Hitchcock and Maloney
[2011] FMCAfam 89
•21 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HITCHCOCK & MALONEY | [2011] FMCAfam 89 |
| FAMILY LAW – Urgent recovery order – costs. |
| Family Law Act 1975, ss.117, 69ZW, 60B, 61DA Federal Magistrates Court Rules 2001, Schedule 1 |
| Applicant: | MS HITCHCOCK |
| Respondent: | MR MALONEY |
| File Number: | AYC502 of 2010 |
| Judgment of: | Harman FM |
| Hearing date: | 21 January 2011 |
| Date of Last Submission: | 21 January 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 21 January 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Caplice |
| Solicitors for the Respondent: | Ms Garwell |
ORDERS
Mr Maloney shall pay to the Legal Aid Commission of New South Wales within 28 days the sum of $650 representing the costs incurred by the Legal Aid Commission with respect to recovery of proceedings instituted 23 December 2010 and concluded 24 December 2010.
IT IS NOTED that publication of this judgment under the pseudonym Hitchcock & Maloney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
AYC502 of 2010
| MS HITCHCOCK |
Applicant
And
| MR MALONEY |
Respondent
REASONS FOR JUDGMENT
These are proceedings which were commenced by way of urgent application filed 23 December 2010 and listed on Christmas Eve 2010.
The application at that time sought parenting orders with respect to two children, [Y] and [X], who are shortly to turn one and three respectively.
The proceedings had come on at short notice on the basis of an allegation by the applicant, Ms Hitchcock, that the children had been in her care for a significant period of time since the parties had separated, no later than October 2009, (ie, more than 12 months preceding the date of the application), and the children had been retained by Mr Maloney in his care.
The proceedings were dealt with on that day as a matter of some urgency and albeit that Mr Maloney had not had the opportunity to file material he appeared in person by telephone.
At the time that the interim application was dealt with, Mr Maloney indicated that he had a number of concerns of long standing in relation to the children’s care by their mother. Those concerns would appear, from what Mr Maloney had put on the first occasion and from what has been indicated in the material now filed by Mr Maloney, to continue and relate to alleged concerns about Ms Hitchcock’s mental health and allegations of drug use by her.
There is no issue in the proceedings, on the basis of Ms Hitchcock’s case, that she has, for some time, used marijuana, and, in fact, she indicates in the most recent material filed by her that she has, at periods of time, and she alleges also with respect to the father, although there has been no opportunity for him to respond to that, been a heavy user of marijuana. Ms Hitchcock also indicates and alleges that Mr Maloney has used a number of other drugs, but they are not germane to today’s issues, nor has Mr Maloney had any opportunity of commenting upon those allegations.
In relation to costs, as is correctly observed by Mr Maloney’s legal representative, they are dealt with by s.117 of the Family Law Act 1975, and the general presumption, for want of better description, under sub.s (1) of that section is that parties to proceedings should pay their own costs. Subsection (2) grants a discretion to the court if there are circumstances which, in the opinion of the court, justify the Court so doing to make an order for costs, and sub.s (2A) provides a list of considerations for the court. The list is not prescriptive non exhaustive.
Subsections (3), (4) and (5) of the Act deal with legal aid and its relevance to orders for costs but only in the context of independent children’s lawyers, and those sections were introduced by the 2006 amendments in response to what had become a policy and practice at that time for an application for costs to be made in each matter in which an independent children’s lawyer was appointed and as a matter of public policy to attempt to protect the limited funds of the commission. Those subsections are not relevant to these considerations, although legal aid funding is a relevant issue as it is raised in the matters to be considered by the court pursuant to sub.s(2A).
Those relevant considerations provide as follows:
Financial circumstances
I am advised, although there is no affidavit material before the court that the mother is in receipt of Centrelink benefits by way of pension and has casual work two days per week. She otherwise has the primary care of these two children of the relationship and, on her evidence, as yet untested, has had so at all times since their birth.
As she indicates, the parties lived together in a, quote, “on-off on-off relationship.”
Mr Maloney, I am told, is a full-time employee. He has a partner who is in casual, on-call employment. She has a child who lives also as part of the household and who is supported by the income of that household. There is, of course, no moral or legal obligation upon Mr Maloney to support that child or his wife as a matter of law pursuant to the Family Law Act and the relevant provisions of Part VII dealing with child maintenance.
Mr Maloney owns a home encumbered by a mortgage which he is servicing. Accordingly, it would certainly appear that Mr Maloney’s financial circumstances are superior to those of Ms Hitchcock.
Whether any parties are in receipt of a grant of legal aid
Ms Hitchcock is in receipt of legal aid funding with respect to these proceedings. The costs that have been incurred by the Legal Aid Commission are, accordingly, the funds of the taxpayers of Australia. With respect to recovery proceedings, the costs paid by the Legal Aid Commission to the legal practitioner is a lump sum of $390, together with time spent in Court with respect to the application, and it was before the court on 24 December, being approximately two hours and an hour today, and accordingly, total costs incurred by the commission would be $650.
I note in this regard that the Federal Magistrates Court Rules 2001 contain, in Schedule 1, an indicative scale of costs which is intended as nothing more than an indication of the quantum of costs that might be ordered by the court in the event that it was seen as appropriate to make any order for costs.
The indicative scale indicates, with respect to Stage 7 proceedings, being an application for location, recovery or enforcement of an order, that a lump sum of $745 in the family law jurisdiction is appropriate, together with a daily hearing fee of $880 for a half day. That, accordingly, would, on the indicative scale, warrant a costs order in the sum of $1625 plus disbursements. That is an amount nearly a thousand dollars in excess of that which has, in fact, been incurred by the taxpayers in relation to the proceedings. The proceedings certainly were instituted for the purpose of recovering children, although there were no existing orders at the time which were breached.
The Legal Aid Commission has expended that amount of money and as a matter of public policy one must balance the limited funds of the Legal Aid Commission and the requirement that those funds not be expended unless absolutely necessary and that in appropriate circumstances, indeed as a condition of any grant of legal aid, that an application for costs is made. That is also balanced against the general consideration in subparagraph (1) that each party should bear their own costs.
Of course, in this circumstance and the specific requirement to consider whether a party is in receipt of a grant of legal aid means that, indeed, the parties are not bearing their own costs. The taxpayers of Australia are doing so in the case of Ms Hitchcock. That is not a criticism of Ms Hitchcock. She qualifies for and is entitled to legal aid assistance and it is a valuable resource both to her and the balance of the community.
If costs orders are not made in appropriate circumstances when a party is legally aided, that has the effect that the already limited funds of the Legal Aid Commission are further reduced, meaning that other litigants who require assistance may not be assisted.
The conduct of the parties
It is suggested, and appropriately so by Ms Garwell, that Mr Maloney would not be criticised for his actions in retaining the children in his care as he had concerns which were valid, and certainly, it would appear, in relation to the consumption of marijuana, Ms Hitchcock now makes somewhat frank and candid admissions, and if nothing else, these proceedings have had the effect, albeit as a consequence of orders made by me on 24 December requiring it, that Ms Hitchcock is now receiving some assistance to render herself drug-free and has taken some real and active steps in that regard. Accordingly, the proceedings to that extent, whilst they have been necessitated by the retention of the children, have had a positive benefit upon these children because they will now have the benefit of their mother being drug-free or on a path towards same.
The other concern that is raised is with respect to mental health. There would not appear to be any basis for this concern other than Mr Maloney’s assertions, based upon his observations, and he is there to make those observations of Ms Hitchcock’s behaviour, which have caused him to draw a conclusion or opinion. However, there is no medical evidence pointed to in the proceedings that suggests that there has been any diagnosis of mental health problems in the past or any treatment sort, recommended or offered, although that is clearly something that can, will and should be investigated in the future.
Too frequently parties seek to use an allegation of mental health disorder as, in effect, a “trump card” in proceedings, as though the mere raising of an allegation of itself gives rise to a presumption against a person either having time with or retaining the care of children. That is not so, and the community needs to be disabused clearly, of that notion.
Mental health concerns, as if often remarked in this court, are health concerns and nothing more. They are not, of themselves, relevant. That a litigant may have received or may warrant a diagnosis of a mental health condition is only relevant to the extent the symptom logy of that condition has the potential to impact upon the best interests of a child.
The existence of a mental health condition, if ultimately it is found to exist, is clearly a matter that has no relevance other than to the extent that it produces a negative impact upon a child’s best interests which would arise only from a person subject of a mental health condition being either undiagnosed, untreated, lacking insight, or non-compliant with treatment, such that their symptomology represents a real harm or impact upon the ability to care for and appropriately parent a child.
As I have indicated, that will be assessed in due course, but the basis for the allegation at this point is unclear, certainly to the extent of being able to identify any appropriately qualified psychological or psychiatric service that has raised the concern.
It is also suggested that Mr Maloney’s actions in retaining the child were entirely appropriate as he had those concerns, had raised them with the Department of Human Services and had been advised by the Department of Human Services to retain the children. Whether that is so or not is unclear, although material has been produced pursuant to an order made pursuant to s.69ZW and that has been released to the parties, although no one has yet had the opportunity to inspect it.
In any event, that is a matter for the Department of Human Services if they held concerns. The Department may, although it is rarely the case that it actually transpires, have sought to take some action of their own whether in this Court or the State Children’s Court, rather than simply seeking to be a cheer squad in the background, encouraging a party to take unilateral action, which within the context of this court’s dealings, and is inappropriate.
If a party has a concern with respect to a child’s welfare, unless there is an allegation that it is a serious and immediate physical risk, one would expect that a party would bring that matter to the court and seek to have the court’s intervention in assessing and addressing those concerns rather than unilateral action which has the consequence of overturning a long, stable, settled arrangement, although certainly Mr Maloney, in fairness, in this case, raises some issue as to the stability of the longstanding arrangement.
Whether the proceedings were necessitated by the failure of a party to comply with a previous order
There are no previous orders and, accordingly, on its face, that cannot be relevant. However, the proceedings were necessitated by the unilateral retention of the children.
Whether any party to the proceedings has been wholly unsuccessful
With respect to the interim issues, Mr Maloney has been largely, although not wholly, unsuccessful. He has been successful certainly in raising his concerns with the court, which are now being addressed through actions undertaken by Ms Hitchcock, again pursuant to court orders, but certainly a good outcome has been produced with respect to that concern.
Whether an offer has been made
In this case this factor is not relevant.
Such other matters as the court considers relevant
As a matter of general principle, this court has for many years taken a dim view towards parties who act unilaterally in securing an outcome that they desire and allege as appropriate without appropriately seeking intervention from a court seized of jurisdiction. It obviates the objects of the legislation as set out in s.60B, that parents should make joint decisions and that both of these parents, unless and until the court makes an order otherwise under s.61DA, are invested with equal shared parental responsibility for their children.
On one level, Mr Maloney can be criticised for his capricious actions in unilaterally determining to retain the children and change a longstanding arrangement. However, set against that must be the concerns that he has raised and whether his actions in that regard are appropriate.
Certainly on the bases that are suggested, the concerns were longstanding. On face value, one can well suggest that he should have taken action earlier rather than simply unilaterally retaining the children, although there can be circumstances in which a longstanding arrangement can lead to a person ultimately and in the vernacular “losing their patience” and no longer being prepared to wait for change to occur.
Whether that is so or not in this case is unclear, but certainly it is clear from what is put by Ms Garwell that Mr Maloney took action by then contacting the Department of Human Services who gave him certain advice, it is suggested, which he followed. However, whether the advice is good advice or not is unclear at this point in time and that is certainly a matter which is regularly raised with this court.
But as I previously indicated, for the Department to stand in the background as a cheerleader, as it were, encouraging a party to take action for which they are then criticised in this court is inappropriate.
The Department needs to either intervene and take action or stay out of it. Their role is different to this court’s. Their role is to investigate and ultimately, if as a consequence of their investigations, and subject to the limited power of emergency removal, to bring proceedings to a court, for the court to then have the evidence placed before it and assess it and for the Court to make the decision.
In this case the Department has sought to be, if one accepts Mr Maloney’s evidence of the advice he received from the department, and there is no reason to doubt it, judge and jury in the circumstances, and to meddle in that fashion is, with respect to the Department, mischievous.
In any event, having regard to all of the above matters, and particularly having regard to the consideration as to the limited public funds that are available for the assistance of litigants, I am satisfied that an order for costs should be made, and accordingly make the following order.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Harman FM
Associate:
Date: 4 February 2011
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