Cassidy and Cassidy
[2010] FMCAfam 515
•29 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CASSIDY & CASSIDY | [2010] FMCAfam 515 |
| FAMILY LAW – Children – Interim orders. |
| Family Law 1975 (Cth) |
| Applicant: | MR CASSIDY |
| Respondent: | MS CASSIDY |
| File Number: | SYC 5446 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 April 2010 |
| Date of Last Submission: | 29 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levy |
| Solicitors for the Applicant: | Caldwell Martin Cox |
| Counsel for the Respondent: | Ms Kaiti |
| Solicitors for the Respondent: | CBD Legal |
BY CONSENT UNTIL FURTHER ORDER
The Children spend time with the Father as follows:
(a)On weekends during school term as follows:
(i)From end of school 30th April 2010 until beginning of school Monday 3rd May 2010;
(ii)From end of school 14th May 2010 until beginning of school 17th May 2010;
(iii)From end of school 28th May 2010 until beginning of school 31st May 2010;
(iv)From end of school 11th June 2010 until beginning of school 15th June 2010;
(v)From end of school 25th June 2010 until beginning of school 28th June 2010;
(vi)From end of school 23rd July 2010 until beginning of school 26th July 2010;
(vii)From end of school 6th August 2010 until beginning of school 9th August 2010;
(viii)From end of school 20th August 2010 until beginning of school 23rd August 2010;
(ix)From end of school 3rd September 2010 until beginning of school 6th September 2010;
(x)From end of school 17th September 2010 until beginning of school 20th September 2010;
(xi)From end of school 15th October 2010 until beginning of school 18th October 2010;
(xii)From end of school 29th October 2010 until beginning of school 1st November 2010;
(xiii)From end of school 12th November 2010 until beginning of school 15th November 2010;
(xiv)From end of school 26th November 2010 until beginning of school 29th November 2010;
(xv)From end of school 10th December 2010 until beginning of school 13th December 2010.
(b)On each Wednesday, during school term, from after school until 7:30pm commencing 5th May 2010.
(c)The Children spend time with the Father during school holidays as follows:
(i)From end of school Friday 2nd July until 3:00pm Saturday 10th July 2010.
(ii)From end of school Friday 24th September 2010 until 3:00pm on Saturday 2nd October 2010.
(iii)From 3:00pm 25th December 2010 until 3:00pm 15th January 2011.
The Father deliver the Children to the Mother at the end of his time pursuant to Order 1b) and 1c) immediately in front of [shop omitted].
UNTIL FURTHER ORDER the Mother be and hereby is restrained from being within 500 metres of the [E] School from 30 minutes before until 30 minutes after the beginning and end of school on any day on which the Father is collecting or delivering the Children to and from school pursuant to these orders.
Orders 4 and 5 made on 17th October 2008 are suspended until further order.
Each of the parties is to ensure that the Children’s school uniforms, shoes and other school equipment accompany the Children at changeover and that the school uniforms, shoes and other school equipment be returned clean and in good repair at the conclusion of the Children’s time with the Father.
The Respondent Mother is to pay the Applicant Father’s costs thrown away in the sum of $6,500.00, such sum to be paid out of the moneys held on behalf of the parties in the Applicant’s solicitor’s trust account within 14 days.
The Application is adjourned to Monday 13th September 2010 at 11:30am for further mention.
The Application is adjourned to 3rd, 4th and 5th November 2010 for Final Hearing before Federal Magistrate Scarlett in Court 7A, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.
IT IS NOTED that publication of this judgment under the pseudonym Cassidy & Cassidy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5446 of 2007
| MR CASSIDY |
Applicant
And
| MS CASSIDY |
Respondent
REASONS FOR JUDGMENT
The orders I am making today are interim orders, made in the context of an application to adjourn the Final Hearing made by the Respondent Mother, and for the reasons that I set out earlier in the day, I have decided to accede to. However, I have agreed to take submissions in respect of certain interim matter which, for the Children’s benefit, needed to be resolved as soon as possible to avoid further difficulties and possible acrimony between the parties, leading to distress on the part of the Children. In particular this arises from differing interpretations of the earlier orders made by the Court on 17th October 2008.
The parties have had some discussions, and whilst they have not agreed on everything, it is significant that a number of matters are the subject of agreement, particularly in respect of the specification of the days during the school term, and the times during school holidays, which the Children are to spend with the Father. By clarifying those issues, it is hoped that a significant cause of acrimony between the parties will be removed, or at least alleviated.
The Mother has agreed to certain orders being made by consent, although her solicitor very helpfully pointed out a need to amend an order relating to the Father’s time with the children, over what was to be the Queen’s Birthday public holiday weekend. It follows that on the orders set out on a minuted interim orders submitted by Mr Levy of counsel for the Father that orders 1, 2 and 5, albeit it with some slight amendments, can be made by consent. There are, however, difficulties on the Mother’s part with order 3 and order 4 that are proposed.
Order 3 proposes that the Mother deliver the children to the Father at the beginning of his time pursuant to Order 1(c)(iii) (at 3:00pm on 25th December 2010), immediately in front of [shop omitted]. The Mother submits that at 3 o’clock on the afternoon of Christmas Day the street in which [shop omitted] is situated would be deserted and submits that it would be more appropriate for the Father to collect the Children outside the Mother’s residence. The Father disagrees, saying that there have been incidents outside the Mother’s residence or at other places, which is why a neutral venue has been proposed.
Suffice it to say that each party attributes to the other blame for the unfortunate differences of opinion that have arisen. The other issue relates to the proposed Order 4, which says that:
The Mother be and hereby is restrained from being within 500 metres of the [E] School from one hour before until one hour after the beginning and end of school on any day on which the Father is collecting or delivering the Children to and from school pursuant to these orders.
The Mother is of the view that that is somewhat draconian, and significantly restricts her ability to attend the school, and involve herself in school activities, as she has played an active part in them. She refers to attending assembly for a start, and she also refers to the need to collect the Children at times for medical or other similar appointments, which may have to be at times in school times.
The purpose that the Father seeks, in coming up with this rather draconian period, is to remove the likelihood of the parties coming into contact with each other at all. There is also an issue of costs with which I will deal shortly.
I have before me the minute of orders sought, and I propose to make from it some orders until further order. By consent and until further order I make orders in accordance with paragraph 1a) through to c) inclusive, noting the amendment in order 1a)(iv) by deleting 14th June and inserting 15th June 2010, and in 1a)(xv) by deleting November 2010 and inserting December 2010. Also by consent until further order, I make orders in accordance with paragraphs 2 and 5 thereof.
I note the Mother’s concerns about the matters provided in Order 3 relating to contact changeover on the afternoon of Christmas Day. I have indicated that I would be in a position to hear this matter to finality either in the last week of October or the first week of November.
Whilst Mr Levy of counsel cautions that this is a matter where everything seems to be an issue, and it may well be a big ask to anticipate handing down judgment before 25th December 2010, I am of the view that I should work on the basis that, with a bit of luck, Order 3 in its present form may not be necessary. I don’t propose to make Order 3.
As to the restrictions contained in Order 4, I am of a view that the overwhelming consideration, as far as the best interests of the Children is concerned, is to remove any suggestion of confrontation between the parents, if there is to be any changeover at the beginning or end of school. But I am of a view that an hour before school and an hour after school is somewhat draconian, and I propose to order that the Mother be and hereby is restrained from being within 500 metres of the [E] School from 30 minutes before until 30 minutes after the beginning and end of school on any day on which the Father is collecting or delivering the Children to and from school pursuant to these orders.
A concern was also raised about school holiday contact, to use the old term, or the time that the Children spend with their father during the school holidays, commencing at the end of school on a Friday. Relating to the purely administrative task of dealing with school uniforms and school shoes, homework books and other items of school equipment, I propose to order each of the parties is to ensure that the Children’s school uniforms, shoes and other school equipment accompany the Children at changeover, and that the school uniforms, shoes and other school equipment be returned clean and in good repair at the conclusion of the Children’s time with the Father.
Then gets to the question of costs. The Mother submits that the question of costs should be reserved. The Father submits that there should be an order for costs payable out of the sum held in the Father’s solicitor’s trust account, and has calculated that amount at $9,955.00. I have an assessment of solicitor’s fees, $2,450.00, counsel’s fees for two days, $6,600.00, plus good and services tax amounting to $9,955.00.
My view is that I should make an order for costs, that if the Court is going to impose a costs order, it should do so firmly and clearly, because this is a matter where the Applicant Father has made arrangements to have his solicitor and counsel here, booked and ready to go for two days. There has been an interim hearing and I have made some orders. But the final hearing, which deals with the issue of where the Children are going to live, has not been embarked on.
My view is that there should be a costs order, although I am not prepared to go so far as $9,955.00. I accept the fact that the parties will not be here at Court tomorrow, and that the final hearing will not start, and that the Applicant’s solicitor and counsel will not be present at Court working on this case. They may have other work that they can do tomorrow, but I accept the fact that counsel are often unlikely to obtain another brief overnight.
I am certainly of the view that the Father’s legal advisers have, indeed, been put to good service on behalf of their client today, but he was paying for them to be here tomorrow as well, and that will not happen. I am of a view that the amount held in the trust account is the appropriate source for that reimbursement. The figure that I have selected is not the $9,955.00 that is sought, but $6,500.00.
I propose to order that the Respondent Mother is to pay the Applicant Father’s costs thrown away in the sum of $6,500.00, such sum to be paid out of the moneys held on behalf of the parties in the Applicant’s solicitor’s trust account within 14 days.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 21 May 2010
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