Sorrel and Cutten

[2017] FamCA 838

FAMILY COURT OF AUSTRALIA

SORREL & CUTTEN [2017] FamCA 838

FAMILY LAW – PARENTING – Adjournment – where trial not ready to proceed notwithstanding months of lead-in time – whether mother seeks adjournment because her case not prepared as she would want it.
FAMILY LAW – PARENTING – Where adjournment necessitates oral application for interim orders – where consideration given to substantial background to five years of litigation.
FAMILY LAW – COSTS – where mother opposes costs order – order made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Sorrel

RESPONDENT: Ms Cutten

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3489 of 2011

DATE DELIVERED: 20 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Swart

SOLICITOR FOR THE APPLICANT: Knight & Associates

COUNSEL FOR THE RESPONDENT: Ms Papson

SOLICITOR FOR THE RESPONDENT: Nevett Ford

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wiener

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. The initiating application of the father filed 8 September 2017 and the response of the mother filed 3 October 2017 are adjourned to a directions hearing before the Honourable Justice Cronin at 10.00am on 5 March 2018 for the purposes of assessing readiness for trial.

2. That paragraph (3) of the interim orders made on 24 August 2017 is discharged.

3. That paragraph (4) of the orders made on 24 August 2017 is discharged.

4. That paragraph (7) of the orders of 24 August 2017 is discharged and the passport of the child B born … 2007 and the father’s copy of the child’s birth certificate be forthwith delivered to the father through his solicitors and if necessary, the mother give instructions to her solicitors accordingly.

5. That until further order, paragraph (2) of the minutes attached to the orders dated 18 August 2014 is amended to delete (a) and until further order, the father have sole parental responsibility for decisions relating to the education of the child.

6. That the oral application of the mother made 18 October 2017 for variation of paragraphs (1) and (2) of the orders made on 24 August 2017 is dismissed.

7. That the parties have leave to file minutes of consent orders as they are so advised in relation to the forthcoming summer school holidays and school holidays for the period of the child’s schooling in 2018.

8. That the mother pay the father’s costs fixed in the sum of $3850.

9. That the question of the Independent Children’s Lawyer’s costs arising out of the hearing on 18 October 2017 are reserved to the trial.

10. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3489  of 2011

Mr Sorrel

Applicant

And

Ms Cutten

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These reasons relate to interim parenting orders pending a final hearing between Mr Sorrel (“the father”) and Ms Cutten (“the mother”).  The orders at the beginning of these reasons, along with trial directions, have been made on the best evidence available to the court.  In respect of the interim parenting arrangements, I am satisfied that they are in the best interests of the parties’ child the child who is now aged ten years.

2. To understand the dilemma as well as the court’s concern about how this came about, some context is necessary. 

3. The child B is the only child of the parties.  She has been the subject of litigation since 2011.  October 2017 was to have been the third final hearing between these parents.

4. Final orders were made by consent of the parties by the Federal Circuit Court on 18 August 2014 at a time where there had been plenty of preparation for a final hearing including the provision of a family report.  All parties were represented by lawyers.

5. The relevant orders in 2014 were:

   [3]      The child spend time and communicate with the Mother as follows:

   (a)during school terms, commencing 22 August 2014, fortnightly from 3.30pm Friday to the commencement of school Monday or 10.00am if Monday is a non-school day that is not provided for in these orders;

   (d)during school terms, each Wednesday from 3.30pm to the commencement of school Thursday or 10.00am if Thursday is a non-school day that is not provided for in these orders.

6. If numbers mean anything, the child was shared four nights per fortnight with her mother and ten nights with the father.  Until those orders, the previous final orders which had been made on 6 February 2012 were that the father care for the child for six nights per fortnight.  Thus, the 2014 orders were a significant structural change in the caring arrangement of the child.

7. A good indication of the nature of the parents’ relationship in 2014 can be seen in the following orders:

   [6]Each parent be restrained from denigrating the other in the presence or hearing of [the child] or allowing any third person to so denigrate.

   [7]The parties be at liberty to obtain information in relation to the child’s progress including copies of school reports and school photographs at each parent’s expense.

   …

   [11]Each parent is restricted from attending [the child’s] school and/or social functions on those days [the child] is not in their specific care.

   [12]Parental communication is to occur in writing including by email or text message.

8. There were undoubtedly problems in this relationship because the following orders were also made:

   [10]     The mother forthwith attend upon a clinical psychologist…

   …

   [13]The mother shall comply with all directions and recommendations of (the psychologist).

   …

   [15]The father forthwith attend upon a psychologist for the purposes of counselling…

   [16]The father shall comply with all directions and recommendations of the said psychologist.

   …

   [18]The mother forthwith attend upon a psychiatrist as approved by the Independent Children’s Lawyer for the purposes of treatment and report to address the issues raised in (the report of the forensic psychiatrist who had given evidence to the court, [Dr C]).

   [19]The mother shall comply with all directions and recommendations of the said psychiatrist.

9. However all of those orders were prefaced with this:

   [2]The mother and father have equal shared parental responsibility for decisions concerning major long-term issues with respect to ([the child]).

10. It took little time for those prescriptive orders to break down because on 17 July 2015, the mother issued a new application in which she sought to change the 2014 orders.  In her amended response filed 3 October 2017, relevantly, she sought:

    ·    Sole parental responsibility;

    ·    The child live with her;

    ·    The child spend time with the father from Friday to Monday on alternate weekends plus alternate Wednesdays to Thursdays.

11. Perhaps surprisingly, school holidays were not contentious between the parties and were to be shared.

12. When this case was in the Federal Circuit Court, an Independent Children’s Lawyer was appointed to represent the interests of the child. 

13. In December 2015, the Federal Circuit Court set the final hearing down on an undefined date but anticipated that it would be in 2017.  In June 2016, that trial date was fixed for May 2017.  Despite that pending date, in November 2016, the parties were back in the Federal Circuit Court litigating over subpoenaed material and who was to hold the child’s passport into the future.  That all seems to have led to the May 2017 date being vacated and the respective applications were then transferred to this court.

14. In July 2017, the matter came to my attention and I listed it for trial on 18 October 2017.  For unexplained reasons, the mother did not attend that July 2017 hearing as a consequence of which, I made the father the applicant.  I had no understanding of whether or not the mother was intending to continue to be involved as the court recorded her home address as her address for service indicating that she had no lawyers representing her.

15. The mother went back to her lawyers shortly thereafter and albeit only a few days late, filed affidavit material.  That material has, in my view, led to the derailing of this final hearing and necessitated the consequential adjournment. 

16. In anticipation of the May 2017 Federal Circuit Court trial that was ultimately abandoned, a family report had been ordered to be provided by a Regulation 7 reporter.  That report was released by the court to the parties in July 2016.  The clearest of notations is endorsed on the report to advise the parties that if they desired the author for cross-examination purposes, notice had to be given 14 days prior to the hearing.  In anticipation of the hearing, the Independent Children’s Lawyer put the report writer on notice about the hearing date but, presumably because she did not feel a need to flesh out or dispute the report writer’s evidence, she did not require her for cross-examination.  However, it now turns out that the mother did require her but no notice was given by her lawyers to that effect.  The father did not require the report writer for cross-examination.  Counsel for the mother valiantly argued that there had been some misunderstanding and that the report writer was needed.  Inquiries were then made but the report writer indicated she was not available at all until December.

17. A second problem then arose.  Counsel for the father had filed a notice objecting to the mother’s affidavit.  Although the outline of case from the father suggested that the objection was on the basis that it was late filed, the more fundamental objection was that, attached to it, were a variety of letters and reports.  The inappropriateness of that course was not disputed by counsel for the mother but nor was it explained.  Even a cursory examination of the mother’s affidavit will show that it was a document that the mother prepared herself.  Notwithstanding she had been in litigation since 2011, she could not be blamed for not understanding the essential elements of defining issues and presenting relevant evidence.  Surely, her legal practitioners who filed the affidavit must have understood that concept.

18. To be clear, it was said by counsel for the mother that these “reports” were not annexed to prove that the mother had attended upon the authors but rather, to establish the truth and expert opinion of them.  As such, and bearing in mind the nature of the mother’s application in October 2017 was to radically change the structure for the child, which would focus upon her own capacity and responsibility as a parent, these reports might be seen as not only relevant but important. 

19. Upon being faced with an obvious objection, counsel for the mother obtained instructions and sought an adjournment.  I make no criticism of the mother’s counsel;  her task was impossible and she endeavoured to explain the indefensible waste of time and money.

20. The adjournment was formally opposed but accepted by counsel for the father, and the Independent Children’s Lawyer, as having some inevitability.

21. From the Independent Children’s Lawyer’s position, a submission was put that the child needed a resolution and the mother’s evidence was sadly deficient.

22. To be also clear, the mother’s affidavit traversed years of irrelevant material when one considers that there were final orders made in 2012 and August 2014.  Again, counsel for the mother submitted that it was the mother’s own drafting but one wonders how such an unguided, let alone misguided, approach from the practitioners could possibly assist the court.  That is evident in the summary of argument document filed on behalf of the mother as well.  The “issues for consideration” are perplexing and hard to link up with the affidavit as drawn.

23. To the extent the mother was not present when the case was set down in July 2017 (a point made by the solicitor in the outline), it was not suggested that the mother did not have sufficient time to prepare for this hearing.  Indeed, that must be so because of what happened in August.

24. The dilemma for the parties worsened when, on 3 August 2017, the mother overheld the child.  The evidence shows the mother did not respond to the father’s text message as to where the child was.  Accordingly, he issued a recovery application on an ex parte basis.  That recovery order was not executed by the Australian Federal Police until 4 August 2017.

25. Albeit the mother’s evidence suggested otherwise, her counsel conceded that her affidavit was wrong about the Australian Federal Police collecting the child on 3 August.  As such, there was no explanation as to the overholding for a further day.  The mother’s counsel endeavoured to explain it by saying that the child was ill but two things give rise to question that.  First, the mother’s evidence is silent on the subject but secondly, the father’s evidence was that the child was fine on return to him by the police.

26. The ex parte order for recovery of the child was the subject of some complaint by the mother but I remain mystified on the evidence before me about what else the father and the court could have done.  The recovery order led to a suspension of the mother’s time.

27. On 24 August 2017 at a hearing where all parties were represented by lawyers, the problem was rectified.  The significance of 24 August however is that at least by that date, the mother had her current solicitors acting for her.  Thus, her absence from the directions hearing on 31 July 2017, became irrelevant. 

28. In the context of the immediate issues for determination, 24 August is also significant because, with the mother represented apparently by a solicitor, she consented to a reduction in her earlier 2014 time with the child.  That order was made “until further order”.  Substantial attendance provisions by the maternal grandfather were added but the following order was made and is relevant now:

    [6]The mother is restrained from attending at [the child’s] school other than to collect [the child] in accordance with (the relevant order).

29. Further orders were made about the child and her passport.  The passport is now another live interim issue.  To the extent that it was suggested that after not seeing the child for three weeks, the mother would have taken any contact offered to her, the following notation blurs that concept:

    NOTATION B

    The mother does not admit to the necessity for restraint from attending the school and for reduction of time nor for her time to be supervised and intends to seek for residence of [the child] at trial and the order to be removed.  

30. No explanation was given why her desires and intentions were not pursued on 24 August nor is there any indication about an element of desperation in taking any contact that she so desired. 

31. In my view, the court would have been hampered in proceeding with this trial by the absence of proper material if the mother’s outline is taken as a guide about what she saw as the basis to alter the 2014 final orders.  In the outline of case document the mother’s legal practitioner wrote:

    The mother seeks the return of [the child]…to her primary care.

    The mother submits that the father is continuing in his attempts to remove the mother from [the child’s] life and to limit her decision-making role in the care of [the child].

    The mother further contends that the father does not have the capacity to primarily parent [the child] and to appropriately prioritise [the child’s] needs over his own.

    The mother points to the ongoing communication difficulties with the father…

32. The mother then made reference to “historic family violence” and “his use of various tools through the proceedings as evidence of his ongoing family violence towards her”.  Leaving aside what those last words meant, those issues were hard to find as having been identified in the mother’s affidavit if they were to be proved.  Again, no explanation was given about the absence of corroborating material.  The reference in the outline of case document to the

    
    

    s 60CC factors was hardly helpful here but one glaring recognition of a problem was that there was a statement that there was no updated family report.  That was a curious statement because in the order made on 31 July 2017, such an order was made.  Nothing was done by the mother about updating what was noted as two previous reports.  As I understand it, the father was content to proceed on the basis of the 2016 report. 

33. In the 2016 family report, the expert’s opinion as at July 2016 concerning making changes to the 2014 orders was canvassed.  If, as would appear to be the case, the mother appears to challenge that report writer, one would presume that apart from having significant evidence to put to the witness to establish her point, she might have at least called for the attendance of the report writer. 

34. The report writer in 2016 wrote:

    [30]In regard to [the child’s] capacity to expresses (sic) a view on her living arrangements, it is the writer’s view [the child] does not as yet have the emotional, developmental or cognitive capacity to separate out her own emotional needs from that of her mother’s emotional needs, but rather in expressing a desire to spend time with her mother is responding both to her mother’s emotional needs and in a somewhat muddled way her mother‘s stated desired outcome for this matter.

    [31]It is the writer’s view that [the child] would benefit from her current living arrangements remaining the same.  However, should [Ms Cutten] continue to persist in fulfilling her emotional needs through [the child] with adverse effects of [the child’s] emotional and developmental wellbeing, then consideration of reducing [the child’s] time spent with her mother may be required.

    …

    [33]Further there are sub issues such as changing schools and overseas travel to visit her father’s family in [Country D].  While [the child] clearly enjoys attending the school she currently attends, there is nothing to suggest that she is not academically or socially robust enough to manage a change of schools to a school nearby to her father’s home.  Such a change is likely to further support [the child’s] integration into her father’s family in that she is likely to be sharing a school community with her step siblings [E] and [F].

    [34]In regard to travel, connections to paternal extended family in [Country D] can only be a positive rather than a negative for [the child].  [Mr Sorrel] has established himself in employment in Australia, has a home established in Australia and has a family established in Australia.  There is nothing to suggest [Mr Sorrel] is a flight risk with [the child].

35. Each of those matters is significant but it would appear only that the mother is challenging them.  Nothing in her affidavit was drawn to my attention which would enable me to not rely upon that material for the purposes of this interim hearing. 

36. In respect of schooling, counsel for the mother submitted that the child should not change school because she was happy there and that had been her only school.  But that was not something that the family report writer seemed to be troubled about. 

1. So too, there is a problem about the child being driven backwards and forwards to school because the father is presently much further away from the child’s school than the mother is.  The importance however is that he has the major caring role.  That is evident more so depending upon what view the court takes of the mother’s application about the time that she has with the child.  The August 2017 orders provide for the mother to only have weekend time.  Whereas the 2014 orders provided her to have at least some weekday time.

2. Notwithstanding at the hearing that the mother was advocating for a final order for sole parental responsibility to her and that the father’s care for the child be reduced to what might be described as nominal time, she now proposes that the court depart from the position to which she consented on 24 August 2017 and revert to the 2014 position.

3. Conceding that the adjournment was therefore necessary, the court is now required to make three determinations.  They are:

   (a)is there a basis to alter the orders of 24 August 2017 and if so, what is the appropriate time?

   (b)who should hold the passport for the child?

   (c)should the father have the right to make determinations about the child’s school including which school she should attend?

   There is a further issue about what to do with the final hearing bearing in mind there are already significant delays in this court for people who have prepared their cases properly (and some have not had previous hearings).  Whilst it must be said that any case involving delays relating to a child prejudice that child, the major prejudices here is to the mother because the father has the major time with the child and that has been the position since at least 2014.

4. I turn then to each of the three issues before deciding the question of the trial.

5. Even though this is an interim (and oral) parenting application, the same approach as dictated by the legislature must be followed.

6. The time that the child spends with each parent had been relatively settled until August 2017. On any consideration of that time, the father had the greater role in the care of the child. It was contentious that he was away overseas for work at times and the child was cared for by his wife, Ms G. The report writer expressed no concerns about the relationship between the child and Ms G. The mother’s outline of argument seems to say that the father cannot care for the child from the father’s care. That does not automatically follow but to the extent that it was seen by her as a problem, no interim application was made for the removal of the child. The mother’s proposed final order is that the time be shared but then, she sought this order:

   [6]That should the father travel overseas during the time he is normally to spend time with [the child], [the child’s] time with him be suspended during the period of the travel and upon his return, time arrangements continue on a schedule as if there had been no interruption.

7. If the proposed order was made, the child would be changing routines regularly and importantly, that would include arrangements for her school attendance. In his as yet untested evidence, the father alleged the records of the school (which do not appear to have been challenged by the mother) show that in 2017 in circumstances where the mother had the child for limited school attendances, the child had 11 late arrivals, 10 unexplained absences and about seven illness absences. All of those might be explained by the tested evidence but if there is no apparent explanation to the school, it raises the question of whether the mother is appropriately getting the child to school. The same evidence does not suggest anything of that similarity by the father who presumably, as a result of the 2014 orders, has many more such attendance obligations. Thus, at least at an interim level, the court should be cautious about assuming that the father cannot care for the child because of his absence or that she would not be better able to get to school at times when the child is in her stepmother’s care.

8. To the extent that the father’s standard of care was said to be a problem, it was not something that seemed to trouble the expert in July 2016 nor was it an issue in the consent orders in 2014.  It is a matter that should not be taken into account on untested evidence (Goode & Goode [2006] FamCA 1346).

9. It is also apparent from the father’s evidence (albeit untested) that he has wanted to move the child closer to him and the family report writer did not seem to see a school move as difficult for the child. Is it appropriate to make such a change on an interim basis? There are no agreed facts about such a change. There are issues such as the mother’s lack of a car but also the fact that the father has employment obligations. There is the fact that the father has undertaken the task for a long time and the child is presumably accustomed to that travel. As against that is the expert’s view at least in July 2016 that a change of school would not be a problem for the child to manage.

10. The issue should be determined on what is best for the child but the father’s desires should be a consideration as well. Is it likely that in the foreseeable future, a further significant change is likely to occur in the parenting arrangements after the evidence is fully tested such that a change of school back to her current school would be likely? That is very hard to assess on the basis of the disorganised evidence of the mother but it would only be a problem if the mother’s case, as presently put, was successful. The history indicates that on two previous final orders, the father was given a substantial role in the child’s life. The evidence of the expert at July 2016 of the expert was an opinion that there should not be a change in the care arrangements.  Then, there is the August 2017 events which are concerning. Whilst the mother seemed very critical of the father’s approach in seeking the recovery order and the high-handed approach of having police attend, she failed to mention her own role in ignoring the majority parenting role of the father. Then, there is the 24 August unexplained consensual order at a time when the mother had legal representation.

11. A careful examination of all of the material of the mother criticising the father does not elicit much that is agreed. She complains about:

    ·the father’s approach to haircuts with which she disagrees;

    ·the poor relationship she has with the father’s wife which seems to have resulted in at least an interim intervention order against the mother and ultimately, the wife accepted an undertaking from the mother to behaviour appropriately towards her ;

    ·the dispute between the parents as to the child doing dancing classes;

    ·some confusing accusation that the child’s step brother “displayed physical violence toward the child” (see paragraph [226] of mother’s affidavit) although it is confusing both grammatically and factually what she is referring to; and

    ·a dispute about whether the child should have a particular “app” on a mobile telephone.

12. No specific issue of the concepts raised by Rice and Asplund (1979)FLC 90-725 was canvassed in this case but it is timely to recall that this is the third final hearing about parenting issues. If, at least for the interim hearing, I look not just at the principles arising from Goode (supra) but also from what has occurred since August 2014, it is difficult to know what has changed in the child’s life. Indeed, one might conclude that the greatest change in her life is that it is constantly interrupted by disputes between her parents who disagree about the way in which she is being raised.

13. In Rice and Asplund (supra) Evatt CJ said a court “should not lightly entertain” an application to reverse earlier parenting orders since “change is an ever present factor in human affairs”. The Chief Justice referred to the rationale as being the avoidance of “endless litigation”. One might rhetorically ask whether that is exactly what is happening here in circumstances where despite appropriate preparation time, that preparation has not occurred by a litigant who has had legal representation.

14. I do not need to set out all of the authorities about changing parenting orders but they make clear there should be some changed circumstance which would justify such a “serious” step. The Chief Justice acknowledged the infinite variety of possible circumstances but the question had to be asked whether there were circumstances requiring the court to consider afresh how “the welfare of [the child] should best be served”. Where parties are represented, the focus on those words in a parenting case is critical because otherwise, the court is permitting endless litigation. In this case, that focus seems to be missing.

15. The importance of stopping parties litigating about their children for the sake of litigation ought not be dismissed lightly. In Freeman and Freeman (1987) FLC 91-857 at 76,470-71 Strauss J remarked that seemingly endless and inconclusive litigation was usually emotionally damaging to the litigants and is likely to affect the children adversely. In CDJ v VAJ (1998) 197 CLR 172 at 204 [118] McHugh, Gummow and Callinan JJ recognised the same point in saying:

    The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings. (my emphasis)

16. Here, the uncertainty has been compounded by the unusual way this case was presented.

17. All of those matters mean that whilst this is about the best interests of the child, the absence of attention to detail, at least by the mother, and the outline of case by her practitioners, does not indicate that there is any urgency here. the child has been predominantly in the care of her father since at least 2014 and most probably earlier. The expert evidence (again untested) does not suggest consequences will flow if no change occurs. Thus, notwithstanding the time this 2015 case has been in the court system, I cannot justify an expedition over other cases about which concerns of delay has been publically expressed. Because of that, I will give this a listing in the new year but that gives rise to the need to sort out at least the schooling issue pressed by the father.

18. For the reasons set out above, I am concerned about the mother getting the child to school. I am concerned about her approach to letting the father know what was happening to the child in a case where she accuses him of not communicating. The evidence would suggest the father wanted to know where the child was because although he would not have been taking her into his immediate care, she should have been at school. If the child was sick, where is the evidence? Why was the inaccuracy in the mother’s affidavit so glaringly obvious about the execution of the recovery order by the police? Why was there no explanation for the consent order?

19. In the circumstances, I see no reason to alter the August 2017 arrangements if change would put the child at risk of not attending school. The Independent Children’s Lawyer submitted that the child had said she wants more time with the mother but even if the 2014 orders were reverted to, it would only mean one night per week. That seems to me to be an issue which can be considered in a final hearing when all of the evidence might be before the court unlike at present.

20. Similarly, the passport holder issue is an odd one. There is no dispute that the child should travel internationally. There is no dispute that the father should give the mother notice of his intentions to take the child overseas. Whilst there is some argument that the father be allowed to take a certain amount of time and then compensate the mother, I would not be prepared to contemplate that on an interim basis because it is unclear what he has in mind. It seems that he can plan around the times under the existing orders and there is consensus about holidays. The passport issue arose because there seemed to be a dispute about how the father obtained it when he needed it. His point is that if the mother controls it, he will have to come back to court even though the order required that she not unreasonably withhold it (whatever that meant). In my view, the father should have the passport as there is no suggestion that he is going to abduct the child.

21. The 24 August orders did not provide for school holidays but the parties agree on those, so I shall make any such order that they draw in minute form.

22. On an interim basis, I can only find that, of the matters raised by the mother, it is hard to understand that those are such to justify any change. No doubt that might change on a properly prepared final hearing. I do not need to address the presumption in s 61DA here more than peremptorily because the issues were canvassed on two previous occasions and as set out in s 61DA(3), I could not make any sensible findings here about the presumption. It is fundamentally agreed that the parties cannot agree on how to raise their daughter and the school is only one such issue.

23. Absent the application of the presumption, the court is at large on the issue of parenting orders. Section 65D empowers the court to make such order as is proper and s 64B provides the relevant powers. Part VII however requires the court to apply best interest principles. Section 60CC must be considered so long as those matters are relevant.

24. On the untested evidence, I can only assess those matters briefly.

25. Section 60CC(2) requires the consideration of the benefit the child receives from having a meaningful relationship with her parents. She has that relationship already. Nothing in the evidence glaringly suggests that adding or subtracting will make any difference to that relationship particularly as most of the relevant and disputed time, the child will be in school.

26. There is disputed evidence here about what the child is exposed to but it is interesting that it was the father’s wife Ms G who was favoured with the intervention order not the mother. An examination of the definition in s 4AB at trial might be interesting.

27. The mother at [256] said the child had a “firm desire” to return home “to her mum”. I am not sure what evidence supports that conclusion.

28. Whilst the independent children’s lawyer advocated the wishes of the child for more time with her mother, I also have the caution expressed in 2016 by the expert. Counsel for the Independent Children’s Lawyer agreed there was a school attendance problem but said the time element could be ameliorated by the mother attending extra-curricular activities of the child. That was not disputed by the father. Again, to the extent that there is a common position and the parties feel they need orders, they can present them. I am not asked to deal with anything other than the immediate 3 issues.

29. I understand the nature of the relationship between the child and both parents is close and also it would seem (although disputed) between the father’s wife Ms G and the child. Nothing in the assessment of those relationships would justify any finding of a need for change here.

30. It is important to consider the impact of change on the child. There is no evidence that the child has not adjusted to the new routine. She has told the Independent Children’s Lawyer that she wants more time but nothing in the evidence suggests she has not got on with her life. There are leisure times in school holidays to be enjoyed. The mother filed her affidavit in September so she had the opportunity to address this issue. She said at [151]:

    This is the longest time in [the child’s] life she has had no contact with her mother.

31. Whilst she then set out all of the things that were wrong about why that recovery order happened, she did not say what impact it had. She said that she was “shocked” but, by reference to the orders of 24 August, “in order for time to resume, agreed for this temporarily”. It would seem that the court was not told that. It would also not have been apparent to the Senior Registrar when he made the orders. If paragraph [151] was such a concern and she was shocked at the course the father took, why not explain it to the court and insist on a return to the 2014 orders? All of these things are matters about which I cannot make findings but they do leave the court in an invidious position when trying to work out what issues are or are not in dispute (again Good (supra))

32. A very significant consideration here is the attitude to the responsibilities of parenthood. Because the mother did not explain the August dilemma, I am unsure whether there was a justification for the recovery order and its aftermath. If she did not contact the father, she will need to explain why. That is particularly important when, even if the child was ill, the mother produced no evidence. If she was still ill on the afternoon of 3 August, why not tell the father rather than await the aftermath. To the extent that the child was alarmed or frightened, if not terrified, by police invading her home to take her away, the issue for the court will be why the mother allowed that to arise. That will no doubt bring into question the state of health of the mother.  As I understand, but have not read, previous reports where professionals raised concerns about her. That evidence apart from some letters and reports, was not before the court and as I understand the father’s case, not accepted by him.

33. Specific parental responsibility allocation is within the powers of the court in s 64B. Having regard to the role the father has fulfilled until now and the concerns expressed about the mother’s ability to get the child to school, I find that at least on an interim basis, he should have the decision-making role. The only argument against that was raised by the mother who pointed to the duration of time that the child had been at the present school. In my view, that argument is only a modest issue and travelling to and from school should be seen as equally important.

34. Accordingly, orders should be made in the terms outlined above.

35. With those matters concluded, I intend that the parties have a trial when the court can accommodate it in 2018. To the extent that a family report is required, the basis of the court needing the expert evidence of a family consultant it is not immediately clear.. Family reports are not tools for negotiations; they are intended to be expert advice to the court. To the extent that parties can use them for negotiation, if not counselling, so much the better. But, with the court’s straitened financial circumstances, and the high demand, I consider the issue of whether a report should be obtained must be addressed. That is the message in s 69ZQ (1) (a) and (d). Having regard to the number of times the courts have provided an opportunity for the parents to sort out disputes, I am very conscious of what is said in s 69ZQ (1) (h). Here, because of the way the mother presented her material, I can see no alternative but to bring the parties back to explain just what it is that justifies the use of a family consultant. I refer back to paragraph 47 above.

36. Accordingly, I propose to fix a directions day on 5 March 2018 for all of these issues to be canvassed about what it is that the parties expect of the court.

37. Finally, as the mother sought the adjournment, both the father and the Independent Children’s Lawyer sought costs. In the case of the latter, she sought the costs be reserved. As there was no opposition to that, I will make that order.

38. The father sought costs thrown away of $3,850 being her brief fee. The scale fee for counsel (item 205) is a maximum of $2,883.83. That does not include preparation which would bring about a further maximum of $395.86 per hour. I accept that $3,850 would cover both attendance and reading so the question is whether that will have to be done again. In view of the inevitable delay, I consider it reasonable to conclude that it will all have to be done again and the father will be charged for that by his practitioners.

1. Orders for costs are not intended as any form of punitive action for the way a litigant conducts a case but rather, to compensate a person who has had little or no choice other than to be involved. Here, the father had been the recipient of the mother’s application and, as she did not attend the directions hearing, was appointed applicant.  The mother then joined in the proceedings seeking orders that would radically alter the status quo. Thus, the father had little choice but to continue to litigate. The law in relation to his application was therefore not novel.

2. The law relating to orders for costs is governed by s 117 of the Act. There must be some justifying circumstance for the court to depart from the statutory principle that each party bear their own costs.

3. The mother submitted only that her financial circumstances were such that she could not afford to pay costs and indeed, she asserted that she earns about $30,000 per year against the father’s much stronger financial position. Impecuniosity alone is not solely a basis not to order costs if there are justifying circumstances because otherwise, unmeritorious proceedings could be commenced and continued with impunity.

4. Having regard to what I have said above, I am well satisfied that there are circumstances to justify a departure from the principle set out. It is not normal for parties facing a contested final hearing not to be ready when ample time has been given. It is not normal for parties represented by practitioners who have had possession of a family report and who would be expected to know requirements about the calling of experts as witnesses, not to have given appropriate notice. It is not normal for parties to put together an affidavit that is discursive and not targeted to the relevant issues in dispute even if one factors in the provisions of s 69ZT of the Act.  It is important to observe that relevance (ss 55 and 56 of the Evidence Act 1995 (Cth) (“the Evidence Act”) have not been removed. As such, I am satisfied there are justifying circumstances here to consider making an order for costs. The order was not sought against anyone other than the mother.

5. That does not mean an order should automatically be made. The court must consider the provisions in s 117(2A) of the Act.

6. I am not aware of the legal aid considerations here but if there are grants, the relevant funders might do well to contemplate the reasons set out above. I am very concerned that the public purse may have been affected by the adjournment because if the case is to proceed, the public purse will again be called upon.

7. The major issue in s 117(2A) however relates to the mother’s conduct as a litigant. She should have prepared properly and did not and when faced with the problem as identified, sought an adjournment to enable her problems to be addressed. That is not what normally happens in litigation in this court. That point is particularly poignant here because in the orders of 31 July, I made clear what the outline of case document was to contain. The solicitor for the wife did not follow that direction.

8. In my view, the order sought is reasonable and the departure from the principle in s 117(1) justified. There will be an order accordingly for $3850.

I certify that the preceding Eighty-Two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 October 2017.

Associate: 

Date:  20 October 2017