Snipper & James (No 2)
[2023] FedCFamC1F 1043
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Snipper & James (No 2) [2023] FedCFamC1F 1043
File number: SYC 431 of 2022 Judgment of: BRASCH J Date of judgment: 6 December 2023 Catchwords: FAMILY LAW – CHILD SUPPORT – Where no evidence Child Support Registrar served.
FAMILY LAW – PARENTING – Where father sought parenting orders – Where mother relies on Rice & Asplund (1979) FLC 90-725 – Where parties litigating for 10 years – Where no material change in circumstances – Where child’s best interests better served by therapeutic process already in place than further litigation – Application dismissed.
FAMILY LAW – COSTS – Where mother sought costs thrown away from earlier hearing – Where father’s orders struck out as incompetent – Costs made in a fixed sum.
Legislation: Child Support (Assessment)Act1989 s 145
Family Law Act 1975 (Cth) Pt VII ss 45A, 60B, 60CA, 60CC, 64B, 65AA, 65D, 69ZN, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13
Cases cited: Child Support Registrar & Nixon (2007) 36 Fam LR 571; [2007] FamCA 32
D & D (Costs) No 2 (2010) FLC 93-435; [2010] FamCAFC 64
Glenville v Glenville (No 2) [2008] FamCA 755
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386
Kohan & Kohan (1993) FLC 92-340
Langmeil & Grange [2013] FamCAFC 31
Lesley & Lesley [2015] FamCA 894
Limousin & Limousin(Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
McEnerney & McEnerney (1980) FLC 90-866
Rice & Asplund (1979) FLC 90-725
Snipper & James& Anor [2018] FamCA 7
Snipper & James [2022] FedCFamC1F 266
SPS and PLS (2008) FLC 93–363; [2008] FamCAFC 16
Trewitt & Brock [2021] FedCFamC1A 9
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Yunghanns & Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Zawadzki v Zawadzki (No.2) (2020) FamCAFC 131
Division: Division 1 First Instance Number of paragraphs: 133 Date of hearing: 4 December 2023 Place: Sydney Counsel for the Applicant: Mr Eardley (direct brief) Counsel for the Respondent: Mr Lethbridge SC with Ms Bromberger Solicitor for the Respondent: Harris Freidman Lawyers ORDERS
SYC 431 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JAMES
Applicant
AND: MS SNIPPER
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.The father’s application for parenting orders set out in the Minute of Order filed 24 November 2023 is dismissed.
2.Any consideration of the parties’ competing child support applications will not occur until and unless the father files and serves evidence that he has complied with r 1.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) with respect to his Minute of Order filed 24 November 2023.
3.When the father receives notification from the Registrar as to whether they will intervene or not, he is to immediately file and serve same with this Court.
4.A Registrar of this Court is requested to provide a copy of these orders and the first three pages of my Reasons to the Child Support Registrar or their delegate.
5.The Child Support Registrar is requested to provide a copy of the notification referred to in Order 3 to the Court via (…@...).
6.Within 60 days of the date of these orders the father is to pay the mother’s costs fixed in the sum of $7,822.53 for her costs thrown away arising out the 9 November 2023 hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION
This is an application by the father for child support and parenting orders.
The parties commenced litigating in April 2012 and entered into final parenting consent orders in April 2013. They then litigated final orders in January 2018 (“the 2018 Orders”) concerning, inter alia, child support and parenting. The matter came back to court by the mother’s Initiating Application filed 25 January 2022 with respect to child support issues.
The parties have three children but only the youngest remains under 18 years. R (“the child”) was born in 2010 and will turn 14 years next year. R was two when his parents embarked on what has become a long journey of litigation.
For convoluted reasons that ultimately do not matter for the dispute before me, the parties had various moving documents before the Court in 2022 and 2023.
The matter was first before me on 9 November 2023. I struck out some of the child support orders sought by the father in his Minute of Order filed on 23 May 2023. The father sought the indulgence of adjourning the matter so he could reframe his orders. Senior Counsel for the mother quite properly conceded that the father could file a new application or Minute of Order, but sought her costs thrown away.
At that 9 November hearing, I made the following orders with the agreement of the parties:
2.In the event the husband is to replead his application for relief in relation to Child Support and/or parenting and/or property, he is to file and serve such application or minute of order by no later than 4pm on 24 November 2023.
3.The matter be listed at 12pm on 4 December 2023 for interim hearing in the event the husband files an amended application or minute of order.
...
AND THE COURT NOTES THAT:
A. The wife’s further amended Initiating Application dated 3 November 2023 pleads section 45A of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that the husband’s applications be dismissed and any parenting matters do not meet the Rice & Asplund threshold.
The parties agreed to have the Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) issue determined as a preliminary matter which was appropriate in the circumstances of this case (SPS and PLS (2008) FLC 93–363 at [40]).
The father filed a Minute of Order on 24 November 2023. The mother’s position remained as set out in the Notation extracted above.
The competing child support orders
At the hearing on 4 December 2023, it was agreed with Counsel that I would give separate reasons for the Rice & Asplund issue and the mother’s s 45A summary dismissal application with respect to child support.
However, in working through the father’s material, it seems he has not filed any evidence to establish the Child Support Registrar has been served with the new child support orders he seeks.
Accordingly, I will not be able to proceed with the mother’s application to summarily dismiss the father’s application to discharge the Child Support Departure Order made in the 2018 Final orders until the father complies with r 1.13(4)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
It provides:
(1) This rule applies to the following:
(a) applications or appeals under the Assessment Act or Registration Act (other than an application for leave to appeal from an order of a court exercising jurisdiction under the Assessment Act or Registration Act);
…
…
(4) Each of the following persons is to be served with an application or appeal to which this rule applies:
…
(c) the Child Support Registrar;
…
The requirement to serve the Registrar derives from the right of the Registrar to intervene in proceedings before the Court; see s 145 of the Child Support (Assessment)Act1989.
As McClelland J (as his Honour then was) said in Lesley & Lesley [2015] FamCA 894 at [59] in relation to the predecessor of r. 1.13:
59.Failure to serve the Registrar in accordance with the Rules is fatal to the Court dealing with the application at this time. Requiring service to be effected is not simply insisting on ritualistic compliance with the Rules for the sake of mere compliance. Non-service on a person or entity that has a statutory right of intervention is a fundamental denial of natural justice that, in the absence of urgency, prevents the Court from dealing with that aspect of the application.
There is no urgency in the father’s application.
McClelland J then referred to the Child Support Registrar & Nixon (2007) 36 Fam LR 571 at [47]–[48], where the Full Court said:
47....given the emphasis placed by the High Court in both Taylor and Allesch v Maunz on the right of a party to be heard when an order is to be made affecting that party, we accept that where a party has not been given notice of the proceedings in which the order was made, and thus not been heard on the making of the order, that that is a matter which should be given very significant weight in the exercise of the discretion to set aside the order. As his Honour did not refer to the fact that the order had been made withoutnotice to the Registrar, it has to be assumed that he gave this fact no weight, and thus his discretion must be regarded as having miscarried on account of his failure to have regard to this important matter.
48.We add that we do not accept, as we understood to be submitted by the respondents, that a distinction should be drawn between a party to the proceedings as opposed to a third party...
Whilst the mother’s Senior Counsel alluded to problems with this in the 9 November 2023 hearing, I did not raise the lack of service squarely with the father’s counsel on Monday just gone.
I consider it would be procedurally unfair to dismiss the father’s application to discharge the child support departure order for failing to serve it, without having heard from the father’s counsel.
However, I will not advance consideration of the matter, specifically the mother’s s 45A summary dismissal application, until I am satisfied the father has served the Child Support Registrar and I am advised whether the Registrar wishes to intervene, or not. I will make orders to provide for this.
Background
The mother was born in 1969 and the father was born in 1971.
The parties commenced cohabitation in 1990 and were married in1994.
The parties have three children:
(a)G born 2002;
(b)B born 2004; and
(c)R born 2010.
I have no jurisdiction over G and B given their ages.
The parties separated in late November 2011 and were divorced in 2013.
The mother filed an Initiating Application on 3 April 2012 seeking property orders. The father filed a Response on 4 June 2012. On 15 January 2013 the father filed an Amended Response seeking parenting orders.
Final parenting orders were made largely by consent on 3 April 2013. In summary, those orders provided that the children spend time with the father each alternate Thursday after school to Monday morning, for half school holidays, and, for the parents to equally share parental responsibilities. An additional order was made not by consent for time each alternate Wednesday from after school until 7.00 pm.
Doing the best I can on the limited material before me, and drawing on the Reasons of Justice Watts from 12 January 2018, the parties found themselves back in court.
In November 2015 Orders were made for Dr Y to produce a Family Report. In late July 2016 Dr Y interviewed the children and parents. In early December 2016, Dr Y’s report was only released to the ICL.
In early February 2017 the report was released to the parties and the children’s time with the father was suspended. It seems the matter came on again on 17 February 2017. Orders were made for the children to spend time with the father on alternate Sunday mornings to Monday mornings, in the presence of the father’s partner, Ms T. Some communication orders were also made.
The matter came before Justice Watts for final hearing. On 12 January 2018, his Honour delivered reasons and orders. Those reasons reveal that the father conceded sole parental responsibility to the mother and that the children live with her. Orders were made for the children to spend time with the father on alternate Sunday mornings to Monday mornings during term and holiday time. Other orders were made including communication orders, time on special occasions and specific issues orders. His Honour also made property orders and a child support departure order. The father seeks a discharge of that order and the mother a s 45A summary dismissal of the father’s orders. I have made proof of service orders about that.
The father appealed the 2018 orders. He abandoned his appeal against the child support orders and the appeal was otherwise dismissed.
Some of Justice Watts’ 2018 findings include:
THE PARENTS’ INABILITY TO ACT COLLABORATIVELY TOGETHER
...
151.I am unable to conclude that the wife has deliberately amplified parental conflict or has contributed in any significant way to the negative attitudes that the children hold towards their father. The single expert and the children’s therapists all reject the notion that there has been parental alienation by the wife and all are of the view that what the children are reporting is part of the children’s lived experience.
152.The parents currently lack the capacity to work collaboratively and cooperatively together. The evidence is replete with examples, including the torturous history of organising [G’s] Bar Mitzvah; the demands upon the wife to give up time she would have ordinarily spent with [G] if the husband was to agree for [G] to go to [extracurricular] camp; discussions about [B’s] Bat Mitzvah; and attempts to have the children sit entrance exams for high school.
153.The sorry history of conflict in relation to major decision making was finally acknowledged at the end of the evidence and at the start of the husband’s submissions when he conceded sole parental responsibility to the wife.
At the hearing before me on 4 December 2023, it was properly conceded by the father’s counsel that the parties still lack capacity to work collaboratively and cooperatively. The father’s affidavit material before me included complaints of a similar vein to that which was before Justice Watts – for example, complaints about B’s Bat Mitzvah and R’s Bar Mitzvah. In addition, the father’s affidavit includes a litany of criticisms about the mother grouped under various headings. The dot points under each are my observations:
Substantial and ongoing breaches of parenting orders by [Ms Snipper]
•the father deposed many times that “Contravention action will be taken.
Significant breach of order 15.3 with respect to [G]
•[G] is over 18.
Medical procedures – no notification – orders breached
•again he deposed “Contravention action will be taken”.
Engagement of therapists for [B]
•[B] is over 18.
Denigration of the children – public material
•he did not like a post by the mother made in relation to her work which the father described as “trying to bring humour but only at the expense of our children”.
Lack of presence by [Ms Snipper] caring for the children
•this was really about the mother going to work and making care arrangements for [R] at almost 14, whereas the father could personally care for him.
[R’s] attendance at [an event] in Melbourne – example of unreasonably limited time
•[R] could not attend the entire […] event in Melbourne.
Continual lack of response – change of dates
•the father complains he has to follow up the mother when he wants to change dates for time.
The father also deposed in many paragraphs that “contravention action will be taken.”
The father’s affidavit makes it plain that the “sorry history of conflict” which was evident before Justice Watts has continued and remains alive now.
Material
The father relied upon:
·Minute of Order filed 24 November 2023;
·Initiating Application filed 16 February 2023 (but that had been superseded by the above Minute);
·Affidavit of Mr James filed 28 September 2023 (but paragraphs 8-215 were not read in the parenting dispute);
·Snipper & James& Anor [2018] FamCA 7 (Watts J); and
·Snipper & James [2022] FedCFamC1F 266 (Harper J) (relating to child support and not the Rice & Asplund dispute).
Save for her further amended Initiating Application dated 3 November 2023 (the s 45A summary dismissal and a Rice & Asplund dismissal), the mother did not rely on any affidavit material. It was said I ought take the father’s material at its highest.
Each party filed a Case Outline and made oral submissions.
I am not required to address every submission made or refer to every piece of evidence or argument presented during the trial (see Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, per Mahoney JA). In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], per Gleeson CJ, McHugh and Gummow JJ said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
Legal Principles
Orders with respect to children are made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it deems proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act sets out the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The mother says the father’s parenting orders should be dismissed and relies on Rice & Asplund. In an often cited extract in Rice & Asplund, Evatt CJ said:
The principles which in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some new factor which was not disclosed at the previous hearing which would have been material.
(Emphasis added)
Not long after that Nygh J said this in McEnerney & McEnerney (1980) FLC 90-866 at 75,499:
....the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
One comes back to the fundamental principle that the interest of the child are paramount and that consideration alone should lead a court to discourage a parent from coming back before the court too soon after the court has had an opportunity to consider fully the situation of the child and there is really no startling new circumstances that can be brought before the court.
(Emphasis added)
Similarly, in Langmeil & Grange [2013] FamCAFC 31, it was said that the rule in Rice & Asplund is founded on the notion that continuous litigation over children is generally not in their best interest. That consideration arises squarely in this matter.
In Trewitt & Brock [2021] FedCFamC1A 9 (“Trewitt”), the Appeal Division considered whether a dismissal of a parenting application was a parenting order with the meaning of s 64B(1) of the Act. That section provides:
(1) A parenting order is:
(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
However, a declaration or order under Subdivision E of Division 12 is not a parenting order.
Plainly, the father asks me to make parenting orders. But does the mother? The Appeal Division in Trewitt said at [25]-[26]:
25.It is important to note that s 64B of the Act refers in terms to the making of an order and not to the nature of the application that led to the order itself. Attention must be given to the nature of the order itself and not the application that led to the order being made.
26.Here the father sought to vary the existing orders so that there was to be equal shared parental responsibility and the imposition of an equal time arrangement. If those orders were made they would unquestionably be parenting orders as defined by s 64B of the Act. They were not the orders made and the application was simply dismissed. Such an order of dismissal, however, does not discharge, vary, suspend or revive an order made under s 64B(2) of the Act. Therefore there is some difficulty in describing the order of dismissal as a parenting order.
Relevantly, the Trewitt court said at [29]-[31]:
29.The weight of authority and the terms of s 64B of the Act itself point to the order dismissing the father’s application made by her Honour as not being a parenting order within that section. That being so, the court is not obliged to have regard to the mandatory terms of s 60CC of the Act.
30.Nonetheless, as the authorities make clear, the determination of whether there should be a reconsideration of existing parenting orders, is one that must be made in the best interests of the child. Often that determination will focus on the nature of the change in circumstances, if any, and the detriment to the child of further litigation. Considerations raised by s 60CC of the Act may also, obviously, be relevant.
31.The nature of the proceeding was aptly described by Warnick J in SPS and PLS (2008) FLC 93-363 (“SPS ”) (which explanation was approved in Marsden & Winch (2009) 42 Fam LR 1 (“Marsden”) at [41]–[47]; Langmeil & Grange [2013] FamCAFC 31 at [46] and Poisat at [40]) as follows:
81.... [W]hen the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
(Emphasis added)
Rice v Asplund reflects the principal that there be an end to litigation. The doctrines of res judicata and issue estoppel do not apply to parenting matters (Zawadzki v Zawadzki (No.2) (2020) FamCAFC 131 at [27]), so the need to protect children from repeated exposure to court proceedings is at the core of Rice v Asplund.
Unsurprisingly, s 69ZN(3) of the Act articulates the need to consider the impact on the child that proceedings may have:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
That is not a provision which is only relevant to Rice & Asplund applications but highlights that the legislature tasks the court to turn its mind to the impact that proceedings may have on a child.
What does the father seek?
On an interim basis the father sought the following parenting orders:
2. That an Independent Children’s Lawyer is appointed with respect to [R].
3. A Family Report is ordered to be produced by a Court-appointed family consultant with respect to the future care arrangements for [R].
The father sought the following parenting orders on a final basis:
2. That Order 6.1 of the Parenting Orders dated 12 January 2018 to be amended as follows:
“Each alternate extended weekend from after school on Thursday to Monday morning before school (9am) or 6pm Monday on long weekends and for one afternoon and evening up to 8.30pm each week. In addition, that during the school holidays [R] lives with the Father for the first half of all school holiday periods in odd numbered years and the second half of all school holiday periods commencing in even numbered years.”
3. That Order 6.7 is amended as follows:
“In the event that the children are not available to spend time with either parent during their Ordered periods of time, due to a prior engagement, then the relevant party shall notify the other party as soon as practicable but not less than 14 days prior to the date and provide to the other party three dates when time can occur and a notification of a response is then required within seven (7) days of having received such notice which of the nominated alternative dates they accept.
The proposed interim orders for a Family Report and to vary two of the final parenting orders made by Justice Watts in 2018 need to be understood by reference to what is currently place. That assists in assessing the change proposed as against the prospect of detriment to the child of further litigation.
The Family Report would obviously gauge the child’s views, especially given R’s age. Of course, the Family Report would consider a range of other matters but the child’s views would be one and likely, given his age, an important consideration.
However, the 2018 Orders 6.6 and 6.8 provide:
6.6 Upon each of the children attaining the age of fourteen (14) years communication between the husband and that child may occur outside the times referred to in Orders 6.2 and 6.3 but initiated by the child.
6.8 Upon each of the children attaining the age of fourteen (14) years that child may with the assistance of their counsellor, and thereafter in consultation with the therapist, inform the husband, should the child so wish, of what additional time they may wish to spend with the husband up to the following:
6.8.1from completion of school Friday to 9am Monday morning in each alternate weekend.
6.8.2for one afternoon/evening per week.
Thus, next year, R and the father will be able to communicate at will.
More so, Order 6.8 provides a mechanism for the child’s wishes to be ascertained and conveyed to the father in a therapeutic process. That is precisely one of the things a Family Report would do if the parties were permitted to engage in yet another round of litigation.
Critically, if R wishes, he will be able to spend three nights a fortnight with the father (Friday to Monday) and one afternoon or evening per week.
What the father asked in his Minute of Order before me, was that the child spend four nights a fortnight with him (Thursday to Monday) and for one afternoon/evening each week.
In other words, the father seeks to litigate again over what might ultimately be one extra night a fortnight during term time.
The father’s Minute before me also sought orders for half of school holidays. However, the current 2018 orders maintain the alternate full day Sunday, overnight Sunday to Monday morning during school holidays. Depending on how the Sundays to Mondays fall, the child may end up with two Sunday to Mondays in each of the shorter school holidays, and perhaps three or four Sunday to Monday times in the longer end-of-Term 4 holidays.
However, if R spends more time with the father per Order 6.8 of the 2018 Order, then that would flow to holidays at Order 6.1 too. That means the child would be spending more time with the father in holidays – possibly up to two blocks of three nights in the short school holidays. Whether it is the current overnight alternate Sundays, or the increase per Order 6.8, either outcome again raises the question whether I ought allow the parties to re-litigate over parenting issues when provision is made for the child to spend holiday time with the father, just not as much as the father would now like.
As for the variation proposed to Order 6.7, the order currently requires the mother to let the father know if the child cannot attend time with the father due to a prior commitment and for the mother to propose make up time for the child and father. That is of benefit to the father.
The father now proposes that be mutual as between the parents, but the mother does not embrace what may have been a benefit to her. That is a matter for her. I will not further consider something which might have been of benefit to her, which she does not want.
Submissions
The parts of the father’s affidavit read in the Rice & Asplund hearing give little illumination on the material change of circumstance. I have already given an overview of the affidavit in the Background section above.
In submissions, his counsel said:
(a)R was young when Dr Y interviewed him;
(b)The older children are now adults and G and R do not have a good relationship;
(c)As a consequence, R needs a male role model in his life;
(d)R’s relationship with Ms T (the father’s partner) was new at the time of Dr Y’s report, but is now established;
(e)The intractable disputes between the adults had not improved – this was conceded to be no change since the matter was before Watts J;
(f)The “high point” was time has passed since Dr Y gave his report;
(g)The father wants to go back and re-visit the orders;
(h)In reply, the father said the mother had not put on any evidence with respect to Order 6.8;
(i)In reply, it was accepted further litigation may be of detriment to the child but I had no evidence that it will be. Therefore, it was submitted that detriment is not a reason that is determinative of the outcome.
I turn to those submissions. The father’s counsel appropriately conceded that if getting older was a material change of circumstance, then parenting matters would only finish when a child turned 18 years.
Matters of age, or an established adult relationship are just the exigencies of life. They are not material changes (Glenville v Glenville (No 2) [2008] FamCA 755 at [8]).
Whether G and R have a good sibling relationship or not, is also just part of life. That flowed into the male role model submission, which fails to persuade me for two reasons. First Gronow v Gronow (1979) 144 CLR 513 at 526 reminds there is no requirement or suggestion in the Act that male children should be with fathers and girls with mothers. Second, R does have a male role model in his life – the father.
Plainly time has passed since Dr Y gave his report. That misses the point. The question for me is whether there has been a material change of circumstance since the orders of January 2018. If the passage of time since an expert report was given was a material change of circumstance, then parenting matters with an expert report would be liable to re-litigate just on the effluxion of time. That is not a material change of circumstances.
I appreciate the father wants to re-visit the orders; that is not the test.
The submission in reply about no evidence from the mother in support of Order 6.8 of the 2018 Order is not something that assists me with a material change in circumstance. Order 6.8 is in place, which is to be read with Order 9 of 2018. If the mother breaches that, the father has other options available to him, of which he is well alert when deposing to “Contravention action will be taken”.
I accept the issue of detriment is not determinative. It is part of the balancing act I must undertake, as the authorities previously cited make clear.
The mother submitted:
(a)The terms of the orders now sought are not too far from what is in place;
(b)The 2018 orders have a mechanism in place at Order 6.8 to take in R’s view when 14, that is, next year and Order 6.6 also applies;
(c)The mechanism in Order 6.8 is a safe one, which does not involve the taxing process of being before court again;
(d)The changes identified by the father are not significant and need to be balanced against the detriment to the child of re-litigating;
(e)The 2018 reasons took the children’s views and experiences of the father into account; I was taken to [187]-[189] of the reasons;
(f)Watts J accepted Dr Y’s opinion that there be a mechanism in place when each child turns 14 for there to be “some allowance for the children to initiate additional time in consultation with their therapist up to a set maximum” at [226];
(g)If the father was right at paragraph 221 of his affidavit that R wants to spend more time with the father, then a mechanism is already in place for that to occur;
(h)Similarly, where the father deposed at paragraph 238 to securing a Family Report, the 2018 orders provide a non-court, safe way to ascertain R’s wishes;
(i)R has a male role model – the father; and
(j)The mechanism provided in the 2018 orders to secure R’s wishes and increase time if so, is a “much safer” process than the parties re-litigating.
There is much force in these submissions, particularly with respect to (a) the modest change sought by the father in his Minute and contrasting this with the prospect of detriment to the child of re-litigation, and (b) that also there is already a therapeutic mechanism in place for R’s wishes to be obtained. I have already considered the male role model issue above.
The orders sought by the father are clearly parenting orders. The order sought by the mother dismissing the father’s application is not a parenting order within s 64B. That being so, I am not obliged to have regard to the mandatory terms of s 60CC of the Act. Nevertheless, the determination of whether there should be a reconsideration of existing parenting orders, is one that must be made in the best interests of the child. As such, consideration of the relevant s 60CC factors may be relevant and I turn to them now.
Section 60CC(2)(a) a meaningful relationship
R is having a relationship with both parents and one that an earlier judge determined to be in his best interests. The issue for me is whether there has been a material change of circumstance to warrant exposing R to more litigation.
The father submitted his relationship with R has grown, but that has occurred under the current orders.
The 2018 orders provided a mechanism for a therapeutically guided processes for the child to express his views about increasing time with his father, or not.
So, on one hand, I could expose the child to more litigation with all the acrimony the father’s affidavit portends for a future court case, or, keep a process in place that allows R to express his views in a therapeutic environment, away from court, which may lead to more son-father time.
On the father’s evidence, the child’s relationship with him is meaningful.
Section 60CC(2)(b) Protection from harm
Despite the father’s criticism of the mother in his affidavit, on the father’s Minute, he cannot be saying R is exposed to harm or an unacceptable risk of harm with the mother. That is, the father does not propose a change to R living with the mother.
Similarly, the nett effect of the mother’s position is to hold the 2018 orders. That provides for time with the father and the possibility of an increase pending R’s views. That too means the mother cannot be saying R is at risk of harm or unacceptable risk of harm in the father’s care.
Section 60CC(2A) balancing the primary considerations
On the father’s case, R has a meaningful relationship with him. No one proposes curtailing the other’s time due to harm factors. The balance favours s 60CC(2)(a).
Section 60CC(3)(a) 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;
The father deposes that the child tells him (the father) that he (the child) wants to spend more time with him (the father).
That may be so. The 2018 orders have a mechanism in place for R to express his views within the security of a therapeutic environment.
Conversely, the father asks for a Family Report, which means R can express his views but within a litigious environment.
Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
For present purposes, I accept the father’s evidence that he and R have developed a positive, meaningful relationship.
That has developed under the stewardship of the 2018 orders.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
In 2018, the father conceded the mother have sole parental responsibility for the child.
He does not seek orders to subvert that.
Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The father is not currently paying child support and seeks a discharge of the child support departure order made by Justice Watts in 2018.
I have made orders to progress the child support dispute.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; and
Section 60CC(3)(e) 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;
The 2018 orders provide for a therapeutic, non-litigious way to ascertain R’s views and dependent on those views, increase his time with the father.
The father however proposes to re-embark upon litigation, which first began in 2013. If R says he wants to spend more time with the father pursuant to Order 6.8 of the 2018 order, then the litigation would be over one night a fortnight (that is Order 6.8 of the 2018 order, being three nights a fortnight and an afternoon/evening each week -v- the father’s Minute, being four nights a fortnight and an afternoon/evening each week).
Similarly, the father now presses for half holidays, whereas the mechanism in the 2018 orders could see the child spending time with the father three nights a fortnight during holidays and depending where those weekend nights fall, could equate to six nights in a two week school holiday block.
In other words, the father seeks little change, but by a litigious route which would again see R front and centre of litigation conflict. He was two when the parties first embarked upon litigation. He is almost 14 now.
Nothing arises under s 60CC(3)(e).
Section 60CC(3)(f) the capacity of: (i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs; (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;
This concerns the capacity of R’s parents to provide for the needs of the child, including emotional and intellectual needs.
As he did at the 2018 trial, the father impugns the mother’s parenting, decision-making, and whether she has been inclusive or exclusive of him. Nothing has changed in this regard.
However, under the father’s Minute, the child will remain living with the mother and she exercise sole parental responsibility. By dint of that, the father says, by implication, that the mother is a good enough parent.
Likewise, the mother seeks to retain the 2018 orders which might see the child spending three nights a fortnight with the father and an afternoon/evening each week. She too is saying he is a capable parent.
Sections 60CC(3)(g) 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; and
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) 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 (ii) the likely impact any proposed parenting order under this Part will have on that right;
These subsections do not arise. No submissions were made that they do.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
Justice Watts was concerned about the father’s fervent criticisms of the mother in 2018. The father’s criticisms have persisted in material before me.
Nevertheless, what I said under capacity to parent is equally relevant to this consideration. By the orders each seek, each parent is saying the other is responsible enough.
Section 60CC(3)(j) any family violence involving the child or a member of the child's family; and
Section 60CC(3) (k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
These factors do not arise on the father’s material.
Section 60CC(3)(l) 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;
By this subsection, I must consider orders that are least likely to lead to further litigation.
Further litigation is precisely what the father wishes to re-embark upon.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
The current 2018 orders provide for a therapeutic process for R’s views to be taken into account and the possibility of R spending increased time with the father. The increase contemplated by those 2018 orders is not as much as the father wants, but this is not about what the father wants.
Disposition
Accepting the father’s evidence at its highest (and conceded by his counsel), the parties remain in intractable dispute. It is hard to see how another round of litigation would be the panacea for that.
Again, accepting the father’s material at its highest and on the face of Watts J’s Reasons (which the father read in his case), the level of animosity between the parties makes it a likely prediction that any future litigation will place R front and centre of further contentious litigation.
That is in circumstances where the father’s Minute seeks only one additional night a fortnight (if he is right on R’s wishes and Order 6.8 applies) and a couple of extra nights in holidays (again if he is right on R’s wishes and holiday time increases as would be the flow on to Order 6.1).
In short, the gain for the father in litigating for time is minimal. That is cast against the detriment to R of not being able to enjoy the rest of his teen years without again being the subject and object of his parents’ litigation.
That is against a backdrop where the father has failed to persuade me that there has been a material change of circumstance that would warrant allowing the father’s application to proceed. Being older, having adult siblings, the father’s relationship being established now, are just parts of life. That Dr Y’s report is old is just a function of the litigation in which the parties have engaged. I have already rejected the male role model submissions because the father is precisely that. I accept detriment is not determinative but part of the balance I must undertake.
R’s best interests will be better served by the therapeutic process that Watts J set out in Order 6.8. That will flow onto holidays in Order 6.1 and communication will be at large per Order 6.6.
The father’s application for parenting orders will be dismissed.
Costs
The mother sought her costs thrown away arising out of the 9 November 2023 hearing. That was the day the matter came on for hearing, but I struck out various child support orders sought by the father as being incompetent. Counsel for the father then and on Monday candidly (and appropriately) accepted there was no power to support the kinds of child support orders sought by the father.
The mother’s Senior Counsel indicated on 9 November 2023 that they would circulate a schedule of costs prior to the adjourned hearing date so I could hear submissions on the issue.
That occurred. The schedule included all costs, but several specific items were identified as relevant to costs thrown away.
In proceedings under the Act, the ordinary rule is that each party to the proceedings shall bear their own costs (s 117(1)). However, if the Court is of the opinion that there are justifying circumstances, a costs order may be made (s 117(2)). In that event, the Court is required to take into account the factors specified in s 117(2A) of the Act.
In the circumstances, counsel for the father (again appropriately) did not cavil with the idea that in asking for the indulgence to redraft his orders and to come back another day, that came with a cost.
In other words, the mother’s entitlement to costs is predicated upon the father’s conduct of the proceedings. He failed to seek orders that could actually be made (s 117(2A)(g)) and, when confronted with that reality, he asked for another go (s 117(2A)(c) and/or (g)). I appreciate the father says he is in straightened financial circumstances (s 117(2A)(a)), but impecuniosity is no bar to a costs order (D & D (Costs) No 2 (2010) FLC 93-435). In any event, the father deposes in his Financial Statement at Part N that he spends $101 a week on clothes and shoes, $204 a week on entertainment/hobbies, $80 a week on holidays, and $162 a week on cleaning, books and hairdressing.
I will not go through the balance of s 117(2A) factors, because I am satisfied the matters just mentioned with respect to s 117(2A)(c) and s 117(2A)(g) are circumstances that justify making a costs order for the mother’s benefit.
The father did not oppose a costs order, rather challenged the quantum being sought.
The mother sought the following items from her schedule:
·Item 1 – Attendance at Defended Hearing before J Brasch (inclusive of travel to and from court)
·Item 2 – Attendance at Defended Hearing before J Brasch (inclusive of travel to and from court)
·Item 3 – Emails to husband and you serving Costs Notice
·Item 4 – Filing Costs Notice
·Item 5 – Settle Costs Notice
·Item 9 – File/Lodge Case Outline
·Item 10 – Amend Case Outline
·Item 11 – Conference with Counsel, Bob Lethbridge, Ms Snipper, Ms SS and Ms TT
·Item 12 – Reading Amended Case Outline served by Mr James
·Item 15 – Reading Case Outline of husband
·Item 16 – Reading Notice to Produce
The father’s counsel did not cavil with Item 1 and accepted Item 2, but not at the full day rate. The mother’s Senior Counsel replied that the matter had been listed for a full day, which is correct.
It was suggested Items 15 and 12 were double ups. For the balance of items, the father said they were matters that had to happen anyway.
I will allow Items 1 and 2 at the full day rate, as that was how the matter was listed. I will allow Items 9 and 10 as the Case Outline addressed the orders sought by the father, some of which I struck out.
I do not allow the balance of items, as I consider them to be matters that had to be done anyway.
The real question is how the costs should be quantified. It is well established that an order for indemnity costs will only be made in exceptional circumstances (Kohan & Kohan (1993) FLC 92-340; Yunghanns & Yunghanns (2000) FLC 93-029; Limousin & Limousin(Costs) (2007) 38 Fam LR 478). Whilst the father’s conduct warrants a deviation from the orthodox principle that each party should bear their own costs in proceedings under the Act, I am not satisfied they additionally warrant the mother’s payment of costs on an indemnity basis.
Scale is appropriate. That totals $7,822.53.
In those circumstances, I will order the father to pay the mother’s costs fixed in the sum of $7,822.53.
No one addressed me on a time frame to pay. I will order that occur within 60 days which is long enough for the father to cash flow the payment, but not too long to keep the mother out of her costs.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 6 December 2023
0
8
3