Andrews and Killarney

[2010] FamCA 758

FAMILY COURT OF AUSTRALIA

ANDREWS & KILLARNEY [2010] FamCA 758

FAMILY LAW – CHILDREN – No appearance by mother – Intervenors discharged – No order as to costs

APPLICANT: MS ANDREWS

RESPONDENT: MR KILLARNEY

INTERVENORS: MR AND MRS H

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 2221 of 2009

DATE DELIVERED: 23 AUGUST 2010

PLACE DELIVERED: BRISBANE

PLACE HEARD: BRISBANE

JUDGMENT OF: YOUNG J

HEARING DATE: 23 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: NO APPEARANCE

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MS McGHEE

SOLICITOR FOR THE RESPONDENT: EATON LAWYERS

COUNSEL FOR THE INTERVENORS: IN PERSON

SOLICITOR FOR THE INTERVENORS:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR SARA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: EMERSON FAMILY LAW

Orders

IT IS ORDERED:

1. THAT all existing Court Orders be discharged as and from 17 September 2010 save for Order 2 of the Orders made 26 March 2010 by Murphy J. as to granting leave to the Intervenors to then appear in the proceedings.

2. THAT the mother and father have equal shared parental responsibility for the child J born … September 1998 (“the child”) save that the father shall exercise sole responsibility and decision making for all education and schooling issues.

3. THAT until 5.00 p.m. on 17 September 2010 the child live with the Intervenors and as and from that date they be discharged in relation to all further ongoing care and legal responsibilities for the child.

4. THAT the child live with his father as and from 5.00 p.m. 17 September 2010.

5. THAT whilst the child continues to live with the Intervenors the father spend time with and communicate with him at all times as may be agreed including but not limited to each weekend from after school on Friday until 5.30 p.m. Sunday (inclusive).

6. THAT the mother spend time and communicate with the child at all times as may be agreed with the father but, failing agreement, then as follows:

   (a)on each alternate Sunday from 8.30 a.m. until 4.30 p.m. (inclusive) with the changeover to occur at the front gate of the mother’s house as hereafter provided for in these Orders;

   (b)by telephone at all reasonable times with the mother ringing the child’s mobile telephone;

   (c) on all special events and family occasions and in particular to include Mother’s Day, her birthday and the child’s birthday at dates and times to be agreed.

7. THAT the father co-operate in all ways and facilitate all communication and time spent as between the child and the mother including any electronic communication or otherwise as requested by the child.

8. THAT during times that the child spends with his mother he have his mobile phone charged and turned on at all times and the mother not at any time prevent the child from contacting his father or, if required reasonably by the child, from cutting short the period of time that he is required to spend with his mother.

9. THAT if the child has any sporting or extra curricular activity scheduled on a day when he is with his mother then she ensure his full compliance with all such activities.

10. THAT for so long as the mother does not hold a valid driving licence and does not own a motor vehicle the father be responsible for all transport arrangements, or to nominate a responsible adult to assist him in the delivery and collection of the child to and from the mother’s residence.

11. THAT for the purposes of all travel and venue changeover arrangements the father drive or cause the child to be driven to the front gate of the mother’s residence, he remain in his motor vehicle and the mother remain within the boundary of her home property and the child alight from the car and enter his mother’s property/residence and, at the expiration of ten (10) minutes if the mother has not attended and is then with the child then that particular period of time to be spent shall be discontinued and the father and the child may depart for their home.

12. THAT at the conclusion of any time spent period the same travel and venue changeover arrangements operate with the child exiting the mother’s home and walking to the father’s car.

13. THAT the father ensure that the child completes the 2010 school year at his current school, R Primary School.

14. THAT though the father has responsibility for schooling and educating of the child he must inform the mother of the secondary school or college which he will attend next year and thereafter keep her advised of any additional changes.

15. THAT this Order act as an authority directed to the child’s school to provide both to the mother and father all relevant information about him, upon request and at their expense, if any.

16. THAT the mother and father:

    (a)keep each other informed at all times of their residential address and contact telephone number and notify any change in writing within forty-eight (48) hours of the occurrence thereof;

    (b)each ensure that they have an operational telephone be it landline or mobile;

    (c) keep the other informed of the names and address of any treating medical practitioner or other health professional involved with the child;

    (d)immediately inform the other of any serious or concerning medical condition, accident or emergency that may be suffered by the child or any other matter of significance to his welfare.

17. THAT this Order operate as an authority for any treating medical practitioner, specialist or other health professional to release to both the mother and the father all relevant information about the child.

18. THAT during the time that the child lives or spends time with either parent they shall:

    (a)respect the privacy of the other and not question the child about any personal aspect of the life of that other parent;

    (b)speak respectfully of the other parent;

    (c) not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not so denigrate or insult the other parent within the hearing or presence of the child.

19. THAT the mother not use any illicit drugs not consume alcohol to excess whilst the child spends time with her.

20. THAT a sealed copy of this Order be forthwith served upon the mother and the Family Consultant engaged by the Court in these proceedings by the solicitor for the father.

21. THAT all documents and records subpoenaed to Court be forthwith returned by the Brisbane Registry, Family Court, Subpoenas Clerk, to the person or organisation who produced such documents to the Court.

22. THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.

23. THAT the extempore reasons for judgment be transcribed, placed upon the Court file and be made available all parties.

24. THAT as between the mother and father there be no order as to costs.

25. THAT the application for costs outlined to the Court by the Intervenors as against the mother this day, and with the leave of the Court, be dismissed.

26. THAT all extant applications, both interim and final be otherwise dismissed and the proceedings be removed from the Magellan list of cases and the list of cases in hearing.

IT IS NOTED

A.THAT the mother was called out of Court but did not attend and was not present for this hearing.

B.THAT if the mother desires to attend any joint counselling with the child at E Psychological Services, or elsewhere to foster and improve their relationship or for other good reason then:

(a)she must keep the father informed of all appointments made for the child;

(b)she must notify the father of any change in any treating medical practitioner or psychologist including providing the names and details of such appointments;

(c)she must be fully responsible for any cost of or associated therewith.

C.THAT if the mother is to continue such counselling or psychological assistance as between the child and herself then the father must ensure the child is available for all appointments required, upon reasonable notice.

D.THAT if and when the mother hereafter obtains a valid driving licence and owns or has possession of a suitable motor vehicle then it is intended that the mother and father re-negotiate any ongoing travel arrangements for the child and the father would propose that such travelling arrangements then be equally shared.

E.THAT the Intervenors have advised the Court and the Court accepts that there is a significant difficulty in the relationship as between the child J and his step-sister K and most likely the child will not attend or will not remain and spend time with his mother if his step-sister is present.

F.THAT the mother has previously requested or made other arrangements for K not to be present at her home during times when J is to attend and it would be helpful if that arrangements were to continue and specifically the intent of this Notation is that the mother must be aware that J may not stay if he is uncomfortable in the presence of his step-sister.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2221 of 2009

MS ANDREWS

Applicant

And

MR KILLARNEY

Respondent

And

MR AND MRS H
Intervenors

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Andrews and Killarney and others is before the Court in the Magellan list of cases for a defended hearing. 

2. The mother has not appeared at Court.  She was called out of Court.  I am satisfied as to service upon her in reliance upon the affidavit which I have given leave to the father's solicitors to file this day.  In any event the mother had independently notified appropriate officers of the Court that she was not intending to be at court this day.

3. The father is represented by Ms McGhee of Counsel and he has been in Court throughout the proceedings.  The Intervenors are Mr and Mrs H, the paternal uncle and aunt of the child, the subject of these proceedings.  They have been in Court throughout the proceedings.  Mr Sara of Counsel represented the Independent Children's Lawyer who has been by his side in giving instructions throughout the proceedings this day.

4. The child, the subject of all focus, is J, born in September 1998, soon to turn 12 years of age.  The file is substantial and there have been many previous court orders.  All of those orders relevantly dealt with J and not his step-sister, K, who is not the subject of any proceedings before me this day.

5. Currently the intervenors play a substantial role in J’s life.  He has lived with them from early December of last year and has spent increasing periods of time with his father and some modest time with his mother.  He does not wish, currently, to spend time or have any relationship with K.

6. The Intervenors were brought into these proceedings pursuant to an order on 26 March 2010 by Murphy J.  They now seek to have themselves removed from the proceedings and on the facts before me that is appropriate.  There have been substantial discussions between all parties and those discussions have continued out of Court this day in the absence of the mother who has filed a Notice of Discontinuance of her solicitor's representation and of orders sought by her in the proceedings.

7. I have been provided with a minute of order.  That represents a consent order as between the father and the Intervenors.  The Independent Children's Lawyer does not consent but does not oppose to those orders.  The mother does not currently know of the final form of amended orders negotiated at Court this morning, but I am satisfied that the outcome provided therein is generally in accordance with circumstances that she should well know and understand.

8. The orders provided for an ongoing equal shared parental responsibility as between mother and father.  The qualification, however, is that, on all education and schooling matters, the father will have sole parental responsibility for the child.  In the circumstances, as outlined to me, that is appropriate.  I conclude that the presumption of equal shared parental responsibility can and should be rebutted to the extent of education and schooling matters.  This gives certainty to the child and provides the father with the ongoing ability to direct the best interests of the child in this regard and to select without opposition or concern from the mother, particularly in her current circumstances.  I record that the father had initially proposed a sole parental responsibility order in his favour but, in discussion between his Counsel and the Court this compromise, in the best interests of the child, was raised.  It has the benefit of providing a level of shared parental responsibility to the mother on matters of health, religion or other substantial issues other than education.  These orders were agreed to by all parties in Court.

9. The child will live with the father.  The child will spend some limited time with the mother as provided for in the orders that I will pronounce.  I will make those orders on the basis that they are made by the Court, but that is with the very substantial qualification of the consent or the lack of opposition from all parties as I have previously indicated in these brief ex tempore reasons for judgment.

10. I will incorporate within the orders the time spent and communication orders, the transport arrangements and the specific issues as negotiated by all parties.  I will otherwise embrace within notations to the orders matters agreed between all parties today.

11. The purpose of the orders is to bring about a final resolution of all issues before the Court.  It will mean that the appointment of the Independent Children's Lawyer will forthwith be discharged.  It will mean that all extant applications both interim and final will be discharged and the matter removed from any list of cases awaiting hearing and specifically from the Magellan list of cases.  All past orders of the Court will be discharged, save for the formal appointment by the Court made for the intervenors as parties, though their ongoing involvement in this case will cease as and from 17 September 2010 when the child will return to live with his father.

12. I do not propose to give any reasons in more detail and further supporting these orders as, effectively, they are consent orders of the relevant adults in the child’s life and incorporate some time for the mother, given the lack of interest in continuing involvement that she now has in these proceedings.

13. I will have a copy of these orders served upon the mother by the solicitor for the father.  It would also be appropriate for the final orders to be served by the father's solicitor upon the family consultant engaged by this Court who has been involved in the counselling of the children and in providing a report to the Court.

14. The only other matter that I touch upon is that the Intervenors have raised the question of their costs. They are approximately $12,000 and that is a considerable sum.  The costs were occasioned by their involvement in the proceedings and engaging a solicitor.  It is clear from their submission that they regard the costs as both substantial and excessive and also having been further embellished by the actions of the mother or her solicitor.

15. Significantly, costs are not sought by them against the father and thus I do not consider any order that I may have made in those circumstances. The mother is not at Court and thus cannot know of or defend the costs application. The principle for any costs order is based upon section 117 of the Family Law Act 1975 (Cth). That provides for each party to pay their own costs of and incidental to the proceedings, save in circumstances and upon exercise of discretion by the Court where it would be just for a costs order to be made.

16. How the Court determines what in any particular circumstance is a just outcome is identified in section 117(2A). I have drawn these matters to the attention of the Intervenors and have had provided to them a copy of that section to read. The mother is legally aided. The mother's financial circumstances are not known to the Court, save that she owns no real property and seemingly has minimal, if any, assets.

17. Whilst the conduct of the proceedings and the outcome of the proceedings are matters otherwise relevant, I have regard to all of those matters, but, if this matter is to conclude today, there is not a circumstance where I could find it just to make an order for costs.  No one has asked for an adjournment and re-listing of the matter on that basis and that is appropriate.  It is most unlikely that a costs order could be made against the mother and certainly, on the facts before me, could not be made against the solicitor for the mother. 

18. That is clearly a disappointment to the Intervenors but I have tried to deal with the practicalities of the situation and what is a just outcome.  I qualify that my reasons are founded upon the basis that they elected to seek no order as against the father and there may have been a different outcome in that scenario, subject to his financial circumstances.  At least I could have heard and obtained that information.  I, thus, will not make any order for costs in favour of Intervenors and otherwise will make no order for costs in the proceedings, given the Legal Aid assistance given to the mother and the father and, of course, the unique position of the Legal Aid properly provided to the Independent Children's Lawyer. 

I certify that the preceding eighteen
(18) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young 23 August 2010.

Associate: ………………………………………

Date:  ………………………………………