Dexter & Parkinson (No. 2)

[2007] FamCA 592

FAMILY COURT OF AUSTRALIA

DEXTER & PARKINSON (NO. 2) [2007] FamCA 592

FAMILY LAW - CHILDREN - With whom a child spends time and communicates - Interim orders - Multiple adjournments - Costs

Family Law Act 1975

APPLICANT: Mr Dexter

RESPONDENT: Ms Parkinson

INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates

FILE NUMBER: MLF 5300 of 2001

DATE DELIVERED: 17 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 17 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S.C. Dowler

SOLICITOR FOR THE APPLICANT: Forster & Associates

COUNSEL FOR THE RESPONDENT: Ms P.L. Shiff

SOLICITOR FOR THE RESPONDENT: Berry Family Law

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms M.L. Mandelert

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Bowlen Dunstan & Associates

Orders

1. That the independent children’s lawyer have leave to remove from the Court file the affidavit sworn by Ms B on 4 April 2007 and filed with the Court on 12 April 2007 and for that evidence to be resubmitted without reference to the deponent as a “single expert witness”.

2. That documents produced to the court this day in compliance with subpoenae be released to the parties and practitioners for inspection and photocopying.

3. That all extant applications be adjourned to the Interim Judicial Hearing List on 6 July 2007 at 10am, noting that the proceedings include the husband’s contravention application filed on 15 January 2007 and competing Form 2 applications in relation to parenting matters which have been adjourned on

   
   

   29 January 2007, 6 March 2007 and 2 May 2007 and I DIRECT that, subject to the discretion of the presiding Judge, this matter be listed as the only matter in the Interim Judicial Hearing List on 6 July 2007.

4. That the time for compliance by the mother with paragraph 7 of the Orders made by the Honourable Justice Brown on 9 January 2007, pursuant to which the mother was required to pay the father’s costs of that day fixed in the sum of $1100 by 29 April 2007, be extended until 17 June 2007.

5. That for the avoidance of doubt, the Orders of 2 December 2005 as amended by the Orders made on 6 March 2007, in relation to time to be spent and communication between the children C born … October 1994 and A born … February 1996 and the father remain in full force and effect and subject only to following:-

   (a)

   The father’s alternate weekend time recommence this weekend

   
   

   18 May 2007 and father collect the children from their schools at the conclusion of each child’s school day;

   (b)That paragraph 4(g) of the Orders made on 2 December 2005 (as subsequently varied) is further varied to provide that the children communicate with the father on Wednesday evenings at 8pm when the mother will place a telephone call for the children to the father and thereafter permit the children to speak privately with the father. AND IT IS NOTED that the reason for the variation is that the children currently have soccer activities on Wednesday afternoons.

   (c)The commencement time of the time to be spent with the father during the children’s forthcoming school term holiday be varied to commence from the children’s schools at the conclusion of school for each child on 29 June 2007, at whatever time of the day that may be;

   (d)For the purpose of school term holiday time to be spent by the children with the father in June/July, the mother ensure that the personal belongings which are to accompany the children to the father’s household, are packed and placed in the office of the principal of each school prior to the commencement of school day on 29 June 2007;

   (e)That the child A be collected for school term holiday time by the father from the office of the school principal at the conclusion of the school day on 29 June 2007.

6. That until further order the mother not be present or within 300 metres of either school attended by the children at the conclusion of any school day in respect of which these or any other Orders provide for the children to be collected by the father from school.

7. That the father be at liberty to file any amended contravention application by not later than 6 June 2007 and, if he does so, that amended application be set down for hearing on the adjourned date.

8. That the mother be at liberty to file any further affidavit material upon which she seeks to rely by not later than 20 June 2007.

9. That the mother make a contribution to the costs of the father of and incidental of this day fixed in the sum of $400 such costs to be paid by Friday 17 August 2007 directly to the solicitors for the father.

10. That the mother’s application that the father pay her costs of this day be dismissed.

11. That I reserve the question of costs of the independent children’s lawyer of this day.

12. That the independent children’s lawyer explain to the children the operation of these Orders and, in particular, that the regular times with the father are to recommence immediately.

13. That my reasons for judgment delivered this day be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the Court file.

14. That the independent children’s lawyer be at liberty to serve a sealed copy of this Order on the proper officer of any school at which C or A attend.

15. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Dexter & Parkinson (No 2).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5300 of 2001

Mr Dexter

Applicant

And

Ms Parkinson

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the judicial duty list.  It is the adjourned return date of various applications including the father's contravention application filed on 15 January 2007 which, in spite of having been listed in the court on three occasions, has not been heard or determined.  These reasons explain the circumstances in which the contravention and other applications are adjourned yet again, this time, to the Interim Judicial Hearing List on 6 July 2007 at 10am.

2. All the proceedings concern the children C born … October 1994 and A born … February 1996. 

3. The contravention application alleges that on three counts the mother has contravened orders of the court:-

   a)on 13 December 2006 there was no telephone contact;

   b)on 13 December 2006 there was no alternate weekend time between the father and the children; and

   c)on 20 December 2006 the children were not made available for time to be spent with the father for one half of the long summer school vacation.

4. Prior to the contravention application being filed but following the alleged breaches, the mother filed a Form 1 application and a Form 2 application seeking to vary parenting orders, and in particular to suspend time that the father would have with the children. 

5. All of the proceedings came before Brown J on 29 January 2007.  On that day the mother sought an adjournment of the contravention and other applications primarily so that she could put before the court evidence of the expert upon whom she relied; that is the psychologist, Ms B.  Reasons delivered by Brown J on that day make clear the circumstances in which the proceedings were adjourned.  Her Honour ordered that an independent children's lawyer be appointed - and that has now been done; that is Mr Wayne Dunstan - that the mother file any affidavit by any expert upon whom she relied by 20 February 2007 and that all other parties file any material by 27 February 2007.  The mother was ordered to pay the father's costs thrown away in the sum of $1100 and to do so within three months.  The time for payment has expired and I have made an order extending the time in which the mother can pay by a further month, which is, by the way, the length of the extension which was sought on her behalf. 

6. The matter was adjourned by Brown J to the long interim list of cases before a Judge on 6 March 2007. 

7. On 6 March 2007, the proceedings came before Young J.  By agreement they were adjourned to another day in this list, being 2 May 2007.  The mother had not filed any evidence from Ms B who was the expert she had previously sought to adduce evidence from.  Orders were also made by Young J, by consent, that the father and the children attend upon Ms B and orders were also made which appear to be directed at ongoing time between the father and the children. 

8. Both children spent time with the father pursuant to orders on 9 March 2007.  On the weekend of 23 March 2007 only A, the younger of the boys, spent time with the father. 

9. On 27 March 2007 the mother filed a further Form 2 application seeking to suspend orders for the children to spend time with the father.  That matter came before Registrar FitzGibbon on 17 April 2007 and on that day the Senior Registrar suspended the operation of the orders pursuant to which the children could spend time and communication with the father and adjourned those proceedings to 2 May 2007 also (that being a previously secured date by virtue of Young J’s order of 6 March 2007).  The orders made by Senior Registrar FitzGibbon in those circumstances were made by consent. 

10. The contravention and various interim parenting applications were to come before me on 2 May 2007.  Prior to that date, there was agreement reached between the parties for the matter to be further adjourned.  The basis of the adjournment was that the mother was medically unfit to attend court.  The adjourned date is today, 17 May 2007. 

11. Today the mother seeks a further adjournment of all applications on the basis of her ill health.  Whereas on 2 May 2007 she underwent surgery, it appears that she has suffered from some ill effects of that surgery.  There is a letter, which is annexed to correspondence from the mother's solicitors that I will refer to in a moment, from the mother's treating surgeon that says:

    I have been asked to notify you that [the mother] underwent emergency surgery on the 2nd of May 2007 for an acutely inflamed gall bladder.  She was discharged home on the 3rd of May but has had some ongoing problems with post operative chest pain since discharge from hospital.  She is requiring ongoing analgesia for this.

    Having reviewed her today in my rooms, I am organising some further investigations to try and elucidate the cause of these ongoing symptoms.  [The mother] and her husband have informed me today that they have a family court appointment on Thursday 17^th of May.  It is of my opinion that it would be unwise for [the mother] to attend court on this date.  I am confident that her medical condition will improve with time, however it is difficult to be sure how long this process may take at this point in time.

12. There was no agreement to the adjournment prior to this morning.  The mother attended court this morning in the company of her husband.  On two occasions the matter has been stood down because the mother had to leave the courtroom because she is ill.  Apart from the matters which are adverted by the mother’s surgeon in the letter of 15 May 2007, the mother has through her counsel, Ms Shiff, said that she has been consistently vomiting, in great pain and feeling very unwell today.  I am satisfied, and indeed it is not a matter of any contention, that the mother is not in a condition to be able to give evidence today as she could well be expected to do were the contravention proceedings to proceed today. 

13. It is because of the mother’s ill health and particularly her poor health at court today that I am prepared to adjourn the contravention application.  However, when the adjournment was sought by the mother, she had no proposal for the children to see their father so it fell to me to consider what date the matter should be adjourned to.  Were there to be no time between the father and the children between now and the adjourned date, I would be looking for a hearing which was sooner rather than later. 

14. The independent children's lawyer has filed an affidavit by Ms B, the psychologist.  That affidavit is the subject of an order, which I have made earlier, that after today it be uplifted and refiled without any reference to this witness as a single expert witness because there is no indication before me, and it is agreed by the parties, that she indeed is not a single expert witness.  She is a witness initially sought to be relied upon by the mother.  In any event, the report by Ms B is dated 31 March 2007.  It is of some significance that it is not filed by the mother who originally sought to file documents but filed by the independent children's lawyer. 

15. Ms B expresses opinions of her observations of the mother, the father and the children on dates between 27 February 2007 and 30 March 2007.  It is expressed to be written at the request of Mr Dunstan.  It is clear from the report that the mother has maintained to the psychologist that the children do not want to attend contact with the father.  That is not ultimately the opinion of the psychologist.  Relevantly, the report reads as follows:

    INTERVIEW WITH [THE FATHER], [C] AND [A] ON 12/3/2007:

    [The father] brought his sons, [C] and [A], in for a session in the afternoon of the 12/03/07 as arranged.  A half an hour was spent with [the boys] initially to see how they were, and gauge anything they would like to raise in front of their father.  [C] boldly stated that he doesn’t know if he can trust me because, in his mind, I had allegedly told him he would never have to see his father during their first session.  I clarified that I had stated that this would be the case if, in fact, his father had been abusive toward him or [A].  However, no evidence to suggest this had been gathered.  [C] seemed satisfied at the time with this response.

    They started the session together by relaying that [C], in particular, was very agitated and did not want to go with his father after school on Friday.  The Principal and his Co-ordinator eventually became involved and he went with [the father] for the weekend.  When they arrived, all were calm and [the father] openly stated that he had spoken with them about how much he’d like to develop his relationship with them; that it was unhealthy to let issues bottle up; and that if they should ever end up in court and he should get residency, he would always let them see their mother.

    The boys spoke about spending time with their father riding their bike, playing mini-golf and swimming.  They also celebrated [C’s] Grade 6 graduation at […] Restaurant, albeit a few months after the event.

    Of note was the fact that they had spoken with their mother on a daily basis, and yet this was one of [the mother’s] complaints against [the father]; that is, that he wont let the boys call her if they want to.  In addition, [the father] explained that he thought it was best to stop the boys from bringing some of their toys and game over to prevent arguments if items are left at his place, as they spend most of their time at their mother’s place.  [C] admitted that he can be “forgetful”.  And yet it had been suggested that [the father’s wife] randomly takes their games, if they bring any over, and outs them in the cupboard for no apparent reason.

    They spoke a little about the new baby, who was about to be born into [the father and his wife’s] household and left in a good mood.

    EVENTS AFTER THIS SESSION:

    It should be noted that I have not seen the […] boys since their father brought them in on 12/3/07.  It is believed that the most crucial event in the past few weeks occurred was when [the father] went to collect [the boys] for contact two weeks later on Friday 23^rd March.  [C] had run away from school and was allegedly missing.  I received a call from [Ms F] to inform me of these events.  Apparently, [A] went to grab his school-bag from the back of [the father’s] car but thought better of it when he was asked to stop and consider his actions.

    Though it was alleged that [the mother] had called the police and was told to call back after 4pm, it was later discovered that the police had never been informed.  This raises many concerns because, when at school, the school acts in locus parentis over its students, and if this is not respected by students and parents alike all sorts of chaos could occur.

    Another call was received around 5.30pm from [Ms F] to report that [C] was safe and back at home with his mother.  [A] spent the weekend with his father.  I called [C] around 6.30pm to check on him.  [The mother] answered the phone and in a calm tone told me that that’s what he had to do to show everyone that he doesn’t want to see his father.  She then passed the telephone to [C].

    [C] appeared quite chatty at first almost appearing confused when I asked him if he was alright.  [C] told me he had left school at the end of lunchtime and walk around […] Shopping Centre for a couple of hours.  He reported knowing his way around the shopping centre and, consequently, he wasn’t anxious or concerned.  I asked him how he’d managed to return to this mother’s place whereupon the tone of his voice changed and he said that he no longer trusted me and hung up.  I haven’t heard from [the mother] or [C] since.

    SUMMARY AND RECOMMENDATIONS:

    After much deliberation and discussion with solicitors, it is concluded that, at present, [the mother] does not appear able to share her sons with her ex-husband.  It is hypothesised that this is largely to do with her unresolved issues with him.  Though the influence of her current husband is believed to be prevalent, this is inconclusive.

    Her enmeshed relationship with her eldest son [C] means that it would not be unreasonable to suggest that they planned his running away from school together to avoid contact with [the father], especially given their demeanour on the phone that evening.

    As a result the following is being recommended.

    1/ For [the boys] to have ongoing counselling and support.

    2/ For [the father] and his sons, [C] and [a], to continue to have counselling to resolve any past and ongoing issues.

    3/ For [the father] and [mother] to attend either a parenting course or a family therapist to be clear about boundaries, what information to keep away from their sons, and how to speak about the other parent if plans go astray or conflict arises.

    4/ For [the father] to have contact with his sons.

    5/ For [the mother’s husband] to be psychologically or psychiatrically assessed as it remains unclear the extent to which he influences this situation, and yet it is the impression of many professionals involved in this case that he does have a negative on this family.

16. Obviously, the report is untested.  There has been no evidence from Ms B and, whereas she was originally envisaged to be the mother's witness, the mother has not had an opportunity to either adduce oral evidence from her or test

    
    

    Ms B’s opinions in cross-examination.  Of course, the report may ultimately not be put in evidence in relation to the alleged contraventions.  It seems to me that, at all material times, the report was envisaged as being evidence upon which the mother would rely to establish a reasonable excuse for non-compliance with orders.  However, today, the report does give me cause for concern about adjourning the matter yet again without there being any proposals for some time between the children and the father. 

17. The matter has been stood down on several occasions.  Happily, the parties managed to resolve the terms on which the time provided in the orders made in December 2005, as varied by the orders made in March 2007, will recommence.  

1. I gather that there has been some careful consideration of the dates of that recommencement and of the fact that the father's time during the forthcoming school holidays will be in the first week.  The date to which I adjourn this matter now is actually in the second week of the holidays.  It will, to that extent, unfortunately impede on the father's time with the children during the school holidays.  It will be open to the father, if he wants to do so, to seek some extra make-up time when the matter comes before a Judge on 6 July 2007. 

2. The orders that I make which vary or clarify the existing time and communication arrangements are all made by consent.  There are a few outstanding matters, one of which is that the father seeks an extension of weekend time to Monday morning.  I have not dealt with that application today.

3. The only remaining matter for me to decide is the issue of costs. 

4. The Act provides that as a general rule, each party to proceedings bear his or her own costs.  The object of the legislation is to ensure that spouses are not deterred from bringing or maintaining legitimate applications for fear of incurring an intolerable financial burden if they lose.  However, the court retains a discretion to order costs if it is of the opinion that there are circumstances that justify that course and it would be just to do so. 

5. The mother makes application that the father pay her costs of this day fixed in the sum of $1100.  She does so on the basis that she sought an adjournment of the proceedings that was not agreed to by the father or by the independent children's lawyer.  She has come to court today and she has in fact obtained an adjournment of the proceedings to 6 July 2007 and on precisely the basis on which she sought it, namely her ill health.  In that respect she says that the father and the independent children's lawyer have been unsuccessful in opposing her application for an adjournment. 

6. However, I have to consider today’s outcome as a whole.  The matter has been adjourned because of the mother’s ill health, however she has managed to remain in court for most of the duration of the proceedings and to give fairly extensive instructions to her counsel who has then made submissions.  Whilst the matter has been adjourned, it has been adjourned on a basis which I am satisfied was never contemplated by the mother when she sought the adjournment – that is that there is now going to be time spent between the father and the children.  In that respect it cannot be said that the father and the independent children's lawyer have been unsuccessful.  I decline the mother's application for costs. 

7. The independent children's lawyer made an application that his costs of today be reserved.  There was no opposition to that and I will reserve those costs. 

8. Finally, the father made application that the mother pay his costs of today fixed in the sum of $1100 and did so on the basis that whilst an adjournment was sought for ill health, when he first had notice of it on or about 14 May 2007, there were no appropriate conditions for the adjournment and, indeed, the basis upon which it was sought was not evident in enough detail.  In this respect counsel for the father referred to a letter which is the third page of exhibit A.  It is a letter from … Medical Centre dated 10 May 2007, which was last Thursday.  It was sent to the father's solicitors on Monday of this week.  It is signed by Dr B and it says:

   This is to certify that [the mother] had emergency cholecystectomy for acute polycystitis on 2 May 2007.  I would expect her to recover over a period of six weeks.  She is unfit for any work for that period, 2 May 2007 to 13 June 2007.

9. I am advised and accept that the solicitors for the father queried the certificate, it being the case that the mother does not work and it was not apparent that she was unable to attend court, give instructions or to give evidence.  By mid-morning yesterday, 15 May 2007, a further letter was provided by the mother to the father’s practitioners and I have extracted that above.  It was on that basis that the adjournment was not agreed to.  It was submitted, and I accept, that the father had also sought details or information about who would be caring for the children on an ongoing basis if the mother was too sick to attend court.  That was but one of the concerns which brought him to court today. 

10. In considering whether to make an order for costs, I have regard to the matters under s 117(2A).  In this application the father relies principally on sub-s (c) to that section; that is:

    (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to proceeding, particulars, discovery ...

    (g)  such other matters as the court considers relevant.

11. The weight to be attached to any of the considerations under sub-s (2A) is wholly discretionary.  In opposition to the father's application for costs, it is submitted by Ms Shiff, counsel for the mother, that indeed some productive and substantive orders have been achieved today, that her client has got the adjournment that she sought in the first place on the basis that she sought it and that inferentially there have not been costs thrown away by the father. 

12. I am satisfied that there is some force in that submission inasmuch there have been fairly extensive orders made today by agreement but the fact remains that I have adjourned, yet again, the same applications as should have been before me on 2 May 2007.  On each adjournment, the whole bundle of proceedings travel together but on the basis that such of the contravention applications which remain outstanding will have to be determined before the interim Form 2s and 2A’s.  My observation is that the proceedings are becoming unwieldy but this is not a relevant consideration in relation to costs, it is just an observation. 

13. I take into account the financial circumstances of the parties.  The mother is not employed outside the home.  On the other hand the father is employed.  He earns some $42,000 a year but he also has mother to support and two small children and he is paying child support to the mother in these proceedings.  Costs in these proceedings are always a burden on the parties.  In fact very few people come to this court being able to afford the costs that they incur to do so.  I am satisfied that the father’s burden for costs of today ought to be borne partially by the mother. 

14. I am satisfied that in the circumstances of this case the mother should make some contribution to the father’s costs of this day but not so as to pay all of them.  There will be an order that the mother pay a contribution to the father's costs of this day fixed in the sum of $400.  The mother seeks that the costs of $400 not be paid until three months hence on the basis of her financial situation.  I will permit her the three months in which to pay the $400. 

15. In discussions with counsel there were certain references made to correspondence which had been sent to the court.  It is that correspondence to which the medical evidence that I have earlier referred was annexed.  Exhibit A is a letter from Berry Family Law dated 16 May 2007.  It is addressed to the Registrar.  I have already discussed with Ms Shiff the inappropriateness of the letter.  She agreed.  I will not deal with the correspondence any more in these reasons, nor will I make an order about it, on the basis that I have the assurance of Ms Shiff that she will carefully discuss, if not counsel, the author of the letter about what is appropriate to write to the court by way of communications.  That is an appropriate means by which to impress on the author of the letter that it is not appropriate to argue one's case in the pre-emptive fashion such as appears to have been attempted in this case. 

16. As I said, the proceedings are adjourned to 6 July 2007 and there is provision for filing documentation in anticipation of that date.  I trust that the independent children’s lawyer will be notifying the parties, prior to the adjourned date, of the orders which in his preliminary view ought to be made on the adjourned date in relation to the variation applications.  

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  18 June 2007