Harry & Harry (No 3)
[2023] FedCFamC2F 553
•11 April 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harry & Harry (No 3) [2023] FedCFamC2F 553
File number(s): MLC 12354 of 2021 Judgment of: JUDGE GLASS Date of judgment: 11 April 2023 Catchwords: FAMILY LAW – PARENTING – ENFORCEMENT - whether the mother made the child available to spend time with the father– whether a self-executing order has been triggered– enforcement application dismissed.
FAMILY LAW – COSTS – where the mother has been wholly unsuccessful – where an order for costs has been made pursuant to Court’s scale of costs.Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 Sch 1
Cases cited: Bant & Clayton (Costs) (2016) 56 Fam LR 31
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
D & D (Costs) No 2 (2010) FLC 93-435
Davis & Peterson (2023) FLC 94-130
Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341
Goldsmith & Stinson (No 2) [2023] FedCFamC1A 25
Stavros & Stavros (1984) FLC 91-562
Stevenson v Hughes (1993) FLC 92-363
Division: Division 2 Family Law Number of paragraphs: 28 Date of last submission/s: 11 April 2023 Date of hearing: 11 April 2023 Place: Melbourne Counsel for the Applicant: Ms Smallwood SC Solicitor for the Applicant: Pearsons Lawyers Pty Ltd Counsel for the Respondent: Ms Mallet SC Solicitor for the Respondent: Broun Abrahams Burreket ORDERS
MLC 12354 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HARRY
Applicant
AND: MS HARRY
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
11 APRIL 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Respondent on 29 March 2023 is dismissed.
2.The Respondent pay the Applicant’s costs fixed in the sum of $2,946 upon execution of final property settlement Orders of this Court.
THE COURT NOTES THAT:
A.s102NA of the Family Law Act 1975 (Cth) applies to this matter pursuant to Orders dated 4 November 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Harry & Harry (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
These are the settled reasons for a judgment delivered ex tempore on 11 April 2022. Infelicities of expression have been corrected and citations have been inserted.
On 21 December 2022, I made final parenting Orders relating to X, born in 2019. X is now three and half years old.
Relevantly for present purposes, the Orders provided for X to live with her mother, Ms Harry, subject to the following Order which I quote:
In the event the Mother does not make [X] available to spend time with the Father in accordance with these Orders on two occasions in any twelve month period, save unless otherwise agreed between the parties in writing or further Court Order, [X] forthwith live in the primary care of the Father.[1]
[1] Orders of 21 December 2022, paragraph 8.
Arising for determination is an application by Ms Harry to enforce the Order for X to live with her. She contends that the quoted self-executing Order has not been triggered. Mr Harry contends that the self-executing Order has been triggered and has retained X in his care since 17 March 2023.
The issue to be resolved is whether Ms Harry has failed to make X available to spend time with Mr Harry on two occasions, namely on 8 and 15 March 2023. It is common ground that X did not spend time with her father on those occasions as ordered.
The phrase “make X available to spend time with the Father” admits several constructions. On one construction, X being present at the relevant changeover location may suffice. On another construction, X efficaciously spending time with her father is required. On another, all practicable efforts must be made for X to spend time with her father.
As a majority of the Full Court held in its 2023 decision Goldsmith & Stinson (No 2) by reference to several State Supreme and Federal Court decisions, in construing an order, extrinsic materials may inform the proper construction of ambiguous orders. Those materials may include reasons for judgments and the submissions of the parties prior to the making of the orders. [2]
[2] Goldsmith & Stinson (No 2) (2023) FLC 94-134 per McClelland DCJ and Strum J at [64]–[70] and the cases there cited.
Limited submissions were directed at the meaning of the phrase now in issue in this application. The phrase was proposed by Ms Harry after the conclusion of the evidence at trial.
The phrase arises for consideration in the context of other Orders prescribing that X is to spend time with her father at set times. The 1984 Full Court in Stavros held that such Orders oblige Ms Harry to take reasonable steps to deliver X to Mr Harry at the commencement of their time together.[3] The proposition has been approved of despite changes in legislative language since that time, for example in Elspeth & Peter; Mark & Peter and John & Peter in 2007.[4] In that case, the Full Court also held that the obligation to ensure compliance with ‘spend time with’ orders carries with it more than merely an obligation to remain passive, it requires a positive application of parental authority. Parents have an obligation to ensure, as far as possible, compliance with orders. I consider that jurisprudence to provide relevant context to the construction of the phrase in issue in these proceedings, tending against the first construction I have postulated.
[3] Stavros & Stavros (1984) FLC 91-562 at [79,536].
[4] Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341 at [81,839]; Stevenson v Hughes (1993) FLC 92-363 at [79,813]–[79,814].
In my reasons for judgment for the final Orders, at paragraph 6, I stated the issue then arising for determination to be:
…whether [X’s] best interests are met by continuing to live with [Ms Harry] in order to ascertain whether she is capable of prospectively facilitating [X’s] time with her father, or whether [X] should immediately be moved to live with her father.
That arose against a background of Ms Harry’s non-compliance with a multitude of interim Orders providing for X to spend time with her father. I noted that of central importance in the proceedings had been Ms Harry’s past failure to comply with such orders.
I recorded that Consultant Ms B opined that she did not think the prospect of X living with her mother and spending time with her father, with the prospect of the self-executing order now made, would be sustained or last. She did not think it would be a viable option. I reached the conclusion that in the event Ms Harry was unable to sustain the changes she then proposed, X would live with her father. I also concluded that in the event Ms Harry was unable to facilitate [X’s] relationship with her father, she herself proposed that X live with her father.
Those reasons also support a construction of the relevant phrase that required Ms Harry to do more than stand by when Mr Harry attends to collect X. Central to my earlier reasoning was the necessity for X to actually spend ordered time with her father.
Consistent with the authorities to which I have referred, I construct the relevant phrase to require Ms Harry to take reasonable steps to deliver X to Mr Harry, to positively apply parental authority to do so and to ensure, as far as possible, compliance with the Orders.
X did not spend time with Mr Harry on 8 and 15 March 2023 despite Mr Harry attending Ms Harry’s residence to collect X. Pursuant to paragraph 4 of the final Orders, changeover at the commencement of [X’s] time with her father is to occur at that location.
Ms Harry deposes to what she describes as the ‘typical changeover’ at the commencement of [X’s] time with her father. She deposes that Mr Harry would come into the front yard to see X. She deposes that “we would go out to Mr Harry’s car, parked on the street”.[5] Crucially, Ms Harry includes herself in that activity. That evidence is consistent with Mr Harry’s evidence wherein he deposes to Ms Harry facilitating changeover by carrying X to his car and putting her in the car seat of his car.
[5] Ms Harry’s Affidavit filed 29 March 2023, paragraph 11(d).
On 8 March 2023, Ms Harry deposes to X refusing to go with her father despite encouragement do so. She deposes to X being in a state of some distress, crying, pulling away from her, and hiding behind her legs. She deposes to inviting Mr Harry to come and get X and him not doing so. She quotes Mr Harry describing the attempts at changeover as taking more than an hour. Mr Harry deposes to not feeling comfortable going into Ms Harry’s front yard because she had not said he could and such conduct was the subject of Ms Harry’s recent application for an intervention Order. An interim intervention Order was made 6 February 2023 restraining Mr Harry from committing family violence against X, which is defined in the Order to include behaviour that is coercive and causes fear for safety or wellbeing. I accept Mr Harry’s submission that by physically removing X in her state of distress he would have put himself at risk of breaching that Order. That he subsequently did so on 17 March does not satisfy me that his failure to enter Ms Harry’s property to pick X up on 8 March leads to a conclusion that Ms Harry, on that day, made X available to spend time with her father. Further, to focus on Mr Harry’s conduct, as Ms Harry’s submissions do, is to distract from focusing on Ms Harry’s conduct and whether she had complied with paragraph 8 of the Orders.
Contrary to what she describes as the ‘typical changeover’, Ms Harry did not take X out to her father’s car. After Mr Harry left, she made no further efforts to facilitate X’s time with her father. Her current submission that alternative changeover arrangements may have been more desirable was not supported by her making any proposal at the time to successfully comply with her obligations under the Order.
By those failures, I am satisfied that Ms Harry did not make X available to spend time with her father on 8 March 2023. Making X available to spend time with her father required her to at least attempt to pick X up and put her in her father’s care as she had done on previous occasions.
I reach the same conclusion with respect to the failed changeover on 15 March 2023. Ms Harry then refers to her failed attempts to take X to the front gate of her property. Mr Harry’s evidence is that he clearly explained to Ms Harry the reason he would not come into her property, in circumstances of the intervention order. Again, Ms Harry failed to take X out to her father’s car in accordance with the typical changeover arrangement, or pick her up to put her in his car, as she had done previously. She thereby again failed to make X available to spend time with her father.
Both parties made submissions that extended beyond the question here arising for determination, namely whether paragraph 8 of the Orders had been triggered. Those submissions included what Ms Harry submits are the inherent difficulties that attended the Orders, the need for her to obtain professional support to comply with them and Mr Harry’s submissions in relation to an earlier affidavit filed by Ms Harry’s on 14 March 2023. None of those matters assist in the resolution of the issue now arising. The dispute in relation to X’s best interests is resolved by the making of the final Orders.
I conclude that paragraph 8 of the final Orders has been triggered, with the result that X is to live with Mr Harry pursuant to those Orders. Ms Harry can accordingly no longer enforce the Order providing for X to live with her.
For those reasons, I dismiss the Application in a Proceeding filed on 29 March 2023.
Arising from my earlier ruling, there is an application made by Mr Harry for Ms Harry to pay his costs in relation to the application before the Court this day. That application is opposed by Ms Harry. Pursuant to section 117 of the Family Law Act (Cth) (“the Act”), each party is to bear their own costs of proceedings under the Act. Nevertheless, the Court retains a discretion, if there are circumstances that justify doing so, to make such order as to costs as it considers just. In reaching that determination, I am required to have regard to the matters prescribed by subsection 117(2A) of the Act.
In relation to the financial circumstances of the parties, it is common ground that Mr Harry is in a more advantageous financial position than Ms Harry at the moment, at least insofar as income is concerned. He is employed full time as a professional and I am told earned last year approximately $200,000. Ms Harry deposes to being in receipt of income in the order of $1,000 per week, or $50,000 per annum, and having expenditure that exceeds that quantum. Nevertheless, it is well established in the authorities that impecuniosity is not a bar to the making of an order for costs where the circumstances otherwise warrant such an order being made.[6] Indeed, Mr Harry does not seek that any payment for an order for costs be made now, rather that it be adjusted, so to speak, upon the making of final property orders, those applications still being pending before this Court.
[6] Davis & Peterson (2023) FLC 94-130 at [75]; D & D (Costs) No 2 (2010) FLC 93-435 at [21].
Another matter to which I am to have regard is whether the proceedings are necessitated by the failure of a party to comply with previous orders of the Court. Somewhat curiously, in this circumstance, it is Ms Harry’s application that brings the matter before the Court and I have ultimately determined that she has failed to comply with the Court’s orders. Mr Harry has been wholly successful in resisting Ms Harry’s application before the Court this day. He otherwise refers to costs that he will be required to incur is resisting an application made on behalf of Ms Harry for an intervention Order in the State Courts, submitting that such matters are relevant pursuant to paragraph 117(2A)(g).
Ms Harry submits that a real issue arose for determination, namely, the meaning of paragraph 8 of the Orders made by the Court in December, and refers to my previous conclusion that there was some ambiguity in those Orders. It is her submission that the question of whether the Order had been triggered or not, would always have required determination, whether on Mr Harry or Ms Harry’s application in the event of a dispute, which dispute arose for determination in this case.
On balance, in circumstances where I have found Ms Harry to have failed to comply with Orders of the Court, and the fact that she has been wholly unsuccessful, I am satisfied that the circumstances justify an order for costs in favour of Mr Harry.
Mr Harry seeks those costs be assessed on an indemnity basis. It is well established by authorities, including Colgate-Palmolive Co v Cussons Pty Ltd[7] that indemnity costs ought only be ordered in exceptional circumstances. I am not satisfied that the circumstances here are exceptional in the relevant sense and accordingly I decline to order costs be assessed on an indemnity basis. Pursuant to the Court’s scale of costs contained in schedule 1 of the Division 2 Rules of this Court, I consider that item 11 is the applicable application, being an application for a recovery order, rather than item 1, as was submitted on behalf of Mr Harry, which relates to a more substantive application, in my determination. [8] I am satisfied that a half-day hearing fee with advocacy loading is appropriate, and accordingly, the sums specified are $1062.80 plus $1255.75, with an advocacy loading of 50 per cent, which figures amount to the sum of $2946; I will round it to that figure.
[7] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Bant & Clayton (Costs) (2016) 56 Fam LR 31 at [30]-[31] and the cases there cited.
[8] Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, Schedule 1, Item 11.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 16 May 2023
0
1
2