SOUTER & BARNARD
[2014] FCCA 3139
•25 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOUTER & BARNARD | [2014] FCCA 3139 |
| Catchwords: FAMILY LAW – Costs – application for costs made by the mother seeking an order for costs against the father – application by the Independent Children’s Lawyer for a contribution to costs by the mother – consideration of the circumstances justifying an order for costs – court is absent a finding of a justifying circumstance to depart from the general rule – court not satisfied that it would be just and equitable to make an order for either application for costs. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CC, 65DAA(5), 68LA, 69ZN, 69ZT, 69ZV, 117, 118 |
| Makita & Sprowles (2001) 52 NSWLR 705 Re R Children’s Wishes [2000] FamCA 43 Harrison & Woollard (1995) FLC 92-598 Deacon & Castle [2013] FCCA 691 Briginshaw v Briginshaw (1938) 60 CLR 336 Bennett & Bennett (1991) FLC 92-191 Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 |
| Applicant: | MR SOUTER |
| Respondent: | MS BARNARD |
| File Number: | DGC 4442 of 2007 |
| Judgment of: | Judge Harman |
| Hearing date: | 25 June 2014 |
| Date of Last Submission: | 25 June 2014 |
| Delivered at: | Albury |
| Delivered on: | 25 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dart |
| Solicitors for the Applicant: | Rama Myers Family Lawyers |
| Counsel for the Respondent: | Ms McCreadie |
| Solicitors for the Respondent: | Nevin Lenne & Gross |
Counsel for the
Independent Children’s Lawyer: Mr Kenny
Solicitors for the
Independent Children’s Lawyer: Robb & Associates Solicitors
ORDERS
By consent make Orders in accordance with the Terms of Settlement marked Exhibit ‘X’ attached hereto.
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.
Grant leave to Independent Children’s Lawyer to make an application for contribution costs as regards the mother in the sum of $6386.50.
Dismiss that application.
Each party shall pay their own costs of and incidental to the proceedings.
The Independent Children’s Lawyer shall have leave to provide to the Family Therapist engaged pursuant to the above orders copies of such documents as have been produced in these proceedings as the Independent Children’s Lawyer considers would be relevant or of assistance to the Family Therapist and provided notice is given to the parties in writing of the documents to be provided prior to their provision.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
EXHIBIT ‘X’
All previous parenting Orders be discharged.
The parents have equal shared parental responsibility of the children, X born (omitted) 2002 and Y born (omitted) 2004 (“the children”).
The children live with the Father and the Mother in alternate weeks, with changeover to take place each Friday at the conclusion of school, or in the event of it being a non-school day, handover occur at 5:00pm, beginning the 27 June 2014 with the mother.
For the purposes of changeover, the parents or their agent shall deliver or collect the children to and from school and in the event of it being a non-school day, handover occur by the Mother collecting the children from the Father’s residence at the commencement of time and the Mother returning the children to the Father’s residence at the conclusion of time, or such further or other arrangements as may be agreed to between the parents in writing including via SMS from time to time.
Notwithstanding the provision of Order 3, the children spend time with the Father and Mother during Christmas as follows:
(a)In even numbered years, the children shall be in the care of the Mother, from the conclusion of school on the last day of the school term until 5:00 pm on Christmas Day and in the care of the Father from 5:00pm Christmas Day until 5:00pm on 8 January and then in the care of the Mother from 5:00pm on 8 January until 5:00pm on 22 January and thereafter in the care of the Father pursuant to Order 2 herein, until the first Friday of the school term.
(b)In odd numbered years, the children shall be in the care of the Father from the conclusion of school on the last day of the school term until 5:00 pm on Christmas Day and in the care of the Mother from 5:00pm Christmas Day until 5:00pm on 8 January and then in the care of the Father from 5:00pm on 8 January until 5:00pm on 22 January and thereafter in the care of the Mother pursuant to Order 2 herein, until the first Friday of the school term.
Notwithstanding the provisions of Order 3 herein, the children’s time with the father be suspended on the following occasions:
(a)In even numbered years, from 5:00pm Good Friday until 5:00pm Easter Sunday.
(b)On Mother’s Day, from 5:00pm on the Saturday immediately prior to Mother’s Day until the commencement of school on Monday.
Notwithstanding anything provided for in Order 3 above, the children’s time with the mother be suspended on the following occasions:
(a)In odd numbered years, from 5:00pm Good Friday until 5:00 pm Easter Sunday.
(b)On Father’s Day, from 5:00pm on the Saturday immediately prior to Father’s Day until the commencement of school Monday.
That the children be at liberty to telephone the parent with whom they are not living at any reasonable time.
The parent with whom the children are not living be at liberty to telephone the children each Sunday and Tuesday between 5:00pm and 7:00pm.
Neither parent shall enrol the children in any sporting or other after school activity without the written consent of the other parent.
The parents shall ensure that the children attend any scheduled sporting or after school activity in which the children are enrolled in whilst in their care.
Both parents, along with members of their family, be at liberty to attend any school function including parent teacher interviews and all other attendances/events which parents are usually invited to attend.
Both parents keep the other informed of any significant medical injury or illness affecting the children when in their respective care along with the names, contact details and addresses of any treating medical, dental and allied health professional so that each parent may liaise with same.
The passports for the children be held in the Federal Circuit Court of Australia, Melbourne Registry and only be transferred to, and released from, the Albury Registry by a signed statutory declaration from each party or Order of this Court and returned to the Registry within 72 hours upon the children’s return to the Commonwealth of Australia.
In the event that either parent wishes to travel outside of Australia with the children or either of them, the party wishing to travel with the children or either of them must:
(a)Notify the other parent in writing, not less than eight weeks prior to the proposed departure date; and
(b)Request the other party to complete a statutory declaration to facilitate the release of the children’s passports pursuant to Order 14, such statutory declaration to be provided within 14 days of such request.
(c)Forward to the other parent not less than four weeks prior to the proposed departure date, a copy of the proposed itinerary including flight numbers and times and the proposed return date together with contact telephone numbers and addresses at which the children or either of them may be contacted for the duration of the time that the children remain outside of Australia.
The parent wishing to travel outside of Australia with the children or either of them must ensure that the dates of the proposed travel do not fall for a period in excess of one (1) week within school term time unless the other parent consents in writing.
In the event either parent wishes to take the children on an extended holiday, each parent may elect to spend a block with the children for a period of up to three (3) weeks on one occasion annually by providing no less than six (6) weeks written notice to the other parent and, in that event, make up time will be provided to the other parent at a time convenient to them, provided it does not coincide with any significant event which is otherwise provided for in these orders.
Each parent be and is hereby restrained by injunction from himself or herself or their respective servants or agents as follows:
(a)Denigrating, assaulting, rebuking, or belittling the other parent or members of their household to the children and/or within their presence or hearing.
(b)From discussing these proceedings including any evidence given or filed in these proceedings with the children or in their presence and/or hearing.
Save in the event of an emergency, both parents shall ensure the children attend (omitted) Medical Centre.
Save in the event of an emergency, or when the Free Dental Clinic can provide an appointment for the children, both parties shall ensure that the children attend (omitted) Dentistry Practice.
Each parent is to keep the other advised at all times of their residential address, residential phone number, emergency contact number and email address.
Each parent shall, as far as practicable and save in the case of an emergency, communicate with each other by text message or email and shall in all communication between them be courteous and respectful of the other and focus upon issues in dispute between them in a non-judgmental and constructive fashion.
Each parent shall at any time that they are in proximity to each other, conduct themselves with dignity and shall acknowledge the other courteously and treat the other with respect and shall ensure that any other person with them also does so.
In the even that either party proposes to make an application for variation or enforcement of these orders, then any such application shall be filed in the Federal Circuit Court at Albury and shall, so far as is practicable, be listed before Judge Harman for determination and not otherwise.
That the parties attend upon Ms H or such person as nominated by the Independent Children’s Lawyer for the purposes of assisting them to improve their communication and in the even that Ms H is unavailable, to such person as nominated by the Independent Children’s Layer and the parties do all acts and things as are necessary to attend such appointments as are arranged by the person and contribute equally to the cost of same. Such family therapy is confidential and not reportable in any future proceedings.
That the parties shall ensure that the children attend school each school day and that in the event that either X or Y is unwell and unable to attend school:
(a)Each parent is to notify the other via SMS; and
(b)Obtain a Doctor’s Certificate if the absence is in excess of one day.
That both children are to attend (omitted) Primary School and thereafter (omitted) College, (omitted) or such other school as the parties may agree in writing.
That the parties are to do all acts and things necessary to ensure the children have a current passport at all times and that for this purpose, each parent shall sign any application for renewal of the children’s passports within seven (7) days of such a request being received from the other parent.
That the Independent Children’s Lawyer be discharged.
That the father and mother shall pay the Independent Children’s Lawyer costs as follows;
(a)$750 within seven (7) days payable by each party.
(b)$4,250 by 31 December 2014 payable by the father.
IT IS NOTED that publication of this judgment under the pseudonym Souter & Barnard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ALBURY |
DGC 4442 of 2007
| MR SOUTER |
Applicant
And
| MS BARNARD |
Respondent
REASONS FOR JUDGMENT
These are proceedings with respect to future care arrangements for two children:
a)X born (omitted) 2002; and
b)Y born (omitted) 2004.
The children are 12 and very nearly 10 years of age respectively.
The parties to the proceedings are the children’s parents, being their father, Mr Souter, who is the Applicant, and their mother, Ms Barnard, who is the Respondent.
The parties’ relationship concluded some little time ago.
Since the termination of their relationship the arrangements for the children’s care were relatively stable although with distinct periods of:
a)Living initially in the substantial, primary care of their mother and spending time with their father; then,
b)Moving to their father’s substantial or primary care and spending time with their mother; and now,
c)Arrangements attended by significant dispute, conflict and litigation between their parents.
History of litigation
The first round of litigation was commenced by an Application filed 4 September 2009.
Tellingly, if not chillingly, during his cross‑examination Mr Souter conceded that at the time that the first round of litigation between these parties commenced, the youngest of the children, Y, who will shortly turn 10, was aged four or possibly five.
Thus, for half or slightly more than half of his life and slightly less than half of X’s life, these parents have been litigating with each other.
The parties have now reached an accord and Orders will be made as agreed and subject to two separate applications with respect to costs. Those Orders will conclude this dispute. All issues will be addressed in these reasons.
The Orders which are now tendered, which will be marked as Exhibit X, provide a set of parenting arrangements for these children which may or may not last for a significant period. The long‑lasting nature of these Orders, notwithstanding that one would ordinarily presume with children of these ages that the Orders would continue to operate till their majority or such age as the parties or either of them determined that Orders were no longer necessary, is pessimistically approached in light of the history of litigation and specifically by reference to the issues that have arisen during the course of this hearing.
The Orders which I propose to make by consent provide for a week about shared care arrangement. I have some reservations with respect to that arrangement and, thus, these reasons are delivered at the request of the parties to address two such reservations:
a)Relating to whether the Court is or could be satisfied of an unacceptable risk to the children as a consequence of those arrangements or allegations which have been raised in the evidence; and secondly
b)The ongoing impact of conflict upon these children. It would be fair to describe that conflict has been circumjacent to these children’s lives for most, if not all, of their lives.
I do propose to make the Orders, but subject to a brief discussion of those reservations.
I do not propose to canvass all of the matters in section 60CC and section 65DAA(5) of the Family Law Act 1975 (Cth) as section 60CC(5) of the Act makes clear I need not do so in the context of Orders made by consent. However, all of those factors have been considered.
It is also important to record the material that has been read and relied upon in these proceedings and the stage at which the parties reached.
Material Considered
Each of the parties is legally represented in the proceedings. The children’s best interests are represented by an Independent Children’s Lawyer who has discharged her obligations valiantly.
Counsel for each of the parties and the Independent Children’s Lawyer has provided a Case Outline document which enumerates the material to be read and relied upon by them in their case and that is as follows.
In the case of the father, I have read and considered his Initiating Application together with his trial Affidavit and that of his partner, Ms T.
In the mother’s case, I have read and considered her Amended Response, her trial Affidavit, that of her partner, Mr A and an Affidavit by a relative, Ms J.
In the Independent Children’s Lawyer’s case and as Exhibits of the Court, I read and considered a Family Report prepared by Mr B together with two Affidavits, being an Affidavit by Ms E, the Deputy Principal of the children’s school, and an Affidavit of a family therapist Ms R upon whom the parties attended, albeit it for only a few appointments and perhaps less than might have been desirable. That evidence has been of great assistance in these proceedings and the subject of significant cross-examination as between the parties.
The Independent Children’s Lawyer
I pause to observe at this point that the Independent Children’s Lawyer’s role in these proceedings has been significant.
I have, sadly, had cause to comment upon the inadequacy of the representation of children’s interests by some of those appointed to fill that role, thankfully, less so on this circuit than in other locations. However, the quality of such representation is a matter of real concern to me and as is reflected by recent government-funded research into that role.
The obligations imposed upon an Independent Children’s Lawyer, pursuant to section 68LA of the Act, are clear. The Independent Children’s Lawyer has an obligation to form an independent assessment as to that which is in the children’s best interest based upon the evidence that is available in the proceedings. That, of course, may change from the time to time as the evidence flows and is tested.
At the outset of this case, the Independent Children’s Lawyer did not seek to place a view before the Court. That is entirely appropriate and, indeed, in this case, it would have been foolhardy, rather than brave, for them to offer any view. The level of factual dispute and the level of conflict historically entrenched between the parties is such that for them to express a view would set them up as the tribunal of fact.
I am entirely comfortable with, indeed, grateful to the Independent Children’s Lawyer for the stance they took at the commencement of the proceedings. I am satisfied that the Independent Children’s Lawyer’s active engagement in testing evidence and in compiling evidence that has been presented to the Court has led them to be of considerable assistance in instigating settlement negotiation and arriving at a resolution.
The Independent Children’s Lawyer is also obliged to ensure that the children’s views are represented. That is a particularly important role as the objects and principles, via section 60B(4) incorporate the entirety of the International Convention on the Rights of the Child which requires that Courts ensure that children’s views are heard and that children have a right to participate in proceedings to the extent consistent with their age, maturity and circumstances of the case.
In light of these children’s active involvement in conflict between their parents, the children’s protection from the proceedings and lack of involvement is perhaps the more relevant approach.
It is also to be noted that the Independent Children’s Lawyer must test evidence, independently and objectively analyse it and ensure that material is before the Court which is of assistance in making a decision. It is to that end that the Independent Children’s Lawyer should particularly be commended.
The Independent Children’s Lawyer has not simply relied upon the parties to present evidence. They have actively sought out and engaged family therapy and have then obtained and presented evidence from the family therapist with whom the parties and their children engaged. I should be clear with respect to that therapy that I have no concern whatsoever that the provisions of Part II of the Act would apply to exclude the evidence and the parties were both made aware of the non-confidential nature of those sessions before they commenced.
The evidence of Ms E, the Deputy Principal, cannot be imputed as other than admissible.
That the Independent Children’s Lawyer commissioned those Affidavits, the most important evidence before the Court, is an accurate reflection of their insight into the relevant issues and evidence required to address those issues.
Sadly, the presentation of evidence by the Independent Children’s Lawyer is rare. In this case the children’s best interests could not have been properly addressed without the evidence. The Independent Children’s Lawyer is to be commended and has the Court’s thanks for the most diligent and insightful discharge of their duties.
The Evidence
These parties are at significant issue in relation to their children’s best interests. The reasons for that cannot be fully explored or determined by me and it would inappropriate to do so as not all evidence has been presented let alone tested.
Evidence and cross-examination commenced. The matter has run for three days (although I make clear that those days have not been without interruption). However, that does not affect the costs which have been incurred by these parties who have been required to be here and retain their Counsel for those three days and, in all probability if the matter had not resolved, at least one, if not two more.
The proceedings have seen the close of Mr Souter’s case. He was cross-examined as was his partner Ms T.
Ms Barnard commenced cross‑examination but, again, due to a number of interruptions in the day, that had only commenced. Counsel for the father had commenced cross-examination. The Independent Children’s Lawyer had not.
The Court broke for lunch at the request and at the behest of Counsel for the father, observing the mother’s distress in the witness box at that point. The mother had given evidence that she had been planning to not participate in this hearing on the basis of her concerns that to do so would not benefit her children’s mental health or hers.
There is some real force to that. It demonstrates insight on the part of the mother. I would be loath to encourage litigants to simply fail to attend the hearing of proceedings or discontinue their participation. However, there are real issues of concern with respect to the emotional and psychological health of these children, now and into the future, if matters between their parents do not change.
A fundamental and key factor in these proceedings is a concern expressed by Mr Souter, and for that matter, his partner, as to the children’s likely “past abuse, particularly through exposure to family violence”, and the prospect, the possibility or, as they would see it, probability that this will occur in the future.
The report of Mr B advances, from his perspective, a belief that the children have not been physically or emotionally abused by the mother or her partner. Mr B does advance a “belief” that the children may have been physically chastised although there is nothing set out in the report which could possibly be seen, by reference to Makita & Sprowles (2001) 52 NSWLR 705 and similar authorities, as a foundation for that belief or opinion. It is clear from Mr B’s report that to the extent that he is qualified to and has been requested to assess issues of risk, he has not been concerned by that suggested risk nor found any.
What is also clear from Mr B’s report is that the children’s perceptions of their parents are conflicted. It is reported at paragraph 34 that the children did not express any concerns about the different parenting styles of their parents, or for that matter, step‑parents, (each parent’s partner), but did express certain views as to the care arrangements they desired.
The Court has not yet been placed into a position, through testing of evidence or otherwise, to determine what weight, if any, should be placed on the children’s views as reported. I need not specifically address the children’s views or the weight to be attached to them by reference to Re R Children’s Wishes [2000] FamCA 43, Harrison & Woollard (1995) FLC 92-598 and similar authorities, suffice to say that the Orders that the parties have entered into are, at least on their face and as reported by Mr B, consistent with that which has been opined by the children or either of them to Ms E, reflective of the children’s views.
What is clear and stark from Mr B’s report is that the stresses and pressures of ongoing conflict, played out in part through litigation, but only in part, have had a significant impact upon particularly Ms Barnard and her partner, and more importantly, from the Court’s perspective, the children’s best interests being the paramount consideration, (although in this instance the two are well and clearly connected) and the children’s wellbeing.
One of the most significant and concerning aspects of the evidence, arising from interviews with the children conducted by Mr B, is the suggestion by the younger of the children, Y, and corroborated by his elder sister X, that Y is particularly affected by these proceedings and by his parents’ broader conflict of which these proceedings are but one manifestation.
It is suggested by X and then admitted by Y (see paragraphs 27 and 29 respectively of Mr B’s report) that Y takes to bed with him each evening 12 teddy bears. He then orders those bears in size in what is described as a “ritual around his bedtime activity from which he does not deviate”.
This would appear to be and certainly is expressed by Mr B to be a manifestation of this child’s difficulty in coping with the stresses of Court proceedings and his parents’ broader conflict. Notwithstanding those difficulties, the proceedings have continued. The parties have had Mr B’s report about 13 months. That is not an issue to which cross-examination has been directed.
Unacceptable risk
In then turning to the issue of unacceptable risk I make clear that I do not propose, in light of the agreement reached, to specifically deal with and address the matter other from the perspective that:
a)The allegation of unacceptable risk is raised by Mr Souter in his case; and
b)Mr Souter and Ms T have each been cross-examined with respect to those allegations.
I am satisfied that some comment upon the evidence suggested to support those allegations and my satisfaction or lack thereof as to established risk is appropriate.
I have already expressed clearly to the parties and their Counsel, particularly at the conclusion of day two of the matter, my view of the absence of evidence that would establish risk.
In relation to the evidence regarding the suggested risk, what is clear is a manifest focus upon the mother’s partner, Mr A, as a person perceived as representing risk.
Correspondence was forwarded by Mr Souter on 17 May 2012, shortly prior to the commencement of the proceedings on 5 June 2012, proposing that there be Family Dispute Resolution or mediation. That correspondence forwarded on the instructions of Mr Souter suggested that Ms Barnard:
Has two clear options available to her.
(1) Reinstating her undertaking not the leave the children in the sole care of Mr A and to refrain from allowing domestic violence to occur in the presence of the children or allowing any physical discipline of the children by any person; or
(2) For the mother to spend time with the children at the home of her parents [whether absent Mr A or not is unclear but with other appropriate or, at least, perceived appropriate persons present]
I have used the phrase “perceived as appropriate” to describe the tenor of the proposal as a criticism is raised in Mr Souter’s evidence that the maternal grandmother has in the past struck one of the children with a spoon and that was considered to be abusive. It was within the above context that mediation or Family Dispute Resolution was proposed.
At the lunch adjournment on day three the mother was in the course of being cross-examined with respect to her “refusal” to participate in Family Dispute Resolution.
On the basis of the limited parameters presented to her, the mother’s refusal is entirely explicable and appropriate. The clear communication of “positional bargaining” would have ameliorated against the benefit of that process. The terms of or agenda underlying the proposed Family Dispute Resolution were inappropriate. Clearly, Mr Souter intended that the process would stay limited and stay specifically focused upon Ms Barnard and Mr A and their required address of their perceived wrongdoing.
That very focus is described by Mr B in his report (at paragraph 35) in the following terms:
They, [Ms Barnard and Mr A] are not coping with the magnifying glass held up against them as they do not have the same parenting strengths as Mr and Ms T.
I am not satisfied on the evidence available that the use of the phrase, “Do not have the same parenting strengths” is justified. There are certainly differences in parenting, but whether those which are described in relation to Mr Souter are strengths at all times or in all forms, is debateable.
The evidence that has been led by Mr Souter, in particular, in relation to Mr A and his suggested abuse of the children and/or exposure of the children to family violence commences at paragraph 29 of his Affidavit under the heading “Concerns About Mr A”. There are seven specific and enumerated complaints as to behaviours which are suggested to have occurred.
It is also to be noted that a Notice of Abuse has been filed by Mr Souter suggesting both an assault upon the child or children or an assault upon others in the presence of the children and thus both “family violence”, as defined in section 4AB and “abuse” as defined in section 4 of the Act are alleged.
The first complaint is in relation to an event on 17 June 2011 when it is suggested that at her school, X was upset because her mother had spoken to her in a particular fashion. It is suggested that X complained about her mother, “Not being nice and that she did not like Mr A”. That evidence, even to the extent that it is admissible as an exception to the hearsay rule and by reference to section 69ZV of the Act, is not probative.
It certainly does not demonstrate abuse, neglect, family violence or anything else of significant concern. It suggests the child was upset and that her mother “wasn’t being nice”. Certainly there is no suggestion that those views are expressed by X on that occasion as a consequence of exposure to any particular behaviour or being the subject of any behaviour complained of.
At paragraph 31, it is suggested that on 3 August 2011, X, whilst wrapping birthday presents with her brother and her father, suggested that, “Sometimes Y is naughty and Mr A hurts him”. It is suggested that this relates to what is described in the mother’s cross-examination as “the nerf gun incident hurt”, it is suggested, arises from being shot with a nerf ball from a nerf gun, presumably not with high impact or with a projectile that would cause him lasting harm. Y became angered by this and hit his stepfather, Mr A. Mr A is suggested to have kicked Y between the legs which made Y cry. The mother gives a slightly different version of events.
On 29 November 2011, it is suggested that whilst picking up the children from school the mother and her partner had “a big fight.” The mother concedes that she and Mr A had argued after X had gone to bed, X was woken by their raised voices and that the mother then went to X, settled her, and X went back to bed. X is suggested to have gone further and said to her father Mr Souter, that she heard a loud slap and heard her mother say, “Don’t hit me”. Ms Barnard denies that allegation although cross-examination had not completed.
Next, it is suggested that on 15 December 2011, X recounted an incident that was suggested to have occurred whereby whilst Mr A and Ms Barnard were driving the children in a motor vehicle, it would seem with Mr A driving, that the children were in the back seat, apparently playing up. Y was being particularly cheeky, rude and defiant to his mother.
Mr A intervened. Y’s behaviour continued including, as Ms Barnard described in her evidence, “He then become physical with his sister in the backseat”. Mr A is suggested to have pulled over the car and yelled at Y.
X went further in telling her father that Y was slapped by Mr A. It is apparent that Mr Souter does not condone physical chastisement of any child in any form by any person. However, that which is described is, at its highest, even as reported to have been described by X, Y being slapped as chastisement by a person given authority to do so by a parent with parental responsibility. It is not in any fashion an assault. It is reasonable chastisement recognised by law. One need not agree with it, whether from the bench or Mr Souter’s position, but it is not abuse.
On 15 May 2012, it is suggested that during dinner with Mr Souter and his partner, that X said certain things, particularly to, “Mr A got really angry”. It is suggested that there had also been a further fight between the mother and Mr A and that the children had been exposed to that, whether directly or by overhearing the fight and that the mother was sad and quiet after the fight. It is suggested that Mr A had, on that occasion, dropped a heavy salt candle causing a portion of it to chip and that following the fight that the mother left the home.
Ms Barnard had not been cross-examined on these events but they are denied.
Finally, in mid-December it is suggested that X had reported that Mr A had, “Got really grumpy about something, he told mum he was going to cut her head off and stick it between her legs. Mum was upset and crying and went into the bedroom”. Ms T gives evidence of two further events and seeks to adopt those subject to Mr Souter’s evidence, although clearly she was present for only two of the seven statements suggested to have been made by X.
Ms T indicates (paragraph 7 of her Affidavit), that she shares her husband’s concerns about the care of the children by Mr Barnard and by Mr A.
Ms T suggests that on 6 March 2011 and after Mr A and Ms Barnard commenced to cohabit that there was a fight and an argument and that during that fight Y was yelled at by Mr A who had told him to, “Knock it off”.
Finally and in addition to the striking with a wooden spoon suggested to have occurred in 2011 and undertaken by both Ms Barnard and her mother, Ms T suggests that on 8 July 2012 X had said, “Mummy and Mr A are fighting, I don’t know why Mummy likes Mr A”. On a subsequent occasion in reference to those events X is suggested to have said that, “she was scared that Mr A might hurt her Mum, or might get grumpy and angry with her Mum”.
The unacceptable risk test has been discussed at length by the High Court of Australia, Full Court and in single instance decisions. I adopt my discussion of that the test, commencing at paragraph 454 of Deacon & Castle [2013] FCCA 691, for the sake of brevity and as follows:
Unacceptable risk
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
Relevant legal principles
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P. and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary”
I am not satisfied that the evidence that is presented, to the extent that it is in admissible form or probative, establishes an unacceptable risk.
There are a number of elements regarding the complaints of Mr Souter which are concerning.
Firstly, the complaints would appear to suggest that a belief has been formed by Mr Souter and Ms T that a verbal argument, loud or otherwise, between two persons in a relationship which is overheard by children constitutes “domestic violence” and “child abuse”. By and of itself it is neither. It is an argument between two adults.
It is not desirable that children be exposed to arguments between adults, whether between their parents or anybody else. But every child will, at some point in their childhood, be exposed to it.
With respect to the “arguments” I accept, on Ms Barnard’s evidence. There is nothing of probative value which would cause me to not accept her version of the events. She is frank and candid in conceding them and absent other evidence I accept that is all that has occurred.
Being woken by adults arguing would be distressing for a child. X, at that stage being about 10 years of age, being woken by hearing her mother and the mother’s partner yelling at each other, (and I accept that it was so), might be upsetting but it falls well short of “family violence” or “abuse” and yet that is exactly what these children have been led to believe it constitutes and exactly that which it has been advanced in these proceedings as constituting.
The suggestions that Mr A has physically struck Y, if one leaves aside for one moment the suggestion that he kicked Y between the legs during “the nerf gun incident”, would seem to represent nothing more than a step-parent being involved in reasonable parental discipline and chastisement. Mr A has acted with the full authority of a parent as part of the household in which the children have lived in a shared care arrangement, (albeit not an equal shared care arrangement), for some years.
I accept whole-heartedly that Mr Souter does not believe in physical chastisement. That is his right and entitlement. But that which was undertaken by Mr A falls well short of “abuse” by reference to the definitions which I have referred to above.
To constitute abuse it must be established that the child has been assaulted. Assault has the usual meaning that it would have within state criminal law. What is particularly significant in this case is that Mr Souter is a (occupation omitted). He would be fully conversant with that criminal law definition.
The second element of concern is that the evidence presented with respect to those matters is based solely upon representations of children admitted, as indicated, as an exception to the hearsay rule, pursuant to section 69ZV of the Act. It is not proof of the contents of that which the child has said. Mr Souter and Ms T have each indicated that they have accepted the statements as proof positive of the content of the statement as the statements have been made “consistently and without variation”. It would be mischievous for me to treat the statements on that basis.
Division 12A contains exceptions to applicability of the rules of evidence. However section 69ZT(2) of the Act makes clear that evidence admitted through those provisions should be given “the weight, if any, [emphasis added] that it deserves”. In this circumstance it deserves some weight, but certainly not weight sufficient to make a finding of fact that events have occurred as X has described them.
That is so having regard to:
a)The frank and candid admissions made by Ms Barnard and the entirely plausible descriptions that she has given of what has occurred;
b)The fact that, even taken at its highest, that which is related by X does not constitute family violence or abuse; and
c)The fact that these children are so clearly enmeshed in the conflict between their parents, (they describe, not only to Mr B, but sadly, to the Deputy Principal of their high school how clearly and consciously aware they are of their parent’s antipathy, if not hatred, towards each other and in the case of Mr A, clearly the disdain held for him by Mr Souter and Ms T).
Mr and Ms T each perceive Mr A, to some extent, although it might be a slight overstatement, as the embodiment of evil as regards these children. Nothing that Mr A has done can be perceived as redeemable. To that extent Orders were sought by Mr Souter from the commencement of this case to impose restraints upon the mother allowing the children or either of them to be in Mr A’s care without other adults present and requiring that the mother not allow the children to be exposed to family violence and restraining the mother from allowing the children to be subjected to physical discipline by any person.
I make clear that the evidence does not establish that these children have ever been exposed to family violence or ever abused by or in the care of the mother or Mr A.
How parents choose to administer discipline to their children within the confines of societal standards and the criminal law is a matter for them.
It is not the role of this Court to micro-manage parents’ “parenting”. That is a matter for the parent who has time with the child or has the child live with them and, importantly, has parental responsibility for them.
There is much discussion of the “nanny state” imposed or perceived to be imposed by government or Courts. The Court is a branch of executive government.
It is not for the Court to allocate parental responsibility to a parent and then to dictate to them how they will exercise that parental responsibility.
If a parent can be accepted as an appropriate person to exercise parental responsibility (and I am asked to make Orders by consent, which includes a continuation of equal shared parental responsibility which would suggest that the parents and the Independent Children’s Lawyer accept that it is so), then I need not prescribe their behaviour. I either accept that both of these parents are appropriate parents or I can decline to make the agreed Order.
As regards unacceptable risk and for the sake of clarity, the evidence as it has been presented and to the extent that it has been tested, does not satisfy me or come remotely close to satisfying me (by reference to the relevant Briginshaw v Briginshaw (1938) 60 CLR 336 standard, as now codified in section 140 of the Evidence Act 1995) by reference to the evidence that is plausible, probative and admissible, that an event has occurred whereby:
a)The children or either of them have been harmed or abused;
b)Risk to the children has arisen in the past; or
c)Risk is likely or probable in the future.
Whilst I am conscious that there is (and I accept), a genuine concern held by Mr Souter and Ms T as to a risk to the children’s safety at the hands of Mr A but, sadly, extending to whilst the children are in the care of Ms Barnard, (it being inherently accepted by Mr and Ms T that Ms Barnard would allow and permit the children’s exposure and ongoing exposure to such harm) I reject it that there is, objectively, any such risk. The children would also reject that risk.
It is made very clear in the report interviews that Mr B has undertaken with these children, much closer to the events that are complained of than this hearing, that the children do not perceive risk. That is not to suggest that a child’s perception of risk is dispositive of the issue. However, Mr & Ms T make clear that they are responding to X’s concerns and fears.
What is made abundantly clear thereby is that X, in her interview is focused upon the disadvantage she experiences as a result of her parents lack of communication.
At paragraph 28 X is reported as follows:
She expresses with a maturity that would not appear to be heard or shared by the parents, things would be a lot better if everyone talked to each other.
These parents do not talk, have not talked for some little time and their communication, if and when it occurs, is poor, unconstructive and largely by text message.
X indicates also, as an indication for these parents of how they have modelled adult behaviour for her, “I hear different stories from mum and dad and I only believe the part where what they say is in common”.
She states of both sets of parents (the adults in each household) that they can’t talk to each other and explained: “Mum and dad text each other but sometimes mum tells me to pass things on”.
One would not condone the passing of messages between parents through their children, irrespective of their ages, but it is explicable that that this might occur in light of the completely toxic communication that has developed between these parents. How that has come to be so is unclear. There is certainly no event or circumstance pointed to that has caused it so one can only assume it is an underlying pre-morbidity of the parties or each of them, or either of them for that matter.
What is clear from X’s discussion with Mr B is that she wishes to keep the same care arrangement, a shared care arrangement in its broad sense – nine nights with one parent, at that point, her father, and five with her mother – or an equal shared care arrangement.
X does not express to Mr B any concern about her welfare whilst in the care of the mother and/or Mr A. That is not to suggest that a 12 year old child, 11 at the time of the interviews, should be left to assess and determine her own safety. However, to the extent that it is suggested that the child is so distressed that for periods of time, particularly over Christmas 2011/2012, that she refused to and would not attend upon her mother and as she perceived she would be exposed to significant risk if she did, it is difficult to comprehend how that could be so if either parent were listening to their children and their lived experience.
Y presents to Mr B in a distressed fashion. That distress is reported also by his Deputy Principal. This is a little boy for whom, if these parents take anything from these proceedings, might perhaps take and reflect upon the impact of their behaviours upon him including:
a)Their attitudes towards each other and certainly towards Mr A;
b)How they have acted towards each other;
c)How they have acted towards their children;
d)How they discuss and address each other, whether in the presence of the other parent or otherwise, and the impact that is having upon this boy.
Y is a little boy shortly to turn 10 years. Y has developed and explains the obsessive ritual that he goes through each night before he can go to sleep, and from which he does not deviate, in organising his teddy bears in a fashion that makes him feel “safe and secure” as a coping mechanism. I have no doubt, on the evidence that is before me and even to the extent that it has not been fully tested, (Mr Souter’s and Ms T’s has been) that his coping and reaction to stress is entirely unrelated to his relationship with his mother or Mr A, simpliciter.
The behaviour is related to the dynamic between his parents and between the two households. Each of these parents has re-partnered and they are very much united households, particularly in the case of Mr Souter and Ms T, united in their disdain for Mr A and their genuine, although objectively unrealistic and unwarranted belief, as to the danger he represents to these children.
What this little boy does state is that he gets on with both of his step‑parents. Y is reported to say that he considers it fair that he spend equal time with both parents but, in any event, he has expressed more recently, particularly through the staff at his school, his very earnest desire to spend more time with his mother than he presently is and up to and including equal time.
Y’s views are written off, to some extent, by Mr Souter who feels the view is put into the child’s mind by Ms Barnard. However, there is nothing in the evidence to the extent that it has been tested and it has not been as regards the two most important pieces of evidence to which I refer – Mr B and Ms E – to suggest that this is so.
What this little boy does say very clearly is that his parents don’t like each other, “Mum can’t talk to dad, but dad can talk to mum. Maybe it’s because dad gets more nights with us”.
Y adds that his mother does talk to his father if she has to but states that “she doesn’t like to”. Ms Barnard advances her reasons for why that is so but, irrespective of the reasons, it is clear that neither enjoys it.
Y is fully aware that his father has been “worried about Mr A [Mr A]” but does not know how his father feels now. Neither child expresses concern about Mr A as I have already indicated.
The most compelling evidence – and thus the Court is incredibly grateful, as should be these parents, to the Independent Children’s Lawyer for ensuring it is available – is the evidence of the Deputy Principal, Ms E.
Ms E suggests that over the years (how many cannot be determined) both children have experienced high levels of stress at different times that have triggered feelings of anger, frustration and anxiety with both children:
Due to challenges with their family environment. They have often stated they love both mum and dad but just want them not to fight about things.
Notwithstanding, as the expression is want to be used and overused, That “from the mouths of babes comes wisdom”, neither parent has chosen to hear that from their children, perhaps more so in the case of one than the other, but allocation of culpability serves no purpose at this time and would be contrary to the principles in section 69ZN of the Act.
What is also clear from that which Ms E reports of these children is that young Y is reported as saying consistently that he is “angry and sad that no one listens to him”. I accept that this would be not only as to the time arrangement that he seeks but his desire for the conflict, the toxic communication to cease. He is reported and quoted as saying:
I want to have more time with mum. Fifty-fifty, but nobody can help me and no one listens to what I want to happen.
It is suggested that the Deputy Principal assisted him in writing a letter to his parents to express his views. He reports, although it is denied by Mr Souter to have occurred in quite that fashion and I need make no finding as to which version is preferred, that he was told by his father that “it wasn’t going to happen”.
It is suggested that following the writing of the letter and the inability of his parents to negotiate a conclusion of these proceedings, that Y was reported as being more sad and angry and stating “everybody was not listening to him”.
Letters that have been written by this young lad as recently as 14 May, 2014 some six weeks ago, are annexed to Ms E’s material wherein he expresses to his father, moving to me but it would seem possibly not to Mr Souter:
Dear Dad, I love being with you but I love being at mum’s too and I would like it to be half and half. Love from Y.
I discount the expressed desire for an equal time arrangement, not because I do not accept that it is genuine, but because one might perhaps glean from the very beginning of that letter two important factors. Firstly, Y loves both of his parents and he finds it difficult to persuade his parents that this is so and that he desires to be and feels safe in the care of the other. Secondly, Y has no concerns that he wishes to express. He does not, for example, write a letter pleading, “Dear Dad, please rescue me from this arrangement”. It is quite the contrary.
Two further letters are provided wherein Y indicates the things that he loves about his dad and the things he loves about his mum. He suggests in a letter written to his father that he loves his father because he looks after him. That may well have been interpreted as being a mutually exclusive view expressed by the child, i.e. that he does not perceive that his mother does. However, if that perception has been formed, it is entirely erroneous.
The letter does not suggest that such a view has been formed by Y. Y indicates that he loves his father because he cuddles him and he lives him because he helps him. They are things that parents should do and it is a credit to Mr Souter that this child feels thus loved and supported.
However, Y also writes the things he loves about his mum. He loves her because she looks after him also, because she cuddles him and because she helps him. Thus, he sees his parents as equal.
He then also completes a list of the things he likes doing with each of his parents which, notably in the case each, ends with “special times with mum” and “special times with dad”.
One cannot beat sense into parents. One can deliver a judgment which assesses their evidence objectively and does so from a perspective other than a parent and their lived experience.
Each of these parents knows each other much better than I do. They inherently know their children much better than I do. I have never met them and will never parent them. However, it is abundantly clear, as clear as a pikestaff, that these children love both their parents, want to spend time with them both, have a relationship with both of their parents and with both of their step-parents – Mr A and Ms T, persons of real importance in their lives and who have been in their lives for a long time. Yet that simply cannot be accommodated by these parents.
Most importantly both of these children have made abundantly clear to me, through Mr B, to some extent through the evidence of the parties themselves and, certainly, through the evidence of Ms E, that they simply want the conflict to stop.
Sadly, since the commencement of the Family Law Act in January 1976, there has been vast pool of separated parents and their children to study. I describe it as sad because it is reflective of the ever growing body of children, now, approximately half of the children in society, who will never have the lived experienced of living with their parents jointly as their parents are separated, some never having lived together. Also, because it is reflective of the very things that one can now predict with relative certainty as the disadvantages children will face when exposed to high conflict and as so many children have been so exposed.
In this case I am satisfied and it would appear obvious from the evidence as it presently sits, that the time arrangements are of very little importance. These children will maintain a relationship with each of their parents and will hold love and affection for each of their parents in their hearts and souls, irrespective of how their parents behave and irrespective of what their parents, or either of them, give them in return.
The real difficulty in this case, that which is the reality not reflected by debate in relation to time arrangements that might apply to different children of different ages in different circumstances, is that the very things that will impede these children from developing to their full potential, that which the objects and principles in section 60B of the Act require that I consider, is their exposure to harm by their parents. Not exposure to harm by either parent individually or, as has been alleged in Mr Souter’s case, exposure to harm through Mr A, but exposure to harm through the inability of these parents to recognise the damage they are doing to their own children through being unable to set aside their negative views of the other and through their inability to accept that there is good in the other.
These parents are the very people seized with the love, care and nurture of these children and responsibility for them. Yet they seek to discharge those responsibilities through perpetrating their warfare with each other.
That reality is all the more clear and apparent as these children, from any of the evidence objectively presented, such as that of Mr B and Ms E, have maintained a real warmth and meaningful relationship with their mother and for that matter, Mr A, notwithstanding the difficulties put in their way.
I wholeheartedly accept the comment of Mr B, that Ms Barnard and Mr A perceive, and to a large extent correctly so, that they have been living under a magnifying glass. Anything that happens in their household that is reported to Mr Souter or Ms T becomes a real problem.
Increasingly, one is struck with the test that is applied to a separated parent as opposed to that which applies within an intact family. Intact families have fights and problems. They argue with each other. They resolve disputes. They do not always conduct themselves like a model 1950s TV family, all smiles, with mother wearing a neatly pressed dress and diligently working in the kitchen cooking brownies for the children for when they arrive home, delightfully kissing and greeting their father, who then retires to his den before they then jointly engage in loving songs and board games with their children. If that view of the world ever existed, it disappeared a very long time ago. Yet that seems to be the very test that is expected to be applied to separated parents.
For the intact family reality is perceived as “The Brady Bunch” and for separated families “Shameless”. Neither is real and neither is fair as against the other.
I am sure – indeed, the parties both make clear in their evidence – that these parents, when they lived together, had disagreements and arguments. Such arguments are perfectly tolerated prior to separation it would seem, and without even venturing into the contested and not yet fully tested evidence of Ms Barnard as to what she suggests are incidents, albeit limited, of physical assault upon her and coercive and controlling behaviours, falling short of physical violence. I make clear that I do not accept those allegations as proven.
They have not been tested. They are simply allegations. But both of these parents allege that there were difficulties in their relationship, that they fought and argued from time to time. Importantly, Mr Souter does not suggest that by being a party to such arguments that he harmed the children or exposed them to risk.
And yet when the very same thing occurs between Ms Barnard and Mr A, they are having an argument after the children have gone to bed, which is loud enough to wake X and she is upset by it but settled, that is suggested to be a manifestation of risk, perpetration of family violence and the children’s exposure to it. It is utter nonsense.
These parents both possess perfectly good capacity to meet their children’s needs. They simply need to recognise it, each of the other, and their partners need to as well.
Children’s Views
The second issue that arises in these proceedings, beyond that of risk, is the children’s views.
I do not propose to canvas the children’s views in detail but I accept that for these children, having expressed to Mr B and to Ms E, their level of enmeshment in conflict, their knowledge and understanding of it, and the things that particularly create disturbance for their parents, particularly Mr Souter and Ms T, for them to express the views that they do, in my mind, suggests by reference to the authorities to which I have already referred, that the weight that I can attach to these children’s views is far more profound than might otherwise arise.
For a not yet 10 year old to be speaking in the terms that he is reported by Ms E, to be angry and frustrated that no-one listens to him, is entirely explicable. That his parents are not listening to him, perhaps more so Mr Souter and Ms T than Ms Barnard and Mr A, (and to that extent I include all four of them within the generic description of “parent” as they all, to conflate the noun and verb, “parent” these children) is highly disturbing.
This little boy is suggested to be going backwards in every department-emotionally, as already referred to, educationally and behaviourally.
To expect that these children will pass between these households knowing how their parents feel about each other is the real problem. The fact that these parents “parent” differently could and should be a great strength for these children.
Clearly, Ms Barnard is more emotionally fragile. Clearly, she parents differently to Mr A. One has the concrete manifestation of that through an approach towards her acceptance of physical discipline. However, that difference does not make her parenting worse. It does not make it unsettling. It does not make it destabilising. It makes it different.
If these parents were still together, and I have no doubt whatsoever that the very suggestion would make each of them nauseous, these children would have the benefit of the different parenting qualities that they each bring to their children’s lives. They would have a mother who is perhaps more emotional, as is described by Mr Souter, as one of the few things he concede about her benefits, “into craft and art”. She would be able to share that with the children.
These children have a father who is clearly far more structured and disciplined in his own life and, thus, in his routines and arrangements. Mr B, one of the criticisms I have of his report before he even attends for cross‑examination, seeks to adopt that as being, “A more structured arrangement, which offers more security”.
It does nothing of the sort. It simply offers a different arrangement with a different structure to that which Ms Barnard offers.
If the parents were together, those difficulties, those tensions, those “differences”, a word which has unjustly developed such a poor repute in society, would benefit these children. They would get the best of both worlds, as it were. Perhaps these parents might refocus and embrace the value of “difference” rather than perceive and reject it as a negative.
Difference in society brings many benefits. It makes society richer. It adds colour and variety. It gives life and meaning to many circumstances and enriches both the individual and the collective. It certainly brings challenges. But those challenges are largely dispelled by the lights of curiosity, respect, tolerance and acceptance. There is no reason why these children similarly cannot benefit from the differences their parents bring to their lives if their parents allow them to. That is all the more so when these children are the product of their parents.
However, for whatever reason, one or both of the parties have determined that those differences are somehow problematic, indeed, dangerous for the children. Again, they are nothing of the sort. It purely means that these children have two parents whom the children are fully aware each love them, care for them, provide for them, meet their needs, help them and keep them safe.
It is particularly troubling that the differences, such as Mr A pulling up at the roadside and disciplining Y by, possibly, yelling at him, possibly even smacking him, are suggested to be such a problem. It is good parenting. He is teaching this child that he cannot behave as he was, suggested by Ms Barnard to be his rudeness, insolence and defiant to he and, to Mr A, whether his stepparent or simply another adult, that he should show respect for adults and should not physically harm his sister.
These parents need to start to view their children’s needs within the very short window of opportunity they have left to meet them and mould them.
What is clear is that a continuation of this type of conflict between these parents will disadvantage their children.
It would seem Y is more affected but that is purely because he is physically acting out more so, perhaps, than his sister. X, I have no doubt, is just as affected, if not more so, as she has been the conveyor of information. She is the confidant who has no doubt worked out for herself that she can get a reaction to just about anything she says and that reaction will be extreme, leading on one occasion to her not seeing her mother for some few weeks, if not months. On other occasions, statements she has made have clearly being joyously received as it would appear to be whenever she has had titbits of information, which have been misinterpreted as abuse when it is nothing of the sort.
The study of children whose parents are separated and in high conflict would suggest that if this continues then these children will be:
a)More likely to leave school at an early age or not do as well at school as they might. That is particularly starting to play out with Y, whose behaviour and academic performance are becoming increasingly a matter of concern;
b)More likely to engage with drugs and alcohol, the very things that I accept both of these parents do not desire;
c)More likely to be engaged in teenage or young in life pregnancy;
d)More likely to move out of home and live independently at a much earlier age, assuming they can afford to do so.
All of those disadvantages can be readily predicted if behaviour doesn’t change.
These parties have already engaged in a number of family counselling or family therapy services and there has been no change. I have no confidence these Orders will effect change. It is a matter for these parents to be an instrument of change in their own lives and those of their children.
I have no optimism that my expressing my views and opinions, my findings of fact, will persuade one or other party that there need be any change in their behaviours, their attitudes or their opinions. Mr Souter and Ms T made that abundantly clear in the witness box that any finding or conclusion, including those already made by Mr B, that the children have not been abused, will not persuade them.
If the hypervigilance and conflict continues then clause 25 of the Orders that the parties agree by consent will no doubt come into play. There will be a further application for variation, it will come before the Court, as that Order expresses, before me, (subject always to the right of the parties to make application for recusal), and be dealt with.
Further litigation, which all of the evidence, particularly that to which I have referred above from objective experts, already makes clear has damaged and will continue to damage these children, would be a disaster.
Alternatively, the parents can get on with it. They can accept that their children are doing as well as they have allowed them to do. They would be doing better if they allowed them to do better.
Notwithstanding those reservations, I am satisfied that the Orders that the parties propose are, by and large, the best that can be achieved in these circumstances.
The Orders reflect the children’s views, particularly Y’s. He is particularly emotionally distraught by the belief that no‑one is listening to him. This will, at least, give the Independent Children’s Lawyer the joyous job of explaining that he has been listened to and that his plea for an equal time arrangement has come to fruition. I have no confidence whatsoever, though, that this will generally improve his lot in life unless his parents desire that it be so.
Costs
Notwithstanding the consent of the parties to Orders which I will make shortly, there are two costs issues which then arise.
Firstly, an Application for Costs is made by the mother, seeking an Order for costs against the father.
Secondly, an application is made by the Independent Children’s Lawyer for a contribution to costs by the mother.
The Orders proposed by consent provide a limited costs Order with respect to the mother, wherein she will meet one‑half of the costs of family therapy in the sum of $750.
A more extensive Order is included with the consent of the father, that he will in addition pay a sum of $4,250.
The Independent Children’s Lawyer indicates that they have given Mr Souter, as it were, “the benefit of an early plea” represented by his consent and have reduced the amount that they would otherwise seek as against him, which would be one‑half of the costs incurred. That full amount is what is sought with respect to Ms Barnard. One‑half of the Independent Children’s Lawyer’s costs would appear to be $6,386.50 and in addition to one‑half of the therapists fees.
I will deal firstly with the application by the Independent Children’s Lawyer.
Section 117(1) of the Act sets out what is usually referred to as “the general rule”, being that each party to proceedings shall bear his or her costs.
The Independent Children’s Lawyer, of course, (see Bennett & Bennett (1991) FLC 92-191), is not a party. Accordingly, the general rule does not bind them.
Subsection (2) reserves a general discretion in the Court to make an Order for costs when the dual test, (see Re:JJT & Ors; Ex Parte Victorian Legal Aid [1998] FLC 92-812), is satisfied of a justifying circumstance and it being established that it is just and equitable that it be so.
Subsection (2A) sets out a non‑exhaustive list of considerations.
Subsection (3) removes any doubt that the Independent Children’s Lawyer, whilst not a party, may seek an Order for costs.
Subsection (4) precludes the Court making an Order for costs against a party who has received legal aid in the proceedings or who would “suffer financial hardship”.
Subsection (4A) creates certain reservations as to the type of Orders that might be made, particularly when the Department of Family and Community Services or Human Services has intervened. That is not relevant to these proceedings.
Subsection (5) addresses that which had developed as a body of case law prior to the 2006 amendments and precludes the Court having regard to funding arrangements for legal aid commissions who provide representation of children’s interests as a relevant consideration-it having previously been seen as highly relevant.
As regards the Independent Children’s Lawyer’s application, it is resisted.
The mother submits through her Counsel that it would cause her financial hardship. I have little evidence before me but I have no reason to doubt that submitted from the bar table on the mother’s behalf.
The mother, in her sworn evidence, indicates that she owns a block of land. I am advised that it is presently listed for sale and encumbered by mortgage to the (omitted) Bank. In addition, the mother has obtained, I am advised, a personal loan with the (omitted) Bank used to meet legal fees. The mother has also borrowed money privately from both her parents and the parents of Mr A. Thus, after payment out of those debts and costs on sale it is suggested the mother is likely to receive something in the order of $5,000 nett and in total.
It is horrific to consider the amount that has been expended by these parties, individually and collectively, let alone that expended by the Commonwealth.
$14,258 has been funded by Commonwealth and State Governments, respectively, in funding the representation of the children’s interests.
Tens of thousands of dollars in Commonwealth funds have been expended in providing this Court as a tribunal for the parties to ventilate their disdain for each other. In any event, they are not costs that are recoverable. Those of the Independent Children’s Lawyer potentially are. The father has already consented to an Order that he will make a contribution towards one-half of the costs although not the totality of it.
I turn to subsection 2A and deal with each factor separately.
Financial circumstances
They are as above. I cannot have regard to the financial circumstances of the Independent Children's Lawyer as that would be in breach of subsection 5.
Whether any party is in receipt of legal aid
The mother is not.
The conduct of the parties to the proceedings
There is no suggestion that the mother has, in any fashion, been other than prompt and diligent in prosecuting these proceedings or their defence. As is submitted by the mother’s Counsel, she has, in all proceedings that have arisen between the parties, been a Respondent and, to a large extent, particularly by reference to her evidence immediately prior to the lunch adjournment, a largely unwilling participant.
Where the proceedings are necessitated by a failure to comply with an order
Not relevant.
Whether a party has been highly unsuccessful
This is not something which is ever easy to determine in the context of a parenting case.
The people who are most “unsuccessful” in these proceedings are the children. Their needs and interests have been ignored during the course of the proceedings and through their commencement and continuance. Their future inheritance and the funds available to meet their needs, including the potential to enhance their life and lifestyle, have been expended on this litigation. The children have failed miserably and not through any fault or wrongdoing on their part.
As regards whether either party could be described as being wholly unsuccessful I am not satisfied that it could be so. It certainly could not be Ms Barnard. She sought an Order for equal time and she has obtained one. She denied that the children were at rick and she has been successful in resisting the suggestion that they were or are.
Whether a party has made an offer in writing
As regards the Independent Children's Lawyer and the mother, there are no offers of relevance, or at least none of which the Court is aware.
Other facts and circumstances
There is an issue, perhaps, of equity in that the father has already consented to an Order that he will make a contribution beyond that of the mother. Thus, it might be argued that it would be equitable, just or fair for the mother to make an equal contribution.
I do not accept that this could be so nor is it submitted, in fairness, by the Independent Children's Lawyer.
Certainly, the submission put by the mother’s Counsel, that the mother would suffer financial hardship, has some real resonance in these proceedings.
The mother is 42 years of age and after some five years of litigation she finds herself with about $5,000 in capital. $2 years of age and $5,000 to her name. That is an appalling circumstance and is reflective of the real disadvantages and dangers of litigation as a means of dispute resolution.
The mother will now, as a consequence of the Orders I am invited to make, have equal care of these children. The mother runs her own business. The Court was advised that it has, for the last financial year, run at a loss, whatever that might mean as regard income in fact received by the mother. However, Ms Barnard is clearly not a person of significant means or wealth.
In those circumstances I am satisfied that she would suffer financial hardship if she were required to bear a portion of the Independent Children’s Lawyer’s costs. That alone would preclude an Order for costs.
I am not satisfied that there is a justifying circumstance. The issues that have arisen, which have warranted and required the appointment of the Independent Children's Lawyer to represent these children’s interests, have not been an agenda, raised, ventilated or conceded by Ms Barnard. She has, as it were, been the subject of the “magnifying glass” in this case, to a very large extent, the bug beneath it with the sun shining upon her and she has felt its full glare.
In those circumstances I am satisfied:
a)Firstly, that there is no justifying circumstance, and,
b)Secondly, and lest I am wrong above, I am satisfied that the mother would suffer financial hardship and I would thus be precluded by subsection (4) from making an Order; and
c)Finally, and lest I am wrong above, I am satisfied that it would not be just and equitable, when the mother has appropriately resisted the allegations of unacceptable risk levied against her and her partner and has been successful in obtaining the relief that she sought, for an Order for costs to be made.
The mother’s application for costs is dictated by the general rule in subsection (1), she and Mr Souter being the parties to these proceedings. Thus, absent discretion being invoked on the dual test of justification and justice and equity, each party would pay their own costs.
I am required to deal with largely the same considerations as regards the mother’s application for costs.
Mr Souter’s financial circumstances are not known to me. He is employed as a (occupation omitted). (occupation omitted) are not well or significantly paid. Indeed, in light of the duties that they perform their pay is, perhaps, well short of the mark. However, it is as it is.
There is no Financial Statement filed by the parties or either of them.
Mr Souter will have the care of these children on an equal basis henceforth and has had their primary care, albeit that the parties have operated an unequal but shared care arrangement for their children for some little time.
Mr Souter has not been in receipt of grant of legal aid.
As regards the conduct of the proceedings, it is suggested that the proceedings have been entirely unnecessary. To that end, there is some little merit to that submission. However, the test that I must be satisfied is met is that there is a justifying circumstance for departure from the general principle.
Whilst Mr Souter’s allegations of unacceptable risk have not found favour, it is not to suggest that there are no other significant and, indeed, far more profound issues at play.
The concerns with respect to the children’s general welfare and wellbeing are such that the matter, inevitably, was going to return to this Court. These proceedings are only a manifestation of the conflict between these parties.
In conducting the proceedings, Mr Souter has been diligent. He has done what is required of him. He has filed his material. The matter has progressed as quickly as was possible in the circumstances, being heard on a regional circuit.
The proceedings were not necessitated by the failure of a party to comply with an Order.
Mr Souter has not been wholly unsuccessful. Again, there is difficulty in gauging what that phrase could possibly mean in parenting proceedings.
Mr Souter has been unsuccessful in satisfying the Court, as tribunal of fact, to adopt the same view as him with respect to past events. But there is little, if any, controversy as to those past events.
Past events are reflective of, indeed the entire proceedings are reflective of, the neurosis that has developed around these parties, their children and their respective parenting. If the parties were able to communicate, they would do so and these proceedings would not have arisen.
The fact that Mr Souter has commenced the proceedings is not reflective that he has driven the agenda any more than would be appropriate in light of that which he has raised in the proceedings. What it reflects is that the parties are simply unable to see good in each other or cooperative or communicate effectively.
As regards offers in writing, it is clear, by reference to Exhibit R1 and Exhibit R2, that offers have been made.
In August 2012, an offer was made, if it might be so described, whereby Mr Souter was put on notice that if he was wholly unsuccessful at trial that a costs Order would be sought. He has not been wholly unsuccessful. He has not obtained the relief that he sought. He has not resisted the mother’s claim for equal time. However, significant issues of real importance have been ventilated. Sadly, I am not satisfied that it will be the end of it for these parties but the issues were significant.
The Orders that the parties have entered into affect a variation of their arrangements in significant fashion and there are pages of detail. They needed address somehow.
By correspondence 19 June 2013, a proposal was put whereby Ms Barnard would withdraw her application for week about time and revert to the then existing arrangement. That was not accepted, clearly, and the application has been pressed. However, again, I am not satisfied that Mr Souter has been wholly unsuccessful.
In light of the above, I am not satisfied that there is a justifying circumstance for departure from the general rule. These proceedings have been created through the inability of these parties, entrenched, chronic and highly regrettable, to communicate with each other. They have not been generated through mischievous purpose. It is not suggested that it is so.
No application is made pursuant to section 118 of the Act to declare Mr Souter a vexatious or frivolous litigant and preclude future proceedings. Indeed, there is no jurisdiction in this Court to preclude future proceedings, absent such a finding and it is clearly not available in these proceedings. There have been significant issues.
In all of those circumstances and absent a finding of justifying circumstance the Court has no jurisdiction to make an Order for costs. Lest I am wrong in that regard, I am satisfied that it would not be just and equitable.
Justice and equity is a broad discretion and a broad concept in parenting proceedings. It would include and incorporate the principles in section 69ZN of the Act. I can think of no better way to poison the future, albeit limited prospects of success, (and including within “success” an absence of future litigation and an enhancement of cooperation and communication between these parties), than to make an Order for costs.
Mr Souter has prosecuted his application diligently and appropriately. That it has not found favour is not that which Parliament intended by enacting section 117 of the Act. Indeed, it is the very reverse. Parliament intended that parents would be able to litigate genuine concerns and disputes and I have been conscious to highlight, throughout my reasons, my acceptance that Mr Souter and Ms Barnard are genuine in the positions they advance. They are, in important respects, simply misguided or blinded.
That is not to suggest that a party can mischievous or labouring under some misapprehension or delusion, prosecute a position and expect that it is without consequence, but there has been a consequence. Mr Souter has incurred significant cost and significant disadvantage as regards the outcome of the proceedings, or at least he will perceive it as so.
Accordingly I am not satisfied that it would be just and equitable to make an Order, even if there were justifying circumstance.
I certify that the preceding two hundred and twenty-five (225) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 17 April 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Consent
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Procedural Fairness
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Injunction
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Appeal
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Remedies
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