SULLIVAN & TYLER
[2014] FamCA 448
FAMILY COURT OF AUSTRALIA
| SULLIVAN & TYLER | [2014] FamCA 448 |
| FAMILY LAW – PROCEDURAL - Application for stay of final parenting orders pending determination of appeal – where that application was dismissed. FAMILY LAW - VEXATIOUS PROCEEDINGS – where the father seeks an injunction pursuant to s 118(1)(c) pending the finalisation of the mother’s appeal –where previous s 118 order was in place but was discharged by final orders – where an order requiring the mother to obtain leave of court before instituting interim parenting proceedings pending determination of her appeal is made. FAMILY LAW - COSTS - Application by the father for costs in the sum of $2500 pursuant to s 117 – where the mother was wholly unsuccessful in her application – where the application is repetitive of previously determined issues – where the applicant is impecunious – where the circumstances justify an order for costs against the mother on a party/party basis for a specific amount. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Sullivan & Tyler(No. 4) [2013] FamCAFC 175 |
| APPLICANT: | Ms Sullivan |
| RESPONDENT: | Mr Tyler |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Christaki |
| FILE NUMBER: | SYC | 889 | of | 2008 |
| DATE DELIVERED: | 20 June 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 12 June 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | KDB Holmes Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Orders made 12.6.14
The mother’s application filed 9 May 2014 is dismissed. I reserve my reasons for doing so.
I reserved my decision in respect of the father’s application pursuant to s 118(1)(c) Family Law Act 1975 (Cth) and his costs application.
FURTHER ORDERS
Until the conclusion of the mother’s appeal against final parenting orders made on the 26 March 2014 and any appeal against any order made by the Full Court in that appeal, the mother is restrained pursuant to s 118(1)(c) of the Family Law Act 1975 (Cth) from filing any application for parenting orders in relation to D Tyler born … 2004 without the leave of a judge of the Family Court of Australia.
The mother pay the father’s costs in respect of the applications before the court on 12 June 2014 assessed in the sum of $1,125.00.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 889 of 2008
| Ms Sullivan |
Applicant
And
| Mr Tyler |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The mother applied for a stay of final parenting orders made on the 26 March 2014. The mother also made an application for variation of the previous interim order so that the child has face to face time with her, pending determination of the appeal. On 12 June 2014 all the mother’s applications were dismissed. I reserved my reasons for doing so and now provide them.
The father seeks an interim order pursuant to s 118(1)(c) of the Family Law Act 1975 (Cth) “the Act” and a costs order in the sum of $2,500 against the mother in respect of the mother’s application for a stay and interim parenting orders.
MATERIAL CONSIDERED
The documents considered at this hearing are:
3.1.Notice of Appeal filed 23 April 2014;
3.2.Final Parenting Judgment of 26 March 2014 (“the Reasons”);
3.3.Application in a Case Stay of Orders 26 March 2014 filed 9 May 2014;
3.4.Mother’s Affidavit Stay of Orders 26 March 2014 filed 9 May 2014;
3.5.Mother’s Submissions dated 12 June 2014;
3.6.Father’s Submissions/Case Argument dated 6 June 2014;
3.7.Final Ancillary Judgment of 26 March 2014;
3.8.Orders made on 18 August 2011, 22 November 2011, 30 January 2013 and 14 August 2013;
3.9.Reasons of the Full Court of 1 November 2013;
3.10.Reasons for Judgment 19 April 2013 (where an interim order was made pursuant to s 118(1)(c) of the Act).
THE STAY APPLICATION
The orders sought by the mother in “Application in a Case Stay of Orders 26 March 2014” filed 9 May 2014 are as follows:
1. Orders 26 March 2014 to be stayed until Appeal EA47 of 2014 has been determined.
2. I am ordered time with [the child] at my [premises] and the local neighbourhood for 3 hours each week supervised by my long time friend [Ms AP] who has known [the child] since birth.
3. Alternatively [the father] is ordered to complete enrolment forms for attendance at the [CC] Contact Service ...
4. [The father] is to facilitate skype/phone calls between [the child] and [the mother] twice per week between 5.30 and 6.30pm on Mondays and Thursdays.
5. Seeking an urgent and expedited hearing.
In relation to order 5, the hearing of the stay application has been listed expeditiously.
The father and the Independent Children's Lawyer oppose the mother’s application.
The effect of a stay order if granted
In the event that an order is made staying the orders of 26 March 2014, there will be a revival of the following interim orders:
7.1.Order 2 made 30 January 2013, providing that the father have sole parental responsibility in respect of all long term issues relating to the child.
7.2.Order 2.1 of the orders of 18 August 2011, allowing the child to spend two hours each week, or such longer periods as the parties agree in writing, at S Contact Centre. It is not controversial that that order has never been able to be implemented.
7.3.Order 1.2 made 22 November 2011 providing that the child spend time with his mother for two hours each week, or such longer period as the C Contact Centre may permit. As indicated in the Reasons at [118], C Contact Centre terminated its services on the 24 July 2013. The last occasion that the child has had face to face time with his mother was 13 July 2013.
7.4.Order 2 of 22 November 2011 whereby the child have telephone communication with his mother each Monday and Wednesday between 5:00pm and 6:30pm upon the conditions set out in that order.
7.5.Order 19 April 2013 pursuant to s118(1)(c) of the Act which in effect restrained the mother from instituting interim proceedings for parenting orders in relation to the child without leave. When the final orders were made on 26 March 2014 that interim order was discharged.
A stay of the final orders would have the effect of suspending the order restraining the mother from contacting the child’s school and medical professionals. A stay of the final orders would also have the effect of suspending order 19.2 which provides that the father obtain advice and the involvement of the child’s treating health professions, and follow all recommendations from those health professionals, so as to develop and implement a plan to prepare the child to deal with discovering information about himself in relation to these or any other Court proceedings and/or allegations involving himself and/or his parents. That, however, may not be of practical importance given that the father would have interim sole parental responsibility under the order of 30 January 2013 if that order was revived by the granting of the stay.
The mother also says the stay would revive notations made on 14 August 2013, after the mother’s application for unsupervised time was dismissed, which notation is in the following terms:
I note that during the hearing, counsel for the Independent Children’s Lawyer raised the possibility of alternate contact centres. If either party or the Independent Children’s Lawyer wishes to make an application that the child spend supervised time with the mother, that application may be listed before me expeditiously.
No application was made prior to the final hearing, expeditiously or otherwise, for any alternate contact centre to be nominated, although the mother now seeks to make that application if a stay is granted.
The law applicable to a stay of a parenting order pending an appeal
The Full Court in EJK & TSL (No. 2) (2006) 35 Fam LR 590 quoted, with approval, Nygh J’s comments in Clemett and Clemett (1981) FLC 91-013 and Kirby J’s comments in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 in the following terms:
16. It facilitates our discussion to set out the principles espoused in Clemett and Clemett (supra) to which we have already referred. At 76,175 Nygh J said:
‘In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld.’
17. Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) was subject to ‘the best interests test’, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J said:
‘In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.’
In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court said at paragraph 18:
The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia vMyer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings ConstructionLimited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
·the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
·a person who has obtained a judgment is entitled to the benefit of that judgment;
·a person who has obtained a judgment is entitled to presume the judgment is correct;
·the mere filing of an appeal is insufficient to grant a stay;
·the bona fides of the applicant;
·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
·the desirability of limiting the frequency of any change in a child’s living arrangements;
·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
·the best interests of the child the subject of the proceedings are a significant consideration.
Is the appeal based on substantial grounds and whether the applicant has an arguable case?
I am required to consider whether or not the mother has an arguable case on appeal based upon substantial grounds, and some preliminary assessment of the strength of the proposed appeal is appropriate.
The Full Court pointed out in Aldridge & Keaton (stay appeal) [2009] FamCAFC 106, the father is entitled to presume that the judgment is correct and the mere filing of an appeal is insufficient to grant a stay.
As the Reasons make clear, the mother believes that she is right. Whilst the mother objected to the use of the phrase, her beliefs were and are “unshakeable”. I have also made findings in the Reasons about the mother’s mental status. Given those findings, I accept the mother genuinely believes that findings made in the Reasons are wrong.
The mother filed a Notice of Appeal on 23 April 2014 setting out 20 grounds of appeal. The mother’s affidavit in support further amplifies each ground. It is likely the mother will amend her Notice of Appeal. For example, ground 5 of the Notice of Appeal filed 23 April 2014 asserts “Error of fact in stating that I asserted that Watts J had a financial relationship with Dr [R]”. The mother did make that assertion during the hearing. The mother now makes reference to that part of ground 5 in her affidavit filed 9 May and it may be the mother no longer asserts that that was an error of fact in the Reasons.
Much of what is in the grounds of appeal seeks to reargue the case that the mother presented at the hearing. Many of the grounds are an assertion by the mother that I should have accepted her view of particular evidence rather than an alternate view. The mother challenges findings in relation to Dr R’s expertise and Emeritus Professor F’s impartiality, suggesting that those findings were “wrongful”. The mother’s grounds complain that I wrongly took into account or placed inappropriate weight upon certain evidence, or alternatively, I did not sufficiently consider other evidence that related to a particular matter.
Some complaints are clearly unsustainable. For example, the mother’s reference to a “failure” by Dr R to provide any written report on the more complex recordings glosses over the findings about the non-disclosure of and the timing of the production of those recordings by the mother.
In respect to a number of grounds, the mother in her affidavit seeks to introduce evidence that was not before me during the hearing. The mother seeks to develop arguments in a way that they were not developed at the hearing. Some of what is in the mother’s affidavit mixes new facts with the development of new argument. In hearing the appeal, the Full Court will consider to what extent the mother has introduced new facts and developed new arguments which were not made at the hearing, and indeed, whether or not fresh evidence is allowed.
The mother incorrectly categorises the nature of the observations I made upon listening to the tapes which the mother provided at the end of the trial.
The mother asserted that the Reasons, which span 195 pages, contain some factual errors. I shall comment upon several of the alleged errors upon which the mother has particularly focussed.
In oral submissions the mother reiterated her assertion in her Grounds of Appeal that I had said in the Reasons that she had made a statement to the police when she had not made a statement. The mother has taken my general use of the word “statement” in the Reasons (that is something the mother said to a police officer) and has interpreted its meaning as a formal written statement to the police. The context of the use of the word in the Reasons does not suggest such a construction. The mother asserts by way of re-argument of her case, that a DoCS case worker fabricated the file note [91]. Apart from the mother’s denial, there is no objective evidence that would indicate that the note was fabricated.
The mother during oral submissions asserted that I had said in the Reasons that the only opportunity that the father had to sexually abuse the child was during her three trips overseas. I challenged the mother about her assertion that I had used the word “only”. The mother amended her submission to one that was consistent with ground 11 in her Notice of Appeal which was in the following terms:
Watts J erred in fact stating that ‘Prior to December 2007 the primary opportunity the father had to sexually abuse [the child] were the three occasions when the mother left Sydney in 2007’. [The father] agreed that he spent significant time alone with [the child] nearly every day. Watts J has failed to accurately identify the circumstantial evidence in this case.
The mother seems to concentrate on the words “primary opportunity” to develop an argument that I was unaware of other opportunities the father had to sexually abuse the child. I discuss those other opportunities at [192] to [198] of the Reasons. It is unclear to me whether the mother is now asserting that it was her position during the hearing that the activities the mother believes the child was exposed to, involving a paedophile group, were likely to have happened in an afternoon prior to her getting home from work.
At [61] of her affidavit of 9 May 2014 the mother says I misrepresented her version of an alleged disclosure the child made at [656] of the Reasons where she says I inaccurately wrote “[The child] said to me, ‘Put your finger inside’, I asked ‘Inside what?, [the child] replied, ‘As if your playing a game inside my bottom’.
The mother is actually referring to paragraph [655] of the Reasons and not [656].
What is recorded by me at [655] is how the mother read [72] of her 2008 affidavit to Dr W when she was cross examining him in the District Court.
The electronic version of the transcript of the mother’s cross examination of Dr W (Exhibit 75) on 29 October 2013 states at page 516 line 40:
Q. At paragraph 72, I said,
“[The child] went to the bathroom, I wiped his bottom with a moist wipe and a bit of nappy cream on it. [The child] said to me, ‘Put your finger inside’. I asked, ‘Inside what?’ [The child] replied, ‘As if you were playing a game inside my bottom.’”.
The paper copy (exhibit 66) has hand marked corrections (I infer it is the mother’s handwriting) as follows:
Q. At paragraph 72, I said,
“[The child] went to the bathroom, I wiped his bottom with a moist wipe and a bit of nappy cream on it. [The child] said to me, ‘Put your finger inside’. I asked, ‘Inside what?’ [the child] replied, “As if he were playing a game”, “inside my bottom”.
There are still quotation marks around the phrase “As if he were playing a game”.
I accept that what the mother read to Dr W during cross examination in the District Court is not precisely what is set out in [72] of her 2008 affidavit. The version in the District Court transcript has been also quoted in paragraph [292] of the Reasons as what was in [72] of the mother’s 2008 affidavit and I accept it was inaccurate to do so. Nothing of significance however turns on that inaccuracy.
In relation to other differences in the mother’s statements about what the child said, the mother seeks to explain those differences by saying that they were statements written by her lawyers and that statements documented in her diary have never changed. As the Reasons reveal, the mother did not produce her diaries, notwithstanding a direction to do so.
In the event that the mother successfully establishes some or all of the factual errors she asserts, the mother still needs to establish the errors are likely to have altered major findings.
The mother asserts that the judgment uses derogatory and emotive terms in relation to the mother’s behaviour, her credibility and her character and that this is evidence of bias against her. I do not accept the mother’s categorisation of the language used. The use of language in the Reasons which is not neutral does not found a basis for appeal.
The mother asserts procedural unfairness without reference to what is said in the Reasons about the course of the trial.
Conclusion in respect of whether there are substantial grounds for appeal
The mother has set out the matters which she seeks to argue on appeal. I agree with Counsel for the Independent Children’s Lawyer that upon a preliminary assessment, the strength of the mother’s proposed appeal is not strong.
Can the appeal be dealt with within a reasonable time?
At [104] of her affidavit, the mother indicates that she will be making an application to expedite her appeal EA 47 of 2014 by the end of May 2014. The mother has done that and the hearing for expedition is listed for 24 June 2014 before the Full Court. I am unable to predict if expedition will be granted or, if granted, when the hearing and determination is likely.
Are the present circumstances for the child satisfactory?
The mother asserts that the child’s present circumstances are not satisfactory. The mother asserts that the child has been left in an intolerable situation because he is in the care of his father who has sexually abused him. I have found in the Reasons that there is no unacceptable risk that that is so and that the child’s current placement is satisfactory. The mother would argue that the child’s lack of contact with her is unsatisfactory. Again I have set out in the Reasons why an order has been made for no face to face contact between the child and his mother and for no electronic communication unless the child requests it.
Does a refusal of a stay render a successful appeal nugatory?
The child’s relationship with his mother is set out in the Reasons. The bond between the child and his mother is sufficiently strong to enable it to be re-activated should the appeal be successful and either the Full Court re-exercise their discretion to provide face to face time between the mother and the child or on remission for a re-hearing, a new trial judge did that. I find that a refusal of a stay does not render nugatory a successful appeal by the mother.
Would a stay order, without more, be nugatory?
Another consideration is what would happen if a stay was granted. As set out above, in those circumstances, the prior interim orders would revive. It is not controversial that the prior interim orders in relation to face to face time between the child and his mother became inoperative on 13 July 2013 in circumstances described in the Reasons. The mother has not had face to face time with the child since that time.
An order granting a stay by itself, without a further interim hearing, will not do anything to provide the mother with the remedy that she is actually seeking, namely, the child spending time with her pending the outcome of her appeal. It is not clear that any fresh interim hearing would produce a different outcome. In any further interim hearing, the findings made in the Reasons would need to be given weight.
I acknowledged that a stay, without more, would restore electronic communication between the child and his mother.
Is there any hardship for either parent as compared to the other in granting or not granting the stay?
The father’s primary position is for the mother to have no time face to face with the child. That position was based upon Dr R’s recommendation. The hardship to the father in granting the stay is to unsettle a situation that has now been in place since 13 July 2013 with any consequence or inconvenience that might be occasioned to the father arising from that disturbance, particularly as it related to dealing with the child’s reaction to that disturbance.
The hardship to the mother is that she is currently not having any face to face time with the child.
The child’s best interests
Even if the child’s best interests are not a paramount consideration in the stay application, they are a very significant consideration. I have made findings in the Reasons, which have led to a conclusion consistent with Dr R’s recommendations that the child’s best interests are served by not having face to face time with his mother.
There is a desirability of limiting the frequency of any change in a child’s living arrangements. Should the mother’s appeal ultimately fail, it would be unsettling and upsetting for the child if face to face time with his mother was to be reintroduced only then to have that time terminated again. The primary risk to the child arises from the mental disorder with which I have found the mother suffers. The mother seeks a stay of all orders including orders that would prepare the child to deal with the knowledge that he will come by as a result of the publicity and large electronic footprint that his story has generated. The father’s ability to parent the child and to work with professionals to assist the child with what faces him in the future would be compromised if a stay was granted. The mother has little insight as to the effect of the continuing litigation upon the child and, as was anticipated in the Reasons, is not able to look at the facts in this case other than from her entrenched mindset.
Conclusion
Taking into account the matters referred to above and most importantly having regard to what I find is in the child’s best interests, the mother’s application for a stay of orders is dismissed.
THE MOTHER’S APPLICATION FOR INTERIM PARENTING ORDERS
By applications 2 – 4 filed 9 May 2014, the mother now seeks interim parenting orders.
The mother’s affidavit does not provide any evidence about the proposed supervision by Ms AP. Nor is any affidavit by Ms AP filed. The mother’s affidavit does not provide any details about the availability of the CC Contact Service or what enrolment forms need to be completed by the father.
The father makes the following submissions in relation to the mother’s interim parenting application;
49.1.The Application for Interim Parenting Orders is also doomed to immediately fail, with all issues previously agitated by the Mother, relying upon the same previously detailed facts and arguments, and previously dealt with by this Court.
49.2.The Court ought again apply the principles of Rice & Asplund – something that is now very well known to the Mother. The fact that it is so well known to the Applicant is relevant to the other orders sought by the Respondent herein.
49.3.The repetitive nature of this Application for Interim Parenting Orders can be most apparently seen by the Applicant openly conceding (paragraph 11, page 6 of her affidavit) that she previously sought similar Interim Parenting Orders, involving proposed supervision by Ms AP, and, she acknowledges that her Application was dismissed.
The mother responds by saying that the notation made on the 14 August 2013 envisaged that an interim application could be made for alternate supervised time, including an application relating to alternate contact centres. That application of course was not made and the final hearing has taken place since then.
Given the dismissal of the mother’s stay application the final parenting orders remain operative. Consequently, applications 2 to 4 made by the mother in her Application filed on 9 May 2014 are dismissed given that the relief sought by the mother is inconsistent with those final orders.
FATHER’S APPLICATION FOR ORDER UNDER S 118(1)(c) FAMILY LAW ACT 1975 (Cth)
On 19 April 2013 an order was made pursuant to s 118(1)(c) of the Act which in effect restrained the mother from instituting interim proceedings for parenting orders in relation to the child without leave. When the final orders were made on 26 March 2014 that interim order was discharged.
In paragraphs 2-4 of her application filed 9 May 2014, the mother sought further interim parenting orders. She is able to do so, without seeking leave, because there was no longer any order requiring her to first obtain leave.
The solicitor for the father made clear that the father’s new application seeking an order pursuant to s 118(1)(c) of the Act was brought in the current proceedings, and was limited in time to the disposition of the mother’s appeal against the final orders made on 26 March 2014.
Section 118(1)(c) of the Act is as follows:
The Court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
…(c) if the court considers appropriate, on the application of a party to proceedings – order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
And an order made by a court under (c) has effect notwithstanding any other provision of this Act.
The Independent Children's Lawyer said he neither supported nor opposed the father’s application but referred the court to paragraphs 34-36, 40, 46, 47, 49, 51-53 of the Full Court’s Reasons for Judgment of 1 November 2013; Sullivan & Tyler(No. 4) [2013] FamCAFC 175, which detailed the multiple interim applications that the mother made prior to the making of the previous s 118(1)(c) order.
The mother, in oral submissions, opposed the reintroduction of an order that she be required to seek leave to bring a further interim parenting application because she said that some unforeseen circumstance might arise. If that was so, and it was in the child’s best interests to list an interim application for parenting orders in relation to the child it would be likely that leave would be granted.
I find that the mother’s filing of the new application for interim parenting orders was vexatious for two reasons. Firstly, had the application for a stay been granted, the order requiring the mother to seek leave in relation to filing an application for new interim parenting orders would have revived, and she should not have filed the application without seeking leave. Alternatively, as has happened, in circumstances where the stay was refused, the application for interim parenting orders is unsustainable given the existence of the final parenting orders. In those circumstances I find that her filing of an application for further interim parenting orders was vexatious.
In respect of exercising discretion under s 118(1)(c) of the Act, to grant the limited relief sought by the father under s 118 (1)(c) pending resolution of the mothers appeal, I referred at [923] of the Reasons to Dr R’s recommendation for an end to litigation involving the child. I do not place weight on the mother’s submission that making a new order under s 118 of the Act will only mean the mother will appeal it and that will fuel further litigation.
I find that it is appropriate for an interim order to be made pursuant to s 118(1)(c) of the Act which requires the mother to seek leave from a judge of the Family Court of Australia to make any interim application for parenting orders whilst the mother’s appeal is being dealt with. I will consequently reinstate the previous interim order pursuant to s 118 of the Act, until the conclusion of the mother’s appeal against the parenting orders (including any further appeal against any order made by the Full Court in that appeal).
FATHER’S APPLICATION FOR COSTS
The father seeks a cost order against the mother in respect of the applications dealt with in these reasons. Section 117(1) of the Act provides that each party to proceedings under the Act shall bear his or her own costs. Section 117(2) of the Act provides that the court may make such order as to costs as the court considers just.
In considering what order (if any) should be made, s 117(2A) of the Act sets out matters to which the court should have regard.
It is not known as to how soon the mother will re-enter the paid work force. The mother does have considerable marketable skills. The latest information before the court however is that the mother is in receipt of social security benefits and has no other capital or resources. The father owns his own home and an investment property; he has mortgages and lives on a lifetime pension.
The lawyer for the father correctly submits that the apparent inability of a party to pay costs is not a bar to a costs order being made in circumstances where that party’s conduct warrants an order being made, nor is it necessary to conclude that a party has a capacity to pay a costs order before any such order is made (see Cross v Beaumont (2008) 39 Fam LR 389; Hawkins v Roe (2012) 47 Fam LR 526). The mother may re-enter the workforce at a well renumerated level and may in the future have the capacity to pay a costs order if made.
Neither party is in receipt of Legal Aid.
The father points to the nature of the mother’s affidavit in support of her applications and written submissions claiming that they are “unnecessarily lengthy, repetitive, and verbose and bordering on scandalous in making unsubstantiated assertions.” The father submits that the mother’s conduct in pleading her case in the way she has puts the father to greater needless costs. I have some sympathy with that submission.
The father cannot simply ignore applications made by the mother. The father needs to be in a position to respond to them.
The mother has been wholly unsuccessful in the application she has made.
No written offers have been made and that consideration is of no relevance.
The father seeks what is in effect an indemnity costs order (not as punishment but as compensatory). The father submits that such an order is appropriate in circumstances where the application is fundamentally repetitive of previously determined issues and in circumstances where the application has been previously found to be “highly intelligent, extremely competent in litigious matters, but vexatious, and, in this current application there is no material change of circumstances in relation to any matter affecting [the child’s] welfare”. I take into account that it is unusual for a trial judge to make a costs order in a parenting matter. I take into account the findings I have made in relation to the mother’s genuinely held belief that the child has been sexually abused by his father and involved by his father in a paedophile group. I take into account my finding in relation to the mother’s current mental status. On balance I find that an indemnity costs order should not be made.
However, it is just that a costs order be made in this case in relation to the mother’s unsuccessful application on a party/party basis.
I also accept the father’s submission that an assessment process in relation to the amount of costs would only add a further level of unnecessary complication. I accept that five hours is a reasonable amount of time for the father’s lawyer to have spent reading and considering the mother’s material and preparing a written case argument and appearing at the hearing. Using the current hourly rate pursuant to Schedule 3 of the Family Court Rules 2004 ($224.50 per hour) as a guide, I assess the father’s costs in the sum of $1,125.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 June 2014
Associate:
Date: 20.6.2014
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