ALBERTINNI & PODOPOULOS

[2010] FamCA 405

FAMILY COURT OF AUSTRALIA

ALBERTINNI & PODOPOULOS [2010] FamCA 405

FAMILY LAW – CHILDREN – where the wife has filed an application for specific parenting orders – where the parties have equal shared parental responsibility – where the husband consented to proposed arrangements for the child – wife continued with proceedings – inappropriate to encourage litigation to relieve parties of their obligation to engage in negotiations – best interests – application dismissed

FAMILY LAW – COSTS – where the husband filed an application seeking costs – consideration of the conduct of the parties – proceedings pursued notwithstanding the husband’s concession to the wife’s proposals – where the wife has been wholly unsuccessful – consideration of the financial circumstances of the parties – wife ordered to pay a portion of the costs

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 64B(2)(i) & 117

MRR v GR [2010] HCA 4

APPLICANT: Ms Albertinni

RESPONDENT: Mr Podopoulos

FILE NUMBER: ADC 380 of 2007

DATE DELIVERED: 14 May 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 14 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.G. McGinn

SOLICITOR FOR THE APPLICANT: Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT: Ms Collins

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

Orders

1. The wife’s Initiating Application filed on 25 January 2010 is dismissed.

2. The wife within twenty-eight [28] days from today pay the husband’s costs of and incidental to the Initiating Application fixed in the sum of TWO THOUSAND DOLLARS [$2,000.00].

3. Remove all matters from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 380 of 2007

MS ALBERTINNI

Applicant

And

MR PODOPOULOS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application that came before the Court by way of an Initiating Application filed on 25 January 2010 in which the mother sought specific orders by way of final orders and interim orders relating to the child of the parties attending various specific functions, in particular, the child attending a school snow trip in July 2010, a trip to Canada in April, May, and June 2010 and a school camp on Sunday, 31 January 2010. 

2. The proceedings concern the parties’ daughter, who was born in June 1995 and is therefore aged 14, approaching 15.  The parties have been participating in litigation in this Court and in the Federal Magistrates Court since January 2007 (a substantial portion of the child’s life).

3. Orders were made in relation to final orders concerning children’s issues in December 2008 and financial matters in May 2009.

4. The current matter was initially filed in the Federal Magistrates Court and then transferred to this Court after directions the matter was subsequently listed before me on 22 April 2010.  I heard submissions by Mr McGinn, for the wife, and Ms Collins, for the husband, based upon the affidavit material before the Court and directed specifically to the issue of the ski trip in July.  By the time the matter came before me in April 2010, obviously the January camp had passed, and the child was at that time already in Canada.

5. The affidavit material indicates an exchange of emails and correspondence between the parties and then correspondence between the solicitors for the parties.

6. In particular, I draw attention to the letter from the husband’s solicitors to the wife’s solicitors of 9 February 2010 in which it was indicated that the husband consented to the proposed arrangements for the child.  However, there was ongoing correspondence then between the solicitors in relation to whether an undertaking or order would be necessary to conclude the matter.  The husband was insisting that his indication that he would agree to the arrangements was sufficient;  the wife, however, maintained that she wished to proceed to obtain an undertaking to be filed in the Court or an order of the Court in relation to the child’s arrangements.

7. The matter has to be seen in the context of the history of the litigation between the parties which had progressed over many years, and involved a large number of documents.  The specific orders in December 2008 which related to the final children’s orders provided that the parties had equal shared parental responsibility for the child, that the child live with the wife and spend time with the husband as agreed, and failing agreement, as specifically set out in the particulars of paragraphs 3 and 4 of the order.  Thereafter specific conditions were set out relating to other special occasions and particular arrangements.

8. Paragraph 15 of that order provided that:

   “15.In the event that either of the parties seek any amendment to these orders, then the parties shall attend upon a qualified mediator or family consultant prior to either party filing any application in this honourable Court.”

9. The proceedings currently before the Court were filed, but that order was not obeyed.  Some explanation exists if one takes into account the timeframe between the application being filed in the Court and the proposed school function at the end of January. 

10. The other matter of note is the material which is annexed to the affidavit filed by the parties, which can only be described as inappropriate communication between the husband and the wife and the husband and the child and the parties generally, which took place in November/December 2009 and January 2010.

11. It is clear from the material before the Court that the husband agreed to the Canada trip and signed the appropriate documentation around mid-February 2010. 

12. There has subsequently been correspondence passing between the solicitors in relation to the necessity to obtain a Court order. 

13. The Court is obliged to consider this as an order that could fall within the definition of a parenting order.  For that reason, the Part VII provisions of the Family Law Act are relevant.  In particular, the Court has to take into account the objects of the part and the principles underlying it.  In particular, subsection 60B(1)(d) which says that one of the principles is to ensure:

    “(d)that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare, and development of their children.”

14. Section 60B(2) also emphasises in subsection (c) that parents should:

    “(c)jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)parents should agree about the future parenting of their children.”

15. It is obvious from these proceedings before the Court that the parents have been unable to fulfil the expectations of Part VII of the Family Law Act so far as it relates to their parenting responsibilities for their child. 

16. Section 60CA indicates that the Court must consider the best interests of the child, the paramount consideration.  Section 60CC sets out certain factors which the Court is required to take into account when determining what is in the best interests of the child.  In particular in this matter the most significant factors are subsection (f) which deals with:

    “(f)the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs

    and

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.”

    Also of significance in this case is subsection (l):

    “(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.”

17. Subsection (4) of section 60CC also emphasises that without limiting the provisions in paragraphs (3)(c) and (i):

    “The Court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

    a)has taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long-term issues in relation to the child; and

    b)has facilitated, or failed to facilitate, the other parent – participating in those decisions.”

18. Subsection (c) specifically requires the Court to take into account whether one of the parents has, or both of the parents have:

    “Fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.”

19. Section 65DAA has recently been discussed by the High Court in the matter of MRR v GR [2010] HCA 4 in which it is emphasised that the Court is obliged to consider those provisions when making a parenting order.

20. The provisions of Section 65DAA refer to the Court considering specific factors set out therein when the Court is going to make a parenting order where the child’s parents are to have or have equal shared parental responsibility for the child. 

21. This is a case where the parties have equal shared parental responsibility for the child pursuant to the previous order.  It is not, however, a case in which it is appropriate to be considering the factors set out in section 65DAA because the issue does not relate to the child spending equal time or substantial or significant time nor whether spending that time is reasonably practicable.

22. Notwithstanding the provisions of section 65DAA, this application needs to be considered as an application for a parenting order because of the wide definition of parenting order under which now includes Section 64B(2)(i)

    “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”.  (emphasis added).

23. Notwithstanding all of those complications, that it is necessary for the Court to consider whether making the order sought by the wife in relation to the child attending the ski trip in July is an order which is in the child’s best interests.  It is not appropriate, particularly bearing in mind the provisions of section 60B, the objects of the Act and the principles set out in section 60CC to encourage parents to use the Court to overcome parents’ difficulties in failing to be able to negotiate and carry out their responsibilities as parents.

24. It is not appropriate to encourage litigation nor in the best interests of the child to relieve the parents of their obligations and responsibilities to interact with each other on a sensible and practicable basis.  Making an order in these circumstances is only likely to encourage further bickering between the parents rather than further sensible negotiations between the parents.  It may run the risk of encouraging the child being used in disputes between the parents in future and encourage the child to play one parent off against the other for her own purposes. 

25. This may not have occurred, but bringing such a matter before the Court and seeking a final order from the Court in the circumstances which existed following the correspondence from the husband’s solicitors to the wife’s solicitors in or about 9 February 2010 is not something that the Court should encourage, nor is it in the child’s best interests. 

26. I therefore decline to make any order in relation to the application the wife concerning the child’s attendance at the programs (noting that the father has indicated he will consent to the child attending those programs). 

27. I therefore dismiss the application so far as it relates to those matters, but will hear the counsel in relation to the question of costs.

Costs

1. This is the application made by the husband in relation to the costs of these proceedings. Section 117 of the Family Law Act states “each party to proceedings under this Act shall bear his or her own costs”, subject to the provisions of subsection (2).  That subsection provides that:

   “(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) and (5) and the applicable Rules of Court, make such order as to costs and security for costs as the Court considers just.”

2. Subsection (2A) then sets out the criteria to which the Court must have regard. (The other provisions of section 117 relate more directly to Independent Children’s Lawyer’s costs and are not relevant to these proceedings).

3. Turning to the specific provisions of section 117(2A) and the submissions that have been made to me this morning, the first is the financial circumstances of each of the parties to the proceedings. The reference to the financial circumstances of each of the parties to the proceedings is not a reference to any suggestion that the person with the superior financial position should have less chance of obtaining an order for cost than a person with the inferior comparative position in relation to the parties. The financial circumstances of each of the parties to the proceedings which has to be taken into account.

4. In these proceedings the recent documents which have been filed by each of the parties indicate that the wife is a dentist earning a substantial income from that profession and has a significant investment income.  She also has significant assets which total approximately $1.7 million and some liabilities. 

5. The husband is employed with S Company and has a significant salary.  The submissions from the bar table indicate that his income, as declared for child support reasons, is substantially higher due to the apparent recent sale of real estate.  He also has interests in real estate and bank investments with a value of approximately $1.4 million and liabilities of $.4 million, leaving net assets of approximately one million dollars.

6. Thus the parties’ financial circumstances are such that in the context of these proceedings, both are able to meet their legal representatives’ fees without substantial difficulties.  Both have the capacity to meet an order for costs if made against them. 

7. Legal Aid is irrelevant in these proceedings. 

8. Subsection (c) relates to the conduct of the parties to the proceedings, and without limiting the generality those that relate to specific procedural matters.  One of the factors which is raised is the question of the compliance with the order made by consent in December 2008, paragraph 15 which provided that:

   “In the event that either of the parties seek any amendment to these orders, then the parties shall attend upon a qualified mediator or family consultant prior to either party filing any application in this honourable Court.”

9. There could be some argument as to whether the orders sought were in fact an amendment to the orders made in December 2008.  I am not proposing to rule on that.  What is clear is that the whole tenor of the legislation in the Family Law Act encourages and, in certain circumstances, obliges parties to negotiate and consider an outcome by way of mediation before bringing proceedings in this Court.  Part of the wife’s application to this Court related to an event which was due to take place in late January and specific attendance in Canada in April, May, and June of this year which may have had some impact upon the timing of the application.

10. However, considering subsection (c) and the correspondence between the parties, I note that the proceedings continued notwithstanding the concession made by the husband in the proceedings by the letter to the wife’s solicitors of 9 February 2010. 

11. In relation to subsection (e), my earlier dismissal of the wife’s application indicates that the wife has been wholly unsuccessful in the proceedings. I accept the submissions of Mr McGinn that this is only one factor which needs to be taken into account and is not necessarily a determinative factor, otherwise the provisions of the section 117(1) would not make any sense, it being the clear in subsection (1) that subject to the provisions of subsection (2), each party is to bear his or her own costs.

12. However, the decided cases in relation to costs indicate that that is a factor which is to be taken into account, along with the other factors, and balanced in the consideration of the Court when deciding if there are circumstances that justify the Court making an order it considers just.

13. In relation to subsection (g) (which is such other matter as the Court considers relevant) I am being asked to make a costs order by way of deterrent to discourage further proceedings.  Bearing in mind the history of the proceedings between the parties, that could be considered a factor, but it is not one which I intend to apply in these proceedings because of the difficulty that might bring about not only for the parties but for the child.

14. The significant factors, in my view, are that the wife has been wholly unsuccessful and that the financial circumstances indicate that she can clearly meet any costs order that might be made without any significant inconvenience or detriment. 

15. However, the proceedings were such that up until the concession made in the correspondence of February 2010, there was considerable disagreement between the parties, and on one view, an appropriate basis to insist that the husband indicate clearly whether the child could attend the functions. I am therefore not satisfied that, bearing in mind the provisions of section 117(2A)(c), that the wife should be ordered to pay the husband’s costs preceding his solicitor’s letter of February 2010.

16. Weighing all of those factors up it is just in these particular circumstances that the wife pay the husband’s costs being a portion of the costs.  Rather than submit the parties to an assessment of costs and taking into account the scale of costs indicated in the material filed by the husband’s solicitors it is appropriate to fix a figure representing a portion of the costs claimed.

17. I therefore order that the wife pay the husband’s costs fixed in the sum of $2000 within 28 days from today.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  27 May 2010