BRICE & BRICE

[2011] FamCA 1082

FAMILY COURT OF AUSTRALIA                

BRICE & BRICE [2011] FamCA 1082

FAMILY LAW PRACTICE AND PROCEDURE – Leave for father to make application in relation to time spent with the children

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

APPLICANT: Ms Brice

RESPONDENT: Mr Brice

INDEPENDENT CHILDREN’S LAWYER: Ms P R Cope

FILE NUMBER: CSC 329 of 2007

DATE DELIVERED: 2 August 2011

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 2 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms P R Cope

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Cope Family Law

Orders

1. The appointment of the independent children’s lawyer be discharged.

   IT IS NOTED

2. These proceedings are now at an end. 

3. It is open for the father to commence proceedings in relation to the time he spends with the children but it is not open in respect of where the children live or parental responsibility.

   IT IS FURTHER ORDERED

4. This matter from the list of cases requiring determination.

5. The mother’s application for costs is dismissed.

   IT IS DIRECTED

6. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

7. Pursuant to Rule 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 Brice and Brice has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: CSC 329 of 2007

Ms Brice

Applicant

And

Mr Brice

Respondent

REASONS FOR JUDGMENT

1. These are proceedings which were commenced by Mr Brice, the father, in July 2010 in which he sought orders that a parenting order made by a federal magistrate in F Town in July 2007 be discharged, and consequential orders that he have parental responsibility for three children, that the children live with the mother on an equal shared basis and that neither party be permitted to remove the children from Australia without consent of the other parties, and other consequential orders and interim orders.

2. An application to have the proceedings dismissed pursuant to the rule in Rice & Asplund[1] was heard by me last year and orders were made on 5 November 2010.  Those orders provided that the substantive applications of the father with regard to the parenting of the children was dismissed, but that he had leave to file evidence and argue the case in relation to the views of B, the elder child, and the time C and D spend with him, other than on alternate weekends, and the time over school holidays.

   [1] (1979) FLC 90-725.

3. At that time I was concerned and expressed concern about the ongoing litigation to which these children had been exposed and subjected to over a period of time, and I will talk about that a little later, and I made a series of orders appointing an independent children’s lawyer, requesting an updated report and requiring the father to pay a hearing fee by 30 June 2011 and file affidavits by that date.  A number of things are clear since that time.  Firstly, the father has not paid the hearing fee, nor has he filed his affidavits, and, in fact, on 1 July 2011 the father filed a notice of discontinuance of all proceedings and has now apparently returned to Country E.

4. It is worthwhile having a look at the history of this matter.  The father is aged 51, the mother is aged 44.  The parties were born in Country E, lived in Country E and married in Country E.  There are three children of their marriage, B, aged 14, almost 15, C, aged 11, and D, aged 10.  In May 2005 the parties relocated from Country E to Australia, the mother taking up a position as a health care practitioner.  About six months after their arrival in Australia the parties separated and the mother re-partnered.  There were significant allegations made at that time of violence and in January 2006 the father returned to Country E with the children allegedly without the mother’s knowledge or consent.

5. Proceedings were commenced in Country E pursuant to the Hague Convention and in February 2006 pursuant to an order made in Country E the children were returned to Australia.  In March 2006 the father returned to Australia and orders were made placing the children on the airport watch list.  Interim orders were made by Coleman J in April 2006 that the children live with the mother and spend time with the father.  In June 2006 the father sought orders that the children relocate to Country E with him.  The matter went through a number of interim proceedings and in January 2007 the father returned to Country E and some orders were made by Monteith J.

6. The father subsequently returned to Australia, was interviewed by a doctor, who prepared a report, and the matter was listed for hearing before a federal magistrate in F Town.  At that hearing the father refused to file trial material, but the father was present for some of the hearings and the federal magistrate made orders that the children live with the mother and that the children spend time with the father.  There were clearly difficulties with the children spending time with the father over this period of time and since that period of time.  There were contravention proceedings, one of which was discharged by me last year and then these proceedings were commenced, as I said, in the middle of 2010.

7. I made orders dismissing much of the father’s application, but put in place an arrangement so that the father could if he wished argue those matters having regard to the father at that stage living in Australia, so that the father was, in effect, successful in part of his application but unsuccessful in other parts.  As I understand it there has been no appeal lodged in relation to the orders made by me in November 2010.  I have some sympathy for the father’s position and his desire to have a relationship with the children.  Unfortunately, however, the proceedings before me were at least summarily dismissed pursuant to the orders made by me in November last year by virtue of the father’s failure to comply with those orders, and furthermore, the father has filed a notice of discontinuance in which he discontinued all of his proceedings on 1 July 2011.

8. As such there are no proceedings before me at this time.  It is, of course, open for the father, if he wishes, to commence further proceedings and I suspect if that was the case the whole nature of those proceedings will now change having regard to the father living in Country E now and not living in Australia, if he is correct in that regard.  It is clear that there is no application before me at the present time, although it is open for the father, having regard to what I said in my reasons in November 2010, to commence proceedings in regard to time he spends with the children, or perhaps not parental responsibility or live with.  Accordingly, it seems to me that the proceedings are at an end and I discharge the appointment of the Independent Children’s Lawyer and note that there are no proceedings outstanding.

9. The mother seeks orders for costs in relation to the proceedings of last year.  I had reserved those costs for the reasons that I articulated earlier in these reasons; that is that the father was partly successful and partly unsuccessful.  The only evidence before me of the financial circumstances of the parties are that the mother is employed as medical practitioner in Australia with the care of the three children and the father has returned apparently to Country E because of his financial circumstances.  The father commenced these proceedings to try and spend more time with his children in proceedings which were of great hostility.  The father was, however, at least partly successful in keeping the proceedings alive last year, although has discontinued the proceedings and has not filed the documents which he was required to file by 30 June.

10. The primary proceedings to which the mother refers are, of course, the proceedings with regard to the summary dismissal, which I have alluded to earlier.  Those proceedings were not necessitated by the failure of a party to comply with previous orders and such proceedings were not wholly unsuccessful proceedings by either party.  It is trite law to say that costs orders are a matter of discretion of judges of this Court.  The Act provides that subject to the discretion of the Court each party should bear his or her own costs.  I am reluctant at this stage to make an order for costs having regard to the circumstances as they were last year.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 August 2011.

Associate:

Date:              2 August 2011