SHIVA & KAPIL

[2016] FamCA 231

FAMILY COURT OF AUSTRALIA

SHIVA & KAPIL [2016] FamCA 231

FAMILY LAW – CHILDREN – Undefended hearing – where the father has failed to comply with court orders – where the father did not appear at the final hearing – where the mother seeks that she have sole parental responsibility, that the child live with her and that the child spend time with the father by agreement – where the father has not seen the child for over two and a half years – allegations of physical and verbal abuse by the mother against the father – where there are outstanding warrants for the father’s arrest – where no supervised time can occur while the warrants are outstanding – final orders made in terms of the orders sought by the mother

FAMILY LAW – COSTS – Application by the mother and the Independent Children’s Lawyer for costs – where the father has failed to comply with court orders – where the father has failed to attend court on multiple occasions – no costs order made in relation to the final hearing – costs order made in a fixed sum in the mother’s favour in relation to three court dates prior to the final hearing which the father failed to attend

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Tate v Tate [2000] FamCA 1040; (2000) FLC 93-047

APPLICANT: Mr Shiva

RESPONDENT: Ms Kapil

INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

FILE NUMBER: BRC 6001 of 2014

DATE DELIVERED: 13 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 15 March 2016

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Glaister

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Webb

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

Orders

IT IS ORDERED THAT

1. All previous orders be discharged.

2. The mother have sole parental responsibility for the child B born … 2012 (“the child”).

3. The child live with the mother.

4. The child spend no time with the father except and save as by written agreement between the mother and the father.

5. The mother be at liberty to apply for a passport for the child without the consent of the father.

6. The orders made by Hogan J dated 22 December 2014 be discharged AND THE COURT REQUESTS THAT the Australian Federal Police remove the name of the child B born … 2012 from the Airport Watch List at all points of international arrivals and departures in Australia.

7. As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

8. The father pay the mother’s costs fixed in the sum of $1,642.

9. The order for the appointment of the Independent Children’s Lawyer be discharged.

10. All extant applications be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

1. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shiva & Kapil has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: BRC 6001  of 2014

Mr Shiva

Applicant

And

Ms Kapil

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These proceedings were commenced by the father, Mr Shiva, on 8 July 2014 when he filed an Initiating Application in the Brisbane Registry of this Court seeking final orders that each parent retain parental responsibility for the child as provided by s 61C of the Family Law Act 1975 (Cth) (“the Act”) and any further order that this honourable Court deemed appropriate following the provision of a family report. The child the subject of the father’s application is the child B born in 2012.

2. The father also sought interim orders on an ex parte basis that the mother, Ms Kapil, deliver up the child to the father at C Street, D Town in the State of Queensland, that the child thereafter live with the father and that the mother be restrained from removing the child from the care of the father.

3. It was alleged by the father when he filed his Initiating Application that in or about December 2013 the mother had travelled to India with the child, without his knowledge or consent, thereafter leaving the child in India with her parents and returning to Australia. Although the mother did not deny that she had travelled to India with the child and that he remained in India with her parents it was her evidence that she had done so both with the knowledge and consent of the father.

4. The mother in her Response to Initiating Application filed 22 October 2014 sought the discharge of the orders made 17 July 2014 and 3 September 2014 restraining her from leaving the Commonwealth of Australia, that the child be permitted to remain in India with her parents until she was able to travel to India for the purposes of returning the child to Australia and that thereafter he live with her. She also sought orders that the father be restrained from having contact with the child unless the contact was supervised and in the presence of persons who could assure and guarantee his safety.

5. The matter was listed for interim hearing before Hogan J on 15 December 2014 and on 22 December 2014 her Honour made orders requiring the mother to ensure that the child would be returned to the Commonwealth of Australia by 19 March 2015, the father to be responsible for the costs associated with the child’s economy class travel from India to Australia and for that purpose the father was to deposit the funds required to purchase the airline tickets into a bank account nominated by the mother no later than 30 days prior to the proposed date of departure. Her Honour further ordered that upon the child’s return to the Commonwealth of Australia he live with the mother and spend supervised time with the father for a period of no less than two hours per fortnight at a contact centre in Melbourne, where the mother was living with the child. Her Honour also made orders restraining the father and the mother from removing the child from the Commonwealth of Australia and placing the child’s name on the Family Law Watch List at all points of arrival and departure in the Commonwealth of Australia.

6. Hogan J also ordered the transfer of this matter to the Melbourne registry of this Court.

7. The child returned to Australia in the company of the maternal grandmother on 23 May 2015 notwithstanding that the father had failed to comply with the orders made by Hogan J, as varied by consent by Thornton J, that he be responsible for the costs associated with the child’s travel. The child has lived with his mother in Australia since his return.

8. The mother seeks that:

   ·all previous orders be discharged;

   ·she have sole parental responsibility;

   ·the child live with her;

   ·the child spend time with the father by agreement with the mother;

   ·the child be permitted to leave the Commonwealth of Australia

   ·the Australian Federal Police be directed to remove the child’s name from the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia;

   ·the mother be at liberty to apply for a passport for the child without first obtaining the father’s consent;

   ·the Registrar sign all necessary forms required for the issue of the child’s passport by the Department of Foreign Affairs and Trade on behalf of the father; and

   ·upon issue of the child’s passport it be held by the mother. 

9. The Independent Children’s Lawyer’s Case Outline mirrored the mother’s case albeit she proposed that the child spend time with the father at Community West Contact Centre up to five occasions each year and she also sought the continuation of the order restraining the father from removing the child from the Commonwealth of Australia.

10. It is the mother’s case that the Court should deal with the matter on an undefended basis.

Background

1. In her reasons delivered on 22 December 2014 Hogan J set out at paragraph 11 what she said appeared to be the undisputed facts. They included the following matters:

   ·that the parties had married in India in 2008;

   ·that the parties had relocated to Australia in about June 2009;

   ·that the mother took the child to India in November 2012 and returned to Australia with him in about February 2013;

   ·that according to the father the parties separated on a final basis in June 2013 and according to the mother they separated in July 2013;

   ·that the child had not seen the father since July 2013;

   ·that the mother applied for a temporary protection order on 1 July 2013;

   ·that the maternal grandmother travelled to Australia in about July 2013;

   ·that the mother and the child accompanied the maternal grandmother back to India in about December 2013;

   ·that the child was seen by members of the father’s family in India

   ·that the father became an Australian citizen in January 2014;

   ·on 17 June 2014 the father’s family told him that the mother was leaving India to return to Australia;

   ·on 18 June 2014 the mother returned to Australia without the child; and

   ·on 24 September 2014 the parties met in the presence of community elders during which time the police attended.

2. Although not one of the matters described by Hogan J as being an undisputed fact, the mother deposed at paragraph 8 of her Affidavit filed 22 October 2014 that the practice of requiring a dowry, whilst now illegal in India, is still common practice and that her parents had been pressured into giving the father’s family cash and gold to the value of 2,000,000 Indian Rupees which she said is approximately $40,000. She further deposed at paragraph 52 of that Affidavit that whilst she was in India in late 2013 she obtained legal advice and that her parents commenced proceedings against the father and his family for the return of the dowry. The mother deposed in her most recent Affidavit filed 26 February 2016 that those proceedings are ongoing and that she will be required to travel to India to give evidence in the proceedings.

3. The mother said at paragraphs 53 and 54 of her Affidavit filed 22 October 2014 that following the institution of these proceedings she received death threats from the father and his family and that the father threatened that if she did not withdraw the proceedings he would institute proceedings in Australia for the return of the child to Australia and threatened to kill the child.

Application to Proceed Undefended

1. The matter was listed for hearing before Registrar Mestrovic on 27 March 2015 following its transfer to the Melbourne Registry. On that date, there being no appearance by or on behalf of the father, Registrar Mestrovic made the following orders:

   1.All extant applications are adjourned to the judge’s duty list on 17^th of April 2015 at 10AM for orders on an undefended basis.

   2.That on or before 10^th of April 2015 the mother file and serve Minutes of the Orders together with any affidavit she seeks to rely upon on 17^th April 2015.

2. Registrar Mestrovic noted as follows:

   (a)The Mother has indicated that the child is still in India as the father has not provided necessary funds as per paragraph 2 of the orders of 22^nd December2014 (sic).

   (b)The Father has not made any contact with the Court requesting attendance by electronic means.

3. Both the father and the mother appeared in person on 17 April 2015. On that date Thornton J made orders by consent varying the orders made by Hogan J on 22 December 2014 with respect to the timeframe and arrangements for the child’s return to Australia. Her Honour ordered that all extant applications be otherwise listed before the docketed Registrar in this matter for further case management on a date to be advised by the Registrar and upon the child’s return to Australia.

4. The matter was listed for hearing before Registrar Mestrovic in chambers on 8 July 2015 following the child’s return to Australia. Both the father and the mother appeared in person by telephone on that date. Registrar Mestrovic adjourned all extant applications to the directions hearing list on 7 August 2015 for further case management and further made orders for the appointment of an Independent Children’s Lawyer, that by 4.00 pm on 5 August 2015 each of the parents provide to the other and the Independent Children’s Lawyer a precise minute of the interim orders sought and that within 14 days of the date of this order the father file and serve a Notice of Address for Service. Registrar Mestrovic noted that the child had been returned to Australia from India on 22 May 2015, that at that time the father had not seen the child for in excess of a year and was not spending any time with him, that both the father and the mother advised that they had completed the forms required by the Sunshine Contact Centre, and that the father had relocated from Brisbane to Melbourne.

5. On 6 August 2015 the mother filed a Further Amended Response to Initiating Application, an Affidavit sworn on 5 August 2015 and a Notice of Address for Service. Notwithstanding the orders made by Registrar Mestrovic on 8 July 2015 the father did not file a notice of address for service or provide the mother, the Independent Children’s Lawyer or the Court with a minute of the orders he sought.

6. The father did not appear and was not represented at the hearing before Registrar Mestrovic on 7 August 2015. On that date the Registrar made the following orders:

   1. That leave be granted to the mother to withdraw her Further Amended Response filed on 6 August 2015, Court noting that the mother has no means of serving the father with that application. At the next hearing she seeks to rely on her Amended Response filed on 10 April 2015.

   2. That all extant applications are adjourned for orders on an undefended basis on 1 September 2015 at 10:00 AM before Justice Macmillan.

   3.That the Case Coordinator for this matter email to the father a sealed copy of the order and posts same to the address he provided by way of email on 27 July 2015, Court noting that the father failed to file a formal Notice of Address for Service pursuant to paragraph 6. of the orders of 8 July 2015.

7. The Registrar also noted that on 8 July 2015 both the father and the mother had participated by telephone, having each provided their telephone numbers to the Court, but that when an attempt was made to contact the father on two occasions on that number for the purposes of the hearing on 7 August 2015 he was not able to be contacted. She further noted that the Court had been informed by counsel for the mother that there was an extant warrant for the father’s arrest with respect to assault charges upon the elders of their community arising out of the meeting which had taken place on 24 September 2014.

8. When the matter came on for hearing before me on 1 September 2015 there was again no appearance by or on behalf of the father. On that date I placed the matter in my docket and listed it for mention before me at 9.00 am on 30 September 2015. I further ordered that by 4.00 pm on 18 September 2015 the father file and serve a notice of address for service, any amended initiating application and any affidavit in support upon the mother and the Independent Children’s Lawyer. I ordered the mother to forward a letter to the Independent Children’s Lawyer for on-sending to the father setting out in detail the orders she would be seeking including which of the orders in force she would be seeking be discharged, the date fixed for the further mention of the matter and advising him that in the event that he failed to comply with orders for the filing of documents or failed to appear or be represented at that mention that she would be seeking to proceed on an undefended basis.

9. At the mention before me on 30 September 2015 the father appeared in person. He consented to final orders that the child live with the mother but otherwise advised the Court that he would be seeking orders providing for him to spend time with the child and for equal shared parental responsibility and that he opposed the discharge of some of the orders as sought by the mother, in particular those orders which prevented the mother taking the child out of the Commonwealth of Australia. On that basis I made orders requiring him as soon as it was practicable for him to do so to make an appointment and attend an information session at E Contact Centre and extended the time for him to file any amended initiating application and any affidavit in support of that application until 4.00 pm on 13 November 2015. I again put the father on notice that a failure to comply with those orders may result in the matter proceeding on an undefended basis. The father filed a Notice of Address for Service that day. The matter was otherwise adjourned for further hearing in the Judicial Duty List at 10.00 am on 3 February 2016.

10. The father again appeared in person in the Judicial Duty List before me on 3 February 2016. Although he had not filed and served either an amended initiating application or any affidavits I listed the matter for final hearing before me on 15 March 2016 giving the father one last opportunity to comply with the orders requiring him to file and serve documents in accordance with the orders made on 1 September 2015. The time for the father to file those documents was extended to 4.00 pm on 17 February 2016.

11. The father did not comply with the orders for the filing of documents and did not appear and was not represented at the hearing before me on 15 March 2016 and it was on that basis that the mother sought to proceed undefended. Not only did the orders make clear that it would be open to the mother to seek to proceed on an undefended basis if the father failed to comply with my orders made on 3 February 2016, it was explained to him at that hearing that any further failure on his part to comply would inevitably lead to the matter being determined on that basis.

Discussion

1. Rule 11.02 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:

   (1)If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.

   Note: A defaulter may apply to the court for relief from this rule (see rule 11.03)

   (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (a)dismiss all or part of the case;

   (b)set aside a step taken or an order made;

   (c)determine the case as if it were undefended;

   (d)make any of the orders mentioned in rule 11.01;

   (e)order costs;

   (f)prohibit the party from taking a further step in the case until the occurrence of a specified event; or

   (g)make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).

   Note: This List does not limit the powers of the court. It is an expectation that a non-defaulting party will minimise any loss.

2. The Explanatory Guide to the Rules describes “undefended basis” as follows:

   [T]he court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with a rule or order, as if a response has not been filed. The court may make the orders set out in the application on being satisfied by evidence that the orders should be made.

3. The Full Court, in upholding the decision of the trial judge in striking out the husband’s response and refusing him the right to cross-examine the wife based upon what was described as a “continual delay; most of it due to the non-compliance of the husband”, said in Tate v Tate [2000] FamCA 1040; (2000) FLC 93-047 as follows:

   99.In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence.  Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration” (State of Queensland v J.L. Holdings; supra).  But justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch v Maunz [2000] HCA 40 at paras 38-40). Case Management guidelines, principles and orders are designed to facilitate the ends of justice by encouraging: full frank and prompt disclosure; settlement; identification of the matters genuinely in dispute needing the Court’s determination; and the expeditious marshalling and presentation of relevant evidence.

   …

   107.The Court, no less than those who litigate before it, is constrained by the interplay of competing principles.  In the attainment of justice in individual matters, which will always remain the paramount consideration, appropriate sanctions are essential to see that its orders and directions are obeyed in the pursuit of that end.  Such a goal overrides any notions of punishment for disobedience of such orders..

   108.Where, as here, non-compliance with the orders and directions of the Court will, in the opinion of the trial Judge, defeat the attainment of justice, then suitable remedies must be found.  In this instance the remedy necessarily excluded the husband from any further participation in the proceedings.  Whilst such cases are “exceptional”, and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that manipulation of the court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court.  In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.

   (original emphasis)

1. It is in this case not only a matter of weighing up the competing rights of the father and the mother, albeit I am satisfied that the mother is entitled to have her case heard, but also a question of the child’s best interests.

2. I am mindful in this case that it was the father who initiated these proceedings and not the mother. Although the father has been unrepresented for most of the proceedings and certainly since the proceedings were transferred to this registry, he has been given numerous opportunities to comply with the orders. Whilst the fact that he was unrepresented may have made it somewhat more difficult, in my view that would not have precluded him from filing an amended initiating application setting out the orders he sought or an affidavit in support of his application. Many litigants prepare their own applications and affidavits without the benefit of legal representation and it is fair to say that in most cases they are given some latitude by the Court for any deficiencies in their court documents. However, in this case the father has repeatedly ignored the orders made by the Court for the filing of documents.

3. The father was present in Court on 3 February 2016 and I am satisfied that he was not only aware that the matter had been listed for final hearing but that it would be likely to proceed on an undefended basis in the event that he failed to comply with the orders made that day. Weighing up the need to do justice to both of the parties in this case and the interests of the child I am satisfied that the mother in this case is entitled to have her case heard irrespective, ultimately, of whether the father chooses not to participate in that process.

Parenting Orders

1. The mother relied upon the following affidavits:

   ·her Affidavit filed 22 October 2014;

   ·her Affidavit filed 21 November 2014;

   ·her Affidavit filed 10 April 2015;

   ·her Affidavit filed 6 August 2015; and

   ·her Affidavit filed 26 February 2016.

2. The father has not filed any affidavit other than the brief Affidavit he filed on 8 July 2014 in support of his Initiating Application. On that basis the mother’s evidence is unchallenged.

3. When making a parenting order as I am being asked to do in this case the Court must apply a presumption that it is in the best interests of the child for the parents of that child to have equal shared parental responsibility [s 61DA(1) of the Act]. That presumption does not apply in circumstances where there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or family violence [s 61DA(2)of the Act]. The presumption may also be rebutted in circumstances where the court is satisfied on the evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4) of the Act). If the Court makes an order providing for the parents to have equal shared parental responsibility then it must consider pursuant to s 65DAA(1) of the Act whether that child spending equal time, and if not equal time then substantial time, with each of the parents would be in that child’s best interests and reasonably practical.

4. In this as in any parenting case it is the welfare of the child which is the paramount consideration (s 60CA of the Act). In determining that child’s best interest the Court is required to consider both the primary and additional considerations in s 60CC of the Act. The circumstances of the particular case determine which of those considerations are relevant and the weight to be given to them particularly in circumstances where the case is undefended such as this one.

5. Although Hogan J in her reasons delivered on 22 December 2014 described the allegations of family violence as a contentious issue, in circumstances where the father has filed no material in answer to those allegations having had the opportunity to do so, the mother’s unchallenged evidence as deposed to in her Affidavit filed 22 October 2014 is that:

   ·in or about July/August 2008 she was physically assaulted by the father who punched her at least two times on the face with a closed fist;

   ·the father would regularly verbally abuse and swear at the mother and would violently physically assault her;

   ·the father’s violence escalated during her pregnancy and on or around 18 September 2011 he kicked her, grabbed her hair and waved his closed fist in her face, grabbing a knife and threatening to kill her if she told anyone. When the mother went to work the following day her employer saw her injuries and took her to see a doctor. The doctor took pity on the mother and she stayed with he and his wife for approximately two weeks after this incident;

   ·when the mother returned to the former matrimonial home the father’s abuse and assaults continued unabated however the mother did not report the father to the police because she wanted to save the marriage; and

   ·the verbal abuse and assaults continued after the child’s birth and in his presence and on 22 June 2013 the father punched her when she was holding the child on her lap demanding that her parents pay him money and kicked her out of the house. It was following this incident that the mother applied for a protection order.  

6. The mother further deposes that in September 2014 the father was called to Melbourne by an elder and leader of the religious community, Mr F, to see if the elders and community leaders could resolve the parties’ dispute. The father sent a text message to the mother asking her to meet him at the Suburb G religious centre. The mother went to the centre and when the father did not arrive she and the other elders and community leaders left. The mother deposes that she then received a message from the father saying that he was at the centre. They all agreed to meet at a park where the father told the mother and the elders that he would take care of the mother and the child but only if she withdrew the proceedings in India against he and his parents for the return of the dowry. The father then invited the mother and two of the elders to a friend’s home in Suburb G for dinner. The mother’s evidence is that after the father had had several alcoholic drinks he became abusive towards the mother and Mr F, physically assaulting Mr F. The mother ran and hid and called the police. The mother said that when the police arrived and went inside Mr F was bleeding profusely as a result of the father’s assault. Both the mother and Mr F applied for and obtained intervention orders against the father. The father has been charged with unlawful assault, recklessly causing injury and intentionally causing injury to Mr F as well as making threats to kill the mother’s family members in India arising out of this incident. There is a warrant outstanding for the father’s arrest on these charges.

7. I am satisfied that in this case there are reasonable grounds to believe that the father has engaged in family violence. In those circumstances the presumption of equal shared parental responsibility does not apply.   

8. The child has been in the mother’s primary care since he returned to Australia in May 2015. The mother deposes in her Affidavit filed 26 February 2016 that she became an Australian citizen on 26 January 2016 and she and the child are settled in Melbourne. The mother says that she has enrolled to study and has been given credit for one year of the course for her work in India prior to moving to Australia. The mother expects to complete her degree in early 2018.

9. The child is enrolled in four year old kindergarten and attends three days per week. The mother also deposes that she has started to make enquiries of primary schools commencing in either early 2017 or 2018.

10. The maternal grandmother, who is 59 years of age, travelled to Melbourne with the child in May 2015 and has remained with the mother and child in Melbourne since that time. The mother deposes that her mother has a very close and loving relationship with the child. The maternal grandfather is 62 years of age and lives in City H in India. The mother has a brother who also lives in City H with his wife and two children aged 12 and seven and it is her evidence that when the child was in India he enjoyed playing with his cousins and often asks when he will be able to spend time with them again. The mother has a brother who lives in Perth with his wife and daughter and she deposes that she hopes to be able to travel to Perth to spend time with her brother and his family. 

11. The mother has physically cared for the child with the assistance of the maternal grandparents, particularly the maternal grandmother, since his birth.  The mother’s evidence is that the father did not provide her with any financial support  during the time she spent with the child in India and there is no evidence to suggest he has made any contribution to the child’s support since her return to Australia. It is also the case that although the orders made by Hogan J and thereafter varied by consent by Thornton J on 17 April 2015 required the father to meet the cost of the child’s air travel from India to Australia it was the mother who met that cost.

12. I am satisfied that the mother has demonstrated a responsible attitude to her responsibilities as a parent caring and making decisions for the child.

13. The child has not seen the father since mid 2013 when the parties separated. He has had little or no communication with the mother since the parties separated and when an attempt was made by respected members of the religious community to resolve the matter between the parties, it resulted in a serious assault and charges being laid against the father. It would not in these circumstances be reasonable to expect the mother to communicate with the father for the purposes of exercising parental responsibility,  practical for her to do so or in my view in the child’s best interests.

14. Being satisfied that it is in the child’s best interests that the mother should have sole parental responsibility the Court is not required to consider whether it would be in the child’s best interests and reasonably practical for the child to spend either equal or substantial time with each of his parents.

15. The child currently has no relationship with the father and has not spent any time with him since mid-2013 when he was just over one year old. Although Hogan J made orders that the child spend no less than two hours per fortnight with the child at a contact centre in Melbourne that has not occurred. The father did comply with the intake requirements of the E Contact Centre however that was to no avail in circumstances where the Contact Centre had advised that as the father was a “person of interest to the Victoria Police”, supervised visits between the father and the child could not commence until the Contact Centre was shown proof that the issue of the outstanding warrants for the father’s arrest had been resolved. Those warrants have been outstanding since 8 January 2015 and I am satisfied have been known to the father since at least August 2015 when he received a copy of the orders made by Registrar Mestrovic on 7 August 2015 which referred to the existence of the warrant and which were emailed to him by the case co-coordinator to the address he had provided. I am satisfied based upon the records produced by Victoria Police pursuant to the subpoena issued on 2 March 2016 that the warrant is still outstanding and on that basis it is reasonable to infer that the father has done nothing to address this issue.

16. Although the Independent Children’s Lawyer had initially proposed supervised time at a contact centre on five occasions each year she ultimately submitted that it would not be in the child’s best interests to make such an order and supported the mother’s case.  The father has no relationship with the child and in my view has not demonstrated a responsible attitude to his responsibilities as a parent. He has not participated in these proceedings notwithstanding that his participation is in all of the circumstances of this case a necessary prerequisite to him re-building a relationship with the child in the future. Although the father did make the necessary application to the E Contact Centre, in circumstances where he does not appear to have taken any steps to address the outstanding warrant for his arrest notwithstanding that it is the outstanding criminal charges which have prevented him spending time with the child at the contact centre, there are in my view insurmountable practical difficulties with him spending time with the child even on a supervised basis. It was submitted by counsel for the mother, and I agree, that it would not be in the child’s best interests to commence a relationship even on a limited supervised basis when the father is facing serious criminal charges and the outcome of those charges is unknown. Although the mother seeks to discharge the orders made by Hogan J for supervised time this would not alter the child’s circumstances given that he has not spent time with the father since separation in June 2013.

17. I am not satisfied on the balance of probabilities based upon the evidence before me that it is possible for the child to have a meaningful relationship with the father at this time or that he would benefit from that relationship even if it were possible. In all of the circumstances I propose to accede to the mother’s application that the child spend time with the father by agreement with her.  

Costs

1. On 30 September 2015 the mother sought an order that the father pay her costs of 7 August 2015 and 1 September 2015 in the sum of $1,088. On that date although I did not make an order for costs I did reserve the mother’s costs  fixed in the sum of $1,088 and reserved the determination of the mother’s application that the father pay those costs to the further hearing of the matter om 3 February 2016.

2. At the conclusion of the hearing before me on 15 March 2016 the mother sought an order for payment of those reserved costs, her costs of the mention of the matter on 3 February 2016 in the sum of $554 and her costs of that day in the sum of $2,433. All of the costs claimed are based upon the scale costs set out in the Rules.

3. The general rule is that in proceedings pursuant to the Act each party to those proceedings shall bear their own costs. However, s 117(2) of the Act provides that if “the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just”.

4. Section 117(2A) of the Act provides that in considering what, if any, order should be made for the payment of costs the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)where any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

5. In this case I know little about the parties’ financial circumstances save and except that I am aware that the mother was required to pay for the return of the child to Australia notwithstanding that both Hogan J and Thornton J made orders that the father should meet the child’s travel expenses. I have also found that I am satisfied that the father makes no financial contribution to the child’s support. The lack of detailed financial information should not in the circumstances of this case preclude the court making an order for costs.

6. The mother is in receipt of legal aid whereas the father has been representing himself throughout the proceedings before me.

7. There is no question that the father’s failure to participate in the proceedings has resulted in additional Court dates which in all likelihood would not have otherwise been necessary. I have already set out in some detail the procedural history of this matter which ultimately led to the decision that I should deal with the matter on an undefended basis. In my view there was always going to need to be a final hearing whether on a defended or undefended basis in circumstances where the mother was herself seeking orders and on that basis the final hearing on 15 March 2016 can be distinguished from the hearings on 7 August 2015, 1 September 2015 and 3 February 2016. The father’s failure to appear and/or to comply with orders for the filing of answering material meant that further hearings were required and the matter could not be finalised.

8. Although the father was self-represented I am satisfied that he was aware of and understood the orders the Court had made and what he was required to do in order to participate in the proceedings. I am satisfied that the mother incurred costs as a direct result of the father’s repeated failure to comply with the orders that the Court had made. Although the proceedings themselves were not necessitated by the father’s failure to comply with the Court orders there were certainly more hearings than necessary as a result of his failure to do so.

9. In all of the circumstances I am satisfied that there are circumstances which justify the Court making an order for costs against the father. However I am not satisfied that such circumstances exist in relation to the final hearing at which the mother would have been required to either appear or be represented whether or not the father had chosen to participate.

10. Pursuant to r 19.18 Rules the Court may order that a party is entitled to costs of a specific amount, as assessed on a particular basis, to be calculated in accordance with a particular method or for part of a case, or part of an amount, assessed in accordance with Schedule 3. I have already fixed the costs of the hearings on 7 August 2015 and 1 September 2015 which are in accordance with the scale of costs in Schedule 3 and I also satisfied that the costs of the mention on 3 February 2016 are also in accordance with the scale. On that basis I propose to make an order that the father pay the costs claimed by the mother in the total sum of $1,642.

11. The Independent Children’s Lawyer also sought an order for the costs of counsel appearing at the hearing on 15 March 2016 in the sum of $1,460. Although it is open to the Court to make an order for costs in favour of the Independent Children’s Lawyer, for the same reason as I have refused the mother’s application for the costs of the hearing I am not satisfied that there are circumstances which would justify the Court departing from the general rule and making an order for costs in favour of the Independent Children’s Lawyer with respect to the final hearing.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 13 April 2016.

Associate: 

Date:  13 April 2016