SLEIMAN & GANIM
[2020] FCCA 3309
•1 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SLEIMAN & GANIM | [2020] FCCA 3309 |
| Catchwords: COSTS – Application for Costs by the independent children’s lawyer – determination of hardship pursuant to s 117(4)(b) – where a party has been wholly unsuccessful – where Order for costs under section 117(2A) is not deemed just. |
| Legislation: Family Law Act 1975 (Cth), ss.60B; 60CA; 60CC; 60I; 117 |
| U & U [2002] FLC 93-112 Other sources: Joe Harman, ‘The Intersection of Family Violence and Family Dispute Resolution: Implications for Evidence Gathering and Mediation Confidentiality’ (2019) 33(1) Australian Journal of Family Law 1 Hague Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, Hague XXVII (entered into force 1 December 1983) |
| Applicant: | MR SLEIMAN |
| Respondent: | MS GANIM |
| File Number: | PAC 4654 of 2019 |
| Judgment of: | Judge Harman |
| Hearing date: | 1 May 2020 |
| Date of Last Submission: | 1 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 1 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr P. Morris of Circle Bridge Legal |
| Solicitors for the Respondent: | Mr S. Kassem of FutureLegal Pty Ltd |
| Solicitors for the Independent Children’s Lawyer: | Ms C. Hernandez of Legal Aid NSW |
ORDERS
That the Applicant Mother have sole parental responsibility of the child, X born on 2007 (“Child”).
That the Children live with the Applicant Mother.
The child to spend no time with the father.
That pursuant to section 68B of the Family Law Act 1975 (Cth), the Respondent Father be restrained from approaching or contacting the Applicant Mother and/or child and engaging third parties to approach and/or contact the Applicant Mother and/or child.
That pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Minister issues an Australian passport in the name of X Shkhayer without the necessity of obtaining the consent of the Child’s Father.
That the consent of the father in obtaining a passport be dispensed with.
That the mother have the possession of the child’s passport.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
Remove all issues from the list of cases awaiting hearing.
Grant leave to the Independent Children’s Lawyer to seek Orders as to a contribution to costs by each of the parties.
Dismiss the Application.
IT IS NOTED that publication of this judgment under the pseudonym Sleiman & Ganim is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4654 of 2019
| MR SLEIMAN |
Applicant
And
| MS GANIM |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to care arrangements for a young child, X, born 2007. X is nearly 13 years of age.
The parties to the proceedings are her parents: Ms Sleiman, her Mother, and the Applicant, and Mr Ganim, her Father and the Respondent.
The proceedings were commenced by an Application Initiating Proceedings filed on 20 September 2019, that is, nearly eight months ago.
A Response to that Application was filed recently, some seven days ago. I will return to that issue shortly.
The interests of young X are represented, and competently so, by an Independent Children's Lawyer.
The matter is listed today for a possible undefended hearing. The Orders which listed the matter were made on 26 March 2020. That was not the first return date of the proceedings. Again, I will come to that shortly.
On 26 March, 2020, Orders were made as follows:
The matter is adjourned for further mention and directions and, absent compliance with the following Order, a final undefended hearing to 1 May 2020.
Should Mr Ganim wish to be heard further in these proceedings, noting that service was effected some five months ago [now seven months] and notwithstanding Orders made on 13 November 2019 as to a Response being filed, then he shall:
(a)Appear via telephone link or such other means as advised on 1 May 2020; and
(b)File and serve a response, affidavit, and notice of risk no later than close of business 24 April 2020.
It must be made clear that the Father has, in fact, complied with those Orders. His Response was filed on 24 April 2020, albeit a few moments after the close of business. He has appeared today and is legally represented.
History of proceedings
Following commencement of the proceedings, the matter came before the Court for the first occasion on 13 November 2019. Service had been effected prior to that date.
Prior to filing, family dispute resolution had not occurred. The Mother made application to dispense with the requirements of section 60I of the Family Law Act 1975 (Cth) on the basis of allegations as raised in her affidavit material. That exemption was granted.
It is clear and apparent from the material now belatedly filed by the Father that he had attempted to arrange FDR. Indeed, the Mother is clear in her evidence that she was aware that he had arranged, or was in the process of attempting to arrange, family dispute resolution.
Correspondence is attached to the Father's material comprising a section 60I certificate evidencing non-attendance by the Mother, together with correspondence addressed to the Father indicating:
We have been in contact with the Mother with respect to her participation in FDR. However, she has declined to participate further in the process. Therefore, we are unable to proceed further with family dispute resolution.
Consistent with research,[1]the Mother's non-attendance might be expected to signal self-selection, on her part, that FDR is inappropriate on the basis of allegations of violence or abuse. Certainly, her evidence makes clear that such allegations are raised.
[1] Joe Harman, ‘The Intersection of Family Violence and Family Dispute Resolution: Implications for Evidence Gathering and Mediation Confidentiality’ (2019) 33(1) Australian Journal of Family Law 1.
On the first return date, the Father appeared in person. He was strident and insistent that he desired to participate both in the proceedings and his child's life. The Father's material, as now filed, would suggest that such insistence is somewhat incongruous with his prior engagement in seeking to participate in the child's life.
The first attempt made by the Father to engage with X, in any fashion at all, following the separation of these parents, occurred in mid‑2019 with his approach to Family Relationship Centre A seeking to initiate FDR. That is when the child was nearly 12 years of age. As would be apparent from the material that is filed in these proceedings, the parties had separated on a final basis in approximately July 2009, at which point in time this child was very tiny. Accordingly, it is not a long stretch, as a subsequent child‑inclusive memo suggests, to accept that this child has no lived memory or experience of her Father.
In light of the Father's insistence as to his desire to participate, usual protocols as to the allocation of resources, particularly the Court's, were dispensed with. Ordinarily, such resources are not allocated until such time as a Response is filed. However, two significant steps were taken at that time. Firstly, an Order was made for the parties and young X to participate in a child-inclusive conference. Certainly, if the Father's material had been filed at that point in time, that conference may not have been ordered. However, it is of some real assistance to the Court, and I will come to it shortly.
Secondly, an Order was made for the appointment of an Independent Children's Lawyer.
When the matter next came before the Court on 26 March 2020, Orders were made as recited above. The Father appeared in person on that occasion and, again, insisted that he wished to participate, notwithstanding that he had taken no active step to do so to that point in time.
In the intervening period between the first return date and the second, today being the third appearance, the parties and X participated in a child-inclusive conference. Both were each assisted by an interpreter.
Issues in dispute
It is made clear that the Mother sought sole parental responsibility for X, that X live with her, and that X spend no time with her Father. The Mother also seeks Orders so that she can obtain a passport for X and travel with her to visit her extended family members in New Zealand. The difficulties with a party travelling overseas are myriad, but in the case of New Zealand, they are far less problematic as there are specific treaties in place, in addition to the Hague Convention,[2] that permit the enforcement of orders.
[2] Hague Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, Hague XXVII (entered into force 1 December 1983).
Mr Ganim is reported by the consultant as follows:
Mr Ganim said that he is agreeable to whatever time the Court thinks is appropriate.
What that indicates is that no specific proposal had been formulated. It continues:
He made no proposal regarding parental responsibility. Mr Ganim's views about X being issued a passport are unknown.
Risk factors
The family consultant reports that the Mother claims that the Father had been “rough” with her during the relationship, including forcing himself upon her sexually. These are allegations that are denied by the Father.
The Mother details further, specific behaviours with respect to the Father, claiming that he was controlling, interfered in her ability to see family members and, effectively, ostracised her from them. Further complaints are raised, although Mr Ganim, at paragraph 5, is reported as denying any violence and denying that the Mother is fearful of him although, of course, he would not be in a position to know the Mother's mind.
In relation to child safety and wellbeing, the following is reported:
Ms Sleiman maintained that Mr Ganim has hardline Islamist views and supports ISIS ideology. She said that in the community, he is known as an extremist. She raised concerns that the Father may force or influence X to convert to Islam which would limit her life choices. She is particularly concerned that he may attempt to take her overseas, marry her underage, and influence her to share his political and ideological views.
That is addressed later in the memo, wherein, at paragraphs 24 and 25, the Father is reported as follows:
Mr Ganim maintained that if X says she does not want to see him, this has been wholly influenced by Ms Sleiman.
When asked what he would do to assist X to re-establish a relationship with him, he stated:
He would not speak about what Ms Sleiman has done to their relationship but would, instead, tell her about how he had lived in B City and Melbourne, and had no money to pursue spending time with her through the Court.
When asked how he would manage any resistance on X's part, he stated:
I will approach her, talk to her slowly. Girls have more compassion towards their Fathers. Barriers will be removed easily and she may understand.
Mr Ganim denied that he intends to convert X to Islam, to take her overseas, or to attempt to marry her underage. He declared that he would not be able to have that type of influence on X because he is only seeking to spend small amounts of time with her, not to change her life.
Otherwise within Mr Ganim's material, he more specifically refers to the Mother's allegations regarding ISIS, if the allegations might be put in those broad terms. At paragraph 39, the Father states:
I was unaware that the Facebook photos were still in my Facebook account. In fact, all I did at the time was share other posts, and I was hopeful of a change back home for the people. I realise that the whole ISIS propaganda was a fake and they were terrorists. I ceased sharing such posts, and this is clear from my Facebook posts which have ceased, which is clear in the Applicant's evidence. I am afraid the Applicant will try to tarnish me and accuse me of falsities seeing that I am now trying to re‑establish contact with my daughter.
The Father, at paragraph 16, also addresses those issues:
It is reported he denied ever being involved in terrorism or supporting terrorism. He acknowledged that he had spoken about his political support for ISIS, and the Mother may have seen this on Facebook, but this was because many people in his country have done the same, assuming that ISIS may bring about a positive change in his country. He said that he ceased supporting ISIS as a political entity in 2015 after it became evident that they would not provide political stability and, instead, brought a lot of fighting to his country.
Those allegations are, perhaps, background noise to the real issue in this case. I accept and understand that they are significant, as they deal with and speak to the lack of trust and the concerns that the Mother raises. They may also have some connection, or give some explanation, for the significant issue that impacts upon the determination of this child's interests, including and strongly founded in the child's views with respect to that relationship.
The Mother is clear in her evidence that following the separation of these parents - remembering, again, that at that time, young X was one year of age - that there was no time or communication between X and her Father, nor any attempt by the Father directed to the mother to initiate that time or communication for a period of 10 years from mid-2009 until mid-2019.
The Father addresses this, if that term is used in its loosest sense, largely by reference to criticisms of the Applicant. That speaks to the Father having a lack of insight, or a lack of ownership, of his own actions - his voluntary abstention from the child's life.
At paragraph 5 of his affidavit, (and I accept and appreciate it is not an affidavit which would necessarily contain all evidence that the Father may seek to lead, it is the affidavit filed belatedly as required by Federal Circuit Court Rules (2001) Cth to identify the issues in dispute), the Father indicates:
I did not make contact with the Respondent for a long period, [that is 10 years] as the relationship ended and the Respondent was very controlling of me.
There is no detail given as to how that allegation is framed or upon what material is supported. It continues:
The Respondent was emotionally and financially controlling of me. I was new to this country, and all I wanted to do was to provide for my family. However, the Respondent would constantly cause problems and travel back to her parents in Town C.
References to the Respondent, of course, are references to the Mother. She is, in fact, the Applicant in the proceedings.
The Father indicates, (paragraph 6), that when the relationship ended, he “moved to B City in late 2009”. He heard from the Mother, but there is no suggestion that there was then, really, any time or communication with the child, although there is the suggestion of a brief 12-day reconciliation.
The Father then moved to Suburb D, then Melbourne, then Canberra, or E City, Newcastle, back to Canberra, then Country F.
The Father remarried in December 2017, whether in Country F or Australia, and then moved to an address at Suburb G. He now gives his address as Suburb H, in South-Western Sydney.
The Father provides no explanation in relation to attempts made by him to have a relationship or practise a relationship with this child, or any step that he took to seek to prosecute that relationship.
The closest one comes is paragraph 14, indicating:
After marrying my current partner, and about four months into the relationship - namely, on or about April 2018 - I asked my parents to speak to the Applicant's parents so that I could see my daughter. I was now stable and married.
That paragraph may well suggest that the Father was not stable previously. The Father suggests that this stability and his new marriage gave him confidence to resume his relationship with his daughter. That is, perhaps, a misstatement. There was no relationship to resume. It would have been commenced, as it were, from scratch.
That absence, as I have indicated, connects with and speaks to what is reported of and opined with respect to this child in the CIC memo.
The interview with the child is discussed at paragraphs 17 to 20. There are, then, further references till the conclusion of the memo under the heading “Issues for the Children or Child”.
At paragraph 18, X is reported as speaking positively of her Mother who meets her practical and emotional needs, and that whilst her Mother is religious, X is free to engage in any activity she wishes to.
There was then the important passage upon which some significant weight is placed by the Father, but which reliance, ultimately, could not be other than disingenuous. It reads:
She (X) said that she was able to speak to Ms Sleiman about anything that troubles her, and went on to state that she is asked about her biological origins from time to time, and her mother would say, "He's on holidays." That is a positive affirmation of the mother. She has not sought to defame the father or make derogatory comments of him. She is somewhat apologetic, simply explaining to the child, perhaps to avoid hurting the child's sensitivities, that her father is away.
The Father suggests that this indicates the child has a curiosity to pursue a relationship with him. The sentence itself does not support that proposition. It suggests the child has an interest in her biological origins, understanding, as she would have, that children have a mother and a father, (although there are certainly circumstances where children do not know their origins more specifically, whether they are born through IVF, adoption or otherwise). This child has sought to clarify these matters for herself, and has been assisted by her Mother.
The paragraph concludes, however, with a contraindicating statement:
She (X) said that from approximately year 4 [that is, a few years ago] she stopped asking, and that she has no curiosity about her father except what he looks like.
It continues:
X said she feels uncomfortable with Mr Ganim seeking to spend time with her. She said she is very happy with her life, how it is, and does not want to have any contact with her father. She said if she is made to have contact with him, "It would feel weird. He is just a stranger."
The child is clear that she would like the opportunity to travel overseas - sadly, not a possibility at this particular point in history, but one that will no doubt become available again. She is clear that her Mother has never mentioned living anywhere but Australia and the child has no concerns that her Mother would not bring her back.
In the discussion that follows, it is clear that the Mother commencing these proceedings was, as it were, to forestall the Father's attempts to initiate contact with X. She is clear, frank and candid that her Application was filed because the Father was attempting to contact X through a cousin, and had sought to initiate family dispute resolution.
The memo reports that both parents were clear that X would not likely have any memory of her Father.
X is doing well at school. She is in a leadership group. She is a happy, active child. The Mother expressed concerns as to how those things might be destabilised by these processes and this application. The Mother confirmed that X occasionally asked about her biological origins, that the child had - on advice that the Mother had received from a psychologist - been told that the Father was away; a sensitive approach towards the issue. The Mother indicated that X knows that her Father is now seeking to spend time with her, but she does not want to get to know him.
The Father's contrary position, suggesting that any such expression by the child must be influenced by the Mother, as recited above, is then made. What that ignores, of course, is the simple reality that this child has simply never seen her Father since the separation of her parents. That is through no fault of anyone but the Father, although I do not raise it to suggest that apportioning culpability assists anyone.
Future directions
Under this heading, the CIC memo raised statements of significance. X does not have an established relationship with Mr Ganim, and did not indicate that she has any interest in developing one. Given her age and stage of development, the Court can place significant weight on her stated wishes and views.
The family consultant otherwise offers certain opinions. I do not recite them at this point.
It is suggested that X could be introduced to her Father through a therapeutic process and, if progress was made in that therapy, that an Order might then be made for the parties to attend mediation, but it concludes:
There appeared to be little utility in ordering that X spend time with Mr Ganim unless Ms Sleiman supports it, and this is unlikely to occur without some form of therapeutic intervention which, in turn, is unlikely to occur until Mr Ganim's level of risk to X has been determined by the Court.
Parties' proposals
The Mother seeks Orders - which are supported by the Independent Children's Lawyer - that she have sole parental responsibility, that X live with her, and that X spend no time with her Father. Indeed, the Mother seeks that the Father be restrained from approaching or contacting the Mother or the child or engaging third parties to do so.
Orders are sought to permit the issue of a passport. The Father does not have a proposal before the Court. I am conscious that the High Court in U & U [2002] FLC 93-112 was clear that the starting point for the Court's process is to ascertain the positions of the parties.
The only Order sought by the Father on a final basis is:
That the Father be permitted to amend Final Orders sought pending the provision of the family report.
There is no family report, and the family consultant who prepared the memo was clear that one would have little, if any, utility to the Court. Indeed, I am satisfied it would be abusive of X. She has made herself clear in the child-inclusive memo. There is nothing further to be gained. The purpose of a family report is to assess the proposals of the parties, not to make findings of fact as to the evidence, but to offer comment and opinion as to various matters under section 60CC of the Family Law Act (supra) by specific reference to the parties' proposals. The Father has no proposal.
The Father indicates, through his legal representative, that he would desire a therapeutic process to occur, and that this may be a path forward towards developing a relationship. It might. It might not. But it is certainly something that this child has been tolerably clear she is not interested in and that, perhaps, is explicable.
If this were a case in which the child were younger, the period of time in which no relationship has been practised had been shorter or the Mother could be demonstrated as having actively interfered in the practice of the relationship, (although even that would be unlikely to assist), things might be different.
This is not a case in which the Father seeks to resume a relationship. He seeks to attempt to develop one. It is a relationship the child has spoken clearly about. She rejects it.
Legislative provisions
I am conscious that I must commence with section 60CA of the Family Law Act (supra) - the paramountcy principle, as it is often described, that a child's best interests are paramount in all that is done.
I am must have regard to the objects and principles in section 60B of the Family Law Act (supra). They create certain imperatives or mandates binding the Court - what the Court should endeavour to achieve in the proceedings - to ensure that children's interests.
Children’s interests are met by ensuring that children have the benefit of both parents having a meaningful involvement in their lives. But the provision does not stop at that point. It is involvement to the maximum extent consistent with the best interests of the child. Thus, the child's interests, as is appropriate, remain paramount at all times.
The Court must make Orders that protect children from harm through abuse, neglect or family violence. The Court must ensure that children receive adequate and proper parenting.
The objects all have some relevance in this case. The Father has no meaningful involvement - no involvement at all - with this child, and has had none since she was one year of age. That has come about through his own election.
It may be that the Father was dealing with personal difficulties, (whatever they may have been, as they are not articulated at all in the evidence). The only suggestion raised by the Mother, and not denied in its entirety by the Father, is that during at least a significant portion of that period - on the Father's evidence till 2015 - the Father was consumed with other issues connected with his interest in or support of extremist philosophies. I do not make any finding that it is so. It is merely a proposition the parties raise. It is plausible and made so by the Father's own evidence.
The Father offers no reason why he was simply absent the child's life. And when he has been asked through his counsel to advance a reason, the reason is entirely focused upon and connected with the Applicant - it is her fault that he had personal difficulties that meant that he stayed away. I simply cannot understand or accept that proposition.
The simple reality for this child is that from the age of one, she has not had a father in her life. That is through no fault of the Mother, but even if it were, it would largely be irrelevant this far down the line. The Father did nothing.
The child does not know the Father. She has had some curiosity as to who he is or what he looks like, but that is the highest it comes to at this point. She is very clear. And I accept, as the family consultant opines, that significant weight can and should be attached to her views that she does not have any interest in pursuing that relationship now.
Accordingly, the meaningful involvement, consistent with the child's own views, that would meet this child's best interests, is none. That does not end the issue, however, but it is spoken to and, I am satisfied, made compelling by the discussion, erudite as it is, of Forrest J in Gordon & Gordon [2015] FamCA 616, and I incorporate herein paragraphs 3 to 5:
3. Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice, namely the right to know what Court Orders are sought against you, the right to be heard in response, the age old principle that justice is administered in Courts open to the public and public scrutiny, and the right to know what Court Orders have been made against you.
4. Those rights stand alongside other important rights well known to this Court, particularly the rights of children to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the right of a child to receive adequate and proper parenting to help them achieve their full potential.
5. In the exercise by this Court of its jurisdiction to make parenting Orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sometimes the paramountcy of that consideration brings about tensions between all of the rights and the principles of natural justice that I have referred to, and, in exceptional circumstances, that paramountcy means that some rights must be determined to prevail over others.
If the child's best interests are to be genuinely paramount - and the child's best interests include, as the International Convention on the Rights of the Child[3] makes clear (incorporated as an additional object of the Family Law Act (supra) by section 60B(4)) - and to have real meaning, then the interests of this child must inform each of the factors to be addressed and each decision that the Court makes. I am satisfied that includes procedural decisions.
[3] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
In this case, I am asked by the Father to list the matter for trial. Even if that could be accommodated quickly - and it may be that space could be made in the diary for it to be so - the matter could not involve significant evidence with respect to an existing relationship, as there is none.
It would involve the life of this child being put on hold. It would involve a determination of the Mother's Application, which is particularised and clear, and the Father's broad and general position that he wants some and such involvement as the Court considers appropriate.
I am not satisfied that the child's best interests are served by that hearing. It would be a further burden upon this child and her family, including both of her parents.
If one considers the principles which creates rights for this child - although they are neither enlivened or practised when to do so would be contrary to the child's best interests - this child has a right to know and be cared for by both of her parents and spend time and communicate with both parents.
However, that is a right that has been denied this child, not by her Mother but by her Father. He is the one who took himself away and, for reasons that he has not attempted to explain, stayed away for all of this child's life to date. It is a very recent thing, again focused on the Father's needs and interests, his feeling that he is able to now prosecute an Application because he comes from a point of stability - suggesting or inferring that previously he was unstable - to prosecute a relationship. It is he who has not enlivened the child's rights previously, rather than the Mother denying them.
They are, however, rights which this child now has an entitlement and expectation to have a voice in. As the International Convention makes clear, and as I will address as part of my consideration of the section 60CC factors, the child has a right to participate, to the extent that they desire to do so, in decisions that affect them. This child does participate. She has had the benefit of meeting with a family consultant. She has an Independent Children's Lawyer representing her interests and who has met her and advocates on her behalf.
It is made clear by the child herself, and by the Independent Children's Lawyer advocating on her behalf, that she does not wish the matter to go anywhere other than a conclusion with the Orders her Mother seeks.
She does not desire to practise a relationship. She is no longer curious to meet her Father and she would feel let down and not listened to if Orders were made which sought to engage her in that process.
For those reasons, I am satisfied that the objects and principles support the relief which the Mother seeks but, more importantly, supports the conclusion of the matter today on what is, effectively, a summary determination of the proceedings.
I am conscious that relevant High Court and Full Court authorities[4] make clear that summary disposal of proceedings is an exception to be undertaken very rarely, and in circumstances where it is appropriate. I am satisfied that those circumstances are made out by the evidence in the case.
[4] See, for example Webster v Lampard[1993] HCA 57.
The most important factor, however – again, connecting with that discussed by Forrest J - is the child's best interests.
What is there to be gained for this child in listing the matter for trial and prosecuting a vague, amorphous position versus the Mother's clear position? There is no benefit at all to my mind. All that would do is signal to this child that her voice - the voice of a mature, nearly 13 year old girl who is stable and achieving well in life, including educationally - is not heard (as discussed for example, in Harrison & Woollard (1995) FLC 92-598 and Re R Children’s Wishes [2000] FamCA 43.
The Court must not only hear the child's voice but must demonstrate that the child’s voice has been heard. To simply proceed and to say, effectively to this child in the vernacular, "Thank you for telling me how you feel, but I don't care, I'm still pressing on," would be disrespectful of this child. She could not have been clearer, and I will deal with her views shortly.
I must have regard to section 61DA of the Family Law Act (supra), the presumption of equal shared parental responsibility. The presumption, I am satisfied, could not apply in this case. The basis upon which I proceed is, perhaps, more safely, under subsection (4), a rebuttal of the presumption.
It could not be in this child's best interests for the parents to have equal shared parental responsibility. Best interests include practicality. The Father has absented himself entirely from anything to do with the child, let alone decision-making, for nearly all of the child's life. The Mother and Father do not and cannot communicate. I need not proceed to make findings in accordance with the Mother's case and her allegations of violence.
The issue of practicality alone would suggest that there would be a negative impact upon this child of an order for equal shared parental responsibility. It would be destabilising for this child to expect her parents to have that involvement, and particularly when there are clear and significant issues in dispute between these parents as to how those decisions might be made, including but not limited to issues regarding religious upbringing.
Accordingly, I am satisfied that the presumption should not be in play. That being so, I am not obliged to consider equal or substantial and significant time although it can, of course, be considered - just its consideration is not mandated.
I propose to deal with all issues at large by turning to section 60CC of the Family Law Act (supra).
I must commence with the primary considerations, commencing with the benefit to the child of a meaningful relationship with both parents. It is clear that X has a meaningful relationship with her Mother. It is, in all probability, a relationship that is all the more meaningful because her Mother has been her only parent involved in her life on a day-to-day basis.
The emotional upset that this child might have otherwise experienced, but for the manner in which the Mother has addressed the issue, having obtained advice and assistance from a psychologist to guide her, and having been quite nuanced in her approach, of this child's abandonment by her Father is significant and I use that term advisedly. The Father offers no explanation for why he has not, for 10 years, taken any step to be part of this child's life. That could not be described as other than abandonment.
This child has a meaningful relationship with her Mother which she benefits from greatly, as she describes herself to the family consultant. She has no relationship with her Father, meaningful or otherwise, and is clear in her rejection of it.
The need to protect the child, I am satisfied, is significant as a factor to consider in any case. The Act makes clear that it is so - subsection (2A) prioritises it over all else. In this case, however, the evidence is not tested. There is real controversy as to many of the allegations of risk.
I do not move beyond them without further consideration to suggest that the Mother's experience is invalidated in any fashion. I do not suggest that I do not believe the Mother any more than I suggest I do not believe the Father. It is simply that the case can be decided without findings in relation to those matters, which findings might be potentially unsafe or lead to appellate controversy.
The case is determined sufficiently by observing the complete absence of benefit, from the child’s perspective, of seeking to prosecute a relationship between this child and her Father. That arises from the child's own statements, as I have already referred to above.
The child is very clear that she has no curiosity about her Father except, perhaps, what he looks like. She is uncomfortable about the concept of spending time with him. She is happy with her life as it is, and does not want to have contact with her Father. Having contact would make her “feel weird” she states.
All of those factors, from the mouth of a mature nearly 13 year old young woman, must suggest that it is unlikely that any benefit would flow to her from prosecuting the relationship or continuing these proceedings beyond today.
In effect, the matter remains undefended. The Father does not put any position in his Response. He simply seeks the Court's leave to amend his Response later. The Father did not indicate, in respect of most of the Orders sought by the Mother, any position that he holds, whether supporting or in opposition.
The benefit of a meaningful relationship between the child and the Mother would clearly, on the Mother's evidence - accepting it on its face as more probably correct than not, and having regard to the child's statements and the family consultant's comments - be impacted by continuation, at least potentially so.
The stresses and concerns that would arise for the child and the Mother are such that it might start to impact on their meaningful relationship - the child resentful of the Mother, angry with her, why she did not do more to listen to her or to have her listened to.
Accordingly, I am satisfied that the primary considerations, at least subsection (a), support the summary determination of this Application and its conclusion today with Orders as sought by the Mother and supported by the Independent Children's Lawyer.
Views
Turing to the additional considerations, and as I have already indicated, X could not have been clearer in her views by reference to Harrison & Woollard and Re R (Children's wishes).
I am conscious that significant weight should be attached to the view of children when it is clear that they are mature, have a level of understanding, and that their views are genuine. Whilst the Father casts doubt upon that proposition, I am satisfied that it is, perhaps, focused upon his own emotional protection. It is not at all insightful into the dynamics that may well have influenced this child's views.
Why it would be necessary for the Mother to influence the child against having a relationship with the Father when the Father has abandoned the relationship for all of this child's life is difficult to comprehend. Indeed, the evidence suggests that the Mother has not done so. Again, referring to the child's own report, her Mother has told her that her Father is on holidays, not that he is a bad man or that he has abandoned her and does not wish to see her. She has, to some extent, provided a neutral explanation after obtaining advice from a psychologist as to how to approach the issue to seek to shield and protect the child, to apologise for the Father, as it were.
The child's views must, I am satisfied in this case, verge upon - if not, in fact, be - dispositive of the issue. A mature nearly 13 year old child, and by the time this matter could be heard, she would most assuredly be 13, probably 14, should have their voice heard. The International Convention compels it. She is a mature and intelligent young girl who has a rational basis to have formed the view she has. She was curious, but at the time of her curiosity, her Father, for his own reasons, did not seek to prosecute a relationship and, perhaps, was not in a position to seek to prosecute a relationship with her.
Her curiosity has passed. Absence does not always make the heart grow fonder. This child does not dislike her Father. She simply does not know him. She must have, deep-seated within her, some question as to why her Father did not wish to see her. The Mother has addressed that, as indicated, in a nuanced fashion. He has been told that her Father is busy doing other things. The child may well wonder, at some point, why those things were more important than her. However, her views are clear. I am satisfied they must be given the weight I have indicated verging upon - if not, in fact - dispositive.
Those views also suggest that the matter can and should be determined summarily today. There is nothing to list for hearing as the Father does not seek specific Orders, although in fairness to him, in this circumstance, it would be difficult to formulate a plan, but one could be formulated rather than simply indicating some therapeutic process. One would think, fundamentally, such a process must lack therapeutic goals unless there is something at the end of it to be achieved - how a relationship might look and be practised. All of that is absent.
Accordingly, the stress for this family, this child, and this mother of putting the family through another year possibly longer, delay waiting for a hearing where the outcome is, realistically, determined by the child's rejection of the relationship - which, in the circumstances is explicable and genuine - is difficult to see.
I propose to take that course. It also supports the Orders the Mother seeks. It is the simple reality that has applied for this child, save and except the passport issue. The Mother has not been able to obtain a passport as she has not been able to contact or work with the Father to obtain his signature and support.
Consent may not have been forthcoming, but it could not be even attempted. The Mother has, through the Father's abandonment of his responsibilities and of the child's rights, let alone a relationship with her, vested the Mother with sole parental responsibility. He has not been contactable or present to provide his input or agreement. The child has lived with the Mother. The child has had no contact with her Father. Those things have - without intending to suggest that there may not have been benefit at an earlier point to a relationship being commenced - been of benefit to this child and met her best interests. She is doing very well in life.
The nature of the relationship of the child with each parent and other persons
This is already addressed above. The child has no relationship with her father. She has an excellent relationship with her mother.
The extent to which each parent has taken, or failed to take the opportunity to participated in decision-making, spend time or communicate with the child
In this case, unlike the vast majority, it is a factor of real significance. The Father has failed to participate. He has not offered any explanation as to why that is so. He has simply absented himself for his own reasons, possibly dealing with other issues, interests or concerns, possibly addressing his own demons. Whatever it is, however, is irrelevant to young X. She simply knows that her Father has been absent all her life, such that she now does not know him and does not wish to. It is a significant factor that supports the relief the Mother seeks, as supported by the Independent Children's Lawyer.
The extent to which each party has fulfilled or failed to fulfil their obligation to maintain the child
It is far from dispositive, but the Father's absence from the child's life and/or discharge of parental responsibility includes an absence of financial provision. It supports the Orders but, again, is not dispositive.
Likely effect of change
I am satisfied change would be somewhat problematic, if not disastrous, for this child. The child does not wish to have a relationship with her Father. Seeking to force it, even through a therapeutic process - although no proposal is formulated or advanced for that to be so, such as who the therapist would be, what therapeutic goals would be set or who would pay for it - and would not, I am satisfied, produce benefit for this child, nor would a continuation of these proceedings.
It would simply be a burden and an affirmation for this child that she was not listened to by her Mother, her Father or the Court. She is most assuredly listened to by the Court. Her voice is loud and clear, and must carry the day.
Practical difficulty and expense
I incorporate herein section 65DAA subsection (5) of the Family Law Act (supra).
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
e) such other matters as the court considers relevant.
The difficulties are manifest and abundant. The parties may not live any significant distance apart. The mother's address is not disclosed but nor need it be. The capacity for these parents to implement an arrangement for any time, let alone equal and substantial or significant time, is non-existent, as is their ability to communicate and resolve difficulties.
The impact on the child is the most important practical issue, however. The impact upon this child of proceeding further, when there is no proposal as to how things might resolve from the Father's perspective, is completely contrary to her best interests. It is negative and disadvantageous. It would cause, I am satisfied, instability. It would cause distress. It substantially supports the Orders sought by the Mother and supported by the Independent Children's Lawyer.
The capacity of the parents to meet the child's needs
There could be no suggestion that the Mother has anything other than an abundant ability to meet this child's needs.
She has done so, in the very complete sense of a single parent, since the child's birth. She has had no input or assistance or respite, for that matter, through the Father. She has done the job alone and the child is doing well. That must be proof positive of her capacity. The Father's capacity is entirely unknown and, on the Mother's case - although no finding is made - significantly questioned. It does not determine the issue, but it lends some little support to the Mother's case, as supported by the Independent Children's Lawyer.
Maturity, sex, lifestyle and background of the child
The child is part of the Country I Diaspora, as are her parents.
The child practices her culture through her Mother. The parties are somewhat disparate in their religious beliefs and, in all probability, aspects of their cultural practice. However, the child is doing well in all respects and is entirely happy and content, finding herself melded between those heritages and cultural practices of her Mother, and her enmeshment in the Australian community.
She is, most fundamentally, a mature young woman. She has spoken clearly, and that maturity must ring through loudly in supporting her views.
Aboriginality
This is clearly not an issue in light of the above.
The attitude of the parents
Whilst I cannot make any finding in this regard, suffice to observe, as already set out above, the Father has abandoned his relationship with the child until quite recently. He has no formulation as to how that relationship might now commence.
There is the real difficulty, even with a therapeutic process - even if it were particularised as to its goals and its practical arrangements - that it might well be significantly distressing for this child, not only because she is not listened to, but because she will need to confront the realities that have, to date, been kept from her by her Mother, (although she may well have started to ruminate upon them herself) - why is it that her Father was not interested for 10 years? What is it about her that caused him to not have that interest?
Children, even mature young women such as young X, may well find in their egocentric view of the world much distress in confronting those issues.
All of those matters, I am satisfied, again irresistibly support the relief that the Mother seeks and the conclusion of the proceedings at this point.
Family violence and family violence orders
It is common ground there has never been a family violence order. But the existence or non-existence of a family violence order proves nothing more than the existence or non-existence of a family violence order.
The Mother's allegations are significant but, as I have indicated, it is not to invalidate the Mother's assertions or the Father's denials. It is merely that the case can be decided, and overwhelmingly so, without further address of fact-finding in relation to those matters.
Whether it is preferable to avoid future proceedings
This factor rarely has real meaning. In this case, it has vast meaning. Avoiding future proceedings fundamentally speaks to X's best interests. That includes further proceedings such as a delayed final hearing of this case. The matter can be determined at this point.
There is nothing that can be spoken to or pointed to by the Father which indicates how there is positive benefit to the child of proceeding further, or how it would be of positive benefit to the child of seeking to introduce a relationship at this belated time. The apportionment of culpability for that delay is largely irrelevant, but it must be made clear that nothing on the evidence, including the Father's evidence, provides any basis to apportion culpability for the absence of practice of a relationship to anyone but the Father. Hence, the adoption of the term "abandonment of the relationship" throughout.
For those reasons, I am satisfied that Orders can and should be made concluding the matter today. I accept and appreciate it is a summary determination, but it would be inconsistent with the child's best interests to take any other course.
Costs
At the conclusion of these proceedings, an Application for Costs is made by the Independent Children's Lawyer in accordance with exhibit A.
Costs must, of course, be addressed by reference to section 117 of the Family Law Act (supra).
Subsection (1), sets out what is often described, including by the High Court in Penfold & Penfold [1980] HCA 4, as the “general rule” that each party shall bear his or her own costs. That, of course, does not preclude an order for costs being made either inter-parties or in favour of an Independent Children's Lawyer, (who is not, in any event, a party).
Subsection (3) makes clear that an Independent Children’s Lawyer has standing to seek costs.
Subsection (2) reserves to the Court a discretion to depart from the general rule if the court is satisfied of the dual tests (see Re JJT Ex Parte Victoria Legal Aid [1998] FLC 92-812) that it is both justified and just to do so.
Subsection (2A) sets out a prescriptive, but not exhaustive, list of considerations.
Subsection (4A) is irrelevant, dealing as it does with Applications by or involving Child Welfare Agencies.
Subsections (4) and (5) speak specifically to Applications involving Independent Children's Lawyers. Subsection (5) precludes the Court taking into account the funding models used to fund Legal Aid Commissions as a basis for costs being awarded. Subsection (4) is far more relevant. It precludes the Court making an Order in favour of an Independent Children's Lawyer if a party has received Legal Aid in respect of the proceedings. It is not suggested either has. However, the section also precludes the Court making an Order in favour of the Independent Children's Lawyer if the Court considers that a party would suffer financial hardship if they had to bear a portion of those costs.
The Father resists the Order. The Mother suggests her consent. I do not propose to make an Order against the Mother as I am satisfied the preclusion in subsection (4)(b) would apply. The Mother has the full‑time care of this young child. There is no evidence of the Mother's financial position. I do not assume that she is impoverished or wealthy. There is simply no evidence. However, she does have the care of young X, an adolescent, with all of the costs that go with that, and the need for housing, activities and entertainment.
The CIC memo makes it clear that there are several services engaged with, and all whilst receiving no financial assistance from the Father. In those circumstances, it could not be other than a hardship to the Mother if she was required to bear costs.
The Father's resistance is on a similar basis. It is suggested that his failure to engage legal representation earlier in the proceedings is as a consequence of his financial position. Again, there is no evidence as to the father's financial position.
I will address the Application, however, by reference to subsection (2A).
The financial circumstances of the Father.
They are simply not known.
Whether a party is in receipt of a grant of Legal Aid
The Father is not.
The conduct of the parties
The Father has delayed in these proceedings. At the point that the Independent Children's Lawyer was appointed, it was because the Father made very clear he wished to prosecute an Application, one that he then did not file as directed, and only filed at the last hour, but then defective as to any particularisation of relief sought.
An Order for costs is not made, however, on a punitive basis. Whilst the phrase "disciplinary costs order" is often used, there is no such creature under the Act. There is merely a determination that costs are appropriate in any given circumstance. Accordingly, I do not suggest that the Father would be judged or punished for that conduct. The Father's delays have, however, meant that the resource has been taken on. That, of itself, does not provide any significant support as to justice. It might suggest some modest support for justification.
Whether the proceedings were necessitated by the failure to comply with a previous order
Not relevant.
Where a party has been wholly unsuccessful
The Father has, although I am reluctant to use terms such as "successful" and "unsuccessful" in the context of a parenting case, been wholly unsuccessful. It is a case about determination of the child's best interests not, as most civil litigation involves, a determination of competing rights and interests of the parties. That is what makes family law litigation somewhat unique.
As the Father has not obtained an Order, and his position has been somewhat ill-advised, it could fall within that broad category. Whether that provides justification or makes an Order for costs just, I am not satisfied it would be so.
Whether offers have been made in writing
It has been made tolerably clear to the parties by the Independent Children's Lawyer that they support the Mother's position. Indeed, the Independent Children's Lawyer would not even need to make that clear to the parties. The memo speaks for itself, as young X speaks loudly and clearly.
That does not necessarily support an Order, however.
Such other matters as the court considers relevant
I am conscious of the perception of procedural justice of the parties and, most importantly, young X. The Father has, perhaps, been misguided in the prosecution of his position, and how he has sought to prosecute it without any specification or particularisation of a plan to move things forward. That is not a criticism of the Father's legal representatives at all, merely that the Father has not, perhaps, considered his position as he might when, having abandoned the relationship for a significant length of time, he then simply says, "I now want to be a part but I can't tell you how."
Leaving that aside, whilst that might provide some support with respect to costs but for the strictures of section 117, I am not satisfied that it would sufficiently support justice or justification in this case and, accordingly, I am satisfied that not only the parties, but the Independent Children's Lawyer, should bear their own costs.
It should be made clear that but for subsection (5), irresistibly a costs Order would be made. Public funds have been expended in representing this child's interests which, if they could be recouped, should be. However, the Court cannot proceed on that basis. Parliament has made it clear.
Finally, I am conscious that the best interests of any child are a fundamentally important consideration for the community, and there is significant public interest and, thus, the expenditure of public funds in determining those interests is appropriate in any event.
Accordingly, I make the following Orders.
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 4 December 2020
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