Vincent and Vincent - [2009] FMCAfam 308

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VINCENT & VINCENT

[2009] FMCAfam 308

FAMILY LAW – Parenting orders – continuing dispute as to care arrangements – allegations of severe and unwarranted discipline – discontinuation by Father of Response to the Application – costs sought by Mother as a result of expenses incurred in preparing for trial – failure by Father to properly or at all participate in preparation of second report or to advise of his intentions – consideration of various matters relating to parenting of the children – whether equal shared parental responsibility is appropriate in the circumstances – considerations arising pursuant to section 60CC(2) and (3) – consideration of factors regarding an application for costs – consideration of special circumstances arising pursuant to s.117AB.

Family Law Act 1975 (Cth), ss.60CA, 61DA, 65DAA, 60CC(2) & (3), 117(1)-(2), (2A), (4), (5), 117AB
Federal Magistrates Court Rules 2001

Applicant:

MS VINCENT

Respondent:

MR VINCENT

File Number:

BRC 10096 of 2007

Judgment of:

Coker FM

Hearing date:

12 February 2009

Date of Last Submission:

12 February 2009

Delivered at:

Brisbane

Delivered on:

12 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr Burridge

Solicitors for the Applicant:

Biggs Fitzgerald Pike

Solicitors for the Respondent:

Respondent appears on his own behalf

ORDERS

That the mother have sole parental responsibility of the children, [X] born in 1997 and [Y] born in 2000.
That the children live with the mother.
That the father spend time with the children as may be agreed with the mother.
That the father be restrained and an injunction hereby issue restraining the father from approaching the children [X] and [Y] at their school but that this injunction not apply at times of parent/teacher evenings, school concerts, school sports days and end of year award nights.
That the father pay the mothers costs incidental to these proceedings fix at the sum of $12, 265.00 such sum to be paid to the mother or her legal representatives within forty-two(42) days of the making of this Order.
That this Order constitute an authority for those persons or institutions, schools, doctors and health professionals to provide any information in regards to the children to the father.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 10096 of 2007

MS VINCENT

Applicant

And

MR VINCENT

Respondent

REASONS FOR JUDGMENT

These proceedings relate to orders sought with regard to the parenting of two young children, [X], born in 1997 and therefore just recently turned 11 years of age, and [Y], born in 2000 and therefore shortly to turn nine years of age.
The children are the children of the relationship of Ms Vincent and

Mr Vincent. For convenience I shall refer to them during the balance of these reasons as the mother and the father.
The mother and the father married in 1992 which is perhaps far less relevant than what has occurred subsequent to separation on a day in September 2005. In other words, for about the last three and a half years there has been, unfortunately to certain degrees, levels of difficulty in relation to arrangements with regard to the parenting of the children.
Circumstances certainly took what might be called a turn for the worse in the latter part of 2007, when certain complaints and concerns were raised, particularly by the child, [Y], in relation to what she says was, at the very least, overly severe discipline meted out by her father to her.
As a result of inquiries made in relation to those particular concerns in October 2007, the father was charged with an assault in relation to the children, which led to certain limitations in relation to his time with the children and thereafter, from about December 2007 and continuing thereafter, there have been various degrees of difficulty, in relation to the care and supervision of the children. In fact, orders were made at one stage which provided only for the father to have time with the children of a supervised nature, but it appears that there have been other issues which have arisen in relation to the parenting of the children, and I shall comment upon a number of those.
The original application filed in relation to the matter was in August 2007. It should be noted, particularly, that the originating proceedings commenced before there were any specific allegations raised with regard to the issue of severe or overtly harsh discipline in relation to the children. The relevance of that is obvious. There could not be, on the part of the mother, any suggestion that her motivation in relation to bringing proceedings, both in respect of financial matters and children's matters, was motivated by issues of malice on her part.
There have been various negotiations over time though, unfortunately, no resolution of issues. In the case outline which was filed in the last few days, the mother, through her legal representatives, details the final orders that she seeks in relation to the children. They are little different from that which has been, by agreement initially and subsequently by order, in place with regard to the children's care and supervision.
The mother proposes that the children should live with her, that they should spend time with their father, at times as agreed between the parties, and the mother says that an injunction, which was originally placed in relation to arrangements in respect of the children in March 2008 should be discharged, but there should be a specific injunctive relief relating to a restraint upon the father from approaching the children at their school subject, of course, to the father being able to attend for the appropriate arrangements that might occur at the school such as parent/teacher evenings, school concerts, sports days, end of year award nights and the like.
There is also an indication, and I have heard submissions in relation to whether or not certain orders should be made in relation to the costs that the mother has incurred in relation to these proceedings. That submission arises out of a number of more recent developments, the most recent of which is the discontinuance by the father of any involvement by him in the proceedings before the Court at this time.
The father filed yesterday, 11 February 2009, a notice of discontinuance. The father appeared before the Court today, though it is not exactly clear to me why he did so. It appears, simply to indicate that he was not proceeding further in relation to the matter and that he wished to hand up a copy of the notice of discontinuance. I advised that it was on file and before taking his leave from the Court the father indicated, quite passionately I thought, that he wished it to be recognised that he dearly loved his children and wanted only the best for them but considered that the circumstances that currently existed were such that there was little likelihood of there being any proper resolution in relation to matters, though one might assume that that was based on a resolution upon the basis of what the father might wish to obtain, in relation to this matter.
With the greatest respect to the father and acknowledging only the limited opportunity that I had to observe him and to hear from him, his plea seems very much to be a further reflection of the concerns that were expressed by Mr Moriarty, the report writer, in relation to the behaviours of the father. If you like, there seemed, just in the few moments that he appeared before this Court today, to be a further example of the minimisation that might be arising with regard to the father's acceptance of any responsibilities for the difficulties in relation to these proceedings and, in particular, the difficulties that he referred to in his interaction with the mother and the difficulties that are obviously apparent and continuing in relation to the relationship between he and each of his children. I shall comment a little further in relation to those particular aspects of the matter in due course.
Before going on to address issues in relation to the law and, of course, the basis upon which a decision is to be made in respect of these proceedings, I should comment particularly upon some of the evidence that was called.
In particular, I had the opportunity briefly of seeing the mother in the witness box but also, of course, had the opportunity of reading a number of the documents that have been filed and, in particular, the mother's trial affidavit filed on 29 January 2009. As a result of having read the material and also having had the opportunity to see the mother in the witness box, I was heartened by what I thought was the overwhelming consideration of the mother, which was not necessarily what she might like, one would expect that that might possibly be most easily defined as a ‘quiet life’, but that she was motivated primarily, if not exclusively, by a wish to ensure that the best interests and the welfare of the children were met and that their relationship, however it might further develop with their father, be encouraged and fostered. She is to be commended most highly for the most appropriate and proper approach that she takes in relation to this matter.
The mother gave some brief oral evidence, which was basically an update of situations with regard to the children. In particular, it is noteworthy that there was reference to the fact that previous orders that have been made in relation to the opportunity for the father to spend time with the children appeared to terminate at or about 15 December 2008. The mother obviously, even before that conclusion of such arrangements, had provided instructions to her solicitors to put forward proposals in relation to further opportunities for the father to spend time with the children. Further time was suggested for the weekends of 4 and 18 January 2009 and also for 1 February 2009, though to continue on a supervised basis.
It was the mother that instituted such arrangements. I have absolutely no doubt that her motivation was purely and simply to ensure that the children's right to a meaningful relationship with their father was fostered but it is also, of course, a most appropriate reflection of her recognition of the importance of that to the children and, even though it obviously leads to difficulties for her with both time and financial expense associated with arranging such matters, she continues to put the children's wishes, interests and needs to the forefront.
Unfortunately just that brief amount of evidence that was given by the mother reflected the very different approach of the father in relation to this matter. The mother's evidence, of course unchallenged, the father having left the precincts of the Court, was that whilst arrangements were made for 18 January 2009, and I note that the father in correspondence with the mother's solicitors, indicated that he would be utilising those opportunities, did not attend at the [omitted] Contact Centre now, as I understand, referred to as ‘[omitted].
The mother had made arrangements to take the children to the contact centre from their holiday at the beach. No doubt that involved some disruption to the daily plans as the arrangements were in place for a period to be spent by the father with the children from noon until 2 pm. Shortly after she dropped the children she was called and advised that the father had not attended and was asked to return. She then waited, as was required pursuant to the contact centre's rules, for a period of about 20 minutes but there was no attendance by the father, no call by the father and, of course, no courtesy by way of even an apology by the father, in relation to his failure to attend.
Notwithstanding that, the mother again, true to her word, had the children available on 1 February 2009 and the children, at that time, spent time with their father. Tragically, it would seem that the father had set in train, at least in his own mind, the course that he intended to follow in relation to this matter, in other words, to discontinue his response in relation to the proceedings and to step away.
The reason that I say that is again that the unchallenged evidence of the mother is that both of the children, [X] and [Y], were at least to some degree disturbed following the opportunity of spending time with their father on 1 February 2009. The mother's evidence was to the effect that [X] had told her almost immediately upon entering the car that his father had told him that he would not be seeing him for some considerable time, obviously of an unspecified nature. The mother said that [X] appeared a little down or quiet as a result of that statement and, subsequently, [Y] also disclosed to her mother that her father had told her a similar thing, that she would not be seeing him for a long time.
Unfortunately, but again, if you like, a reflection of the concerns that were expressed by Mr Moriarty in his first report, is a statement apparently made by the father to [Y], which I accept has been accurately recited to the Court by the mother. The mother said that [Y] also indicated to her that the father whispered to her, words to the effect, ‘that the whole thing was the mother's fault’. The mother said that both of the children were upset and I accept without hesitation that that is of course what would have been the case, and that the mother attempted to comfort the children.
As I said before, the mother is to be most highly commended for the most appropriate child focused role that she has taken in relation to this particular issue. The father is not, unfortunately, the subject of similar compliments that would be made, in relation to these proceedings.
I was enormously impressed with the mother. I was impressed with the fact that she had, to a significant degree, subjugated her own obvious wish for a quiet life away from the difficulties of the relationship with the father, so as to ensure that the greater good, the best interests and the welfare of the children could be met.
The father did not cast himself in any such light. He did not attend further in relation to the proceedings and, of course, his material was not specifically the subject of consideration by me. I was, however, referred to certain items of material that had been provided in relation to proceedings and I will comment upon those a little later.
I was, however, given the opportunity of considering the reports that were prepared by Mr Sean Moriarty, a consultant social worker. The first of those reports, dated 25 May 2008, was received by the Court in earlier proceedings. Mr Moriarty made a number of comments in relation to the children, to their relationship with each of their parents and, of course, to their wishes. Under the heading "Conclusions and Recommendations" at para.67 Mr Moriarty set out exactly what was the nub of the difficulties in relation to this matter. He says the following:
The core issue in this matter is the allegations of physical abuse of the children by their father and whether, if founded, these issues have a bearing on future arrangements. The fact is that these children have both made complaints as to what, at best, could be described as seriously excessive physical disciplining by the father. He, however, minimises or in fact rejects any such allegations.
I note that in commenting upon that particular aspect of the matter Mr Moriarty says the following at para.70 of his first report:
The degree of bias in Mr Vincent's account and the manner in which he minimises his actions whilst exaggerating those of others is of great concern and is indicative of a narcissistic pattern of behaviour. The bitterness and anger that he expresses towards Mrs Vincent, not in relation to the known facts, follows much the same pattern. His action of visiting the children's school was, in my view, an attempt to influence the children and offset what he viewed as the malign influence of the mother. He was able to abide by recent orders in form only sending his parents to them carrying much the same message about their mother.
I cannot imagine more directly damaging emotional conduct on the part of the father than that which is described there and which the father acknowledges occurred, but fails to recognise in any way as damaging to these children. To undermine, as it clearly was intended to do, the relationship that the children have with the mother, fails to recognise in any way the importance of that relationship and, in fact, the primacy of the relationship with the mother, the father having had, to a very limited extent, involvement with the children. As recently as only a few days ago having told the children in, one would think the most callous and cruel manner, that he would not be having the opportunity or taking the opportunity to spend further time with them, but then passingly, again, blaming that decision of his on the mother.
Mr Moriarty speaks of these matters and others, and particularly concludes in para.71 as follows:
The implication of this lack of insight and his evasion of responsibility is that it is difficult to place much weight on

Mr Vincent's version of events in a way that would balance the accounts of the children. In relation to the recent events I have preferred the accounts of the children. It is my view that there was physical abuse much as [Y] portrays, or closely approximating that which she states.
Mr Moriarty goes on to comment more in relation to Mr Vincent. He says at paras.75 and 76 the following:
The subjectivity with which Mr Vincent approaches almost everything has also affected the children. An example is his view that [Y] is like her mother and that she needs to be more strongly schooled to accept his affections than is [X], this to prevent her from becoming her mother. His view of these differential alignments with the children is one which would isolate [Y] and imbue her with a sense of insecurity. As he appears to be completely unaware of personal boundaries, it is of concern that this view of the children has already been conveyed to them. Certainly Ms Vincent has formed much the same view, interpreting it as favouritism of [Y]. [Y] is a perceptive child and if she does not know this now it is only a matter of time.
Mr Moriarty, in concluding in relation to this matter, makes the following comments at para.77 - and I note that I was specifically directed to this by counsel in his address on behalf of the mother:
At this point in time it is my view that the risk of future physical abuse of the children is low, however, the risk of emotional abuse is high.
Never a truer word spoken in light of the most recent events with regard to the horrendous quiet conversation that the father quite obviously had with these children. Mr Moriarty goes on:
The probability of Mr Vincent suddenly gaining insight into such issues is negligible and it is more than likely that he will view any criticism, either from the Court or this report, as completely biased.
The fact is, of course, that Mr Vincent is very, very much exhibiting exactly the concerns and the predictions that were made by

Mr Moriarty. The suggestions made by Mr Moriarty in relation to the father's behaviour are reflected in the actions that have been taken in recent time and, in fact, is reflected in material that has been filed in relation to these proceedings by the father, though not now specifically relied upon.
I was enormously troubled but, of course, enormously assisted by the comments that were made by Mr Moriarty in the first of his reports.
More troubling, but perhaps also again a clear indication of the position and the stance taken by the father, was the fact that a further updating family report was sought to be obtained in relation to this matter and that interviews were to take place on 29 January 2009. The parties were to be jointly responsible in relation to the preparation of that report and the costs associated with the preparation of that report, but the father did not attend. Notwithstanding that, he was advised by the legal representatives for the mother on a number of occasions of the fact that the report was being prepared, that there was a joint responsibility in relation to the costs associated with that report.

There is not a skerrick of evidence to suggest that the father showed even the common courtesy of contacting the report writer in relation to his intention to discontinue proceedings as he had indicated to the solicitors for the mother that he would do certainly some weeks, or perhaps even months before, nor was there any communication with regard to whether he considered that there should be any responsibility in relation to the costs associated with the preparation of a report. Mr Moriarty, in commenting upon this, noted of course that there were extreme limitations that arose as a result of the report not having input from Mr Vincent, but Mr Moriarty was able to provide certain further assistance and direction in relation to the matter.
In the second report dated 11 February 2009 Mr Moriarty says the following:
I interviewed Ms Vincent. She stated that the children had been happy and more relaxed since the last assessment due, she believed, to the fact that their time with their father being supervised. They have both been doing well at school. She reports that the children attend the visits with their father with varying degrees of enthusiasm. [Y] is often reluctant to attend but will do so. [X] enjoys the visits.
With respect, that might have perhaps been a situation up until 1 February 2009 but, of course, the evidence of the mother in relation to what appears to have occurred on that day would have very much alleviated any enjoyment that either of these children might have been receiving as a result of the opportunity to spend time with their father. Mr Moriarty goes on at para.5 to say the following:
I interviewed both children jointly. The presented as happy, relaxed and forthcoming about their feelings. Although they both said that they enjoyed visiting and seeing their father, [X] was more definitively positive whereas [Y] expressed a degree of hesitation. She said that she had trouble 'forgiving' her father for what had occurred previously and mentioned a couple of issues which had occurred during visits at the contact centre. In discussion of these issues with both children they appeared to be minor and of little consequence. In discussion of other activities with her father [Y] was more positive.
Mr Moriarty then says:
The children did agree that they would feel comfortable seeing their father without supervision. They both felt that they would prefer this to be during the day rather than any overnight stays until they felt more comfortable.
In his conclusion at para.8 he says the following:
Given Mr Vincent’s absence I am unable to provide the Court with any views regarding future arrangements. Separate to any issues regarding the parents' capacities the children presented as happy and positive in these interviews and emotionally capable of attending visits with their father on an unsupervised basis.
I must say that I can only think that the very positive view and impression that Mr Moriarty has received in relation to these children is far more a reflection of the positive parenting and the appropriate stance taken by the mother in relation to ensuring that the children's relationship with their father is fostered and developed, than anything that can be suggested in relation to the father's behaviour. If, as appears to be the case, and is certainly unchallenged, the father has, at the very least, emotionally traumatised these children but I think, at least to some degree, also physically traumatised the children he should hang his head in shame.
The behaviour, in fact, even to the extent of attending at the Court today, withdrawing, but making passing comments in relation to his love and affection for the children is rather damning of the father's own real perceptions, in relation to this matter. A father who loves and cherishes his children does not walk away. A father who loves, cherishes and wishes to protect his children does not emotionally abuse them as I find he has done, particularly with regard to the most recent statements.
Mr Moriarty commented upon the need, for example, for the father and the mother, but I think more specifically the father, to involve himself in some form of parenting training or courses. I could not imagine a more positive outcome in relation to these proceedings but, unfortunately, I can also unfortunately not imagine that the father would see fault in his own behaviours and therefore a need for improvement in the parenting that he provides in relation to the children.
As I say, I was enormously impressed with the mother and, as is perhaps obvious from the comments that I have already made, I was sadly unimpressed with the father, his stance and his view in relation to this matter.
In light of those comments I turn obviously, as I must, to issues in relation to the law and to the basis upon which any decision should be made with regard to the parenting of the children. Section 60CA of the Family Law Act is, of course, the starting point. The paramount consideration is the welfare and the best interests of the children but, of course, there are a number of other guidelines or criteria that the Court is obviously required to consider in relation to arrangements with regard to the parenting of children.
Consideration must be given to section 61DA of the Family Law Act. It requires the Court commence with the presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. That assumption is, of course, able to be rebutted in certain circumstances, the most obvious of which relates to situations of concern with regard to abuse or violence, which might affect the ability for the parties to discuss and to reach joint decisions in relation to the parenting of the children but also there is, if you like, a wider discretion that falls upon the Court in relation to determination, such that upon the evidence that is before the Court, the Court may simply be satisfied that it is not in the best interests of the children.
The case outline provided in relation to this matter does not specifically seek an order one way or the other in relation to parental responsibility. The Court, however, is not bound by that non suggestion of what should be approved, and one would think that in light of the situation that exists, the very limited opportunity for any interaction between the mother and the father, the poor communication as well as, of course, the finding already specifically made by me that there is, at the very least, emotional abuse of these children, that it would be an impossibility to continue with the presumption of equal shared parental responsibility.
I am not at all satisfied that that would be appropriate and I am certainly of the view that it would not be in the best interests of these children. The mother has, throughout, since separation shown very clear desire to put the best interests and the welfare of the children to the forefront. I have absolutely no doubt that she will continue to do so even, no doubt, in situations and circumstances where it causes difficulty for her to ensure that the children's best interests are met. I intend to make orders with regard to the mother having sole parental responsibility in relation to decisions to be made with regard to the parenting of these children though, of course, I have no doubt, but will include within the orders, that there should be the opportunity for the mother, and there is a requirement for the mother, for example, in more serious and significant decisions with regard to the children, to convey to the father her wishes or expectations in relation to such matters and too, as best she can, discuss such issues with the father.
In the end, however, if there is not agreement it is the mother who will have the responsibility and the obligation of making such decisions, because the children deserve that degree of stability in their lives, and on the material that is before me at the moment I have very little faith that the father will be able to provide a stable and well considered decision, in relation to these children.
What then needs to be looked at, of course, are other matters with regard to the arrangements to be put in place with regard to the parenting of the children. The father, through his filing of a notice of discontinuance, does not any longer seek orders in relation to the matter though, as I say, his passing comments were to the effect that he dearly loved and wished to be involved in the children's lives. With respect, the father cannot have it both ways. He cannot walk away from the proceedings and then say, but look after the interests, not necessarily of the children, but of me.
It is not an essential element of any determination that might be made to consider the provisions of s.65DAA, unless the presumption of equal shared parental responsibility applies and, as I have said, I do not find that that is appropriate. But that does not mean that the Court should not look at such possibilities, at least in conjunction with s.60CC and, in particular, sub-ss.(2) and (3). Consideration needs to be given as to whether arrangements with regard to time should be particularised and whether it should be, for example, equal time or as s.65DAA sets out, significant or substantial time.
Obviously, any decision in relation to that matter must be looked at in conjunction with the various matters that must be considered, pursuant to the provisions of s.60CC.
I would simply comment in relation to s.65DAA that here there is an impracticability in the extreme, with any suggestion that there would be, for example, equal time spent within the households of both parents or, in fact, even substantial and significant time.
The father has, to a very significant degree, stepped away from his responsibilities in relation to the children. Tragically and, in particular with regard to the child, [Y], it has had an effect upon her in so far as any consideration of what her relationship with her father might be. I note that in the reports provided by Mr Moriarty, both of the children spoke only of the opportunities of daytime time spent with their father and [Y], at least in the earlier report, also indicated that her preference might only be for an hour or so every week or two.
The father has a very long way to go. The father obviously needs to recognise, though perhaps he will not do so for some considerable time, if ever, that it is not an influence that has been brought to bear upon these children by the mother but it has been a tragic consequence of his own behaviours in relation to his interaction with these children.
I turn then to the provisions of s.60CC and, in particular, sub-ss.(2) and (3) of that section relating to the various matters which must be looked at in relation to determining what might be in the children's best interests. The legislature, in their wisdom, have broken the considerations down into the primary considerations and additional considerations.
The primary considerations are set out in sub-s.(2) and there are only two as defined in sub-ss.(2)(a) and (2)(b). The first is the requirement that the Court give consideration to the benefit to the child of having a meaningful relationship with both of the child's parents and the second is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The two are almost contra-indicators, one of the other. The first is, of course, a requirement that the Court note, that even in the most damaged of relationships there can be an element of benefit to a child and, in time to come, it may develop and grow. Just as clearly there is a need to ensure that whilst a meaningful relationship can be fostered and developed, the child must be protected from circumstances where there are clearly elements of abuse, be it physical or psychological.
The tragedy here is that the father, I think, fails to have any recognition whatsoever of the damage that he does to these children, particularly, for example, in the most recent, quiet exchange that has gone on, where he indicated that he would not be further involving himself in their lives for a long time. These children need protection. These children need to have the opportunity for a meaningful relationship with their father but couched in terms of that protection. I have absolutely no doubt whatsoever as to the mother's genuine and proper intention in that regard to ensure that the children have a beneficial relationship with their father, but one also which ensures that they are protected from the obviously damaging communications that occur.
To date there have been supervised arrangements in relation to the father spending time with the children. The mother acknowledges that there may be now some elements of opportunity taken for unsupervised time and, in that regard, I note that the report writer also suggests, that the children have indicated a capacity to move to that next stage, but I would think that the mother would move slowly but would move positively with regard to the best interests of the children. The obligation falls upon the father to recognise that there has been damage done. It has been done by him and that the bridges that are to be mended must be mended by him and no-one else.
I turn then, as I must, to the additional considerations required to be looked at pursuant to the provisions of s.60CC(3). The first of those, and perhaps there is no priority in relation to them, but there must be some significance in the fact that it is the first to be noted, is the views expressed by the child or children balanced on a consideration of the children's maturity or level of understanding. The children both expressed views in relation to this matter. They wish to have a relationship with their father but one can only infer that that wish is based upon a desire for it be beneficial to each of the children and not one that would involve continued psychological harm and trauma.
The children obviously wish to have time with their father and their mother, true to her role as a responsible parent, encourages and fosters that opportunity. I would think that it could properly be found that the children are expressing a view to have an opportunity for a relationship with their father, but I would also think, particularly in light of the statements that have been made by Mr Moriarty following his discussion with the children, that there should be no particular hard and fast rules as to when that should be, the duration of time spent or the frequency of such time. The children need to have the opportunity to develop their relationship with their father. That can only come about over time and with the father being positive in his interaction and determination to have a relationship of a proper nature with the children.
Subsection (b) requires the Court to give consideration to the nature of the relationship of the child with each of the child's parents and other persons, including any grandparent or other relative of the child. Here, as is perhaps obvious from a number of the comments that I have already made, there are troubling elements to the relationship that these children have with their father. The mother is attempting to reconcile those difficulties with the obvious benefits to the children of having a relationship with their father.
As I have said, and no doubt will continue to say, the obligation and the responsibility rests squarely upon the shoulders of the father. He cannot walk away, as he has done to date. He cannot blame others, as he has done to date and he can certainly not continue to abuse these children, emotionally and perhaps, I think, unfortunately also physically, as he has done to date. The relationship with the children has been affected, but if it has been affected at all, it has been as a direct result of the lack of proper appreciation by the father of his role and responsibilities in relation to the parenting of the children.
Balanced against that is the overwhelmingly positive nature of the relationship that these children have with their mother, the faith that they place in her and the confidence, quite properly placed in her, in ensuring that their best interests in every respect are met. There is a vast gap between the relationship that these children have their mother and the relationship that they have with their father. Tragically it is only the mother that recognises that vast gap and the responsibility for that gap and, tragically, it would seem that at this stage it is only the mother that is taking the positive steps in relation to the development of a meaningful relationship between the children and the father.
If you like, it is the father who needs to step up, take responsibility for his actions to date, change his ways and move toward a positive relationship with these children. Whilst he continues to blame others and lay the responsibility at the feet of the mother or anyone else rather than himself, I have grave concerns as to any really positive development that these children will have in a relationship with their father.
Subsection (c) relates to the consideration by the Court of the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent and, perhaps in light of the comments that I have already made, there is little, if anything more, that needs to be said. The mother has taken every positive and appropriate step in relation to this matter. On the evidence that is before me, the father has fallen far, far short of what could, in any way, be expected in relation to facilitating a relationship between the mother and the children.
If anything, he has sought to undermine that, making comments to [Y] that she is just like her mother or that she has been lied to by the mother, can be nothing other than a determined attempt by the father to undermine the relationship between the children and their mother. He should be, as I have indicated before, hanging his head in shame at the actions that he has to date taken, in relation to this matter.
The likely effect of any changes to the children's circumstances does not really arise because the father steps back from the proceedings. The mother says, quite properly, to continue the arrangements with regard to her being primarily responsible for the care and supervision of the children and to ensure that they have the opportunity of a beneficial nature to a relationship with their father and, of course, with other members of the father's family, and in that regard I note particularly the paternal grandparents. The fact is, however, that any change to the current arrangements, even if they were sought by the father, would have the most tragic consequences for these children, as it would remove any likelihood of a stable, settled arrangement and would, in my assessment, lead to a total downturn in the positive nature of the relationship between the mother and the children.
Issues with regard to practical difficulties and expense of spending time with or communicating with the other parent do not arise and I do not intend, nor do I think it necessary to comment upon that.
Subsection (f) is, however, a very relevant consideration. It requires that the Court give consideration to the capacity of each of the child's parents and of any other persons to provide for the needs of the child, including emotional and intellectual needs. In my view, that subsection should be read in conjunction with s.60CC(3)(i), relating to a consideration of the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents.
I do not intend to rehash or restate the obvious divergence between the positive aspects of the mother's parenting, her capacity to provide for the children's emotional and intellectual needs and her proper and appropriate approach to the responsibilities of parenting, as opposed to the negatives that arise in respect of every one of those considerations in relation to the father's capacity to provide. What is obvious is that the father is the one who must recognise the failings in his own position in relation to this matter, and only upon willingly accepting that he can and must do very much better, would there be any suggestion of any significant further involvement in relation to the responsible approach to the parenting of the children.

Issues with regard to maturity, sex, lifestyle and background do not, to any real extent, arise in relation to this, nor do issues with regard to cultural sensitivities or Aboriginal or Torres Strait Islander matters.
Issues of family violence involving a child or a member of the child's family need also to be considered because there have already been concerns raised in relation to physical abuse of the children and certainly, as I have indicated, there are concerns that are continued to be held in relation to the emotional and psychological well being of the children and the inappropriate communications between the father and the children.
It is obvious and it is clear from the comments that I make in relation to this matter that there is only one possible outcome in relation to these proceedings. The proposals by the mother provide for a stable and settled future for these children. It provides, with the father's real effort, for there to be a developing relationship between the children and the father. I have not a moment's doubt that the mother's approach in relation to this matter is the appropriate one, that she recognises the importance of a relationship with the children but balances that with the importance of protection of the children.
I am satisfied that they are the orders least likely to lead to further proceedings because any order that, for example, provided for the children to spend significant or substantial time with the father or to, in fact, even have particularised opportunities for the children to spend time with the father are fraught with difficulty and are fraught with real concern as to the effect that might be had upon the children. I intend, therefore, to make final orders in relation to this matter which generally are as I have indicated during the reasons.
ORDERS DELIVERED
The obligation falls upon the father to take responsible steps therefore in relation to having a relationship with these children. He cannot step back, he cannot do nothing and then blame others. As I have indicated, and I will be publishing my reasons in relation to this matter, the father needs to be aware that the onus lies squarely upon him.
The mother seeks an injunction also which restrains the father from approaching the children at their school. It appears clear that he has done so and even when restrained from doing so has taken steps to circumvent that restriction by having his parents attend and hand notes over.
ORDERS DELIVERED
I am also asked then to address issues in relation to the costs associated with these proceedings. I am mindful, of course, of the provisions of the Act in relation to costs and, in particular, also the rules of this Court with regard to the stance to be taken in relation to costs, particularly following the discontinuance by one party or the other of their proceedings.
The father, I would hope, has not intentionally set out to put the mother in a position where further expense has been incurred by, at the eleventh hour, filing and serving a notice of discontinuance. But there is a real element of manipulation that does arise in that regard, it being clear from documentation that has now been provided to the Court by way of tender and is now before the Court as an exhibit, that the father was advised, as much as six weeks or more before he filed his notice of discontinuance, that if he intended to take no further part in the action, that the appropriate course was to file a notice of discontinuance. I am satisfied beyond any doubt that that is the case, and that when one considers the provisions of the Federal Magistrates Court Rules and, in particular, rule 13.02, that it is an appropriate case of course for an order to be made in relation to costs.
I am also asked, however, to go, if you like, a step further, to consider the provisions of s.117 of the Family Law Act and, in fact, to also move to a consideration of the provisions of s.117AB of the Act. I shall deal with each of those issues individually.
Costs in relation to Family Court proceedings are governed primarily by the provisions of s.117. Subsection (1) relates, if you like, to the starting point in relation to costs applications and, of course, provides as follows:
Subject to sub-s.(2), sub-s.(70NFB1) and ss.117AA, 117AB and 118, each party to proceedings this Act shall bear his or her own costs.
In other words there is a general presumption that at most levels, each party would bear their own costs in relation to proceedings before the Court, however, for every rule, if you like, there is an exception and sub-s.(2) specifically provides for the consideration by the Court of such circumstances. It is in these terms:
If, in proceedings under this Act, the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to sub-ss.(2A), (4) and (5) and the applicable rules of Court make such order as to costs and security for costs, whether by way of interlocutory order or otherwise as the Court considers just.
Subsection (2A), of course, sets out the various matters that the Court shall have regard to in considering whether orders should be made in relation to costs. The financial circumstances of the parties is a relevant consideration, and though I have only limited information in that regard, in particular knowledge that the mother works as a nanny and the father, as best as can be assessed, is unemployed, the financial circumstances of the parties do not, if you like, determine whether or not a costs order should be made.
The fact is here, that since at least mid December the father has been aware of the appropriate course to follow in relation to stepping away from the proceedings and discontinuing. Only at the eleventh hour did he do so, and certainly whether it was 11 February 2009 or a date a week or so earlier as the father indicated, that he had prepared a notice of discontinuance which had been rejected, it was later in time than the filing of material by the mother which supported her proceedings and the orders that she sought in relation to the matter. The father was, therefore, responsible for those costs associated with the mother's preparation for trial, briefing of counsel and all steps that were taken in relation to the matter.
At or about 19 December or shortly thereafter he knew what was expected of him in relation to the matter, but failed to act.
His financial circumstances are therefore a factor to be considered but on balance, in my view, not one that would, in any way, remove the possibility of orders being made in relation to costs. As best I can assess on the material, the mother's financial circumstances are, at the very least, just as tenuous of those of the father and she has been put, no doubt, to expense in relation to the proceedings. I am satisfied that the financial circumstances of the parties, though needed to be considered, are such that the mother's incurring of expenses in relation to this matter, notwithstanding the father's apparent position, though it is not clear as to whether he is or is not at this time in employment, should not remove the possibility of an order for costs.
It is not clear to me on the most current material whether the mother is in receipt of legal assistance in relation to the matter, and I note the indication given from the Bar table that that is not the case. Certainly the father was apparently not in receipt of Legal Aid or other forms of legal assistance, because up until today he has acted on his own behalf.
Section 117(2)(c) is a very relevant consideration. It requires that the Court have regard to the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admission of facts, production of documents and similar matters. In this particular instance, of course, it can be read more widely.
The father was aware of what was expected to bring the proceedings to a quick conclusion. He failed to take steps. The father was aware, simply as a matter of proper courtesy of the requirement to notify the report writer of the fact that he was not intending to participate. He has done, it would appear on the face of it, nothing in that regard, and the conduct of the father, I would think, not only during those phases of the proceedings but generally leave very much to be desired. It is again a factor that weighs heavily in relation to the determination of the proceedings and, in particular, the determination of the issue of costs in favour of the mother.
The next perhaps more relevant consideration is whether any party to the proceedings has been wholly unsuccessful in the proceedings. By inference, of course, a similar consideration is whether one party or the other has been wholly successful. The fact is that both of those conditions arise here. The mother has been wholly successful in obtaining the orders that she sought as being appropriate with regard to the parenting of these children. The father discontinuing at the eleventh hour meant that there was, of course, no prospect of him succeeding in any way in relation to any orders being sought and, of course, therefore by definition, has been wholly unsuccessful in the proceedings.
The proceedings were brought about as a result of the continued actions of the father. It could and should, with respect, have been able to be properly settled some considerable time ago and, in fact, in that regard I note the very strong recommendations that Mr Moriarty made within the report of May 2008. Notwithstanding those recommendations, the father continued, through his actions, to require the mother to continue to incur expenses and, in my view, that again is a factor which heavily weighs in favour of the mother.
I am satisfied beyond any shadow of a doubt, therefore, that this is one of those occasions which do not arise terribly regularly, where it is appropriate that there should be an exercise of discretion in relation to an order being made for the father to pay the mother's costs. I intend to make such an order, and as I indicated before adjourning in relation to this matter, I would be seeking some information as to the costs that might be appropriate in relation to the proceedings.
At the very least it would seem to me that since the matter was listed to proceed to trial in or about November 2008, but perhaps one would think even earlier, the father has had the control of the matter to the extent that it could have been brought to a close and that the costs incurred since the matter was listed for trial had been incurred as a direct result of the actions of the father. I intend therefore to make an order in that respect in relation to the proceedings and will, of course, seek some clarification as to what costs might be sought in that regard.
Before addressing that particular issue, however, there is a further leg or limb that needs to be looked at. An approach has been made to the Court to consider whether, pursuant to the provisions of s.117AB, costs should be ordered in the circumstances of the section relating to false allegations or statements. Section 117AB is in these terms:
(1). This section applies if; (a) proceedings under this Act are brought before a Court and; (b) the Court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.
(2). The Court must order that party to pay some or all of the costs of another party or other parties to the proceedings.
In one respect I would think that it is unnecessary for me to more completely address the issues that arise in relation to that particular aspect of the matter, having already indicated that, if you like, on the more normal bases, I am satisfied that there should be an order made in relation to the father paying the mother's costs, at least since the notification of the matter being listed for trial.
I would comment, however, that there are some grave concerns that arise in relation to this matter. The father, on or about 22 April 2008, filed an affidavit in which he categorically denied certain elements of the allegations that were said to have been brought by the child, [Y], in relation to severe discipline. He denied that he had picked the child up, that he had thrown the child to the floor or had, in fact, taken any other actions. Subsequently, however, as is clear from the police interview records which are before the Court, he gave, at least to some extent, a different version, in that he indicated that he may have picked the child up and, as he described it, “plonked her back on her bed”. Of course, such an action is very different to no action whatsoever. And then, of course, there is the further issue that arises in relation to the report of Mr Moriarty where he indicates that the father said to him, that he had picked the child up, he used the term "plonked her" again but that he had carried her which is, of course, very different to the denial that is contained within the material. The father, I note in that regard, filed an affidavit in which he challenged a number of the other matters.
In the end it would seem to me that, firstly, it is unnecessary to determine whether the father did or did not make false allegations or statements in relation to the matter because of the fact that I intend already to make an order on normal grounds in relation to costs. Secondly, however, it would seem that at the very least, if that particular aspect of a claim were to be made, in other words that there was a false allegation or statement made, then there should have been perhaps an opportunity for the father to be heard, at least in relation to that aspect of the matter and, as I note here indicated in the affidavit that he filed yesterday, basically challenging certain of the matters contained within the case outline, he specifically noted that he did not acknowledge that the statement which is attributed to him by

Mr Moriarty was made. In fact, his position in relation to that is to suggest that perhaps Mr Moriarty's reporting is, at least in that respect, inaccurate.
As I say, in light of the findings that I have made, however, and the determination pursuant to the provisions of s.117(2) and (2A), it is not necessary for me, in my view, to further address the matters that might arise pursuant to s.117AB. As I have indicated therefore I intend to make the orders as I have stated, but also intend to make an order in relation to the payment of costs. Before doing so, however, I inquire whether there is a position upon which I can make some assessment of costs in relation to this matter.
RECORDED : NOT TRANSCRIBED
Just in relation to this final matter relating to the costs, it would seem, as I have indicated, that it is appropriate that there should be orders made in respect of the proceedings, at least since the matter was listed for hearing. There are, however, a number of other issues that arise. The fact is that the mother's legal representatives had to take initial instructions in relation to the matter, they had to prepare the matter and, no doubt, they had, on a number of other occasions, to take steps with regard to preparation in relation to the proceedings, including short attendances which, as I have been advised, included adjournments.
In my view it is more than appropriate that there should be an order made in relation to the initial taking of instructions in relation to the matter. Just as clearly it is obviously appropriate that the costs associated with the preparation of the matter for trial should be included, as well as the attendances required today by both solicitor and counsel. I am satisfied also that, at the very least, a number of previous attendances should, to some degree, be the subject of some form of compensation, it being clear that there have been numerous occasions where proceedings have come before the Court as a result of urgent needs arising from actions of the father and, as I have already indicated, many of those actions were, in my view, inappropriate.
In my assessment the amounts that have been claimed in relation to this matter totalling $13,352 may, in fact, be a little more than I would have considered, in light of the findings that I have made with regard to the commencement of the time for responsibility of costs. Certainly it would seem appropriate, however, that the father should be responsible for a figure fixed in the sum of $10,000 in relation to legal fees that have been incurred to date and, in addition, that he should also be responsible for the half of fees with regard to the payment of Mr Moriarty's account, and I am advised reliably that those total $2265.
ORDER DELIVERED

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate: C. Herbst

Date: 2 April 2009