Sutherland and Bright

[2007] FamCA 1363

FAMILY COURT OF AUSTRALIA

SUTHERLAND & BRIGHT [2007] FamCA 1363

FAMILY LAW – CHILDREN – Final parenting orders on an unopposed basis where applicant father failed to avail himself of various opportunities to implement or obtain spend time with orders – Costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Sutherland  

RESPONDENT: Ms Bright  

INDEPENDENT CHILDREN’S LAWYER: Peter Lynch

FILE NUMBER: MLF 3038 of 2004

DATE DELIVERED: 12 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 October 2007

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Moloney

SOLICITOR FOR THE RESPONDENT: Michelle Moloney Family Lawyers

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr N.M. Eidelson

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Peter Lynch

Orders

That the child …  born  … September 1997 live with the mother

1. That the mother have sole parental responsibility for the child including all matters pertaining to her education, health, religious and cultural upbringing, name and where she lives.

2. That the father make a contribution to the mother’s costs of and incidental to these proceedings fixed in the sum of $800. 

3. That the order pursuant to which the independent children’s lawyer has been appointed be discharged.

4. I otherwise dismiss all extant applications and remove the matter from the pending cases list maintained by the court.

5. I DIRECT that my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the court file.

6. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

IT IS NOTED that publication of this judgment under the pseudonym Sutherland & Bright is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3038 of 2004

MR SUTHERLAND

Applicant

And

MS BRIGHT  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. These proceedings come before me in the Magellan duty list and concern the child born in September 1997.

2. It was previously ordered by me on 3 August 2007 that in the event the father did not comply with orders for the provision of drug screens or attend court today that any other party may apply for a summary dismissal of the extant proceedings.  I am satisfied that the father is aware of those conditions because he was in court at the bar table on the last occasion.  

3. The father does not appear today. 

4. I will deal with the matter now as the final determination of all proceedings before the court. 

5. Ms Maloney appears on behalf of the respondent mother, who attends court personally.  In order to do so, she has travelled with the child and her next oldest child, K, to Melbourne from Queensland at a cost for airfares of not less than $800. 

6. Mr Eidelson of counsel appears on behalf of the independent children's lawyer.  There is no appearance by or on behalf of the father.  He was called at the door of the court and there was no response.  The mother confirms from the body of the court that in walking through the court building she has not observed

   
   

   the father to be present. 

7. Very briefly, the mother and father resided together from 1993 to 1998.  As indicated, the child was born in September 1997. She is now 10 years of age and she is in grade 5 in a government school local to the mother's home in Brisbane, Queensland. 

8. I am advised from the bar table that between 1998, when the parents separated, and approximately 2004 the father was exercising regular alternate weekend contact (as it was then known) with the child.  The contact ceased consequent upon the mother's allegations in this court that the father had sexually abused the child by touching and playing with her genitals. 

9. On 2 September 2004 the father initiated proceedings in the Federal Magistrates Court seeking to re-establish contact with the child. 

10. On 14 October 2004 the mother filed a response seeking different orders, in particular that the child live with the mother, she have sole long term and day to day responsibility for the child and that the father's contact be reserved.  On 19 October the matter was transferred from the Federal Magistrates Court into this court.  As part of this court's preparation of the matter for determination a family report was ordered which was completed by family consultant Ms W in April 2005. 

11. Ms W's assessment of the father is as follows:

    [26] [The father] attended on time and alone for the appointment for this report.  His presentation was reserved, and it would seem that whilst he advises he has strong family support he is relatively socially isolated.

    [27] [The father] believes that it is important that his daughter knows who he is and that he has something to contribute to his daughter’s life.  He therefore advises that he made his application for contact and that it was only in response to this that he became aware of the allegations of sexual abuse that existed regarding himself and [the child].

    [28] Whilst [the father] aggress that he has schizophrenia, he advises that this is not a problem in regard to contact because his medication controls this and he is obliged under his Community Treatment Order to have his medication. [The father] stated to the Counsellor in reference to

    
    

    [the mother] “I have schizophrenia.  She is suffering from delusions and she needs medication.  If I had put a delusion into my daughters head I would be the worst person in the world.  It’s okay for her,” the delusion he was referring to being the allegation of sexual abuse. 

    [29] [The father] has had a series of hospitalisations for his psychiatric problems since his diagnosis about seven years ago. [The father] advised that his first hospitalisation came about as a consequence of [the mother]’s contrivance.  He stated “she got me put in hospital.  I didn’t want to go.  She got me diagnosed and said goodbye.”  [The father] (sic) advised that his hospitalisation on this occasion came after the series of events that he insists had occurred while he was working in [a supermarket], events that both [the mother] and his psychiatrist did not consider had actually occurred, but were part of a paranoid state. [The father] has not been hospitalised for any length of time recently however should he not attend for his medication he can be until he accepts it.  The last time this occurred was before Christmas 2004, when he advises he was hospitalised for half an hour for refusing to have the medication. Once he accepted his medication [the father] was released. 

    [30] [The father] denies that he has ever been violent and advises that he has no criminal record, his only convictions being drink driving when he was eighteen.  He does acknowledge that as a couple he and [the mother] had “taken speed”.  He agrees also that there was one incident of violence which resulted in [the mother] “having a cracked rib I think.  I was deeply sorry for what I did.” He advises that subsequent to this incident he only ever used marijuana. 

    [31] [The father] vehemently denied the allegations that he had sexually abused his daughter. When asked how he felt about the allegations,

    
    

    [the father] (sic) stated that “I was pretty disgusted.  [the mother] was molested by her stepfather and he was convicted of this.”  When asked if

    
    

    [the father] (sic) had any concern that [the mother]’s father could have molested [the child], [the father] (sic) responded that he did not believe that [the child] had been molested by anyone.  He advised that [the child]’s alleged playing with her faeces may be related to a bowel problem such as he himself had as a child.  He believes that [the child] must be deeply in need of counselling, as does (sic) [the mother], and that [the mother] is being negligent in not obtaining such help. [The father] was adamant that

    
    

    [the mother] had not only invented the allegations and lied to the Court but that she had spread this lie throughout Geelong.  [The father] stated “she has slandered my name over Geelong (sic).  She needs help.  She has been saying I am a molester, a paedophile.  I only found out since (sic) the application.  I always wondered why I got looks in certain places. 

    
    

    I thought it was becasuse (sic) I had a mental illness.  But now I know why.  I don’t think, I know.” 

    [32] When discussing the level of commitment he has to his daughter, given he dropped out of her life for so long, [the father] acknowledged some responsibility for not involving himself in his daughter’s life however he stated, of [the mother] and her partner, “they did not do anything with her.  They are just as bad as me.  If they wanted me to see her they should have contacted me.  It needs both to make it work.  I haven’t moved.  They have always known where I live.”  His lack of capacity for insight about this issue was concerning. 

    [33] When asked his view regarding how contact might occur, given the years that had gone by since [the child] had been with him and given the allegations, [the father] (sic) stated that “with the allegations and the way [the child] is, I would rather have someone mutual to help me out.”  He is happy for any member of his family to supervise contact and is also happy for contact to be in a contact centre.  When asked how he would imagine [the child] might feel about his wanting to resume contact after four years, having in her view simply dropped out of her life, [the father] indicated that he had not thought about this.  When asked to reflect on this, particularly   if [the child] were to be angry with him, [the father] stated “I would just deal with that.  I will just keep assuring her that I am not a bad person.”  When asked about how feelings of resentment may be further exacerbated if she and her mother were forced to return to Victoria to live because of his application, [the father] again showed minimal understanding of the issue. 

    [34] When asked why he thought [the mother] might want to keep him out of her daughter’s life and therefore, as he alleges by conconcting (sic) the allegations of sexual abuse, [the father] (sic) commented that

    
    

    [the mother]’s boyfriend was insecure and “I think I might be [a] better father.” 

    [35] This Counsellor cannot make any observation about how [the father] relates to [the child] as she was not willing to be interviewed with him. 

    
    

    [The father] advises that he relates well to children and that he and [the child] had a very close relationship prior to separation.  [The mother] however holds the view that [the child] no longer remembers or is interested in her biological father. 

12. Ms W's assessment of the matter in general was as follows:

    [44] A perusal of the subpoenaed documentation, the affidavit material and interviews conducted, leads this Counsellor to have significant concerns about [the child]’s wellbeing and the likely impact of the decisions that are before the Court.

    [45] Irrespective of whether or not sexual abuse by [the father] has occurred, it would seem, because of [the father]’s psychiatric condition, because of the length of time that has passed since [the father] and [the child] have had contact and because of [the mother]’s belief that such abuse has occurred, that the only form of contact that can be considered for some time, for the protection of all concerned, is supervised contact. 

    [46] It would seem that [the child] has had and could again experience significant behavioural problems which may relate to sexual abuse and that medical evidence is inconclusive, but certainly suggests the possibility that it has occurred. 

    [47] Should the Court determine that [the child] has been sexually abused and that this abuse has been perpetrated by [the father] and not the maternal grandfather who has also been mooted by the Department of Human Services as a possible perpetrator, then, given the other issues raised above, it may be that the problems posed by any contact outweigh any possible benefits and that even supervised contact should not occur, particularly given that supervision is always necessarily only a short term solution and that in this matter indefinite supervision may be required. 

    [48] If sexual abuse is found not to have been perpetrated or not to have been perpetrated by [the father], then some consideration might be given to supervised contact at a contact centre in order that [the child] have an opportunity to be acquainted with her father rather than to have no direct knowledge of him and to continue as it would seem from the the (sic) Department of Human Services report, to believe that he is someone who has done bad things to her.  However in considering this as a possibility, the degree of insight [the father] has into his daughter’s emotional wellbeing and his capacity to remain committed to consistent ongoing contact must be taken into account, along with the attitudes both of [the child] and [the father].

    [49] Because of the latter issues, it is this Counsellor’s assessment that if contact were to be ordered, that it occur on a few occasions per year in a supervised setting. [Contact Centre] is able to provide (sic) such a setting. 

    
    

    [The mother] and [the child] currently live in Queensland.  It is the Counsellor’s view that to insist [the mother] relocate back to Victoria for the purpose of making the child available for contact after the applicant declined the opportunity for contact for four years, would drive more of a wedge between [the child] and [the father] than that which exists already.  This Counsellor therefore recomends (sic) that [the mother] and [the child] be permitted to continue to reside in Queensland and that she travel to Victoria where she still has family, to provide for such contact that might be ordered.

    [50] It is respectfully suggested that at minimum, [the child] have the opportunity for meeting her father soon, so that she remains aware of his interest in her, and that such a meeting be facilitated by a Counsellor of this court with the assistance of a Supervision Order.

    [51] Should any contact rather than simply an initial introduction occur, it is this Counsellor’s recommendation that the (sic) [the child] have concurrent counselling in case that contact raises serious emotional issues for her. 

    [52] This Counsellor understands form (sic) the perusal of the the (sic) Department of Human Services documentation that her recommendations are consistent with the views of that Department. 

13. Ms W is an experienced social scientist in this court.  Her report is well reasoned.  It is a report to which I give weight. 

14. The matter came before Brown J on 24 November 2005 and various orders were made.  Those orders provided that the child live with the mother and that the mother have sole long term and day to day responsibility for her care. 

15. There was a pathway mapped out by which the father could have contact with the child. The preconditions for contact to occur were clear from the order.  The conditions include the parents attending counselling.  The conditions include the father and the child attending counselling.  There is a condition that the father abide the recommendations of his treating psychiatrist in relation to a diagnosis of schizoaffective disorder and substance abuse.  The father was also to provide clear supervised drug screenings to the mother prior to counselling with the child taking place and the counsellor who saw the child was to prepare a report.  None of those things happened.  All of the conditions fall to be met on the initiative of the father and he has shown no such initiative. 

16. In February 2004, which was well prior to the hearing before Brown J, the mother had relocated to Brisbane.  At this point I briefly outline what her current living arrangements are, it being the case that she still resides in Brisbane.  The father resides in the Geelong area, as far as I am aware. 

17. I should mention now, that apart from the child, the mother has three children.  K is eight years of age, his father is Mr M.  The mother's two younger children are of her relationship with Mr S, from whom the mother separated in October 2006, those children are N, who is five years of age and R who is 18 months of age. 

18. On the occasion of this hearing, N and R are with their father in Brisbane.  K and the child are the children who have travelled to Melbourne with their mother so that the mother can attend the trial.  They are being cared for by the maternal grandmother in Geelong. Unhappily, both of those children have missed the first week of the fourth term of their schooling in Queensland so the mother could attend today. 

19. The matter has come before a Registrar on a number of occasions and been adjourned.  Most recently it was before the Magellan Registrar on 14 March 2007 and placed into this list.  On 3 August 2007 the matter came before me in the Magellan duty list.  As indicated, the applicant father appeared on his own behalf.  Ms Maloney appeared for the mother.  Mr Lynch appeared on behalf of the independent children's lawyer. 

20. On 3 August 2007, the father said that he did not want the proceedings to be concluded on that day by way of a dismissal of his application.  He submitted that it was his intention and his desire to fulfil the preconditions and re‑establish contact with the child.  He said that he would be in a position to provide clean drug screens at any time after the expiration of one month. 

21. On 3 August 2007 I made the following orders:

    (1) That the further hearing of all extant applications be adjourned before Justice Bennett and the Magellan Registrar on 12 October 2007 at 10am.

    (2) That the father produce to the independent children’s lawyer results of supervised drug testing of himself in compliance with paragraph 3 of the Orders made on 1 November 2006 and as envisaged in paragraph 8 of the Orders made 24 November 2005 and do so by not later than 12 noon on 4 September 2007 and then monthly thereafter.

    (3) That liberty to the parties to apply on the adjourned date for summary dismissal of all extant applications in the event that the matter has not been sufficiently progressed.

22. I am advised from the bar table by Mr Eidelson who appears for the independent children's lawyer that the father has failed to comply with paragraph 2 of my orders, in that he did not produce any results of supervised drug screening by 12 noon on 4 September 2007.  I am informed, and I accept, that the father has not subsequently produced any supervised drug screen results. 

23. Today the mother seeks a dismissal of all extant applications and that final orders be made mirroring those made by Brown J in November 2005 and otherwise an order which provides for her to have sole responsibility for major long‑term decisions concerning the child.  The independent children's lawyer wholly supports that disposition of the matter. 

24. As with all parenting matters, what I need be satisfied of is that the orders that

    
    

    I finally make are orders that have as the paramount consideration the best interests of the child. Since the parties filed their applications the relevant legislation has been amended very significantly; that came into operation on 1 July 2006.  Certain procedural elements of the amending legislation do not apply to this case as it was commenced before 1 July. 

25. The child has the benefit of an independent children's lawyer.  Pursuant to an order made on 19 October 2004, Peter Lynch was appointed as the independent children’s lawyer for the child within the meaning of Division 10 of Part VII of the Act.  As such, his role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what he believes to be the best interests of the child.[1]  He is not a legal representative retained by the child and he is not bound by any instructions from the child.[2]  The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]

    [1] s 68LA(2) Family Law Act 1975 (Cth).

    [2] s 68LA(4) Family Law Act 1975 (Cth).

    [3] s 68LA(5)(d) Family Law Act 1975 (Cth).

    [4] s 68LA(5)(e) Family Law Act 1975 (Cth).

Relevant law – parenting issues

1. These proceedings are brought under Part VII of the Act.  Pursuant to s 60CA, in deciding to make any parenting order in relation to the child, I must regard her best interests as the paramount consideration.

2. Subject to the best interests of the child being the paramount consideration,

   
   

   s 60B sets out the aims and principles of Part VII.  The section provides the context within which the relevant best interests factors listed in s 60CC are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case.  Where there are no countervailing factors or considerations, the s 60B objects and underlying principles may be decisive.

3. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:-

   (a)       ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)       protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)       ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)       ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The objects may be regarded as the core values of the legislation. 

5. The principles which underlie the objects are more specific but not exhaustive.  They are that, except when it is or would be contrary to the child’s best interests:-

   (a)       children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)       children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)       parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)       parents should agree about the future parenting of their children; and

   (e)       children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

6. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. 

Determining the child’s best interests

1. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in

   
   

   s 60CC of the Act.

2. The first is the benefit of the child having a meaningful relationship with the father.  Section 60CC(2)(a) of the Act requires an evaluation of the nature and quality of the relationship between the father and the child by reference to additional considerations.  It is a prospective enquiry.  There is no issue about the relationship between the mother and the child.  In relation to the father, I am required to evaluate the extent to which a meaningful or significant relationship between the two is going to be of benefit to the child.  That is pretty difficult given that the father does not participate in the proceedings notwithstanding the extended opportunities he has been given to do so.  I cannot foist on the father a meaningful relationship with the child, to do so would be contrary to her best interests. 

Protection from harm – as a primary consideration

1. The second of the primary considerations mirrors s 60B(b) of the Act and recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence. 

2. The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’[5] or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.[6]. 

   [5] s 4(a) Family Law Act 1975 (Cth).

   [6] s 4(b) Family Law Act 1975 (Cth).

3. ‘Family violence’, however, is given a broader definition as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing.[7]  A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances.  ‘Neglect’ is not defined in the Act. 

   [7] s 4 Family Law Act 1975 (Cth).

4. This factor also requires a prospective evaluation.  As such, I must assess the future risk of exposure of the child  to physical or psychological harm and formulate orders which protect her from that harm.  Certain conditions were put in place which, if met, could have led the way to regular time being spent between the father and the child, safely and consistently with her best interests.  However, none of the conditions have been fulfilled by the father.  

Treatment of the additional considerations

1. The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive.  It is only necessary to consider those which are relevant to this case.  As I have said, these are proceedings in private law.  The father does not participate so it is, in many ways, artificial and futile to give other than curtailed consideration to the matters listed in s 60CC(3).  

2. In a general sense, I take into account all of the additional considerations as are relevant to this case, including how each parent has demonstrated their responsibilities towards parenthood, parental capacity and the effect of change upon the child. I am satisfied that the orders proposed by the mother, when viewed in light of the additional considerations, are in the child’s best interests.  

3. I also take into account, pursuant to s 60CC(3)(i) of the Act my preference for making an order which is least likely to lead to the institution of further proceedings. 

4. Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. 

5. Ideally courts should make parenting orders that minimise the prospects of future litigation.  Litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively.  Parents and children are readily distracted by litigation. 

6. Parents are at liberty to modify court orders by subsequently entering into parenting plans, which have the effect of varying existing orders. 

7. Proceedings in this court in relation to children are proceedings brought between parties - in this case, the parents.  Where the father has elected not to take part in proceedings and has furthermore elected, for whatever reason, not to follow the pathway set out in the orders of Brown J which would enable him to spend time with the child, it is not for this court to look outside the available options. 

8. The mother seeks sole parental responsibility. 

9. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[8]  In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[9] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-

   …… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   a) the child’s education (both current and future); and

   b) the child’s religious and cultural upbringing; and

   c) the child’s health; and

   d) the child’s name; and

   e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

   This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents. 

   [8] s 61B Family Law Act 1975 (Cth).

   [9] s 61DA(1) Family Law Act 1975 (Cth).

10. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[10]  The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[11] and to ‘make a genuine effort to come to a joint decision about that issue’.[12]  These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared. 

    [10] s 65DAC(2) Family Law Act 1975 (Cth).

    [11] s 65DAC(3)(a) Family Law Act 1975 (Cth).

    [12] s 65DAC(3)(b) Family Law Act 1975 (Cth).

11. The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-

    a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[13] or abuse of the child or another child who is a member of the parent’s family;[14]

    b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[15] or;

    c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[16] 

    [13] s 61DA(2)(b) Family Law Act 1975 (Cth).

    [14] s 61DA(2)(a) Family Law Act 1975 (Cth).

    [15] s 61DA(3) Family Law Act 1975 (Cth).

    [16] s 61DA(4) Family Law Act 1975 (Cth).

12. The independent children's lawyer supports the mother's application for sole parental responsibility of the child, and, on what I have read of this case, it appears entirely appropriate that she have that.  I am satisfied that it would be impracticable to require the mother to have to communicate and consult with the father about the child. It is the last of the above exceptions which is applicable. 

13. For the foregoing reasons, I am satisfied that the orders that the mother seeks are consistent with the child's best interests and ought be made and I will make them accordingly. 

14. I have been asked to and have made an order that the father contribute to the mother's costs of this day by covering her expenses to travel to Melbourne from Queensland, bringing with her the child with whom these proceedings are concerned as well as her oldest child.  A one way journey, I am told from the bar table, by air using Jetstar as a carrier, was some $370 or thereabouts.  It is appropriate that the mother and children be able to return to Brisbane as soon as possible.  I can only estimate that the cost for the three of them do to so is not likely to be less than what it cost them to come to Melbourne.  There will not be the advantage of being able to pre-book tickets. 

15. I am satisfied that the mother will be out of pocket by at least $800 by virtue of having to attend this hearing and consider, in the context of s 117(2), that there are sufficient circumstances justifying a departure from the regular position that each party pay their own costs; principally, it is because the mother has been wholly successful in these proceedings, and, secondly, because the father failed to appear today.  Had he intended not to appear, he could have notified the mother earlier than today and obviated the need for her and the children in her care to travel to Melbourne. 

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett 

Associate

Date:  21 November 2007