Parenting & Costs

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT BRISBANE

 

BRC 11735 of 2018

 

MR ALDEN

Applicant

 

And

 

MS ACHESON

Respondent

 

REASONS FOR JUDGMENT

 

This judgment was delivered orally and has been corrected for written comprehension.

1.           This is a parenting matter.

2.           It was filed by the father back in October 2018.

3.           He was seeking time orders for three children, X, born 2004, Y, born 2009 and Z, born 2012.

4.           The children live with the mother and have done so since separation.

5.           Separation occurred in 2016, and I am told that the children have had very little to do with the father since the date of separation.

6.           I am going to make orders on an undefended basis as the father here failed to appear.

7.           The reason I am making those orders is because firstly, there is no opposition to the orders being made and I am satisfied that the father knows that these are the orders which the mother seeks.

8.           Secondly, besides anything the father stated in his original material, the fact is that it is the mother providing all of that parenting for these children which is expected under the Family Law Act 1975 (“the Act”) and, as a matter of common sense, expected by the community.

9.           There is nothing to say that she is not anything but the best of mothers to these children.

10.         She has to discharge those duties as mother and those duties are required by the parental responsibility sections of the Act, not only without assistance from the father, but in circumstances where he does not appear to be functioning well because of alleged drug usage and mental health issues.

11.         That makes it tough for her.

12.         It makes it tough for the children.

13.         It makes it really tough if and when he decides he wants some time with his children.

14.         There really is no case I can consider than to make the orders being sought by the mother.

15.         Two days ago the father indicated he was not going to attend and not going to take part.

16.         That was really apparent anyway, because he just failed to comply with any orders to file new material.

17.         The court is a public institution and are set up at great expense to the taxpayer to resolve difficulties which parents have upon separation, but people have to take part.

18.         The father has simply wasted the mother’s time, and the court’s time.

19.         Although the mother was on Legal Aid earlier, her Legal Aid was stopped.

20.         She has had to pay out of her pocket for her representation.

21.         Because she has had to pay, she is seeking costs on an indemnity basis.

22.         There is an affidavit from her solicitor, Robyn Marie Hampton filed 25 August 2020.

23.         From that, I am satisfied that there is a costs agreement.

24.         I am satisfied as to the figures stated in there that up until October 2018 it was estimated that the mother spent $6,000 in costs and outlays.

25.         Up until the end of day one of the trial, which was supposed to begin today, costs and counsel’s fees would be another $15,000, which takes the sum to $21,000. That is a lot of money.

26.         The mother is a healthcare worker.

27.         She is not earning a great deal in wages.

28.         She does not own property.

29.         She has got to support the three children.

30.         Child support is not being received, and of course it should be – they are circumstances in which the court would consider that a costs order ought to be made.

31.         I can only do so if I take into account s.117(2A) of the Act.

32.         As I have stated, the mother was on Legal Aid.

33.         She is not on Legal Aid now.

34.         She is paying her costs.

35.         I do not know what assistance the father had.

36.         Her wages are that of a healthcare worker, which could not be great.

37.         I do not know what the father’s income is.

38.         The acts of the parties are that the mother has been forced to attend and make her case to the court when the father began making demands for time and was pursuing his case, and then it became clear that he was just not going to pursue the case.

39.         Two days ago, he contacted the mother to say he is not taking part.

40.         I am not told of any offers, but it is pretty clear that the father, to have the children spend time with him, needed to address certain issues –his drug abuse and his mental health issues – because they were risk factors involved in this matter.

41.         It is also apparent that since he has not taken a great deal of time to address his issues so that the children could spend time with him since 2016, that they are the people affected here, the young children.

42.         That is not being very responsible in relation to being a parent.

43.         I do not know whether he lacks the capacity now, but he certainly had the capacity to bring the application to the court.

44.         The mother has a view – although that is not necessarily backed by evidence – that the father does earn some money.

45.         She believes he works at company A.

46.         She is of the view that he may be receiving some type of payment which has come to him through hereditary connections.

47.         There is no evidence of that, but it is beside the point.

48.         The point is that people should not put another party to great costs, great anxiety and great stress by bringing court proceedings and then abandoning those court proceedings.

49.         That is the real issue which I must consider.

50.         As a matter of public policy, people ought to know that they simply cannot use this institution to cause vexation to another party, especially the parent of the children whom the other party has care and control of and, upon all the evidence, is doing the best job she can do.

51.         The parenting orders I intend then making are that the children, X, Y and Z live with the mother, that she exercise sole parental responsibility, and they spend time and communicate with the father by telephone as agreed.

52.         I will make orders to allow information on the children to go to the father at his expense.

53.         As to costs, while I am not satisfied that the costs ought to be on an indemnity basis, because there may well be a question mark as to his capacity, I am satisfied that the costs ought to be those costs occurred on a solicitor and client basis.

54.         As such, and as I have the power to do, I will make a costs order fixed in the sum of $21,000.

55.         Whether the mother can get that from the father is another point, but I hope that that sends a clear message, not only to the father, but to all people who have the view that these proceedings are simply proceedings which can be used to cause problems for the other party.

 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Coates

 

Associate: 

 

Date: 26 October 2020

Posted in: Derek Legal Blog at 11 November 20