Klement and Glynn

[2009] FamCA 500

FAMILY COURT OF AUSTRALIA

KLEMENT & GLYNN [2009] FamCA 500

FAMILY LAW – COSTS – Fixed

APPLICANT: Ms Klement

RESPONDENT: Mr Glynn

INDEPENDENT CHILDREN’S LAWYER: Mr R Winter

FILE NUMBER: ADC 2056 of 2008

DATE DELIVERED: 13 May 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 13 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B McQuade

SOLICITOR FOR THE APPLICANT: Lempriere Abbott McLeod

COUNSEL FOR THE RESPONDENT: Ms E Nelson QC

SOLICITOR FOR THE RESPONDENT: Belchamber Legal

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr R Winter

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Robert Winter LSC

Orders

1. That the wife pay to the trust account of the husband’s solicitors on behalf of the husband the sum of ONE THOUSAND FOUR HUNDRED DOLLARS [$1,400.00] by way of costs such sum to be paid within six weeks of the date hereof.

2. That the Application in a Case filed by the husband on 24 February 2009 and the Response filed by the wife on 25 March 2009 be dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Klement & Glynn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2056 of 2008

MS KLEMENT

Applicant

And

MR GLYNN

Respondent

EX TEMPORE REASONS

1. This matter is back before me today having been adjourned from 25 March 2009.  That date was the return date of an application filed by the husband on 24 February 2009, wherein he sought certain injunctions until further order in relation to the residence of the child the subject of these proceedings and also an injunction in relation to removing the child from her school and, further, sought orders in relation to the child living with him and spending time with the mother.  That was supported by an affidavit of the husband filed on that same day, 24 February 2009.

2. When the matter came before me on 25 March 2009, Mr Hawkes, who appeared for the wife, tendered his client's response and an affidavit in support of his client's response.  In the response the only order sought was a dismissal of the father's application.

3. I was concerned at the fact that the wife's responding documents were only presented on that day, and I made comment to that effect in delivering my reasons for judgment.

4. It is important to reflect on the history of the matter in this regard.  As I say, firstly, the application was filed on 24 February 2009, the hearing date was 25 March 2009, the application and supporting affidavit were served on about 9 March 2009, yet there was no compliance with the Rules by the wife or her solicitors on her behalf which require any response to be filed at least a clear two days before the return date of the application.

5. There was no justification put to me on the day as to why the response was not filed in sufficient time to enable the matter to be properly considered and dealt with at that hearing.

6. In any event, I determined, after hearing submissions of counsel and also, particularly, taking account of what the independent children's lawyer said, to make orders by way of injunction during the period of the adjournment in terms of the orders sought by the father.

7. It is important also to record - and I have heard submissions about this today - how the matter progressed in the context of correspondence passing between solicitors and information coming to the father.  The father's position is that his solicitors received a letter on 5 February 2009 from the mother's solicitor, and that is annexed to the father's affidavit filed on 24 February 2009, wherein the mother advises that the child would be travelling to Melbourne during the coming weekend and that it was likely that the child would be travelling to Melbourne during further weekends into the future when the child is in the care of the wife.

8. As Ms Nelson has pointed out - and it is obvious, now I have read the letter - the wife omitted to provide what I would describe as sufficient information in that correspondence to properly inform the husband as to what was proposed, why it was proposed and what the length of time involved was.  There was absolutely nothing in that letter which would provide the husband with any comfort as to what was indeed happening with the child and why the child was being taken to Melbourne and for what period of time that was intended to be.

9. All the wife’s solicitor said in the letter was that this was "due to unforeseen commitments and due to the ongoing nature of these commitments".  Not unexpectedly, the husband's solicitor then sent a letter on 10 February 2009 to the wife's solicitors seeking clarification of the issue and seeking more detail in order that the husband was then fully informed of what was happening.  However, that letter was not responded to.

10. The father was naturally concerned about what was occurring and the lack of information being provided by the wife.  Thus, he, as I understand it, sought and obtained some further information from the child's school, which indeed caused him further concern as to what was happening with the child, both in terms of travel and the child being tired and missing school and the like.

11. Given the failure by the mother to supply proper information, and indeed to respond to an appropriate letter sent by the husband's solicitors, in my view the husband had no choice in the circumstances but to bring the application that he did.  Then, to repeat, the mother did not respond in time to allow the matter to either be resolved before the hearing or, indeed, to enable the hearing to proceed on the basis of full information.

12. I was concerned, as I expressed on the day, as to what was happening in terms of the child travelling to Melbourne and the impact upon the child of being taken out of school.  On 25 March 2009 it was put to me that there was no present intention to move to Melbourne but there was no certainty about that.  I required Mr Hawkes to indicate whether there was any suggestion that the child would be taken to Melbourne between that date and the end of the school term.  Mr Hawkes was able to tell me that there was no such suggestion on behalf of his client, but as to beyond that, as Ms Nelson rightly says, Mr Hawkes did not provide any certainty as to what the future might hold in relation to that issue.  It depended, apparently, upon the circumstances of the wife's partner's employment.  I do not have a copy of the transcript, but my memory is that I was told that that issue would be sorted out one way or the other by the end of April 2009, and that was one of the reasons why I adjourned the matter to today.

13. In my view, in those circumstances, on the basis of what I was told on 25 March 2009 - and I made this clear in my reasons for judgment - there was an obvious need to make the orders that I did during the period of the adjournment.

14. Today I have before me an affidavit of the wife's filed on 8 May 2009, wherein the wife clarifies the position with her partner's employment and says quite clearly that she and her partner and the child are living in their home at N in Adelaide’s suburbs.  There is no suggestion that she will need to travel to Melbourne.  She says that her partner has resumed work in the Adelaide office of his employer and the time previously spent by him in Melbourne was in order to fulfil a contract between his employer and a customer.

15. Ms Nelson has put to me that in fact the wife's partner owns or runs the business in which he is employed.  That is not how paragraph 5 reads, and if it is inaccurate then that concerns me greatly.  However, at this stage I accept at face value what the wife has said.  She has sworn to this and it is now on file.  Thus the position is that she is in Adelaide, the child is in Adelaide, and there is no suggestion of any move to Melbourne.  Also, although it is not in the affidavit, today her counsel has told me that there is no intention on the part of the mother to remove the child from her current school, being M Primary School.

16. In the circumstances, what the husband seeks today is a continuation of the orders that I made on 25 March 2009.  The wife seeks that those orders not be continued.  I note that I made the orders during the period of adjournment, and thus if I do not continue the orders today, they automatically cease.

17. The wife for some inexplicable reason, has not sought to amend her response to seek further orders from this Court but she has chosen to include in the affidavit that has been filed a paragraph setting out orders that she says she seeks.  That is completely inappropriate, and I do not quite understand what is happening.  Her solicitor is a very experienced family law practitioner and her counsel likewise.  In any event, that is what I am presented with and, as Ms Nelson rightly points out there is therefore no application before me for further orders and that should be the end of it.  Considering for the moment though the order that the wife seeks in paragraph 9 of her affidavit, namely that, "if a party is unable to personally care for [the child] by reason of travel interstate or overseas for a period in excess of 36 hours, the child shall live with the other parent during the period of such travel".  There is absolutely no evidence that the mother presents to indicate a need for any such order, and Mr McQuade concedes that.  Apparently the husband sometime in the not too distant past has travelled overseas and been away for a period of 36 hours or 38 hours, and that is all Mr McQuade can point to in terms of anything in support of this order sought.  However, in the absence of any evidence that there is a need for this - and, indeed, I note that the independent children's lawyer does not support any such order - even if the order was sought in an application I would not be prepared to make any such order today.

18. The primary issue today is whether I continue my order of 25 March 2009 or not.  In that regard, Ms Nelson puts to me that I should still be concerned and, indeed, suspicious of what the wife is saying or, rather, what the wife is not saying to this court about her plans for the future and that that is sufficient to require a continuation of the order.  Mr McQuade says, though, the wife has now put an affidavit on file which sets out her position quite clearly and there is, therefore, no basis for a continuation of the orders.

19. Mr Winter, the independent children's lawyer, suggests that it is time these parties started to trust each other and that, given that the wife has now explained herself and clarified her position in her affidavit and that is all before the court, he does not support a continuation of the order.

20. For my part, I do not propose to make any further order.  The wife has filed an affidavit which sets out her position, both in terms of where she intends to reside with the child and also, as I have said today, it has been put to me by her counsel that she has no intention of removing the child from M Primary School.  I am prepared to accept that and allow the matter to proceed on that basis.  But of course, if it turns out that that is not in fact the case and we have not been told the full story by the wife, then not only will I be very concerned about that but there may be serious consequences that flow in terms of how that matter is dealt with by this court.

21. The other issue that I have to consider today is the issue of costs.  There is an application before me by the husband, but before I come to that, an issue that has arisen today is the progress of this matter along the case management pathway.  Currently the matter is listed before a Registrar on 2 June 2009.  The anticipation was that on that day this matter would be listed for a first day of trial.  However, in the background there are criminal proceedings in the Adelaide Magistrates Court, whereby the husband is charged with assaulting the wife's partner.  That matter is listed for a pre‑trial conference in July.  Ms Nelson tells me - and Mr McQuade has not suggested otherwise - that at that time it can be expected that, if the matter is proceeding, a hearing date would be fixed relatively quickly in the Magistrates Court.  The question then is whether I further adjourn the hearing before the Registrar to await the outcome of the criminal proceedings or whether I leave that in place in the knowledge that a first day of trial probably would not be set anyway until sometime in September and by then the criminal proceedings may be disposed of.  The problem is that if they are not and this has been put to me by Mr McQuade - and supported by Mr Winter - that might very well impact upon a successful first day of trial.

22. I understand that sentiment but I am not, frankly, convinced by the submission.  I am not convinced that the first day of trial still cannot proceed even if the criminal proceedings have not been disposed of.  Thus I am going to leave in place the hearing on 2 June 2009 on the basis that at that time the Registrar will list the matter for a first day of hearing presumably, as I say, sometime in September, and obviously it can be perhaps late in September to give more time for the criminal proceedings to be disposed of, because I do accept that is the ideal position.

23. I now turn to the question of costs.  The father, through his counsel, seeks an order for the costs of the hearing on 25 March 2009 and the preparation for that hearing and also the costs of the attendance today.  The amount sought is $2,000 by way of solicitors' costs and counsel fees.  That has not been split up, but that does not seem to be unreasonable to me and Mr McQuade has not spoken against that.  Mr McQuade though has indicated that his client would oppose any order for the costs of today in favour of the husband and he in turn seeks an order for costs in this client's favour in relation to the hearing today and he seeks the sum of $1,000.

24. The basis of that submission is that today the husband has, despite the affidavit filed recently by the wife, still sought to continue the orders made on 25 March 2009 and he has been wholly unsuccessful in that regard.  Ms Nelson has responded and indicated that it has been the conduct of the mother which has led to the necessity for the application in the first place and the hearing on 25 March and the further hearing today and, on behalf of her client, she opposes any order in favour of the wife.  Mr Winter makes no submission on the issue of costs.

25. As with any application for costs, this application is governed by s 117 of the Family Law Act 1975 and, as Mr McQuade has rightly pointed out, the usual position is that each party has to bear their own costs, and that is provided for in subsection (1).  However subsection (2) provides:

    If the court is of the opinion that there are circumstances that there are circumstances that justify it in doing so, the court may ... make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

26. Then subsection (2A) sets out the matters which the court must have regard to in considering what order, if any, should be made.  In looking at that, obviously there is the issue of the conduct of the wife that I have outlined in my earlier reasons for judgment in relation to these proceedings.  Whether that is looked at under paragraph (c) or paragraph (g) does not matter.  That is certainly a highly relevant circumstance.

27. In relation to the application itself and the hearing that took place on 25 March 2009, in my view there are circumstances here - namely, the conduct of the wife which I have outlined - which justify an order for costs in favour of the husband.

28. In relation to the hearing today, given the way the issues have developed and the fact that the wife has filed an affidavit clarifying her position, as was anticipated, in my view there should be no order for costs in favour of either party.  That said, Ms Nelson has indicated on a very rough basis that of the $2,000 sought overall by her client, $500 to $700 might relate to today. 

29. Thus, I propose to make an order for costs in the sum of $1,400 in favour of the husband.

30. In relation to time to pay, Mr McQuade seeks two months for his client to pay that amount on the basis that it is not an insignificant sum.  Ms Nelson has indicated her client would oppose that and suggests that the wife could pay it within 30 days, given his knowledge of her financial circumstances and what he pays, for example, for her and her comings and goings, as Ms Nelson has expressed it.

31. My difficulty is that no‑one has referred me to any evidence in this case that sets out the respective financial circumstances of the parties, thus I am totally in the dark about that.  I obviously know what their respective positions are in terms of occupation and work, but only in a general sense.  $1,400 is not an insignificant sum, and thus I propose to allow the wife six weeks to pay it.

I certify that the preceding 31 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 13 May 2009.

Associate