Janczek and Fenton

[2007] FamCA 748

FAMILY COURT OF AUSTRALIA

JANCZEK & FENTON [2007] FamCA 748

FAMILY LAW - CHILDREN - With whom a child spends time - With whom a child communicates - Variation of Orders

Family Law Act 1975 (Cth)

APPLICANT: MS JANCZEK

RESPONDENT: MR FENTON

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 10662 of 1998

DATE DELIVERED: 26 JULY 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 25 and 26 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MS VOHRA

SOLICITOR FOR THE RESPONDENT: ROBINSON GILL

INDEPENDENT CHILDREN’S LAWYER COUNSEL: MR O'CONNELL

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: CE FAMILY LAWYERS

ORDERS

IT IS ORDERED BY CONSENT:

1. THAT paragraphs 2 to 5 inclusive of the orders of the Federal Magistrates Court made 24 August 2005 be discharged.

2. THAT the mother and father have equal shared parental responsibility for the children of the marriage namely:

   §  A born in June 1992;

   §  M born in June 1994;

   §  D born in February 1997.

3. THAT the children live with the father as follows:

   (a)during school terms A and M from 10.00 a.m. Saturday until the commencement of school, or between 8.00 a.m. and 8.15 a.m. if not a school day on the following Tuesday subject to sub-paragraph (e) hereunder;

   (b)      all of the children:

   (i) for the second half of each of the school term vacations which are to commence at 6.00 p.m. on the second Saturday thereof and conclude at 6.00 p.m. on the final Sunday thereof;

   (ii) from 10.00 a.m. on Christmas Day until 10.00 a.m. on Boxing Day in each year;

   (iii) from the conclusion of school on Friday to the commencement of school on the following Wednesday each year over the Melbourne Cup Day holiday and weekend.

IT IS FURTHER ORDERED NOT BY CONSENT

(c)for D during school terms from the conclusion of school on each Friday until the commencement of school, or between 8.00 a.m. and 8.15 a.m. if not a school day, on the following Tuesday;

(d) for all of the children for the second half of the long summer vacation in each year to commence at 6.00 p.m. on 9 January and to conclude at 6.00 p.m. on the fourth last day before the commencement of the new school year;

(e) For A and M in the event that either of them have a sporting commitment earlier than 10.00 a.m. on any Saturday during school terms and the father has given the mother at least 24 hours prior written notice thereof by e-mail she is to make them available at such proper time as would enable them to attend their organised sporting commitment;

(f)       as may be further or otherwise agreed.
IT IS FURTHER ORDERED BY CONSENT

1. (a)       THAT the children live with the mother at all other times than those provided for in paragraph 3 hereof;

   (b) the children further live with the mother and the provisions of paragraph 3 hereof be suspended as follows:

   (i) from 10.00 a.m. Christmas Eve until 10.00 a.m. on Christmas Day in each year;

   (ii) from 2.30 p.m. on Mother's Day until the commencement of school the following day in each year;

   (iii) on the mother's birthday and the children's birthdays from 3.30 p.m. until 8.00 p.m. in each year.

IT IS FURTHER ORDERED NOT BY CONSENT

1. THAT for the purposes of changeover:

   (a) the father or his partner return the children to their respective schools when appropriate, or

   (b) changeover take place at the McDonald's Store at E;

   (c) in the event that the father or his partner is more than 45 minutes late and has not provided the mother with a reasonable explanation for the delay she is not required to wait any longer with the children at McDonald's and then changeover occur as soon as practicable at a time and place as agreed between the parties for that occasion, and the mother have her mobile telephone with her, on and charged, and available at all times to receive calls or messages for all occasions of changeover.

2. (a)      THAT the parties retain their current landline and mobile telephone numbers and not change these without prior agreement of the other party or further Court order and keep the other party advised of any change thereto within 24 hours of such change;

   (b) neither party telephone the home of the other except a genuine reason including:

   (i)         the care and welfare of the children including education;

   (ii) any medical reason with respect to the children or any of them or the parties;

   (iii) as related to these orders and in particular the collection and delivery of the children;

   (iv)       any extended family matters of importance.

IT IS FURTHER ORDERED BY CONSENT

1. THAT pursuant to s.118(c) of the Family Law Act 1975 the mother and father be and are hereby restrained from issuing any further applications in the Family Court of Australia, Federal Magistrates' Court of Australia or any State Magistrates' Court on matters concerning the children or any of them without first obtaining the leave of a Registrar or Judicial Officer of the Family Court or the Federal Magistrates' Court.

IT IS FURTHER ORDERED NOT BY CONSENT

1. THAT the costs as reserved on 3 April 2006 by Senior Registrar FitzGibbon and 1 June 2006 by Dessau J in favour of the father be now ordered and paid by the mother to the father as agreed or failing agreement as assessed by the Court.

2. THAT any order for reserved costs of the Independent Children's Lawyer be discharged.

3. THAT the appointment of the Independent Children's Lawyer be forthwith discharged.

4. THAT Order 1 and Orders 6 to 13 of the Orders made on 24 August 2005 and Notation A thereof otherwise remain in full force and effect.

5. THAT all extant interim or final applications be otherwise dismissed and removed from the list of cases awaiting hearing.

6. THAT pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” and these particulars are included in these orders.

7. THAT the extempore reasons for judgment on each of the issues determined by the Court be transcribed, be placed upon the Court file and be made available to all parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of counsel for the father and the Independent Children’s Lawyer

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 10662 of 1998

MS JANCZEK

Applicant

And

MR FENTON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Janczek and Fenton and the Independent Children's Lawyer has been transferred to me as a reserve Judge in the defended list.  Mr O'Connell of counsel appears on behalf of the Independent Children's Lawyer, Ms Vohra of counsel appears for the father and the mother appears in person.  There are a number of issues before the court of and concerning the three children:  A who is 15, M who is 13 and D who is 10 years of age.  There are current orders made in the Federal Magistrates Court at Dandenong on 24 August 2005.  Those orders were made by the consent of the parties and pronounced by Hartnett FM.  The various applications before the court seek to vary those orders.

2. There has been a lengthy family welfare report prepared by Ms J, Psychologist and I have read that report and the various recommendations contained therein.  Ms J has had the benefit of an interview with the children and with the parties and has also had access to the court documents both of the Magistrates Court and of this Court.  I have indicated to the parties that I intend to deal with this matter in the most efficient manner that is available.  I do not propose to conduct this hearing as a defended hearing in the context of oral evidence and cross-examination.  I will take full submissions on the papers.  I have read all of the evidence that is relevant.  I say that with the endorsement and agreement of the parties and primarily because there are limited and specific issues which really go to the quantum of time to be spent by one or other of the parties with the children and the circumstances of each such event.  A timely and efficient hearing is required. 

3. The current orders provide for a structure of shared parenting responsibility and for the children to live at various times with each of their parents.  The real issues before me are proposed variations in light of the evidence before the court as contained in the affidavits of the parties or as detailed and recommended by Ms J.  What I proposed to do, and again with the consent of all parties including the Independent Children's Lawyer, is to work through each of the issues in dispute and to determine those matters by the court.  The orders will therefore not be made by the consent of the parties unless otherwise agreed but will be by the court, save that the variation of the current paragraph 2 will be by consent, whereby equal shared parental responsibility will be substituted for the current words; that is, "the joint responsibility for making decisions about".

4. The matter has been presented to the court on the basis of the Independent Children's Lawyer identifying various issues, and in turn each of those matters has been addressed and brief reasons will be provided.  The first of the specific issues is the commencement of the time on Saturday when the children are to reside with the father.  The current order provides 8.30 am and each of the three boys remain with their father until he delivers them to their school on the Tuesday morning.  All boys play sport, though now it would seem that it is now more relevant to the youngest child.  I say that with some hesitation because I do clearly understand that all three boys were, to varying levels, good at their inline hockey, but there might be less enthusiasm from A and M at this stage.

5. The issue of the commencement Saturday morning of the time to be spent with the father largely revolves around issues of the convenience of the boys, their wish to sleep in and their obligation or wish to play in a team sport.  All of those matters are part of the fabric of what is in their best interests and in all issues that I determine in this case, the best interest of the children will substantially and clearly outweigh the individual wishes of the parties.  I am now clear on the different approaches of each of the parents and have had submissions from them or their counsel in that regard. 

6. The Independent Children’s Lawyer has prepared a helpful minute of order as suggested which varies the time for all boys until 10.00 a.m. on Saturday but provides a very clearly defined other option, and that is by 24 hours, if there is a prior email, then for sporting or other reasons the boys are to be made available at an earlier time.  What is immediately apparent in this case is the level of the wholesome, if not total, failure to communicate and/or lack of trust between the parties.  Clearly from what the mother has already said and from what her material says, she has no confidence or trust in the father or in the circumstances of the arrangements for the children.  I do not make any findings on this issue.

7. The father may have any number of feelings, including frustration, bewilderment, concern, but ultimately each of the parties in their own way are no doubt trying to do what is best for the children.  The reality might be that these children have separate ideals, wishes, and are at a different age and need an individual approach.  What I propose to do in relation to the commencement time of Saturday morning is to vary the order from 8.30 a.m.  With great reluctance, but on the basis that it is in the best interests of the children, I propose to order that D be available for collection by the father on the Friday afternoon. 

8. As to the other two boys, whilst their sporting commitments and the full time to be spent with their father is important, I will adopt the minute of order as provided for by the Independent Children's Lawyer so that it will be 10 a.m. commencement unless there is a prior email, but that email must be submitted on behalf of the father only when it is in the interest of the boys or when they have an organised activity.  It is not to become a weekly ritual that the time is artificially brought forward.  There does need to be certainty and the certainty is 10.00 a.m. for both A and M unless there is a specific fixed sporting event timetable to adhere to.  It is important that the parents take some care as to how they explain this particular order to the boys.  It is not an order that is favouring D and it is not an order that is intended to in any way react to or discriminate against the older boys; it is meant to be for the wellbeing of the three boys and to meet their individual circumstances.

9. The next issue raised relates to paragraph 3(b) of those earlier orders.  It is agreed that the father will continue to have the second half of school term holidays.  The real dispute is as to the Christmas/January long summer vacation.  Currently the order is for the father to have the second half.  The mother's proposal is that it would be a more balanced order and more appropriate for the children were she to have the second half in alternate years, or alternatively for there to be a period, perhaps up to a week, for the children to be back in her care prior to resuming school.

10. I have read Ms J’s report on those issues and I do understand her considered discussion throughout the report and ultimately paragraph 52 thereof.  What I propose to do is not to interfere with the current orders.  Each of the boys know how the current orders work.  I propose to give definition and certainty to the second half of the Christmas/January holidays so that the time that the three boys will all spend together with the father will commence on 9 January at 6.00 p.m. and will conclude four clear days prior to the commencement of school.  The effect of this variation of the current order may be to slightly reduce the total time period that the father spends with all of the boys in this holiday period.  I agree with the mother in that she does need a proper time period to prepare the boys for school and this may often occur over a weekend.  On balance four clear days is an appropriate time.  If in future years the boys attend different schools and with different dates of return to school the parents will have to resolve that situation.

11. Paragraph 5 of the current orders deals with changeover.  I propose to amend that order to give more certainty.  The orders will provide that the father is to collect D each Friday at the commencement of school from his school and to return all children to the school on the Tuesday morning following his time with the children.  Otherwise, all changes will take place at the McDonalds Store in E.  I will not add the option of a police station as an alternate venue. 

12. The order will further provide that the current partner of the father, Ms S, can be wholly involved in the collection or return of one or all of the children.  There will be a condition that if the father or Ms S is more than 45 minutes late in collecting one or all of the boys for a period of their time and if there is no reasonable or proper explanation given in advance, then I do not require the mother to wait for any longer time at the McDonalds Store.  Hopefully thereafter what will occur is a sensible and practical changeover, because if it were of course the commencement of a school term week, that would not prejudice the boys spending the balance of the week with the father.  It is more to provide certainty and security and to ensure the mother is not “camped” at the McDonalds Store.

13. All parties are to exchange their mobile telephone number and are to keep the phones charged at all times and available to receive telephone calls.  Those numbers have been provided to the court and are in the transcript.  I would further amend the orders by deleting the reference to subparagraph (c) so that there is no other option of agreed venue.  Currently it is clear, though unfortunately in my view, that one or both of the parties will not consent to the drop-off and collection of the boys from the front gate or the nearest street corner to their home.  That would be logical and practical and it gives a lot more security and respect to the boys and the relationship with each parent.

14. It is a far better situation if they understand there is some level of ongoing cooperation between the parents, and as the boys grow older, McDonald's as a venue for changeover must become more and more dated and objectionable.  Nevertheless, that is what the parties currently want.  I regard it as unfortunate even if there is little or no trust, and certainly the parties should not enter upon the home property of the other.  The nearest street corner or outside the front gate would be far more civilised and proper.  I say those matters for the parties to reflect upon.  Surely that is in the better interests of the three boys and convenience to everyone. 

15. For the purposes of the order then, the court will order - it will not be by consent but Mr O'Connell has volunteered to prepare an amended draft of the order covering the collection by the father of D from school and the return of all children to school on the Tuesday, the venue remaining at McDonald's but with the imprimatur that the wife, when making the children available for time to be spent with the father, does not without proper explanation have to wait for more than 45 minutes and there will be no other option of any other venue.  What I would hope that the parties would consider implementing themselves in substitution for what will be ordered would be a more local venue than McDonald's.

16. The above orders are to be made not by consent but by the court and are exclusively made in the best interests of the children.  Of necessity and to minimise the costs in this case and to deal with these limited issues, the court has proceeded by consent on an informal basis, identifying and listening to submissions and then resolving issues.

17. The issue of the provision and at all times the availability of a landline telephone has been raised.  Both parties currently have the landline telephone number of the other.  The mother is concerned that she has received improper telephone calls, she alleges, from the father.  I make no finding.  The matter is not fully in evidence before me.  I am trying to "nip in the bud" this issue before it may develop.  Given the ages of these boys, it is important that they each have the telephone landline number of both parents and the ability to ring both parents. 

18. I require the parties to retain their current landline and telephone number and not change that telephone number without the agreement of the other or court order for proper reasons.  I wholly emphasise that I am not encouraging one or other parties to come back to court on this issue.  There are no indications to me that such a cost is a factor or that either party wants to wholly surrender their landline.  I will include an order that is not by consent that both parties retain their current telephone landline and telephone number. 

19. Having had further submissions from the parties, what I propose is that they each retain their telephone landline and number but that each of them are to ring the home of the other only for genuine purposes.  Those purposes are to include any conversation with the children who may then be in the home of the other or for any medical reason or if it is of or related to the orders, and in particular collection and delivery of the children on any occasion of changeover, or otherwise related to their education or extended family matters.  What I intend is to eliminate the possibility of late-night abusive or improper telephone calls, although there is no evidence whatsoever before me of any such calls.  I do not imply or accept that such calls have been made from one to the other. 

1. The issue that has arisen is whether or not the mother and father or both of them should be restrained from issuing any further applications in this court.  What is particularly relevant is paragraph 55 of the report of Ms J where that experienced psychologist advocates the need for an order to prevent the mother from making further applications as to the same issues that have already been dealt with by the court and to bring closure and allow the parties, and more particularly the children, to move on with their lives.  I wholly endorse that sentiment.  I have seen from the file a number of applications and amended applications that have been issued primarily by the mother. 

2. The present circumstance is that after taking instructions from her client, Ms Vohra has indicated that the father would be accepting of such an order.  Indeed he indicated that he would embrace the order, notwithstanding that the evidence might be more directed to the applications which the mother has seen fit to issue.  The court has a power under section 118 at any stage of proceedings to order that a person shall not without leave of the court institute proceedings.  It is clear to me, and I so find, that some of the applications, and in particular orders sought therein, are either frivolous or vexatious.  In any event, they are certainly numerous.

3. What I propose to do - and after it was explained to the mother and there was some level of discussion in court and it is now agreed to by her - is to restrain them mutually from issuing any other proceeding in this court or in the Federal Magistrates Court or in any court exercising appropriate State jurisdiction on these related issues of and concerning each of their three children unless they first obtain the consent of a Registrar, Magistrate or Judge of the court.  Ms Vohra has handed to me a draft of orders sought, and as to that paragraph 2 only, and on the basis that it is mutual and that the consent will be given either by a Registrar or thereafter a Magistrate or a Judge, I propose to make that order by consent and would ask Mr O'Connell to include that order within the consent orders that he is preparing for the court's consideration. 

4. The Independent Children's Lawyer seeks no orders as to costs, even where costs have been reserved, and they do not participate in any consideration of the costs issues.  There is before me an application for costs made by the father.  The mother wholly opposes any costs orders.  There are two previous orders of this court where the father's costs have been reserved and they are in the orders of Dessau J pronounced 1 June 2006 and the orders of Senior Registrar FitzGibbon pronounced 3 April 2006.  I have read those orders and the transcript accompanying those orders.

5. The costs of the father were reserved on both occasions.  The mother has not elected to appeal or further develop those issues.  The primary responsibility of the court in a costs application is to understand that in principle, parties should pay their own costs.  The exception is when the court determines that it is just for a costs order to be made.  In this case I have read and understand the circumstances of the order made by the Senior Registrar and then the Review process and the dismissal of the mother's application as ordered by Dessau J.  They were discrete proceedings, and on the basis of the current orders, and now overviewing all of the financial circumstances and the conduct of the parties and generally having regard to the provisions of section 117(2A), it does remain clearly, in my opinion, just that the costs of and incidental to each of those earlier applications are ordered to be paid by the mother to the father. 

6. I have emphasised to the mother that those prior orders were made by each of the earlier judicial officers and what I am reflecting upon is whether the costs reserved should be activated in the current financial circumstances.  The mother has had the financial wisdom to acquire a home and by inheritance has been able to discharge the mortgage.  She is in a capital circumstance a more secure financial position than the father.  That may be because of the inappropriate or wasteful manner in which the father has dealt with past assets but it is not necessary for me to conclude any particular judgment on that issue.

7. I am aware of the income of the parties.  Both are in employment.  The mother's income is supplemented by Centrelink payments and certain benefits to which she is entitled.  Ms Vohra has roundly submitted that the father owes $20,000 in legal fees.  Her primary submission was that the father be paid a lump sum of $10,000 as a substantially discounted sum for past costs.  I will not take that broad brush approach.  I am primarily persuaded by the facts and circumstances of the earlier costs orders, and whilst it may have been more appropriate for those orders to have been actually made by Dessau J on completion of the Review, I do propose to make orders whereby the mother is responsible to pay to the father the costs of and incidental to the application and preparation and appearances before Senior Registrar FitzGibbon on 3 April 2006 and before her Honour on 1 June 2006.

8. I otherwise do not regard it as just to make other cost orders of and incidental to the presentation and preparation of the matter before me this day.  My orders for costs are therefore confined to the two prior occasions where costs have already been reserved.  Ms Vohra has indicated that those costs may approximately total $3,500, though a taxable bill in appropriate form has already been prepared and forwarded to the mother.  That document is not in evidence.  I do not comment upon the document.  It will be necessary to go through an appropriate taxing procedure as I will not simply select a figure where the mother is a litigant in person and will genuinely want to peruse the items before the court on taxation.  I well understand that it might become a cumbersome procedure and add costs.  That would be most unfortunate but it might simply be the reality and the best way to achieve any form of just quantum. 

9. Accordingly, I declare that in the circumstances of this case it is just to make an order as respect to costs reserved on those two earlier occasions, but otherwise I make no further order as to costs.  That order is clearly not by consent, and insofar as there have been orders made for the costs of the Independent Children's Lawyer to be reserved, the previous order in that regard can now be discharged.

10. Counsel have indicated to me at the conclusion of this extempore judgment which has dealt with the particular issues as raised that minutes of order, inclusive both of consent orders and orders that will be made not by consent will be available to the court tomorrow.  I will require both counsel and the mother to attend court tomorrow to read, consider and then present orders to the court.  If there are issues they can be then further considered.  I will accordingly not pronounce any orders this afternoon and otherwise adjourn this matter over for conclusion tomorrow.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 27 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as JANCZEK & FENTON