SULLIVAN & KENDALL (No.2)
[2016] FCCA 254
•5 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SULLIVAN & KENDALL (No.2) | [2016] FCCA 254 |
| Catchwords: COSTS – Costs of the Independent Children’s Lawyer – where no order for costs made against the mother for reasons set out in Family Law Act 1975 (Cth), s.117(4)(b) – where father absent from proceedings and not on notice of any costs application. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 117 Federal Circuit Court Rules 2001, r.13.03C |
| Cases cited: Sullivan & Kendall [2015] FCCA 2467 |
| Applicant: | MS SULLIVAN |
| Respondent: | MR KENDALL |
| File Number: | SYC 6929 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 5 February 2016 |
| Date of Last Submission: | 5 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2016 |
REPRESENTATION
| Applicant: | In person (with the aid of an Interpreter) |
| Respondent: | No appearance |
| Independent Children's Lawyer: | Mr Bell |
| Solicitors for the Independent Children's Lawyer: | Stephen W. Bell & Associates |
ORDERS
All earlier parenting Orders are discharged.
The Applicant mother is to have sole parental responsibility for the children X born on (omitted) 2006 and Y born (omitted) 2009.
The children X and Y are to live with the mother.
The Respondent father is to spend time with the children X and Y as agreed between the parties at the discretion of the mother.
Within one (1) month from the date of these Orders the father is to pay to the mother the sum of $400.00 for supervisor’s fees referred to in Order (4) made on 14 September 2015.
The parties are restrained by injunction from abusing or criticising or speaking in an offensive manner to each other in the presence or hearing of the children or either of them.
Each of them MS SULLIVAN and MR KENDALL is restrained by injunction from removing or attempting to remove or causing or permitting the removal of X a male born (omitted) 2006 and Y a male born (omitted) 2009 from the Commonwealth of Australia on any date prior to 1 January 2017.
IT IS REQUESTED THAT the Australian Federal Police give effect to the immediately preceding Order by placing the names of the said children X and Y on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until 31 December 2016.
Upon the expiration of the period referred to in the immediately preceding Order and subject to any further Order of a Court of competent jurisdiction the Australian Federal Police will cause the removal of the names of the said children from the Watch List.
The mother MS SULLIVAN is permitted to remove the children X a male born (omitted) 2006 and Y a male born (omitted) 2009 from the Commonwealth of Australia from and after 1 January 2017.
The Independent Children’s Lawyer is discharged.
No order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Sullivan & Kendall (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6929 of 2014
| MS SULLIVAN |
Applicant
And
| MR KENDALL |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the mother of two boys aged 9 years and 6 years seeking final parenting orders. The two children live with the mother and have been spending supervised time with their father, although the father has now ceased seeing them. He has indicated to the mother that he now seeks no time with the children until they reach the age of 18.
The father was legally represented but his lawyer filed a Notice of Withdrawal as Lawyer on 27 January 2016.
Orders Sought
The orders sought by the mother are set out in her Amended Initiating Application filed on 17 November 2015. Essentially, the mother seeks orders that:
a)She is to have sole parental responsibility for the children;
b)The children are to live with her;
c)The father will not see the children until they attain the age of 18 years;
d)The father will divorce from the mother and will divide the matrimonial property;
e)The father will pay child support including arrears of $14,820.73;
f)The father will reimburse the mother an outstanding fee of $400.00 for a supervisor of the father’s time with the children; and
g)The children’s names will remain on the Family Law Watch List maintained by the Australian Federal Police.
The mother was previously represented but no longer has the benefit of that representation. She has used her best endeavours to prepare her Amended Application which clearly contains some matters which are beyond the jurisdiction of the Court. The Independent Children’s Lawyer, Mr Bell, has very kindly given her some advice about the jurisdictional difficulties of her Amended Application.
The Independent Children’s Lawyer has prepared a Case Outline in which, amongst other things, he suggests a set of parenting orders for the consideration of the Court. The mother has told the Court that she adopts those suggested orders.
The ICL suggests that the Court should make orders:
1. That the applicant mother is to have sole parental responsibility of the children X born (omitted) 2006 and Y born (omitted) 2009.
2. That the children live with the applicant mother.
3. That the respondent father spend time with the children as agreed between the parties.
4. That the respondent father pay to the mother the sum of $400 for each time the father failed to attend the designated place to commence time with the children for 20 September 2015.
The father has not filed any documents in reply to the mother’s Amended Application, nor has he attended Court.
Background
The father was born on (omitted) 1969. He is 46 years old.
The mother was born on (omitted) 1972. She is 43 years old.
The parties commenced living together on (omitted) 2005 and were married on (omitted) 2006.
There are two children of the marriage, both boys. X was born on (omitted) 2006. He is now 9 years and 6 months old. Y was born on (omitted) 2009. He is now 6 years and 3 months old.
The parties separated on 13 May 2014 and have lived separately and apart ever since. The children have remained living with their mother.
The mother commenced proceedings by filing an Application for injunctive orders restraining the father from removing the children from Australia on 4 November 2014. The Application was returnable on 2 February 2015, on which date both parties were represented by solicitors.
The parties entered into interim Consent Orders on 2 February 2015, providing that, until further order:
a)The father agreed not to take the children out of Australia;
b)The mother would file an Application for parenting orders within six weeks;
c)The parties would attend a Child Dispute Conference with a Family Consultant;
d)The father would spend time with the children:
i)Between the hours of 3:00 pm and 6:30 pm on Tuesdays and Thursdays; and
ii)From 2:00 pm on Saturday in each week until 2:00 pm on Sunday.
The Court noted that:
a)The father agreed to continue to pay child support for the children in the sum of $1,300.00[1];
b)The father was currently living and working in the (country omitted) but would return for a visit on 4 February; and
c)The father intended to communicate with the children by Skype or similar video link.
[1] Presumably per month
On 8 April 2015 the Court made an order appointing an Independent Children’s Lawyer.
On 24 August 2015 the Court heard an Application in a Case filed by the Applicant on 30 March 2015, seeking to vary the earlier parenting orders that had been made by consent on 2 February 2015. A decision was handed down on 14 September 2015[2]. Orders were made providing that:
[2] Sullivan & Kendall [2015] FCCA 2467
a)The mother was to have sole parental responsibility for the children;
b)The children were to live with the mother;
c)The children were to spend time with the father from 2:00 pm to 7:00 pm each Sunday under supervision, the fees to be paid by the father;
d)Changeover was to be at (omitted) Railway Station;
e)When the father was not in Australia he was to communicate with the children by Skype;
f)The parties were restrained from abusing or criticising each other in the presence or hearing of the children;
g)The parties were restrained by injunction from removing the children from Australia;
h)The children’s names were to be placed on the Family Law Watch List maintained by the Australian Federal Police; and
i)The parties were to attend interviews for the preparation of a Family Report.
On 17 November 2015 the mother filed her Amended Application, returnable on 2 February 2016.
The Application was listed for an undefended final hearing on Friday 5 February 2016.
Evidence and Submissions
The mother attended Court with the assistance of an interpreter in the (nationality omitted) Language, Dr G. She relied on her affidavit of 6 October 2015.
The father did not attend Court, nor was he represented by a lawyer. In the circumstances, it was considered appropriate to proceed with the hearing generally under the provisions of Rule 13.03C. I am satisfied from the evidence of Mr Bell that the father has properly been made aware of the proceedings.
The Independent Children’s Lawyer prepared a Case Outline Document and made an oral submission to the Court, supporting the mother’s Application.
The mother gave short oral evidence. She told the Court that at some stage next year she would like to take the children for a holiday out of Australia to (country omitted) to see her parents.
Mr Bell submitted that the primary considerations under s.60CC(2) of the Act were highly relevant.
Whilst the Court should consider the benefit to the children of having a meaningful relationship with both of their parents (s.60CC(2)(a)), the father’s relationship with the children had been disrupted by his illness (a brain tumour) and long periods overseas. He has failed to take the opportunity to re-establish his relationship with the children since the Orders were made on 14 September 2015.
The Court must consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s.60CC(2)(b)). Mr Bell submitted that the mother had made allegations of domestic violence by the father during the relationship and against the children. Although no Apprehended Domestic Violence Orders have been obtained, there have been allegations by the mother that the father had acted inappropriately with the children, for example shaking them upside down at the top of stairs.
Mr Bell also submitted that the mother has been the primary carer of the children. The father has spent considerable time overseas without the mother and children and has had limited opportunities or taken limited opportunities for parenting the children. He has spent very little time with the children since February 2015.
Further, it was submitted that the mother has expressed some doubts about the father’s ability to take on the responsibilities of parenting, to some extent due to his illness. The father is yet to prove that he can be a responsible parent.
Applications for parenting orders
When a Court is considering an application for parenting orders, the Court must have regard to various sections contained in Part VII of the Family Law Act 1975 (Cth). In particular, the Court should consider the provisions of:
a)Section 60B of the Act, which sets out the objects and principles of Part VII;
b)Section 60CA, which provides that the best interests of the child or children concerned must be the paramount consideration;
c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;
d)Section 61DA, which considers the presumption that it is in the best interests of a child for the child’s parent to have equal shared parental responsibility for the child and the circumstances in which the presumption does not apply or would be revoked; and
e)Section 65DAA, which only applies if the Court makes an order providing for equal shared parental responsibility, and requires the Court to consider equal time or substantial and significant time with each parent.
All of those matters have been considered where they are relevant.
Conclusions
I have considered the mother’s evidence. I have also considered the helpful and pertinent submissions of the Independent Children’s Lawyer, with which I agree.
Mr Bell raised a query about the jurisdiction of the Court to make an order requiring the father to reimburse the mother for the amount of $400.00 for the costs of the supervisor. The mother gave evidence that the designated supervisor, Ms T, had been unable to attend to supervise the children’s time with their father, as she had to travel to (country omitted), so she had to arrange for another proper supervisor at short notice. The father did not attend to spend time with the children on 20 September.
In my view, the jurisdiction arises from the Consent Orders made on 14 September 2015.
I have decided to discharge all previous parenting Orders and produce one set of Orders that covers the arrangements for the children.
Costs of the Independent Children’s Lawyer
It is open to the Court under s.117(3) of the Family Law Act to make an order that each party bears, in such proportion as the Court considers just, the costs of the Independent Children’s Lawyer in respect of the proceedings. There are circumstances, however, where the Court is precluded from making an order for costs against a party in favour of the ICL, and they are set out in s.117(4).
As the father has not attended Court and has not been put on notice of any application for costs on behalf of the ICL, it would be a denial of natural justice for an order to be made in his absence. Mr Bell, very properly, raised the question of the mother’s financial circumstances, noting that it is the mother’s evidence that the child support payments were currently in arrears to the extent of some $18,096.00 and that her apparent strained financial circumstances have meant that she is no longer in a position to afford legal representation.
The ICL seeks an order for costs against the mother, as he is obliged to do. The mother, to her credit, expressed a concern that if the Court did not make an order for costs in Mr Bell’s favour he would be out of pocket, but her fears have been put to rest on that score.
In my view, in the particular circumstances of this case, I consider that the mother would suffer financial hardship if she had to bear a proportion of the costs of the Independent Children’s Lawyer (s.117(4)(b)).
I should make it quite clear that, in declining to make an order for the costs of the Independent Children’s Lawyer, I am offering no criticism of the way in which he has discharged his duties in this case. The reverse is true; Mr Bell has acted in a responsible and professional manner throughout this case and the Court expresses its appreciation of his assistance.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 11 February 2016
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Costs
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Jurisdiction
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