Berrun and Gele (No 2)

[2010] FamCA 1049

FAMILY COURT OF AUSTRALIA

BERRUN & GELE (NO. 2) [2010] FamCA 1049

FAMILY LAW – COSTS – Mother’s application for review – Costs of the Independent Children’s Lawyer – Whether material to be sent to experts currently seeing the child given the mother opposes – No merit in mother’s application – Mother to pay the father’s and Independent Children’s Lawyer’s costs – Leave granted for material to be provided to experts

Family Law Act 1975 (Cth)
APPLICANT:	Ms Berrun

RESPONDENT: Mr Gele

INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham

FILE NUMBER: BRC 3336 of 2008

DATE DELIVERED: 2 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 2 November 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cooper, Solicitor of Charles Cooper Lawyers appearing for the Applicant Mother

COUNSEL FOR THE RESPONDENT: Mr Foley of Counsel appearing for the Respondent Father

SOLICITORS FOR THE RESPONDENT: Harrington Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Selfridge of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham, Solicitor of Legal Aid Queensland

Orders

IT IS ORDERED BY CONSENT THAT:

1. Order 2(a)(ii) of the Order dated 1 April 2010 in relation to the child, C born … January 2000 only, be varied as follows:

   “from 9 December 2010 to 23 December 2010”.

2. For the purposes of Order 2(a)(iii) of the Orders dated 1 April 2010 the Mother shall:

   a)deliver the child, D born … April 1998 to the airport at the appropriate time to ensure his arrival in Wellington, New Zealand on the morning of 29 November 2010;

   b)deliver C to the Father by no later than 12.30 pm on 9 December 2010 at the Father’s place of business at V in New Zealand;

   c)collect D and C from the Father’s place of business at V in New Zealand at 12.30 pm on 23 December 2010.

3. The Independent Children’s Lawyer be granted leave to provide copies of the following documents listed below to C’s therapists, Ms N and Ms S:

   a)Order dated 25 April 2008;

   b)affidavit of Ms N filed 15 December 2009;

   c)affidavit of Ms S filed 18 December 2009;

   d)report of Ms S dated 19 February 2010 (annexure IB4 to the affidavit of the Mother filed 2 March 2010);

   e)affidavit of Ms F filed 26 March 2010;

   f)Order dated 1 April 2010;

   g)Children and Parent Issues Assessment dated 29 June 2010;

   h)Reasons for Judgment dated 15 July 2010 (re: April 2010 Order);

   i)Order and Reasons for Judgment dated 19 July 2010;

   j)affidavit of Ms N filed 13 October 2010;

   k)affidavit of Ms S filed 15 October 2010.

IT IS FURTHER ORDERED THAT:

1. The Independent Children’s Lawyer be granted leave to also provide to Ms N and Ms S the reports of Ms K dated 19 April 2006, 19 December 2006 and 31 October 2007 and the Reasons for Judgment of today’s date.

2. The Mother pay the Father’s costs of and incidental to the hearing on 19 July 2010 in the sum of $3,423.

3. The Mother pay the costs of the Independent Children’s Lawyer of and incidental to the hearing on 19 July 2010 in the sum of $360.

4. The Mother be given three (3) months to pay the costs referred to in Orders (5) and (6) herein.

5. The Father’s legal representative’s oral application that further reports be prepared by Ms K and Ms F is dismissed.

6. All other interim applications be dismissed.

7. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Berrun v Gele is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3336 of 2008

MS BERRUN

Applicant

And

MR GELE

Respondent

REASONS FOR JUDGMENT

1. The hearing was on 30 March 2010 before Principal Registrar Filippello.  She delivered oral reasons, I believe, on 1 April 2010.  The formal reasons for judgment were not published until 15 July 2010.  The orders made by the Principal Registrar related to issues of jurisdiction and also substantive issues in respect of the parties’ two children, D, born in April of 1998, and C, born in January 2000.  I note by paragraph 9 of the Principal Registrar’s orders made on that date, the question of costs of that application were reserved to the trial judge.  That application has not been heard and determined.  The issue before me today is the question of costs of a review hearing of the Principal Registrar’s decision which proceeded before me on 19 July 2010.  For reasons given on that day, I dismissed the application for review. 

2. The parties had previously entered into consent orders in New Zealand in February 2008 during the middle of a trial.  As I understand the history of this matter, the parties have been litigating almost non-stop since 2004.  There was a provision in the New Zealand orders of February 2008, which permitted the mother to relocate with the children to Australia but New Zealand was to be the country of jurisdiction.  The mother, contrary to that provision, filed an application in this Court in November 2009.  Effectively, that was the matter that was before the Principal Registrar. 

3. The parties litigated, again, in New Zealand in December 2009.  I shall be making reference in due course to the determination of Walsh J, which is annexed to the mother’s submissions on costs.  The Independent Children's Lawyer is also seeking an order for costs of the hearing of 19 July 2010 against the mother.  Those costs are extremely modest in the sum of $360.  For her part, the mother, through her legal representative, argues that no costs order should be made.  I note that on the substantive issues, both before the Principal Registrar and at the hearing in this Court on 19 July 2010, the Independent Children's Lawyer supported the father’s position, save for one relatively minor aspect.  The orders made by the Principal Registrar largely replicated the consent orders which had been made in New Zealand. 

4. At paragraphs 9, 10 and 11 of my reasons of 19 July 2010, I made the following observations:  the children were to travel to New Zealand from 2 April to 18 April, from 18 September to 3 October, and from 28 November to 23 December this year, and the father was to see the children for a period of a week in the June/July holidays.  There were to be other proposals as contained in the consent orders.  That order was made on 1 April 2010.  An application in a case was filed on 28 April 2010, by the mother.  In that application, the mother sought an order that orders 2, 3, 4, 5 and 6 of the orders made by the Principal Registrar on 1 April 2010 be dismissed.  I suppose the correct terminology would be “discharged”.

5. When I turned to consider orders 2, 3, 4, 5 and 6, order 2 was the order just referred to, giving the specified times, order 3 seemed to be confined to contributing equally to the costs of the children’s air fares, order 4 was a non-denigration clause, order 5 was not taking the children to further psychological or psychiatric assessments without first consulting the other parent, and order 6 was:

   The mother and father may arrange for the children to attend a general medical practitioner.

6. I observed:

   Why on earth the mother would seek to discharge paragraphs 3, 4, 5, and 7, for the moment, escapes me.

7. The point was taken that if the Court simply made orders as sought in the form 2 application which had been filed, it would not advance the mother’s case at all, because the effect of that would be that the orders of April 2008 registered in this Court would come into effect.  It all gets a bit confusing, I have to say, but the orders of this Court of April 2008 was simply the registration of the February 2008 consent orders made in New Zealand.

8. I noted another area of concern, and this is touched on by counsel for the father in his written submissions, that the mother’s application for review, which had been filed on 28 April 2010, was not served until 21 June 2010.  There was no explanation forthcoming for that unacceptable delay.  Further criticism was made of the way in which the mother’s case was presented in a large affidavit of the mother’s, which was not delivered until the Friday immediately prior to the hearing.  As part of the orders that I made on 19 July 2010 dismissing the application for review, I did make the concession and set the matter down for today for a determination of what time the children should spend over the forthcoming Christmas holidays and whether there should be any time in New Zealand, and, if so, for what duration.  The parties have reached consent on that issue.  It is the only positive note in the whole scenario.

9. The three issues for today are the costs of the father for the hearing of 19 July 2010, the costs of the Independent Children's Lawyer, and whether the material to be sent to experts currently seeing the child, C, should include the three family reports prepared by Ms K in April and December of 2006 and October 2007.  The father says those reports should be given to the current people treating C.  The mother opposes it.

10. The costs sought by the father are in the sum of $3423.  The costs sought by the Independent Children's Lawyer are $360.  No submission has been directed to the quantum of the costs sought.  I am satisfied from the written submissions received from the mother’s then legal representative that the mother has an income of $56,000 – a taxable income from her engagement in employment on Queensland’s Gold Coast.  It appears that she also receives child support.  I would have thought that would not be included in the taxable income.  In the submission for costs prepared by the father’s solicitor’s and filed on 2 August 2010, at the penultimate paragraph and the final paragraph on page 1, it is submitted:

    The mother has singularly sought to pursue matters before the Court to get an answer with which she feels comfortable.

    This is illustrated by the mother’s commencement of proceedings in Australia, and, after a determination had been made in New Zealand at Christmas 2009, one week later, proceeded with her application, which, not surprisingly, was unsuccessful given the prior determination.

11. I have had reference to the determination of Walsh J, where he determined the Family Court of New Zealand should hear the application in New Zealand.  He noted in making these observations:

    I accept that the Family Court of Australia may well come to a different view at the interim hearing on 22 December 2009.

12. The only reason this Court exercised jurisdiction was because a concession to this effect was made by the father’s legal representatives.  Had they not done that I certainly would not have been persuaded, having regard to the doctrine of comity between courts that this Court was an appropriate forum where the parties had entered into consent orders allowing the mother to relocate, but subject to the stipulation that New Zealand would remain the appropriate jurisdiction for any further issues.  Anyway, that is an aside.  I was never called on to determine that issue.

13. That said, the argument was advanced by the mother’s current legal representative that because the Court gave today’s date as a discrete hearing on the issue of Christmas holiday time, therefore the mother wasn’t wholly unsuccessful in the hearing on 19 July 2010.  I think at best that is a tenuous proposition.  The mother’s application for review was dismissed.

14. I see no merit in the mother’s application for review.  She had been unsuccessful in the December 2009 proceedings in New Zealand.  She was unsuccessful before the Principal Registrar.  In that regard, the Principal Registrar had the submissions by the Independent Children’s Lawyer which, as I have noted, favoured the stance taken by the father.  To my mind it is an appropriate case where costs should be ordered and in the circumstances I will fix the costs at the amount as set out annexed to the submissions of 2 August 2010.

15. In relation to the costs of the Independent Children’s Lawyer, the Independent Children’s Lawyer was put to additional expense for the hearing of the application for review and those costs again for similar reasons should be awarded and I’ll make an order again fixing the amount at $360.

16. I turn to consider the issue of the reports of Ms K.  I note that various observations were made about those reports in the proceedings before Walsh J in December 2009.  At paragraph 31 of his Honour’s determination he said:

    Mr Steele stressed the importance of the section 133 reports.  They had been prepared at different times to address different issues which had arisen during the course of these proceedings in the Family Court of New Zealand.  He emphasised the aspect in the reports about concerns over the mother excluding the father from being involved in the care of the children.

17. And he went on to observe at paragraph 32:

    I observe given the fact that parenting orders were made by – a parenting order was made by consent, the issues raised in the section 133 reports were never fully explored and the Family Court of New Zealand was not called upon to make a final determination about issues raised in those reports.

18. Subsequently, at paragraph 42 under the heading Analysis, his Honour noted:

    As I noted at the beginning, given the constraints of a submission only hearing, I am not in a position to make any findings or observations regarding the motivation of the parties.  The allegations and counter-allegations, together with the recommendations contained in the respective reports will need to be tested in cross-examination.  The Court will need to assess the credibility of the parties and also assess what weight can be given to the various reports and their recommendations.

19. There appears to be, in the considerable body of material that is before this Court, two criticisms of the mother, and one appears to be that she takes the children to too many specialists and in effect the child is over-serviced for her particular condition.  The other criticism is the mother attempts to marginalise the father’s role in the lives of the children.  The Court is unable to make findings on issues such as those criticisms without the benefit of a final hearing.  As I understand the position, the matter will be proceeding to a final hearing.

20. The three reports of Ms K to my mind provide important background information.  I accept at this point in time they are largely historical, but if the matter goes to trial – it is to be hoped that the parties would settle it, but if it goes to trial then I expect the two therapists, Ms N and Ms S who are currently treating C, will be witnesses.  If the matter proceeded to trial and those individuals were called to give evidence in their field of expertise, the reports of Ms K could be shown to them in the course of cross-examination. 

21. It would be a waste of time to have to stand the matter down at that point in time.  It is far better that they be briefed and are familiar with historical issues in this matter, and for that reason I will make an order as submitted by counsel for the father and as supported by the Independent Children’s Lawyer, and that of the draft orders there are – paragraph 3 there are documents listed (a) to (k).  The order is that the Independent Children’s Lawyer be granted leave to provide copies of the following documents to C’s therapists, Ms N and Ms S.  I will amend that by including a fresh paragraph A, B, C to include the three reports of Ms K, and then the other – the current A to K will be re-lettered consecutively.  There will be a further order on today’s date.

22. Paragraph 4 of the draft says:

    All other interim applications be dismissed.

23. I will make an order – a new paragraph 4, being the costs order that the mother pay the father’s costs of and incidental to the hearing on 19 July 2010 in the sum of $3423.  And then there will be a further order that the mother pay the costs of the Independent Children’s Lawyer of and incidental to the proceedings of 19 July 2010 fixed in the sum of $360.  Paragraph 6 will be all other interim applications are dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 2 November 2010.

Associate: 

Date:  2 November 2010