Vine & Wands
[2013] FCCA 2284
•17 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VINE & WANDS | [2013] FCCA 2284 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – contravention of parenting orders. COSTS – Costs of the Independent Children’s Lawyer – where mother ordered to pay an amount towards the costs of the Independent Children’s Lawyer – where costs sought against the Respondent by the Applicant for proceedings involving a recovery order. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 62G, 65DAA, 67Q, 68L, 70NAC, 70NEA, 70NEB, 70NEC, 117 Births, Deaths and Marriages Registration Act 1995 (NSW), ss.22, 28 Federal Circuit Court Rules 2001, Sch. 1, Part 1 |
| Cases cited: Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-692 Callahan & Callahan [2013] FMCAfam 106 Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510 Flanagan & Handcock [2000] FamCA 150; (2001) 27 Fam LR 515; FLC 93-074 George v Radford (1976) 1 Fam LR 11,510; FLC 90-060 Gerald & Kenwood [2013] FCCA 2038 Mahony & McKenzie (1993) 16 Fam LR 803; FLC 92-408 Mallahan & Mallahan [2010] FamCA 631 Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343; (2008) 38 Fam LR 275 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424 Vine & Wands [2012] FMCAfam 1407 Whinney & Kelleher [2013] FCCA 1939 |
| Applicant: | MS VINE |
| Respondent: | MR WANDS |
| File Number: | SYC 638 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 11 to 13 December 2013 |
| Date of Last Submission: | 13 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2013 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Bainbridge |
| Solicitors for the Applicant: | Bainbridge Legal |
| The Respondent: | In person |
| Solicitor for the Independent Children's Lawyer: | Ms Karagiannis |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
All earlier parenting Orders are discharged.
The child [X] WANDS born [in] 2009 is to live with the Applicant Mother.
The Mother is to have sole parental responsibility for the child [X] PROVIDED THAT prior to making any decision relating to the child’s long-term care, welfare and development including but not limited to:
(a)Decisions about which school or day-care centre the child is to attend; and
(b)Decisions about the child’s religious upbringing,
The Mother must notify the Respondent Father in writing of her proposed decision as soon as reasonably practicable and take into account any written response received from the Father relating to his views about the proposed decision.
The Mother is restrained by injunction from relocating the residence of the child [X] outside the Sydney metropolitan area without the written consent of the Father on any date prior to 1 January 2015.
From the date of these Orders until 31 December 2014, the child [X] is to spend time with the Father as follows:
(a)On alternate weekends during the New South Wales school terms from the conclusion of day care on Friday until the commencement of day care on Tuesday morning;
(b)For two blocks each of one week during the month of January 2014 commencing at 10:00am on Monday 6 January and Monday 20 January 2014 and concluding at 6:00pm on Sunday 12 January and 26 January 2014;
(c)For the first week of the Autumn, Winter and Spring school holidays commencing at 10:00 am on Saturday 12 April, Saturday 28 June and Saturday 20 September 2014 respectively and concluding at 4:00pm on Saturday 19 April (Easter Saturday), 5 July and 27 September respectively;
(d)From 6:00pm on Friday 24 April 2014 until 6:00pm on Anzac Day 25 April 2014;
(e)On the Father’s birthday being [date omitted] 2014 from 10:00am until 6:00pm if the child is not otherwise spending time with the Father according to these Orders;
(f)For Father’s Day from 6:00pm on Saturday 6 September 2014 until 6:00pm on Father’s Day Sunday 7 September 2014 if the child is not otherwise spending time with the Father according to these Orders;
(g)On the child’s birthday being [date omitted] 2013 and 2014 from 3:00pm to 6:00pm;
(h)On Christmas Day being 25 December 2013 and 2014 from 2:00pm to 6:00pm; and
(i)Such other times as the parties shall agree in writing.
Notwithstanding the provisions of Order (5)(a) above if Mother’s Day being Sunday 11 May 2014 should fall on a weekend when the child would otherwise be spending time with the Father according to the above Order then the Father must return the child to the care of the Mother by 6:00pm on Saturday 10 May 2014.
All changeovers in accordance with these Orders prior to 1 January 2015 are to take place at the child’s day care centre at all times when the Father’s time with the child commences at the conclusion of day care and concludes at the commencement of day care and at all other times the alternate location for contact changeover will be inside the McDonald’s Family Restaurant at [M].
Where necessary the mother may arrange for a responsible adult known to the Father to attend at changeover in her place to deliver or collect the child PROVIDED THAT she advises him of this arrangement by email or telephone text message a reasonable time beforehand.
From and after 1 January 2015 the child [X] is to spend time with the Father as follows:
(a)For two blocks each of one week during the month of January 2015 commencing at 10:00am on Monday 5 January and 19 January 2015 and concluding at 4:00pm on Sunday 11 January and Sunday 25 January 2015 respectively;
(b)On alternate weekends during the New South Wales school terms commencing on the first weekend of the school term from 6:00pm on Friday until 5:00pm on Sunday PROVIDED THAT if the Monday immediately following the Sunday is a public holiday then until 5:00pm on the Monday;
(c)For half of the Autumn, Winter and Spring school holidays in each year commencing at 10:00am on the first Saturday after the school term concludes and concluding at 5:00pm on the following Saturday;
(d)From 10:00am on 2 January until 5:00pm on Australia Day 26 January in each year;
(e)On the Father’s birthday being [date omitted] 2015 from 10:00 am until 5:00pm if the child is not otherwise spending time with the Father according to these Orders;
(f)For the Father’s birthday from [date omitted] 2016 and thereafter from 10:00am until 5:00pm if the day falls on a Saturday or a Sunday when the child is not otherwise spending time with the Father according to these Orders;
(g)For Father’s Day from 5:00pm on the Saturday immediately before Father’s Day in each year until 5:00pm on the Sunday being Father’s Day if the child is not otherwise spending time with the Father according to these orders;
(h)On the child’s birthday from 12 noon until 5:00pm if the day should fall on a Saturday or a Sunday when the child is not otherwise spending time with the Father according to these Orders;
(i)From 4:00pm on Christmas Eve until 5:00pm on Christmas Day in 2015 and all odd-numbered years thereafter;
(j)From 4:00pm on Christmas Day until 5:00pm on Boxing Day in 2016 and all even-numbered years thereafter; and
(k)From 4:00pm on 24 April until 5:00pm on Anzac Day 25 April in 2016 and all even-numbered years thereafter.
Notwithstanding the provisions of Order (8)(b) above:
(a)if Mother’s Day being the second Sunday in May in 2015 and thereafter should fall on a weekend when the child would otherwise be spending time with the Father according to the above Order then the Father must return the child to the care of the Mother by 4:00pm on the Saturday immediately prior to Mother’s Day;
(b)if the Mother’s birthday being [date omitted] in each year should fall on a Saturday when the child would otherwise be spending time with the Father according to the above Order then the Father’s time with the child on that weekend will not commence until 9:00am on the Sunday immediately after the Mother’s birthday; and
(c)if the Mother’s birthday should fall on a Sunday when the child would otherwise be spending time with the Father according to the above Order then the Father must return the child to the care of the Mother by 4:00pm on the Saturday immediately prior to the Mother’s birthday.
All changeovers in accordance with these Orders from and after 1 January 2015 are to take place at McDonald’s Family Restaurant at [H] in the State of New South Wales.
Where necessary the Mother may arrange for a responsible adult known to the Father to attend at changeover in her place to deliver or collect the child PROVIDED THAT she advises him of this arrangement by email or telephone text message a reasonable time beforehand.
Both the Mother and the Father are entitled to attend all events that parents of children attending the child’s pre-school or school would normally attend, including:
(a)Sporting fixtures including swimming carnivals;
(b)Extracurricular activities;
(c)School or pre-school functions and events including but not limited to concerts, school assemblies, sports days, parent-teacher interviews, canteen duties and social functions
and the parent who has the child in his or her care on the day of such activity will be responsible for his day-to-day care at the event or activity as well his transportation to and from the event or activity.
Within seven (7) days of the child’s enrolment at any pre-school or school the Mother must sign the appropriate authority to authorise the school or pre-school to forward to the Father at his expense copies of all school reports, newsletters, bulletins, information about school photographs and other documents normally forwarded to parents of children at the pre-school or school.
Both parents are restrained by injunction from using any form of physical discipline or chastisement on the child or permitting any third party to do so.
Both parents are restrained from using denigrating or critical language to or about the other parent or the other parent’s spouse or partner or immediate family in the presence or hearing of the child or permitting any third person to do so.
The Mother must do all acts and things necessary to facilitate telephone communication between the child [X] and the Father on Tuesdays and Thursdays between the hours of 6:00pm and 7:00pm.
On occasions when the child [X] is in the care of the Father for periods of a week or more, the Father must do all acts and things necessary to facilitate telephone communication between the child and the Mother on Tuesdays and Thursdays between the hours of 6:00pm and 7:00pm.
For the purposes of the two immediately preceding Orders:
(a)the parent exercise the telephone contact is to initiate the call to the child;
(b)the parent with whom the child is spending time must facilitate the receipt by the child of the telephone call, including ensuring that the telephone is charged and available to receive the call and ensuring that the child has a quiet place in which to take the call;
(c)the Father is to purchase a mobile telephone and SIM card for the child, on which the child is to be able to receive the telephone calls; and
(d)each parent must ensure that the telephone travels with the child on changeovers.
Each parent must keep the other parent informed of his or her contact telephone number and residential address and advise the other party of any change to their address or telephone number within forty-eight (48) hours.
Each parent must inform the other of any change to their living arrangements including forming a new live-in relationship.
These Orders will operate as an authority for the Father to obtain information from any of the child’s treating medical practitioners including providing the Father with copies of any reports or assessments if requested.
In the event that the child is hospitalised or sustains a serious illness or injury requiring treatment by a medical practitioner or at a hospital the parent living with or spending time with the child at the time must notify the other parent as soon as reasonably practicable and inform the other parent of the names and addresses and telephone numbers of any treating medical practitioner or hospital.
Each parent is restrained from removing or attempting to remove the child from the Commonwealth of Australia without the written consent of the other parent.
In the event that either parent wishes to take the child [X] out of the Commonwealth of Australia for a holiday he or she must notify the other parent no less than two (2) months prior to the proposed departure date and provide the following details:
(a)The proposed destination or destinations;
(b)Details of the airline or shipping company; and
(c)No later than ten (10) days prior to the proposed date of travel:
(i)An itinerary including flight numbers of applicable and departure and arrival dates and times; and
(ii)Addresses and telephone numbers of all places where the child will be staying whilst out of Australia.
Each parent is restrained by injunction from:
(a)administering to themselves any illicit drug at any time when the child is in their care or for twelve (12) hours beforehand;
(b)consuming alcohol to excess at any time when the child is in their care or for twelve (12) hours beforehand; or
(c)permitting any person who is under the influence of any illicit drug or who has consumed an excessive amount of alcohol to care for the child.
The parties must confine their communication between themselves to matters concerning:
(a)arrangements for the child; and
(b)matters concerning the care, welfare and development of the child.
All communication between the parties is to be by email or telephone text message unless in the case of an emergency when the parties may speak on the telephone.
The name of the child [X] WANDS born [in] 2009 is changed to [X] VINE-WANDS.
The Applicant Mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the State of New South Wales to register the name of the child formerly known as [X] WANDS as [X] VINE-WANDS.
The Registrar of Births, Deaths and Marriages in and for the State of New South Wales is ordered to register the name of the child formerly known as [X] WANDS as [X] VINE-WANDS
CONTRAVENTION
The Mother did on 20 December 2012 without reasonable excuse contravene Order (3)(a) made on 17 December 2012 by not permitting the child [X] WANDS born [in] 2009 to spend time with the Father.
The Mother did on 7 December 2012 without reasonable excuse contravene Order 3.1 made on 8 June 2011 by not permitting the child [X] WANDS to live with the Father.
Count number 3 of the Application – Contravention filed on 19 February 2013 alleging a contravention by the Mother on 9 December 2012 of Order 6 made on 8 June 2011 is dismissed.
In respect of the contravention of Order (3)(a) made on 17 December 2012 found to have occurred on 20 December 2012 the Mother is required to attend a post-separation parenting course under the provisions of section 70NEB of the Family Law Act 1975 of a type and with an organisation nominated by the Independent Children’s Lawyer.
In respect of the contravention of Order 3.1 made on 8 June 2011 found to have occurred on 7 December 2012 the Mother is required to enter into a bond under the provisions of section 70NEC of the Family Law Act 1975 without surety or security for a period of twelve (12) months on the condition that she abide by all current parenting Orders.
COSTS
The Applicant Mother is to pay to Legal Aid NSW the sum of $5,000.00 towards the costs of the Independent Children’s Lawyer and for this purpose is allowed twelve (12) months to pay.
The Respondent Father is to pay the costs of the Applicant Mother in respect of her Application for a recovery order under section 67Q of the Family Law Act 1975 in the sum of $1,841.00 and for this purpose is allowed three (3) months to pay.
INDEPENDENT CHILDREN’S LAWYER
The Independent Children’s Lawyer is discharged with effect from 31 December 2013.
IT IS NOTED that publication of this judgment under the pseudonym Vine & Wands is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 638 of 2011
| MS VINE |
Applicant
And
| MR WANDS |
Respondent
REASONS FOR JUDGMENT
Applications
The Applicant and the Respondent are respectively the Mother and Father of a little boy who has just turned four. The child is living with the Mother and spending time with the Father. Each party seeks parenting orders. In addition, the Father has brought a contravention application against the Mother, claiming that she has contravened earlier interim parenting orders by not allowing him to spend time with his son.
After some discussions on the first day of the hearing, the parties reached agreement on a number of issues. The agreement between the parties was embodied in a rough minute prepared by the Independent Children’s Lawyer as follows:
1.That [X] live with the mother and spend time with the father;
2.That the orders providing for [X] to spend time with the father be precise and specific;
3.That the parties contact each other in relation to any emergency regarding the child and that they keep each (other) updated as to contact numbers etc.;
4.That the mother sign the appropriate authority to [X]’s school/pre-school to authorise the school/pre-school to provide the father with copies of [X]’s school reports and all other documents ordinarily provided to parents;
5.That each parent be required to consent to any proposed travel outside of Australia;
6.That the parties enter into mutual restraining orders, on a without admissions basis, in relation to harassment etc. of the other;
7.That the parents continue to use (a) parenting book to exchange information regarding the child’s day to day issues;
8.That the parties keep each other advised as to any medication prescribed for the child;
11.That [X] spend half of the school holiday period with his parents.
*Father and child to have regular telephone and electronic contact.
*Father to have alternative day and time with [X] on his birthday and [X]’s birthday.
*Father to have [X] on Fathers’ Day.
*Mother to have [X] on Mothers’ Day.
*Mother to have [X] on Mother’s birthday.
Matters in Issue
The matters in issue between the parties are the following:
a)Whether the parties should have equal shared parental responsibility for the child or whether the mother should have sole parental responsibility for him;
b)Whether the Mother should be permitted to relocate the child’s residence from the Sydney area to [N], on the South Coast of New South Wales;
c)The amount of time the Father should spend with the child, depending upon whether the child remains living in Sydney or moves to [N];
d)Whether both parents should be entitled to attend school events;
e)The location of proposed changeovers;
f)The use of physical discipline on the child; and
g)Whether the Mother should be permitted to change the child’s surname from [X] Wands by adding her surname, so that he will be known as [X] Vine-Wands.
Contravention Application
The Father brought an Application-Contravention against the Mother, filed on 19th February 2013, claiming that the Mother had contravened earlier interim Parenting Orders on three separate occasions. This was opposed by the Mother, who denied all three allegations.
The parties agreed that the contravention application should be heard as part of the overall hearing.
There are three counts in the Application.
The first count claims that on 20th December 2012 at 12:37pm the Mother contravened Order (3)(a), an Order made on 17th December 2012 in that:
Ms Vine without reasonable excuse refused to allow me to spend time with my son [X].
The second count claims that on 7th December 2012 at 7:00am the Mother contravened an earlier Order, Order 3.1 made on 8th June 2011 in that:
Ms Vine without reasonable excuse refused to allow access to my son [X]. Time with him was not had that weekend.
The third count claims that on 9th December 2012 at 9:00am the Mother contravened Order 9 made on 8th June 2011 in that:
Ms Vine without reasonable excuse did[1] allow me to spend time with my son in accordance with final consent orders (block period).
[1] sic
Background
The parties commenced their relationship in July or August 2008, when they were both [occupation omitted]. The Father subsequently left [omitted] and is currently working for [omitted]. The Mother remained in [occupation omitted] but gave evidence that she was leaving [omitted] in December 2013, when her [omitted] concluded.
The Father was born [in] 1980. He is now 33 years of age.
The Mother was born [in] 1989. She turned 24 on [date omitted].
The relationship between the parties was a stormy one. The Mother alleges that the Father was physically abusive to her during the relationship, including emptying a tray of cat litter over her head on one occasion and throwing apples at her stomach on another occasion, both during her pregnancy.
The child [X] Wands was born [in] 2009.
The Father claims that the Mother became increasingly verbally abusive towards him after the child was born and throughout the year 2010.
The Father worked as a [omitted].
The Mother claims that the Father commenced using steroids, which affected his behaviour.
The parties separated in November 2010. There was an altercation between the parties early on 13th November when the Father accused the Mother of infidelity. The Mother claims that the Father woke her up when she was asleep on a couch by grabbing her by the hair and pulling her upright. She claims that he shook her head from side to side and then pushed her back onto the couch. She claims that on the evening of 13th November he slapped her on the left side of her face. Later that evening, the Mother claims that the Father used a steak knife to shred two items of her clothing.
The Mother claims that on 20th November the Father returned to the residence and broke a safety gate. He then smashed her mobile telephone.
The Mother went to the Police on 21st November and made several complaints about the Father’s behaviour. The Police applied for an Apprehended Domestic Violence Order against the Father.
The Father returned to the home on 29th November to collect his belongings. He had already been served been served with an Application for an Apprehended Domestic Violence Order. The next day he was charged with two counts of sexual intercourse without consent and three counts of assault on the mother.
On 4th February 2011 the Father commenced proceedings for parenting orders. The Application was returnable on 2nd May 2011.
Before the return date of the Application, the parties entered into interim Consent Orders on 2nd March 2011, providing that the child would live with the Mother and spend time with the Father for one day and night during the first week of the fortnight and for two days and nights in the second week of each fortnight.
On 11th March 2011 the Mother withdrew her complaints against the Father. The charges were dropped but the Father entered into an Apprehended Domestic Violence Order on a “without admissions” basis.
There was an incident on 25th April 2011, when the Father had been drinking with a friend to celebrate ANZAC Day. He arrived at the Mother’s home and claims that he found the Mother engaging in sexual intercourse with another man. He fell from an awning onto which he had climbed and broke a window. He was charged with a breach of the Apprehended Domestic Violence Order.
On 8th June 2011 the parties entered into final Consent Orders. They were each legally represented. The Orders provided that:
a)The parties would have equal shared parental responsibility for the child;
b)The child would live with the Mother;
c)Order 3, which the Father claims the Mother contravened on 7th December 2012, states:
[X] shall live with the father in a two-weekly cycle as follows:-
3.1In week one from 7.00 am Friday morning to 9.00 am Sunday morning.
3.2.In week two from 7.00 am Thursday morning until 9.00 am Saturday morning.
3.3. At other times as agreed between the parties.
The Orders also provided for the child to spend blocks of four days with the Father and the Mother until he attained the age of two years, upon their giving 21 days’ notice in writing to each other.
Order 6, which the Father claims that the Mother contravened on December 2012, states:
During the period commencing from [X]’s second birthday and concluding in February of the year that [X] commences school, [X] shall spend four periods of seven (7) consecutive days and nights with the father provided that the father gives the mother 21 days’ notice in writing of the proposed periods in writing including the precise start and end time of the periods of seven days and seven nights.
Orders 7 to 9 covered periods such as school holidays and made provision for special occasions such as Fathers’ Day, Mothers’ Day, the child’s birthday and the Christmas period in years to come.
The Father obtained work with an [omitted].
A final Apprehended Domestic Violence Order issued on 14th September 2011 and remained in force for twelve months.
The Mother formed a new relationship in September 2011.
On 15th September 2012 the Father collected the child and observed that he had a black eye, bruising and what appeared to be pinch marks on him. The Father says that the child told him that his mother had hit him in the eye with a gate.
On 22nd September 2012 the Father informed the Mother that he had accepted a transfer in his work and would be moving to Brisbane to live.
On 5th October 2012, when the child was with the Father, a solicitor, Ms O’Leary of the firm of Warren McKeon Dickson, instructed by the Father, wrote to the Mother and her solicitor saying:
We …advise that, due to our client having serious concerns about the welfare of the child whilst in Ms Vine’s care, he will not be returning the child to her as scheduled this weekend.
We have been instructed to file an urgent application seeking orders for the child to live with our client in the short term while our client’s concerns are addressed.
On 9th October 2012 the Mother filed an Application for a Recovery Order under s.67Q of the Family Law Act 1975 (Cth). The Mother also filed an affidavit in support and a Notice of Child Abuse, Family Violence or Risk of Family Violence, in which she described instances of physical violence and verbal abuse against her, which she alleged to have occurred in the presence of the child.
The Application was returnable before the Court on 10th October 2012. The parties were directed to attend a Child Dispute Conference with a Family Consultant that same day. The Family Consultant, in her Memorandum to the Court noted that no agreement was reached by the parties and observed that there were three issues impeding resolution:
* Highly mistrustful parental relationship
* Poor communication
* Divergent history about the nature of the parental relationship.[2]
[2] Family Consultant Memorandum to Court 10.10.2012 page 3
The Family Consultant recommended the appointment of an Independent Children’s Lawyer.
On 10th October, the Father was ordered to return the child to the care of the Mother within 24 hours. I also ordered that the child’s interests should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act.
The Father filed a Response on 31st October 2012 seeking orders that:
a)he should have “sole custody” of the child; and
b)the Mother should attend anger management, conflict resolution and parenting after separation courses.
The Father claims that the Mother failed to permit the child to spend time with the Father on 7th December 2012.
The Father claims that the Mother failed to permit the child to spend time with the Father on 9th December 2012.
On 12th December 2012 there was an interim parenting hearing. That same day, the Mother filed an Amended Application for interim and final parenting orders.
The decision was handed down on 17th December 2012 (Vine & Wands[3]). There were Orders made until further order providing that:
a)The child [X] was to live with the Mother, who was to have sole parental responsibility for him;
b)The child was to spend time with the Father on alternate weekends, such time to increase for two periods each of a week during 2013 on 21 days’ written notice, and on Father’s Day and such other times as the parties should agree in writing;
c)Ancillary parenting orders relating to changeover and informing each parent about any illness or injury sustained by the child;
d)Injunctions against each party restraining them from denigrating or criticising each other or any family members or from changing the child’s primary residence from within the Sydney Metropolitan area without the other’s consent;
e)The parties were each to attend a parenting after separation course; and
f)The parties were to attend upon a family consultant for the purpose of preparation of a Family Report under the provisions of s.62G of the Family Law Act.
[3] [2012] FMCAfam 1407
The Father claims that the Mother failed to permit the child to spend time with him on 20th December 2012.
On 19th February 2013 the Father filed an Application-Contravention in which he claimed that the mother contravened the interim parenting orders current at the time on 7th December, 9th December and 20th December 2012.
The Family Report was released to the parties on 18th March 2013.
On 6th May 2013 the Mother filed a further Amended Application for parenting orders, along with an affidavit sworn that same day in which she denied the contraventions alleged.
On 17th November 2013 the Father moved back to Sydney to live.
The parties attended Court for the final hearing on 11th to 13th December 2013.
Evidence
The Mother relied on the following:
a)her affidavit of 27th November 2013;
b)the affidavit of her mother, Ms V, of 26th November 2013;
c)the affidavit of her father, Mr V of 26th November 2013; and
d)the affidavit of Mr L of 27th November 2013.
They were all required for cross-examination.
Mr L deposed that he remains a [occupation omitted] and has applied to be discharged as of [date omitted] 2014.
The Father relied on the following affidavits:
a)his affidavit of 10th October 2012;
b)his affidavit of 28th November 2013;
c)the affidavit of Ms S of 25th November 2013; and
d)the affidavit of Mr R of 25th November 2013.
They were all required for cross-examination.
In cross-examination, the Father said that he had formed a new relationship with a woman named Ms Z. He is living with her in Sydney, in a home with her mother and father. He did not think it was necessary for her to swear an affidavit.
The Family Report
The Family Report was prepared by Dr S, a Clinical Psychologist. She interviewed the parties and Mr L, on 28th February 2013. For the purposes of her Report, Dr S observed the mother and Mr L with the child. She also observed the Father with the child. Her Report was completed on 16th March 2013 and released to the parties by the Court on 18th March.
In her Report, Dr S noted the issues in dispute as:
* Whether [X] should live with his mother or his father
* How much time he should spend with his mother and with his father
* Whether Ms Vine should have sole parental responsibility for [X] or whether Ms Vine and Mr Wands should have equal shared parental responsibility.
* Where [X] should attend childcare.[4]
[4] Family Report page 4 paragraph [12]
Dr S identified the following issues during the assessment:
* Allegations by Mr Wands that [X] has sustained non accidental injuries whilst in Ms Vine’s care
* Allegations by Ms Vine of family violence towards her by Mr Wands both during their relationship and after their separation
* The possibility that Ms Vine may seek to move to the [N] area at the end of 2013
* The lack of effective communication and trust between
Mr Wands and Ms Vine
* The detrimental impact on [X] of frequent interstate travel, particularly once he starts school.[5]
[5] Family Report p.5 at [13]
Dr S reported the Mother as saying that she planned to leave [occupation omitted] “and would like to train as a [omitted]. Ms Vine stated that she would eventually like to move down the coast to [N], where she was brought up and where her family still live.”[6]
[6] Ibid p.5 at [14]
The Mother told Dr S that she had been in a relationship with Mr L since 2011 and viewed the relationship as being a long term one. She denied the Father’s allegations about her abuse of the child. She said that there had been family violence all through her relationship with the father, which escalated after she became pregnant.
The Mother also said that she had some concerns about the Father’s mental health, noting that during their time together he had regularly taken sleeping tablets and had been discharged from the [occupation omitted] due to mental health problems. She also said that he had previously taken recreational drugs and used various steroids.
The Father told Dr S that he had been discharged from [occupation omitted] on “medical grounds” in 2010. He said that he had been prescribed a sleeping tablet called Stillnox and had been on a Lexapro, an antidepressant. He denied taking steroids or other drugs. He also said that the Mother had been prescribed medication by a psychiatrist after she had had two terminations.
The Father said to Dr S that he lived with his partner, a young woman aged 24, in Brisbane[7].
[7][7] This relationship came to an end shortly afterwards.
The Father also said that he had consented to the Apprehended Violence Order in 2009 without admissions and denied the allegations of family violence during the relationship. He acknowledged that he and the Mother found it very difficult to negotiate about arrangements for the child. He stated that the Mother made false allegations about him and he did not want her to know when he was in Sydney to protect himself from such allegations.
The Father said that whilst he used to have concerns about the child’s safety in the care of the Mother, he no longer did. He said that things had settled considerably since October 2012 and he felt that “by bringing these issues to the awareness of the Court [X] will be kept safe in the future”.[8]
[8] Family Report p.11 at [32]
The Mother’s current partner, Mr L, told the Family Consultant that he enjoyed spending time with [X]. He said he did not know the Father. He said that he and the Mother were trying to set their lives up and were planning a future together. He denied that either he or the Mother had physically abused the child.
The Family consultant described the child [X], then aged three years, as “a happy little boy” who presented as “a normally developing healthy little boy”.[9]
[9] Ibid p.13 at [38]&[40]
Dr S was pessimistic about the parents’ ability to exercise equal shared parental responsibility. In her evaluation, she stated:
Despite now having next to no contact with each other, Ms Vine and Mr Wands still have tremendous difficulties managing to communicate calmly or effectively with each other over [X]’s needs. They both have a very significant sense of distrust of each other and both fear that the other may make false allegations against them. This in effect means that they still see ulterior motives in everything that the other party does. This does not serve as a good foundation for being able to work together to parent [X] in the future.[10]
[10] Family Report pp. 13-14 at [41]
…
It is difficult to imagine Mr Wands and Ms Vine being able to exercise equal shared parental responsibility as the situation now stands. However, the assessment does raise some concerns about Ms Vine being able to make unilateral decisions in the future, which may serve to sabotage [X]’s relationship with his father.[11]
[11] Ibid p.15 at [48]
In the Family Report, Dr S recommended that:
a)the Mother should have sole parental responsibility for the child;
b)the Mother should send the Father information about the child’s day care or school and inform him if the child has any serious illnesses or requires surgery or hospital treatment;
c)[X] should continue to live with the Mother;
d)The Father should spend time with the child from midday on Friday until midday on Monday every second weekend as long as the Mother remains living in Sydney;
e)From Christmas 2013 onwards the child should spend one week each school holiday period with the Father; and
f)The Mother should be prevented from relocating from Sydney “without there being a clear plan in place by which [X] can continue to spend regular time with his father”[12]; and
g)Should the Father be in Sydney and wish to see [X], the Mother should do everything possible to facilitate the child being able to spend some time with his father.
[12] Ibid p.16 at [55]
Dr S gave oral evidence, having been provided with copies of the parties’ trial affidavits, which informed her of the change of circumstances since she interviewed the parties, being that the Father had returned to live in Sydney and had formed a new relationship.
Dr S expressed her views about the Mother’s proposal to relocate herself and the child to [N]. She said that the difficulty between the parties was more antipathetic to the child’s relationship with the Father than the distance between them. She did not think that the geography was the real issue. The issue was the ongoing complete lack of constructive communication between the parties. There is a risk to the child of not having a relationship with his father., thereby growing up with a real sense of confused loyalties, amongst other things.
Dr S said that these parents have almost no capacity to be flexible, nor do they have the capacity to do an equal time arrangement. A split of 5 nights a fortnight and 9 nights a fortnight might work.
As to the Mother’s proposal to change the child’s surname, Dr S told Ms Karagiannis, for the Independent Children’s Lawyer, that she had no views. Older children do question why they have a different surname from one or other parent but it is not critical. Later in her evidence, she said to Mr Bainbridge for the Mother that she saw no detriment to the child’s best interests if the Mother’s name was added to the child’s surname.
Dr S was still concerned about the Mother’s proposal to relocate to [N], noting that the Mother had raised it as a possible plan that she was considering for the beginning of 2014. She said that both the Father and the Mother struggle to place [X]’s needs above their particular squabbles. Their animosity would continue regardless of where they lived.
Dr S went on to say that she had recommended that the Mother should have sole parental responsibility for the child because of the failure of the parties to cooperate.
Dr S said that at paragraph [55] of the Family Report she recommended that the Mother be prevented from relocation. That recommendation would be made regardless of where the Father would be living.
Submissions
Ms Karagiannis, for the Independent Children’s Lawyer, submitted that the child should live with the Mother, who should have sole parental responsibility for him, subject to her being required to inform the Father before making any decision about long-term issues such as the child’s school or day care or his religious upbringing. She submitted that the poor communication between the parties indicated that the Mother should exercise sole parental responsibility.
It was also the view of the Independent Children’s Lawyer that the Mother should be restrained from relocating the child’s residence out of Sydney to the [N] area. The Mother had provided no real reason to move out of Sydney except for the expense of obtaining accommodation in Sydney compared to [N]. Whilst the Mother had given evidence of having applied to the University of [omitted] as a mature age student she had provided no evidence of her enrolment. In any event, she would be as easily able to attend university in [omitted] from Sydney as from [N].
Mr Bainbridge, for the Mother, submitted that the Father was an unimpressive witness. He had denied drug use to the Family Consultant but had later admitted using drugs as a teenager. Importantly, the Father had provided no real evidence about his new partner or her parents. His living with the new partner and her parents in Sydney was a radical change of circumstances about which he had provided little evidence.
It was also submitted that the Mother should be permitted to relocate her residence and that of the child to [N], where the accommodation was cheaper and she would have the support of her extended family.
The Father was not legally represented in these proceedings. For the purpose of preparing and making his submission, the Father was allowed to borrow a spare copy of the Family Law Act from the Court and was provided with a list of the sections of the Act about which the Court would need to be informed, not only for the parenting orders but also for the contravention proceedings. He was also permitted to present his submission after the submissions by the Independent Children’s Lawyer and the Applicant.
The Father prepared a written submission and also made a short oral submission. He told the Court that he agreed with the recommendations of the Independent Children’s Lawyer. As to the Mother’s proposed relocation to [N], he said that the Mother had suitable accommodation in Sydney, as she was living with Mr L, who is still a [occupation omitted]. Accordingly, she and the child could stay in Mr L’s [omitted] housing, which was subsidised, until he leaves [occupation omitted] in 2014.
Applications for Parenting Orders
Part VII of the Family Law Act deals with matters relating to children. The objects of Part VII are set out in s.60B(1) of the Act, providing for children’s best interests to be met by:
a)Ensuring that children have the benefit of both parents having a meaningful involvement in their lives;
b)Protecting children from physical or psychological harm;
c)Ensuring that they receive adequate and proper parenting; and
d)Ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are set out in s.60B(2) and include (except where it is or would be contrary to a child’s best interests):
a)Children have a right to know and be cared for by both of their parents;
b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning their children’s care, welfare and development;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3) respectively.
Subsection 60CC(2), which contains the primary considerations, provides:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The primary considerations are modified by s.60CC(2A), which provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility for the child.
Section 61DB provides that if there is an interim parenting order in relation to a child, as is the case here, the Court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.
Where the Court does make an order providing for a child’s parents to have equal shared parental responsibility for the child, the Court is then required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make an order to that effect, it must then consider under s.65DAA(2) whether it would be both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
All of these matters have been considered where they are relevant.
Relocation
In Mallahan & Mallahan[13], Murphy J considered at [14]-[39] the principles to be followed in parenting cases involving relocation issues, in the light of the decision of the High Court in MRR v GR[14]. His Honour stated at [14]:
Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings (Sections 60CA; 60CB; 61DA(1) & (4) and 65DAA). The issue of the best interests is not left at large. The path to a decision is signposted by a number of mandatory considerations.[15]
[13] [2010] FamCA 631
[14] [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424
[15] [2010] FamCA 631 at [14]
Of relocation cases in particular, his Honour said:
·A “relocation” case is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
·A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.[16]
[16] [2010] FamCA 631 at [27]
In Morgan & Miles[17], an appeal from a decision of the Federal Magistrates Court[18], Boland J said at [80]-[81]:
[17] [2007] FamCA 1230; (2007) FLC 93-343; (2008) 38 Fam LR 275
[18] As it then was
80.It follows from my exposition of the legislation, that earlier core principles:
·that the child’s best interests remain the paramount consideration;
·that a parent wishing to move does not need to demonstrate “compelling” reasons;
·that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
·the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
* consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
* if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes[19] a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and applying those findings to a consideration of s65DAA to craft appropriate orders.[20]
[19] sic
[20] [2007] FamCA 1230; (2007) FLC 93-343; (2008) 38 Fam LR 275 at [80]-[81]
Conclusions
The first matter for consideration is the question of parental responsibility. The Father seeks an order for equal shared parental responsibility. The Mother seeks, and the Independent Children’s Lawyer recommends, that she should have sole parental responsibility for the child. Sole parental responsibility to the Mother has been consistently recommended by the Family Consultant, Dr S, due to the parties’ almost total inability to communicate about arrangements for the child.
First of all, if the Court accepts the Mother’s allegations about family violence during the relationship, then the presumption of equal shared parental responsibility simply would not apply (s.61DA(2)). Whilst the Father denies that there was family violence during the relationship, I found the Mother to be a more credible witness in this regard.
However, the reason why sole parental responsibility to the Mother is sought and recommended is the parties’ poor communication about the child. The Mother said in cross-examination by Ms Karagiannis that “We can’t communicate and it’s not getting any better.”
Dr S expressed serious doubts about the parties’ ability to communicate, which militated against equal shared parental responsibility, at paragraphs [41] and [48] of the Family Report. She reiterated that view in her oral evidence.
It is hard to see how equal shared parental responsibility would be at all viable, noting the animosity between these parties. The Mother’s affidavit of 27th November 2013 annexes numerous conversations between the parties by text message or emails which are little more than name-calling and mutual recrimination or, to quote Dr S’s apt description, “squabbles”.
Space does not allow quoting from all the vituperative emails and vitriolic text messages between the parties, but one example from 1 July 2013 will illustrate how a simple discussion of a change of arrangements descended into an argument. The Father emailed the Mother at 6:29am:
Dear [Ms Vine],
I’m sorry for the inconvenience this may cause you but Due to unforeseen circumstances ill will not be able to board my schedules flight to return our son [X] by 10 am. The earliest I can get on is 1400. I have a lift in Sydney organised so ill get [X] to daycare ASAP.
Please do not abuse me in any fashion. I am happy to discus this with you but any hostilities or abuse will be forwarded to the police to further my case for an avo.
This is an inconvenience to me also so please understand this is beyond my control.[21]
[21] Affidavit of Ms Vine 27.11.2013 Annexure “Y”
The Mother replied at 8:10am:
[Mr Wands],
A simple explanation as to why you can’t make it on time would be enough. You crap on about how we need to work together to parent [X] yet every email I get is either threatening AVOs or contravention applications. Not to mention bringing up court and the magistrate every chance you get. Yet you blame hostilities on me and then wonder why my attitude hasn’t changed and probably never will.
Also saying unforeseen circumstances means nothing to me. If your going to come up with excuses at least tell me what the excuse is otherwise it’s a breach in my eyes as your unforeseen excuse might not warrant being late back to Sydney.[22]
[22] Ibid
The Father replied to this email at 8:17am:
[Ms Vine],
You have had a bad attitude well before today and I agree nothing will ever change with you. No matter how I try and interact with you I get nothing but abuse and hatred. Hence why I will not tolerate it any more and will get an avo to protect myself from you.
I mention the courts and magistrates because they will be made aware of your behaviour in relation to this.
I have asked millions of time to try and work with me yet every time you have declined and today is no different.[23]
[23] Affidavit of Ms Vine 27.11.2113 Annexure “Y”
This email exchange is but one example, and far from the worst, that illustrates Dr S’s evidence in cross-examination when she said “Both father and mother struggle to place [X]’s needs above their particular squabbles” or words to that effect.
Equal shared parental responsibility would be, in my opinion, completely unworkable for these parents. I propose to order that the Mother is to have sole parental responsibility for the child.
Turning to the parenting orders generally, the best interests of the child remain the paramount consideration. It is not the case that the Father now seeks that the child should live with him. The parties propose that the child should continue to live with the Mother.
The amount of time that the child spends with the Father is a live issue between the parties, and it is dependent upon whether the Mother remains living in Sydney or is permitted to relocate to [N] with the child. Currently, she is in a relationship with Mr L, and they live in [omitted] accommodation in Sydney. Whilst that accommodation is currently subsidised, it is uncontested that the rent will increase significantly in 2014. The Mother is making arrangements to leave [occupation omitted] at the completion of her [omitted] and has applied to attend the University of [omitted] as a mature-age student. She has given evidence that accommodation will be less expensive in [N] rather than Sydney.
The Mother has given other reasons for wishing to relocate to [N]. First, her extended family live in [N]. Her mother and father both gave evidence. They are willing and able to assist her with arrangements for the care of [X] if and when she has to attend university lectures.
The Mother has made inquiries about the child attending pre-school in [N], and has been assured that there are vacancies. She deposes in her affidavit of 27th November 2013 that childcare costs are significantly cheaper in [N], $70.00 per day as opposed to $100.00 per day.
The Mother wishes to enrol [X] at [N] School, which is the local primary school in the area where her parents reside. As the child has just turned four, he would presumably be starting school at the beginning of the first school term in 2015. The Mother deposes:
I attended this primary school and recall the fond memories I have of my schooling. I hope to relocate to this area so that [X] can be raised with his family close by.[24]
[24] Affidavit of Ms Vine 27.11.2013 at [94]
The downside of the Mother’s proposed move to [N] is that it is approximately two and half hours’ drive from Sydney, where the Father now lives. This would cause some disruption for the Father in spending time with the child. It is clear from the evidence of maternal grandparents that they do not have a high opinion of the Father, which stems from the reports of the violence in the parties’ relationship. Whilst they would be unlikely to block or hinder the Father’s relationship with the child, they would be unlikely to support it, either.
It was the view of Dr S, set out in the Family Report at paragraph [55] and in her oral evidence, that the Mother should be prevented from relocating from Sydney without there being a clear plan in place by which the child could continue to spend regular time with his father.
There are only two proposals to consider in the relocation issue, being whether the Mother should continue to live in Sydney with the child or whether she should be permitted to relocate to [N] with him.
There is no other proposal. It is not the case that the Father, who now lives in Sydney, is proposing that the child should live with him and his new partner.
The Independent Children’s Lawyer opposes the Mother’s proposed move to [N], submitting that the Mother had given no real reason except for reducing the expense of accommodation. The Mother did not supply any evidence of having enrolled at University and she herself said that she had not heard if she would be accepted.
There is no evidence that would be sufficient to convince the Court that the Mother has shown an immediate need to move to [N], although she certainly does not have to show “pressing reasons”. As the Father submitted, the Mother would still be able to live with Mr L in [omitted] accommodation until his discharge from the [occupation omitted] in November 2014, even though the rent will be more expensive and the Mother will no longer be in employment.
It appears that it would be in the best interests of the child that he should remain living in Sydney for the time being, meaning for the year 2014. Dr S recommended that the Mother should not be permitted to move to [N] until a clear plan was formulated that would allow the child to continue to spend time with his father. The Independent Children’s Lawyer has submitted a Minute of Proposed Orders which includes arrangements to cover the Father’s time with [X], whether the child is living with his mother in Sydney or [N]. I propose to be guided by those proposed orders. They, at least, would provide a clear plan to allow the Father and child to spend time together.
It is a matter of concern that the Father’s living arrangements have changed significantly over the past year. When he attended the interview for the preparation of the Family Report, he was living and working in Brisbane and was living with a partner, one Ms R. However, this relationship came to an end and the Father formed a new relationship with a woman who lives in Sydney.
The Father did not mention any of this in his affidavit, other than to say:
I have recently relocated back to Sydney to manage the time [X] and I have more effectively, taking on Ms Vine’s concerns about [X] travelling for extended periods of time.[25]
[25] Affidavit of Mr Wands 28.11.2013 at [122]
What emerged in the Father’s oral evidence is that he is living with his new partner and her parents in a suburb of Sydney, which he did not wish to disclose to the Mother.
The Mother raised the issue of the child reporting to her that the Father’s relationship with Ms R had come to an end and he had formed a new relationship in an email to the Father on 22nd July 2013, saying:
Its not your private life I am interested in its what you burden [X] with that I have a problem with…When I ask [X] how his weekend is I don’t expect replys like “[Ms R] doesn’t live with us anymore we don’t like her shes nasty” and “daddy had another girl over mummy”.[26]
[26] Affidavit of Ms Vine 27.11.2013 Annexure “KK”
The Father replied that same day:
Yes [Ms R] was not nice hence why I removed myself and [X] from that environment.
…
Just so you know though. The person I am seeing lives in Sydney. So I don’t see how [X] spends time with her when you clearly see that I bring [X] up here each fortnight.[27]
[27] Ibid
The Father did not arrange for his new partner to swear an affidavit, so there is no information about her except her name.
The Father is, of course, perfectly at liberty to form a fresh relationship whenever and with whomever he chooses. What is a matter of concern is that within the one year he has gone from living in Brisbane with one woman to living in Sydney with another. This does not suggest that there is any great stability in the father’s life and does not provide any strong assurance that the current state of affairs will last any longer than the previous one.
Why then, it might be asked, should the Mother be permanently restrained from moving out of Sydney with the child? She appears now to be in a more stable relationship, having been in this relationship with Mr L since late 2011. From his evidence he appears to be committed to the mother and it appears likely that this relationship will continue.
The Mother proposes that the child should attend the [N] School, which she attended in the past. This sounds like a reasonably well thought out proposal and, if the Mother is to move out of Sydney, the time to do so would be before the child is due to start school. The fact that he has maternal grandparents in [N] would be of assistance to him. They gave evidence and appear to be loving and supportive grandparents.
True it is that the Mother does not know if she will be able to gain admission to the University of [omitted] or not, but she will certainly know early in 2014. At least it is a plan.
Whilst the evidence does not support the Mother relocating the child’s residence to [N] at present, the case for her to do so by the end of 2014 seems to be much more convincing. During the year 2014 the Mother will need to remain in Sydney and the Father will be able to spend time with the child in Sydney. By the end of the year, the Father’s relationship with the child should have strengthened and should be able to withstand a move to [N].
Accordingly, the Mother will be restrained from removing the child’s residence from Sydney until the end of the year 2014, but she will be free to relocate from 1st January 2015. This should allow her time to enrol the child in school and make arrangements for him to have a smooth transition to commence school.
I am of the view that it is in the child’s best interests to have a meaningful relationship with both of his parents. His father is committed to him and has maintained the position that he wishes to have a positive relationship with his son right throughout these proceedings.
The evidence of the family violence is disturbing, but it appears to be in the past. The Father claims that:
There is no real evidence to suggest family violence. There is a proven history of false allegations of family violence used by
Ms Vine to obtain leverage in these proceedings. There is also a proven history of Ms Vine being the aggressor and perpetrator of family violence towards [X] and I.[28]
[28] Affidavit of Mr Wands 28.11.2013 at [106]
He also claims that:
I can prove that Ms Vine has used family violence towards me in the presence of [X].[29]
[29] Affidavit of Mr Wands 28.11.2013 at [108]
The Father has not provided any proof of these allegations. Again, it is curious that, if he were the victim of violence from the Mother, he would consent to the issue of an Apprehended Domestic Violence Order against him on 14th September 2011.
The Mother’s proposals for the child to spend time with the Father are, in my view, insufficient to allow the child’s relationship with his father to develop. I propose to follow the suggestion of the Independent Children’s Lawyer and the recommendations of Dr S that the child should spend alternate weekends and a week in each school holiday period, along with special days like Fathers’ Day, birthdays, the Christmas period and alternative ANZAC Days with the Father in 2013 and 2014. Once the child moves to [N] in 2015 the school holiday time should be extended to half of the shorter school holidays and for a longer but defined time in the Christmas/January school holidays. This time will be from 2nd January to Australia Day, 26th January, in each year.
Changeovers have traditionally have been a problem, because the parties have apparently been unable to meet without arranging unpleasantries. Until the end of 2014 changeovers should take place at the child’s daycare centre wherever possible, otherwise at the McDonald’s Family Restaurant at [M].
The Mother may arrange to delegate the responsibility to attend on changeovers to another person, being a responsible adult known to the Father, provided she advises him beforehand.
Once the Mother moves to [N], changeovers can take place at the McDonald’s Restaurant at [H], as the Independent Children’s Lawyer suggests. Again, the Mother may arrange for a responsible adult know to the Father to attend in her place.
There should not be any difficulty about both parents attending school functions involving their son. They need not sit together or even engage in a lengthy conversation, but they should be able to speak politely to each other to avoid embarrassing or distressing their child.
It is not unknown for schools to arrange separate parent-teacher interviews for separated parents to avoid difficulty between parents.
The Child’s Surname
The Mother wishes to add her surname of Vine to the child’s current surname of Wands, with the addition of a hyphen, so that his name would become “Vine-Wands”. The Father opposes the change, saying that it will do nothing to assist his best interests. The Mother seeks the change so that the child will have more of a connection with her.
In her oral evidence, Dr S said that she did not see any detriment to the child’s best interests if the Mother’s surname were to be added to the child’s existing surname.
The Courts have considered the often emotive aspect of changing a child’s name in a number of decisions since the Family Law Act 1975 came into operation on 5th January 1976.
In George v Radford[30] Watson J held at 11,514:
[30] (1976) 1 Fam LR 11,510; FLC 90-060
I consider that the factors which should guide me in this case are as follows –
(a)the final decision must be governed not by supposed parental rights but must be in the best interests of the children;
(b)short-term embarrassment must be weighed against long-term effects;
(c)where the father has a meaningful relationship with his children they should, unless there is a clear contra-indication bearing on their welfare, bear his name;
(d)children should not be subjected unnecessarily to a confusion of identity;
(e)a parent does not have the right unilaterally to change the surname of children in his or her custody or care and control: such a change requires the consent of both parents, or an order of the relevant court.[31]
[31] (1976) 1Fam LR 11,510 at 11,514; FLC 90-060 at 75,296 per Watson J
In Chapman & Palmer[32] the Full Court of the Family Court held that:
[32] (1978) 4 Fam LR 462; FLC 90-510
To summarize, the factors to which the courts should have regard in determining whether there should be any change in the surname of a child include the following:
(a)The welfare of the child is the paramount consideration.
(b)The short and long term effects of any change in the child’s surname.
(c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d)Any confusion of identity which may arise for the child if his or her name is changed or not changed.
(e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.[33]
[33] (1978) 4 Fam LR 462 at 471; FLC 90-510 at 77,675-77,676 per Evatt CJ, Asche and Marshall SJJ
In Beach & Stemmler[34], a decision of the Family Court of Western Australia, Connor J followed the decision in Chapman & Palmer and added the following considerations:
·The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now.
·The contact that the husband has had and is likely to have in the future with the children.
·The degree of identification that the children now have with their father.
·The degree of identification that the children now have with their mother and their stepfather…[35]
[34] (1979) 5 Fam LR Note 13; FLC 90-692
[35] (1979) FLC 90-692 at 78,693 per Connor J
His Honour went on to say:
In many cases it might be convenient for a custodial parent to have a child’s name changed but I do not believe that mere convenience by itself is a sufficient reason for changing a name.[36]
[36] Ibid
In Mahony & McKenzie[37] Warnick J granted an application that a hyphenated surname be used for the child (a boy then aged 4 years and 10 months), the mother having returned to the use of her maiden name. His Honour held that the registration of the child’s birth under the surname of the father was of no real significance and:
The real questions are as to the degree of identification of the child with the registered surname, and as to any difficulties or embarrassment for the child, if using a surname other than that by which he or she is registered.[38]
[37] (1993) 16 Fam LR 803; FLC 92-408
[38] (1993) 16 Fam LR 803 at 806 per Warnick J
His Honour went on to find that the use of a hyphenated surname was appropriate.
In Flanagan & Handcock[39], the Full Court of the Family Court reviewed a range of decisions on the principles to be considered when dealing with a proposed change of a child’s name and held at [35]:
The matters which frequently need to be considered in deciding whether or not to permit of prohibit a change of name have been considered in several decisions of this Court, both at first instance and on appeal. The most significant feature that appears from those cases is that they turn on their individual facts.[40]
[39] [2000] FamCA 150; (2001) 27 Fam LR 615; FLC 93-074
[40] [2000] FamCA 150 at [35] per Kay and Holden JJ
This is certainly a case where it is clear that the Mother’s application needs to be considered in the context of the particular facts. It is of no consequence that the child’s surname was originally registered as “Wands”, although the mother has not explained why she did not seek to have both surnames given to the child at the time of registration. The parties were not married and the Mother has always used the surname of Vine.
The child has always been known by the surname of Wands throughout his four years of life.
The Father has a meaningful relationship with the child, and the parties have been engaged in litigation about the child, on and off, since February 2011. He has been spending time with his son regularly and all the evidence indicates that he intends to continue to do so. It is to the child’s benefit that he continues to have a meaningful relationship with his father.
Those facts of themselves indicate that the surname of “Wands” should be retained.
That does not mean, however, that the Mother’s surname of “Vine” should not be added. It is more than a mere matter of convenience, in my view. The evidence is clear that the child has a meaningful relationship with his mother, with whom he lives. There is a good reason for this child to bear his mother’s surname as well as that of his father.
It is unlikely that this child currently suffers any embarrassment at present from having a different surname from his mother. He is only four years of age, and it is unlikely that he even gives the matter a moment’s thought.
It is later in the child’s life that problems may arise. If there is to be any change of surname, it would appear to be better for the child for it to be done before he commences school, which would be at the beginning of the first school term in 2015. As he gets older and acquires a passport and travels overseas with one or other parent, it would, in my view, be less likely to cause embarrassment or inconvenience to the child if he has a surname that incorporates the surnames of his parents.
In Mahony & McKenzie[41], Warnick J, although he expressed “some reservations about the utility of a general adoption in our society of hyphenated surnames”[42], was persuaded that the use of a hyphenated surname was in the best interests of the child in that case (a child only about 10 months older than the child in this case).
[41] supra
[42] (1993) 16 Fam LR 803 at 809
With great respect to his Honour, I might comment that hyphenated surnames are not uncommon in Australian society and have been so for many years.
I am satisfied, in the particular circumstances of this case, that the child [X] should henceforth be known by the surname of “Vine-Wands”.
To bring about the registration of the change to the child’s surname, an application will need to be made to the Registrar of Births, Deaths and Marriages for New South Wales. The applicable legislation in New South Wales to deal with a change of name is the Births, Deaths and Marriages Registration Act 1995 (NSW).
Section 22 of the Births, Deaths and Marriages Registration Act provides:
(1)If there is a dispute between parents about a child’s name, either parent may apply to the District Court for a resolution of the dispute.
(2)On an application under subsection (1), the District Court may:
(a)resolve the dispute about the child’s name as the Court considers appropriate; and
(b)order the Registrar to registrar the child’s name in a form specified in the order.
(3)If any court (including any court of another State or the Commonwealth) resolves a dispute about a child’s name, the court may order the Registrar to register the child’s name in a form specified in the order.
It can be seen that this Court, being a court of the Commonwealth, may, under s.22(3) of the Act, order the Registrar of Births, Deaths and Marriages in New South Wales to register the child’s name in the form approved by the Court.
Section 28 of the Births, Deaths and Marriages Act also provides for registration of a change of a child’s name in similar terms to s.22(3). The section says, relevantly:
(3)An application for registration of a change of a child’s name may be made by one parent if:
…
(c) a court approves the proposed change of name.
…
(5)If any court (including any court of another State or the Commonwealth) approves a proposed name for a child, the court may order the registrar to register the child’s name in a form specified in the order.
Where a court makes an order changing the surname of a child, it is not necessary to order the other parent to sign any documents. It is neither necessary nor appropriate to empower a Registrar of the court to sign any documents on the other parent’s behalf. The court itself is given the power to order the Registrar of Births, Deaths and Marriages to register the child’s name (see Whinney & Kelleher[43]; also Gerald & Kenwood[44]).
Contravention of Parenting Orders
[43] [2013] FCCA 1939
[44] [2013] FCCA 2038
Contravention of parenting orders is defined by s.70NAC of the Family Law Act. Where a person is bound by an order, the person contravenes the order when he or she has:
a)intentionally failed to comply with the order; or
b)made no reasonable attempt to comply with the order (see s.70NAC(a)).
An applicant in contravention proceedings must show that:
a)There is an order in existence; and
b)The respondent has contravened the order (see s.70NEA(1)).
Once the contravention has been proved, it is up to the respondent to show that he or she had a reasonable excuse for contravening the order (s.70NEA(1)(c)).
Once the contravention has been established and the Court is satisfied that the respondent does not have a reasonable excuse, the Court will decide whether to deal with the matter under Stage 2 of the three-stage regime prescribed by the Act, or whether Stage 2 does not apply (s.70NEA(4)).
If the Court is satisfied that the Stage 2 procedure is appropriate, the Court may exercise all or any of the powers set out in s.70NEB(1), which are:
a)directing the respondent to attend a post-separation parenting program;
b)making a further parenting order compensating the applicant for the time not spent with the child or children;
c)adjourning the proceedings to allow a party to discharge, vary or suspend the primary order;
d)ordering the respondent to enter into a bond in accordance with s.70NEC;
e)making an order for monetary compensation; and
f)making an order for costs against the respondent.
The father alleges that the mother contravened the interim parenting Orders on three occasions in December 2012.
The First Alleged Contravention
The first count of the Father’s Application claims that on 20th December 2012 the mother contravened Order (3)(a) which had been made only three days earlier, by refusing to allow him to spend time with the child.
The Order said to have been contravened was made on 17th December 2012 after an interim hearing on 12th December. Order (3) provides, relevantly:
3 The child [X] is to spend time with the Respondent Father:
(a)each alternate weekend from the conclusion of day care on Thursday commencing on Thursday 20 December 2012 until no later than 10:00 am on the following Monday;
The Father deposes in his affidavit of 18th February 2013 that the Mother was present in Court when the Orders were made and was legally represented. He was scheduled to fly out of Brisbane airport at 1:00pm to collect the child from the changeover point, being the [omitted] early learning centre. He had provided an itinerary for his return travel, as required by the Orders. A copy of that document is annexed to his affidavit. However, whilst he was waiting to check in for his flight to Sydney, he received an email from the Mother, a copy of which he annexed to his affidavit, saying:
Dear [Mr Wands],
In our interim orders it clearly states airline TICKETS must be provided the Tuesday before or your custody for that week will be forfeited. You have only provided me with a travel plan and it clearly says in the terms and conditions that a boarding pass will only be issued to you and [X] if there is space available on that flight when you get to the airport that day. There are no seat numbers provided either.
When I called Virgin airlines this morning to confirm the lady called [omitted] on the other end stated they are called ‘chance flights’ as there is no guarantee you will get a seat and will only find out the morning of the flight if there is going to be enough seats for you and [X]. Virgin airlines also stated they have no records of you flying to Sydney on Monday to technically no tickets have been purchased and I was told, this time of year, that your chances are very slim of flying standby. So this weekends custody is void.
Now under the circumstances of the orders being very fresh and you may have not understood them and due to it being the Christmas period I would be happy to offer an alternate solution to this problem where if you provided tickets by next Tuesday noon you can have [X] as per interim order times (Next Thursday 27th to Monday 31st).
Hopefully next time more care is taken.
Have a great day.
Regards,
Ms Vine.[45]
[45] Affidavit of Mr Wands 18.2.2013 Annexure “C”
The Father deposed that he forwarded a copy of the Mother’s email to the Independent Children’s Lawyer and to the Mother’s solicitor, Mr Bainbridge. He also telephoned Mr Bainbridge.
Mr Bainbridge replied by email that day at 1:10pm, saying:
Dear Mr Wands,
I am instructed that our client will not be making [X] available today.[46]
[46] Ibid Annexure “D”
The Father deposed that, as a result of those emails, he did not board the flight and did not spend time with the child between 20 and 20 December 2012.
The Mother denied that she had contravened the Order in her affidavit of 6th May 2013. She gives her reasons as follows:
3. The father did provide me with an email itinerary that showed he was listed as a stand-by to fly down and pick up [X] and to return [X]. I was concerned that as [X] was due to be returned on 24 December 2013, which was Christmas Eve, there would be little if any chance of a stand-by flight being available.
4. On 20 December 2012 I called Virgin airlines and enquired with a staff member by the name of [omitted] as to the available seats on the flights that the father purported he had booked on. I was told that no ticket had been purchased and that there was a slim only a slim chance that the father would be able to obtain a boarding pass. I noticed that that the itinerary that the father send (sic) to me stated that he would only be issued a boarding pass if space was available, which I was informed by Virgin staff that it wasn’t.[47]
[47] Affidavit of Ms Vine 6.5.2013 at [3]&[4]
It was submitted on behalf of the Mother that it was the Father’s decision not to attend the changeover location at the time specified in the Orders. The Mother could have changed her mind.
I find this submission quite unconvincing. The emails that the Father received from the Mother and her solicitor whilst he was waiting to board his flight to Sydney made it quite clear that the child would not be made available.
The Mother did not comply with the Order, and did not make any reasonable attempt to comply with it. The reasons that she gave in her email and in her affidavit are amongst the weakest of excuses that this Court has had the misfortune to hear in approximately the last ten years.
If the Mother had a legitimate concern that the Father might not be able to get on the flight that his travel plan stated, she should have inquired from him whether he was able to do so, rather than peremptorily cancelling the entire arrangement and informing her solicitor that she was not going to comply with the Order.
The Mother’s attitude is, in my view, well summed up by the closing sentence of her email to the father telling him that he will not be able to spend time with his son:
Have a great day.[48]
[48] Affidavit of Mr Wands 18.2013 Annexure “C”
I find that the Mother contravened the Order on 20th December 2013. She has not established a reasonable excuse.
The Second Alleged Contravention
The second count of the Father’s Application claims that on 7th December 2012 the Mother contravened Order 3.1 of the Interim Consent Orders made on 8th June 2011, by refusing him access to the child.
The Orders of 8th June 2011 were still in force on 7th December 2012, as the fresh Orders made by the Court did not commence until 17th December 2012. Order 3 provides, relevantly:
3. [X] shall live with the father in a two weekly cycle as follows:-
3.1In week one from 7.00a.m. on Friday morning to 9.00 a.m. Sunday morning.
The Father deposed in his affidavit that he had arranged a third party to collect the child from the [omitted] McDonald’s. He annexed to his affidavit copies of email correspondence between the Mother’s solicitor and himself attempting to negotiate an arrangement. He had proposed that Mr R, a person known to the Mother, should collect the child as he was unable to do so. During the email discussion, the Mother’s solicitor emailed the Father at 11:44am on 3rd December 2012, saying:
I am seeking instructions in relation to this matter. From the content of the emails I have received, it appears that Mr R may have had allegations of violence against him in the past. Could you please advise as to your understanding of the extent of the allegations of violence that have been made against Mr R. Could you also confirm whether an AVO has ever been made against
Mr R and, if so, whether that AVO was made on a final basis and when it expires (or expired).[49]
[49] Affidavit of Mr Wands 18.2.2013 Annexure “I”
The Father replied at 12:55pm:
As per your clients long list of unsubstantiated allegations against myself Mr R’s ex partner followed similar lines of false allegation although nowhere near to the extent of miss Vine. On saying that Mr R entered into a without admissions avo when there situation was underway. That avo (without admissions) expired in November 2011. Mr R at no time breached the above mentioned avo. Your client knows Mr R extremely well and whilst his avo was enforced your client regularly socialised with him even to the point that he was casually intimate with one of her closest friends after the time your (client) and I had separated. He was present at several handover previously that I attended as support person. Is there any more information that I can provide. I hope this satisfies your concerns.[50]
[50] Affidavit of Mr Wands 18.2.2013 Annexure “I”
The Mother’s solicitor replied at 12:59pm that day:
We note that you regard the allegations against Mr R as unsubstantiated. Nevertheless, before seeking instructions from our client we seek to know the nature of the allegations made against him. Put differently, are you aware of what he was alleged to have done?
The Father replied at 2:07pm:
Both [Ms Vine] and I are aware of the allegations made were made (sic) against him. Ms Vine herself has had in depth conversations with him as well as myself as to the allegations.[51]
[51] Ibid
The email conversation continued. The final message from the mother’s solicitor, at 11:36am on 4th December 2012, said:
We note that you were unwilling or unable to inform us of the nature of the allegations of violence made against your proposed agent for the changeover. We can only assume that you either do not know or that you do not wish to speak to the nature of the allegations. Either way our client is not satisfied and will not consent to handing over [X] into the care of Mr R…[52]
[52] Ibid
The Father deposed that:
Neither myself nor Mr R attended pick up as email correspondence stated the respondent would not be at handover this is evident in annex ‘I’.
The Mother deposed in her affidavit:
9.The father proposed that a third party, Mr R, would attend changeover in his place, I was concerned about the emotional welfare of [X] being left with Mr R at changeover. [X] may have seen Mr R a few times but does not know or have a relationship with him. I was not happy to leave [X] with a stranger. [X] is a young child and I was concerned he may become extremely distressed when I left him.
10.The father had also previously informed me (during our relationship) that Mr R had a history of violence and was subject to an apprehended domestic or personal violence order. Other than what the father previously told me, I do not know whether any allegations against Mr R were substantiated or whether they were serious or trivial in nature. Through my solicitor, I asked the father to provide details of Mr R’s past so that I could make an assessment as to whether it was appropriate to conduct a handover with him in place of the father. The father refused to provide me with that information.
11.On the basis that I did not know whether Mr R was a threat to our son, I did not feel he was an appropriate person to collect [X] for changeover and I told the father that I would not provide [X] to him….
12.The arrangement at the time was for a changeover to occur at [omitted] day care. I remained willing to conduct changeover with the father and I attended changeover at 7am on 7 December 2012 for that purpose as required by the orders. The father failed to attend.[53]
[53] Affidavit of Ms Vine 6.5.2013 at [9]-[12]
Mr R deposed in his affidavit of 25th November 2013 that he knew the Father and the Mother well. He said he had attended changeover between the Father and the Mother as a support person for the Father. In respect of the alleged contravention, Mr R deposed:
11.In early December 2012, [Mr Wands] approached me to collect [X] from Ms Vine, due to him not being able to get to Sydney until 0745; I agreed to this as I knew [X] very well and knew he knew me and would be very comfortable waiting with me till [Mr Wands] arrived to pick him up.
12.I later saw emails from Ms Vine and Dean Bainbridge stating that Ms Vine did not know me at all and didn’t feel comfortable with me doing this on behalf of [Mr Wands]. I found this strange due to the level of relationship Ms Vine and I have. I was also highly offended about her making allegations that I was a violent person.[54]
[54] Affidavit of Mr R 25.11.2013 at [11]-[12]
Mr R was cross examined during the hearing, but not about this matter.
I am satisfied that the Mother contravened the Order on that occasion, by not making a reasonable attempt to comply with the Order. Although it was submitted that it was the Father who had not attended at the changeover location and therefore it was not the Mother who contravened the order, I am unpersuaded by this submission. The exchange of emails between the Father and the Mother’s solicitor over the previous days made it clear, in my view, that the Father could not expect to collect the child at changeover.
I note that the Mother raised concerns in her affidavit that [X] did not know Mr R very well at all, contrary to Mr R’s statements in his affidavit. Neither the Mother nor Mr R was cross-examined on this issue, so the contradictory evidence remains untested. However, it is striking that this issue was not raised at any stage by the Mother’s solicitor in his email discussion with the Father on 3rd and 4th December. Presumably, Mr Bainbridge was acting on the Mother’s instructions, and it is curious that the entire email exchange turned around the allegations of violence against Mr R.
It was not until the Mother deposed in her affidavit of 6th May 2013 that Mr R was “a stranger” to [X]. This appears to be a recent invention.
I am not satisfied that the Mother has made out a reasonable excuse for the contravention. As I have held previously:
It is not a reasonable excuse for a parent to adopt a policy of passive resistance or even to take a neutral stance. There is a positive obligation on a parent to comply with an order that the child or children should spend time with the other parent in accordance with a parenting order (see Callahan & Callahan[55]at [56]).
[55] [2013] FMCAfam 106
I find the contravention proved. The Mother has not proved that she has a reasonable excuse for the contravention.
The Third Alleged Contravention
The third allegation in the Application relates to an incident said to have occurred on 9th December 2012, where the Father claims that the Mother contravened Order 6 made on 8th June 2011. True it is that the Order was in force at the time, but there is a defect in the Statement of the alleged contravention which was not corrected at the hearing. The allegation is:
Ms Vine without reasonable excuse did allow me to spend time with my son in accordance with final consent orders (block period).
Clearly, the word “not” has been omitted. However, it was not sought to be amended and, as it stands, the statement of the alleged contravention does not allege a contravention of the Order at all. The form Application – Contravention at paragraph 9 of Part D advises the applicant;
State precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place if applicable.
It is not for the Court to interpret what an applicant means in a statement alleging a contravention. The obligation is on the Applicant to state precisely what was done to constitute a contravention of the order.
For this reason, the third count in the Application must be dismissed.
Thus, there are two contraventions of parenting orders established. I am satisfied that no court has previously made an order imposing a sanction or taking any action in respect of a contravention by the Mother of the primary orders, or has adjourned proceedings in respect of a contravention by the Mother of the primary orders (see s.70NEA(2)). Accordingly, subdivision E of Part VII of Division 13A applies.
The powers of the Court are set out in subsection 70NEB(1) of the Act. The appropriate orders to be made are:
a)to require the Mother to attend a post-separation parenting course as provided by s.70NEB(1)(a)(i) in respect of Count 1; and
b)to require the Mother to enter a bond in accordance with s.70NEC, as provided by s.70NEB(1)(d).
The Independent Children’s Lawyer would be in a position to nominate the appropriate post-separation parenting course.
As for the bond, s.70NEC provides that it may be for a specified period of up to 2 years and may be with or without surety or security. In my view, a period of twelve months will be sufficient and the bond may be without surety or security.
A suggested condition for a bond under s.70NEC(4) is to require the person to be of good behaviour, but I have doubts about the advisability of such a condition. If the Mother were to commit a minor larceny or a traffic offence unconnected with the circumstances of these orders she would technically have failed to be of good behaviour and thereby breach the bond. It is not my intention that the Mother should be called to account by this Court in those circumstances.
The purposes of the orders to be made are to be at least as much educative as they are punitive. The aim is to provide that parenting order should be followed. Accordingly, the condition of the bond will be that the Mother should abide by all current parenting order.
Costs
The Independent Children’s Lawyer seeks an order for costs. A schedule of costs has been filed, showing a total figure for costs and disbursements of $10,285.90. The Independent Children’s Lawyer seeks an order for costs against the Mother only, in the sum of $5,192.45, being half of the total costs estimated. An order for costs is not pressed against the Father, as he has been granted a waiver.
The Mother opposes an order for costs against her. Mr Bainbridge submitted that the Father should indemnify the Mother in respect of the ICL’s costs. He pointed out that the Mother is effectively unemployed, as she will shortly be leaving [occupation omitted]. The Father only pays her limited child support and, in summary, her financial position is precarious.
Costs in proceedings under the Family Law Act are governed by s.117 of the Act. The normal rule under s.117(1) is that each party shall bear his or her own costs. However, if the Court is of the opinion that there are circumstances that justify it in doing so, it is empowered by s.117(2) to make such order for costs as it considers just. In considering what order, if any, should be made under s.17(2), the Court shall have regard to the matters set out in s.117(2A).
Where there is an Independent Children’s Lawyer, subsection 117(3) allows the Court to make an order for costs against each party in such proportion as the Court considers just.
Under s.117(4), the Court must not make an order for costs against a party who has received legal aid in respect of the proceedings or if the Court considers that a party would suffer financial hardship.
In making an order for costs in favour of an independent children’s lawyer, the Court is required by s.117(5) to disregard the fact that the Independent Children’s Lawyer is funded by a legal aid scheme or service.
All of these matters have been considered. True it is that the Mother will soon be without employment, but that is a decision of her own. She has chosen no [occupation omitted] for her own reasons.
It would impose hardship on the mother if she were required to pay costs in the amount of over $5,000.00 in the immediate future. For that reason, I propose to set the amount of costs payable at $5,000.00 and allow her a full twelve months to pay.
The Mother seeks an order for costs against the Father for the application that she made to seek a recovery order against the Father when he decided to withhold the child and not return him to the mother. The Father did return the child on the first return date of the Application.
When considering the matters under s.117(2A), I note that neither party is in receipt of legal aid. The father is in employment and the Mother will shortly be finishing her [occupation omitted].
To my mind, the decisive factor is that covered by paragraph (d) of s.117(2A), the fact that the application for a recovery order was necessitated by the failure of the party to comply with an order of the Court by failing to return the child to the Mother.
In my view, the father should pay the Mother’s costs arising from that application. I have had regard to the scale of costs set out in Part 1 of Schedule 1 of the Federal Circuit Court Rules 2001 and I set the amount of costs payable at $1,841.00. I will allow three months to pay.
I certify that the preceding two hundred and twenty-one (221) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 9 January 2014
Key Legal Topics
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Family Law
Legal Concepts
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Injunction
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Costs
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