Bain and Stewart (No. 3)

[2007] FamCA 798

FAMILY COURT OF AUSTRALIA

BAIN & STEWART (NO. 3) [2007] FamCA 798

FAMILY LAW - CHILDREN - With whom a child spends time - Application to vary orders

Family Law Act 1975 (Cth)

APPLICANT: MR BAIN

RESPONDENT: MS STEWART

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 766 of 2005

DATE DELIVERED: 2 AUGUST 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J.

HEARING DATE: 2 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR CRONIN

SOLICITOR FOR THE APPLICANT: RIGOLI & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MS SMALLWOOD

SOLICITOR FOR THE RESPONDENT: PEARSONS SCHETZER & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR HALLIDAY

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: ROBERT HALLIDAY & ASSOCIATES

ORDERS

1. THAT the further hearing of all extant applications be adjourned to the Judicial Duty List at 10.00 a.m. on 23 August 2007.

2. THAT any further affidavit to be relied upon by the parties is to be filed and served on or before 17 August 2007.

3. THAT the time to be spent by the mother with the child, a son, born in September 1997 be suspended for the weekend of 3-5 August 2007 and thereafter be resumed in accordance with paragraph 4.1 of the Order pronounced of 25 January 2007 by Guest J. on Friday 17 August 2007.

4. THAT pursuant to sections 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.

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

6. THAT the father’s costs of and incidental to the preparation and presentation of his case this day be fixed in the sum of $1,000 and the question of the payment thereof is reserved to be decided by the Judge on the adjourned hearing date.

7. THAT the mother’s application for an order for costs of and incidental to her preparation and legal fees incurred of this day be otherwise dismissed.

8. THAT the application for costs made by the Independent Children’s Lawyer be dismissed.

   IT IS CERTIFIED

9. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the father and mother and solicitor appearing as counsel for the Independent Children’s Lawyer

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 766 of 2005

MR BAIN

Applicant

And

MS STEWART

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Bain and Stewart and the Independent Children's Lawyer is before me in the Judicial Duty List.  Mr Cronin of counsel appears for the applicant father; Ms Smallwood of counsel for the respondent mother, and Mr Halliday appears as the independent children's lawyer.

2. The application that brings the matter before the court is the Form 2 application in the case filed with time abridged by the father on 26 July 2007.  What was sought therein was a recovery order of the child, a son, born in September 1997 and a return of the child to the father pursuant to the existing orders of the court which were pronounced by Guest J on 25 January 2007 and 12 February 2007.  In support of that application an affidavit was filed by the father.  On that same date there was also a Form 1 application seeking in effect a reinstatement of the particular circumstances of the orders of Guest J. 

3. In response, Ms Smallwood has sought leave of the court this day, which has been granted, to file a detailed affidavit and annexures of the mother, together with affidavits of Ms N, and Mr K.  I have read each of those supporting witness affidavits and in particular the affidavit of the mother and the exhibits thereto, including the statement that was made to police on 26 July 2007 and the accompanying medical report from Dr M. 

4. The lengthy children's proceedings were before his Honour Guest J over a seven-day period, concluding 23 January 2007.  His Honour diligently worked on and prepared a lengthy judgment which was delivered extempore on 25 January 2007.  Thereafter, the matter came back before his Honour on 12 February 2007 and there are brief reasons for judgment of the limited issue before the court that day and further orders which I have read.

5. At the hearing before his Honour, both parties were initially represented.  Mr Halliday was then the Independent Children's Lawyer and briefed counsel and otherwise was present in the hearing.  I do understand that the mother presented much of her case to the court.

6. I have read generally the judgment, in particular Ms Smallwood directed my attention to paragraph 118 thereof which was a somewhat blunt and certainly very succinct statement by his Honour of his view of the case, where he found that the mother had attempted to mislead him and that her attitude and conduct sat seamlessly with her desire to obstruct contact and not co-operate with any relationship as between father and son.  He found the mother was not a witness of credit.

7. I have read other findings in that judgment that are similarly very critical of the mother and what was identified as serious or scandalous allegations that she made and which his Honour had rejected in the judgment.  I am required generally to have regard to the reasons of that recent judgment.  They were of course findings of credit and other matters are not binding on myself or any other judge sitting on the merits of the case as they arise from time to time.  The orders, however, are clear and very decisive.  They were made after a defended hearing and were made in what his Honour called "the best interests of [the child]".  They are of necessity of very considerable force and persuasion, particularly in the circumstances of this case and the recent overholding of the child by his mother.

8. I have read and give appropriate weight to the mother's affidavit.  By way of introductory comment it is clear that there has been a lot of thought and preparation put into the affidavit and it visits events that have occurred post‑January of this year and leading up to the alleged incidents on or about 26 July.  In particular, I have carefully read the affidavit of the mother from paragraph 50 of her affidavit and to its conclusion.  I do not rely on statements or observations from others, in particular the matters that were said to police or more particularly identified to a person referred to in the affidavit as "[E]" are of limited assistance.

9. The stark reality of this case is however dissatisfied the mother may well have been with the earlier defended hearing and the decision of the court, those orders are to be obeyed, save and until there are orders made in the interests of the child to the contrary.  What occurred under the cover of, it is alleged, an action that was said to be for the safety, concern and best interests of the child was really no more than an overholding.  I balance the conduct of the mother in the context of her belief, her probable frustrations and her involvement of medical and police personnel which she no doubt believes is in the best interests of the child but part of the wider picture of her looking to restore the child's day-to-day life to herself and the safety and security that she would believe that provides to the child.

10. All matters considered though, the stark reality is that if the mother does have a case to present to the court, it should have been presented on its merits and not by way of an overholding or total disregard of orders of the court. 

11. What is clear in this case is that the child does confront significant issues.  The travel arrangements that exist for changeover are unnecessarily involved and complicated, with the father and now the child living near a central Victorian town and travelling to a Melbourne Bayside suburb for a changeover, then the child with his mother travelling to a Melbourne Eastern suburb and then again to the Bayside suburb for the changeover prior to return on the Sunday to Central Victoria.  There is simply too much travel and not enough parental responsibility or commonsense.  I do not propose to, however, address those matters today that the parents should otherwise address themselves.

12. One of the issues that has been aired before me is that the mother has volunteered to work as a teacher's aide, by way of parental assistance, at the child’s new school.  I do not propose to now interfere with that arrangement but it may be that it creates unnecessary pressures on the child.  That, if it is so, is a matter for another day.

13. The child was brought by the mother to the court today.  He has spent the day, save for lunchtime when he was released into the care of his father, in the childminding centre.  That must no doubt reinforce to the child the parental dispute and conflict with which he is enmeshed.  Again, parental commonsense is needed but seemingly largely absent.

14. The ideal scenario for the mother would seem to be that the child remain living with her, the current orders be revoked and a hearing take place at a later date so that she may obtain final orders for the child to live permanently with her.  That is not my approach today. 

15. I do propose to adjourn matters to 23 August 2007 in the Judicial Duty List at 10.00 a.m.  That will enable affidavits to be properly filed and issues identified.  Having made that observation, however, it will no doubt require, and the mother will be so advised, significant evidence and a very real level of proof as to concerns of the child 's wellbeing for there to be an interim change in any of the defended orders pronounced by Guest J.

16. An issue that has arisen during submissions is that this coming weekend, commencing Friday, 3 August 2007, would, by rotation, have been the mother's weekend with the child.  She has purchased tickets with an airline for the two of them to travel to Hobart.  She proposes to travel on Saturday morning and otherwise to return on Sunday.  The flight details are not available.  I have listened to submissions by her counsel on her specific instructions and I am far from comfortable as to the necessity for the one-day trip to Hobart and also for arrangements made or that could be made for delivery of the child to the airport or collection of the child from the airport by his father.

17. On balance, given the number of consecutive days up until this morning that the mother has had by way of overholding with the child, it does seem very proper and I find it is in the child 's interests to suspend any time to be spent by the mother with the child this coming weekend.  In reality, that means that the next time spent will be on the weekend of 17-19 August (inclusive). 

18. I am not in any way going to interfere with the changeover arrangements as provided for in the additional orders of 12 February 2007.  It has been submitted to the court that G Centre, Bayside Melbourne, no longer operate on a Friday evening and therefore the changeover now occurs on a Saturday morning.  It says little for the parental cooperation and understanding of their son that they need involve these agencies and in any event, that they travel such a distance, as I earlier outlined, from Central Victoria to Melbourne’s bayside suburbs, to the eastern suburbs, back to the bayside suburbs and then central Victoria for the child on any given weekend. 

19. Ultimately, the Western suburbs or a local venue, either within the western suburbs or a venue in the City of Melbourne or otherwise as may be agreed, would be a more commonsense venue but that would require the parents to show some level of cooperation which may not be attainable in this case. 

20. Having regard to the best interests of the child I propose to make orders only suspending this coming weekend of the mother's time and otherwise, as I have indicated, adjourn all issues to 23 August 2007 in this list.  If there is to be any other document filed, and I am not encouraging that approach, then they must be filed and served no later than Friday, 17 August 2007. 

21. I do not intend to submit the child to any medical test or procedure in the interim and he must certainly be returned to his usual school which he has attended for much of this year.  I record, though the mother at this stage has not been called upon to justify her actions, that the child was relocated to a school somewhat local to the mother's home, where he had to confront issues of settling in and adjustment.  I make no further comment on whether he was successful in that regard or whether it placed further undue pressure upon him.

22. I record that I have read the affidavit of Ms N which generally I find to be unhelpful and very one-sided and not focused on the best interests of the child.

23. I will have these brief reasons transcribed and placed upon the court file.  I understand the adjournment will necessitate the matter being listed before another judge, not myself, nor his Honour Guest J.  There does seem no particular reason why this matter should be returned to his Honour, and indeed Ms Smallwood had indicated the concern that her client would have in that regard and feelings of perceived bias.  I make no comment on any of those issues but do understand that my adjournment will facilitate this matter being heard before a judge who has had no involvement in this matter of recent times.

24. Arising out of my earlier reasons and order, I have now an application for costs made both by the father and in turn the mother.  Mr Halliday, appearing for the Independent Children's Lawyer, initially sought to reserve his costs both as to quantum and payment.  I propose to make no order in respect of the Independent Children's Lawyer's costs, though I formally record that the application is made but in all of the circumstances of this case and with its history, I would not regard it as just that an order be made as to the costs of the Independent Children’s Lawyer. 

25. As to the father's application for costs, Mr Cronin has indicated that in the particular financial circumstances, his client has an income modestly less than $100,000 and has had time off work to prepare the recovery order and attached proceedings and otherwise his financial circumstances render him responsible for another child aged four years or thereabouts.  The mother has indicated through her counsel that her income is less than $20,000.  The general principle in the court is that parties pay their own costs, save in circumstances where it is just for a costs order to be made.  The court must, pursuant to section 117(2A) have regard to the various relevant factors which in this case include the financial circumstances of the parties, the conduct of the proceedings and the outcome of the case, including whether one party is largely or wholly unsuccessful or otherwise.

26. I specifically have regard to each of those relevant issues insofar as they are known to me on the evidence before me or from submissions.  I propose to make an order fixing the quantum of costs of the father only.  I propose, however, to adjourn the issue of the payment, that is the mother's responsibility to pay those costs, to 23 August 2007 on the adjourned hearing date.  On balance, there is merit in Ms Smallwood's submission that the result of information that might arise from subpoenas from the Department of Human Services or other institutions, including police, may touch upon matters in issue.  In particular, I have carefully made very limited, if any, findings on contentious facts, save the overwhelming fact of the overholding of the child by the mother pursuant to the orders.

27. Mr Cronin has indicated his brief is marked at $770 which is within the scale of matters that might occupy a half a day's hearing.  I otherwise understand that there are solicitors engaged by the father who have drawn documents.  The father instructs through counsel that he has had time off work and of course his legal fees and disbursements of and incidental to the preparation of the case and the argument at court would well exceed the mere brief fee of counsel.  What I propose to do is to fix the quantum of the father’s costs at $1,000.  I propose to  make no order as to the payment of costs but at least the court is not faced with the assessment of costs and the parties will not be burdened by any production of bill of costs or assessment by a Registrar. 

28. Ms Smallwood has formally requested the court to either fix or reserve or make a like costs order for her client.  I find that would not be, in all of the circumstances of this case, a just order or outcome and I refuse to so order. 

29. I will have these extempore reasons likewise transcribed, placed upon the court file and made available to all parties for their consideration and to facilitate any other course of legal conduct that may be open or recommended to them.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:
Date: 9 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as STEWART & BAIN