Cassella & Cassella [2025] FedCFamC2F 793 (20 May 2025)

1. The child spend time and communicate with her father, MR CASSELLA ('the Father'), as agreed in writing (via text message or email) between the Mother and the Father.

1. The Mother is solely appointed to give consent to the issue of a passport for X born in 2013 under the Australian Passports Act 2005 (Cth) and for the renewal of the child's Passport at the Mother's expense from time to time, and for the avoidance of doubt, pursuant to Section 11(1)(b) of the Australia Passports Act 2005 (Cth), the Mother is hereby authorised and permitted to apply for, renew and receive an Australian passport for the child, X born in 2013, without the consent of the Father.

1. The Mother be at liberty to travel with the child outside the Commonwealth of Australia for the purpose of holidays as determined by the Mother.
2. For the purpose of paragraph 5, the Mother notify the Father of any intended travel in writing no less than 14 days prior to same, and of the child's return to Australia within 14 days of return.

1. The Father pay the Mother's costs on scale in the sum of $12,186.51 payable on or before 30 June 2025.

1. Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.

1. The matter of Cassella comes before me as a matter listed as an interim defended hearing, but with the applicant mother, Ms Cassella ('the Mother'), being at liberty to press for an undefended hearing in the event the respondent father, Mr Cassella ('the Father'), failed to appear or file any documents.
2. The Mother was born in 1987, and is 37, and is in full-time employment as a professional in Australia. The Father was born in 1981 and is 43. The parties commenced to live together in 2007. They married in 2012, and their only child, X, was born in 2013. The parties separated in May of 2015, and were granted a divorce in late 2016. These proceedings were issued by the Mother on 21 February 2025.
3. For some time prior to the issue of these proceedings, the Mother had agitated, in by and large courteous terms, that the Father consent to the issue of a passport for X. In days past, there was a courteous request for a passport so that the Mother could take X on a long-weekend trip to New Zealand. That would have been a splendid trip for X had the Father consented to the issue of a passport for her. In the meantime, X's mother has re-partnered and has two children by that relationship. The eldest now 21 months, and the youngest three months. So, there is a bit on in the Mother's household.
4. Back in 2016, X's parents had prepared a parenting plan, and by and large that was followed until X commenced school. Since then, X has spent regular time with her Father, but not overnight time in recent times. The Father has demonstrated considerable antipathy to the Mother, and in particular when the Mother arranged to pay, at her expense, at least some of the rent for the Father's father (with whom the Father lived), who would otherwise, at that moment, have been caught short, unable to pay the rent. The Father returned that favour by replying in appalling, vulgar and abusive terms. That was back in December of 2023.
5. The Mother's partner, and father of the toddler and the baby, was born in England, but has lived in Australia for many, many years. But, unsurprisingly, the Mother's partner has many relatives, including elderly grandparents in England. The Mother and her partner intend to be married and have planned a marriage celebration in the United Kingdom, and hope for this to occur this year. I infer this year was chosen because, at the time the court case commenced, that was then many months away.

1. After the issue of the proceedings, orders were made in chambers on 28 February 2025 that required the Father to file material within 28 days, and the Mother to again serve the Father with relevant documents. I am satisfied that she did so, notwithstanding the expense of doing that again.
2. After 28 February 2025, the Mother's solicitor, at the Mother's expense, arranged to have sent by post, and express post prepaid, the suite of necessary documents, including affidavit, initiating application, and other necessary documents, together with a letter dated 6 March 2025. I am satisfied that the Father received those documents, and they were sent back with "not at this address" and "RTS". I am not satisfied that the documents would not have found their way to the Father. I am satisfied that they did, but directly or indirectly, he arranged for them to be returned. Even if I am in error about the inferences I draw about that, I am satisfied that the Father received notice of the proceedings and the applications, and he well knew that the Mother was pressing for a passport.
3. The first return of the matter in court was on 31 March 2025, when the Father did not attend at court, and the Mother was ordered to again serve the Father by email and personally, and to notify him by text message that documents had been sent to him by email. I am satisfied the Mother, with the assistance of her solicitor, fastidiously carried out the letter and spirit of those orders. The text message sent by the Mother's solicitor to the Father on 1 April 2025 advised him to look at his email for documents, and the consequences of his absence of participation in the proceedings and of failing to file responding material:

In the event you do not file responding material and or appear at the adjourned date, the matter will be listed for an undefended hearing and orders may be made without you.

That text message went on to say:

We suggest you contact the Duty Lawyer (03) 8610 9803 to obtain legal advice.

1. The orders of 28 April included the following orders made after the Father did not attend:
   1. All outstanding applications are adjourned to the Judge O'Shannessy (for an in-person hearing) on 20 May 2025 at 10.00 am for a possible undefended hearing ("the adjourned hearing date"). For the purpose of the parties attending in person, the parties are required to attend court at Dandenong Registry at 53-55 Robinson St, Dandenong VIC 3175.
   2. The RESPONDENT appear at Court on the adjourned hearing date with or without a legal representative.
   3. The APPLICANT serve the RESPONDENT with a sealed copy of these Orders via express/tracked post and via email, by no later than 4.00 pm on 30 April 2025 and otherwise file an Affidavit of Service confirming such service no later than two (2) business days prior to the adjourned hearing date.

THE COURT NOTES THAT:

Possible undefended hearing

1. In the event the RESPONDENT fails to comply with these Orders and fails to attend Court on the next occasion, the APPLICANT proposes to seek that the final orders sought in the Amended Initiating Application filed on 1 April 2025 be heard on an undefended basis on the adjourned hearing date in the absence of the RESPONDENT.
2. NOTICE TO THE RESPONDENT: An undefended hearing is a hearing where the court considers the evidence and makes orders (including potentially, but not limited to, orders sought by the Applicant) in the Respondent's absence based solely on the uncontested evidence of the Applicant. Those orders may include orders that the Respondent pay some or all of the legal costs of the Applicant of bringing the application.

1. The Mother filed and served an amended application on 1 April 2025 which sought the following final orders:
   1. The Mother have sole parental responsibility for making decisions about major long-term issues for the child, [X] born [in] 2013 ('the child') and for that purpose the Mother provide the Father with written notice of any decision made by her pursuant to this Order.

2. The child live with the Mother.

3. The child spend time with the Father in accordance with her wishes.

1. Pursuant to Section 11(1)(b) of the Australia Passports Act 2005, the Mother is hereby authorised and permitted to apply for, renew and receive an Australian passport for the child, [X] born [in] 2013, without the consent of the Father.
2. The Father pay the Mother's costs of and incidental to this Initiating Application.

1. That application also sought interlocutory orders, including:
   1. In the event of the Father's non-compliance with the Orders made on 31 March 2025 and/or his failure to attend the Directions Hearing on 28 April 2025, the Mother have leave to proceed on an undefended basis.
2. Ms Elsum, the Mother's solicitor, has provided a slightly different minute of proposed orders proposed this day, also again emailed to the Father, but only this day. The minute of the proposed orders follows in almost the same detail, but certainly the spirit of the amended application filed and served back on 1 April 2025. As discussed with the Mother's solicitor, I have proposed some slight variations to the minute of proposed orders that will include, in regard to the passport, the terms of the passport order as pressed at paragraph 4 in the amended application, as well as paragraph 4 of the minute of proposed orders.
3. As discussed with the Mother's solicitor this morning, I am not content with order 3 of the final orders sought, that the child spend time with the Father in accordance with her wishes. I am not satisfied in this case that this child should have that burden of deciding entirely when she will and will not see her father.
4. In all the circumstances, I am satisfied, as discussed with the Mother's solicitors, that that order should read that the child spend time with the Father as agreed in writing via text message or email between the Mother and the Father. I am satisfied that the Mother will act carefully and responsively and protect X from any irritation or pique she may feel with the Father. I am so satisfied because of the history of time between the child and her Father, and the Mother continuing to support that time, notwithstanding the appalling communications that are in evidence that I referred to earlier. However distressing those communications are to the Mother, it is clear on the evidence that she takes them in her stride and continues to promote X's relationship with her father within the bounds of what is in X's best interests.
5. In determining whether the orders sought by the Mother are in X's best interests, I have regard to the factors set out in section 60CC of the Family Law Act 1975 (Cth) ('the Act'):

Section 60CC How a court determines what is in a child's best interests

Determining child's best interests

(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

...

1. I am satisfied that these orders will promote the safety of X. I am satisfied there is no risk whatsoever of X not being returned to the jurisdiction, and hence her safety will be ensured. I am satisfied that she will be taken good care of when she is overseas, which, after all, is to the United Kingdom, not some other place less amenable to the law of the Commonwealth of Australia and what is known as the Hague Convention. I am satisfied that, to the extent that X should have any say in whether she gets to attend the wedding of her Mother and new partner, along with her brothers (the toddler and the baby), that she would support same. But I am not satisfied that decision should be up to X, in any event. I am satisfied that that decision should and will be made by the Mother. I am satisfied that decision will be made in a sensitive manner that will consider how X feels about those things.
2. I have made the travel order sought by the Mother at paragraph 5 of the minute of the proposed orders, being that the Mother is at liberty to travel with the child outside the Commonwealth of Australia for the purpose of holidays, adding that that occur as determined by the Mother.
3. I am satisfied that there is a benefit to X having a relationship with both her parents, including the Father. I am so satisfied because the Mother has continued to promote that relationship by ensuring X spends time with her father. I am so satisfied of the benefit of that, notwithstanding the apparent grudge that the Father has against the Mother and his, at least to date, demonstrated inability to move on past that. I have contemplated making an order that he undertake a parenting course or some psychological counselling to assist him deal with that grudge that would be impacting, or potentially impacting, on X's welfare and the time that X spends with him. On balance, I am satisfied it is not in X's interests that I command him to do that, notwithstanding that if he was to participate in such a course and psychological counselling voluntarily, that would greatly assist him.
4. The other matter that I take into account is, on the evidence I have, the by and large courteous communications between the Mother and the Father (and I also draw the inference that now all communications can end up in court), that any slight, even if understandable, discourtesy by the Mother to the Father will not occur in the future, notwithstanding how tempting that may be.
5. In all of the circumstances, I am satisfied that the orders the Mother seeks are in X's interests, and best interests, and I will make those orders as discussed with her solicitor. And I make the spend time with order alteration because I am satisfied that the Mother will simply raise X in a sensible manner that will promote her relationship with her father as best she can in difficult circumstances.

1. I will now turn to the question of costs.
2. I note the discourtesy that the Father has shown to the Mother. I note the Mother's attitude as evidenced by paragraph 60 of the Mother's affidavit filed 8 May 2025:
   1. Until recently, [Mr Cassella] has demanded that I provide him financial support every time [X] spends time with him. Until around February 2025, when [X] spent time with [Mr Cassella], I provided [Mr Cassella] $50 per day. I have done this to avoid conflict with [Mr Cassella].
3. On scale, as a final defended hearing, as this matter has turned out to be, the costs are $12,186.51 (as worked out by the Mother's solicitor), and I accept that those items will be correct. That is actually a bit less than what the Mother's actual costs will be, as I infer there will be a cost agreement between the Mother and her solicitors.
4. It is unfortunate that the matter necessitated three different appearances at court. All of that was made necessary by the Father's head-in-the-sand attitude of refusing to follow Court orders and participate.
5. In determining the Mother's application for costs, I must have regard to section 117 of the Act:

(1) Subject to subsection (2), subsection 102QAB(6) and sections 117AA and 117AC, each party to proceedings under this Act must bear the party's own costs.

(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

1. I acknowledge the starting point is that each party should bear their own costs.
2. The first matter to consider is the financial circumstances of each of the parties. The Mother and her partner work hard in professional employment, but I do not have any evidence that would indicate that they are fabulously wealthy. And the inference I draw is that the substantial, but nonetheless in the scheme of things, modest expenses of a trip to the United Kingdom for a wedding indicates sensible modesty in living and financial management.
3. There are three matters that give some indication of the Father's financial circumstances. The Mother does not purport to know what they are. However, in evidence is a recent child support assessment that has assessed the Father at the minimum assessment, which leads to a possible inference that the Father is in receipt of social security benefits of some sort, and is not otherwise regularly or gainfully employed. A further matter that is in evidence is that, at a time of apparent crisis in the accommodation of the Father's father, the Mother arranged to make some payment towards rental accommodation to assist that family. And at that time, the Father was living with his father. This, of course, though generous on the Mother's part, benefits X, as ensuring that her father has somewhere to live, and that there is less grief than there may otherwise be, because not only would her father have somewhere to live, but so would X's grandfather have somewhere to live. I will not recite the text of the appalling response that was received following that act of generosity, but it is remarkable.
4. I also acknowledge that I have not heard the Father's side of the story, and I acknowledge and infer that he feels very aggrieved by some events of the past, or at least his understanding and perception of events of the past, that I do not know about, and I do not need to know about. Nonetheless, that generous payment by the Mother indicates quite dire financial circumstances on the Father's part.
5. The other matter that indicates some dire circumstances on the Father's part is the remarkable events detailed in paragraph 60 of the Mother's affidavit, recited above. The fact of those payments, whilst indicating generosity on the Mother's part, demonstrate not only the Mother's understanding of the Father's circumstances, and perhaps personality, but also the fact that the Father accepts that money demonstrates some lack of financial resources on his part, as I infer from the articulate nature of his communications that he is not an unintelligent man.
6. Those things combine to satisfy me that the Father is in relatively poor financial circumstances, and significantly poorer financial circumstances than the Mother, who also has the support of her partner. Nonetheless, impecuniosity is not a bar to a costs order, but is one matter to be considered.
7. Neither party is in receipt of legal aid.
8. In terms of the circumstances that are set out above, I am satisfied that the conduct of the Father in the proceedings, and the putting the Mother to unnecessary expense in the face of a very reasonable request initially about a passport, of itself warrants an order for costs, notwithstanding the other matters, which I will also take into account.
9. The proceedings were not necessitated by a failure to comply with previous orders. The Mother has been wholly successful, but I cannot say that the Father has been unsuccessful, in the sense that he has failed to cooperate and follow Court orders about the filing of material, but he never actually opposed any of the orders sought, save over the years, in vulgar text messages.
10. The issue of offers in writing is not relevant.
11. Other matters that I consider are relevant are the Father's failure to cooperate with a sensible parenting request, like a passport so a child could visit family overseas and attend an important function, like her mother's wedding, when there was absolutely no risk of flight or failing to return. And the financial generosity of the Mother that I have referred to above, balanced against the style and nature of the communication of the Father back to the Mother.
12. I make the costs order in the context of costs not being punishment, but being compensation. However, the non-conduct of the proceedings by the Father and those other matters that I consider relevant to what was at the heart of the application, that is, a passport to travel overseas, all combined to satisfy me that such an order should be made, notwithstanding the compensatory nature of costs.
13. Balancing all those circumstances, and notwithstanding the Father's apparent impecuniosity, I am satisfied that there should be a Court order for costs in the sum of $12,186.51.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy.