KRAUSE & ALLARD
[2010] FMCAfam 211
•19 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KRAUSE & ALLARD | [2010] FMCAfam 211 |
| FAMILY LAW – Parenting – final consent orders on all material issues – minor issues of dispute remaining. PRACTICE AND PROCEDURE – Costs in parenting proceedings – conduct of the parties to the proceedings – each party to bear own costs. |
| Family Law Act 1975, s.117 |
| Applicant: | MS KRAUSE |
| Respondent: | MR ALLARD |
| File Number: | BRC 2110 of 2008 |
| Judgment of: | Demack FM |
| Hearing date: | 19 February 2010 |
| Date of Last Submission: | 19 February 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 19 February 2010 |
REPRESENTATION
| Solicitors for the Applicant: | James Noble Family Law |
| Solicitors for the Respondent: | Byrne Legal Group |
ORDERS BY CONSENT
That the children [X] born [in] 1996, [Y] born [in] 2000 and [Z] [in] 2002 (“the children”) live with the mother and the father in a shared cared arrangement as follows:
(a)In week one with the father from after school Monday to before school the following Monday commencing Monday 25 May 2009; and
(b)In week two with the mother from after school Monday to before school the following Monday commencing Monday 1 June 2009.
That the mother and father have equal shared parental responsibility for the children.
That the children spend time with the mother and the father on Mother’s Day and Father’s Day on the basis that if they would not otherwise be with that parent on such days the other parent’s week shall conclude at 9.00am on the Sunday morning.
That the children spend time with the mother and the father during the Queensland School holidays and Easter public holidays as follows:
(a)With the mother for the first half of the holidays in 2009 and the second half in 2010 and alternating thereafter;
(b)With the father for the second half of the holidays in 2009 and the first half in 2010 and alternating thereafter;
(c)Christmas day shall be spent with the parent who has the first half of the Christmas school holidays;
(d)The parent with whom the children are living on Christmas Day shall cause the children to telephone the other parent between 10.00am and 11.00am on Christmas Day;
(e)If the Easter public/religious holidays do not coincide with the school holidays then notwithstanding any other order in these orders, and unless otherwise agreed in writing between the parties, in odd numbered years the father shall spend time with the children from not later than 3.00pm on Holy/Easter Thursday until 2.00pm on Easter Sunday and the mother shall spend time with the children from 2.00pm Easter Sunday until 6.00pm Easter Monday and unless otherwise agreed in writing between the parties, in even numbered years the mother shall spend time with the children from not later than 3.00pm on Holy/Easter Thursday until 2.00pm on Easter Sunday and the father shall spend time with the children from 2.00pm Easter Sunday until 6.00pm Easter Monday;
(f)If the mother spends time with the children in the first half of the school holiday period then the weekly rotation shall recommence with the mother spending the first week of the next school term with the children; and
(g)If the father spends time with the children in the first half of the school holiday period then the weekly rotations shall recommence with the father spending the first week of the next school term with the children.
That the parents shall:
(a)not provide the children with their own mobile telephones without the other parent’s consent; and
(b)each be able to telephone the children on the Thursday evening between 7.30pm and 8.00pm whilst in the other parent’s care.
That for the purposes of handover, each parent shall collect and return the children to and from school for any handovers that occur at school times.
That in the event that there is a handover of the children that does not occur at school times, the changeover shall be at the [omitted] Service Station at 12.00pm unless otherwise specified in these orders.
That neither parent shall denigrate the other parent or a member of the other parent’s household or family to or within the hearing or presence of a child and shall not allow any other person to do so.
That neither parent shall discuss any previous, present or future Court proceedings between the mother and father or any other adult issues in which the mother and father are in dispute with or in the hearing or presence of a child when the child is in that parent’s care and shall not allow any other person to do so.
That the mother and the father will ensure that whilst the children are in their care:
(a)The children will travel in a vehicle fitted with sufficient seating and safety restraints for the children; and
(b)Abide by all relevant road rules, including drink driving and speed limits. The parties will not undertake lengthy or interstate travel by road with the children unless appropriate travel arrangements are made by the parents including overnight breaks should that become necessary.
That the mother and father keep the other informed of the name and contact details of any general medical practitioner or medical specialist, psychologist, counsellor, alternative therapist, dentist or orthodontist upon whom the children attend.
That any general medical practitioner or medical specialist, psychologist, counsellor, alternative therapist, dentist or orthodontist upon whom the children attend is hereby authorized to provide to each parent with details of the children’s attendance upon that person including but not limited to details of proposed treatment and treatment options.
That each parent shall ensure each child attends any appointments with any general medical practitioner or medical specialist, psychologist, counsellor, alternative therapist, dentist or orthodontist when the child is in that parent’s care and provide notice to the other not less than two (2) days before-hand if that parent is unable to do so and give the other parent the opportunity to take the child instead. Each parent shall as far as possible make any such appointments during the times the children are to be in their care.
That the mother and father shall use their best endeavours to utilise the same medical practice for the children for their future health care and treatment and that any future change to the medical practice be agreed between the parties.
That each parent shall forthwith notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident the child suffers when the child is in their care.
That each parent shall be hereby authorised to obtain information relating to each child from that child’s school at that parent’s expense.
That both parents be entitled to attend at any school or extracurricular activities to which the parents are invited including but not limited to parent/teacher interviews, assemblies, excursions, concerts and sports days. Each parent will ensure that the children attend all schooling and extra curricular activities whilst the children are in their care. Neither parent shall arrange extra curricular activities which the children are required to undertake within a period whilst in the care of the other parent without the other parent’s consent.
That each party to notify the other in writing within seven (7) days of any change of address and contact telephone numbers.
That the parents shall continue communicate via the “communication book” presently in existence. Each parent shall use that book to communicate to the other the details relating to the day to day care of the children (including details of any medical appointments, any illness or medical condition they may have, details of any medication they require, arrangements for their extra-curricular activities, progress with school assignments or activities, or any other information relevant to each child’s well-being). Both parents shall use their best endeavours not to be critical of the other in that book and use the book for the purposes of providing information relevant to each child’s health and well-being only.
That in the event Ms F ceases to be in a relationship with the Father and reside with him on a day to day basis and the father does not change his employment to enable him to be personally available to care for the children on a day to day basis when the children are with him pursuant to order 1 hereof, then the mother shall have liberty to relist the matter for further interim orders upon the giving of fourteen (14) days prior written notice.
THE COURT ORDERS
That each party pay their own costs of and incidental to this application.
IT IS NOTED that publication of this judgment under the pseudonym Krause & Allard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 2110 of 2008
| MS KRAUSE |
Applicant
And
| MR ALLARD |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
The father seeks his costs from, effectively, mid-December 2009. The costs have been said by the solicitor for the father, on an indemnity basis, to be $3,114, exclusive of GST, including the time for Court this morning.
The parents have had, for some years now, litigation in this jurisdiction. The proceedings commenced, as best as I can tell, with property matters in April 2008. We are now coming up to the second anniversary of the parties being in Court. At some point in time, they were able to conclude their property proceedings, and the parenting proceedings have continued thereafter.
An order was made in February 2009, for the parents to have family counselling, and a family report to be prepared. The report was prepared by Sue Lewis, a very experienced family report writer, and provided to the parties at the end of April. The report included that the counselling which had been ordered pursuant to the order of 2 February 2009, needed to stop. It wasn’t being successful. Ms Lewis suggested, at that time, that there could be some counselling specific to the father. The father could benefit from a parenting program, which I understand has been done. She also said, at paragraph 8.27, that the parents would benefit from separately completing post-separation counselling such as that offered by Relationships Australia.
The father, as best as I can understand it, has remained represented by Byrne Legal Group throughout. The mother has, at least once, ceased to be represented, and then her solicitors have come back onto the record again. At the appearance before me on 11 December 2009, the mother was represented, as was the father. By that point in time in the litigation, the parties were close to an agreement for final orders. The final orders which they were in the throes of agreeing to, were for the most part, and for the central issues, settled, and are those which are still agreed to, to this day. They would have [X], who was born in 1996, and [Y], who was born in 2000, and [Z], who was born in 2002, live with each parent for a week about. They would have, the mother and father, retaining equal shared parental responsibility.
Within their framework of ongoing discussions, came the issue of a phone call during the time when the children aren’t with the father, on one evening during that week, and also an issue to do with the communication book. The order which the parties had otherwise agreed on for the communication book, read that:
The parents shall continue to communicate via the “communication book” presently in existence. Each parent shall use that book to communicate to the other the details relating to the day to day care of the children (including details of any medical appointments, any illness or medical condition they may have, details of any medication they require, arrangements for their extra-curricular activities, progress with school assignments or activities, or any other information relevant to each child’s wellbeing). Both parents shall use their best endeavours not to be critical of the other in that book and use the book for the purposes of providing information relevant to each child’s health and wellbeing only.”
That order, agreed to by the parties, provides a great deal of particularity as to what may or may not be included in the communication book. It would seem to me to be indicative of the poor relationship between the parents. How the parents have come to a point where they consider that they can, in the best interests of the children, have equal shared parental responsibility, and have the children move from household to household, one week each, but need this level of prescription with respect to how they might communicate with each other, is not easily understood by me. I have, today, spoken with the solicitors appearing on behalf of the mother and the father, to urge their clients to consider the post-separation counselling which I note was recommended by Sue Lewis, as long ago as April 2009.
Mr Byrne, in seeking his costs, which included reserved costs of
11 December, says that his client has incurred this extra $3,000-and-some dollars, because the mother has been slow to finalise this matter. The issue of the phone call in the off week has been no longer pressed by the mother. The only issue which remained to be pressed was some attention further to that clause to do with the communication book. The mother sought an order that was to the effect that the parties would, themselves, personally attend to that communication. That has been opposed by the father on the basis, it is said, of his illiteracy, such that he willingly takes the assistance of his partner, in scribing on his behalf.
On the basis that the order which has already been agreed to is so detailed (such that I have difficulty in understanding how parents who need such a level of detail, can manage the requirements which are surely necessary for it to be in the best interests of the children, that they live a week with each) I was not minded to add further prescription to that order. I have let it be known, though, that if the father, indeed, is having somebody else write on his behalf, then it would be prudent for him to be initialling such entries to indicate that although he is not the person scribing, the words that are used, and the sentiments contained therein, are his.
It is the parents who communicate through the communication book, and it is clear from the order which had been agreed, that it would be the parents who would communicate. The mother, it seems, has formed the view that if the writing isn’t the writing of the father’s that means she is communicating with someone other than the father. The submission made on behalf of the father is that if the handwriting is not his, that does not mean that the words and the sentiments contained therein, are not his, but rather, that someone is scribing on his behalf. The level of trust between these parties, it seems to me, is so desperately low that the mother is unable to accept that that might be the case, and the father is unable to see that that might be a valid issue for the mother.
Section 117 of the Family Law Act1975 (“the Act”) says that subject to subsection (2) and some other relevant sections, each party to proceedings under the Act shall bear his or her own costs.
It is very much, it seems to me, standard practice within family law matters, for parenting matters to be unusual if they attract a costs order. It is usually said to be the case that the concerns raised by parents with respect to what is in the best interests of the children, are properly the province of this jurisdiction, and if they need to be agitated through to final hearing, and if the agitation requires some level of expense on both sides, then so be it, for it is the case that what is in the children’s best interests, must be firmly placed before the courts, and parents must have an opportunity to attend to these matters, in a meaningful way.
The submission made on behalf of the father is that the matters raised by the mother were unnecessary, bordering on vexatious, if not actually vexatious, and that the father has gone to an extra expense in the order of $3,000-odd, post December, to end up with orders which were those which were agreed to, otherwise, at that time, that one of the arguments raised by the mother with respect to the phone call on the off week has been abandoned by her, and the issue to do with the authoring of the communication book has been attended to by me without any further order being made.
It seems to me that I have no particular information in front of me in terms of the financial circumstances of each of the parties. I accept that they have both experienced the costs of litigation for the last two years, and that that cost is a burden on them both. There is nothing before me, in particular, which would demonstrate one person’s greater financial capacity than the other.
In terms of the conduct of the parties to the proceedings, the submission here, made by the father, seems to me to relate to this in particular, that the mother has been slow to finalise the process, and it is said by the father that it is because the mother has been slow to finalise the process that these last three appearances have been required, and that nothing further has been advanced or succeeded by the mother since those times.
The only other provision within s.117(2)(a), which I would perceive to have any relevance to the arguments before me, is subsection (c), “Whether any party to the proceedings has been wholly unsuccessful in the proceedings.” The mother has not been successful today in having me make an order which is in the terms that she seeks. Having said that, I have made it clear to the solicitor for the father that I will not make an order, but I expect his client to be placing his mark on the document to indicate that the contents come from him, as opposed to somebody else. Otherwise, I was satisfied that the order which was agreed to was clear enough, on the face of it, that they continued to communicate via the communication book, and that it be the parents who do that, not somebody else, and that the mother needed to know that the communication, if not written in the father’s hand, was, in fact, his communication.
The reason, as I would understand it, primarily, that parties in parenting proceedings would, in the usual course of events, bear their own costs, are because the reality of litigation in family law, brings with it the emotional overlays of the disintegration of an intimate relationship, where the law focuses on something other than that disintegration, insofar as the focus is on the best interests of the children. But none of that can take away from the difficulties of litigation, where the parties are trying to separate their emotional responses to their former partner, to the focus on the best interests of the children.
It is submitted on behalf of the father that it has been the mother’s unreasonable behaviour which has taken the father to this added cost. It is submitted on behalf of the mother that the mother has been attempting to resolve the matter, but has found that she is receiving no capacity to resolve the matter from the father.
The court has no magic wand to help the parents work out a way of communicating better with each other. The court has no capacity to find where blame lies in situations where the emotional experiences of each of the parents comes from their realities, and their experiences. That one party is trying to resolve a matter in a timescale, and in a method which the other party is resisting, does not make one party more right than the other.
The father’s submissions are that the expense has been wholly arising from the actions of the mother. I cannot say that that is anything other than the father’s experience of his reality. It doesn’t make it the fact.
It seems to me that this case illustrates why, in the usual course of parenting proceedings, each party bears their own costs. They have struggled to resolve their parenting issue. They have taken the assistance which is open to them, with having lawyers assist them with that. They have taken other assistance which is available to them through the preparation of a family report, and the expense which is associated with that. They have been able to agree on many issues, but as is a common experience for many people in this court, and it would seem for these parties, that finalising the last bits of their order has been difficult for them. Whether that is a result of one parent being unnecessarily difficult; or whether, in fact, it arises from a parent being overly cautious or concerned; whether, in fact, it is a manifestation of the ongoing lack of communication between the parents, I cannot say, and I cannot find. That, it seems to me, is why each party bears their own costs. I will not make a costs order.
I thank the lawyers for their assistance with this matter, and I urge them to speak with their clients again about a post-separation parenting course, and remind them of the contents, so long ago, in Sue Lewis’ report in April 2009.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Demack FM
Associate: E Crutchfield
Date: 9 March 2010
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