Boreham and Dawkins (No 3)

[2009] FamCA 1308

FAMILY COURT OF AUSTRALIA

BOREHAM & DAWKINS (NO. 3) [2009] FamCA 1308

FAMILY LAW – ORDERS – Application for variation – Dismissed – Costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Boreham

RESPONDENT: Ms Dawkins

FILE NUMBER: MLC 8489 of 2009

DATE DELIVERED: 30 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 30 December 2009

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Weil

SOLICITOR FOR THE RESPONDENT: M K STEELE & GIAMMARIO

Orders

1. That the application of the father filed 3 December 2009 and the response of the mother filed 24 December 2009 are dismissed.

2. That the applicant pay the respondent’s costs on an indemnity basis in such sum as may be agreed and failing agreement as may be assessed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC8489 of 2009

MR BOREHAM

Applicant

And

MS DAWKINS

Respondent

REASONS FOR JUDGMENT

1. On the 26 October 2009 I made some orders of a final nature arising out of a contravention application.  The orders provided, by way of a variation of earlier parenting orders made on 14 July, that until certain requirements were fulfilled, the parenting orders of 14 July 2009 were to remain suspended.  The July orders were comprehensive in the amount of time that the father could spend with the child, who is only 4 years of age.  The interim arrangements, pending the ultimate resumption of the 14 July orders, required the father to blow into an anti-alcohol interlocking device in the presence of the mother and, again, at the conclusion of any contact period for the same exercise to be repeated.

2. All of that was an interim arrangement pending the father providing to the mother a certificate signed by a suitably qualified alcohol counsellor setting out a number of things.  What I have been told today is that the counsellor that the father attended has not provided material to the mother that satisfies paragraph 8 of the orders that I made on 26 October.  Paragraph 8 required the father to obtain a certificate from a suitably qualified alcohol counsellor that showed that the counsellor had read the orders and the reasons for judgment of 26 October.  Secondly, that the counsellor had undertaken counselling and/or tests relating to alcohol with the father and thirdly that the counsellor was satisfied that, notwithstanding the father’s denial in the proceedings before me of having consumed alcohol and the findings I made in respect of that, he posed no risk to the child.

3. I have been told that those conditions have not been met and, as a result, the self-executing order of 26 October that would have resurrected the orders of 14 July must remain. 

4. On the 3 December, which I note is outside of the period of time that I granted liberty to apply in relation to the implementation of the orders, the father filed an application in a case. 

5. His application, which I have endeavoured on a number of occasions this morning to try and have clarified, simply seeks that the orders of 14 July be reinstated.  As I have indicated, the orders I made in October were self-executing so, to that extent, that order he seeks is unnecessary. 

6. The father then sought that the orders dated 26 October be reviewed and assessed.  I read that initially as some form of appeal and, to a very large degree, it must be so because the father says that what I have implemented by paragraph 10 of the orders of 26 October, which varied the orders of 14 July, relating to the implementation of the interlocking device, becomes a permanent feature of any hand over of the child.

7. The father complains that it may very well be that he has to endure that for 14 years and, because of the fact that only he could then be present at the hand over, it is unreasonable.  Having said that, however, paragraph 10 of the orders of 26 October indicated that the conditions were to remain unless the parties agreed in writing otherwise.

8. The father’s application then goes on to seek clarification of the orders, in particular Ms D’s letter/certificate.  No evidence has been presented to me as to what Ms D’s letter/certificate says and no application has been made to vary the orders set out in paragraph 8 of the orders of 26 October.

9. The father’s application is supported by an affidavit which simply says that he thinks the orders are unworkable.  Despite a number of occasions my requesting that he tell me precisely what orders he seeks, he reverts to indicating that he simply wants the July orders resumed.

10. The father, in his affidavit, also says that he believes that he has produced a satisfactory letter or certificate.  That is disputed by the respondent and there is no application to have the matter dealt with on a contravention basis on the ground that the certificate does meet the requirements. 

11. The mother filed a response on 24 December 2009, simply seeking that the application be dismissed and that the father pay her costs on an indemnity basis.  The mother relies upon two affidavits, one by herself and one by her solicitor Mark Kenneth Steele.  The father indicated, in response to my question, that he does not wish to cross-examine either of those witnesses. 

12. The mother’s evidence is that the father has been reluctant to carry out the obligations of the orders of 26 October and he becomes agitated when he has to wait whilst the vehicle can be restarted without furnishing a sample of breath.  The affidavit then otherwise goes on to indicate that she has received a fax from Ms D, who she describes as a drug and alcohol counsellor.  She disputes the fact that that satisfies the requirements of the orders that I made on 26 October.

13. Mr Steele’s affidavit is more or less a record of the dialogue between Mr Steele and the father.  He attaches to the affidavit the parties’ correspondence.  In a letter dated 12 November, Mr Steele wrote to the father saying that the report that he received from Ms D, dated 9 November, did not satisfy the conditions of paragraph 8 of the 26 October orders.  On that basis Mr Steele said that the mother would not be complying with the orders of 14 July and maintained that the orders of 26 October would continue.

14. The letter then went on to point out that the father had to comply with the orders of the court.  The second annexure to the affidavit was a record of a conversation between the solicitor and the father.  It was not challenged by the father in any way.  It did him little credit because he used the language and the concepts set out in that diary note.  If that is his view about things, he clearly does not understand the reasons why I made the orders that I did in October.

15. The next annexure to Mr Steele’s affidavit is a letter dated 8 December, which was sent after Mr Steele received the father’s application filed in the court.  The nub of it is that he indicated that there were no precise details as to what the father was seeking and Mr Steele offered that the father discontinue the proceedings and, if he did not, then an application for costs on an indemnity basis would be made.

16. The next annexure was acknowledged by the father as his response to Mr Steele’s letter in which he indicated that he was willing to negotiate but that he would otherwise clearly be going to court if the negotiations did not resolve the matter the way he saw things.  The letter is in uncomplimentary terms of Mr Steele and I put on the record that, having regard to what I have read in Mr Steele’s affidavit, the father is the one out of step rather than everybody else.

17. There is, therefore, no material before me upon which I could realistically vary the orders that I made on 26 October.  I do not know what orders the father wants me to make in relation to varying, if that is what he wants, the orders set out in paragraphs 5 and 8.  If in fact it is as he alleges that a counsellor cannot comply with the orders, in other words that I have made an impossible request, then perhaps an affidavit in support of that could be filed.  At this stage there is certainly no material before me upon which I could conclude that.

18. It is, therefore, quite clear that the application cannot succeed and I propose to dismiss it. 

19. Mr Weil, on behalf of the mother, then applies for costs.  The application for costs is put on an indemnity basis.  It is put that the application was unnecessary and that Mr Steele had written to the father indicating that it was unnecessary and that if the father proceeded then not only would a costs application be made but that one would be put on an indemnity basis as well.

20. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) is the governing provision in relation to costs. It says that each party should pay their own costs unless the court is satisfied that there are circumstances justifying a departure from that principle. This is a case where the father has not taken the opportunity to get legal advice. He says that the court told him to bring the application. He has had discussions with Mr Steele. Mr Steele warned him of the fact that the application was defective because it did not set out with any precision what he was seeking. I have endeavoured this morning to get the same precision and not succeeded.

21. On that basis there is a justifiable reason for the court to depart from the principle that each party pays their own costs.  The question then is whether or not there ought to be an order for indemnity costs.  The authorities are quite clear in relation to indemnity costs and that is that the categories of cases are not closed.  The father does not seem to understand the amount of effort that goes into bringing applications and he simply comes along and says that he is a tradesman and therefore he doesn’t understand the system but he puts an enormous number of people to inconvenience by doing so.

22. Costs orders are not intended to be a form of punishment, they are intended to compensate people who are dragged into proceedings unnecessarily and unwillingly.  This is one of those cases where there ought to be an order for indemnity costs on the basis that the father has chosen this course of action, having been warned that he really needed to set out his application with some precision.

23. There is no material before me upon which I could determine just exactly what those costs are, although I can conclude that they are not substantial.  I propose to make an order that the costs be by agreement between the parties and, failing agreement, as assessed.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 January 2010