CLYDE & ENGELS

[2011] FamCA 969

FAMILY COURT OF AUSTRALIA

CLYDE & ENGELS [2011] FamCA 969

FAMILY LAW – CHILDREN – Consent Orders – Order for shared parental responsibility save for the wife having sole parental responsibility in respect of the child’s education – Orders that child spend time with husband each alternate weekend during school term and during school holidays

FAMILY LAW – COSTS – Husband ordered to pay wife’s spouses costs on a party/party basis

Family Law Act 1975 (Cth)

APPLICANT: Ms Clyde

RESPONDENT: Mr Engels

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4022 of 2088

DATE DELIVERED: 14 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Benjamin J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Benjamin

SOLICITOR FOR THE APPLICANT: Gadens Lawyers

COUNSEL FOR THE RESPONDENT: Mr Cantwell

SOLICITOR FOR THE RESPONDENT: Noble Lawyers

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER

Mr Allen

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER

Legal Aid Commission Victoria

Orders

1.Orders be made in accordance with the minute of consent order signed by the parties and Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

2.That pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3.The husband pay Mr B’s legal costs and disbursements on arguing of the objection to the subpoena issue 17 October 2011 such costs to be determined under the Rules.

4.In respect of all of the other proceedings, these be removed from the list of cases requiring determination.

5.All outstanding applications be 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 Clyde & Engels has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Exhibit “1”

1.Discharge all previous parenting orders.

2.The Husband and Wife have equal shared parental responsibility for C born … 1994 and D born … 2000 save the Wife shall have sole parental responsibility for decisions relating to the education of D.

3.The Wife’s sole parental responsibility relating to the education of D is subject to:

a.The Wife notifying the Husband in writing of any decisions she makes within 7 days of making any such educational decision;

b.The Wife complying with paragraph 12 of these orders.

4.The child C shall live with the Husband.

5.The child D shall live with the Wife.

6.The child C shall spend time and communicate with the Wife as agreed between C and the Wife.

7.The child D shall spend time and communicate with the Husband as follows:

a.During school term on each alternate weekend from after school on Friday until 8pm Sunday commencing November 25 September 2011,  and after the conclusion of any school holiday interruption, shall recommence in same cycle as if not interrupted by the holidays AND IN THE event that the following Monday is a non-school day, then until 8pm on that day;

b.For the first half of each of the Term 1, 2, and 3 school holidays commencing from after school on the last day of each school term until 4pm on the second Saturday of the holiday period unless the holiday period is more than two weeks in duration, IN WHICH CASE changeover takes places at 4pm on the day mid-point of the holiday period.

c.From 4pm Christmas Eve to 4 pm Christmas Day in odd numbered years;

d.From 4pm Christmas Day until 4pm Boxing Day on even number years;

e.For one half of the long summer vacation at times to be agreed between the parties, and in default of agreement, from 9am on 10 January  until 4pm 27^th January in each year;

f.From 9am until 8pm on Father’s day  and in the event Father’s day falls on a non-time spent weekend;

g.By telephone on each Wednesday at 7.30pm for a period of up to 30 minutes with the Husband to telephone D on D's mobile telephone subject to 

i.It is the responsibility of the Husband to ensure D has sufficient credit in his mobile telephone from time to time to enable the call to occur;

ii.The Wife must make D available to receive the telephone call and to communicate with the Husband in private;

iii.The Wife must ensure that D’s telephone is turned on and fully charged.

h.If not otherwise falling during a time with period, the Husband is permitted to telephone on D’S birthday at 7pm.

i.As is otherwise agreed between the parties by text or otherwise in writing from time to time.

8.That the Husband’s time with D shall be suspended from 9am on Mother’s day if Mother’s day falls on a time spend with weekend.

9.That during D’s time with the Husband the Wife shall be at liberty to telephone D on D’s mobile telephone at 7.30pm for up to 30 minutes on a Saturday, subject to:

i.It is the responsibility of the Wife to ensure that D’s mobile telephone has sufficient credit from time to time to enable the call to occur;

ii.The Husband must ensure that D is able to communicate with the Wife in private;

iii.The Husband must ensure that D is available to receive the telephone call and that his mobile telephone is turned on and charged.

10.That D’s mobile telephone is to be exchanged at changeovers, in good working orders, and the parties shall ensure that all times it remains in D’s possession.

11.That all changes for D’s time with the Husband shall take place at D’s school AND if the school is closed, from the footpath immediately adjacent to the Suburb E Police Station.

12.That:

a.The Wife shall do all such things and sign all such documents as may be required to authorised any school which D may attend to provide information to the Husband  at  his expenses (if any) including school reports, notices, and other information usually provided to parents;

b.The Husband is permitted to

i.Attend parent/teacher interviews and any school functions which parent’s normally attend.

ii.Communicate with D’s  school on any matter affecting D’s schooling;

iii.Produce a copy of these orders to D’s school.

13.That Wife be and is hereby restrained from enrolling D in any school outside the Melbourne and Metropolitan area unless the Husband first consents in writing.

14.The Husband and the Wife shall keep the other informed of any significant medical illness and emergency involving D or C (Until he attains the age of 18) including the details of any treating medical practitioner, any diagnosis, the medication prescribed, and the treatment recommended.

15.Until C attains the age of 18 years, the Husband shall advise the Wife by text message of :

a.Any change in C living arrangements;

b.Any occasion on which C may be charged with a criminal offence and the outcome thereof;

16.That the Husband shall be in substantial attendance with D or the Husband is to ensure that his partner or an appropriate adult person is substantially present on all time spent occasions and the Husband shall ensure that D is not left in the sole care or supervision of either of his older brothers, F or C or both of them and ensure that neither brother be permitted to collect or return D.

17.That in the event the Husband or his partner are unable to deliver or collect D for any reason, then the Husband shall advise the Wife  by text message in advance at least 30 minutes prior to the scheduled changeover AND the identify of who will be substituting for the Husband or his partner.

18.That within 14 days the Husband shall sign all necessary documents to enable D to obtain an Australian Passport on condition that upon its issues by the Australian Government the Wife shall forthwith deliver the said passport to  her solicitors to be held by them subject to paragraph 19 hereof.

19.That not less than 60 days before any proposed departure by D for any overseas destination the Husband or the Wife shall provide the other a detailed itinerary concerning D including but not limited to, all flight details, accommodation arrangements, travel insurance and telephone contact details AND SUBJECT TO any order of the Court the said solicitors shall release the passport to the Husband or the Wife not less than 30 days prior to the said departure date .

20.That in respect of any alternate weekend or school holiday periods that are unavailable to the Husband or the Wife as a consequence of D being overseas, then there shall be make-up time spent to be exercised by the Husband  or the Wife as soon as practicable in respect of forthcoming weekends and school holidays.

21.That upon D’s return to Australian subsequent to any overseas trip the Husband or Wife shall forthwith return D’s passport to be held by the Wife’s solicitors on the same terms and conditions as referred to in this orders and Paragraph 19 hereof.

22.That until further order the Husband and the Wife, their servants and agents be and are hereby restrained from abusing insulting, belittling, rebuking or denigrating the other parties in the presence or hearing of D or permitting any other person to do so.

23.The paragraph 1 of Orders made on 8 June 2010 (INDEPENDENT CHILDREN’S LAWYER be discharged).

24.No order as to costs among the parties.

25.All Applications be and are hereby dismissed and removed from Active pending case.

26.Usual s 65DA(2) AND S 62B. ORDERS.

27.Minutes to be engrossed by solicitors for the Wife.

AND THE COURT NOTES:

A.COPY OF THE CHILD SUPPORT AGREEMENT EXECUTED BY THE HUSBAND AND THE WIFE DATED 14/11/2011 REMAIN ON THE COURT FILE.

B.COPY OF THE LETTER FROM CHILD SUPPORT AGENCY DATED 10/9/11 REGARDING ADDITIONAL PAYMENTS REMAIN ON COURT FILE.

C.PARTIES AGREE THIS CHILD SUPPORT AGREEMENT SHALL TAKE EFFECT FROM 1/12/11 AND SHALL CEASE ALL INVOLVEMENT OF THE CHILD SUPPORT AGENCY IN THE COLLECTION AND ASSESSMENT OF CHILD MAINTENCE FOR D AND C.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4022 of 2008

MS CLYDE

Applicant

And

MR ENGELS

Respondent

REASONS FOR JUDGMENT

1.This is an oral application for a costs order made by Mr B in relation to his objection to a subpoena.  A subpoena was issued on 17 October 2011, requiring Mr Clyde to give evidence and produce documents.  The documents he was required to produce were set out in a schedule to this subpoena.  On 8 November, Mr Clyde filed a notice of objection to the subpoena, essentially raising three grounds; firstly, that the subpoena was wide and oppressive; secondly, that it was an abuse of process and may constitute a fishing exercise; and thirdly, that the documents sought in the subpoena do not relate to the matters that are directly relevant in the dispute between the parties.

2.Mr Clyde seeks an order that Mr Engels, on whose behalf the subpoena was issued, pay the costs of his solicitor and barrister in arguing the objection, and presumably filing those objections, on a solicitor/client basis.  It is of value to reflect on the background of this matter.  Mr Clyde is the husband of Ms Clyde, who was a party to parenting and child support proceedings in this Court; the other party being Mr Engels, who instructed the issue of the subpoena.  Those proceedings were settled before me a little earlier today, by way of consent parenting orders and by way of a child support agreement.

3.I was not asked, nor I should I have, commented on the binding child support agreement; that was a matter between the parties, although a copy of that agreement will be left on the Court file.  The financial issues between the parties related to an application by the wife for a change to an administrative assessment.  In terms of the third basis of the objection to the subpoena, that is, it does not relate to matters that are directly relevant to the dispute between the parties, there is no doubt, on a child support application, the income, outgoings, assets and liabilities of both parents are factors which the Court generally has regard to.

4.The income, outgoings, assets and liabilities of a person who is the spouse of a party to a child support application, has been the subject, a vexed subject, since the legislation came into effect over 20 years ago.  It is at least arguable that some aspects of such a persons financial circumstances must, or could, be taken into account, such as the question of mortgage repayments, the question of provision of motor vehicles or other services, so it is not unusual, and not unreasonable, for a focused and well-defined subpoena to be issued to a spouse of a party, or a partner of a party, for that matter.

5.The first objection to the subpoena was that it was wide and oppressive.  The schedule to the subpoena has the look of a document that may have come from a word processing machine, and does not have an indication of significant effort put into the definition of the material required.  Counsel for Mr Clyde took me through the financial statements and other materials.  He said there was concern.  That material, if considered by those who issued the subpoena, may well have provided a subpoena which was much narrower in its definition.  The subpoena is drafted extraordinarily widely, with no time limits except in limited areas.  It is the very broad brush approach which this Court has, from time to time, been critical.  I am satisfied, having regard to the submissions and adopting those submissions on behalf of Mr Clyde, that it is too wide, and would, in the normal circumstances, have been set aside; of course, that point is not moot, as the proceedings are settled.

6.There may be some argument that it amounted to an abuse of process, and it could be characterised as a fishing exercise, but I don’t think that was in any way argued by Mr Clyde in court today.  Accordingly, I intend to make an order that the husband pay Mr Clyde’s costs on the subpoena.  I do not, however, intend to make an order for solicitor/client costs.  I have a broad discretion in relation to such matters, and I am conscious that in contested child support proceedings, that it is sometimes necessary for some level of subpoena to issue, albeit in a narrower context than was contained in that subpoena; accordingly I intend to order that the costs be paid on a party/party basis.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 November 2011.

Associate:     

Date:              14 November 2011