Lightning and Servant

[2010] FamCA 229

FAMILY COURT OF AUSTRALIA

LIGHTNING & SERVANT [2010] FamCA 229

FAMILY LAW – CHILDREN – Dismissal

APPLICANT: Mr Lightning

RESPONDENT:	Ms Servant
FILE NUMBER:	BRC	11342	of		2008

DATE DELIVERED: 10 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 15 February 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr D Buckley of Rice Naughton Buckley

COUNSEL FOR THE RESPONDENT: Ms Walker-Munro of Counsel instructed directly

Orders

1. All outstanding Applications be dismissed.

2. Neither party is to institute any proceedings in this Court in relation to parenting matters of the children A born … June 2000 and J born … June 2003 except by leave of the Court and such application will in the first instance be listed before me or another judge should I be unavailable.

3. The Respondent pay the Applicant’s costs of and incidental to the Application in a Case filed on 8 October 2009 but less an amount of $7532.33 such amount to be set off against any indebtedness by the Applicant Father to the Child Support Agency.

4. The Mother have leave to reinstate the proceedings in relation to costs alone.

5. The Directions Hearing before Registrar Coutts on 1 April 2010 be vacated.

IT IS NOTED that publication of this judgment under the pseudonym Lighting and Servant is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11342 of 2008

MR LIGHTNING

Applicant

And

MS SERVANT

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Mr Lightning on 8 February 2009 for orders as contained in part D6 (1), (2), and (3).  In effect, what he was seeking is a review from the order of the Registrar Coutts of 1 October 2009, and also that the mother’s initiating application of 15 December 2008 be dismissed, and seeking an order to restrain her pursuant to the provisions of section 118 from proceeding further in this matter without the leave of the court.  He also seeks costs.  Mr Buckley, who appears on behalf of the applicant, the husband, has set out particularly good submissions to me which encompass virtually everything that I need to look at.

   RECORDED   :   NOT TRANSCRIBED

2. As appears from the submissions, which as I said I was particularly impressed with, the personal details of the parties are that the father is 36 years of age;  the respondent is 34.  There are two children of this relationship, A born in June 2000 and J born in June 2003.  The parties commenced cohabitation in 1999, married, and then separated on 23 May 2004.  An order was made on 25 August 2008 wherein inter alia the children were to reside with the parents in a shared parenting and time situation for seven days out of each 14.  I refer to and incorporate, and these are my reasons for judgment, the consent order of 25 August 2008 is extensive and indicates that an enormous amount of work went into the provisions of this order.  I note Mr Kirk SC was for the applicant father, and Mr Bartfeld, one of Her Majesty’s counsel, leading Ms Brasch, was for the respondent mother.  As I said, there is an enormous amount of work which has gone into that consent order, and I compliment the parties on agreeing.  They seemed to have agreed on everything. 

3. However, that was not as the mother saw it.  The mother decided that because the father had taken the children overseas and perhaps, and I’m not finding this as a fact, may not technically have complied with the orders, she sought orders in an application filed 15 December 2008 wherein she sought interim orders regarding the travel arrangements, may I say in passing that the children had already left in accordance with the order of August 2008,  and a reopening of the final orders made by the court on 25 August 2008 seeking substantial modifications in that order. 

4. Subsequent thereto there appears to be some mechanical and/or administrative concerns in that the husband, the applicant in this case, sought orders in relation to that order where he filed a response of 5 January 2009 seeking the application be dismissed.  On 26 February 2009 Registrar Coutts made an order that all applications be removed from the pending cases list.  On 21 August 2009 a letter was received by the father from the Family Court stating that the matter had been relisted for a directions hearing.  Subsequent directions were made, and the father then filed an application on 8 October 2009 seeking a review.  Certain orders, as I said, were made on the directions hearing on 1 October including an intake event, a children and parent’s issue assessment by Mr C, and was listed before the registrar for further directions on 21 January. 

5. The applicant’s case is that applying principles of Rice & Asplund which was decided on 21 and 22 November 1978, the Full Court inter alia said that the court should not likely entertain an application to reverse an earlier custody order.  It would need to be satisfied by the applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or at any rate some factor which was not disclosed at the preliminary hearing which would have been material.  These are not necessarily matters for preliminary submissions but they are matters which a judge should consider in his reasons for decision.  It does mean, and I do not take that to mean, that applications can be made outside the hearing date. I am mindful of the provisions of s 81.  I am also mindful of Division 12A where it is essential that the court endeavour as speedily as possible to determine a matter with the least cost and expense to the parties.  I now also say in passing that Rice & Asplund also indicates that the principles apply whether the original order was made by consent or after a contested hearing, and that is correct.

6. What then are the reasons for the mother wishing the matter to be re-litigated some four months subsequent to the consent order, an extensive consent order?  This appears in an affidavit which I take is the submissions of the respondent mother which I had ordered on 10 February and she sets it out in a very lengthy affidavit and it appears to me that she says that the reason why she brought this application was because the father went overseas. 

   RECORDED   :   NOT TRANSCRIBED

7. This going overseas is, first of all, clearly set out in the order, as I said, which was extensive, at order 49 et seq.  As I said, there may be, and it’s unnecessary for me to determine whether in fact there were technical breaches of such an order, but if in fact they were technical breaches, these are matters for enforcement, not matters which would trigger the whole rehearing of the application in accordance with the principles as applied because Rice & Asplund says that once, and I use the word, the “hurdle” is overcome, they say – and I am reading from the headnote:

   Once the court is satisfied that there is a new factor or a change in circumstances then the issue of custody should be determined in the ordinary way, applying the necessary principles.  That would mean, in my opinion, that the whole matter would have to be re-litigated, but there must be a matter of serious concern, as has been set out in Rice & Asplund. 

8. How then can a matter which could adequately be covered by way of an enforcement order whereby the person who is guilty of breaching the order could either be charged with an offence or he could be fined, all of the things which are open to us in the Act and rules, and it is not a matter for reopening the whole of the custody proceedings, and I use the word “custody” because of the words used in Rice & Asplund.  Naturally, of course, the matter is only a parenting matter nowadays which carries the same force and effect as the old appellation. 

9. The respondent then goes on and submits that I should take into consideration matters which arose subsequent to the date of the application.  These, she says, are of failed mediation between the parties and she sets out that in quite full detail in her submissions, but I can’t see where she particularises where it failed, where he breached a mediation agreement.  If that is the case, once again, I do not believe that that is sufficient to excite the jurisdiction of this court under the principles of Rice & Asplund.

10. One further matter.  Mr Buckley submitted that when the Registrar removed all applications from the pending cases list that in fact was tantamount to a dismissal.  Regrettably, I do not concede that.  I do not think that is the case, that it should not have been put on that list in my opinion.  It should either have been withdrawn or dismissed, as the case may be, but it is, in effect, put almost in purgatory, I think under the Catholic doctrine.  That is, it’s in a half-way house, it’s neither one thing or the other, and can be brought back by the application of either of the parties, and it was done so by the mother.  Naturally, of course, this has unfortunately increased the question of costs, and I will be hearing from the mother’s counsel as to her submissions why the mother should not pay costs on a party-party basis.

11. The other question is the application under section 118.  The father has said in his submissions prepared by Mr Buckley that there have been 42 appearances in the Family Court and the filing of 181 court documents.  I have not added up the number of applications that have been made to the court or appearances, neither have I added up the number of documents.  I can say, in passing, that the file is huge.  This has engendered an enormous amount of costs.  I refer particularly to the consent order where Senior Counsel Bartfeld came from Victoria, Kirk a Senior Counsel here as of course the Queensland bar, and Ms Brasch. The costs for that day alone must have been enormous, and unfortunately it appears as though that notwithstanding the work of counsel and the agreement of the parties that that has to a certain extent failed.

12. I think that both parties should stop applying to this court.  It appears that Mr C, who looked into this matter, has indicated that, as I opined, that the children have had enough.  They don’t want any more of this.  All they want to do is get on with their life, that they have in fact settled down, and, quite surprisingly to me, appears as far as he’s concerned to be handling the seven days very well.  But I don’t think that the children should be involved in any further litigation by either of their parents applying.  Therefore I’m more than satisfied, having dismissed the application, and I’m empowered to make such an order if I think so, and if I consider that it’s not only in the interests of the court, of the public moneys, if any are being expended on it now, but also in relation to the children’s welfare. 

    ORDERS DELIVERED

13. This further application is on the part of the applicant father that in fact the respondent should pay costs.  I, myself, am of the opinion in a case such as this, although naturally of course I must apply the principles as enunciated in 117, which is slightly different to what the High Court considered in Penfolds’ case, but I have to set out my reasons.  I don’t see why, seeing costs have always been at the total discretion of the trial judge.  However, in this case I have to consider whether in fact the respondent was in any way successful.  She was totally unsuccessful in this case.  I consider notwithstanding it has fallen from her counsel quite properly that she may have received advice, I think such advice was flawed.  I do not say it was wrong, as I already said I think it was flawed and not sufficient consideration was given, perhaps, I don’t know, to the extensive consent order. 

14. I am further of the opinion that I have to consider her income and assets, and I do so.  Taking into consideration that, I am more than satisfied she’s totally failed on this matter, and the matter of costs is within my discretion.  I take into consideration that she is not financially sound.  I also take into consideration that there is an amount of $7532 owing, according to the child support agency to them, not to the mother but to them, as I understand.  They are the ones that recover the amount.  Consequently, notwithstanding she is not financially sound, and I do not believe that I have to not find costs just because she’s not financially sound,

ORDERS DELIVERED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  23 March 2010