SIMPKIN & SMEETS

[2018] FCCA 2504

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMPKIN & SMEETS [2018] FCCA 2504

Catchwords:
FAMILY LAW – Application in a Case by father for orders which some one (1) year later were in large part made by consent – where substantial costs had been incurred in the interim – where mother’s conduct in prolonging proceedings was detrimental to the ongoing welfare of both children – where mother exhibited flagrant disregard of Court orders – application for costs granted on indemnity basis and on party/party basis in accordance with Family Law scale.

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Coshott v Spencer [2018] HCA Trans 81

Hawkins v Rowe (2012) 47 FamLR 526

London Scottish Benefit Society v Chorley (1884) 13 QBD 87

Applicant: MR SIMPKIN

Respondent: MS SMEETS

File Number: BRC 4678 of 2008

Judgment of: Judge Egan

Hearing date: 18 July 2018

Date of Last Submission: 15 August 2018

Delivered at: Brisbane

Delivered on: 7 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Baston

Counsel for the Respondent: Mr Page QC

Solicitors for the Respondent: Grays Family Law

IT IS ORDERED ON A FINAL BASIS:

1. That the mother pay the father’s costs of and incidental to the father’s Application in a Case filed on 4 July 2017 (excluding the costs of the appearance on 5 July 2017 fixed by order of the Court in the amount of $1,000.00) on the indemnity basis, to be assessed if not agreed.

2. That save and except for the costs ordered to be paid as provided for in paragraph 1 hereof, that up to and including 30 October 2017, the mother pay the father’s costs and outlays/disbursements of and incidental to the proceeding in respect of the father’s Initiating Application filed on 31 May 2017, each subsequent Application in a Case filed by either the father or the mother, and all appearances at interim hearings.

3. That the mother pay the father’s costs of and incidental to the proceedings subsequent to 30 October 2017 on the indemnity basis, as assessed if not agreed.

4. That the father’s costs as ordered in respect of paragraph 2 hereof be assessed on a party/party basis to be assessed on the Family Court scale of costs unless otherwise agreed.

IT IS NOTED that publication of this judgment under the pseudonym Simpkin & Smeets is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 4678 of 2018

MR SIMPKIN

Applicant

And

MS SMEETS

Respondent

REASONS FOR JUDGMENT

Costs Application

1. By Application filed on 7 June 2018, the Applicant father seeks an order that the Respondent mother pay “the Applicant’s costs of and incidental to these proceedings on an indemnity basis or alternatively on the standard basis as fixed by the Court or otherwise determined.”

2. That Application was supported by an affidavit of the father filed on 7 June 2018. The affidavit quantifies costs which might be ordered as payable both on a party/party basis and on an indemnity basis. There is also a figure quantified in respect of outlays/disbursements.

3. Both parties delivered written submissions pursuant to an order made by the Court on 18 July 2018.

4. The proceedings between the parties related largely to parenting matters. Final parenting orders were made by consent on 11 May 2018. Relevantly, that order provided as follows:

   THE COURT ORDERS BY CONSENT ON A FINAL BASIS:

   1. That all previous orders be discharged.

   Parental responsibility

   2.That Mr Simpkin (the “father”) have sole parental responsibility in respect of all major long-term issues of the children, [X] born 2005 (“[X]”), and [Y] born 2007 (“[Y]”) (collectively referred to as “the children”), save that the father shall, prior to making the sole ultimate decision about any such issue:

   a. Notify Ms Smeets (“the mother”) in writing of the decisions intended to be made;

   b. Invite the mother to indicate her views in writing;

   c. Seek the mother’s written response in relation thereto within seven (7) days;

   d. Consider, by reference to the best interests of the children, any such response prior to making any such decision; and

   e. Advise the mother in writing as soon as reasonably practicable of his ultimate decision

   Communication between the parties

   3.That the parents shall use the website Talking Parents for communication in relation to the children’s issues and in relation to such communication, each parent shall respond within fourteen (14) days of any email requesting a response or information.

   School

   4. That the mother be at liberty to access the children’s report cards, school photographs and is permitted to attend parent-teacher interviews at the children’s school

   5. That in complying with Order 4, the children are not to be present when the mother attends parent-teacher interviews.

   6. That the mother is otherwise restrained from contacting or attending the children’s school or any extracurricular activities, including any of the children’s teachers.

   Therapeutic Intervention

   7. That the children continue to engage in ongoing confidential therapeutic counselling with their respective psychologists on an ongoing basis.

   8. That leave be granted pursuant to s.121 of the Family Law Act 1975 (Cth) for a copy of the two family reports and addendum prepared by Ms B (dated 11 August 2017, 8 May 2018 and 21 August 2017, respectively), the judgment of His Honour Justice Barry dated 31 May 2002, the transcript of Ms B’s cross examination on the morning of 11 May 2018 and these Orders be given to the treating psychologists for the Children.

   9. That neither parent is to engage with the children’s respective therapists to enquire about the conduct of the therapy unless the therapist directly requests their involvement.

   10. That the costs of the children’s counselling shall be borne equally by the parties.

   11. That the mother, father and the children engage in counselling with Dr S at all times as may be directed by Dr S to deal with the issues referred to in Ms B’s family reports and addendum, and to support and strengthen the parties’ post-separation relationship with leave granted pursuant to s.121 of the Family Law Act 1975 for Dr S to be provided with a copy of the family reports and addendum (dated 11 August 2017, 8 May 2018 and 21 August 2017, respectively), the judgment of His Honour Justice Barry dated 31 May 2002, the transcript of Ms B’s cross examination on the morning of 11 May 2018 and these Orders.

   12. That the costs of family counselling with Dr S be shared equally between the parties.

   13. That the parties comply in all respects with the schedule of appointments as directed by Dr S in so far as is reasonably practicable.

   14. That the mother continue to attend counselling with a clinical psychologist to address the issues raised in the two family reports and addendum of Ms B, with leave granted pursuant to s.121 of the Family Law Act 1975 (Cth) for a copy of the family reports and addendum (dated 11 August 2017, 8 May 2018 and 21 August 2017, respectively), the judgment of His Honour Justice Barry dated 31 May 2002, the transcript of Ms B’s cross examination on the morning of 11 May 2018 and these Orders be given to the Mother’s treating psychologist.

   Parenting Arrangements as to Time

   15. That the children live with the father.

   16. That the children spend no time nor communicate with the mother except as set out in these Orders.

   17. That upon the parties’ and children’s continued engagement in Family Therapy with Dr S  and upon Dr S determining that it is appropriate, that the child [Y] spend supervised time with the mother at a contact centre on Location A as determined by Dr S . For this purpose:

   i. Both parents shall comply at all times with the directions of the Manager and Staff of the Contact Centre;

   ii. In the event that the Contact Centre is unable or unwilling to supervise the Mother’s time with [Y], such time shall not occur; and

   iii. The costs of supervision shall be borne equally by the parties.

   18. That upon the parties’ and children’s continued engagement in Family Therapy with Dr S and upon Dr S determining that it is appropriate (however no sooner than 6 May 2020), that time between the mother and [Y] should progress to be unsupervised.

   19. That the manner in which the unsupervised time between the mother and [Y] is to occur be determined by Dr S.

   20. That no orders be made for the child [X] to spend time with the mother.

   21. That the father facilitate any reasonable request of the child [X] to spend time with the mother in so far as is reasonably practicable.

   Non-denigration

   22. That neither parent denigrate, nor allow any third party to denigrate, the other parent to, or in the presence or hearing of the children.

   23. That both parents do all acts and things reasonably necessary to promote the relationships between the children and both parents.

   24. That both parents respect the privacy of the other parent and not question the children about the personal life of the other parent; and

   Restraint from discussing proceedings

   25. That both parties be restrained from discussing these proceedings in the presence or hearing of the children and both parties are to use their best endeavours to ensure that others do not discuss these proceedings in the hearing or presence of the children.

   Authorities

   26. That this Order operates as an authority for any professional care provider of the children, whether a school, doctor, hospital, psychologist or otherwise to release upon request of either parent any information or documents relating to the children to either parent at the requesting parent’s own expense.

   Passports

   27. That within thirty (30) days of a written request by either parent to obtain or renew a passport for the child, the parents will do all things necessary, including signing all necessary documents to enable a passport to issue in the child’s name or to enable the child’s passport to be renewed, with the parent requesting to obtain or renew the child’s passport to be solely responsible for all and any associated costs.

   28. That pursuant to Section 65Y of the Family Law Act the parents be permitted to take or send a child out of Australia during such time as that child may, pursuant to these orders, be in their care during school holidays, provided details are given to the other parent at the earliest possible opportunity, together with copies of the return tickets for the children and a copy of the travel itinerary.

   Child Support Agreement

   29. That pursuant to s.136 of the Child Support (Assessment) Act 1989 (Cth), the Child Support Agreement, dated 30 April 2008, be set aside as and from 1 November 2017.

   Family Dispute Resolution Order for Further Disputes

   30.That the process to be used for resolving any future disputes regarding the children or the terms or operation of these Orders shall be as follows:

   a. The parties shall consult with a registered Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about any changes to be made;

   b. The parties shall pay the costs of the Family Dispute Resolution Practitioner equally;

   c. In the event that the parties cannot agree on a Family Dispute Resolution Practitioner, the party wishing to make a change to the Orders shall nominate three (3) practitioners and advise the other party in writing of their fees, experience and availability;

   d. The other party shall choose one (1) of the listed practitioners within seven (7) days of receipt of the list; and

   e. If the other party fails to choose, then the party wishing to make a change to the Orders will choose the Family Dispute Resolution Practitioner.

   Independent Children’s Lawyer

   31. That the Independent Children’s Lawyer be discharged upon the making of these Orders.

   IT IS NOTED:

   A. That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

5. It is not without significance that at the end of protracted legal proceedings concerning the welfare of the two male children of the marriage, respectively aged 13 years and 11 years, that the order provided that:

   a)The father have sole parental responsibility in respect of all major long term issues of the children.

   b)The children live with the father.

   c)The children spend no time with, nor communicate with, the mother, save as provided for in the order.

   d)Any contact between the younger child and the mother is to take place only upon the recommendation of one Dr S, a family therapist, but no sooner than 6 May 2020.

   e)Any contact between the older child and the mother shall only be at the request of the child.

   f)The mother may access the children’s report cards, school photographs and may attend parent-teacher interviews, but only in the absence of the children.

   g)The mother is otherwise restrained from contacting or attending the children’s school or any extra-curricular activities, nor is she to contact any of the children’s teachers.

Relevant History of Applications

First Application

1. On 31 May 2017 the father filed an Application:

   a)Seeking interim orders that both children live with him.

   b)Seeking, in part, final orders that:

   i)The father have sole parental responsibility for the children.

   ii)The children live with the father.

   iii)The mother pay the father’s costs of and incidental to the proceedings.

2. On 23 June 2017 the mother filed a Response seeking an order that the father’s Initiating Application be dismissed and that he pay her costs on an indemnity basis.

3. On 27 June 2017, it was relevantly ordered by Judge Coates that:

   a)The older child live with the father.

   b)The younger child live with the mother.

   c)One Ms B be jointly engaged to prepare a family report, and that the parties attend, and make the children available to attend, any scheduled appointments with the report writer to facilitate the preparation of the family report.

   d)Each of the children spend time with the parent with whom they do not live on school holidays.

4. Neither party was wholly successful in respect of the Application for interim orders, but the filing of the Initiating Application by the father put the mother on notice that he sought final orders that each child live with him, and that the mother pay the father’s costs of and incidental to such proceedings.

Second Application

1. On 4 July 2017 the father filed an Application in a Case which relevantly sought orders requiring the mother to comply with paragraphs 4 and 6 of the orders of Judge Coates made on 27 June 2017.

2. The matter came before Judge Lapthorn on 5 July 2017 at which time His Honour made orders pursuant to the Application in a Case filed on behalf of the father. His Honour at that time ordered that the father’s costs of the appearance on 5 July 2017, fixed in the amount of $1,000.00, be paid by the wife within thirty (30) days of the making of the order.

3. The father was wholly successful in that Application. The mother ought to pay the father’s costs of and incidental to that Application, excluding the costs of the appearance on 5 July 2017 fixed in the amount of $1,000.00, on the indemnity basis. The mother acted contrary to court orders and unnecessarily caused the father to incur legal costs.

Third Application

1. The mother filed an Amended Response on 24 August 2017 seeking orders, in part, that:

   a)There be joint parental responsibility for the children.

   b)The mother make arrangements to relocate to Location A by the commencement of the 2019 school year.

   c)Upon the mother relocating to Location A the children live with each parent on a “week about” basis.

   d)Pending the mother relocating to Location A, the children spend time with each parent on each alternate weekend from Friday evening until Sunday evening, the children to respectively fly between Location B and Location A, the father paying and arranging for such flights.

2. On 25 October 2017 the father filed an Application in a Case seeking orders, in part, that:

   a)For the balance of term 4 of the 2017 school year, the younger child spend time with the father each alternate weekend from Friday to Sunday.

   b)Arrangements be made for school holiday time to be spent by each parent with the children.

   c)Should the mother not relocate to Location A by 20 January 2018, then the younger child was to live with the father and spend alternate weekend time and holiday time with the mother.

3. On 30 October 2017 Judge Coates ordered that:

   a)The younger child live with the father.

   b)The mother’s time with the children be suspended.

   c)The mother deliver the younger child to the father’s residence at 4.00pm on 1 November 2017.

   d)The younger child spend alternate weekend and holiday time with his mother.

4. The order made by Judge Coates that both children live with the father, and that the children’s time with the mother be suspended, was largely consistent with the interim and final orders sought by the father in the Initiating Application filed by him on 31 May 2017. Such orders were also, in large part, consistent with the final orders made by consent on 11 May 2018.

5. The mother was in a position, as at 30 October 2017, to agree to orders as made on 11 May 2018 by consent, but chose not to. Since the filing of the father’s Initiating Application on 31 May 2017 the costs incurred by the father could have been avoided had the mother agreed to the orders as sought.

Fourth Application

1. On 12 February 2018 the father filed an Application in a Case which sought orders, in part, that:

   a)The final hearing date in the proceedings be vacated.

   b)The matter be listed for trial directions no sooner than 1 September 2019.

   c)The mother’s time with the children be suspended.

   d)The mother be restrained from spending time with or communicating with or in any way contacting either directly or indirectly with either of the children or their school.

2. The Application by the father was in large part motivated by attempts by the mother to surreptitiously cause the younger child to run away from the father’s home and use fifty dollars hidden in his sports shoes for him to catch a bus to a step-brother’s home (mother’s son) close by at Location A, such that he could then be driven back to Location B to re-unite with the mother (paragraphs 3-15 inclusive of the father’s affidavit filed on 12 February 2018).

3. The matter came before the Court on 28 February 2018 but was adjourned for interim hearing before Judge Jarrett on 15 March 2018.

4. On 15 March 2018 Judge Jarrett dismissed the Application, ordered that the father pay the mother’s costs of and incidental to the Application in a Case to be agreed, or fixed by the trial Judge, and otherwise ordered that the Application remain listed for 12 April 2018 at 10.00 am for final hearing.

Trial Hearing

1. The trial commenced on 12 April 2018.  On 13 April 2018, it was ordered, in part, that:

   a)An Independent Children’s Lawyer be appointed with priority.

   b)The costs order of Judge Jarrett be discharged.

   c)Ms B forthwith prepare an updated family report.

   d)The matter be adjourned for final hearing commencing at 11.00 am on 8 May 2018 and at 9.00 am on 11 May 2018.

   e)The costs of and incidental to the hearing on 12 and 13 April 2018 be reserved.

2. On 8 May 2018 and 11 May 2018 the parties reached final agreement in terms of the order made by consent on 11 May 2018.

The Law

1. Section 117 of the Family Law Act 1975 (Cth) provides as follows:

   Costs

   (1)  Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)  If, in proceedings under this Act, the court is of 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.

   (2A)  In considering what order (if any) should be made under subsection (2), 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)  whether 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.

   (3)  To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.

   (4)  However, in proceedings in which an independent children's lawyer for a child has been appointed, if:

   (a)  a party to the proceedings has received legal aid in respect of the proceedings; or

   (b)  the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;

   the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.

   (4A)  If:

   (a)  under section 91B, an officer intervenes in proceedings; and

   (b)  the officer acts in good faith in relation to the proceedings;

   the court must not, because of the intervention, make an order under subsection (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed.

   (5)  In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.

1. It has consistently been held that the relevant matters in s. 117(2A):

   “ … must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs. That is not to say that one single matter may not ultimately be determinative … (Further), there is nothing to prevent any factor being the sole foundation for an order for costs.”

   Hawkins v Rowe (2012) 47 FamLR 526 at [18]

2. It was also said in Hawkins at [20]:

   “ … the apparent inability of a party to pay costs is not a bar to a costs order being made in the circumstances where that party’s conduct is determined to warrant an order …”

3. Further, at [147] it was said:

   “ where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self-interest rather than the best interests of a child, then a Judge may well conclude that there are circumstances justifying an order for costs.”

4. Other considerations may also impact upon a consideration as to whether a costs order ought to be made in any given set of circumstances: See: London Scottish Benefit Society v Chorley (1884) 13 QBD 87 and Coshott v Spencer [2018] HCA Trans 81.

The Facts

1. As to the question of whether or not there was in this case relevant unambiguous expert evidence which might impact upon the question of the making of any costs order, there is ample evidence that as early as 11 August 2017 Ms B had grave misgivings about the mother not relocating to Location A to ensure that her relationship with her children was not jeopardised. Ms B stated as much in paragraph 350 of her report of 11 August 2017, annexed to the Ms B affidavit filed on 23 August 2017, when stating that the mother needed to address the issue of relocation. That paragraph relevantly provided as follows:

   350. It was encouraging that Ms Smeets stated that she would be prepared to relocate to Location A if the court determines that the children should live with their father. It would assist the Court if Ms Smeets had a history of compliance with court orders and had demonstrated a commitment to supportnig the children’s relationship with their father. At this stage, the report writer lacks confidence regarding Ms Smeets' capacity and commitment to support the children’s relationship with their father. Ms Smeets needs to address this issue and also consider seriously relocating to Location A to ensure that her future relationship with her children is not jeopardised and to demonstrate the childrne’s value and worth in each parent’s life.

2. Further, at paragraph 351 of that report, Ms B recommended that in circumstances where the older child was already living with the father, the younger child should live with the father should the mother not relocate to live at Location A.

3. The mother did not relocate to Location A, and the mother consented to an order on 11 May 2018 that both children live with the father at Location A in circumstances where she remained living at Location B.

4. By her final updated report dated 8 May 2018, Ms B recommended that both children live with their father on Location A. She also recommended that there be ongoing contact with Dr S (clinical psychologist).

5. It is apparent that the clear expert evidence of Ms B was that the children ought to live with the father if the mother chose not to relocate to Location A. The mother was the master of her own destiny in deciding to remain living in Location B. She ought to bear the responsibility for the payment of the father’s costs to the extent that she failed to have heed of the expert advice.

6. There is also the element of self-interest on the part of the mother in deciding to remain in Location B which should not be overlooked. Location B is where the mother has family as well as where she has real property interests. Ms B adverted to the mother not having due regard to the interests of her children by her not moving to Location A, not only in respect of the welfare of the children demanding that they both have regular ongoing contact with their father, but also for there to be a geographical ease of contact between the children and the mother.

7. Despite the evidence of Ms B, and despite what the mother ought to have appreciated was clearly in the best interests of the children, the mother has nonetheless decided to remain living in Location B.

S 117 (2A) Considerations

1. Relevant Considerations

   a)The father is in a superior financial position compared to that of the mother. The father has expended substantial sums of money in respect of the current parenting proceedings as is evident from his affidavit filed on 7 June 2018. The father owns rental investment properties and resides in the former matrimonial home in respect of which the father meets all outgoings including mortgage repayments. That property, pursuant to property settlement arrangements that have been entered into, will eventually be transferred unencumbered to the mother. There is no sufficient financial detail deposed to by the mother so as to enable the Court to otherwise assess the mother’s overall financial position at the present time. Her position might be described as comfortable.

   b)Neither party was in receipt of Legal Aid for the purpose of running their cases to trial.

   c)The mother’s conduct in not agreeing to the orders sought by the husband in his Initiating Application filed on 31 May 2017 is a relevant matter to be taken into account, particularly in circumstances where the orders, as then sought by the father, were in large part mirrored in the final consent orders made on 11 May 2018. The mother’s conduct was otherwise detrimental to the ongoing welfare of both children in a number of respects, not the least as outlined in the reports of Ms B and Dr S. In particular, the mother’s conduct in conspiring with her son [C] to facilitate the child [Y] running away from the father’s home, in flagrant disregard of a Court order, was reprehensible. The mother also devoted substantial time in her affidavit material to discussing property and maintenance issues when she ought to have better focussed her attention to matters relating to the ongoing health, welfare and wellbeing of the children of the marriage.

   d)As referred to above, the father was required to bring an application to address the mother’s refusal to participate in interviews with Ms B in respect of the Court ordered attendance upon Ms B for the purpose of the preparation of a family report. The father was further required to bring an Application to the Court consequent upon the mother having sought to enable the younger child running away from the father’s residence.

   e)Though not wholly unsuccessful in the proceedings, the mother has been largely unsuccessful as referred to above.

   f)There is no evidence that either party made any offer in writing to the other party in respect of the subject parenting proceedings.

Conclusions

1. The mother was at no time unable to properly appreciate that her conduct in the proceedings could be the subject of adverse costs orders. That ought to have been apparent to her from the time of filing and service of the father’s Initiating Application filed on 31 May 2017. The filing by the mother on 23 June 2017 of a Response, in which indemnity costs were sought by her, illustrates that she very much appreciated that costs were an issue in the proceedings consequent upon the filing of applications. It is, importantly in that respect, relevant to note that that Response was filed by the mother at a time when she was acting on her own behalf.

2. Further, the mother’s conduct in seeking to facilitate the younger child running away from the father’s residence soon after the return of the child by the mother to the father pursuant to a Court order, being conduct which resulted in the father filing a further application and incurring further legal costs, illustrated not only a preparedness to flagrantly disobey orders of the Court, but also a lack of insight as to how detrimental such a course was, both in a physical and psychological context, not only in terms of the welfare of the younger child, but in terms of disruption of the father’s household in which each of the children lived.

3. The mother ought to be ordered to pay such costs as will compensate the father for his having needlessly incurred legal costs and outlays in this matter.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 7 September 2018