Vader & Dantes (No 3)
[2023] FedCFamC1F 461
•19 July 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vader & Dantes (No 3) [2023] FedCFamC1F 461
| File number(s): | SYC 2265 of 2014 |
| Judgment of: | CURRAN J |
| Date of judgment: | 19 July 2023 |
| Catchwords: | FAMILY LAW– PARENTING – final hearing – where father files notice of discontinuance at final hearing – best interests – final consent orders made in 2016 – proceedings commenced by mother in 2019 – where mother seeks orders for child to spend no time with father – where mother seeks orders for restraints against father – where mother seeks an order for father to be restrained on filing further applications without leave of the court – whether father should have limited communication with child – presumption of equal shared parental responsibility rebutted – mother to have sole parental responsibility – where single expert recommends no time with father –– unacceptable risk in father’s care that cannot be ameliorated – orders for no time and no communication. FAMILY LAW – COSTS – where mother seeks orders for costs against the father– where indemnity costs are sought against the father – where there was no compliance with rule 12.13(4) – where fixed costs ordered on an indemnity basis – where a percentage of costs sought by the mother ordered |
| Legislation: | Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61B, 64B, 65DAA, 68B, 68C, 102NA Passport Act 2005 (Cth) s 11 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.08, 12.13, 12.27, 12.28 |
| Cases cited: | Albert v Plowman [2022] FedCFamC1F 243 AMS v AIF (1999) 199 CLR 160 B & B (1993) Fam LR 353 Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 Fierro& Fierro (No 2) [2022] FedCFamC1F 344 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Gabaldon & Gabaldon [2015] FamCAFC 59 Gaber & Akhtar (No 2) [2021] FamCA 147 Hawkins & Roe (2012) 47 Fam LR 526 Higginbotham & Robinson (1991) FLC 92-209 I & I (No 2) (1995) FLC 92-625 Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23 Isles & Nelissen [2022] FedCFamC1A 97 Legal Aid ACT & Westwell (2021) 62 Fam LR 546 M & M (1988) 166 CLR 69 Madin & Palis (Costs) [2016] FamCAFC 25 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark [2009] 41 Fam LR 483 Munday v Bowman (1997) FLC 92-784 Quickley & Pelissier [2016] FamCAFC 124 R & C [1993] FamCA 62 Ragatta Developments Pty Ltd v Westpac Banking Corporation (Davies J, Fed C of A, 5 March 1993, unreported) Rice & Asplund (1979) FLC 90-725 SCVG v KLD [2017] FamCAFC 95 Senfl & Blee [2017] FamCA 901 Stoian v Fiening (Costs) [2014] FamCA 944 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (French J, Fed C of A, 3 May 1991, unreported) Wrensted & Eades (2016) FLC 93-697 Yanez & Yanez [2021] FamCA 148 |
| Division: | Division 1 First Instance |
| Number of paragraphs: | 337 |
| Date of hearing: | 8-9 May 2023 |
| Place: | Sydney |
| Counsel for the Applicant: | Mr Kearney SC |
| Solicitor for the Applicant: | Swaab Attorneys |
| The Respondent: | Litigant in person |
| Counsel for the Independent Children's Lawyer: | Mr Sperling |
| Solicitor for the Independent Children's Lawyer: | Ark Law Lawyers |
ORDERS
| SYC 2265 of 2014 | |||||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) | |||||
| BETWEEN: | MS VADER Applicant | ||||
| AND: | MR DANTES Respondent | ||||
| INDEPENDENT CHILDREN'S LAWYER | |||||
ORDER MADE BY: | CURRAN J | ||||
DATE OF ORDER: | 19 JULY 2023 | ||||
THE COURT ORDERS THAT:
1. The Orders dated 8 December 2016 be discharged.
2. The mother have sole parental responsibility for the child, Y born 2013.
3. Y live with the mother.
4. The father be and hereby is restrained from:
(a) Coming into contact, approaching or communicating in any way with Y including face to face, through voice, typed word, internet or other media or from attempting to do so;
(b) Intimidating or harassing Y;
(c) Contacting or communicating with Y indirectly including via a family member, friend or representative of the father;
(d) Approaching, attending or contacting Y’s school and/or vacation care programme and any extra-curricular, co-curricular and sporting or other activities which she attends and her before and after school care whether, at the time, Y is present or not ;
(e) Approaching, attending, contacting and/or communicating in any way with Y’s medical practitioner, psychotherapist/psychologist or any other health practitioner or allied health care worker attended by Y.
5. The father shall be restrained from directly contacting the mother other than via her solicitors and shall not approach or attend at the mother’s home or approach the mother or the child while they are in a public place, and shall not harass and/or intimidate the mother, Y or the mother’s family and, when applicable, the mother’s partner and his family.
6. The father shall be restrained from:
(a) Contacting the mother or any of her relatives and when applicable, the mother’s partner and his family;
(b) Intimidating or harassing the mother or her relatives and when applicable, the mother’s partner and his family;
(c) Communicating with the mother;
(d) Approaching the home or workplace of the mother;
(e) Communicating with Y;
(f) Approaching or contacting Mr H and his family including Ms J, Ms K and Mr L;
(g) Approaching the homes of Mr H and his family including Ms J, Ms K and Mr L;
(h) Approaching the offices of Swaab;
(i) Approaching, communicating or contacting the mother’s treating therapist or medical practitioner directly or indirectly;
(j) Approaching any of Y’s schools, after school care or activities.
7. The mother shall not be required to disclose her address or contact number to the father.
8. Pursuant to Section 11 of the Passport Act 2005 (Cth), the mother shall be authorised to do all acts and things necessary to apply for and maintain and keep updated a current Australian Passport for Y without the consent of the father.
9. The mother and Y shall be permitted to travel outside the Commonwealth of Australia without the consent of the father.
10. The mother shall retain Y’s passport for safekeeping.
11. The mother shall be injuncted from permanently relocating with Y out of the Commonwealth of Australia. The Court notes the mother undertakes that it is not her intention to relocate out of the Commonwealth of Australia and it is her intention to live permanently in Australia with Y.
12. The father shall be restrained and injuncted from posting any material, whether written or pictorial, on Facebook and/or any other social media that relates to the mother, Y and/or the mother’s relatives and/or all of them, either directly or indirectly and/or relates to these proceedings and/or any issues in these proceedings and, in particular, the father shall remove any existing postings relating to Y and/or the mother directly or indirectly and remove any Facebook page he has posted in the name of Y or any derivative thereof or in any way associated with Y and shall be injuncted from posting any other Facebook page in Y’s name.
13. The mother shall be permitted to release to any therapist treating her the reports prepared by Dr B in these proceedings.
14. The father shall be permitted to release to any therapist treating him the reports prepared by Dr B in these proceedings.
15. The mother shall be permitted to release to any therapist treating Y the reports prepared by Dr B in these proceedings.
16. The mother shall be at liberty to provide a copy of these Orders to Y’s school, vacation care programme and the provider of any co-curricular, extra-curricular and sporting or other activities, any medical practitioner, psychologist/psychotherapist and allied health professional seen by herself or Y, and before and after-school care and the New South Wales police and Australian Federal Police and Australian Border Force.
17. The father is restrained by injunction, except with the leave of the court by a Senior Judicial Registrar or Judge, from commencing any proceedings in relation to the mother and/or child.
18. Each of Orders 4, 5, 6 and 12 herein are Orders pursuant to section 68B of the Family Law Act 1975 (Cth) for the personal protection of the mother and Y and, for the avoidance of doubt, are injunctions for the personal protection of the mother and Y for the purpose of section 68C of the Act.
19. The father shall pay the mother’s costs of and incidental to this Application fixed in the sum of $323,720.15.
20. The father shall pay the costs of the Independent Children’s Lawyer in the sum of $16,137.
21. All outstanding applications are hereby finalised.
Note: The form of the order is subject to the entry in the Court's records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vader & Dantes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION
These are proceedings concerning the best interests of the child, Y, born 2013 aged 10 years old at the date of the hearing. The mother, Ms Vader (“the mother”), was born in 1973 and was 50 years old at the date of the hearing. The father, Mr Dantes (“the father”), was born in 1968 and was 54 years old at the date of the hearing. The parties separated when Y was under one year of age. Y has been the subject of litigation for much of her life. BACKGROUND
Final orders had been made by consent by Justice Johnston on 8 December 2016. Proceedings were recommenced by the mother on 11 October 2019 and interim orders were made for no time to occur between Y and her father on 16 October 2019.
The only contact the father has had with Y since that time was when he attended her school in early 2021, in breach of a no contact order (discussed further below), and a meeting via audio visual link (“AVL”) when the single expert, Dr B, was preparing his report as ordered by this court.
The father did not present any evidence; however, the evidence in this case, including from the three single expert reports, makes it plain that the father has experienced periods of serious and debilitating mental health challenges resulting in at least some periods of hospitalisation.
Following separation from the mother, the father married Ms C, with whom he has another child, X, born 2016. The father and Ms C have since separated and I note that there are concurrent parenting proceedings before the court in relation to the best interests of X. Ms C also has a child of a previous relationship, M, born 2011. FINAL HEARING COMMENCED ON 8 MAY 2023 AND WAS LISTED FOR 7 DAYS
The matter was listed for final hearing for 7 days commencing on 8 May 2023. The father engaged a lawyer for the purposes of the cross examination of witnesses as, due to the allegations of family violence in this case, his capacity to cross examine was limited by s 102NA of the Family Law Act 1975 (Cth) (“the Act”). To that end, Mr DeFraine solicitor, was engaged and appeared on the first day of the hearing. He cross examined the mother and Mr H, the maternal uncle.
At the conclusion of the first day, the father confirmed that he would consent to orders that sole parental responsibility be granted to the mother and that Y live with the mother.
The issues that then remained were: (a) Whether there should be orders for Y to spend time or communicate with the father, and if so what those orders should be; (b) Whether injunctive orders should be made as sought by the mother; (c) Whether the release of the orders of the court and the report of Dr B to the child’s school, the child’s vacation care programme, the provider of any extra-curricular activity provider for the child, the child’s before and after school care, any treating medical professionals of the parties or the child, the NSW Police and the Australian Federal Police should occur; and (d) Costs.
The second day of the hearing was due to commence with the mother’s psychologist Ms N and the balance of the mother’s witnesses scheduled to give evidence.
At 10.00am when there was no appearance by the father or Mr DeFraine, the father was called outside the court. There was no appearance. The father had filed at 7.08am that day a Notice of Discontinuance on the Commonwealth Courts Portal.
The mother’s senior counsel advised the court that, at 7.11am that day, his instructor had received an email from the father with the subject line “Discontinuance” which read: I am discontinuing my Response in SYC2265/2014 From the third Expert Report, which I only read weeks ago, and [Ms Vader’s] testimony yesterday it is finally clear as to why [Ms Vader] has driving this matter so for nine and a half years. Has [Ms Vader] ever wondered why there is simply no corroboration from the subpoenas, witnesses or any other source over my entire life? I can understand the apprehension but I can never accept the idiocy of failing to simply discuss this in 2014 and having avoided what had occurred. • Do not send me any more legal letters from any source. Not one • Do not attempt to enforce any cost orders or to make me bankrupt • Discontinue Child Support Alternatively, no longer hindered by any concern about the Family Court and associated systems, [Ms Vader] and her family should be under no misapprehension about that fact I will never cease in pursuing complete recompense between our families. This email address will be closed, my phone number is being cancelled, and you do not know my address.
That email became Exhibit 8.
The father is well educated. He holds a degree and has held levels of employment in both government and the private sector. The penultimate paragraph can only be interpreted as a threat, if the mother pursues any of the three identified matters of sending a letter, pursuing costs or continuing to seek child support. The husband warns “Alternatively, no longer hindered by any concern about the Family Court and associated systems, [Ms Vader] and her family should be under no misapprehension about that fact I will never cease in pursuing complete recompense between our families.” This statement illustrates the father’s lack of insight, or complete disregard, as to the impact of his words and conduct on the mother. He sent this email despite having recently read the opinion of the single expert and despite acknowledging the mother’s “apprehension.” This letter is an example of the father engaging in coercive and controlling behaviour.
Counsel for the Independent Children’s Lawyer advised the court that an email from the single expert, Dr B, had been received, advising that Dr B had also received an email from the father. In that email the father advised Dr B that he had discontinued his application and was seeking a refund of funds paid, presumably for his attendance fee to give evidence in the proceedings. I was not provided with a copy of that email.
The matter was stood down to enable the father’s solicitor to be contacted. Mr DeFraine attended by telephone and advised the court that the father contacted him that morning and withdrew his instructions. Mr DeFraine informed the court that the father had advised him, both in writing and verbally, that he filed a Notice of Discontinuance and that he was no longer instructed to act on his behalf.
Having communicated his intention to discontinue by filing the Notice of Discontinuance, by emailing the mother’s solicitor, by emailing the single expert and by advising Mr DeFraine, I am satisfied that it is appropriate to dismiss the father’s Amended Response to Final Orders and orders sought, and I do so.
In the circumstances, including: (a) The significant delay in the matter coming to a final hearing; (b) That the father had the benefit of Mr DeFraine’s advice and legal assistance prior to that point; (c) That the case had begun; (d) That the mother and maternal uncle had been cross examined; and (e) That the father had participated to that point; it was appropriate and in Y’s best interests to continue to hear and finalise this matter in the absence of the father. Accordingly, the Application of the mother and the Independent Children’s Lawyer for the matter to proceed on the basis that the matter was undefended, was granted. MATERIAL RELIED UPON Applicant mother
I have read and had regard to the following documents which were relied upon in support of the mother’s case: (a) Amended Orders sought dated 9 May 2023, (Exhibit 20); (b) The mother’s affidavit filed 9 July 2021; (c) The mother’s proof of evidence filed 8 May 2023, (Exhibit 4); (d) Affidavit of Ms N filed 9 July 2021; (e) Affidavit of Ms O filed 9 July 2021; (f) Affidavit of Mr P filed 9 July 2021; (g) Affidavit of Ms J filed 9 July 2021; (h) Affidavit of Mr H filed 9 July 2021; (i) Affidavit of Ms C filed 9 July 2021; (j) Affidavit of Mr Q filed 9 July 2021; and (k) The mother’s Case Outline Document filed 11 April 2023.
The mother also relied upon the three reports of Dr B as set out below: (a) Single Expert Report of Dr B dated 30 January 2015 (the “2015 Report”); (b) Single Expert Report of Dr B dated 24 October 2016 (the “2016 Report”); and (c) Single Expert Report of Dr B dated 18 January 2021(the “2021 Report”). Respondent Father
Noting that the father filed a Notice of Discontinuance in respect of his orders sought on 9 May 2023, before his case commenced, no evidence was read in support of the father’s case. The father’s Case Outline Document was marked as Exhibit 2 on the first day of the final hearing. I have had regard to that document in so far as it provides some response to the mother’s orders sought and in so far as it addresses matters relevant to the statutory considerations. The Independent Children’s Lawyer
The following documents were relied on by the Independent Children’s Lawyer: (a) Case Outline Document filed 28 April 2023; and (b) The three single expert reports of Dr B referred to above. ORDERS SOUGHT BY THE PARTIES
Annexed to these reasons and marked as “Schedule One” is a copy of the orders sought by each of the parties as set out in the Case Outlines that were filed.
After the first day of trial the father filed a Notice of Discontinuance, did not further appear and did not seek any orders at the final hearing. The Independent Children’s Lawyer’s Application
The Independent Children’s Lawyer supported the mother’s application for orders and the injunctions sought. The Independent Children’s Lawyer also sought her costs be paid by the parties and the costs of the single expert be paid by the parties. The Independent Children’s Lawyer made no submissions about the mother’s costs application. APPLICABLE LEGAL PRINCIPLES
Orders in respect of children are informed under Part VII of the Act. The meaning of a parenting order is defined at s 64B of the Act.
Section 60CA of the Act provides that the court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Act applies a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents pursuant to s 61DA. Parental responsibility is defined at s 61B. The presumption does not apply in certain circumstances if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence according to s 61DA(2). Pursuant to s 61DA(4), the presumption may be rebutted if the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
In the event an order is made allocating equal shared parental responsibility, the Court must consider whether it is in the best interests of, and practicable for, the children to live in an equal time arrangement or alternatively, consider substantial and significant time with the other parent pursuant to s 65DAA.
If the presumption does not apply or is rebutted, the manner and allocation of parental responsibility is determined by consideration of the child’s best interests.
The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in family violence. PARENTAL RESPONSIBILITY
In this case, for the reasons that follow, I find that the presumption is rebutted and determine that it is in Y’s best interests for the mother to have sole parental responsibility.
The father indicated his consent to orders for sole parental responsibility and that Y live with the mother at the conclusion of the evidence on the first day. While this is noted, it is necessary to independently determine the orders that are in Y’s best interests and, for the reasons that follow, I find that it is in Y’s best interests for the mother to have sole parental responsibility.
The parents have had a fraught co-parenting relationship since separation. The mother, and the maternal uncle, had obtained Apprehended Domestic Violence Orders (“ADVO”) against the father. The mother’s final ADVOs were granted in mid-2014 and late 2019.
The mother alleges that she was the victim of family violence leading up to and at the time of separation. Allegations of family violence were reported by the mother to Dr B and Ms R (the father’s psychotherapist) reported threats made by the father. Those events included: (a) Deliberately waking the mother in the night and preventing her from sleeping;[1] (b) Speaking aggressively and punching a box in front of the mother causing her fear;[2] (c) Threatening to harm himself,[3] the mother,[4] Y, and his psychologist Ms R;[5] (d) Threatening to harm the mother’s brother Mr H;[6] (e) Removing Y from the home after the police had been called;[7] (f) Attending the matrimonial home after he had been asked to leave and demanding access to the house and to Y;[8] (g) Removing Y from day-care without the knowledge of the mother;[9] (h) After scaling the back wall of the home returning to the home at 10.30pm after being directed by the police to leave earlier that evening;[10] and (i) Supergluing the locks at the matrimonial home.[11] [1] Mother’s affidavit filed 9 July 2021, paragraph 134. [2] Mother’s affidavit filed 9 July 2021, paragraph 137. [3] Mother’s affidavit filed 9 July 2021, paragraph 130. [4] Mother’s affidavit filed 9 July 2021, paragraph 132. [5] Mother’s affidavit filed 9 July 2021, paragraphs 8 & 159. [6] Father’s affidavit filed 9 July 2021, paragraph 37. [7] Mother’s affidavit filed 9 July 2021, paragraph 138. [8] Mother’s affidavit filed 9 July 2021, paragraph 148. [9] Mother’s affidavit filed 9 July 2021, paragraph 154 & 157. [10] Mother’s affidavit filed 9 July 2021, paragraph 150 & 161. [11] Mother’s affidavit filed 9 July 2021, paragraph 165.
The mother was cross examined in relation to the events where the father scaled the back wall of the home, but not in relation to the other particularised incidents.
I find that the events of family violence occurred as the mother alleged.
I find that there was family violence perpetrated by the father. Accordingly, the presumption of equal shared parental responsibility is rebutted pursuant to s 61DA(2)(b).
If the presumption does not apply or is rebutted, the manner and allocation of parental responsibility is determined by consideration of the child’s best interests.
There is overwhelming evidence of the inability of the parties to communicate. It was observed by Dr B first in 2015 that the parties had little to no capacity to co-parent due to the father’s pattern of disrespectful, intrusive and at times aggressive or threatening communication and behaviour. It was then Dr B’s opinion in 2016 that orders regulating time and communication may allow the father to develop in his parenting capacity. After having reviewed the updating material for the 2021 report, Dr B was of the opinion that the father is unable to comply with the parameters of orders and his behaviour, even when spending time with Y, was “disrespectful, entitled, intrusive and coercive.”[12] [12] Expert Report of Dr B dated 18 January 2021, paragraph 422.
Dr B opined that the father’s intrusiveness was deployed as a coercive strategy. He observed that “The father’s correspondence to the mother’s representative is entitled, superior, dismissing, disrespectful and coercive in tone.”[13] He further expresses that he is “concerned that the father repeatedly expressed an intention to imminently re-open court proceedings, but never actually did so. This would appear to be a coercive strategy.”[14] The evidence of the mother detailed above supports the finding that the father utilised coercive strategies in his dealings with the mother. [13] Expert Report of Dr B dated 18 January 2021, paragraph 434. [14] Expert Report of Dr B dated 18 January 2021, paragraph 434.
The mother’s evidence is that she has found the necessity to communicate with the father exhausting and that such interactions impacted her stress, anxiety and depression. She has sought therapy since 2018 and has been prescribed anti-depressant medication to manage her mental health in this context.
The mother’s psychologist Ms N gave uncontested evidence of the negative impact on the mother of ongoing communication with the father. I accept her evidence as detailed below, and give it significant weight.
In these circumstances there is no option other than to allocate parental responsibilities for the child exclusively to one party, and that should be the parent with whom the child resides, the mother. The only appropriate order, and one that was not opposed by the father, is an order for the mother to have sole parental responsibility and I so order. BEST INTERESTS – PRIMARY CONSIDERATIONS
The benefit to Y in having a meaningful relationship with both of her parents in this case is outweighed by the need to protect her from direct physical and psychological harm and indirect psychological harm for the reasons set out below. Meaningful relationship with each parent: s 60CC(1) of the Act
It is ordinarily in the best interests of a child to have a meaningful relationship with both parents. But such a relationship must be of benefit to the child,[15] and must be “important, significant, and valuable to the child.”[16] [15] McCall & Clark [2009] 41 Fam LR 483 at [122]. [16] Mazorski & Albright (2007) 37 Fam LR 518 at [26].
There is a history of Y spending time with the father and deriving benefit from it. The 2021 report of Dr B identified that Y said of her father that “he makes me laugh/ he makes me feel happy”,[17] and that she has a positive connection to her paternal family. He reported that Y said “I just wanna (sic) know him better.”[18] Dr B also identified that Y is a child who “pre‑emptively” takes into account the perceived needs of others and does not wish to disappoint or upset others. There are benefits to Y of a relationship with her father and if she does not have such a relationship it can have “negative impacts upon a young person’s sense of self and character development during adolescence.”[19] [17] Expert Report of Dr B dated 18 January 2021, paragraphs 316-317. [18] Expert Report of Dr B dated 18 January 2021, paragraph 320. [19] Expert Report of Dr B dated 18 January 2021, paragraph 403.
It was not in issue in the proceedings that Y expressed positive feelings about the father and that the father wished to spend time with her. I have no doubt that the father deeply loves Y. I also have no doubt the father has qualities and interests that would be of benefit for Y to experience. However, the benefits of the relationship for Y are outweighed by the significant risks the relationship poses to Y and to the mother’s psychological wellbeing, which could put at risk her capacity to parent Y on an ongoing basis.
The mother submitted that time with and communication with the father poses unacceptable risk of harm to Y as detailed below.
The Independent Children’s Lawyer also submitted that time with and communication with the father poses unacceptable risk of harm to Y.
The important primary consideration of the benefit of a meaningful relationship for Y with her father is subject to the need to protect Y from harm. The question of risk of harm is to be given greater weight than the benefit of the child having a meaningful relationship with both parents. The need to protect the child from harm: s 60CC(2) of the Act
I am satisfied that while there are benefits to Y in spending time with and communicating with her father there are also significant risks. Those risks individually and collectively carry the potential, as identified by Dr B, of causing significant harm to Y. Those risks also have the potential of causing harm to the mother, thereby causing harm to Y, as identified by both Dr B and Ms N. I make these findings for the reasons set out below.
The opinion of Dr B supports a finding that the risk of harm to Y in spending time with her father is significant. He makes a recommendation that Y spend no time with the father. Dr B is familiar with this matter and its history, and notably earlier had recommended time occur between Y and her father, subject to certain protections. The fact that Dr B had altered his opinion, after being made aware of the events that had occurred since the 2016 final orders were made, is significant. Dr B’s opinion was not challenged and I accept his opinion that the risk of harm to Y in spending time with her father is significant. As set out below I find it is an unacceptable risk and one that cannot be ameliorated.
The mother gave evidence that she is terrified for the safety of Y, herself and her brother and his family; that they are living in constant fear; that she is frightened to attend work and to allow Y to attend school in fear of what the father may do; and that she is on medication to assist with anxiety.[20] I accept that evidence. [20] Mother’s affidavit filed 9 July 2021, paragraph 181.
The mother gave evidence that the father has made a number of threats to kill or harm her, kill or harm Y, kill or harm the maternal uncle, and kill or harm himself. She gave further evidence that the father also threatened to kill his psychotherapist, Ms R.[21] [21] Mother’s affidavit filed 9 July 2021, paragraph 8.
In cross examination, her asserted fear was challenged. The mother was asked whether the family violence counselling she accessed “reality tested”[22] her fears and whether there was a reasonable basis for her expressed fears.[23] The mother, when challenged in cross examination, gave evidence of the details of the threats and the basis for her fears.[24] The mother gave evidence of a number of events that caused her fear and concern including the contact from Ms R expressing fear for the mother and Y’s safety, the father taking photographs of her at the swimming pool, a threat made by the father to retain Y and take her to Queensland if the mother did not agree to vary the handover time, and the father’s attendance at school in breach of a restraint where he gave Y a necklace. [22] Transcript 8 May 2023, p. 32 lines 30-45. [23] Transcript 8 May 2023, p. 33 lines 1-9. [24] Transcript 8 May 2023, p. 37 lines 10-15. Ms R (the father’s former psychotherapist)
The mother received a text message from Ms R on 14 April 2014 stating: [Ms Vader] hi, I thought it important to know that [Mr Dantes] has ceased his treatment with me. I’m entrusting this knowledge to you in confidence as I am concerned for the safety of [Y] and yourself, without being alarmist, but you know [Mr Dantes]. Please feel free to contact me should you feel the need to. Regards [Ms R].[25] [25] Annexure “YY” of the mother’s affidavit filed 9 July 2021, paragraph 158.
At around 4.00pm on 14 April 2014 the mother received a telephone call from Ms R who said words to her to the following effect: [Mr Dantes] has chosen not to continue seeing me. I am talking to you because [Y’s] and your safety are a priority for me. On Friday after [Mr Dantes] received the letter regarding access to [Y], he was very disappointed. I support your request that a report should come from a psychiatrist. I am concerned that [Mr Dantes’s] behaviour has or will become irrational. I am not sure if [Mr Dantes] is taking his medication. I cannot be certain that [Mr Dantes] will not harm you or [Y]. Please take additional care. [Mr Dantes] is determined to spend a day with [Y]. I think you should also know that [Mr Dantes] mentioned to me that he is still in possession of a [weapon]. It is my understanding that [Mr Dantes] is seeing [Dr T] once every 2 weeks but I do not know when the last time was that he saw [Dr T]. I have not had any communication with [Dr T]. [Mr Dantes] does not trust anyone. He is selective about what information he shares with key stake holders and this is part of his paranoid behaviour.[26] [26] Mother’s affidavit filed 9 July 2021, paragraph 159.
The father made a complaint about Ms R to the Health Care Complaint Commission (“HCCC”).[27] Ms R responded to that complaint and detailed that she was gravely concerned about the potential threat to the mother and Y and that she took the steps she considered she was required to. Specifically that she: … gave considerable thought to this issue. I was gravely concerned about the situation and it caused me anguish. I consulted a colleague about the matter. The view I had formed on Friday that there was a real and immediate risk of danger to [Y] (sic), [Ms Vader] and [Mr Dantes] from [Mr Dantes’s] state of mind did not abate. Accordingly I sent [Ms Vader] a short text message on Sunday 13 April 2014 expressing my concerns for their safety on the following day when [Mr Dantes] had scheduled supervised access to [Y] (sic) at her day care.[28] [27] Annexure “CCC” of the mother’s affidavit filed 9 July 2021. [28] Annexure “CCC” of the mother’s affidavit filed 9 July 2021.
The contention that the mother’s fears and concerns lacked a reasonable foundation in circumstances where the father’s therapist held “grave concerns that caused … anguish” is an example of either the father’s lack of insight, or complete disregard as to its impact on her. I find the father lacks insight as to the impact of his conduct, behaviour and words on the mother. Mid-2018 father’s attendance at the swimming pool and gymnasium
The father further tested the basis for the mother’s fears by questions regarding his attendance at the swimming pool and gymnasium of Y in mid-2018. The mother gave evidence that the father approached her and had taken pictures of her and the maternal uncle at that time.[29] The fact of his attendance and that he took the pictures as alleged was not challenged. [29] Mother’s affidavit filed 9 July 2021, paragraphs 31–32. The mid-2019 email
A further example of the conduct that caused the mother fear and concern was the incident mid-2019, when the father sent an email shortly after collecting Y from school advising that if the mother did not collect Y as he proposed that he would take her to Queensland for several days.[30] The mother complied with the proposed collection time where she, in effect, had no choice. [30] Mother’s affidavit filed 9 July 2021, paragraph 52.
The timing of sending the email, after he had collected Y, was deliberate. It left the mother with no choice and I find it was both coercive and controlling and another example of his lack of insight into the impact of his conduct on her. The father’s attendance at Y’s school – early 2021
In early 2021, the father attended Y’s school and spoke to Y, giving her a necklace. This was in direct breach of the orders made by consent by a Senior Registrar (as he then was) dated 16 October 2019: 4. That pending further Order, the father be and hereby is restrained from: a) coming into contact in any way with the child [Y] born […] 2013 or from attempting to do so; b) approaching, attending or contacting [Y’s] school and vacation care program and any extra-curricular activities which she attends and her before and after school care; and, c) attending the premises of Swaab, solicitors, situate at 1/20 Hunter Street Sydney.
The mother’s evidence during cross examination was that the father was found not guilty of breach of AVO arising from the necklace incident, but that it was a breach of the family law orders.
As a consequence of this attendance Y was distressed and once again “difficult to settle” and “withdrawn.” The mother gave evidence that Y had mentioned it to her friend on one occasion much more recently.
I accept the mother’s evidence that she was fearful and anxious as a consequence of these events and that the basis for her fears is reasonable and has foundation. The conduct illustrates the father’s propensity to not comply with orders of the court if he elects. Other examples of his failure to comply with orders include his attendance at McDonalds at changeovers, and his communication directly with the mother when it was ordered to be through a nominee.
In respect of the nominee communication, incredibly it was suggested by the father that this supports a finding of a capacity or willingness between the parties to communicate and co‑parent. The contention was put to the mother in cross examination. It is rejected. It shows the father’s capacity to manipulate and be duplicitous in his dealings with the mother, with no insight as to the impact of such a breach of the orders on the mother’s agency, security and wellbeing. Ms N – the mother’s psychologist
The mother’s psychologist, Ms N, provided therapeutic support for the mother which has been ongoing from August 2018 until recently. Her report was accepted into evidence unchallenged and was not the subject of cross examination. Ms N is a psychologist of many years’ experience.
The impacts on the mother are identified in the report of Ms N. Ms N opines that “lengthy and unresolved litigation with [Mr Dantes] has placed [Ms Vader] under considerable emotional and financial stress.” Ms N reported that “[Ms Vader] struggles with anxiety which is heightened by contact with [Mr Dantes] and her belief that [Mr Dantes] has engaged in a pattern of recurring actions designed to intimidate, menace and control her.” Ms N further opined that the father’s behaviour “suggests coercive and controlling violence… that is ongoing and has escalated in the past couple of years in response to various stressors.”[31] [31] Affidavit of Ms N filed 9 July 2021, page 10.
In assessing the characteristics of any conditions suffered by the mother, Ms N reported that: In sessions with me [Ms Vader] reports changes in her previous levels of functioning, hypervigilance when outside of her home and about [Mr Dantes’s] whereabouts, sleep impairment marked by nightmares, tearfulness, intrusive negative thoughts, excessive worrying, persistent feelings of distress and disbelief, sadness, resentment and a sense of powerlessness and vulnerability. She also describes occasions where she has experienced difficulty in concentration and being easily distracted, rapid heart rate, feelings of restlessness and muscle tension, low mood and fatigue. All these symptoms and signs are consistent, and strongly linked, with an anxiety condition and/or chronic stress.[32] [32] Affidavit of Ms N filed 9 July 2021, page 10.
Ms N opined that orders requiring the mother to engage the father would cause her “significantly elevated levels of anxiety and distress. This would be markedly detrimental to her own mental health” which could negatively impact the mother’s “capacity to provide consistent and positive parenting and remain emotionally available to [Y] (sic).”[33] [33] Affidavit of Ms N filed 9 July 2021, page 11.
This supports a finding that ongoing engagements and consultations between the parties would cause high levels of anxiety and stress in the mother.
I accept the mother’s evidence and that of Ms N in this regard.
I find that a risk of direct harm to Y as identified by Dr B and as reported by Ms R exists.
Dr B opines the risk of direct harm to Y is of “developmental harm through her father’s aberrant parental modelling which may expose her to further family violence, risk of paternal emotional neglect or abuse and risk of paternal undermining of her relationship with her mother.”[34] [34] Expert Report of Dr B dated 18 January 2021, paragraph 558.
There is no evidence before the court at all as to the father’s mental health, as referred to later in these reasons. I find that the identified risks and the absence of evidence as to the father’s current mental health are an unacceptable risk.
I find that there is an unacceptable risk of indirect harm to Y as identified by Ms N.
Whether these risks can be ameliorated are central to the decision about orders that are in Y’s best interests. It is necessary to understand the background to this matter prior to answering this question. Background to the current proceedings 2014 – 2019
Parenting proceedings were originally commenced in April 2014. On 8 December 2016 final parenting orders were made by consent by Johnston J (“the 2016 orders”). Prior to those orders being made, Dr B as single expert prepared a report on 30 January 2015 and an updated report on 24 October 2016. Those reports ultimately recommended the mother to have sole parental responsibility; the father to spend initially supervised but increasing time with Y; for a series of injunctive orders; for a continuation of mental health review of the father; and that the mother was able to communicate with his practitioner about any of her concerns and he is to provide her with names of his treaters and that his treaters can communicate with her about whether he is attending sessions or not.[35] [35] Expert Report of Dr B dated 30 January 2015; Expert Report of Dr B dated 24 October 2016 January 2021.
In respect of the second Dr B report, the support the father had from his (then) partner, Ms C, was a significant factor relevant to the conclusions reached and the opinion expressed by Dr B.
The mother gave evidence, which was not in contest and which I accept, that the father did not comply with a number of the 2016 orders,[36] including attempting to communicate directly with the mother despite the restraints on direct communication unless by a nominee or through lawyers,[37] not taking Y to her extra-curricular activities which were not related to school,[38] and attendance at handover of Y at McDonalds,[39] despite orders restraining his attendance.[40] [36] Mother’s affidavit filed 9 July 2021, paragraph 15. [37] Orders of 8 December 2016, orders 6, 7,9,15,16,17,18 and 31; Mother’s affidavit filed 9 July 2021, paragraphs 15-16. [38] Orders of 8 December 2016, orders 5 & 10; Mother’s affidavit filed 9 July 2021, paragraph 29; Exhibit 11, “MV1” page 261. [39] Orders of 8 December 2016, order 17; Mother’s affidavit filed 9 July 2021, paragraphs 25 & 34. [40].Mother’s affidavit filed 9 July 2021, paragraph 15.8.
Despite these issues of non-compliance, in general terms, and until early 2019, time between Y and her father occurred in accordance with the 2016 Orders.
There is no dispute that at the time of separation in 2014, the father was taken to U Hospital as an involuntary patient in relation to mental health issues. Dr B, in his single expert report released in 2015, opined at that time that the father had experienced significant mental health issues and those mental health issues were persisting. He concluded that the father was likely suffering from “an adjustment disorder with anxious mood”,[41] and when coupled with his personality vulnerabilities which the expert described as “a narcissistic personality style with a pervasive pattern of grandiosity, need for admiration, and lack of empathy”,[42] this manifested in “aggressive, coercive, intrusive and threatening behaviour”[43] towards the mother and towards her family support. Dr B recorded that the father had made threats to the wellbeing and life of the mother, child, maternal uncle and Ms R. Dr B made certain recommendations after identifying the risks to the mother and to Y from the father’s mental health issues and from the father’s conduct. Those recommendations were adopted in the 2016 consent orders that were entered into. [41] Expert Report of Dr B dated 30 January 2015, paragraph 164. [42] Expert Report of Dr B dated 30 January 2015, paragraph 182. [43] Expert Report of Dr B dated 30 January 2015, paragraph 247.
In both the 2015 and 2016 reports, Dr B identified matters of risk and concern in respect of the father but ultimately expressed the opinion that the risks that he identified were able to be ameliorated, were low, and could be managed as a consequence of the father’s supportive relationship with his then partner Ms C, his ongoing professional assistance from his psychiatrist and psychologist, and certain proscriptive orders. Accordingly he recommended then that the father should spend time with Y commencing with supervision, but ultimately gradually increasing time subject to those identified measures continuing and being complied with, and eventually moving to unsupervised time.
Dr B put weight on the significance of the relationship between the father and his then partner Ms C in concluding that the father’s partner assisted him to manage his emotional responses. He formed the view that Ms C would be a supportive and skilled augmenter of parental capacity,[44] and was a “monumental help to him”.[45] Her influence, Dr B opined, and her presence one could infer, ameliorated the potential risk for Y in being exposed to the father’s unregulated behaviours. [44] Expert Report of Dr B dated 30 January 2015, paragraph 247. [45] Expert Report of Dr B dated 24 October 2016, paragraph 28.
Importantly at this time Dr B formed the view that his previous overt anxious, aggressive and intrusive behaviours during 2013 and early 2014 were associated with his decompensation into an anxious illness at that time. Dr B observed that the father’s “patterns of emotion and behaviour have been present in the long-term and have persisted to the present time despite the father’s significant recovery from his adjustment disorder.”[46] Dr B also noted that the father’s “personality vulnerabilities carry significant risk of future exacerbations in response to life’s challenges.”[47] [46] Expert Report of Dr B dated 30 January 2016, paragraph 190. [47] Expert Report of Dr B dated 30 January 2016, paragraph 190.
The history of the relationship with the father’s then partner, Ms C is important in that weight was placed on her influence as well as other measures to manage the identified risk in Dr B making the recommendations that he did at that time. The father’s conduct from mid-2019
The mother’s evidence was that from mid-2019 the father’s conduct had become increasingly concerning to her and was causing her increased stress and anxiety impacting on her in many ways.
The father and Ms C separated in 2019. Ms C sent an email to the mother on 17 September 2019 advising that they separated 6 months earlier but “only officially” 6 weeks ago.[48] The father did not tell the mother of the separation. [48] Mother’s affidavit filed 9 July 2021, paragraph 60.
Correspondence from the father to the mother’s legal representatives illustrates the tone and extent of the correspondence,[49] in which the father made allegations as to deficiency in parenting, exposure of Y to inappropriate material, allegations of development delay caused by the mother’s parenting deficiency and various other criticisms of the mother’s parenting.[50] [49] Exhibit 11. [50] Exhibit 11, pages 34, 65, 95, 100, 133, 149, 188, 218, 219, 330 & 402 of MV1.
Other examples of the father’s behaviour causing the mother concern in 2019 are: (a) On 18 June 2019, the father sent an email to the mother’s solicitors containing criticisms of the mother’s parenting, allegations of alcohol abuse by her, and threats to re‑commence proceedings;[51] [51] Mother’s affidavit filed 9 July 2021, paragraph 49. (b) In mid-2019, after the father collected Y from school he sent an email to the mother’s solicitors threatening to take her to Queensland the following week if the mother did not complete handover as he proposed;[52] [52] Mother’s affidavit filed 9 July 2021, paragraph 52. (c) On 27 September 2019, the father attended the mother’s solicitor’s office and demanded to speak to the mother’s solicitor;[53] (d) On 1 October 2019, the mother’s solicitor received an email from the father stating: I will attend [V Street], [Suburb W] until the time that [Y] emerges and then take [Y] into our company for the weekend. If your client appeals to the police to intervene, I will brandish the Orders as evidence that [Y] has a right to see her family for the weekend and that your client is in breach.[54] (e) In late 2019, the father attended the offices of the mother’s solicitors and filmed the receptionist, following which he sent a further email to the mother’s solicitors, annexed to the mother’s affidavit, stating: Failing the above, my family and I will attend [Suburb W] and meet with [Y]. We will return as necessary and remain as long as required to ensure that [Y’s] rights are upheld. Your client is again put on notice not to cause physical or psychological harm to [Y] by exhibiting anger, facilitating conflict or restraining [Y]. [Y] will joyfully transition as it is expected that she is significantly missing her father, brothers, grandparents and extended family. She has been asking after them and she is no longer so young as to not be aware when her mother is hurting her and other people… We expect [Ms Vader’s] urgent confirmation will be forthcoming. If we cannot facilitate a response from you as [Ms Vader’s] agent, I will regress to again consider that your firm is off the record and open direct communication.[55] (f) The next day, the father again attended the offices of the mother’s solicitors and was captured on CCTV;[56] (g) The following day, Ms C reported to the mother that she had found a ‘black shooter’s outfit’ in her home which caused her concern;[57] (h) The next day, after moving into her brother’s home due to concerns as to her safety, the mother saw the father’s car parked outside, facing the wrong way down the street with headlights on;[58] and (i) On that same day, the father followed Ms C in his car until she drove to the police station at Suburb Z at which point there was an incident where the father attempted to remove X from Ms C. The ambulance attended and conveyed the father to BB Hospital.[59] [53] Mother’s affidavit filed 9 July 2021, paragraph 67. [54] Mother’s affidavit filed 9 July 2021, paragraph 71. [55] Annexure “V” to the mother’s affidavit filed 9 July 2021. [56] Exhibit 11, “BR2”. [57] Mother’s affidavit filed 9 July 2021, paragraph 77. [58] Mother’s affidavit filed 9 July 2021, paragraphs 78-79. [59] Mother’s affidavit filed 9 July 2021, paragraph 80.
It was not put to the mother at any time during cross-examination that these incidents did not occur. I accept the mother’s, and her witnesses’, uncontested evidence that the incidents did occur as deposed.
I accept the mother’s evidence of the negative impact these events had on her anxiety and mental health. I accept the evidence of the solicitor’s receptionist Ms O, that the father attended and that she found him to appear “extremely agitated and angry.”[60] Ms O gave evidence that the father was holding his phone case “towards me in what I felt was a threatening manner”, at that moment thinking that “a gun was being pointed at me.”[61] I accept her evidence of that occurrence. The solicitor for the mother found the conduct sufficiently concerning to employ security staff.[62] [60] Affidavit of Ms O filed 9 July 2021, paragraph 5. [61] Affidavit of Ms O filed 9 July 2021, paragraph 4. [62] Affidavit of Ms O filed 9 July 2021, paragraph 12.
I accept the affidavit evidence of Ms C which was not contested, as to the time of their separation; the father’s behaviour at and around that time; that she ceased contact between the father and X from late 2019;[63] and that she did not hand over X in late 2019.[64] I accept that Ms C was fearful of the father. [63] Affidavit of Ms C filed 9 July 2021, paragraph 67. [64] Mother’s affidavit filed 9 July 2021, paragraph 68; Affidavit of Ms C filed 9 July 2021, paragraph 34.
Y reported to the school in late 2019 that she was angry and concerned about not seeing her brother’s again.[65] As a consequence of this discussion, the mother’s evidence was she offered for the teacher to have contact with Mr CC, the child’s psychologist.[66] [65] Mother’s affidavit filed 9 July 2021, paragraph 58; Transcript 8 May 2023, p.49 line 10. [66] Transcript 8 May 2023, p. 49 line 17.
Y told her mother that in mid-2019, the time she spent with the father was at the home of Ms C without Ms C,[67] and that an earlier occasion was in a hotel without M and with X for short time.[68] At this time the mother was unaware of the separation of the father from Ms C. I accept the mother’s evidence that she only became aware of the separation when Ms C sent the mother the email on 17 September 2019 that said “I just want to let you know that [Mr Dantes] and I are separated.”[69] [67] Mother’s affidavit filed 9 July 2021, paragraph 57. [68] Mother’s affidavit filed 9 July 2021, paragraph 55. [69] Annexure “L” of the Mother’s affidavit filed 9 July 2021, paragraph 59. The father’s separation from Ms C
Ms C’s uncontested evidence was that the father’s conduct after their separation included threatening and harassing behaviours, threats that he intended to take the children (M and X), returning to the home seeking entry, and supergluing locks on their home.[70] Ms C’s evidence was that she was sufficiently concerned that she left the home with the children. In late 2019 the father followed Ms C, which led to the incident outside the police station at Suburb Z.[71] As a consequence of this incident the father was taken to BB Hospital by the ambulance service after an incident where he had a panic attack upon the attempted service of an ADVO by the police.[72] The father had run away when leaving the police station with the ambulance officers, but was later located and taken to hospital, where he was served with the ADVO.[73] I find that these events occurred. [70] Mother’s affidavit filed 9 July 2021, paragraph 62; Affidavit of Ms C filed 9 July 2021, paragraphs 25-27. [71] Affidavit of Ms C filed on 9 July 2021, paragraphs 40-55. [72] Affidavit of Ms C filed on 9 July 2021, paragraph 55. [73] Affidavit of Ms C filed on 9 July 2021, paragraphs 55-56.
These events occurred at a time that must have been challenging and difficult for the father. It was opined by Dr B in 2016 that due to the father’s personality vulnerabilities, his response to challenging times would be exacerbated. Local court conviction
The father cross examined the mother and contended that he was found not guilty in the local court of the breach of the ADVO.[74] The father was convicted of common assault by the Local Court arising from his altercation with the maternal uncle’s wife, Ms J, in 2014. The conviction was quashed on appeal at the District Court. [74] Transcript 8 May 2023, p. 37 line 10.
The written submissions provided to the District Court on behalf of the father states: a truly remarkable feature of this case is that the appellant was not cross-examined. It means that his evidence was not directly challenged. It means the magistrate was not able to view the appellant under the rigours of cross examination. The magistrate’s adverse credit finding against the appellant is very unfair, in these circumstances.[75] [75] Mother’s tender bundle, page 433 at paragraph 46.
The judge found that “in the absence of cross-examination…. I am unable to exclude the appellant’s version as a reasonably possibly version. Accordingly, I find the prosecution has not proven the allegation beyond reasonable doubt.”[76] [76] Mother’s tender bundle, page 424.
The transcript of the Local Court proceedings were produced by the mother’s legal representatives and included in her tender bundle for final hearing. It shows that the father was cross-examined by the prosecution during the Local Court proceedings in mid- 2015.[77] [77] Mother’s tender bundle, page 360.
The father must have known himself that he was cross-examined, and that the submission, and her Honour’s finding, were on a false premise.
Objectively, on the evidence before me, that is the only conclusion open. Petrol incident late 2019
It was the evidence of the maternal uncle that at around 7.00pm on a date in late 2019 he found that petrol was thrown over the front door, wall, and the ground of his home. It was his belief that the father had thrown the petrol over the home.
The father’s trial affidavit at paragraph 385 deposes that he was reading bedtime stories to his son on the other side of Sydney at the time of the alleged petrol incident: I have no knowledge of this incident. To my recollection when the police questioned me about it at that time of the supposed incident, I was […] kilometres away on the other side of Sydney reading bedtime stories to my three year old. Upon confirming such, the Police have taken no further action.
The version recorded by police is that the father was home in Suburb RR at the time: … Police got the name of this person, [Mr DANTES] and called him on ……… and asked [Mr Dantes] if he knew anything about this damage to the front door of ……… ……… ……… […]. [Mr Dantes] told police he had no knowledge and was at his home in [Suburb RR] the whole day. Due to insignificant evidence, police have created this event for record purposes only and informed the Victim of the event number and updates of speaking to [Mr Dantes]. No further investigation required.[78] [78]Exhibit 7.
The father was not charged in relation to this incident.
At paragraph 461 of his trial affidavit the father deposes that as at late 2019 he had not seen his son, X, in 8 days. This is corroborated by the evidence of Ms C, which went unchallenged at final hearing. Ms C’s evidence is in late 2019 X spent time with the father though she did not leave him there due to her increasing concerns. At the same time the mother received a message from Ms C that said “Just letting you know I went to drop [X] at the house and [Mr Dantes] got very aggressive with me so I left without handing [X] over. He is accusing me of denying him access to [Y].”[79] [79] Mother’s affidavit filed 9 July 2021, paragraph 68.
The date of the petrol incident, being late 2019, falls within a period during which the father was not spending time with his son X, on his evidence at paragraph 461 and that of Ms C.[80] [80] Affidavit of Ms C filed 9 July 2021, paragraphs 33 & 34.
The father’s evidence that he was reading a bedtime story to his son is demonstrably false. I do not make any finding as to the involvement or otherwise of the father in the petrol incident. Father’s call late 2014
The mother gave evidence that the father left a message that finished with him saying “You cannot take any more away from me and there is so so much that still can be lost so so much… not by me.”[81] [81] Mother’s affidavit filed 9 July 2021, paragraph 168.
Segment #3
Segment #4
Segment #5
On 12 August 2022, Harper J made orders, inter alia, extending the time for the father to file a consolidated trial affidavit to 5 September 2022; that the father’s Application in a Proceeding filed 13 July 2022 be otherwise dismissed; and that the father’s Application seeking recusal filed 8 August 2022 be dismissed.
On 7 September 2022, Harper J made chambers orders vacating the final hearing dates due to judicial availability, and the matter was referred to Altobelli J for case management.
On 11 November 2022, the father filed an Application in a Proceeding seeking, inter alia, that the Application for extension of time to file interim applications in accordance with orders of Altobelli J dated 30 September 2022 be heard at the scheduled interim hearing on 27 January 2023; that the deadline for father to file the three Applications in accordance with the orders dated 30 September 2022 be extended from 11 November 2022 until 9 December 2022; that the mother’s time to respond be extended; and that the final hearing date commencing 8 May 2023 remain.
On 9 December 2022, the father filed an Application in a Proceeding seeking, inter alia, that the father be permitted to tender reports from Mr G; that experts Dr B and Mr G be ordered to attend final hearing for cross-examination; that 28 days prior to trial, an expert conference to occur between parties, Dr B, Mr G and Dr KK; and that the joint statement from the conference may be tendered as evidence of the matters agreed on and to identify which issues will be called.
On 15 March 2023, Altobelli J delivered judgment, making orders inter alia, that the Application in a Proceeding filed on 9 December 2022 be dismissed; that the father be restrained by injunction from filing any Application in a Proceeding or Amended Response seeking interim orders pending the final hearing of the matter; that any Application for costs is to proceed by way of written submissions and determined in chambers and thereafter that judgment is reserved in relation to costs; and that the costs of the Independent Children’s Lawyer be reserved to final hearing of the matter.
Costs were reserved until final hearing in relation to seven of the Applications filed.
I have taken into account the extent of the applications and the outcomes of them. I have also considered that the mother had acted reasonably in the interlocutory and final parenting orders that she sought.
I have also taken into consideration that the mother was effectively forced to litigate this matter, in circumstances where it was the application of the father (despite the expert’s opinion and history) to seek a reversal of the existing arrangements until the filing of his case outline. Objections to subpoena filed by the father
The father filed a number of Notices of Objection to Subpoena, which have all been dismissed.
I do not propose to detail each of the objections that were filed. In summary the father objected to various subpoenas and provided many pages of repeated submissions in support of his objection to the subpoena issued to LL Health Service; Ms MM; Mr CC; NN Support Services; Ms OO; Ms N; School E; PP Contact Centre; HH Support Services; NSW Police and the Department of Home Affairs. The extent of the objections are prolix and voluminous. The material sought was objectively relevant to the determination of orders in Y’s best interests.
A further Notice of Objection was filed by the father on 31 August 2022 objecting to subpoena issued to School E. Directions were made on 24 January 2023 for the father to file written submissions. No written submissions were filed by the father (who was the objector) prior to the hearing in accordance with filing directions. A Judicial Registrar determined the matter on 15 March 2023 and dismissed the Notice of Objection. There was no appearance for or by the father at the Subpoena Hearing on 15 March 2023.
This illustrates the conduct of the father in objecting and causing additional cost to be incurred by the mother. Like the other subpoena material, the records of the school must be relevant to the issue of Y’s best interests and any basis for objection was unclear. Father’s conduct regarding the single expert
The father failed to engage with Dr B, notwithstanding accommodations made by Dr B, as referred to above, and orders of Harper J requiring him to make himself available for interview on 20 August 2020 and 7 September 2020.
In February 2020, Dr B was again appointed as single expert to prepare a report in the proceedings. Ultimately, and following series of interlocutory applications by the father, Dr B produced a further report dated 18 January 2021.
Orders were made by Harper J on 20 August 2020, for the father, inter alia, to take all steps necessary to attend the interviews conducted by Dr B on 24 August 2020, noting at Notation B that: The Respondent father has contended that electronic interviews are inappropriate and that he may otherwise be unavailable by reason of other commitments on 24 August 2020, but the Court has formed the view those are not satisfactory reasons for not participating in the interviews.
Further orders were made by Harper J on 7 September 2020 for the father, inter alia, to take all steps necessary to attend interviews conducted by Dr B no later than 31 October 2020. His Honour further noted at notation A that: The Court requests that [Dr B] complete his expert report after 31 October 2020 irrespective of whether the father has or has not participated in any interviews scheduled to take place with him between 7 September 2020 and 31 October 2020, so that the report is available for purposes of the interim hearing on 29 January 2021.
The history of the Dr B report was accurately summarised by the mother in her Case Outline as follows: 15. … That report was produced without the participation of the father following, inter alia: 15.1 the father seeking that [Dr B] not proceed with his first allocated appointment dates of February 2020, indicating that an application and appeal was to be filed in respect of his appointment; 15.2 the father not attending appointments scheduled by [Dr B] in August 2020 to suit the father’s convenience and which were ultimately the subject of an Order for the father’s attendance of 20 August 2020; 15.3 Orders of 7 September 2020 for the father to make himself available for interview by [Dr B] before 31 October 2020 and for the completion of [Dr B’s] report in any event by that date. The father failed to attend interviews on further dates accepted by him as suitable and made available by [Dr B] prior to that date.
On 21 January 2021, Harper J made the following notations, after the release of the 2021 Report: A. The parties have had a Family Report prepared by [Dr B] and released to them on 18 January 2021. B. The Respondent Father takes objection to the receipt of the Family Report as evidence, apparently on the basis that he perceived it to be the result of a biased approach by [Dr B], as well as for a range of other reasons not all of which I found easy to follow. It therefore appears that there will be an issue raised by the Respondent Father about the receipt of the expert evidence of [Dr B].
As identified above the father failed to engage in the expert report process and ultimately did not test the opinion of Dr B at the trial.
The cumulative impact of the conduct of the father is a further factor that weighs in favour of a departure from the principle that each party should bear their own costs.
I find that the father intentionally ran his case in a manner that would cause the mother to incur additional costs. Although he was self-represented throughout the proceedings, the father would have had an awareness of the costs being incurred by the mother and knew what the impact of his conduct would be. Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
The evidence of the mother, which I accept, is that the father failed to comply with previous final consent orders made in 2016, however, I note that both parties ultimately sought to substantially vary the 2016 orders. Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The mother contends that the father has been wholly unsuccessful.
The mother contended, and I find on the evidence, that the moving party since the suspension of the 2016 orders was the father and that his applications were sought “against not just the preponderance of the evidence, but we would say the entirety of the evidence, including that of [Dr B], which he elected not to engage with.”[134] [134] Transcript 9 May 2023, p.132 lines 13-15.
The father, sought orders, in general terms, for equal shared parental responsibility, for Catlin to live with him, and for Y to spend time with the mother. He maintained his Response seeking such orders even after the release of the report of Dr B, which recommended no time and possibly limited communication orders.
The orders I make provide for the mother to exercise sole parental responsibility, for the child to live with her, and for the father to spend no time with the child. Further, injunctions were made to prevent the father coming into contact with the child.
The father filed a Notice of Discontinuance after the first day of seven days, did not engage in any way in testing of the evidence after this time, made no submissions, was aware that the Independent Children’s Lawyer’s position aligned with the mother and the single expert’s recommendations and that his application received no support in the evidence from the single expert. I find that the father has been wholly unsuccessful.
In Higginbotham & Robinson (1991) FLC 92-209 at 78,417, Nygh J stated that the concept of being wholly unsuccessful is “a situation in which the proceedings as a whole have been unsuccessful. In other words, in which an application which was without merit has been dismissed.”
It is highly relevant to my decision to award costs in favour of the mother that the father was wholly unsuccessful in obtaining the orders he sought. Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer
The mother, through her lawyers, made an offer of settlement dated 26 August 2021 in more favourable terms than the ultimate outcome of the matter. Exhibit 19 dated 26 August 2021 set out the offer and put the father on notice of an application for costs in the event the matter proceeded.
Additionally the mother’s material “MV1”, marked as Exhibit 11 contained numerous letters each of which put the mother’s position and advised the father of the mother’s intention to seek costs if proceedings are recommenced.[135] [135] Exhibit 11, “MV1” at pages 30, 37, 49, 152, 226, 310 and 406-407.
Pages 68 – 76 of the mother’s tender bundle provides a series of email correspondence between the father and the mother’s legal representative. The first email, consists of an offer from the father to the mother’s solicitor to settle, as accepted by senior counsel for the mother in submissions, although I note the offers themselves have been omitted. The mother submits that this correspondence and offer is “no more than a series of threats designed to coerce, control, intimate (sic), threaten my client across every level.”[136] For example, in discussing the offer, the father states in correspondence “The key settlement deadline above in (sic) 11 October 2020. After that, your client loses up to another $500,000 and her daughter in the longer term.” [136] Transcript, 9 May 2023, p. 126 lines 6-7.
I accept the submission that whatever the offers may have been, they were contained within correspondence that was part of a course of conduct by the father that was designed to coerce, control, intimidate and threaten the mother. I do not however have before me the offer made by the father.
I have regard to the mother’s offer of settlement made on 26 August 2021 which in essence adopted the recommendations of the single expert. Any such other matter as the court considers relevant
Between the 2016 final orders and the commencement of these proceedings, the mother put the father on notice that if the matter returns to court she would be seeking indemnity costs. For example, in MV1 (Exhibit 11) at page 152, there is a letter from the mother’s legal representative to the father stating “In the event you return this matter to court we will seek costs against you on an indemnity basis”. Further references to indemnity costs in correspondence with the father formed a part of MV1 (Exhibit 11) at pages 30, 37, 49, 226, 310 and 406-407. Consideration of the exercise of discretion in respect of costs
The first question is whether the circumstances of the case mean that the starting point of each party bearing their own costs should be departed from by reference to the factors referred to above.
The father filed a Notice of Discontinuance in respect of the orders he was seeking on the morning of the second day of the trial. He failed to engage with the key issue of the risk to Y in spending time and communicating with him. All parties were on notice of the issues of risk having had the benefit of Dr B’s reports from the earlier proceedings as well as the updated report. The selective way in which the father engaged with Dr B, being only for the observation session with Y, makes the conclusion that he opted out of the process irresistible.
The father having been wholly unsuccessful in his application, is one factor that supports an award for costs. That lack of success occurred in a broader context that the mother’s evidence was tested in cross examination and findings have been made by me accepting her evidence in relation to the factual matters she alleged. Those matters are dealt with above and included the contentions in cross examination that her concerns and fears were without a reasonable basis, that there were no threats made, and that communication was able to occur as established by the father pretending to be the nominee.
The father’s case failed in circumstances where he was seeking a change of residence in his application, until 10 April 2023 where the Case Outline identified his case was limited to the question of if there should be time and if so what time. This is an appropriate case for an order for costs to be made
While I am mindful of the necessity for care to be exercised prior to awarding costs in parenting proceedings, noting the policy consideration of the desirability of parents being able to put their case in pursuit of orders that they contend are in the best interests of their child, this is a case where it is appropriate for a costs order to be made.
I conclude this after carefully considering the outcome; the offer to settle; the circumstances of this case and the conduct of the father referred to above; the procedural background; and number of failed applications and subpoena objections filed by the father. In considering these matters and all of the matters referred to above I am persuaded that this is an appropriate case and it is in the interests of justice for an order for costs to be made.
Having taken into account the relevant factors discussed above cumulatively, they are sufficient to warrant departing from the starting point that each party bears their own costs and it is appropriate that the father pays the costs of the mother in this case. On what basis should costs be paid?
The second issue is the basis on which the costs should be paid. I must consider whether the circumstances, as outlined above, fall into the description of a “special or unusual feature” that is necessary to justify an order for indemnity costs. For the reasons herein I am satisfied that the factors justify an order for indemnity costs.
In Somers & Ettridge [2020] FamCAFC 37, Strickland J confirmed at [18] that “an imprudent refusal of an offer of compromise” might, in an appropriate case, warrant the exercise of discretion to award indemnity costs.
The mother did make an offer to settle on more favourable terms than the ultimate orders.
I am satisfied that the factors I have identified in relation to the conduct of the father throughout these proceedings as detailed earlier in these reasons rise to the “exceptional circumstances” required for an indemnity costs order to be made. I note in particular the father’s persistence in resisting (through applications) and failing to comply with orders of the court, and that the father has been dishonest and deceptive in representations made to the mother and to the Court, examples of which include his purported communication with the mother through a nominee and his assertions relating to his conviction in the local court whilst knowing, as I have found, that the decision made by the appeal court was not accurately informed.
I note that Rule 12.13(4) of the Rules have not been met. Rule 12.13(4) states that: (4) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement or cost agreements in relation to those costs and, if so, the terms of the cost agreement or cost agreements. (emphasis added)
I was not informed at the final hearing of the existence or otherwise of any costs agreement, either in the material relied upon by the mother or in oral submissions. Nor was I informed of the terms of any such costs agreement. Generally, such an omission is fatal to an application for indemnity costs,[137] however given that costs is an area in which the Court has a wide discretion I am of the view that the circumstances of this case permit me to dispense with compliance with Rule 12.13(4). [137] See Gabaldon & Gabaldon [2015] FamCAFC 59 at [150]-[16]; Senfl & Blee [2017] FamCA 901 at [137]-[139]; Gaber & Akhtar (No 2) [2021] FamCA 147 at [23], [29]; Yanez & Yanez [2021] FamCA 148 at [22]; Albert v Plowman [2022] FedCFamC1F 243 at [46].
The Full Court in the decision of SCVG v KLD [2017] FamCAFC 95 determined that a failure to provide a costs agreement in accordance with the rules does not invalidate an order for indemnity costs. This was so in circumstances where the trial judge had a close familiarity with the litigation, seeing as the purpose of the Rule is to ensure that the Court is aware of the extent of the costs that will be payable, and where the costs ordered by the trial judge did not fully indemnify the wife (costs were ordered on an indemnity basis for half the amount of total costs incurred by the wife).[138] I am satisfied that the features of SCVG & KLD are analogous here in that, despite not having a costs agreement, I am able to discern the extent of the costs incurred by the wife by considering all of the evidence. [138] SCVG v KLD [2017] FamCAFC 95 at [60] - [62].
Having regard to the history of the matter, the number of applications made and court events the parties have attended, the complexity of facts, the parties’ attendance on and appointment of experts, and the level of experience, specialisation and seniority of the legal representatives concerned, I am satisfied that the mother has incurred these costs fairly, reasonably and proportionately in order to meet the case advanced by the father.
As such, I am satisfied that I am able to award costs on an indemnity basis. Costs to be paid - fixed $323,720.15
Rule 12.17 of the Rules set outs the methods of calculating costs. These include the Court fixing a specific amount for costs (r 12.17(1)(a)) or an order for the costs to be assessed on a particular basis (r 12.17(1)(b)).
In Stoian v Fiening (Costs) [2014] FamCA 944 at [91], Kent J endorsed the principles for applying a rule (equivalent to r 12.17) as identified by Einstein J in Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23 at [9]. Consistent with those principles it may be appropriate for the court to fix a lump sum and by doing so avoid delay and cost of the requirement of taxation. For the reasons that follow I find it is appropriate to fix costs.
The mother has experienced financial and emotional burden as result of this litigation which, as set out above she was effectively compelled to conduct. To impose upon her further cost and delay associated with as assessment of costs, including given the likely inability to communicate with the father as he has closed his email address, cancelled his phone number and not advised of his address.[139] I am satisfied that it is appropriate to make an order for the father to pay the costs of the mother in a fixed sum as permitted by Rule 12.17. [139] Exhibit 8.
The actual costs incurred by the mother for both proceedings and estimated costs to final trial of $850,375.53 is set out in her costs notice. I note the mother sought indemnity costs of $490,485.07 for the current proceedings.
I also note and give some weight to the father’s prediction that the costs the mother would incur would be $500,000 which was surprisingly accurate. Perhaps his insight was due to his previous employment.
It must be noted that the additional costs incurred by the mother are not solely attributable to the conduct of the father. This matter was delayed in coming to final hearing, which was primarily due to a lack of judicial resources. This matter had a history of litigation over a number of years and there were multiple unsuccessful interlocutory applications made. Many of those applications were filed in circumstances where, although the updated report had been obtained, no date for the final disposition had been allocated. An order was made for expedition that did not result in a trial initially being allocated until 20 months after the updating report was prepared (18 January 2021). In fact, the final trial did not take place until over two years after the preparation of the updating report. Additionally, the application made by the mother that was ultimately successful of no time and no communication, was also a late development, as in her Amended Application for final orders dated 24 August 2021 she had also sought some communication orders. It was only on 11 April 2023 when the mother sought an injunction against communication in her minute in her filed Case Outline.
Whilst I am not of the view that the father’s conduct was the only causative factor in the delay of the matter proceeding to final hearing, I am satisfied that the father’s conduct as detailed in these reasons above has caused the mother to incur more than half of the costs she has incurred. In my view I am satisfied that the just sum for the father to pay is 66 percent of the actual costs the mother seeks as indemnity costs being $323,720.15.
I make this finding given the nature of the proceedings, the number of interlocutory applications filed by the father that were dismissed; the number of objections to subpoena that were filed by the father and dismissed; the father’s lack of engagement with the single expert and his evidence; the late filing of the Notice of Discontinuance, and that the father was wholly unsuccessful in his application.
In concluding the figure of $323,720.15 is an appropriate figure, I am satisfied that the costs have been fairly, reasonably and proportionately incurred. I have also taken into account the necessity for the mother to comply with all relevant rules and orders of the court, including requirements to file relevant evidence and documents; that she has acted reasonably in raising, pursuing or contesting the allegations and issues raised; that she made reasonable efforts to resolve the dispute through the offer of settlement referred to herein; and that she had to respond to multiple interlocutory applications a number of which were, in my view, either not reasonably necessary in the circumstances of the proceeding or repetitive. The history set out in these reasons illustrates the nature and number of applications.
In considering that her legal costs are fair, reasonable and proportionate in amount, I have had regard must to all relevant matters including, but not limited to, that the costs reasonably reflect the level of skill, experience, specialisation and seniority of the lawyers concerned and the level of complexity and difficulty of the issues involved, including that the orders being sought were for no time and that there were three comprehensive expert reports over time.
Finally, it is appropriate for the mother not to have any additional costs in having her costs taxed. In my view the figure is appropriate. As I have fixed costs, I do not need to, but for completeness I certify for senior counsel in accordance with rule 12.28 of the Rules due to the complexity and history of the matter.
| I certify that the preceding three hundred and thirty-seven (337) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran. |
Associate:
Dated: 19 July 2023
SCHEDULE ONE:
Minute of orders sought by the Mother
1 That the Orders dated 8 December 2016 be discharged.
2 That the mother have sole parental responsibility for the child, Y born 2013 (“Y”).
3 That Y live with the mother.
4 That, the father be and hereby is restrained from:
4.1 Coming into contact, approaching or communicating in any way with Y including face to face, through voice, typed word, internet or other media or from attempting to do so;
4.2 Intimidating or harassing Y;
4.3 Contacting or communicating with Y indirectly including via a family member, friend or representative of the father;
4.4 Approaching, attending or contacting Y’s school and/or vacation care programme and any extra-curricular, co-curricular and sporting or other activities which she attends and her before and after school care whether, at the time, Y is present or not ;
4.5 Approaching, attending, contacting and/or communicating in any way with Y’s medical practitioner, psychotherapist/psychologist or any other health practitioner or allied health care worker attended by Y.
5 The father shall be restrained from directly contacting the mother other than via her solicitors and shall not approach or attend at the mother’s home or approach the mother or the child while they are in a public place, and shall not harass and/or intimidate the mother, Y or the mother’s family and, when applicable, the mother’s partner and his family.
6 The father shall be restrained from:
6.1 Contacting the mother or any of her relatives and when applicable, the mother’s partner and his family;
6.2 Intimidating or harassing the mother or her relatives and when applicable, the mother’s partner and his family;
6.3 Communicating with the mother;
6.4 Approaching the home or workplace of the mother;
6.5 Communicating with Y;
6.6 Approaching or contacting Mr H and his family including Ms J, Ms K and Mr L;
6.7 Approaching the homes of Mr H and his family including Ms J, Ms K and Mr L;
6.8 Approaching the offices of Swaab;
6.9 Approaching, communicating or contacting the mother’s treating therapist or medical practitioner directly or indirectly;
6.10 Approaching any of Y’s schools, after school care or activities.
7 The mother shall not be required to disclose her address or contact number to the father.
8 That pursuant to Section 11 of the Passport Act 2005, the mother shall be authorised to do all acts and things necessary to apply for and maintain and keep updated a current Australian Passport for Y without the consent of the father.
9 That the mother and Y shall be permitted to travel outside the Commonwealth of Australia without the consent of the father.
10 That the mother shall retain Y’s passport for safekeeping.
11 That the mother shall be injuncted from permanently relocating with Y out of the Commonwealth of Australia. The Court notes the mother undertakes that it is not her intention to relocate out of the Commonwealth of Australia and it is her intention to live permanently in Australia with Y.
12 That the father shall be restrained and injuncted from posting any material, whether written or pictorial, on Facebook and/or any other social media that relates to the mother, Y and/or the mother’s relatives and/or all of them, either directly or indirectly and/or relates to these proceedings and/or any issues in these proceedings and, in particular, the father shall remove any existing postings relating to Y and/or the mother directly or indirectly and remove any Facebook page he has posted in the name of Y or any derivative thereof or in any way associated with Y and shall be injuncted from posting any other Facebook page in Y’s name.
13 That the mother shall be permitted to release to any therapist treating her the reports prepared by Dr B in these proceedings.
14 That the father shall be permitted to release to any therapist treating him the reports prepared by Dr B in these proceedings.
15 That the mother shall be permitted to release to any therapist treating Y the reports prepared by Dr B in these proceedings.
16 That the mother shall be at liberty to provide a copy of these Orders to Y’s school, vacation care programme and the provider of any co-curricular, extra-curricular and sporting or other activities, any medical practitioner, psychologist/psychotherapist and allied health professional seen by herself or Y, and before and after-school care and the New South Wales police and Australian Federal Police and Australian Border Force.
17 That the father is restrained by injunction, except with the leave of the court by a Senior Judicial Registrar or Judge from commencing any proceedings in relation to the mother and/or child without the leave of the Court being first obtained.
18 That each of Orders 4, 5 6 and 12 herein are Orders pursuant to section 68B of the Family Law Act 1975 for the personal protection of the mother and Y and, for the avoidance of doubt, are injunctions for the personal protection of the mother and Y for the purpose of section 68C of the Act.
19 That the father shall pay the mother’s costs of and incidental to this Application fixed in the sum of $490,485.
Minute of orders sought by the father
1. That the Orders dated 8 December 2016 be re-instated, excepting the following Orders be deleted:
a. 3, 3.1 to 3.5, 3.7
b. 6
c. 8
d. 14
e. 15
f. 17
g. 18, 18.1 to 18.3
h. 19
i. 20
j. 23
k. 24
l. 28, 28.1 to 28.5
m. 29, 29.1 to 29.4
n. 30
o. 31
p. 37
q. 38
r. Annexure “A”.
2016 Orders retained:
IT IS ORDERED
BY CONSENT final orders be made in accordance with the document titled “Minute of Consent Orders” signed by me and placed with the Court papers, as set out hereunder:
1 That the mother shall have sole parental responsibility for the child, Y born 2013 (“Y”).
2 That Y shall live with the mother.
3.6 That from 2 June 2018, the father shall spend each alternate weekend Friday after school (or 3.OOpm if Y is not at school) until 6.00pm Sunday evening with Y.
3.8 That from the date that Y reaches the age of eight years the father shall spend time with Y during school holiday periods as follows:
(a) during school holiday periods for half of the term 1, 2 and 3 school holidays, being the first half in even numbered years and second half in odd numbered years; and
(b) in the term 4 school holiday period for a period of five days and 4 nights for the first three weeks of the school holiday period commencing at 9.00am on the first Saturday following the conclusion of school and finishing 6.00pm on the day following the fourth night
3.9 That from the date that Y reaches the age of 10 years the father shall spend time with Y for one half of all school holiday periods being the first half in even numbered years and the second half in odd numbered years.
4. Notwithstanding any contrary provision in these Orders, Y shall spend time with the mother and the father’s time with Y shall be suspended as follows:
4.1 On the Mother’s Day weekend from 6:30 pm Saturday to 6:30 pm Sunday;
4.2 In the years 2017 to 2020 inclusive for a two week consecutive period to allow the mother to go on holidays with Y, such two week period to be notified to the father as soon as practicable and not less than 28 days prior to the holiday period;
4.3 On religious holidays and the mother shall notify the father via the communication book of the relevant dates of these holidays at least 28 days prior to the date and, in the event these holidays fall on a day that Y is otherwise with the father, then the mother shall provide make up time to the father;
4.4 The mother’s birthday for a period of 4 hours between the hours of 3.00pm and 7.00pm if Y is not otherwise with the mother;
4.5 From 28 February 2020 and each year thereafter from 9.00am on Y’s birthday to 9.00am the next day if not at school and in the event that Y is at school, then from 3.00pm on Y’s birthday to 9.00am the next morning.
5 Notwithstanding any contrary provisions in these orders, Y shall spend time with the father and the mother’s time with Y shall be suspended as follows:
5.1 On Father’s Day in 2017 from 8.00am to 5.00pm and thereafter each Father’s Day from 6.30pm on the Saturday of the Father’s Day weekend until 6.30pm on the Sunday;
5.2 On the father’s birthday for a period of 4 hours between the hours of 3.00m and 7.00pm if Y is not otherwise with the father;
5.3 On Y’s birthday in the years 2017 to 2020 for a period of 3 hours from 3.00pm to 6.00pm on that date provided that the father is supervised in accordance with Order 3 .1 in the year 2017;
5.4 In 2021 (Y’s birthday) and each alternate year thereafter, from 9.00am on Y’s birthday to 9.00am next morning if not at school and, in the event that Y is at school from 3.00pm on Y’s birthday to 9.00am the next morning;
5.5 Each Christmas day provided the father is in Sydney between the hours of 8.00am and 6.00pm;
5.6 On Y’s half brother, X’s birthday or on the day of his birthday party provided that this does not fall on a school day and the father does not otherwise have Y. To facilitate this Order, the father shall provide the mother with 28 days’ notice as to the day and times that Y is to spend with him to celebrate X’s birthday.
5.7 On Y’s step brother M’s birthday or on the day of his birthday party provided this does not fall on a school day and Y was not otherwise with the father provided that the father advise the mother as to the date and times at least 28 days prior to the birthday or party;
5.8 Y shall attend the wedding of her father and his partner provided that it is in the Sydney metropolitan area for a period of 8 hours provide that the father notify the mother of these arrangements via communication at least 28 days prior to the event
5.9 That in the event that Y is invited to a party or other sepcial occasion at a time when Y is spending time with the father, the father shall ensure that Y attend that party or special occasion;
5.10 That the mother shall provide in the communication book all details of Y’s extra-curricular activities and both parents shall ensure Y attends those extra-curricular activities during the time Y is in their care.
7. That father shall be permitted to communicate by telephone with Y from the age of five each Wednesday between the hours of 6.00pm and 7.00pm with the mother or her nominee to telephone the father’s nominee at a telephone number provided by the father for that purpose.
9. That from the commencement of school the father shall be at liberty to attend special events at Y’s school or extra-curricular activities provided that the father does not approach the mother, or Y when with the mother and shall not attempt to communicate with the mother in any manner or through any third person.
10. That the father shall be permitted to contact the school at which Y attends and this Order shall be regarded as authority for the school to provide the father with any information with regards to Y’s progress he requires including but not limited to a copy of Y’s school report, school photographs, school newspapers and notices.
11. The father shall be permitted to attend parent teacher interviews with Y’s teacher provided that he does not attend at the same time as the mother. The mother shall advise the father’s nominee as soon as practicable of the date and time of !1er parent teacher interview.
12. The mother shall notify the father’s nominee as soon as practicable of:
12.1. any significant illness, accident or injury suffered by Y;
12.2. any significant medical or dental treatment provided to Y;
12.3. any medication Y is to take whilst Y is in the father’s care including dosage;
12.4. any delay in the mother attending the changeover for time between Y and the father as a result of unforeseen circumstances
and notification may be by text or SMS message in relation to Order 12.4 herein;
13. That the father’s nominee shall as soon as practicable contact the mother should there be:
13.1. any significant illness, accident or injury suffered by Y;
13.2. any significant medical or dental treatment provided to Y;
13.3. any medication Y has taken whilst Y was in his care including dosage;
13.4. any delay in returning Y as a result of any unforeseen circumstances
and notification may be by text or SMS message in relation to Orders 13.4 herein.
16. The father and the mother shall:
16.1. not contact the other or any of their relatives;
16.2. not intimidate or harass the other or any of their relatives;
16.3 only communicate with the other via their solicitor or nominee;
16.4. not approach or attend the other’s home; and
16.5. not approach the other or Y when Y is with the other;
16.6. not approach or attend Mr H’s home.
22. The mother shall be injuncted from permanently relocating with Y out of the Commonwealth of Australia. The Court notes the mother’s undertaking that it is not her intention to relocate out of the Commonwealth of Australia and it is her intention to live permanently in Australia with Y. The mother shall file an undertaking to this effect.
25. That the mother shall be permitted to travel overseas with Y provided:
25.1 that the mother. may take Y for a holiday in each calendar year for a period up to 21 days;
25.2 that the father be restrained from travelling on the same aircraft as the mother;
25.3 that no less than 6 weeks prior to the intended trip the mother shall provide to the father details of the trip including the location and destination of travel and a telephone contact number on which the father can contact Y during the period of travel;
25.4 that in the event that any of the mother’s relatives in Country QQ becomes seriously ill or dies then Order
25.3 is suspended and the mother shall be permitted to travel overseas with Y immediately for a maximum of 6 weeks.
26 That in the event that the father wishes to travel overseas with Y in accordance with Order 20 herein the father shall be permitted to travel overseas with Y provided:
26.1. that the father may take Y for a holiday in each calendar year for a period of up to 21 days;
26.2. that the holiday occurs in the designated school holiday periods;
26.3. that not less than 6 weeks prior to the intended trip the father provide to the mother details of the trip including the location and destination of travel, the name of accommodation, address and telephone contact number on which the mother can contact Y during the period of travel;
26.4 that 2 weeks priot to any overseas holiday the mother shall provide the father with Y’s passport and immediately upon Y’s return to A:ustfalia the father shall return the passport to the mother.
27. Both parties are restrained from using physical discipline with Y.
32. Each party be restrained from critical or derogatory remarks about the other in the presence or hearing of Y.
33. Each party is responsible for the day to day care (excluding major decisions) of the child whilst the child is in their care.
34. The father is permitted to bring or involve with his time any person that he chooses.
35. The father is permitted to spend time with the child in a range of settings at his discretion including his home.
36. Both parties be restrained from purchasing violent toys for the child (weapons of any sort).
SCHEDULE TWO: SUMMARY OF OUSTANDING COSTS APPLICATIONS
SCHEDULE OF RESERVED COST ORDERS
1 Orders dated 29 January 2021.
Orders in relation to Applications in a Case filed by the Respondent on:
(a) 5 February 2020
(b) 3 June 2020
(c) 29 June 2020
(d) 13 August 2020
(e) 17 August 2020
(f) 5 September 2020
and any other outstanding Applications. All applications dismissed. Order 5 reserves the costs of the parties until Final Hearing.
2 Orders dated 18 October 2021.
Directions Hearing adjourned because Respondent filed an Application in a Proceeding on 15 October 2021 seeking to recuse his Honour Justice Harper. Order 5 reserves the costs of the mother and Independent Children’s Lawyer.
3 Orders dated 8 November 2021.
Father’s Application in a Proceeding seeking the recusal of his Honour Justice Harper heard. Recusal Application dismissed. Order 2 reserves costs.
4 Orders 15 March 2023.
Orders after Application in a Proceeding filed by the Respondent husband on 9 December 2022 which was dismissed. Order 3 required the Application for costs by wife to be made by Written Submissions. Orders made to file such Submissions on costs by the Applicant and Respondent. Those submissions have been filed by the parties. His Honour Justice Altobelli has not delivered Judgement with regards to the Cost Application. The costs of the ICL have been reserved.
5 Orders dated 15 March 2023.
Subpoena Hearing as a result of Notice of Objection - Subpoena filed by the Respondent on 31 August 2022. Objection dismissed. Order 5 orders the costs of the Applicant and Independent Children’s Lawyer be reserved. There was no attendance by the Respondent on that date.
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