HILLMAN & CARSON

[2017] FamCA 978

FAMILY COURT OF AUSTRALIA

HILLMAN & CARSON [2017] FamCA 978

FAMILY LAW – CHILDREN – Interim – Where it is ordered that the parties attend upon a psychiatrist for the purposes of obtaining a psychiatric report – Where it is ordered that upon commencement of the new academic year, the subject children may attend upon a different primary school – Where it is ordered that the mother have sole use and occupancy of a property at Suburb A.

FAMILY LAW – COSTS – Interim –Where it is ordered that the father pay the mother’s costs of and incidental to his Application in a Case on a party and party basis.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Hillman

RESPONDENT: Ms Carson

INDEPENDENT CHILDREN’S LAWYER: Tracy-Lynne Geysen

FILE NUMBER: BRC 7935 of 2017

DATE DELIVERED: 1 December 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 27 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Evans, Evans & Company

COUNSEL FOR THE RESPONDENT: Mr Page QC

SOLICITOR FOR THE RESPONDENT: Michael Dwyer Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Geysen, CNG Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the applicant father and the respondent mother each attend upon Dr B, psychiatrist, as arranged and directed by the Independent Children’s Lawyer including, more particularly, as follows:

   (i)The applicant father at 9.30 am on 14 March 2018; and

   (ii)The respondent mother at 9.30 am on 15 March 2018.

2. That the applicant father and the respondent mother attend upon Ms C of D Consulting for the purpose of joint counselling with a view to improving their communication and co-parenting relationship at such times as are arranged by Ms C with the parents and the parents are to pay the costs of such counselling in equal shares with the ICL to provide each of the parents with Ms C’s contact details and the ICL also to provide a copy of the family report of Ms E of 16 November 2017 to Ms C. 

3. That from the commencement of term 1 in 2018, the children, F born … 2008 and G, born … 2012, (“the children”) shall attend H School, Suburb A, should they be offered positions there by the administration of the school.

4. That each parent has the right to obtain from the school all such information (pertaining to the children’s education) usually made available by the school to the parents of children who attend that school, at his or her own expense.

5. The children shall live with the respondent mother.

6. That the applicant father join with the respondent mother, forthwith as requested by her, to give the sixty (60) days of written notice required by law to the tenants of their jointly owned property situate at J Street, Suburb A, to vacate their tenancy of that property.

7. That pursuant to s 106A of the Family Law Act 1975, should the applicant father refuse or neglect to comply with the obligation imposed upon him by paragraph 6 hereof, the Senior Registrar, Brisbane Registry of this Court is appointed to sign the said written notice in the name of the applicant father and to do all acts and things necessary to give validity and operation to the said written notice.

8. That an Application in a Case supported by affidavit evidence of the mother and the mother’s solicitor that the applicant father has refused or neglected to comply with the respondent mother’s request for him to sign the said written notice shall be sufficient to bring the matter to the attention of the Senior Registrar for him to act pursuant to paragraph 7 hereof.

9. That the respondent mother shall have, on the vacation of the property situate at J Street, Suburb A by the current tenants, sole use and exclusive occupation of that property and she shall from the commencement of her sole use and exclusive occupation of that property be responsible for meeting the repayments of the loan secured by registered mortgage over the said property as and when they fall due.

10. That the applicant father shall pay the respondent mother’s costs of and incidental to the Application in a Case filed by him on 10 November 2017, and the mother’s costs application in respect thereof, as agreed or as assessed by a Registrar pursuant to the Family Law Rules 2004, on a party and party basis, such sum to be paid by the applicant father from his entitlement on property settlement within twenty-eight (28) days of final orders being made in respect of property settlement between the applicant father and the respondent mother.

11. It is certified that it was appropriate to brief counsel for the hearing of the applicant father’s Application in a Case that was listed for Tuesday, 14 November 2017.

12. That all other interim applications contained in the respondent mother’s Application in a Case filed on 3 November 2017, are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hillman & Carson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7935 of 2017

Mr Hillman

Applicant

And

Ms Carson

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. In this matter, the Court is required to determine competing interim applications made by both the mother and the father in respect of the parenting of their children, the school the children are to attend in 2018, the psychiatrist they are to attend upon for assessment and the preparation of a report for the Court, the counsellor they are to attend upon for some post-separation counselling, the mother’s application for exclusive use and occupation of a former family home and the mother’s application for costs of and incidental to an application that was before the Court on Tuesday, 14 November 2017.

2. These competing applications were all heard by me in the judicial duty list on Monday, 27 November 2017.

3. The mother was represented before me by Queen’s Counsel. The father was represented by his solicitor and the Independent Children’s Lawyer (“the ICL”) also appeared and made submissions.

Some Background

1. These two parents formed their relationship in 2004. They never married but lived together as a de facto married couple until earlier this year (around April/May). Their two children, both boys now nine and almost seven years of age, and the mother moved out of the home they shared with the father in early June, this year. They have been in substantial conflict ever since.

2. There is no dispute that they used to live in a home situated in Suburb A on the northern end of K Town that they still own. In 2013, they moved to what was described as their “weekender”, a home situated on rural land just outside Suburb L in K Town hinterland. They retained the Suburb A property as an investment property and have rented that property out with the rent being used to meet the repayments on a loan secured by mortgage over that property.

3. For several years now, the mother who used to be employed, has not worked in paid employment and has principally been responsible for the care of the boys whilst the father continued to work.

4. There is dispute between them as to the exact circumstances surrounding the departure of the mother and children from the Suburb L home, but the mother moved to a rental home at M Town where the children have been attending school, and she applied to the Magistrates Court for family violence protection orders and what is described as an “ouster” order, seeking to have the father excluded from the family home in Suburb L so that she and the boys could move back in there. That was not obtained from the Magistrates Court, with this Court understanding that the presiding Magistrate preferred to leave the determination of the disputed issue of who should reside in the Suburb L property to this Court.

5. Though the emotional impact of the circumstances of their separation was quite significant for both parents, they had, to their credit, by agreement, been facilitating the boys spending time with the father every second weekend after the mother and the boys had moved out. The boys would go back to the Suburb L home to spend those weekends with their father.

6. The father commenced proceedings in this Court in early August 2017. He sought parenting orders giving him more time with the children and urgent injunctive relief about another issue. The mother responded seeking different parenting orders and property division orders.

7. On an interim basis, the mother sought an order for sole use and occupation of the Suburb L home and also for orders that the former family home at Suburb A actually be sold.

8. The father’s application was heard by Senior Registrar Spink on 14 August. On that day, Senior Registrar Spink made numerous directions to progress the property dispute and also ordered the appointment of an ICL, the preparation of a family report and listed the matter for further directions on 3 October.

9. On 24 August, the Senior Registrar made further orders and gave reasons for them. An injunction was issued and some orders setting the time the boys were to spend with the father were also made. Those orders provided for the boys to spend each alternate weekend with the father from after school on Friday until before school on Monday or until 3 pm if the Monday was not a day on which the boys attended school. The orders also specified the place at which the parents were to hand over the children to each other if it was not at the commencement or conclusion of school. That place was in M Town, where the mother and the boys were living in rental accommodation at that time and where the boys were going to school.

10. The matter was heard again before Senior Registrar Spink on 5 October (not 3 October) and many directions and orders were made. Interim parenting issues, the mother’s application for sole occupation of the Suburb L property, the mother’s interim spousal maintenance application and application for the sale of the Suburb A property were adjourned to be heard by a Judge. The father applied for costs thrown away by the adjournment.

11. On 11 October, Senior Registrar Spink made orders for all of the matters that had been adjourned to be listed before a Judge of the Court on 20 February, 2018. He also ordered the mother pay the father’s costs thrown away by the adjournment fixed in the sum of $966 to be paid out of the mother’s entitlement to property settlement when final orders were made in the matter. The father had sought an order for indemnity costs but that the costs not have to be paid by the mother until after final orders for property settlement had been made. He was not successful in getting indemnity costs and the Senior Registrar fixed the amount, referenced to four hours of solicitor’s time.

12. On 3 November, the mother filed another Application in a Case. In that, she sought orders for an urgent hearing of the application, for sole parental responsibility, that she be able to have the boys attend a Primary School in Suburb A at the commencement of the 2018 school year, that she have sole occupation of the investment property in Suburb A, that to give effect to the sole use order the father be ordered to join her in giving the current tenants 60 days’ notice to quit, that all the other matters listed for hearing before a Judge on 20 February 2018, be brought forward and heard with this Application in a Case, and that the Orders of 5 and 11 October of the Senior Registrar be reviewed.

13. In her affidavit filed in support of that Application in a Case, the mother deposed to having asked the father (through their respective solicitors), effectively, to let her and the boys return to the Suburb L home on 12 October as she was required to move out of her M Town rental accommodation by that date.

14. In fact, her solicitor’s letter to the father’s solicitor, quite provocatively, simply informed that she and the boys intended moving back in to the Suburb L property on 12 October (with an implicit message that she expected the father to be out of that property by then). The father’s response (through his solicitor) was, unsurprisingly, equally as forthright, though in a much longer way. It included the assertion that if the mother attempted to regain entry to the home at Suburb L the police would be called to escort her away.

15. The next day, the mother’s solicitor wrote a less confronting letter requesting that the father let the mother and the boys move back into the former family home at Suburb L, asserting that the father had resiled from an agreement to let the mother and the boys move back into the Suburb A investment property once the fixed term lease for that property had expired on 9 September and that he, therefore, should be more accommodating in his approach to the housing needs of the mother and the boys.

16. The father, through his solicitors, responded to that in the following absolute, uncompromising manner:

    My client has had me write to you to refuse the request made that your client re-enter occupation of the [Suburb L] property.

    He is more entrenched in that position today than he was yesterday.

    The answer from him is “no” and your client should look elsewhere to accommodate herself and the children.

17. I note that whilst the father lives at the Suburb L property, his work is in Suburb N in the south-west of Brisbane, some distance away.

18. The mother sensibly chose not to attempt to move back into the Suburb L property and was able to arrange to stay in the M Town property until the end of October. In the meantime, her solicitor wrote again, on 24 October, to the father’s solicitors. It was foreshadowed that she might move back to Suburb A because of a lack of affordable, short-term rental properties at M Town. She asked the father to agree to give the tenants at the Suburb A investment property the required notice to quit the premises so that she and the boys could move into that property and she asked him to agree to send the boys to the School at Suburb A from the start of the 2018 school year. The eldest boy had previously attended at that school when they lived in Suburb A up to 2013.

19. The father replied, through his solicitors, and expressed his resolute disagreement with the mother’s proposal to move back to Suburb A and to take the boys from their M Town school. He reminded her that she was seeking interim orders for the sale of the investment property and told her that he agreed to that proposal. He told her that he did not think they could afford for her to occupy the property and that it would be cheaper for her to rent elsewhere. He also asked for an immediate increase in the amount of time the boys were spending with him, so that they would be with him for five nights every two weeks and for half of the school holidays. He confidently said that appeared to be “an inevitable outcome” of the parenting dispute. He effectively warned the mother not to act unilaterally to relocate the children. 

20. Thereafter, on or around 1 November, notwithstanding the father’s position and without his approval, the mother moved back to Suburb A, just before filing her Application in a Case currently being determined. That Application in a Case was listed for hearing in the judicial duty list on Monday 27 November. In her affidavit filed in support, the mother deposed to continuing to drive the children from Suburb A to M Town to attend their school and back to the Suburb A home each day.  

21. The mother said in her evidence that the school in M Town does not have a ‘before and after school care’ facility whilst the Suburb A school does. She said that sending the boys to the Suburb A school would, with the use of the out of school hours care facility, enable her to find employment so that she can better deal with her pressing financial issues. She said that she would pay the mortgage payments on the Suburb A property they own, but would want the father to share half of the rates and repairs.

22. On Monday 6 November, the mother and the father and the boys attended at this Registry to be interviewed by Family Consultant, Ms E, for the preparation of a family report as ordered by the Senior Registrar. On Friday 10 November, before the family report issued, the father filed an Application in a Case and his solicitors requested it be heard urgently. The father was seeking an order that the children live with him and that the mother not have the children in her care at all without a further order of this Court. The father’s solicitors made representations in the letter about matters that could only have been conveyed to them by their client that conveyed the implication that Ms E had been concerned about the mother’s presentation and mental health at the interviews on the previous Monday. Significantly though, although in his supporting affidavit the father referred to Ms E and things she had said to him at the interviews, the father did not depose to that particular matter that his solicitors had referred to.

23. In his affidavit, he said that he had been contacted on Wednesday 8 November by a friend of his who told him “that she had heard something about [the mother], but was uncertain whether to tell [him]”. He said that he then considered it was “female friends ... speaking amongst themselves about things [the mother] had said”. Nevertheless, he said it concerned him.

24. He said that on Thursday, 9 November 2017 he was forwarded a text message that had been sent between two women who he named and said were known to the mother. That text message was dated Wednesday 1 November and mentioned that the sender had received information that the mother was at home threatening to kill herself. It is to be noted that the mother had attended at the Family Court with the children and been interviewed for some time by Ms E, five days after this text message had apparently been sent between these two women that merely referenced hearsay information about the mother.

25. The father said the information concerned him and he contacted his solicitor and resolved to bring the application. Critically though, he said that he intended “to act protectively and retain the children pending the mother explaining the situation and the Court considering and determining this Application and this information which has been forthcoming.”  Significantly, he said that he was due to have the children in his care for his scheduled weekend from that very afternoon, Friday 10 November.

26. He also said that he believed that a person, named Ms O lives near the mother and that it was this person to whom he believed the mother had made statements that she “intended to harm herself”. He said his solicitor had sent a message to Ms O that day and exhibited a copy of that. It was a copy of a message purportedly sent by the solicitor on an internet social networking message application to an application based address in the name of this person. Whilst the content of that message to her concluded with the words “I would like to take a statement from you concerning the matter and for this purpose I invite you to be in touch with me on [the solicitor’s telephone number],” there was no evidence verifying that she ever received this message or explaining why it was thought that this was the best or only way of contacting this person in such circumstances. In addition, the message did make pointed reference to a nurse’s mandatory obligation to report matters “such as this” pursuant to child safety legislation. It was, with respect, hardly conducive of receiving a favourable or co-operative reply in a timely fashion.

1. The Application in a Case was brought to my attention for consideration for urgent listing at around 4:30 pm that same afternoon. I considered the children were probably already in the father’s care at that time and had no reason to doubt his stated intention to hold onto the children at the end of the weekend. The father said he was also seeking orders that the mother provide information about the current status of her mental health.

2. Importantly, in my judgment, there was no evidence that the father had made, or attempted to make contact with the mother herself to raise his concerns with her and to seek her response. There was no evidence that Ms E had been contacted by the father or his solicitor and provided with this information and asked for her opinions. There was no evidence that the ICL had been contacted and told about the situation. There was no evidence that the mother’s solicitor had been contacted and informed of this asserted development. There was no evidence that police or the Department of Communities, Child Safety and Disability Services had been notified or asked to urgently check on the welfare of the children or the mother.

3. I was also conscious of the fact that the mother’s application filed 3 November, had been listed for hearing well over two weeks later, on 27 November, and that if the father’s Application was listed for hearing on that date, on his own deposition, the children would be with him for all of that time without seeing their mother. I assumed the father and his solicitor were aware of that also.

4. Extremely troubled about these developments and the apparent serious escalation of this parenting dispute, I listed the matter for hearing on an urgent basis on Tuesday, 14 November, conditional upon the Application in a Case and supporting affidavit being served on the mother’s solicitors straight away that very afternoon.

5. At the hearing on 14 November, the mother was represented by Queen’s Counsel, the father by counsel and the ICL appeared. At the outset of that hearing, the ICL informed the Court that she proposed the children be returned to their mother forthwith. I also informed counsel for the father at that time that I was quite troubled about the incongruence between the letter his instructing solicitors had written to the Court to have the matter urgently listed and the content of the father’s supporting affidavit. I stood the matter down to read the affidavit material filed by the mother and gave the parties the opportunity to speak with Ms E.

6. I was later told that the matter had been resolved and I was asked to make orders by consent that dismissed the competing applications before me and required the children, who had been kept away from school that week by the father, to be returned that same day to the mother, with the parenting orders of Senior Registrar Spink to remain in place. Those orders also provided for the mother to continue to attend upon her treating psychologist for as long as he considered it appropriate and that she follow his treatment plans and recommendations. The orders also provided for Ms E to be provided with all the material the parties had filed in that application and to consider whether she would recommend that the parties attend for psychiatric assessment. They also adjourned the mother’s application for costs of and incidental to that application to 27 November.

7. On 16 November, Ms E’s family report issued. It was before me in evidence on 27 November.

Issues for Immediate Determination

1. At the outset of the hearing on 27 November I asked the parties what matters were actually to be determined by the Court that day. Queen’s Counsel for the mother informed the Court that the issues to be decided were:

   (i)Whether the children could go to school at the Primary School at Suburb A from the start of the 2018 school year;

   (ii)Whether the mother should be permitted to move into the Suburb A investment property after giving 60 days’ notice to the current tenants to quit the property;

   (iii)Whether the parents should attend upon Dr B, Psychiatrist, as arranged by the ICL, with appointments in March, 2018 or upon Dr P, Psychiatrist, as arranged by the father’s solicitors, with appointments in December this year;

   (iv)Whether the parents should attend counselling with a counsellor nominated by the ICL or one nominated by the father’s solicitors;

   (v)The time the children were to spend with the father over Christmas Eve and Christmas Day this year;

   (vi)Whether the father should pay the mother’s costs of and incidental to the application that was before the Court on 14 November.

2. The solicitor for the father confirmed that those were issues to be decided, but also made it clear that the father was seeking an increase in the time that the boys spend with him, wanting, particularly, that they be with him from after school Friday until before school on Tuesday each alternate week and for half of the school holidays.

The Children’s time with the father  

1. Both the mother and the ICL submitted that the arrangements for the children to spend time with their father should not be changed just yet. They referred to and relied upon the opinion of Ms E, expressed in her family report.

2. Under the heading ‘RECOMMENDATIONS’ at the conclusion of her report, Ms E said:

   89. I recommend that the parents participate in psychiatric assessments with the same independent psychiatrist.

   90. Until psychiatric reports are available, I recommend that the current parenting arrangements remain in place.

   91.If the psychiatrist can see no impediment and providing the practical issue of where the parents are living, where the children are attending school and the distances involved is also not an impediment; I recommend that the children live with their mother and spend time with their father from after school Friday to before school Tuesday each alternate weekend; half of school holidays (with consideration being given to the Christmas holidays being taken week and week or in blocks of two weeks alternating – simply because half of the Christmas holidays is a long time to not see the other parent); time on special days as negotiated and agreed on by the parents; and reasonable telephone contact with both parents.

3. I hasten to add, without considering it necessary to go into all the detail at this point in time in these reasons, that Ms E’s report and the balance of the evidence before the Court makes it clear that the focus of the psychiatric assessment in this case is not just on the mother, but rather it is necessary to assess whether either party has any psychiatric issues which impact upon their parenting capacities and whether each parent, as well as the ICL and the Court, can be reassured that the children are not exposed to any unacceptable risks of emotional or physical harm in either of their parents’ care. Ms E appeared to express the view in her report that she did not necessarily consider that there were relevant mental health issues but rather thought it appropriate for the parents to be assessed for the purposes of mutual reassurance.

4. Accordingly, with regard to that fact, there is, in my judgment, merit in the submissions of the ICL and Queen’s Counsel for the mother that no changes should yet be made to the existing parenting orders pending the production of the psychiatric assessment. Indeed, I did not understand the solicitor for the father to seriously be contending otherwise. That much was also reasonably clear from his submission that the father and the children ought not have to wait until March for that psychiatric report when the father’s solicitors themselves have found another psychiatrist who can see the parties in December. I shall return to this point further on.

5. I accept that there should be no change in that part of the current interim parenting arrangements as regulated by the existing Court order that provides for the time the boys are to spend with the father until the psychiatric assessment is undertaken and the report becomes available. I appreciate that the school holidays are about to begin. The current orders provide for the boys to spend each second weekend with the father from 3 pm on the Friday until 3 pm on the Monday and I consider it appropriate to make no change to that at this time, even with the holidays being almost upon us.

Christmas

1. The father’s solicitor informed the Court that on the current schedule of alternate weekend time, the weekend of Friday 22 December to Monday 25 December (Christmas Day) is scheduled to be a weekend when the boys are spending time with the father. As such, he is expected to return the boys to the mother’s care at 3 pm on Christmas Day.

2. For the mother, it was submitted that for that weekend only, the boys should be returned to her care at midday. The ICL initially proposed that same thing, though later modified her position to submit that she was not troubled if the children stayed with the father until 3:00 pm on Christmas Day this year, conscious of the likelihood that whatever arrangements were made for Christmas this year they could be reversed in favour of the mother in alternate years in the future.

3. Queen’s Counsel for the mother could refer me to no evidence actually supporting a submission that they should be returned to the mother at noon on Christmas Day.

4. I will not make such an order and the existing orders will stay in place until further order. I will not make any order right at this point in time extending the time that the children spend with the father, either. I accept the opinion of Ms E and the submissions based upon it. Current arrangements for the children’s time with their father should stay in place until the report of the psychiatrist is available.

The alternative Psychiatrist and the alternative Counsellor

1. All three parties agreed that the parents must attend upon a psychiatrist for assessment and the preparation of a report. The ICL proposed Dr B and told the Court that appointments for the parents with him had been obtained in March. The Court was told that Dr B accepts referrals and does the work at the lower rates paid by the Legal Aid Office of Queensland and that although the parties may have received a notice from the Legal Aid Office to make a contribution to the costs of the appointment of the ICL in this case, they would not be expressly asked to contribute to the costs of the psychiatric report.

2. In contrast, the Court was told by the solicitor for the father that Dr P, psychiatrist, was available to see the parents in December. The solicitors for the father had already asked him to tentatively hold appointment dates and times for them. The Court was not told that Dr P would only charge legal aid rates for the report. The father said that he would charge $510 per hour plus GST. The solicitor for the father submitted that the parties should pay equally for the report and, presumably, that would be at the doctor’s usual rates. It was submitted that by going to this psychiatrist the process would be speeded up and the boys, particularly, would not have to wait the extra months before potentially spending more time with their father.

3. The ICL had also nominated a particular counsellor for the parents to begin attending upon for counselling to help them cope better with their post-separation conflict and communication. The parents agreed that they should, but the solicitor for the father objected to the nominated counsellor on the grounds that he had complained about that counsellor’s professional conduct in three separate matters in which he was involved and that counsellor had been involved. In lieu, he proposed another counsellor from K Town.

4. The mother opposed the notion of going to see the psychiatrist nominated by the father’s solicitor and the counsellor nominated by the father’s solicitor. Queen’s Counsel referred to the fact that Ms E had recommended that the parents see the same “independent psychiatrist” and effectively submitted that the mother could not have confidence in the independence of the psychiatrist or the counsellor nominated by the father’s solicitor, over those nominated by the ICL, in a matter of such high conflict. He further submitted, effectively, that as Dr B is a respected, well-known consultant psychiatrist who regularly acts on the instructions of ICL’s at Legal Aid Office rates, it would be in the children’s best interests to use him even if it means waiting until March.

5. I accept the merit of those submissions.

6. The ICL also submitted that it would be appropriate to just let this matter settle down a little, with the current arrangements for the boys’ time with their father to remain in place over the few extra months that it will be before the psychiatrist is able to see the parents to minimise instability caused by potential further change.   In the light of what I intend to order in respect of the mother’s other applications, I also accept the merit of that submission.

7. I will make the orders that the ICL seeks in respect of the attendance upon Dr B.

8. As for the counsellor, the ICL sensibly accepted that it is probably not appropriate to order the parties to attend upon a counsellor in whom the father’s solicitor has clearly expressed he has no confidence. She quickly nominated another and the father’s solicitor informed the Court that he had no objection to that counsellor. No objection was made to that changed proposal on behalf of the mother.

9. I will make the orders sought by the ICL in respect of counselling, with the newly proposed counsellor being named as the one upon whom the parents shall attend.

Suburb A property and the school

1. There was no dispute that the current tenancy at the Suburb A property can be lawfully terminated by the mother and the father on the giving of 60 days’ written notice to the tenants.

2. Clearly, by her current application, the mother is no longer pressing the application she had made in August for the sale of the Suburb A property on an interim basis. That she had sought its sale previously does not cause me to consider that her application to live in it now should be dismissed and the property sold. The father objects to her moving in there with the children on asserted financial grounds and on the grounds that she should find alternative accommodation to rent in M Town so that the boys’ schooling is not disrupted.

3. The property is the family’s former home. The mother and both boys have lived in it before for two years. The property belongs to the mother and the father. It is, with appropriate notice to tenants, available to be used to house the mother and the children, in circumstances where the only other property available without having to pay rental is the Suburb L property that the father so steadfastly insisted he was going to continue to occupy to the exclusion of the mother and the boys, even when she was telling him they had no-where else to go. Plainly, he still insists on occupying it to their exclusion as he has not proposed in answer to this application that she and the boys now move in there. In any event, clearly, by this application, the mother is also no longer pressing the application for sole occupation of the Suburb L property.

4. No submission was made for the father that the Court does not have the power to make the orders the mother seeks. I consider it does in this matter, pursuant to s 90SS(1)(k) of the Family Law Act 1975 (“the Act”) where the Court considers it is necessary to do so to do justice.

5. The father tells the Court that he would prefer to see the tenants continuing to occupy the property or for the property to be sold. He asserts this preference because he “cannot service the property otherwise than by renting it for market rates or selling it and realising the property equity”. He sets out evidence that the rental received currently is $825 per week with the mortgage repayments being $646 per week, rates and water charges being $99 per week, insurance $35 per week and maintenance costs $50 per week. Agent’s fees are $15 per week.

6. The mother has said though that she will make the mortgage repayments from money that she would otherwise be paying rent with. The father’s own evidence is that she was paying $750 per week rent in M Town as well as $50 per week for furniture storage. After the mortgage repayments are made, and without agent’s fees, the remaining costs (assuming maintenance costs remain at an average of $50 per week) would only be $184 per week. There is insufficient evidence before me about the financial circumstances of the parties to persuade me that this former couple cannot afford that in the short term.

7. I am not persuaded by the evidence or the submissions made on the father’s behalf that he and the mother simply cannot afford to hold the Suburb A property on an interim basis and to let the mother move into it. Certainly, if it is sold, the net proceeds of sale after discharge of the mortgage might be available for the parties to use to pay their legal fees and outlays and other liabilities, but that would still leave the father living on his own in the Suburb L property of the parties and the mother having to rent a residence for her and the boys. The mother has said that she will use the money that she now uses to pay rent to make the repayments on the loan that is secured by mortgage on the Suburb A property. If part of the weekly repayment is principal then that is still helpful to the parties in a pure financial sense. I accept that it is reasonable to expect her to do that and, indeed, I will include that obligation upon her in the orders I make even though Queen’s Counsel stopped short of saying that she would consent to that order. I note though, that he did not make submissions against that proposition when it was raised.

8. I am satisfied in all the circumstances that it is necessary, to do justice at this interim stage of these proceedings, for an order to be made that permits the mother to have sole use of the Suburb A property owned by her and the father, provided she makes the repayments on the loan secured by mortgage on the property as and when they fall due. I also consider it necessary to do justice between the mother and the father at this interim stage, to order the father to join with the mother in forthwith giving the current tenants sixty days’ notice in writing to quit their occupation of the property. I will also order, pursuant to s. 106A of the Act, that the Senior Registrar of the Brisbane Registry of the Court is appointed to sign that notice to quit on behalf of the father if he refuses to comply with the Court’s order to do so when requested to by the mother.

9. The mother shall be entitled to move in to the Suburb A property as soon as vacant possession is secured.

The School

1. At the moment, the mother drives the children from Suburb A to school in M Town each school day morning. She drives them home again after school each day. Ms E described the drive as follows:

   ... it is approximately 36 km and 45 minutes each way and presumably even longer, if there is a traffic problem. To the best of my knowledge, it is a picturesque but difficult and potentially dangerous drive, particularly to do twice a day.

2. Having experience of driving that road myself, I have no difficulty accepting Ms E’s opinion about that.

3. The mother is driving three hours each day just delivering the boys to and from school and returning each time herself. That she intends doing that until the boys finish this school year is commendable.

4. In her report (at [88]), Ms E recorded that the father had no objection to the mother and the children living at Suburb A. She expressed the opinion that, if they are living there, the children should then attend school at Suburb A.

5. In his affidavit filed 22 November 2017, after receiving Ms E’s report, the father sought to explain that he had made it plain to Ms E that he would not have had an issue with the mother changing residence to Suburb A so long as the boys’ school was maintained. Clearly, he would prefer the mother to be living in M Town and for the boys to continue to attend at the State school there. He even gave evidence that he had spoken to the school teachers and the Principal who told him that “the boys were doing very well and should not be moved at this point in time”. It is, without actual evidence from that Principal or the teachers, impossible for me to make a finding that such opinion, if it is truly held, extends beyond the end of this school year or whether it was confined to a potential move during this school year. No direct, non-hearsay evidence of the opinion of the staff of that school was adduced by the father. Their opinions might also differ if they had to take into account the logistics involved in keeping the boys at their school whilst living at Suburb A.

1. The father complains in his affidavit, and through submissions made on his behalf, that the mother unilaterally relocated to Suburb A and then seeks to visit the decision as a ‘fait accompli’ upon him and the Court. It has already been observed that the father steadfastly and repeatedly refused to let the mother and the boys move back into the Suburb L property. That would likely have seen the boys continuing at the M Town school. It may have been more convenient, easier and more affordable, not to mention more child-focused for the now separated family, in the interim period before finalising their property division, for the father to have sought out and obtained alternative accommodation for himself (suitable, of course, to house the boys with him on alternative weekends only) somewhere in the Suburb L/M Town area.  That did not happen, with the result being that the mother moved back to Suburb A. That has happened and now the decision about where the boys should attend school from the beginning of the next school year must be made based on their best interests rather than simply the wishes of the father.

2. The father’s case against the boys moving school goes even further. He has given more hearsay evidence about contact with the proposed school. He says that he was told the mother had not applied to enrol the boys at the school for 2018. He says he was told that there are no places available for the boys and that, if application is made now, they will be put on a waiting list to see if a place becomes available. Again, he did not adduce any direct evidence supporting this. However, tendered into evidence for the mother at the hearing was a letter from the proposed school confirming that an application for enrolment of the boys for the 2018 year has now been received. The letter went no further. As I said during the hearing, that seems to corroborate what the father has said he was told, by what it does not say.

3. However, with respect to the father, the fact that there might not currently be positions for the boys is not enough to persuade me that they should not be allowed to attend that school next year if positions do become available for them in the meantime.

4. The father also asserted that the fees of around $6,100 for the boys to attend the proposed private school for the year are an extra impost for the family that they do not have if they continue at the State school at M Town. Notwithstanding that evidence and submission, I remain unpersuaded on the evidence that is before me that the family cannot afford to pay these school fees. All of the financial circumstances of these parties were not in evidence before me. Also relevant to my consideration of this, in my judgment, is the fact that the eldest boy has already attended this same proposed school before the family moved up to Suburb L in 2013. Clearly, at that point in time, there was parental agreement to his attendance there and for them to be able to afford the fees. I also have regard to the mother’s evidence about the availability of out of school hours care at the proposed school. That fact, combined with the fact that the mother would not be required to drive three hours per day to and from M Town makes it far more likely that the mother could secure employment, as she says she intends to try to do, if the boys go to school in Suburb A. Employment will assist her and the family financially at this difficult stage. That would be in the boys’ interests.

5. I accept that the age of the boys is such that they should be able to cope with the proposed change. I accept that constant change is not necessarily good for children, though that depends upon how it is managed. There is no evidence that the eldest boy did not cope with changing schools last time he was required to by his parents’ decision. Ms E and the ICL both support the proposal to send the boys to the Suburb A school, and do so bearing in mind the change it requires.

6. I am satisfied that it is in the boys’ best interests at this interim point in time to permit their mother to have them attend at the Suburb A Primary School from the beginning of the new school year in 2018 if positions can be obtained for them.

7. As I said at the hearing though, the Court would look dimly on a unilateral decision to just put them into another school in the Suburb A area without the father’s agreement should they not be given positions at the school. Further discussion, negotiation and agreement would be expected in such circumstances, failing which a further order of this Court being sought would be considered the most appropriate way to proceed in such event.

The Mother’s application for costs of and incidental to the father’s application in a case finalised on the 14 November.

1. The mother seeks an order that the father pay her costs of and incidental to the application that was listed and determined on 14 November. The father opposes it.

2. The mother’s solicitor deposed to an affidavit in support. He acknowledged in that affidavit that he had been provided with an unsigned and unfiled copy of the father’s application and affidavit, presumably prior to it being filed on Friday 10 November.

3. The solicitor’s evidence is that after receiving that material, the mother immediately attended upon her treating psychologist. That psychologist provided a hand-written report to the mother’s solicitor, clearly aware of the content of the father’s affidavit filed 10 November. That report was in evidence before me on 14 November. It says, relevantly:

   I am continuing to treat [the mother] for severe stress, exhaustion and overload.

   [The mother] is making good progress with treatment. She is applying a range of strategies from sessions to manage the complexity of her family court matters.

   [The mother] demonstrates good parenting skills. She applies positive parenting techniques and is an effective role model for her children.

   [The mother] has experienced brief episodes of emotional reactivity due to the overwhelming pressures of the family court issues with her former husband. She then has applied effective management strategies to stabilize her mood. I do not consider [the mother] to be a risk of self-harming. On the contrary, she demonstrates rational mature approaches to coping with stress and complexity in her life.

4. The father’s solicitor sent an email to the mother’s solicitor on the morning of Sunday, 12 November. He referred to the urgent listing of the father’s application. He then raised the issue of making arrangements for the boys on the Monday and Tuesday pending the urgent hearing. He informed that the father wanted the children to be able to attend school on those two days but would “have to refrain” from sending them unless the mother gave a ‘without admission’ undertaking not to attend the school, to approach the children, to take possession of them or to have another person do any of those things.

5. Later that same day, Sunday 12 November, the mother’s solicitor sent an email response to the father’s solicitor. In that, he advised that the mother had been attending a psychologist to assist with the stressors of the matter and that she attended upon that psychologist on Friday afternoon, 10 November. He then said the following:

   [The psychologist] confirms in his attached update handwritten report that there are definitely no concerns to support your Application. As such please confirm you will Discontinue your Application and accordingly have your client present the children for school tomorrow at the end of his contact. Failure to do so will cause us to seek costs against your client and your practice on an Indemnity basis plus if he withholds the children an Urgent Contravention Application will be filed.

   Prior to receiving [the psychologist’s] now third Psychologist Report re our client (and they were all positive) we had taken instructions which confirmed the text message as your Annexure No. 1 of your client’s affidavit of 10 November 2017 was sent from the fifth person in a line on Chinese Whisphers (sic)! Likewise your client failed to raise this issue with our client or seek either a Welfare Check from the police or seek that the Police consider an Emergency Examination Order for our client to be examined by the Mental Ward at K Town Hospital.

   In short while your Application never had prospects of success, [the psychologist’s] attached report now means that it must be Discontinued and that your client not use these little children as pawns.

6. The solicitor also asked for urgent confirmation that the application would be discontinued, that the children would be returned to school on Monday morning and that the mother’s reasonable costs would be paid. He also then indicated that he was about to start work on dictating the mother’s affidavit material in response.

7. At around 6:00 pm on Sunday 12 November, the father’s solicitor responded by email and informed the mother’s solicitor that the father’s position remained the same. He confirmed that he had received and read the report of the psychologist. Interestingly, he said:

   Respectfully, the letter from [the psychologist] raises more issues than it answers.

8. I am unsure what issues the father’s solicitor thought it raised that were not answered or that caused him not to be able to reassure his client that the mother did not present as an immediate, unacceptable risk to the welfare  of the boys as the psychologist had clearly intimated. In that respect, counsel for the father did not seek to persuade the Court on Tuesday 14 November that there were such unanswered issues. The father’s solicitor did not make submissions about these ‘unanswered issues’ and the reasonableness of his statement in that email on the hearing of the costs application.  He did make repeated reference to the fact that the mother had not given an explanation in her affidavit as to the circumstances upon which friends of hers might be texting other friends asserting that the mother had threatened to kill herself. Quite apart from the fact that the mother did file and rely on affidavits from friends that apparently explained where the hearsay information that troubled the father came from, I do not understand how failure by the mother to directly refer to it herself in subsequent affidavit material justifies the apparent unwillingness to accept the unqualified assurance of the mother’s treating psychologist given in that handwritten report.

9. That unwillingness, along with the failure by the father or his solicitor to attempt to contact the mother or her solicitor before preparing and seeking to file and have urgently heard his Application in a Case, to seek reassurance about information that the father himself conceded was hearsay; the failure to request that the police do a welfare check or to seek a Justice’s Examination Order before filing; the failure to notify the Department responsible for child safety before filing; the failure to contact Ms E before filing, all causes me to consider it is more probable than not that the father was motivated to act in the way that he did other than out of genuine concern for the immediate well-being of the boys. Even if I am wrong about that, as I respectfully acknowledge I could be, I am satisfied that the father’s involvement in this highly conflictual parenting dispute resulted in the failure of his better judgment coming to the fore when the psychologist’s reassurance was provided. He asserted in an affidavit that he still had concerns about the psychologist’s report until the day of the hearing which were only “overcome” when his barrister was party to a discussion with Ms E. That deposition only highlights how precipitous the application was without any effort being made by the solicitor for the father to speak with Ms E directly on the father’s behalf or at least through the ICL before the application was actually filed and the holding over decision made.

10. I am quite satisfied that the father’s Application in a Case was precipitously filed when it was and that the refusal to confirm either on the Sunday, the Monday or the Tuesday morning that it would be discontinued was not a reasonable one, particularly having regard to the ultimate outcome on the afternoon of 14 November when the father did then agree for his application to be dismissed and for the children to be returned to the mother.

11. On the evidence, the mother has incurred costs for her solicitor’s work in responding to the application in the amount of $6,600 and outlays for the barrister’s fees of $3,850, a total of $10,450. She is not legally aided and must pay this amount to her solicitor at some point in time. I have not been informed as to how much the father spent on the application. If it was even a little less than the mother spent, the parties have by this precipitous application alone lost around $20,000 of their wealth that could have been better spent on their children or otherwise in getting their dispute finalised.

12. I am, of course, mindful of the fact that s 117(1) of the Act provides that generally each party to proceedings pursuant to the Act shall bear his and her own costs. However, that is subject to a discretion to make orders as to costs if the Court is satisfied that the circumstances of the case justify it in doing so. If the Court is so satisfied it may make an order, the terms of which it considers just. In determining the exercise of this discretion, the matters set out in s 117(2A) must be considered. Those matters include in (g) “such other matters as the court considers relevant”.

13. An additional matter that I consider relevant, as I said at the hearing, is the fact that the father himself previously sought and obtained an order earlier in these proceedings that the mother pay his costs thrown away. Although he was not successful with it, his solicitor did apply for indemnity costs on that occasion. I raised this fact with the father’s solicitor and invited submissions from him as to whether or not it was relevant and was something I could take into account. He did not submit that it could not be taken into account, but rather effectively submitted that the father’s application on that previous occasion was justified, as accepted by the Senior Registrar, and that on this occasion the circumstances did not justify an order for costs against the father.

14. With respect to the father’s solicitor I do not accept the second part of that submission. I am satisfied that the father’s precipitous conduct in filing the application in the circumstances within which it was filed and his refusal to withdraw it, unreasonably put the mother to significant expense and do justify a costs order in her favour against him.

15. The mother’s solicitor’s evidence is that he has a costs agreement with the mother pursuant to which his fees were charged. He invoiced her for three specific amounts of work that he said took not less than 7 hours but billed her for $1,800 for each episode, $100 for ‘Office Charges’ and $500 for travel. If he did do 7 hours work on each of those three separate occasions over those few days he charged that to the client at $257 per hour plus GST, which is greater, but not by much, than the $241.74 per hour allowed in the current scale of costs in Schedule 3 of the Family Law Rules 2004.

16. I am not persuaded that a costs order on an indemnity basis is justified in this matter. The work the mother’s solicitor did is not sufficiently itemised in his affidavit or in the invoice he attached for me to determine exactly what amounts would be justifiable on a party and party basis in accordance with the scale. Whilst I am entitled to make an order that a party pay a specified amount of costs, I am not satisfied that I would be determining such an amount other than on some arbitrary basis. Whilst I appreciate that in such high conflict parenting cases ordering costs to be as agreed or assessed can lead to more expense for the parties, in the circumstances of this particular matter I consider an order that the father pay the mother’s costs of and incidental to the Application in a Case filed by him on 10 November, 2017 and the mother’s costs application in respect thereof as agreed or as assessed by a Registrar pursuant to the Family Law Rules 2004 on a party and party basis to be a just order.

17. The father’s solicitor submitted that if I ordered costs against his client that the payment of them should be deferred until the finalisation of the property settlement between the parties, just as he accepted in respect of the costs order he obtained against the mother from Senior Registrar Spink. Queen’s Counsel for the mother opposed that, submitting that the costs had to be paid now by the mother, so that if she is have her costs paid by the father it should be now and should not be deferred.

18. The parties’ resources now are, in my judgment, better directed towards finalising their dispute and these proceedings. It is to be hoped that is what might now be focused upon by each of them and their legal representatives. My order will defer the payment of the costs until finalisation of their property settlement.

19. I order as set out at the commencement of these written reasons. I will certify that it was appropriate to brief counsel for the hearing on 14 November 2017.

20. The mother also asked for an order formally recognising that the children live with her. That was not opposed by the father or the ICL.  My orders will include that.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 1 December 2017.

Associate:

Date:  1 December 2017