SLATER & REMINGTON
[2014] FCCA 460
•14 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SLATER & REMINGTON | [2014] FCCA 460 |
| Catchwords: FAMILY LAW – Costs – application for re-imbursement of airfares to recover children – Application dismissed. |
| Legislation: Magistrates Court Family Violence Protection Act 2008 (Vic) |
| Re Georgina and Luke (No 2) (2008) 40 Fam LR 247 AMS and AIF (1999) 24 Fam LR 756 Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 MRR v GR [2010] HCA 4 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343 Taylor v Barker (2008) 37 Fam LR 461 Mazorski v Albright (2008) 37 Fam LR 518 T & N (2004) 31 Fam LR 281 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Stephens & Stephens & Ors (Enforcement) (Costs) [2010] FamCAFC 172 Cachia v Hanes (1993-94) 179 CLR 408 Oscar & Traynor [2008] FamCAFC 158 |
| Applicant: | MS SLATER |
| Respondent: | MR REMINGTON |
| File Number: | BRC 10328 of 2009 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 8, 9, 10, 11, 22, 23 April, 7 June, 18 July, 9 December 2013, 14 and 26 February 2014 |
| Date of Last Submission: | 26 February 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 14 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr Thexton |
| Solicitors for the Respondent: | Thexton Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Cameron |
| Solicitors for the Independent Children’s Lawyer: | Jennifer Boulton Solicitor |
ORDERS
That all previous parenting orders be discharged.
That the parents have equal shared parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2008 (the children).
That the children live with the mother.
That the children spend time with the father as agreed between the parties and failing agreement as follows:
(a)in the event that the father resides in excess of a 120km radius of the children’s school:
(i)for 10 days of the New South Wales School Holidays at the end of terms one, two and three each year as agreed and failing agreement the first 10 days; and
(ii)for one half of the New South Wales School Holidays at the end of term four each year as agreed and failing agreement the first half in even numbered years and the second half in odd numbered years; and
(iii)provided the father gives the mother one month’s prior written notice of his intention to travel to within 120km of the children’s school for the purposes of spending time with the children on a weekend during school term then from afterschool Friday to 6pm Sunday or 6pm Monday if a public holiday on that weekend.
(b)In the event that the father resides within a 120km radius of the children’s school but greater than a 30 minute drive from the school:
(i)Each alternate weekend from after school Friday to 6pm Sunday; and
(ii)For one half of the New South Wales School Holidays each year as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years.
(c)In the event that the father resides within a 30 minute drive from the children’s school:
(i)Each alternate week from afterschool Friday to before school Tuesday; and
(ii)For one half of the New South Wales School Holidays each year as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years.
That the children have telephone and/or Skype communication with the parent they are not ordinarily living with pursuant to these orders each Monday, Wednesday and Friday at 6.30pm being the time where the children are residing that day with the parent with whom the children are not residing that day being responsible for making the telephone call and the other parent to make sure the children are available to take the call.
That each party is hereby restrained from denigrating the other party to or in the presence of or hearing of the children and must use their best endeavours to ensure that no other person does so and in the event of some other person doing so the parent must immediately remove the children from the vicinity of the person doing so.
That the father is hereby restrained from filing any Application for Parenting Orders in any court without leave of the court first had and obtained.
That the appointment of the Independent Children’s Lawyer be discharged.
That the mother’s application for re-imbursement for costs incurred in relation to recovering the children pursuant to orders made 17 October 2012 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Slater & Remington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRC 10328 of 2009
| MS SLATER |
Applicant
And
| MR REMINGTON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of 6 year old X and 5 year old Y have had a tumultuous relationship and a lengthy history of litigation. They cannot agree on the future parenting arrangements for the children. Their mother Ms Slater would like them to live primarily with her in Northern New South Wales and spend time with their father during the school holidays. Their father who lives in Victoria would like the children to live with him. He has concerns for the children’s safety with their mother but is supportive of them spending time with her.
Brief Background
The mother is 41 years of age having been born on (omitted) 1972. The father was born on (omitted) 1973 and is therefore 40 years of age. They commenced to live together in or around 2006.
X was born on (omitted) 2007. The following day the Department of Community Services in New South Wales (DOCS(NSW)) made an application to the Children’s Court NSW for X to be placed in care. On 17 June the parents removed the child from the hospital but she was returned by officers of DOCS(NSW). X was returned to her parents’ care on 7 August 2007.
Y was born on (omitted) 2008. Both he and X were removed from the parents’ care by DOCS(NSW) on 12 September 2008. The parents successfully challenged this action in the Supreme Court of NSW and orders were made on 19 December 2008 for the children to be returned to the parents.
The parties separated in November 2009 but reconciled in January 2010. Interim parenting orders were made during the period of separation but both parties filed notices of discontinuance upon their reconciliation. The parties lived in (omitted) in Queensland after January 2010 up until August 2011. The nature of their relationship during this period is complex. I will refer to it in more detail below. In August/September 2011 the parties moved to (omitted) and separated on a final basis in December of that year. The father moved to Melbourne at this time taking the children with him.
On 31 January 2012 interim orders were made for the children to live with the father but that he relocate to an area no further than one and a half hours drive from the mother’s residence. The father did not comply with the order for relocation. The matter came before the court on numerous occasions in 2012. The children were ultimately returned to the mother in October 2012 and have since remained in her primary care while spending holiday time with the father. I will refer to this period in more detail below.
The final hearing has proceeded over a total of 11 days throughout 2013 and 2014 having been re-opened on two occasions. For the most part the father was not legally represented however he retained legal representation for the final day of the hearing.
Competing Applications
The mother has asked the court to make orders providing for the children to live with her in northern NSW and to spend time with the father during school holidays if he remains living in Victoria. In the event that he lived in close proximity to her, she would be open to the children spending alternate weekend times with the father. She also sought an order for costs associated with her travelling to Melbourne for the purposes of recovering the children after a recovery order was made.
The father sought orders that would provide for the children to live with him in Melbourne and spend time with the mother during the holidays. His position in relation to the time the children spend with their mother has altered during the hearing and was not entirely clear by the conclusion of the trial.
The Independent Children’s Lawyer (ICL) argued that the court should make orders providing for the parents to have equal shared parental responsibility; the children to live with the mother in northern NSW and spend time with the father in Melbourne for half of the school holidays and on weekends during the year if he is able to travel to near where the children live. It was also submitted that the restraint on the father bringing further proceedings without leave of the court should be maintained and that the parties should undertake a parenting orders programme.
The Evidence
In support of her Initiating Application filed 23 December 2011, the applicant mother relied on her affidavits filed:
i)23 December 2011;
ii)26 March 2012;
iii)25 May 2012;
iv)23 August 2012;
v)25 September 2012; and
vi)19 February 2014.
The respondent filed his Response on 15 June 2012 and at the hearing relied on:
a)His affidavits filed:
i)5 March 2013;
ii)27 March 2013;
iii)2 August 2013;
iv)13 September 2013;
v)14 February 2014; and
vi)21 February 2014;
b)The affidavit of his father, Mr S, filed 5 March 2013;
c)The affidavits of his fiancé, Ms H filed:
i)5 March 2013; and
ii)21 February 2014;
d)The affidavit of his sister, Ms M, filed 5 March 2013;
e)The affidavit of Mr R filed 5 March 2013;
f)His Notices of Child Abuse, Family Violence, or Risk of Family Violence filed:
i)26 June 2012;
ii)24 September 2012;
iii)23 January 2013; and
iv)31 January 2014.
The Independent Children’s Lawyer relied on:
a)The affidavit of Dr D filed 4 April 2013;
b)The Family Consultant Memorandum to Court by Family Consultant Ms C dated 27 August 2012;
c)The family report by Family Consultant Ms S, released 21 January 2013;
d)The family report by Family Consultant Ms S, released 6 March 2013.
A number of documents were tendered into evidence.[1]
[1] C1 extract of transcript of proceedings of 27 August 2012 of Ms C.
Each of the parties, Ms H, Ms B and Ms S gave evidence and were cross examined.
I have had regard to all of the evidence filed in these proceedings, the documents tendered and the oral evidence given by the witnesses. Regrettably the evidence of both the mother and father did not give me confidence they were reliable witnesses. Whilst at times they each made some concessions against their own interest, at other times they appeared desirous of presenting themselves in the best light and the other in the worst light. Neither impressed as having given the whole truth and therefore the task of determining factual disputes has been difficult. Notwithstanding that difficulty, I will in this judgment refer to a number of facts, any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. The nature of this dispute necessitates in my view, a detailed description of the litigation history as well as the significant facts that have informed my decision.
Prior to her relationship with Mr Remington, the mother had four children. In 2005 DOCS(NSW) removed three of the children from her care and placed them with their father Mr P. The mother’s oldest child, Z, was parented by the mother until she began to live independently at 16 years of age. Mr Remington did not have any children prior to his relationship with the mother.
Although the evidence is not entirely clear, it appears the parties commenced their relationship in 2006. They lived in Northern NSW and X was born on (omitted) 2007. The following day an application was made by DOCS(NSW) for X to be taken into the care of the department. However on 17 June the parents removed X from the Hospital. She was located by DOCS(NSW) staff at the parents’ home and returned to the hospital. X remained in DOCS(NSW) care until 7 August 2007 when she was returned to her parents.
Y was born on (omitted) 2008 but on 12 September 2008 DOCS(NSW) removed both X and Y from the parents’ care. The Supreme Court of NSW ordered their return to the parents on 19 December 2008.
In early 2009 the parties moved to (omitted) in Queensland. On 23 April that year the police attended their property and recorded an observation that both parties were intoxicated. A domestic violence protection order was made in the Bundaberg Magistrates Court that month against and protecting each party.
On 5 October 2009 proceedings were instituted in the Supreme Court of NSW seeking damages from DOCS(NSW) in relation to their removal of the children. These proceedings have been settled between the father and the department and between the children by their litigation guardian and the department. The mother’s proceedings remain on foot but the mother gave evidence of being hopeful of a settlement later this year.
The parties separated on 4 November 2009. The mother moved to refuge accommodation on the (omitted) with the children. The father filed an Initiating Application on 12 November 2009 and an Application in a Case on 16 November. He sought orders for the return of the children to his care in (omitted), a location order and for a “mental health” assessment of the mother. He alleged that the children were not safe in the mother’s care due to her drug use, anger management issues and “psycho moments”.
The matter came before the court on 18 November 2009. Orders were made for the appointment of an ICL; that the children live with the mother and the father have supervised time with the children at a contact centre. The parties were ordered to attend a child dispute resolution conference and the matter was transferred to the Family Court of Australia.
On 7 December 2009 the father filed an Application in a Case in the Family Court seeking to have the interim orders made by Federal Magistrate Howard (as his Honour then was) set aside; that he have parental responsibility for the children; and for the children to relocate to the father’s residence in (omitted). On 10 December 2009 the parties were ordered to attend a s.11F Child Responsive Program and the matter was adjourned to the Judicial Duty list on 20 January 2010.
Notwithstanding the operative orders provided for the father to spend supervised time with the children, he managed to take the children from the contact centre on 11 December 2009. He did not return them to the mother. The mother then made an Application on 21 December 2009 in Maroochydore Magistrates Court for an urgent recovery order. The order was made that day. On the same day the father filed an Application in a Case to set aside the orders made on 18 November 2009. He again sought orders providing for the children to live with him. On 21 December he filed a Notice of Child Abuse or Family Violence wherein he alleged that:
a)The mother denigrates the father to the children;
b)The mother uses cannabis in front of X;
c)The mother is "short" with the children and she does not supply the correct food for the children;
d)The mother hit the father in front of Y;
e)When the children came back into father's care on 11 December 2009 X had sores on her legs and Y had a head cold.
The recovery order made in the Maroochydore Magistrates Court was executed on 23 December 2009 and the children were returned to the mother.
The mother filed a Response to the father’s application seeking orders for the children to live with her and for the father to spend time with the children on alternate weekends and special occasions.
The parties reconciled in January 2010 prior to the matter returning to the Family Court. They each filed Notices of Discontinuance. Although the parties reconciled, the period from January 2010 to December 2011 was a volatile one for this family requiring involvement from police and child welfare authorities. I shall refer to their involvement in more detail below.
The parties left (omitted) in August or September 2011, returning to the (omitted) area where they lived separately under the same roof until their final separation on 11 December 2011. On that day an incident occurred at the parties' house to which I will refer in more detail below. The police attended. The father left with the children to the paternal grandfather's house in (omitted), Brisbane. The mother alleged that the father and the children left via a balcony with the father throwing the children to a neighbour. The father says that he handed the children to a neighbour.
The following day the father travelled to (omitted) with the children to appear in the Magistrates Court in relation to a Protection Order Application. On 16 December 2011 he took the children to Melbourne and stayed at his mother’s home. Although he told the mother on 22 December that he had the children with him in Melbourne, he did not tell her where they were living.
The mother instituted these proceedings by filing an Initiating Application on 23 December 2011 seeking an urgent recovery order for the children. The father filed an Application in a Case on 13 January 2012 seeking a stay of proceedings and the matter be transferred to the Melbourne Registry. He also sought sole parental responsibility for the children and that they live with him in Victoria.
On 31 January 2012, interim orders were made and the matter adjourned to 16 April 2012. The interim orders provided:
a)That order 2 of the orders made 18 November 2009 be suspended (this order provided for the children to live with the mother);
b)that the parties have equal shared parental responsibility for the children;
c)that the children live with father and the father relocate to an area within 1.5 hours drive of the mother’s residence by 16 February 2012;
d)that the children spend time with the mother two out of every three weekends from Friday 10am to Sunday 5pm commencing 10 February 2012 and 24 February 2012 and on the third week from Wednesday 10am to Thursday 5pm commencing 29 February 2012;
e)that an Independent Children’s Lawyer be appointed;
f)that a family report be prepared;
g)restraining the parties from using illegal drugs and/or removing the children from Queensland or Australia;
h)that the parties undertake urine drug analysis testing; and
i)that the transfer application be dismissed.
The father did not comply with the order to return the children to live close to the mother.
On 1 February 2012 the Consumer, Trader & Tenancy Tribunal in New South Wales ordered in the mother's absence, the termination of her lease at the (omitted) property. These orders were stayed on 15 February 2012 and a rehearing was ordered. The mother was successful at this re-hearing which was held in March. She was ordered to repay all arrears of rent.
The father submitted to a urine drug test around this time from which clean results were received.
On 8 February 2012 the father made a complaint to the NSW Police that mother had stolen his motor vehicle.
On 15 February 2012 the father pleaded guilty to breaching a Protection Order. The mother alleged that the following day the father broke into her home. On 17 February 2012 the police made an Application for an Apprehended Violence Order on behalf of the mother and the father made a similar application against the mother.
On 22 February 2012 the father alleged that X said to her tutor that her mother had said to her that she was going to put a knife down her throat.
The father filed an Application in a Case on 28 February 2012 seeking a stay of the orders made 31 January 2012. The mother responded by filing an Application in a Case on 26 March 2012 seeking enforcement of the orders made 31 January 2012 and a recovery order if the father failed to relocate with the children and costs.
The father and children moved out of the Paternal Grandmother's home on 19 March 2012 after she obtained a domestic violence intervention order in the Heidelberg Magistrates Court. In his Notice of Address for Service filed 29 March 2012, the father listed his new address in Victoria. He remains living at this address which he rents. He told the court on 26 February 2014 that he hoped to buy a property in which to live with the children in Melbourne in the same area. He has recently purchased an investment property in (omitted) but told the court he did not intend living there.
The father’s application for a stay of the January orders was dismissed on 5 April. The mother’s application for costs was reserved. At the final hearing she pressed this application. The father was given seven days to comply with the January orders requiring him to relocate with the children and upon any failure by him to do so, the mother had leave to seek a recovery order. The father did not comply with the order for relocation. He filed an Application on 10 April 2012 for a stay of proceedings that was listed for 16 April 2012 and to set aside orders made 5 April 2012. On 12 April 2012, I made orders in Chambers that the father was to personally attend Court on 16 April 2012 and for the father to present the children to the counselling section of the Court at Brisbane. He complied with that order.
The mother alleged that on 15 April 2012 she saw the father and children at her local shops and requested that she spend time with the children but the father refused.
At the hearing on 16 April 2012, the father indicated an intention to move back to Queensland with the children. I made orders providing for the following:
a)That the children spend time with mother that day until 3pm on Tuesday 24 April 2012;
b)That the father provide evidence of having secured accommodation within one and a half hours of (omitted). If he failed to do so, the children were to remain with the mother until the father provided that evidence;
c)That handover be at 3pm on Tuesday 24 April 2012 at (omitted) McDonalds.
d)That order 4 made 31 January 2012 be amended to read that the children spend time with the mother two out of every three consecutive weekends from Friday 10am to Sunday 5pm commencing 27 April 2012 and 4 May 2012 and on the third week from Wednesday 10am to Thursday 5pm commencing 9 May 2012 and as otherwise agreed between the parties in writing;
e)That the mother undergo drug testing as can be arranged on 16 April 2012;
f)That Order 10 made 31 January 2012 be varied so that both parties undergo random drug or alcohol testing as requested by the ICL on 48hrs notice;
g)That a family report and psychiatric assessment be conducted;
h)That the parties be restrained from discussing these proceedings with the children; and
i)That the matter be adjourned to 10 September 2012
The father attended the mother’s home the day after the court appearance under the auspices of saying good-bye to the children. The mother allowed him to enter her property to do so but saw him taking photos in her bedroom. She accused him of making threats against her and damaging her car. There was a further incident at the mother’s home on 22 April 2012 and the police were called. The mother accused the father of forcibly taking the children but he said the mother asked him to look after the children for a few hours that day. When he came to collect the children she accused the father of “stealing my babies” and assaulted him. The father called the police. Although my finding as to the credit of each of the parties leaves me in some doubt as to the veracity of either account, I was persuaded that the father’s version was more accurate. I find that the mother was attempting to set the father up to bolster her case for the children to live with her.
The children were due to spend time with the mother on 27 April and 4 May but the mother alleged that the father did not attend with the children on either occasion whereas the father alleged he was there on each occasion with the children but the mother was not. He annexed receipts from McDonalds for purchases made by him that day. I accept his evidence.
At around this time the father alleged the mother was using cannabis in front of the children and that she did not have secure accommodation. He alleged that X had told him that the mother said to her that she would stick a knife down her throat. The father did not make the children available to the mother on 9 May pursuant to the operative orders as he had returned to Melbourne with them by this stage. At the mother’s request, the police attended his home on 10 May to do a welfare check.
The mother filed an Application in a Case on 25 May 2012 seeking an ex-parte hearing and a recovery order for the children. She sought a discharge of the orders made 16 April 2012 and that the children live with her with the father to spend supervised time with the children.
On the same day the mother submitted to an urine drug test which although clean for most illicit substances, required further testing in respect of cannabis.
The mother’s application was not heard ex parte. The father filed a Response on 15 June 2012 seeking that the mother's Application in a Case be dismissed; that the operative orders be vacated; that he have sole parental responsibility for the children; that the mother communicate with the children every weekend and spend time with them on special occasions. Federal Magistrate Spelleken (as her Honour then was) on 21 June 2012 ordered that the parties attend a s.11F child inclusive conference; that the mother undergo another drug test; that the mother spend time with the children from 9.00am 14 July 2012 until 9.00am 17 July 2012 with the mother to deliver the children to the Counselling section of the Court and the father to deliver the children to the mother at (omitted) Police Station at 9.00am on 14 July 2012. The matter was adjourned to 17 July 2012.
The mother complied with the order for drug testing on 22 June 2012. A similar result was achieved to the previous testing in that she was clear for most illicit substances but there needed to be further testing in relation to cannabis.
The father filed a Notice of Child Abuse or Family Violence on 26 June 2012 alleging that:
a)The mother used cannabis when pregnant with both children;
b)On 10 May 2009 the mother pushed X causing her to fall and hit her eye causing bruising;
c)On 7 June 2009 the mother swore at Y;
d)On 21 October 2009 the mother hit the father in front of Y;
e)The mother denigrated the father to children;
f)The mother told X that she would put a knife down her throat;
g)The mother threatened the children with violence to control them;
h)The mother was using drugs in front of the children;
i)The mother abused the father by throwing household items at him in front of the children;
j)The mother had verbally abused the father in front of the children;
k)The mother has a history of domestic violence in previous relationships;
l)There was a history of family violence on the father and the children.
The father filed an Application in a Case on 11 July 2012 seeking time be abridged; a stay of the Federal Magistrate Court’s proceedings pending conclusion of the matter in the Supreme Court of NSW; that the orders of 21 June 2012 be set aside; a stay of proceedings set down for 17 July 2012 and 20 August 2012; the matter be transferred to the Melbourne registry; the mother's Application in Case filed 25 May 2012 be dismissed; the mother provide her address for service and he have sole parental responsibility of the children. The matter was listed for 17 July 2012. The s.11F child inclusive conference had been listed for 9.00am that day in Brisbane. The father and children did not attend.
On 17 July 2012, I ordered that the parties attend a s.11F child inclusive conference in Melbourne and the family report writer provide an oral report; that the father deliver the children for the s.11F conference; the father serve a copy of the application and affidavit filed 11 July 2012 on the ICL and the mother’s solicitor and that all outstanding applications be adjourned to 27 August 2012 in Melbourne before me.
The mother filed an Application in a case on 14 August 2012 seeking time be abridged and the application be heard ex-parte; a recovery order that the father reimburse the mother for any costs incurred in respect of the collection of the children pursuant to the execution of the recovery order; that the operative orders be vacated; that the children live with the mother and the father spend supervised time with the children at a contact centre; that the father provide evidence of termination of his lease; that the father provide evidence of obtaining secure accommodation in Queensland and that the father pay mother's costs.
On 14 August 2012 an Affidavit was filed by the mother's solicitor which annexed correspondence sent by the father indicating that he would not be bringing the children to court on 27 August 2012 for the s.11F report interviews in Melbourne and correspondence sent by the father indicating that he had made arrangements to travel with the children to Sydney on 29 August 2012. Notwithstanding that correspondence, the father did attend the s.11F conference in Melbourne with the children. When the matter came before me on 27 August after hearing the family consultant and submissions, I ordered the children to spend time with the mother overnight and adjourned the proceedings for judgment the following day.
On 28 August 2012 I ordered that:
a)The children live with the father in Melbourne;
b)The children spend time and communicate with the mother:
i)from 22 September 2012 to 7 October 2012;
ii)from 2 November 2012 to 9 November 2012;
iii)from 6 December 2012 to 13 December 2012;
iv)each Monday, Wednesday and Friday by phone/Skype between 6pm-6:30pm and
v)such further/other times as agreed;
c)For the purpose of the children spending time with the mother, the father is to pay for the cost of the children's airfares between Victoria and Queensland with changeover to occur at the (omitted) airport;
d)Without admission, the father is restrained from approaching within 100m of the mother except for the purpose of the children's handovers and the father is restrained from approaching the mother or the children during mother's periods of time with the children;
e)The mother is to provide the ICL with her residential address within 24hrs;
f)The mother and the father undertake urinalysis testing within 48hrs of a request by ICL;
g)The father is to attend a post-separation parenting program and provide proof of completion to the ICL and the mother;
h)A recovery order issue and lie in the registry to be executed upon any failure of the father to comply with the orders in relation to the mother spending time with the children (Orders 2(a)-(c));
i)In the event that the father does not comply with the time the children spend time with the mother orders, the mother is to file an affidavit addressing the issue of the father's non-compliance and the court will make orders in chambers on an ex-parte basis;
j)In the event that the recovery order is executed, the following orders will take effect:
i)The children live with the mother;
ii)The father spend supervised time with the children at a contact centre nominated by the mother;
iii)Both parties undergo intake at the contact centre;
iv)The father prohibited from again removing or taking possession of the children;
k)The Application for the matter to be transferred to Melbourne be dismissed;
l)The Applications in a Case filed 25 May 2012, 11 July 2012 and 14 August 2012 are otherwise dismissed;
m)A family report be ordered and to be prepared in Melbourne with Family Consultant Ms C requested;
n)The matter is adjourned to 23 November 2012 for directions only; and
o)The parties' costs of today are reserved.
The father sent an email to the mother's solicitor on 29 August 2012 and requested a change to the dates the mother was to spend time with the children on the basis of financial hardship. This request was rejected by the mother. A further request was made on 3 September 2012 and again rejected in correspondence on 5 September. Later that day the father’s solicitor emailed the mother's solicitor annexing an itinerary for travel for the children on 22 September 2012 and 7 October 2012. However in a telephone conversation with the mother on 21 September 2012, the father indicated he would not be delivering the children to her the following day. He acted upon this indication by not delivering the children to her in accordance with the orders.
An Application in a Case was filed by the father on 24 September 2012 seeking that time be abridged and the application be heard urgently; that orders 2(a)-(c), 3, 4, 5, 9, 10, 11(a)-(d) made 28 August 2012 be vacated; the mother provide evidence of secure accommodation; in event that the mother does not provide evidence of secure accommodation, the mother's time with the children be supervised at a contact centre; the father have sole parental responsibility; the mother attend a post-separation parenting program; the mother provide evidence that she continues to see psychologist Mr I; and the mother pay his costs. The Application was listed for 11 December 2012.
The father also filed a further Notice of Child Abuse, Family Violence or Risk of Family Violence on 24 September 2012 which was also listed for 11 December 2012. In this Notice he alleged that when he collected the children from childcare on 28 August 2012, the children were dishevelled; had contracted hair lice overnight and returned home with off meat in their lunchboxes and that the mother had threatened to take the children and not let the father see them again. He also alleged that X had disclosed that the mother had threatened to stick a knife down her throat.
On the same day he filed the application and Notice of Child Abuse in this court, he filed an Application and Summons for an Intervention Order at the Magistrates Court at Heidelberg, Victoria with the mother listed as the respondent. The Magistrates Court made an Interim Intervention Order that same day with the father and the children listed on the order as protected persons. The order included:
"At the time of making this interim intervention order, the Court has also made an order under section 68R of the Family Law Act 1975. The court has ordered that the parenting order made on 28/8/2012 is: suspended for time to be spent with the children by the mother until further order.
This order will end when the interim intervention order ends or 21 days from the date when the interim intervention was made (whichever is the earlier).
Note: Victorian police do not enforce the contravention of a Family Law Act order."
That matter was further listed for hearing on 5 October 2012.
On 25 September 2012 the mother filed an Affidavit pursuant to my orders of 28 August 2012 alleging that the father had failed to attend with the children at the (omitted) airport on 22 September 2012. She requested that a recovery order issue in chambers on an ex-parte basis. Upon considering the material filed by the mother and unaware of the orders made in the Magistrates Court at Heidelberg, I made a recovery order for the children to be delivered to the mother.
On 26 September 2012 the father sent an email to the mother's solicitor and the ICL attaching a copy of the Application and Summons for an Intervention Order and Interim Intervention Order made by the Magistrates Court at Heidelberg on 24 September 2012. The mother then filed an Application in a Case on 26 September 2012 seeking that time be abridged; leave to proceed ex-parte; a declaration that pursuant to s.68Q of Family Law Act the interim intervention order made 24 September 2012 by the Magistrates Court at Heidelberg is inconsistent with the order for recovery made on 25 September 2012 and is invalid; and for the father to pay costs. The matter was listed that day before me and proceeded ex parte. I noted the order made pursuant to the Magistrates Court Family Violence Protection Act 2008 (Vic) on 24 September 2012 in the Magistrates Court at Heidelberg and dismissed the mother’s Application in a Case. I also suspended the recovery order made 25 September 2012 until further order.
A further Interim Intervention Order was made by the Magistrates Court at Heidelberg on 5 October 2012 naming the father and the children as protected persons but the previous suspension of the family law orders made 28 August 2012 was removed.
A further Application in a Case was filed by the mother on 8 October 2012. She sought that time be abridged; Order 4 of the orders made 25 September (namely the suspension of the recovery order) be vacated and a recovery order issue; that the father reimburse her for any costs incurred in collecting the children; that the children live with her and spend supervised time with father at a contact centre; the father be declared a vexatious litigant and the father pay costs. The matter was listed for 17 October 2012.
The parties were due to attend for their Family Report interviews in Melbourne on 15 October 2012 but through a clerical error the notifications to the parties was not sent by the court. The interviews were rescheduled for 12 December 2012 with the report to be released by 21 December 2012.
On 17 October 2012 the father was legally represented. His request for leave to appear by telephone had been refused. I ordered:
a)Order 4 of Orders made 26 September 2012 (that a recovery order be suspended until further order) be discharged and the Recovery Order made pursuant to Order 9 of Orders made 28 August 2012 and issued 25 September 2012 be reissued;
b)Orders 1-5 of Orders made 28 August 2012 (that the children live with the father and spend time with the mother) be discharged;
c)Orders 14-15 of Orders made 28 August 2012 (that a family report be prepared in Melbourne) be discharged and in lieu thereof order that a family report be prepared in Brisbane;
d)That the father be restrained from filing any further applications seeking orders under the Family Law Act in any court without leave of this Court first having been obtained;
e)The matter was adjourned to 8 February 2013 for directions only and the dates of 23 November 2012 and 11 December 2012 were vacated.
f)The mother and the ICL's costs of 17 October 2012 were reserved.
In those orders I noted that Orders 6-11 of the Orders made 28 August 2012 remained operative i.e.:
a)6. That the mother provide her address to the ICL prior to spending time with the children;
b)7. That the mother and father undertake drug urinalysis testing at the ICL's request;
c)8. That the father attend a post-separation parenting program;
d)9. That a Recovery Order lie in the Registry;
e)10. That in the event the father does not comply with the orders that provide for the children to spend time with the mother, the mother's solicitor is to file affidavit addressing non-compliance and the court will make orders in chambers on an ex-parte basis;
f)11. In the event the Recovery Order is executed, the children are to live with the mother and spend supervised time with the father at a contact centre and both parties undergo the intake process at the contact centre and the father is prohibited from again removing or taking possession of the children until further order).
I also noted the orders made pursuant to the Magistrates Court Family Violence Act 2008 (Vic) on 24 September 2012 in the Magistrates Court in Heidelberg Victoria and declared those orders to be inconsistent in part to the orders made by me that day and to that extent would be invalid pursuant to s.68Q(1).
On 8 November 2012 the father’s solicitors, Thexton Lawyers, filed a Notice of Ceasing to Act. The following day the father filed an Application in a Case seeking leave of the Court to file an urgent Application in a Case and leave to proceed ex-parte. The matter was listed for 19 November 2012.
The Application in a Case sought to be filed by the father was seeking that the orders made 17 October 2012 be discharged; that a recovery order issue to return the children to the father; that the parties share the cost of travel between the (omitted) Queensland and Melbourne; that the mother provide a drug urinalysis test 72 hours prior to spending time with the children; that the mother attend a post-separation parenting program; that the mother provide the father with her address; that the father and the children attend Brisbane for family report interviews and that the children live with the father in Melbourne and spend time and communicate with the mother as follows:
a)20-25 December 2012;
b)22-29 January 2013 and
c)Telephone/skype each Monday, Wednesday and Friday between 6.00-6.30pm.
On 19 November 2012 I ordered that the father's Application in a Case filed 9 November 2012 be dismissed.
The father travelled to Brisbane to attend the family report interviews scheduled for 5 December 2012 with Family Consultant Mr J in Brisbane. The mother and children failed to attend. New interview dates were scheduled for 7 January 2013.
There was a further directions hearing at the Heidelberg Magistrates Court in relation to the intervention order on 13 December 2012. The mother did not attend and the matter was adjourned to 21 February 2013.
On 19 December 2012 the matter was again before me. The father appeared in person, the ICL appeared and the mother's solicitor, Ms S appeared but the mother failed to attend. I made orders that provided:
a)Each party were restrained from taking the children to counselling until further order;
b)The mother and the children were to attend family report interviews on 7 January 2013 in Brisbane;
c)The father file and serve any Application in a Case seeking leave to file an application for further parenting orders and any supporting affidavits by 3 January 2013;
d)The matter was adjourned to 23 January 2013 for an interim hearing following the family report and/or consideration of the father's Application in a Case for leave to proceed and if successful, for hearing of that application for parenting orders;
e)In the event that the mother and children fail to attend the family report interviews on 7 January 2013, the father and the ICL have liberty to relist the matter on that day for the Court to consider issuing a recovery order forthwith and for the children to be placed in the father's care until further order;
f)The court date of 8 February 2013 was vacated;
On 2 January 2013 the father filed an Application in a Case seeking leave of the Court to file an Application in a Case. This was listed for 23 January 2013.
On 7 January 2013 Family Consultant Ms S conducted the family report interviews in Brisbane with both parties and children in attendance. I made orders in chambers on 18 January 2013 requiring the parents to personally attend Court on 23 January 2013 and for the mother to deliver the children to the child care facility at the Court. I then released the family report on 21 January 2013. I will address the evidence of the family report writer in more detail below but at this stage I note the recommendations could be summarised as follows:
a)That the children live with the father;
b)That the children spend time with the mother as often as can be arranged (at minimum during each school holiday period), for no more that 3-4 nights at a time. This should be in place for approximately one year to allow for things to stabilise and for the children to feel confident.
c)After one year this time could increase to half school holidays, or no longer than 2 weeks, whichever is less. It is also suggested that Christmas and Easter holiday periods be alternated between each parent. This will provide opportunity for the children to spend time with other family members at these significant times.
d)That the children are given an opportunity to communicate with their mother via telephone or Skype at least 2-3 times per week.
When the matter came before me that day all parties attended. I dismissed the father’s Application in a Case filed 2 January 2013; gave him leave to file a Notice of Child Abuse, Family Violence, or Risk of Family Violence; ordered an updated family report to include further interviews with the mother, her daughter A, the father and Ms H. I adjourned the matter for a three day final hearing commencing 8 April 2013.
The father’s Notice of Child Abuse or Family Violence alleged:
a)The mother embedded her finger nail into Y's wrist and he said he was scared of his mother;
b)The mother goes "crazy, yelling and screaming" when she cannot understand X;
c)the children do not travel in child safety seats when travelling in the mother's car, which is unregistered.
The updated family report interviews had been scheduled with Family Consultant Ms S in Brisbane for 21 February 2013. The father and his fiancé travelled to Brisbane to attend but the mother and her adult daughter A failed to attend. The report writer conducted a telephone interview with the mother, but was unable to interview A.
On 27 February 2013 the mother’s solicitors, Schultz Toomey O’Brien Lawyers filed a Notice of Intention to withdraw as lawyer.
On 28 February 2013 the father filed and Application in a Case seeking leave to file an urgent Application in a Case. The father sought that:
a)Time be abridged for this urgent application to proceed ex-parte;
b)The orders made 23 January 2013 be discharged;
c)That the trial dates, 8 to 11 April 2013, be vacated and final orders be made pursuant to this application;
d)The children live with the father pursuant to two family reports (namely Ms C’s dated 27 August 2012 and Ms S’s dated 18 January 2013);
e)Recovery order issue;
f)The mother is prohibited from again taking possession of the children;
g)The mother spend supervised time with the children at a contact centre nominated by the father;
h)Each party do all things necessary regarding the intake at the contact centre;
i)The father have sole parental responsibility for the children until they are aged 18;
j)the mother to relocate to Melbourne;
k)the children communicate with the mother each Monday, Wednesday and Friday by phone/Skype between 6-6.30pm, or other times as agreed between the parties;
l)the mother pay the costs for this hearing and the proceedings.
The matter was listed for 13 March 2013 for directions only.
The updated family report was released to the parties on 6 March 2013. The family report writer recommended:
a)That the children live with the father;
b)That the children spend time with the mother as often as can be arranged, with a minimum of each school holidays for no more than 3x 4 nights for one year;
c)That thereafter the time is increased to half the school holidays, or no longer than two weeks, whichever is the lesser with Christmas and Easter holidays to be alternated.
On 13 March 2013 I adjourned the Application in a Case filed by the father on 28 February 2013 to 10am 8 April 2013 being the first day of the trial.
The father filed an Application-Contravention on 27 March 2013 alleging numerous breaches of the orders made 23 January 2013 by the mother. He also filed a further Application in a Case that day seeking time be abridged; ex parte application; the Orders of 23 January 2013 be discharged and the hearing dates be vacated; the children live with the father as recommended by the family reports; a recovery order issue; the father have sole parental responsibility; the mother relocate to Melbourne; the mother is prohibited from taking possession of the children; the mother spend supervised time with the children; the children communicate with the mother by phone; the mother pay costs and the mother is restrained from filing any further Applications without leave of the Court.
On the first day of the trial both parties appeared as self-represented litigants. The ICL was represented by counsel. I gave leave for the father to withdraw both the Application-Contravention and the Application in a Case filed 27 March 2013 and they were accordingly dismissed. The matter had not concluded by 11 April and was adjourned part heard to 22 April for two days. I made orders enabling the children to spend time with the father from 12 to 23 April 2013.
On 23 April 2013 after the evidence was concluded, I made directions for the ICL to file written submissions and adjourned the matter to 7 June 2013 in Lismore to hear oral submissions from both the mother and father. I also made orders for the children to spend time with the father during the June/July school holidays for a period of 10 days.
The father provided written submissions prior to the adjourned date and the mother handed up her own written submissions in Lismore. I heard some further oral submissions and then reserved my judgment. Six days later the father sought leave to file another Application in a Case. In support of this application the father alleged that:
a)On 5 May he paid $80 for X to attend swimming lessons;
b)On 7 June 2013, after the trial he and the mother went to Bunnings and he bought ($48) two heaters for the children;
c)On 8 June 2013 he bought $97 worth of food and fruit for the children before returning the children to the mother;
d)the mother called him on 12 June 2013 saying that her power had been cut off due to an outstanding amount of $436 and it won't restore the power till 4 July 2013;
e)he paid over $600 to fly the children to Melbourne for the term two school holidays;
f)he was concerned for the children's wellbeing due to the mother's poor management of her money and not providing day to day needs for the children and was concerned for the children's health and safety whilst in the mother's care.
On 13 June 2013 I dismissed the Application in a Case but gave leave to the father to file an Application in a Case seeking leave to re-open the hearing to adduce fresh evidence. He did this on 18 June. Whilst the children were in the father’s care for the school holidays, he filed a further Application in a Case seeking ex-parte orders for the children to remain in his care. He alleged that:
a)There were burn marks on X’s lower stomach area and that she got them from the heater and that the children had lice;
b)The children do not have their own room or beds and that they at times sleep in the mother's bed, whilst the mother sleeps on the lounge or on a mattress on the floor;
c)Y's behaviour was aggressive, rude and he hit and yelled at the father when not getting what he wanted;
d)the mother hits the children when they are naughty;
e)his is concerned that the children are exposed to physical and emotional/psychological abuse and the mother and the mother's adult daughter A were undermining his relationship with the children;
f)Y is not socialising with children his own age;
g)He is concerned of the damage to the children by the mother's dysfunctional home environment.
The matter came back before me on 18 July 2013. The father appeared in person, the mother appeared via telephone and Ms Boulton appeared as the ICL. I ordered the trial be re-opened and that the father be permitted to adduce fresh evidence. Even though I re-opened the hearing and allocated further hearing dates, the father again filed an Application in a Case on 13 September 2013 seeking the order made 17 October for the children to live with the mother be suspended and a recovery order issued to bring the children into his care; for the hearing date of 9 December 2013 to be vacated and the matter proceed by way of undefended hearing; that the mother be restrained from contacting the father's work place; and that the mother and her family be restrained from family violence against the father's family. I dismissed this application on 18 November 2013 and maintained the December hearing.
After hearing evidence on 9 December, I again reserved my decision. Yet again the father filed further material. On 31 January 2014 he filed a Notice of Child Abuse, Family Violence or Risk of Family Violence alleging the children had been subjected to sex games with older children whilst in the mother’s care.
The father’s evidence paints a picture of him being devoted to the care of the children and the mother being unable to do so. He was highly critical of the mother and believes the children are in ‘moral danger’ with her. He was concerned that she lacked the capacity or willingness to ensure the children were appropriately supervised. In his affidavit filed 14 February 2014, the father said he heard X say to Y words to the effect:
Y, I don’t want you sitting next to me touching my ‘fanny’.
The father contacted the Victorian Department of Human Services and was advised to take the child to a doctor. He annexed the consultation notes from Dr S who was not available for cross-examination as she was overseas. Her notes read:
Father has access over holidays, mother lives in northern NSW…is concerned that X recently said to brother Y “I don’t want you sitting next to me touching my fanny”…Y ran away
Father rang DHS who advised to see LMO…Father says mother has drug habit, keeps children home from school a lot, has brother and sister sleeping together, lets them play with older kids..
Speaking with X alone- seems happy child, says plays with older kids in NSW and has learnt the word ‘fanny’, I think she said they play a game of ‘touching fanny’, says she has never been touched there by older person.
Impression – unlikely to have ‘been interfered with’
The father described the children as being disrespectful to him and behaving badly. He was concerned that if the children remained with the mother they would be exposed to sexual activities; would become dysfunctional and their relationship would not be promoted by the mother.
In his affidavit filed 21 February 2014 he gave evidence of a Mr W answering the phone in the mother’s home and calling the father a ‘dickhead’. The father claimed the children were in the background and he could hear the mother or another woman telling them to be quiet. The father was told the children were not there.
The mother told the court that she uses the word ‘fanny’ for vagina and X would likely have learnt that word from her. She said that in the unit complex where she lives there are a number of other children these children play with. Some of these children are 9 and 8 years of age. She was not aware of any sex game but was aware they were playing a truth and dare game. She mentioned it to another parent and said she did not think it was age appropriate for these children. She said she did not become aware of the father’s concerns as to X’s ‘disclosure’ until he had filed his material. He never contacted her to discuss his concerns.
The mother appears to have reacted to these latest allegations made by the father. She filed an affidavit on 19 February accusing the father of defaming her in an endless effort to gain custody of our children. She said the allegations were an indicator of the father’s ill mental health. She said Mr Remington believes he has been abducted by aliens and accused him of having an addiction to amphetamines. During cross-examination she said the father had a tattoo on his back that he told her he got to ward off aliens after being abducted in North Queensland. She told the court that she did not raise this evidence earlier in the trial as she did not want to complicate the issues. I found her evidence lacked credibility.
The father alleged the mother was a user of illicit substances particularly marijuana and amphetamines. The mother conceded marijuana but not amphetamines. The drug test results provided by the mother showed no detection of illicit substances, however the certificate did show the need for further testing in relation to cannabis.
The father also conceded that he has used marijuana in the past but claimed he has not done so now for about three years. The ICL submitted the father sought to down play his use of marijuana and took me to a number of inconsistencies in the evidence. I accept the ICL’s submission. Having said that though, the drug testing results in these proceedings show no detection of illicit substances in relation to the father. The mother alleged that after the last school holidays in December/January 2013/2014, the children had told her the father spent his days in bed and had a “little bottle that he has ‘home made’ with a garden hose that he smokes with”. He denied this.
I am satisfied that both parties were excessive users of marijuana in the early years of their relationship and that this use was likely to have compromised their ability to prioritise their children’s needs. I am not satisfied there is sufficient evidence to find the mother was a regular user of amphetamines. My finding as to the credit of the father leads me to be reluctant to accept his allegations in this regard. Likewise, I have difficulty accepting the mother’s recent evidence as to what the children have told her about the father’s use of an implement for smoking marijuana.
The father raised as a significant issue the ability of the mother to provide financial and residential stability for the children. He gave evidence of the mother not being able to pay rent and utility costs. I accept his evidence that the mother has had difficulties meeting these expenses. The mother faced proceedings in the NSW Tenancy Tribunal in 2012 in relation to her tenancy of the unit at (omitted) the parties lived at the time of separation. Those proceedings resolved but it was clear that the mother was in arrears of rent and faced the prospect of eviction. The children were in the father’s care at this time. After moving from this unit, the mother also had difficulties with a flat mate over money she owed him. He withheld some of her personal property and the mother alleges the property is yet to be returned to her. She needed to find alternate accommodation and had started legal proceedings in relation to her property although this is not currently being pursued.
During the trial, the mother gave evidence that she was able to provide financial stability for the children. The day after I reserved my decision in June 2013, the father assisted the mother by purchasing items from a hardware store and the next day he bought groceries for her and the children. Five days later the mother phoned the father in tears saying that her power had been cut off because she had not paid the bill which was in excess of $400. This, in part, lead to the reopening of the trial. I accept the mother has had difficulty budgeting so as to provide for the day to day needs of the children. The father was paying just $35 per week in child support while earning an income of $836 gross per week. The mother otherwise relies on social security benefits. It is not surprising she has had difficulties budgeting. Notwithstanding these difficulties, there is no evidence of the mother not being able to pay the rent on her current accommodation. The school teacher gave evidence of the children presenting at school clean, neat and tidy and with healthy food in their lunchboxes. The mother conceded the father has made a number of payments from time to time on top of the child support paid and that her finances are tight. Whilst it is concerning the mother was not able to pay her electricity bill, on balance I am not satisfied these children have been suffering neglect by the mother’s very modest financial circumstances.
The mother raised in her affidavit filed 19 February 2014, that the father and Ms H were no longer engaged to be married. This was denied by Ms H. The mother’s evidence was that she had a telephone conversation with Ms H who was upset and said that the marriage was off and that she had found her wedding dress on Gumtree for sale with the reason ‘pregnant doesn’t fit’. Ms H who I found to be an impressive witness, said that she and the father had intended to marry in December last year but that they are now intending to marry in June 2014. She said the reason for not marrying last year was due to these court proceedings and their financial position. They needed more time to save for a wedding. She said she sent a text message to the mother early this year asking to speak to her. When they spoke she told the mother that the marriage was off. She explained that the mother had sent her two text messages mentioning sexual abuse and court. When she read these messages she did not have her glasses on and misinterpreted them believing the mother was accusing her of sexual abuse of the children. She found out during the phone call that that was not the case. She denied telling the mother that the father had found two innocent messages on her phone and that he had later texted her that the marriage was off. She agreed she told the mother she found her wedding dress on Gumtree for sale and said that it was accompanied by the words ‘pregnant, doesn’t fit’. She told the mother that she was upset by this. She explained the circumstances leading to the advertising of the dress for sale. She had been given her mother’s wedding dress to wear. She and the father discussed about selling the dress but the father went ahead with putting it on the web site with the words pregnant doesn’t fit and she was shocked by that. I preferred the evidence of Ms H over that of the mother.
Ms H also gave evidence that she believed the father would move to northern NSW if the children remained living with the mother after these proceedings. She was prepared to move with him.
The court was assisted by various reports and documents that would fall into the category of ‘expert evidence’. I propose to address some of this evidence below and when I consider the relevant s.60CC factors.
Family Reports
Two family reports were prepared for the final hearing. The first being released on 21 January 2013. An updated report was ordered because it became clear after the release of the first report, that the father had become engaged and had not brought this to the report writer’s attention and that the father had taped the children during a lunch break on the day of the interviews for the first report. I therefore asked the report writer to interview the father’s fiancé and listen to the recording. I also asked her to interview the mother’s older daughter A as she was at that time living with the mother and the children. The updated report was released on 6 March 2013.
After interviewing the parents and the children and observing the children with each of the parents, the report writer recommended the children live with the father in Melbourne when she prepared her first report. She did not change this position in the second report nor after cross-examination.
In the first report, the family consultant observed the children to enjoy a positive relationship with each parent. They moved freely between and engaged with each parent. When interviewed, X had spoken positively about living with her father in Melbourne which she regarded as her home. She was negative about her mother. She said her mother had told her that “daddy is going to kill us”. She said she wanted to go back to Melbourne but wanted to see her mother and sisters. Y on the other hand, viewed his home as being with his mother and sisters. He spoke positively about his mother and did not identify any worries about his mother. He also spoke positively and had no worries about his father. These interviews were conducted on 7 January 2013 after the children had been living with their mother for just over three months. They had been living with the father in Melbourne for 10 months prior to that. Significantly though, these interviews with the children occurred after the lunch break which they spent with their father. The mother had agreed for them to do so unsupervised even though the operative orders at the time provided for the father’s time to be supervised. During this lunch break the father recorded his time with the children. When the matter was before the court on 23 January, the father tendered that recording and invited the court to listen to part of it however the ICL persuaded me that it was important to hear the whole tape. Indeed it was. The recording went for about an hour. Early in the recording the father and children can be heard entering the toilet. Whilst urinating the father said to the children:
Mr Remington - You know that lady that mummy and daddy were talking to?
Y – Yeah
Mr Remington – Right, you tell her that you want to live with dad. You tell her that you told me okay. [flushing sounds] Right? Remember about what I said about always being honest? And always telling everybody the truth. Okay. Right? If mummy says don’t say something, you’ve got to tell people. Okay.
Y - … okay.
After ordering the updated report, the report writer listened to the recording. In her second report, she expressed the view that on the whole, the recording reflected a “typical conversation which would take place between children and their parent where they had been separated for lengthy periods of time.” The part quoted above though was an exception to that. She did not consider the father’s expressions of sadness, affection and love for the children to be inappropriate or coercive. She opined that the audible responses from the children did not sound distressed, annoyed or frustrated by his terms of endearment. She also had no significant concerns about the father’s frequent references to the home in Melbourne, their pets and family. In her view, it is important that parents remind children about significant people and pets to allay fears and to maintain connection and attachments especially when there are lengthy separations. She commented that the children had initiated some of this discussion which may have been suggestive of them seeking information and reassurance about their life in Melbourne. The report writer did not have concerns about the father prompting the children to speak negatively about their mother in a discussion about Christmas presents. She noted that it was the children who initiated this conversation. He suggested to the children that they could visit their mother in school holidays. During this conversation, the children said that the mother had cut Y with her fingernail causing it to bleed and that they were scared. The father is heard to question the children about where they are living and if they remembered who to phone in an emergency.
The report writer formed the view that it was possible that the negative innuendo comments made by Mr Remington to the children about their mother may have led them to disclose to him something negative about their mother so they could obtain reassurance from him. She noted that her interviews with the children took place immediately after this lunch break and neither of the children made the disclosures to her about their mother. She formed the view that the children’s statements are likely to be triggered when others speak negatively about the mother. She opined that the nature of the conversation between the father and the children did not significantly impact on the children’s presentation throughout the day or during their interviews with her. However, the father’s use of the digital recorder confirmed her concerns about the father using the children to obtain information about their mother and to gather evidence for these proceedings. She saw this as an example of the father lacking insight and awareness. The report writer was concerned that both parents had presented to her as quite motivated by the litigation and wondered if they had lost sight of the children in the proceedings. Despite these concerns, she was not moved to change her previous recommendation that the children live with the father.
The report writer in her first report considered the significant issue to be the possible risk of future harm to the children if they lived with their mother versus the likelihood of them not having a relationship with their mother should they live with the father. The family consultant placed significant store on the mother’s history of involvement with child protection authorities. She noted the following:
[94]……The concerns identified by these agencies and which I believe continue to be prevalent include Ms Slater’s capacity to cope and effectively manage her emotions, anxiety and stress, instability regarding accommodation which has included periods of homelessness and frequent eviction due to non-payment of rent and conflict with neighbours, domestic violence between Ms Slater and her partners and difficulty in ensuring the children regularly attend school. The prevalence and chronicity of these concern resulted in her older children being removed permanently from her care.
She was particularly concerned about the mother’s ability to manage her finances and her capacity to prioritise the children’s needs. The report writer went on to say:
[100] Ms Slater presented as a loving mother who wants to have a good relationship with the children. When things are going well for Ms Slater it is possible that she may be able to implement appropriate parenting strategies to assist and support the children in their development and adequate ensure their physical and emotional safety and well-being. However I am concerned that Ms Slater’s capacity in this area will be compromised in the long term due to her difficulty to regulate and manage her emotions, which then overwhelm her creating crisis in her developing a perception that she is unable to cope and manage. This is further heightened by the limited support network that is around her and the children which will assist in mitigating and alleviating these concerns. This appears to be a long standing pattern of behaviour, and without ongoing therapeutic support for Ms Slater in the presence of a robust and committed social support network, I am concerned that this pattern will be repeated for X and Y.
The report writer was not concerned about the children’s immediate safety and well-being whilst in the mother’s care but was concerned about the long term ability of the mother to provide stability for the children. She considered that the father presented as the stronger parent in terms of his capacity to consistently meet the children’s basic needs and provide stability and predictability in their lives. She was however concerned about his capacity to ensure the children have a relationship with their mother both in the short and long term. She was not convinced that he would follow through with his stated intentions to enable the children to spend time and communicate with their mother. She did not have those concerns in relation to the mother as she considered that she would ensure the children had a meaningful relationship with the father.
The family consultant considered it an imperative that stability and predictability becomes a normal part of the children’s lives in light of the significant changes they have experienced in their short lives. She was concerned that without that stability the children were likely to experience:
confusion and uncertainty which will manifest into anxiety, poor self-esteem and poor emotional regulation. This will significantly impact their capacity to engage and build relationship with their peers, and engage and achieve in education.
Another significant concern for the family consultant was her concern that unless the children lived with the father the parenting dispute would continue. She predicted that the father would continue to make applications for the children to live with him and appeal any decision that provided for the children to live with the mother. She also said there was a high risk of the father absconding with the children again because the father was convinced that the children were at risk in the mother’s care and that he would consider his actions as acting protectively of the children. This is a significant concern. Since the commencement of these proceedings by the mother on 23 December 2011, the father has along with his Response filed 12 Applications in a Case; 4 Notices of Child Abuse, Family Violence or Risk of Family Violence and 1 Application-Contravention. The mother has filed 5 Applications in a Case along with her Initiating Application.
The family consultant after weighing up these significant concerns about both parents concluded:
… the children’s needs to ensure their ongoing safety and wellbeing will be best met if they are predominantly in Mr Remington’s care. The stability that they would experience in his care, will provide them with ability and confidence to cope with the instability they are likely to experience when spending time with their mother. It is acknowledged that if they live with their father, there is a chance that their time with their mother will be limited as he may not facilitate this. However, for these children the safety, predictability and security that Ms Remington offers the children needs to be prioritised over them having a relationship with their mother.
The concerns relating to Ms Slater does not preclude or prevent the children from being able to spend time with her. I believe that Ms Slater has the capacity to cope with and manage the children for short periods of time. In ideal circumstances the children would spend time with their mother every second weekend. However this is not possible given the distance, and as such the children’s time with their mother will be limited to school holidays or long weekends. It is possible, that Mr Remington will feel more confident to allow the children to spend time with their mother after these proceedings have finalised and there has been a period in which the children have stabilised and settled.
I accept the opinion of the report writer that the father is likely to provide these children with a stable home life. I have no doubt he will ensure the children attend school on time and that they are fed properly and otherwise be well cared for. I accept the submission of the ICL that notwithstanding that stability, there is a risk that the children’s emotional stability will be undermined by the father’s obsession as to the mother’s inability to meet the children’s needs and their risk of harm in her care. I am satisfied that this belief he holds is likely to cloud his ability to ensure the children have an ongoing and positive relationship with the mother. I have no doubt that the mother has had difficulties coping with meeting the day to day needs of her children and has not always been able to provide the stability that is important for them. In relation to X and Y, a significant period of instability for these children occurred when the parents were either living together or in the same locality. The father must share responsibility with the mother for this.
The report writer relied on the mother’s history of involvement with child welfare authorities in informing her assessment of the mother’s capacity to meet the children’s needs. I accept the submission of the ICL that such reliance warrants a careful scrutiny of evidence from those authorities.
During 2005 and 2006, three of the mother’s older children: B, A and C were subject to orders in the Children’s Court of NSW pursuant to the Children and Young Persons (Care and Protection) Act 1998 NSW providing for their removal from the mother and placement with their father. Parental responsibility for these children was allocated to their father. It appears the basis for the removal of the children from the mother was the concern held by DOCS(NSW) as to her parental capacity. Dr L, Senior Clinical Psychologist with the Children’s Court Clinic, prepared an assessment for the Children’s Court proceedings. Although the children’s father, Mr P took part in the assessment with the children, the mother refused to do so. Her report indicates that the department had recorded a five year history of the mother displaying highly emotional, anxious and erratic behaviour. The mother was recorded as having made threats to harm the children and having suicidal ideation. Although there had been positive interaction between the mother and the children, DOCS(NSW) were concerned about the psychological vulnerability of the children having a chronic exposure to their mother’s yelling and erratic behaviour with their educational and domestic instability described as a “lack of appropriate coping mechanisms and consequent lack of consistency in her care resulting in emotional harm to the children”. There were also concerns as to a possible cannabis dependency on the mother’s part and her ability to meet the children’s basic needs for housing and food. The mother was said to fail to engage with support services.
With that history in mind, when the mother gave birth to X in 2007, DOCS(NSW) brought proceedings to have her removed from her mother’s care the day after she was born. The mother and father took X from the hospital in an attempt to thwart the department. After locating the child, X was placed in foster care from 17 June until 7 August 2007 when she was restored to her parents. In March 2008 an order was made in the Children’s Court NSW allocating parental responsibility to the Minister, DOCS(NSW) for a period of six months which was extended for a further six months. Y was born during this time. On 12 September 2008, officers of DOCS(NSW) conducted a home visit with the parents and observed them with the children. An incident occurred between the parents and the departmental officers during that home visit although the material before me does not enable me to determine the extent of that incident. It is clear however that the parents were adversarial to the departmental involvement. The officers were concerned that the mother had lost a lot of weight and her appearance and behaviour was suggestive of being drug affected. They noted a history of mental health issues and her presenting behaviour raised concerns about her emotional stability. They noted a history of domestic violence between the parents and that the mother was verbally abusing the father. The parents appeared to lack concern about any impact of their behaviour on the children and they failed to comply with an agreed Care Plan for the children. As a consequence of these concerns, with the help of police, the two children were removed by DOCS(NSW) that day.
Dr L who conducted the assessment for the mother’s older children, also conducted the Children’s Court Clinic assessment for X and Y. She was aware of this fact and raised it with the mother. It is clear from her report she was aware of the mother’s history with DOCS(NSW) and she made enquiries with professionals that were involved with the parents since the birth of X and Y. Dr L recommended the children be returned to the parents immediately. Palmer J of the Supreme Court NSW made orders to that effect on 19 December 2008 and was highly critical of the actions of the officers of DOCS(NSW) in removing the children.[2] The parents subsequently instituted proceedings in the Supreme Court of NSW seeking damages from DOCS(NSW).
[2] See Re Georgina and Luke (No 2) (2008) 40 Fam LR 247
After the return of the children to the parents in December 2008, child welfare authorities in both NSW and Queensland continued to receive information about the family. Between February 2009 and September 2012 there have been at least 10 child concern reports, notifications or enquiries made to the child welfare authorities of NSW and Queensland in relation to the children. The records from the departments suggest that the parents have had ongoing issues in relation to drug use, family violence and capacity to cope with parenting the children. Notwithstanding these records, neither State welfare authority has brought further proceedings in relation to the children nor have they sought to be part of these proceedings. With this history of child welfare involvement, it is not surprising the family report writer was concerned as to the ability of the mother to provide stability for the children over the long term. The mother’s involvement with child welfare authorities goes back many years. It must also be noted however, that the child welfare authorities have had cause to be concerned with both parents’ care of these children.
Now that the parties have separated and appear to have moved on at least in regards to their relationship, I am satisfied the risk of physical violence has diminished. I am not however satisfied that the parties will be able to refrain from denigrating each other especially if they experience other stressors in their lives or when they perceive the other is not doing the right thing by the children.
Although the past history highlights serious failings on the part of both parents, the current separate circumstances of the parties does not raise as many concerns. The father urged upon me to find that the mother was an unfit mother and has raised concerns as to her associates and her supervision of the children but apart from the denigration issue, I am not satisfied that there is sufficient evidence to find that the mother is likely to place the children at risk of physical or psychological harm in her care. The father has on numerous occasions alleged X has said the mother has told her she will stick a knife down her throat. He has not led any corroborating evidence of this and given my finding as to credit, I cannot be satisfied the father has been truthful when making this allegation.
The mother has also raised a number of concerns about the father but for the same reasons and with the exception of the denigration issue, I am not persuaded the children are at risk of harm in his care. Although the denigration is likely to occur over the phone, I will make an order restraining the parties from denigrating the other to or in the presence or hearing of the children.
The child’s views
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views[24]
[24] S60CC(3)(a)
These children are very young and lack the maturity to understand the consequences of any preference as to where they would like to live. Consequently, their views would not be determinative of where they should live.
The likely effect of any changes to the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living[25]
[25] S60CC(3)(d)
The children have now experienced a lengthy period of stability since they went back into the mother’s care in September 2012. That 18 month period is the longest period of stability in their young lives. Both children appeared to have settled into school and the life with their mother. Child welfare authorities do not appear to have any significant concerns warranting any action on their part.
The children had been living with the father in Melbourne for some 10 months prior to his failure to comply with orders that precipitated the recovery order that brought the children into the mother’s care. By all accounts they were settled with their father during this time.
Prior to these two periods, the children had experienced disrupted lives; been exposed to parental conflict and less than optimum care by each parent. In my view it is important for these children to have stability in their day to day lives. This was a significant issue for the family report writer. She was of the view that the father was likely to be the better parent in providing this stability for the children over the longer term. When she prepared her report, the children had only been with the mother for about three or four months. The mother has been able to sustain a stable home life for the children now for over 18 months. Although the father had provided stability for them whilst they were living with him in 2012, to disrupt their current stability has the potential in my view to be unsettling for them.
One cannot help but wonder that if the father had have complied with the orders of 28 August 2012 for the children to spend time with the mother and therefore avoided the issue of the recovery order that ultimately led to the children living with the mother and the trial had concluded without the necessity for its re-opening, if the children’s stability would have been established in the father’s home in Melbourne to such an extent that that stability would have gained prominence in this determination.
This issue of stability is an important consideration to which I give significant weight and in light of the history now favours the children remaining with the mother.
Practical difficulties
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis[26]
[26] S.60CC(3)(e)
The two households are so geographically distant and the financial circumstances of the parties, particularly the mother, are so modest that it is very difficult for these children to spend time with their non-residential parent on a frequent basis. The only practical arrangement is one that would allow for school holiday time.
The mother indicated that if the children were to live with the father in Melbourne, she would move close by so as to spend more regular time with the children. Whilst I accept that is the mother’s desire, I am also satisfied she has not thought through the financial implications for her in such a move.
The father has a real dislike of the northern New South Wales area where the mother lives and would prefer not to move north if the children stay with the mother. I accept that that is his honestly held view but I am also persuaded that he wishes to play a significant role in these children’s lives and greater than he would be able to in the event the children were only spending time with him during school holidays. Ms H gave evidence that the father has considered moving to be closer to the children even though he would prefer not to live in northern New South Wales. She is also prepared to move with him when they get married.
If the parties were to live in close proximity the practical difficulties could be overcome. In the orders I propose to make I will provide for alternative arrangements depending where the parents are living. For example if the children live with the mother and the father was to live in Brisbane close to where his father lives, he would be about 120km from the mother’s home depending on which suburb he was living. That would not be too far aware to prevent the children spending weekends with him. Likewise, if the children are to live primarily with the father in Melbourne and the mother also moved to that city, she would be able to spend weekends with the children.
Parental capacity and responsibility
The capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs [27]
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents[28]
The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent[29]
[27] S.60CC(3)(f)
[28] S.60CC(3)(i)
[29] S.60CC(4)
There is a question mark over both parents when considering their parental capacity. In the past the parents have failed to provide appropriate supervision of the children when they were living in (omitted). They have failed to provide for the children’s emotional needs by engaging in family violence and not being able to be responsive to them by their drug taking.
The father raises issues as to the mother’s ability to provide financially for the children. There is some merit in his complaint but not to the extent that I would find the mother could not provide for them. The father has provided financial support on an ad hoc basis but the amount of actual child support paid by him has been around $35 per week. Some of the mother’s difficulties would have been alleviated if the father’s regular child support payments were higher. I have no concerns as to the father’s ability to provide financially for the children if they were to live with him although I accept his complaint the mother did not pay any child support for the care of the children when they were in his care.
It was submitted on behalf of the father that the mother does not have a roadworthy motor vehicle but I do not consider that to be a significant consideration.
The father also complained the mother allowed the children to become infested with head lice. Whilst this would be of concern if it was an ongoing issue, the father did not provide any corroborative evidence to enable me to find that it has been an ongoing issue.
Background issues
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant[30]
[30] S.60CC(3)(g)
If the child is an Aboriginal child or Torres Strait Islander child:
(a)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(b)the likely impact any proposed parenting order under this Part will have on that right[31]
[31] S60CC(3)(h). S60CC(6) provides that for the purposes of paragraph (3)(h), that an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture
These children are still very young and vulnerable. It is for this reason that the issue of stability to which I have already referred is important. There are no other cultural or background issues that would favour one parent over the other.
Limiting further proceedings
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child[32]
[32] S.60CC(3)(l)
In light of the numerous applications filed in these proceedings by both parties but particularly the father, there is potential for ongoing litigation no matter what orders I make. The ICL submitted that I should maintain the interim order restraining the father from bringing further proceedings without leave of the court. Given the extent of applications filed by him, I am persuaded that such an order is appropriate.
Presumption of Equal Shared Parental Responsibility
The presumption of equal shared parental responsibility has been rebutted in this case given the history of family violence.
The ICL argued however that I should order the parties to have equal shared parental responsibility. The ongoing communication difficulties between the parties cause me concern as to their ability to effectively communicate to make important decisions for these children.
For the purposes of the Act, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[33] Unless there is a court order to the contrary, each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[34] When a court has made an order for two (or more) people to share parental responsibility for a child, any decision involving a major long-term issue must be made jointly by those people after consulting each other.[35] A major long-term issue in relation to a child means an issue:
[33] S61B
[34] S61C
[35] S65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[36]
[36] S.4
Despite the vulnerabilities of these parents they each have much to offer the children. Consulting with each other though will require better communication. Having said that not all communication has been problematic between them. Sometimes in litigation the negatives are highlighted to the point where any positives are forgotten. Despite the ongoing and significant conflict between these parties, they have on a number of occasions been able to consult and make arrangements for the children. If the parties allow the parenting arrangements I order to be put into place without recourse to further litigation, things might settle down for them such that they will be able to communicate better more often. On balance I am persuaded that it would be in the best interests of the children that the parties have equal shared parental responsibility for them.
Consideration of Equal Time or Substantial and Significant Time
Having made the decision to order equal shared parental responsibility, I am required to consider whether it would be in the children’s best interests and reasonably practical for them to spend equal time with the parents. Whilst the parents continue to live so far apart it is obviously not reasonably practical. I need only note the children are now of school age to highlight the obvious impracticality without addressing that issue further.
What if however, the parents were living within a 30 minute drive of each other? The geographical issue might then suggest a reasonable practicality. In my view however, the evidence would suggest that such an arrangement would not be in the children’s best interests. In T & N[37] Federal Magistrate Ryan (as her Honour then was) considered a number of factors worthy of consideration in determining whether a shared care arrangement is in a child’s best interests. The factors are:
[37] (2004) 31 Fam LR 281; see also S.65DAA(5) which sets out similar factors the court is to have regard.
·The parties’ capacity to communicate on matters relevant to the child’s welfare;
·The physical proximity of the two households;
·Whether the homes are sufficiently proximate so that the child can maintain friendships in both homes;
·The prior history of caring for the child, and whether the parties have demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment;
·Whether the parties agree or disagree on matters relevant to the child’s day to day care, diet and sleeping pattern;
·Whether if the parties disagree on the these matters there is a likelihood that they would be able to reach a reasonable compromise;
·Whether they share similar ambitions for the child, for example as to religious adherence, cultural identity and extra-curricular activities;
·Whether they can address on a continuing basis the practical considerations that arise when a child lives in two homes;
·Whether each party respects the other party as a parent;
·The child’s wishes and the factors that influence those wishes; and
·Where the child’s siblings live.
If the parties were living within a 30 minute drive of each other’s residence, it would be easier for the children to move between both homes; maintain their peer friendships; attend school and extra-curricular activities. The history of the conflict between the parties suggests however, that they will not be able to communicate effectively enough to avoid ongoing difficulties. It is imperative in shared care arrangements for parents to be able to sort out practical difficulties as and when they arise such as ensuring the children have the right school uniforms or equipment. These parents are likely to blame each other if items go missing. They also have different views as to supervision and rules within their households. They have different aspirations for their children with the father keen to see them achieve academically whereas the mother is more laissez faire in this regard. There is no doubt the father lacks respect for the mother as a parent. When I consider those factors, I find it is not in the best interests of these children for them to live in a shared care arrangement as such an arrangement is likely to break down rather quickly.
Having determined that issue, I am required to consider whether it would be in the children’s best interests and reasonably practical for the children to spend substantial and significant time with the parents. Such an arrangement includes children spending days with a parent on weekends, holidays and days that do not fall on weekends and holidays that allows the parent to be involved in the children’s daily routine; special occasions and events for the child and the parent.[38] Such an arrangement would not be reasonably practical if the parties continue to live so far apart. If however they lived within 30 minutes of each other, such an arrangement might not only be reasonably practical but also in the children’s best interests. If the parties lived within a distance of 120km of each other, it might still be possible but not to the same extent. Although some of the concerns I have expressed when considering the best interests element of a shared care arrangement would still apply to a substantial and significant time order, there is less chance of it breaking down if the children have a primary home in which they feel settled. The parent with whom the children do not primarily live would still be able to be involved with special events at school and the like but there may not be the ongoing practical implications of a shared care arrangement.
[38] S. 65DAA(3)
Discussion
Despite my concerns in relation to each of the parents, it is my view that the children’s best interests would be served by continuing to remain in their mother’s primary care so as to afford them ongoing stability. This stability outweighs my concerns as to the mother’s ability to promote an ongoing relationship with the father. Indeed in that regard I am persuaded that the father is less likely to promote a relationship between the children and the mother than she is between them and the father. Although the father would also be able to provide the children with a stable home life if they were living with him, I do not consider it in the children’s best interests to upset their current home life after some 18 months of primary care from the mother.
If the father remains living in Melbourne it would be appropriate for the children to spend some extended holiday time with him during school holidays and some weekend time in the event he is able to travel to northern NSW or Brisbane. I propose to order the children spend 10 days of the school holidays at the end of terms 1, 2 and 3 with the father each year. Although this time is more than half of the school holidays it will give them some extra time with the father but also enable them to have some holiday time with the mother and their friends in their local area. For the long school holidays at the end of the year, I am of the view that the children would benefit from spending half of the holidays with each parent. I propose to order that in the event the father lives in an area greater than 120km from the children’s school but is able to travel to within the 120km distance and provides the mother with at least one month’s written notice of an intention of doing so, he is to spend time with the children from after school Friday to 6pm Sunday or 6pm Monday if it is a public holiday. This arrangement will enable the children to spend time regularly with the father but not overburden them with travel.
In the event though that the father moves to an area within a 120km radius of where the mother lives, the children would benefit from spending time with him on alternate weekends and half school holidays. I would propose the weekend time conclude on the Sunday evening to avoid a lengthy drive for the children on the Monday morning. In selecting the 120km distance, I am in effect allowing for about one and a half hours drive time and would give the father a number of options as to where he could live and work should he not choose to live in the (omitted) area.
If on the other hand the father does decide to live closer to the mother, I am of the view the children would benefit from spending a full weekend plus an extra day with the father each alternate week. I will therefore order that if the father lives within a 30 minute drive of the children’s school, he spend time with them from after school Friday to before school Tuesday each alternate week. This extended block period would enable the father to engage with the children’s school more and assist the children in their homework. In light of the fraught communication the parents experience from time to time, I am of the view that the extended block would be preferable to a night in the off week so as to avoid any practical difficulties associated with such arrangements.
In the event the parents are able to improve their communication over time, they may wish to agree to alter these arrangements so I will preface the spend time with orders as agreed between the parents.
I also propose to make an order providing for the children to have telephone communication with the parties when they are not in that parent’s care. Ideally the children should be able to receive a call from a parent at any reasonable hour however in this case, the parties have accused each other of not making the children available. I do not consider it would be appropriate to make an unspecific order. Having said that, it is important for these children to maintain their relationship with each parent when not in their care so I propose to make an order that the children communicate with the parent they are not living with on the relevant day at 6.30pm, being the time where the children are located, on Mondays, Wednesdays and Fridays each week.
Orders providing for the above arrangements depending on where the father is living will ensure the children’s rights to know and be cared for by both parents are met as well as their rights to regularly spend time with and communicate with both parents.
In light of the numerous applications filed in these proceedings by the father, I accept the ICL’s submission that it is appropriate to order the father to first obtain the leave of the Court before bringing any further application. In order to limit the prospect of conflict in relation to these orders, I propose to keep them as simple as possible in the hope that any dispute as to their interpretation can be avoided. Although I contemplated retaining the ICL in this case given the potential for future conflict, I am of the view that it is important for these parents and more importantly for these children if there is a clean break from the litigation. It is for this reason I will discharge the appointment of the ICL. I do not propose to make an order for the parties to attend a parenting course as suggested by the ICL. I accept the parents need support and would benefit from such a course but in this case if they are not motivated to attend such a course themselves, they are unlikely to take on board what is said. I will leave that decision to them.
For these reasons I make the orders set out at the commencement of this judgment.
Mother’s Application for Costs
The mother incurred approximately $1200 in airfares in October 2012 in relation to her travel to Melbourne for the purposes of recovering the children pursuant to my order of 17 October 2012. She borrowed these funds and is yet to repay them. The mother seeks an order that the father pay this sum. In her submissions she referred to an order reserving her costs made on 17 October 2012. That order related to her legal costs for that day. The costs order she now seeks is somewhat different and whilst I have much sympathy for her request, I am not satisfied I have the power to make the order she seeks.
Ordinarily each party will bear his or her own costs associated with proceedings under the Act[39] however, if the court is of the view that it is just to do so it may make an order for costs.[40] Rule 21.10 of the Federal Circuit Court Rules 2001 provides that:
[39] S. 117(1)
[40] S. 117(2)
Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1; and
(b) disbursements properly incurred.
The words ‘costs’ and ‘disbursements’ are not defined in the Act but have been held to be confined to professional legal fees and expenses incurred in the course of the litigation.[41] Travelling expenses have been rejected as falling within the meaning of costs for the purposes of costs orders. In Cachia v Hanes[42] the majority of the High Court held:
It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, “but not to the costs and expences of his travel and losse of time” (References omitted)
[41] See Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; Stephens & Stephens & Ors (Enforcement) (Costs) [2010] FamCAFC 172
[42] (1993-94) 179 CLR 408 at 410
The Full Court in Oscar & Traynor [2008] FamCAFC 158 when considering a costs application that included travel expenses applied Cachia. The court said:
[85] There has been considerable case law since Cachia v Hanes, much of which is unreported, dealing with claims for recovery of “expenses” as “costs”. Those expenses which have been found to be properly recoverable include:
a) court fees (see, for example, the discussion of the Full Court in B and P [2000] FamCA 392 at [50]; and also the Family Law Regulations 1984, reg 11(6)(b));
b) transcript costs, on the basis that they cannot also be claimed as costs in connection with the trial (see, for example, the discussion of the Full Court in W (deceased) and W and Ors [2004] FamCA 319 at [41]);
c) expenses for serving documents (see, for example, Winter v Fleeton [2002] WASCA 73 at [23]);
d) freedom of information fees (see, for example, Pittwater Council v Bolitho [2007] NSWLEC 355 at [159]);
e) fees for searching registers, such as an ASIC search fee (see, for example, Re Sullivan and Department of Industry, Science and Technology (1998) 51 ALD 767 at [45]);
f) appeal book binding (see, for example, Winter v Fleeton [2002] WASCA 73 at [23]);
g) disbursements incurred by a litigation guardian (see, for example, Step v Northern Territory (2007) 20 NTLR 141); and
h) incidental expenses in relation to photocopying, postage and telephone and facsimile transmissions (see, for example, Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339 at [66]; Cary v Owners of Strata Plan No. 7241 [2002] FMCA 18).
[86] There are, of course, also many cases in which a litigant has been awarded costs relating to the legal advice obtained in preparation for a hearing, although they did not have legal representation at the hearing itself.
[87] Expenses which have been held not to be recoverable include:
a) travelling costs (see, for example, the discussion of the Full Court in W (deceased) and W and Ors (supra at [49]); and also Farquar and Farquar (No 2) [2008] FamCA 682; Cachia v Hanes (supra) at p 417);
b) parking costs (see, for example, H & H [2006] FamCA 257 at [9]); and
c) meals (see, for example, Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 at [14]).
Whilst the costs incurred by the mother in travelling to recover the children can be distinguished from costs of travel to attend court and prosecute an application, I am of the view that these costs are not contemplated under the general costs provisions of the Act. It is for this reason that I am satisfied the mother will not be able to ground a costs order relying on the provisions of s.117(2).
I am fortified in this view when I consider the provisions of s.117A which makes specific provision for reparation for losses and expenses in relation to children in certain circumstances including the recovery of children. The distinction is clearly contemplated by the legislation. However the circumstances giving rise to an order under s.117A do not fit this case. The recovery order obtained by the mother that led to her travelling to Melbourne was made under Division 8 of Part VII of the Act. The ambit of s.117A applies to recovery expenses that have arisen out of contraventions within Division 13A of Part VII; a conviction under ss.65Y or 65Z; or where there has been a finding of contempt. That is not the case here. It is for these reasons I must dismiss the mother’s application.
I certify that the preceding one hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Date: 14 March 2014
C2 Family Consultant Memorandum to Court dated 27 August 2012.
C3 Family Consultant Memorandum to Court dated 9 April 2013.
F1 Bundle of documents tendered by the father.
ICL1 recordings dated 11 December 2011 and 7 January 2013.
ICL2 weekly activity schedule of the mother.
ICL3 bundle of four letters from Living Well Psychology & Counselling dated 6 July 2012, 6 September 2012; 27 September 2012 and 13 December 2012.
ICL4 criminal record of the mother by Queensland Police
ICL5 Copy of Re Georgia & Luke (No 2) [2008] NSWSC 1387, taken from (2009) 40 Fam LR 247.
F2 Patient’s Mood Thought Record of the mother.
F3 Handwritten statement of Mr A dated 13 April 2012.
ICL6 Statement of Ms B dated April 2013.
ICL7 Statement of Ms L of (omitted) Preschool, undated.
ICL8 (omitted) Hospital notes regarding the father, dated 26 March 2013.
F4 Recording of conversation of 5 December 2012 between the mother and father.
F5 Letter from the Department of Human Services, Child Support to the father, dated 15 April 2013.
ICL9 Report of Mr B dated 4 April 2013.
ICL10 Queensland Court Outcome dated 10 April 2013 regarding the father.
ICL11 Bundle of documents from Queensland Police Service.
ICL12 Bundle of documents from Victorian Police Criminal record of the father.
M1 Bundle of expense documentation incurred by the mother.
ICl13 Documents issued under subpoena from Queensland Government, Department of Child Safety & New South Wales Community Services.
ICL14 Statement of Ms B 26 February 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Injunction
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Jurisdiction
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Remedies
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Res Judicata
0
10
5