the mother in place of the father. An order is made accordingly, because it is desirable and sensible. The father’s wife has been involved with the care of the child for the last 3 years.

23. The parties agreed that the roster provided by the father to the mother pursuant to Order 10 could be altered by the father removing any information that identified him or his detailed movements. For that reason, an order is made permitting the father to excise his employee number and official transportation numbers from his roster prior to its provision to the mother.

24. The parties agreed that the father should play a role in the child’s academic progress. Given the evidence suggests that, in the past, the father has been informed by staff at the child’s school that the mother must authorise release of information about the child to him before that can occur, an order is made permitting the father to furnish to the school copies of Court orders verifying his parental responsibility for the child and his entitlement to information pertinent to her.

25. The parties also agreed that the child should spend time on Father’s Day with both the father and the mother’s husband. Nonetheless, I decline to make an order so providing. The evidence suggests that the mother has permitted a state of affairs to exist which has the potential to impinge upon the paternal relationship between the father and the child. For example, in the mother’s home the mother’s husband is referred to as “Daddy” and the father is referred to as “[the father’s first name]” or “your other Daddy”.

26. The mother allows the fiction that her husband is the child’s father to be perpetuated outside the family. When the child was enrolled to commence school the enrolment form completed by the mother disclosed the child lived with her “parents” rather than the “mother”, and that her husband was the child’s “father”. The father was not even disclosed on the form as an “emergency contact”.[6] The mother explained that she completed the enrolment form in that way only because she expected that the school would be billing her and her husband for the school fees, but I find that explanation facile and unconvincing. Unfortunately, the child has been informed that the mother’s husband, not the father, pays her school fees. The mother was challenged about the reason for the child being so informed, but she could offer no explanation other than that her husband had divulged that information to the child and she could not control what her husband said or did.

    [6] Exhibit ICL1

27. The best interests of the child are promoted by her clearly understanding that the parties are her parents, and that they have ultimate control of her life whilst she is a minor. The child should spend Father’s Day with her father, not the mother’s husband. That is what the current orders already require (Order 8(a)(iv)). Revealingly, the mother did not propose that the child split Mother’s Day between herself and the father’s wife. If the parties agree otherwise, that is a matter for them, but the Court will not countenance an order mandating an arrangement where the child is compelled to spend part of Father’s and Mother’s Days with adults other than her biological parents.

28. The mother also sought orders from the Court which she said addressed “safety issues”. The mother sought to circumscribe the interaction between the child and father by, in effect, requiring the father to:

    a)Personally supervise the child in water;

    b)Not allow the child in “dangerous situations”, which the mother deemed to be her placement in a light aircraft, on a motor cycle, or on a horse;

    c)Not allow the child in a spa;

    d)Provide the mother with a “criminal history check” for any current girlfriend  and all future partners who interact with the child;

    e)Undertake a “suitable course related to parenting that would highlight the dangers and preventative measures that should be taken when caring for a young child”;

    f)Not smoke when with the child;

    g)Not leave the child unattended in a car;

29. It was contended by the mother that at least some of the issues to which those orders were directed had arisen since the last trial in August 2008.

30. In respect of the mother’s application for further orders relating to such “safety issues”, two things needs to be made clear. First, the Court formerly ordered that the parties have equal shared parental responsibility for the child. Secondly, neither party sought alteration of that order in these proceedings.

31. The order for equal shared parental responsibility was previously made consistently with the proposals of both parties. Such responsibility was not forced upon them against their wishes.[7]

    [7] Shaw & Brennan [2008] FamCA 656 at [24(a), 61, 63]

32. “Parental responsibility” is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The allocation of equal shared parental responsibility for the child to the parties means that they must confer and make joint decisions about major long-term issues concerning the child. That process requires genuine consultation and an attempt at consensus (s 65DAC). The parties must implement such a consultative process in respect of significant issues affecting the child, such as issues pertaining to education, religion, culture, health, name, and changed living arrangements (s 4).

33. There is no need for such consultation over matters which are not major long-term issues in the child’s life (s 65DAE). So much was recognised by the Court when it made final orders on 27 August 2008, proscribing that the parties had sole responsibility for the child’s day-to-day care, welfare, and development when the child was living respectively with them (Orders 2 and 3).

1. Those uncontested orders allocating, on the one hand, equal shared parental responsibility to the parties, and on the other hand, sole responsibility to the parties in respect of day-to-day issues concerning the child whilst with them individually, are inimical to the “safety orders” pressed by the mother.

2. Judgments about the nature of the care and supervision afforded to the child are subjectively made by the parties as an incident of their parental responsibility for the child. The existing orders allocating parental responsibility are overt recognition of the parties’ respective capacity to make sound judgments about those issues.

3. Having heard the parties give evidence and make submissions during the trial, no submission could cogently be made that either party fails to appreciate the importance of keeping the child safe from harm. The father is just as conscious of that imperative as the mother.

4. The evidence and submissions of the mother at trial reflected her belief that the father provided the child with an inferior level of care and supervision to that provided by her, and that in instances of disparity, the Court should manufacture orders to meet her demands rather than those of the father.

5. The mother may honestly believe her care of the child is superior, but her belief does not of itself prove the fact or the reasonableness of her belief. Nor does it persuade the Court to exercise its discretion to appease the mother’s concerns. The mother repeatedly said that she wanted “reassurance”, but that alone is no premise for a multiplicity of vague orders.

6. The mother was reluctant to acknowledge the literal absurdity of at least some of the “safety orders” she proposed, and when challenged, responded that the orders could be re-fashioned to overcome the problems envisaged. A simple example demonstrates the problem.

7. The mother proposed an unconditional order that the father always personally supervise the child around water, but she was impelled to acknowledge that she did not expect the father to supervise the child in a swimming pool when aged 17 years, and she certainly did not want the father sitting next to the child in the bath when she was pubescent. The mother’s solution was to propose that the father only supervise the child near outdoor waters and to fix an age limit for the child’s supervision in the bath. Although the mother was initially unsure as to what the age limit should be, in final submissions she settled upon the age of 8 years. The mother tendered a “Safe Waters” governmental pamphlet,[8] but the probative value of that document was entirely unclear given the modified order she proposed in final submissions. The pamphlet exhorts parents to be vigilant with their children around water, but nothing more.

   [8] Exhibit M2

8. A significant issue in the case was the mother’s belief that the father left the child unattended in a car in December 2009. She desired an order preventing the father from doing so in the future, relying upon an information pamphlet entitled “Kids in Cars” she had obtained from the NSW Department of Community Services, which document was tendered.[9] None of the information within that pamphlet could be considered controversial, but it added nothing to the force of the mother’s case.

   [9] Exhibit M3

9. The father admitted that on rare occasions he had left the child alone in the car momentarily whilst he was only a short distance away to buy milk or pay for fuel, but that the child was in his full view the whole time.

10. Although the mother harbours a belief that the father’s explanation of having left the child in the car minimises the seriousness of the events, her knowledge of what occurred is entirely dependent upon her interpretation of comments made to her by the child, who was only 3 years of age at the time of her reports to the mother. I regard the father’s version of events to be more reliable than the mother’s interpretation of what she was told by such a young child. Even the mother conceded that the child is still too immature to accept the literal truth of her comments without question. As an example, the mother cited instances of the child erroneously describing the elapse of time in minutes when it was really only seconds.

11. The mother steadfastly refused to acknowledge the difficulty in regulating such conduct as leaving children in cars. For example, merely alighting the car from the drivers seat to extract the child from the rear of the car would leave the child momentarily alone and unattended within the car. What difference then if the driver only walked a metre away, or even 10 metres away, before promptly returning to the car? To take another example, one can readily imagine that it would be safer to inflate the tyres of a car at the service station with the child safely ensconced inside the car, albeit alone, rather than with the child standing outside the car on the busy forecourt close to moving vehicles whilst the parent is busily engaged with the air hose and unable to devote full attention to supervision of the child.

12. In cross examination the mother was insistent that the child should never be left alone in the car for any amount of time under any circumstances. She was prepared to concede that an age limit could also apply to that embargo, although she could not be drawn on the applicable age limit. However, in final submissions, the mother abandoned any age restriction on the order and simply submitted that there should be a restriction upon the father moving more than 15 metres away from the car whilst the child remained inside the vehicle.

13. To make an order in the restrictive terms demanded by the mother would require the father to never permit the child to be alone within a car until she attained her majority, whilst ever the father was more than 15 metres from the car, irrespective of the brevity of his absence from the car. An order in those terms would be illogical, particularly when it would not equally bind the mother.

14. In any event, the mother’s demand for an order is really quite superfluous. She is well aware from her discussions with officers of the NSW Department of Family and Community Services that it is an offence under s 231 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) for an adult to leave a child in a motor vehicle “without proper supervision” in certain circumstances. If legislation creates an offence for such conduct it is unnecessary to make an order, the effect of which is to simply require the father’s compliance with the law. If the mother really desires an even more stringent restriction than the law already provides, then her position is unreasonable.

15. For the sake of completeness, I should add that I am not necessarily satisfied on the evidence that the father did previously leave the child in the car “without proper supervision”. If, as the father asserts, he was only metres away from the car for a very short time and the child was always in his line of sight the finding remains open that the child was under proper supervision.

16. The father said that he had not left the child unattended in a motor vehicle, even in the transient circumstances he described, since the last incident in December 2009. The father said he recognised the mother’s anxiety about the issue and ensured there was no need for further controversy, since the last incident caused the mother to unilaterally suspend the time that the child spent with the father.[10]

    [10] Exhibits F1 and F2

17. The mother also required an order that the father provide her with a “criminal history check” for every girlfriend or partner that he introduces to the child at any time in the future. Even if the Court is seized of power to make such an order as a mandatory injunction under ss 68B or 114 of the Act, which seems highly doubtful, it remains a mystery how the father could possibly procure from the police a list of criminal convictions relating to a third person so as to comply. The order would not bind the police to furnish the father with such information and the police would rightly refuse its provision, it being no business of the father, and even less the business of the mother. The police could only be compelled to produce such information to the Court by subpoena, but without litigation there can be no subpoena.

18. Similarly, the Court has no power to compel the father to undertake a “suitable course related to parenting that would highlight the dangers and preventative measures that should be taken when caring for a young child”, as the mother wished. Such an order is neither a parenting order under s 64B of the Act, nor an order for the father to undertake a post-separation parenting program pursuant to s 65LA of the Act.

19. It is unnecessary to address each and every order proposed by the mother to address her concerns about “safety issues”. The crux of the mother’s proposal is really her desire for an overarching obligation requiring the father to act responsibly with the child. However, I am satisfied that the father already does that. The law cannot capably cater to all conceivable whims and desires of parties. The parties either will not or cannot grasp the concept that Court orders must necessarily be prescriptive rather than aspirational, otherwise they are meaningless and unenforceable.

20. In the reasons for judgment delivered by Fowler J in August 2008 His Honour poignantly observed:

    The mother appears overprotective of the child and, on the basis of the evidence, would always find it difficult to be satisfied that her child was safe alone in the care of her father, because of some unspecified psychological condition.

    Those concerns, in the Court’s view, have shadow but not substance.

21. The evidence and submissions of the mother in the current proceedings, now nearly three years later, bear out that conclusion.

22. Even though the mother does not presently contend that any psychological condition causes the father to neglect the child’s safety, the mother still asserts that the child’s safety is compromised by the father’s failure to be sufficiently attentive.

23. Fowler J also remarked:

    The evidence in this case is of a caring, aware and child focussed father.

24. I draw precisely the same conclusion from the evidence in the current proceedings. I accept the submission of the Independent Children’s Lawyer that there is no objectively valid basis for the mother’s concerns about the safety of the child in the care of the father.

25. I am completely satisfied that the father has the child’s safety at the forefront of his mind and that, while he is prepared to harken to the mother’s concerns, he is not prepared to be unreasonably constricted by them.

26. As the father said in cross examination:

    There is no need to make an order about something I already do.

    Do we need an order about how to get on an escalator? Where does this end? I don’t believe we need orders like this. They end up meaning more litigation.

27. I accept the veracity of that evidence. Making orders of the kind proposed by the mother would simply be a catalyst for the mother to question the child about her experiences in the care of the father to ensure the father’s compliance with the orders. I am left in no doubt that the level of the mother’s anxiety about the safety of the child in the care of the father would lead her to interrogate the child. That would certainly exert pressure on the child, perhaps inadvertently, and would not be in the child’s best interests.

28. In cross examination the mother said “I agree that we should respect each other as co-parents”. If her evidence was genuine then the mother should do as she says and respect the father’s capacity to properly care for the child.

29. Therefore, other than for orders made in the best interests of the child which are now the subject of agreement between the parties, their respective applications for substantive parenting orders are dismissed.

Procedural orders

1. The father sought an order precluding the mother from filing further applications without the leave of the Court, but neither the father, mother, nor Independent Children’s Lawyer addressed the application in final submissions.

2. The father’s application did not identify the source of power upon which he relied to petition the Court for such an order.

3. This Court, as a superior court of record (s 21(2)), undoubtedly has an implied power to enable effective exercise of its jurisdiction (see Allesch v Maunz (2000) 203 CLR 172 at 187; Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 648). Such power includes staying or dismissing proceedings pending before it which are frivolous, vexatious, or an abuse of process (see Williams v Spautz (1992) 174 CLR 509 at 518-519). However, there is considerable doubt about whether that implied power can be implemented in a broader context than is presently enabled by s 118 of the Act and the Rules (see Marriage of Vlug & Poulos (1997) FLC 92-778 at 84,603-84,606). The Court’s power is now very broadly drawn under the Act and Rules, such that the express statutory power probably extends to the margins of the implied power.

4. For all practical purposes, there are probably no circumstances that would justify exercise of the power to stay proceedings beyond those capable of description as frivolous, vexatious, or an abuse of process. Even if there are, and even if the Court does not have express statutory or implied power to permanently stay proceedings other than those which are frivolous, vexatious, or an abuse of process, the Court still has derivative power to do so. The Act (s 38(2)) provides that in so far as the Family Law Rules 2004 are insufficient, the Rules of the High Court apply in relation to matters of practice and procedure. Rule 8.07.2(a) of the High Court Rules 2004 provides that the Court may, without restriction, order a stay of proceedings in whole or in part.

5. However, the order proposed by the father is an injunction precluding the mother from instituting further proceedings without leave of the Court, not an order to stay or dismiss the pending proceedings.

6. The only sources of power to grant the remedy sought by the father are s 118(1)(c) of the Act and Rule 11.04(1)(b). In each case, the pre-condition for the imposition of a restriction upon a party filing further applications is a finding that existing proceedings brought by that party are frivolous, vexatious, or an abuse of process.

7. It was not contended that any of the mother’s pending applications were frivolous, vexatious, or an abuse of process. Nor could it have been. The father made applications for orders of a similar kind. Their applications may have been misconceived, but that is a different concept altogether from frivolity, vexation, and abuse of process.

8. The application for Order 3 in the father’s Response to an Application in a Case filed on 20 October 2009 is therefore dismissed.

9. The father also sought an order concerning documents produced on subpoena by him. He was concerned that the mother had inspected and copied such documents, that she retained those documents, and may use them in an unauthorised manner.

10. There is no evidence to fan the father’s concerns, honest though his concerns may be. The father said in cross examination that he believed the mother had misconstrued the information she gleaned from reading the documents produced on subpoena, but conceded the mother had not threatened to use the material for some ulterior purpose. The mother asserted in cross examination “I wouldn’t think of misusing [the documents]”. That evidence, though, is not of itself determinative of the application.

11. During the trial in 2008 the mother proposed that the child be able to read the documents relevant to the proceedings in the belief that such documents were “in the public domain”,[11] but that mistaken belief was corrected by the Court in the reasons it delivered for the orders it made, which included an order restraining the mother from permitting the child’s access to any documents and from discussing the proceedings with the child (Order 23).

    [11] Shaw & Brennan [2008] FamCA 656 at [77-79]

12. It is the usual course for documents produced on subpoena to be inspected and copied when no objection is taken (Rule 15.30(4)), and there is no evidence of any objection being taken by the father to the mother’s inspection and copy of the documents produced on subpoena.

13. The existing orders of the Court preclude the mother publishing such documents to the child, but the general restriction upon the mother is much wider. The mother is obliged by the Rules not to disseminate the documents to any other person (Rule 15.27(2)), which principle reflects the common law (see Hearne v Street (2008) 235 CLR 125 at 131, 145, 157-162). Breach of that obligation potentially amounts to contempt of court (see Hearne v Street at 131, 145, 166-167) rendering the contemnor liable to condign punishment.

14. The mother conceded that she still retained some copies of documents produced on subpoena in advance of the trial conducted in 2008. The mother was willing to surrender those documents, with the exception of documents related to past psychological treatment received by the father, which she considered may possibly be relevant to future litigation between the parties over the child. There is no justification for the mother’s retention of any of those documents. Consequently, an order is made requiring the delivery up and destruction of them.

Costs orders

1. The father sought payment of his costs in opposing the mother’s application for the orders set out in her Application filed 17 September 2009. Those orders were sought by the mother in the context of a broad ranging hearing between the parties in which a host of parenting orders were sought by both parties. It is inappropriate to single out that Application as justifying a costs order.

2. In any event, the costs sought by the father are not professional costs.[12] Costs are confined to liabilities incurred for professional legal services and do not include compensation for time spent by a litigant who is not a lawyer in preparing and conducting his case (see Cachia v Hanes (1994) 179 CLR 403).

   [12] Affidavit of father filed 19 May 2011, par 42

3. The application for Order 2 set out in the father’s Response to an Application in a Case filed on 20 October 2009 is dismissed.

4. The mother sought payment of her costs incurred in her obtaining legal advice, as “outlined” in her affidavit filed on 5 May 2011.

5. The only evidence adduced by the mother in her affidavit filed on 5 May 2011 about legal costs concerned her choosing to procure legal advice from her own lawyers about these proceedings on two occasions in July and November 2010. The combined cost of those two consultations was $869.[13] Presumably that is the amount for which she sought reimbursement from the father. It is noteworthy that the mother did not apparently comply with what she asserted to be her disclosure obligation in respect of those costs[14] at the Court event on 16 December 2010.

   [13] Affidavit of mother filed 5 May 2011, par 17

   [14] Affidavit of mother filed 8 November 2008, page 37

6. The mother did not instruct either of those lawyers to act for her in these proceedings. Her involvement with them was limited to consultations. There is no proper basis to make the order proposed by the mother. Perhaps she realised that because, even though the application was not expressly abandoned, no mention was made of the application in final submissions.

7. The application for Order 1 set out in the mother’s Reply filed on 5 May 2011 is dismissed.

Costs of these proceedings

1. Neither party sought any order as to costs in respect of the totality of issues litigated in this trial, nor was the issue addressed by the parties in final submissions. Moreover, the Independent Children’s Lawyer expressly requested that the question of costs in relation to these proceedings be left undecided for the moment.

2. I am persuaded that is the appropriate course to take. Any application for costs will need to be made in accordance with the Family Law Rules.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 12 July 2011.

Associate: 

Date:  12 July 2011