Webb & Simpson (No 2)
[2022] FedCFamC1F 766
Federal Circuit and Family Court of Australia
(DIVISION 1)
Webb & Simpson (No 2) [2022] FedCFamC1F 766
File number(s): PAC 769 of 2017 Judgment of: ALDRIDGE J Date of judgment: 30 September 2022 Catchwords: FAMILY LAW – CHILDREN – Recovery order – Where the mother seeks a recovery order for the child – Where there is no evidence to support the application – Application dismissed – The mother is to the pay the costs of the father in a fixed sum. Cases cited: Webb & Simpson [2022] FedCFamC1F 732 Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 30 September 2022 Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Somerville Legal Counsel for the Independent Children’s Lawyer: Mr Dean Solicitor for the Independent Children’s Lawyer: Kathryn Renshall Lawyers Pty Ltd ORDERS
PAC 769 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WEBB
Applicant
AND: MR SIMPSON
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
30 september 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 12 September 2022 is dismissed.
2.The applicant is to pay the costs of the respondent fixed in the sum of $1,320 within 45 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Webb & Simpson (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is an application for an urgent recovery order in relation to X (“X”) who was born 2008, which has been brought by her mother.
The parenting arrangements for X were the subject of contested proceedings that were heard by me on 5–7 September 2022. Judgment was delivered and orders were made on 27 September 2022 and I determined that the orders that were in the best interests of X were that she live with the father who was to have sole parental responsibility for her and that X was to spend time and communicate with her mother at the discretion of the father.
The relevant background to the proceedings and the reasons for making those orders are set out in Webb & Simpson [2022] FedCFamC1F 732 and I will not repeat them.
On 12 September 2022, that is, a week after judgment was reserved, the mother brought the present application for a recovery order, the effect of which would be to remove X from the care of the father and place her in care of the mother. In support of that, the mother filed an affidavit on the same day.
Her submissions to me today were the following :
·The father has manipulated the Independent Children’s Lawyer (“the ICL”) into not representing the best interests of the child so that the ICL has only acted in the interests of the father, including the conduct at the trial, and has thereby placed the mother and X at a risk of extreme violence;
·The father has manipulated doctors, police, members of the mother’s family, contact centre staff and people in positions of power to reduce the mother’s autonomy;
·The father is triangulating the relationship with the child and the mother so as to maintain dominance over the mother; and
·The father manipulated the Court into making the orders that were made on 27 September 2022.
The mother submitted that all of the above is coercive control and it is well known that such control creates a risk of violence including murder and that the risk to her and to X is so extreme that a recovery order must be issued today. She also submitted that because of the above, all the findings that were made by me in my reasons of 27 September 2022 are flawed.
An immediate problem that arises is that the orders that I made terminated the proceedings in this Court and there is then no application in which the mother can seek to bring a recovery order.
More importantly, there is no evidence other than the say so of the mother as to the manipulative control of people by the father. Indeed they were issues that were explored at the hearing and were rejected by me. The mother has not referred to any factual circumstance that occurred after judgment was reserved and therefore her application is in effect just an attempt to rerun the trial.
I am not satisfied that the matters raised by the mother raise any doubt as to the conclusions I reached let alone justify an immediate and summary change of residence.
The very nature of the mother’s submissions in my view confirms the findings that I made about her in those reasons.
There is therefore no basis for the recovery order and the application is dismissed.
The father has made an application that his costs of this application in the indemnity sum of $1,320 be paid by the mother. In support of that application, he refers to correspondence that was written on his behalf to the mother asking her to withdraw the application pending the delivery of judgment. That is not a course that the mother chose to follow. Her application was entirely without merit.
In response to that application, the mother said she cannot afford to pay the costs because she only earned $120,000 last year which included the rent she received from her property at G Town and that she does not have the cash to pay this order and the order made on 27 September 2022 for her to pay half of the costs of the single expert. In particular she points to her obligation to pay $1,000 a month in child support to the father.
Accepting all that to be so, even though it was not entirely consistent with what I recall the mother’s evidence to be in the substantive proceedings, it is not a basis to not make, what in the circumstances is, a very modest costs order. I am not satisfied that the mother does not have the capacity to pay the order. Further, it is well known in any event that impecuniosity is not a bar to a costs order.
However, in the circumstances it is appropriate to give the mother some time to pay the order and accordingly the mother is ordered to pay the costs of the father fixed in the sum of $1,320 within 45 days of today.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 20 October 2022
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