Cashmore and Purser

[2007] FamCA 603

FAMILY COURT OF AUSTRALIA

CASHMORE & PURSER [2007] FamCA 603

FAMILY LAW - CHILDREN - With whom a child spends time - Orders

APPLICANT: MR CASHMORE

RESPONDENT: MS PURSER

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 9351 of 1996

DATE DELIVERED: 31 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 28, 29, 31 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.B.X. Smith

COUNSEL FOR THE RESPONDENT: Mr J.J. Cantwell

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr P.A. O'Connell

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. I make orders in accordance with the minutes of proposed consent orders dated 31 May 2007.  I direct they remain on the court file and the solicitors for the wife will prepare the orders within seven days.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 9351  of 1996

MR CASHMORE

Applicant

And

MS PURSER

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. J is almost 13.  He was just under 2 when his parents separated, and for the next 10 years he lived with his mother.  Since August 2006 he has lived with his father.  The case started before me earlier this week, but the parents now agree that he will continue to live with his father, and will spend time with his mother on a basis that the parents have set out before me.  There are still several issues that the parents have been unable to resolve.

WHAT SHOULD BE THE START TIME OF SATURDAY TIME WITH THE MOTHER?

1. The first is referred to in the proposed Minutes of Orders at paragraph 4.1.  The parents cannot agree what time the alternate weekend time should start with the mother on a Saturday, when J is not engaging in any sport.  The husband says it should be at 11.30am, the wife says it should be at 10 o'clock.  The Independent Children’s Lawyer (ICL) has no particularly strong view about it, given that it is a minor matter in the scheme of things. 

2. The father says he needs the alternate weekends to start later as his adult disabled son lives with him and so he cannot drive J to his mother's home before then.

3. The flaws in that argument are that each morning the father manages to deliver J to school by 9am, and to cricket at weekends.  Both those activities are very near the mother's home, and despite the fact that his 27-year-old son lives with him, he is able to make those deadlines.

4. I understand that the mother wants the week-ends to start as early as possible.  I also understand that it is hard on the father doing as much driving as he does.  From that latter perspective, as I have said in the course of argument, I do think it is fair to “cut him a little bit of slack” at week-ends, so that they are not rushing unduly.  But I am balancing that against the need for J to have as much time as possible with his mother.  I propose making it a 10.30 am start to achieve that.  So in paragraph 4.1 I am going to add the words, "shall commence at 10.30 am". 

SHOULD “AT OTHER TIMES AS AGREED BETWEEN THE WIFE AND THE CHILD” BE IN THE ORDERS?

1. The next issue arose in paragraph 4.5 of the proposed orders as to whether I should include a provision for the child to spend time with his mother at such further and other times as may be agreed between the wife and the child.  The husband says I should not include that order.  The wife says I should.  The ICL agrees with the husband that I should not. 

2. The mother argues the history of the case as showing that there will not be any flexibility or additional time if the decision is left up to the father.  It is argued for her that the father made it clear in the course of his evidence that he places great weight on J's wishes, and that this sort of arrangement would be consistent with J's wishes. 

3. The evidence so far as I heard it does not support the father’s claim that the mother bullies J and lies about what he says, but I did not hear it to conclusion.  I place significant weight on the ICL’s submission that according to the family consultant, J quite simply wants his parents to be "in the driver's seat".  He does not want the pressure of these decisions.  That shows enormous insight on his part.  I hope it might actually help his parents gain similar insight.  I hope that his parents hear him and listen to what he is saying.  He wants to see them both, and be free to have a relationship with them both, but he does not want the sort of pressure that he has been experiencing.

4. Although flexibility is an excellent idea, and the parents will by necessity need to be flexible from time to time to best meet J’s needs, there is no joy for him if I leave an area so fertile for continuing disagreement.  I do not propose making that order.

HOW SHOULD THE 2007 WEEK-END CHANGE-OVERS OCCUR?

1. The next area of disagreement was in paragraph 7.2 of the proposed orders, as to how the changeovers should occur at the end of week-end time for the rest of 2007.  The husband says that the child should travel by bus to be picked up near his, the father’s, home.  The wife says the husband should collect him from or near her home.  The ICL agrees with the wife's proposal.

2. The father complains that he is doing all the driving.  He says that it is not his fault that he has a car and the wife does not, and he should not be burdened with all the driving because of it.  He says that the wife should be responsible for some of the transport for J.  He also says that sometimes his car breaks down.  Dealing with that very last point first, it strikes me as a bit of an afterthought or an embellishment.  One way or another he responsibly gets J to school every day and to every sporting event on time.  That is to his credit but it does put pay to any suggestion that he cannot reach J by car as needed. 

3. I sympathise with the father that he is supporting J.  He is paying the private school fees and he is responsible for most of the transport, but my role is to place J's best interests as the paramount ones.  I am satisfied that it is in his best interests to be able to enjoy a relationship with his mother in a way that will be seamless and conducive to the regime that we are putting in place today to proceed successfully.  The notion of several buses, one ride alone being 50 minutes in duration, and buses scheduled at least 40 minutes apart on a Sunday, with a return time at 5 pm so that the precious time with his mother is eaten into dramatically, must be contrary to J’s best interests.  For approximately only 13 occasions for the remaining part of this year I am going to order that the father collect J.  So paragraph 7 will provide that all changeovers occur adjacent to the wife's residence save for the return of the child to school as and from first term 2008.

SHOULD THERE BE AN ORDER FOR COSTS?

1. The wife seeks costs in relation to two occasions.  The first is in relation to 3 May when the husband objected to the release of various subpoenaed documents.  The parties were at court for some four hours and the wife's costs of $606 were reserved when the Registrar ordered that the documents should be released.  The second relates to 28 May, Monday of this week, when the hearing was due to commence but could not, specifically because of a breakdown in the professional relationship between the father and his lawyer.  I fixed the wife's costs that day at $2165 for the full day and reserved the question.

2. Costs are discretionary under s 117 of the Family Law Act 1975 which sets out the range of matters that I must consider.  I am satisfied that in terms of merit, the wife succeeded in her application of 3 May, and so far as last Monday was concerned, she was in no way to blame for the fact that the case could not proceed. 

3. I am satisfied that so far as Monday was concerned, up to half the day was well used and was not wasted.  There were negotiations and discussions that although not fruitful at that stage, were discussions that were most likely going to occur in any event on the next day.  We were then able to start the hearing immediately once new lawyers were briefed. 

4. The pressing consideration for me here is that both parties are legally aided.  I am grateful to the ICL who has made some inquiries of Victoria Legal Aid.  As I understand it, if I order costs against one party then they must be actually paid.  Victoria Legal Aid does not simply make ledger entries between two legally aided parties.  However, if there is a costs order, it is a matter that is considered when a decision is being made about whether or not to lift the cap for the party, in whose favour the costs order is made, if the need arises in the future.  Any order I make is apparently not determinative of whether or not the cap will be lifted, but it is taken into account. 

5. I take into account the fact that both parties are in receipt of government benefits, that the father has the support of J, his school fees (albeit by his choice), and all the transport expenses.  I do not propose ordering costs, but I do propose adding the notation that I have said that I will add to the orders in the hope that Victoria Legal Aid will look kindly on the wife’s costs cap in the future.

6. So I will delete the proposed paragraph 17, and I will add the following notation: “I have exercised my discretion against ordering the reserved costs fixed at $606 on 3 May and half of $2165 being $1082.50 on 28 May in the wife's favour in light of the husband's financial responsibilities, but Victoria Legal Aid may take them into account in determining any future application by the wife in relation to lifting the cap on her legal costs.”

DISCUSSION

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  31 May 2007

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