Macri and Florio
[2010] FMCAfam 340
•9 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MACRI & FLORIO | [2010] FMCAfam 340 |
| FAMILY LAW – Costs – clarifying order. |
| Family Law Act 1975, s.117 (1)(2) |
| Applicant: | MS MACRI |
| Respondent: | MR FLORIO |
| File Number: | CSC 214 of 2009 |
| Judgment of: | Willis FM |
| Hearing date: | 11 March 2010 |
| Date of Last Submission: | 11 March 2010 |
| Delivered at: | Cairns |
| Delivered on: | 9 April 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Williams Graham & Carman |
| Solicitors for the Respondent: | O’Reilly Stevens Bovey Lawyers |
| Independent Children’s Lawyer | Mr Stephen Todd |
| Independent Children’s Lawyer | Vandeleur & Todd Solicitors |
ORDERS
That the Father pay the Aunt’s costs of and incidental to the interim hearing on 11 March 2010 inclusive of an amount for two hours of attendance at the interim hearing, a further hour to cover preparation for that hearing and the costs thrown away on correspondence written by the Aunt’s solicitors to the Father’s solicitors on the issue of the child attending Church during the December school holiday period, such costs to be fixed at $720.00 to be paid within 45 days of the date of this Order.
That there be no Order as to costs between the Father and the Independent Children’s Lawyer NOTING that the Independent Children’s Lawyer, whilst entitled to costs, did not press such an application on the basis that it was not in the child’s best interests for him to do so.
IT IS NOTED that publication of this judgment under the pseudonym Macri & Florio is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
CSC 214 of 2009
| MS MACRI |
Applicant
And
| MR FLORIO |
Respondent
REASONS FOR JUDGMENT
On 31 August 2009 Interim Consent Orders were entered into between Ms Macri (the applicant Aunt) and Mr Florio (the respondent father) and the Independent Children’s Lawyer Mr Stephen Todd.
The child who is the subject of the orders is [X] born [in] 2001 (now 9 yrs and 9 months). The litigants in this matter are the child’s father and former husband of the child’s mother and the child’s Aunt – she being the sister of the mother. The mother tragically passed away in late 2008 a month or so after her marriage to the father with whom she had been in a relationship for some years.
The litigation between the Applicant and Respondent is progressing to a final hearing.
8th March 2010
At the mention of this matter on 8 March 2010 an issue was raised by Mr Lago Solicitor for the applicant Aunt in relation to the terms of the Interim Consent Orders. Making reference to the relevant Orders as the second 1 (a) and 1 (b), Mr Lago indicated that he had written to the parties seeking their agreement that the Interim Consent Orders have a clause included to remove any doubt as to what is to happen in the event of a long week-end. Mr Lago submitted that there were various public holidays coming up on the Friday or Monday and he sought agreement from the other two parties (being the respondent father and the Independent Children’s Lawyer) that the usual order extending the time to the Monday /or Friday in the event of a public holiday be inserted into the wording. Mr Todd and Mr Jones who appeared on that day for the father indicated their agreement to that clarification or amendment to the Orders. The consent amendment was agreed to
8 March 2010.
On 8 March 2010 Mr Todd the Independent Children’s Lawyer raised an issue which he maintained had caused the parties to engage in prolonged correspondence and disagreement regarding the alleged responsibility of the Aunt to take the child to Sunday school during the recent Christmas school holidays. Mr Todd indicated that there appeared to be some confusion between the parties as to the Aunt’s obligations under the Orders to take the child [X] to church during the half of the holiday periods that [X] spent with the Aunt. The orders referring to the one half of the holiday period are set out at Order 5 (a) of the interim consent orders. The father interpreted the Orders as requiring the mother to ensure the child attended church on Sunday including throughout the school holidays and the mother did not accept that this was an obligation pursuant to the Orders.
It was suggested by Mr Todd that the disagreement as to the Aunt’s responsibility to take [X] to Sunday school during the school holidays (and not just each alternate week-end) was in his view caused by the absence of a clause which is common in Orders which specifically states that the arrangements which apply to each alternate weekend are suspended during the school holiday periods. Mr Todd suggested that there were probably two further periods of school holidays between now and when the matter would come on for trial, and for the sake of five minutes on that afternoon, it may be worthwhile clarifying that issue at the same time as making the amendments regarding public holidays as suggested by Mr Lago.
The clause which Mr Todd and Mr Lago referred me to was the clause, referred to as the second 1 (a)[1] which made reference to the Aunt delivering the child to Sunday school on the alternate Sunday of the alternate week-ends that the child spends with the Aunt. Mr Lago indicated by way of an oral application that it was his clients desire to be able to go away on holidays with [X] and not be bound by an alleged obligation connected with the regular alternate week-end contact.
[1] As above.
Mr Jones appeared on behalf of the father on 8th March 2010, having received my leave to do so given that he is a legal practitioner newly admitted in 2010 and his name did not yet appear on the roll of High Court practitioners.
Having heard the submissions of the Independent Children’s Lawyer and Mr Lago, Mr Jones responded to the Court as shown in the transcript:
Your Honour, the reason that my instructions are that it is actually missing from the orders because that was the intention of the orders. That was something that took up quite a bit of discussion on 31 August at the last mention date with respect to the importance it was to the father to actually have the child, and your Honour, a decision of the late wife as well that there would be attendance at Sunday School each and every Sunday. So you Honour, we don’t actually consent to the addition of the suspension because it was never the intention of the Orders your Honour[2].
[2] Transcript 8/3/10 page 8 lines 5 to 15.
Given that the matter had been reached late in the day and after 5.30pm, I stated that if there was disagreement and it could not be resolved, I would set the matter down for an interim hearing on the following Thursday at 3pm.
On that afternoon I also:
a)Stated to Mr Jones that he needed to give his client advice as I did not generally consider that orders as to religious observance during the school term would be made without any scope at all for parties to go on holidays;
b)If there is no agreement about this issue and the matter proceeds to an interim hearing and parties have to pay legal fees to attend at the interim, it is a matter where I would hear costs applications;
I also :
a)Indicated to all of the parties that generally when a child was in their care for a holiday period, I did not normally expect parties to have to return from holidays to take a child to Church;
b)Advised the parties that if anyone had raised with me on the day that the Orders were made that the Orders were intended to mean that when the Aunt went on holidays, wherever she went and whatever she did, she had to be back in time for Church on Sunday, I probably would not have made the Orders.
Having made those indications, the Independent Children’s Lawyer indicated to the parties that he did not disagree with any of the matters I had raised. I then confirmed to the parties that the Independent Children’s Lawyer held a view which is accordance with my initial observations.
11 March 2010
The matter did not resolve and proceeded to a contested hearing as set down on 11 March 2010. Mrs Reaston, Solicitor of the same firm as Mr Jones, appeared for the father on this occasion. Mrs Reaston relied on a letter of 14 January 2010[3] and a letter of 10 March 2010[4]
[3] Annexure F1.
[4] Annexure F2.
Mr Lago relied on a letter he had prepared dated 9 March 2010 to the parties proposing the amendment previously raised on 8 March 2010 which reads as follows:
( c) That order 2b be amended by adding the following words “which obligation will be suspended during school holiday periods”
During the course of submissions all of the parties conceded that there had been, as described by Mrs Reaston, a plethora of letters sent between the father’s solicitor and the mother’s solicitor regarding the father’s request that the Orders be interpreted to require the Aunt to take the child to Church during the school holiday period that [X] was with the Aunt during her one half of the Christmas school holiday period in January 2010.
The letter of 14 January 2010 [5] tendered by Mrs Reaston appears to typify the nature of the disagreement. In making reference to the Consent Orders of 31 August 2009 Mr Jones, wrote in part:
Our client has informed us that [X] was not delivered to and collected from the church event on Sunday 10 January 2010. We request that your client facilitate [X]’s attendance at the weekly church service between 9am and 12 noon on Sundays pursuant to the Orders of FM Willis. For Clarification, our client instruct[sic] that the service commences at 9.am sharp.
[5] Exhibit F1.
Concessions as to meaning of the Orders
During the course of submissions at the interim hearing on 11 March 2010 Mrs Reaston for the father advised the court that it had always been the father’s very strong intention that the child [X] was to be taken to church each and every Sunday, though Mrs Reaston conceded without hesitation, and quite properly in my view, that the Orders did not stipulate such a clause. It was submitted that the orders were agreed to on 31 August 2009 after a long day of negotiating. Mrs Reaston accepted that the omission was on her client’s part and further that if the father tried to enforce the orders on the basis that the Aunt was in breach of Orders in failing to take the child to Church during her half of the school holidays, that there is no Order requiring the mother to do so and in effect there was no order to enforce[6]. Mrs Reaston further agreed that the only matters a Court can have regard to when enforcing an Order, are in fact the orders themselves.
[6] Transcript 11/3/10 page 13 line 20 to 25.
Having heard those concessions I then enquired if Mrs Reaston wished to bring an application today to change those orders so that they did include a provision that the Aunt is to take the child to Church during the school holidays and if so, did she wish to rely on the Aunt’s previous undertakings or obligations that she would do so.
Mrs Reaston advised that she did not wish to do so and that the father, who was present in Court, would consent to the suspension of order 2 (b) during school holiday period until such time as this is determined by the Family Court. Mrs Reaston advised The father will consent to that today so that the matter can be moved to the Family Court and we proceed to a trial[7]
[7] Transcript 11/3/10 page 13 line 35.
In response to my comment so when you go for a final order you will argue that as an issue for your final order, Mrs Reaston replied that’s so your Honour.[8]
[8] Transcript page 14, 11 /3/10 line 5.
Although it seemed to me that the issue was now resolved on the basis that the father had conceded that the Orders did not require the Aunt to take the child to Church during her half of the school holidays and did not oppose an amendment stating clearly that this was the position, an oral application was then made by Mrs Reaston for the Consent Orders to be amended to include a notation required by the father. The notation to the Consent Orders was opposed by the father and the Independent Children’s Lawyer.
By that stage, the father had agreed to the amendment to the Orders to clarify any misunderstanding. The interim hearing then proceeded on the basis of a contested notation, sought solely by the father, to the interim Consent Orders of 31 August 2010.
Argument - Notation
Mrs Reaston referred me to exhibit F2 being a letter written on
10 March 2010 by Mr Jones on behalf of the father to the other parties. The letter sought agreement to a notation as follows:
The amendment of these Consent Orders to allow for the suspension of order 2(b) during school holidays periods is made on an interim basis until such time as this matter is determined by the Family Court.
At the time the letter was tendered, Mrs Reaston had crossed out the words “on an interim basis” I assume because they were superfluous given that the Orders the proposed notation was to be added to of
31 August 2010 were already styled as interim orders.
Mr Lago opposed the notation on the basis that it had no purpose other than to serve the father’s interest and contended that if the father wished to raise an issue at the final trial as to his longstanding intention notwithstanding what the Orders provided for, the father could do that by way of affidavit evidence, set it out in correspondence or in submissions. Mr Lago contended that all of the orders were made until further order and queried whether, if such a notation was to be made on behalf of the father, whether notations on the Aunt’s behalf setting out that her agreement to these Orders was only until the final trial ought also be included. Mr Lago referred to the Aunt’s final application which is for the child [X] to spend equal time with her and not, as is currently in place under the interim orders, at set times only. Mr Lago submitted that the notation was meaningless and noted that the Court’s time and that of his client was being wasted with the issue of a notation which in any event, was unenforceable.
Mr Lago’s objection to the proposed notation was contained in an email dated 10 March 2010 in exhibit M2 from Mr Lago to Mr Jones which reads our client will not agree to the notation sought by your client. You can ask Her Honour to make the notation at the hearing tomorrow. If our client incurs any further costs, she will seek an indemnity costs order against your client.
Upon hearing the opposition of Mr Lago to the father’s proposed notation, Mrs Reaston then informed the Court that if the notation was opposed, then the father now withdrew his earlier consent to the clarifying amendment earlier agreed to and that if the Consent Order was amended, it was not agreed to by the father.
Given that the father had through his solicitor Mrs Reaston conceded that the Orders did not require the Aunt to take the child to Church during the holidays, which was not the father’s position on 8 March 2010 according to the submission made by Mr Jones, Mr Lago queried why the parties had to attend Court at all for the interim hearing and submitted that the interim hearing had been a waste of everyone’s time.
Costs Application
Mr Lago now seeks Costs of his client’s appearance at the hearing on 11 March 2010 on the basis that his client had to attend Court on that date to argue against an interpretation of the Orders by the father which interpretation was being no longer pressed. Mr Lago submits that there was a concession by the father that that the Aunt’s interpretation of the Orders was correct and that the father ought to pay the costs of the Aunt having to attend court to argue that point and that the Aunt had attended at Court unnecessarily. Mr Lago sought costs on either an indemnity basis or if I was against him on that, costs for an hour and a half at the scale rate.
Mrs Reaston opposed a costs order saying that at most any order for costs would be costs in the cause. Mrs Reaston submitted that it was very clear from the correspondence forwarded to the Aunt’s solicitors what the father’s intention was behind the order and the understanding of the father’s instructing solicitor that the day of the order, the day of those consent orders, what discussions had been. Mrs Reaston referred to the letter written on behalf of the father that he would consent to the notation that it be suspended during the school holidays period until the matter is brought before the Court and referred me to Exhibit F2 which Mrs Reaston described seeking an innocuous notation.
Mrs Reaston also submitted that the father did not understand that it (being the Church commitment) was to be suspended during the holidays and that the Aunt did not contest that the father had that intention. Mrs Reaston further contended that the Aunt had not been wholly successful as the Aunt had requested an Order that had not been made on the day. Mrs Reaston said that although she was not present in Court on 8 March 2010 she conceded that, as suggested by the Independent Children’s Lawyer on 8 March 2010, there had been a plethora of correspondence between the parties during the holiday period on this topic. She referred me to correspondence of the Independent Children’s Lawyer dated 25 January 2010 in which the Independent Children’s Lawyer suggested a conference be held on the issue and in which the Independent Children’s Lawyer stated The ICL is concerned that this issue has the potential to erode any goodwill that has been built up between the parties which is not in the best interests of the child.
Mrs Reaston submitted that there ought be no Order as to costs on the basis that there are no orders that set out sole parental responsibility, the father is the only natural parent and he has sole parental responsibility for the long term issues and that for the father, the issue of the child attending Church all through the holidays was a primary consideration and something that as a natural parent and the biological father, it was an issue dear to his heart. Mrs Reaston stated that her client would only agree to having the proposed order (to suspend the Aunt’s obligation to take the child to Church during the holiday) as a notation until we can get into the Family Court[9].
[9] Transcript 11/3/10 page 29 line 5.
Mr Todd, the Independent Children’s Lawyer, supported the Aunt’s position at this interim hearing. He pointed out that he too had to attend court because the father sought to press his interpretation of the Orders as stated by Mr Jones on 8 March 2010. He noted at that point that he had been on the phone from Innisfail for the hearing for around 80 minutes.
Mr Todd submitted that the father has effectively refused to consent to an addition to the order which would have clarified the argument as to whether the child had to be taken to Sunday School during the school holidays and that his refusal was on the basis of insistence that a notation be added which, apart from being generally unenforceable, was also meaningless because the whole order is an interim order.... and it has, in essence, been an unnecessary argument.[10]
[10] Transcript 11/3/10 page 27 line 35-45.
The Independent Children’s lawyer advised me of the legal aid rate he received for a mention being $360.00 and stated he did not press for an application for his costs to be paid by the father because it was not in the best interests of the child to do so and it would not improve the already difficult position between these parties.
Costs – Section 117 Family Law Act 1975 (Cth)
The Act sets out that subject to s.117(2) each party pays their own costs, however, if the Court was of the opinion that there are circumstances that justify it in doing so, s.117(B) sets out various relevant matters which I must consider.
Financial circumstances of each of the parties
I note that each of the Aunt and father are privately funded.
As to the financial circumstances of the parties, the father who is [in the film industry] submits he earns around $40,000.00 per year. He is financially supporting the child [X] whilst she lives with him and has support of a 15 year old child from another relationship. The father receives family allowance in relation to both children.
The Aunt earns about $20,000 per annum and her husband earns around $40,000 per annum. The Aunt has four children of her own to support and spends time with [X] each alternate week-end and a night in the off week.
Has either party been wholly unsuccessful?
I consider that father has been wholly unsuccessful. I reject the submission on behalf of the father that the Aunt has not been wholly successful. The father maintained that pursuant to the Interim Consent Orders the Aunt had an obligation to take the child to Church during the school holidays. He did this very clearly on Monday 8 March 2010. The father went further through his solicitor Mr Jones to state he opposed any amendment of the Orders as this was against their intention.
Today the father has conceded through Mrs Reaston that the Orders do not require the Aunt to take the child to Church during the school holidays. This position is a complete reversal from the father’s position on Monday 8 March 2010 and it is the very issue on which this interim hearing was focused.
Even if the father had not conceded that the Orders did not contain such an Order, I have read the Orders involved and the overall arrangements set out in the interim orders. It is my view, as I expressed tentatively on 8 March 2010, that the Orders do not contain any obligation on the Aunt to take the child to Church during the school holidays. I struggle to interpret the Orders to mean that the Aunt has to take the child to Church at all.
The first Order 1 (a) reads in part that the child will spend time with the Aunt each alternate week from after school Thursday until the commencement of the Child’s Sacrament and Sunday School on the following Sunday. That Order does not require the Aunt to take the child to Church during her time. It defines the times that the child will spend with the Aunt as commencing after school and concluding at the commencement of the Child’s Sacrament. It is silent as to how, or, indeed, if, the child will attend the Sacrament or Sunday school.
The next Order which is mistakenly also numbered 1 (a) states: From the commencement of the 2010 school year, the child will spend time with the Aunt from after school Friday until the commencement of school on the following Monday. That order does not require the Aunt to take the child to Church during the time that the child spends with the Aunt and as the times commence and conclude at school, there is no provision in that Order for any interpretation that the child is to be taken to church during the Aunt’s time.
Order 1 b states: In the off week not provided for above in 1 a or 1b, the Child will spend time with the Aunt from after school on the Monday until the commencement of school on the next Tuesday. That Order makes no reference to the Aunt taking the child to Church during the time that the child spends with the Aunt.
Order 2 commences with the Order 2 a and the words To facilitate the child’s time with the Aunt the Aunt will collect the child from school at the designated time, presumably after school Thursday, Friday and Monday as referred to in Orders 1 a and 1b.
Order 2 b reads: To facilitate the child’s time with the Aunt… the Aunt…will Deliver and or collect the child to the Child’s Church, being the Church of Jesus Christ of Latter-day Saints at [address omitted] at a time to be provided by the Father. The words “deliver and or collect the child to the Child’s Church” are clumsy, but on a literal interpretation this Order do not require the mother ensure the child attends Church. It is described as an Order to facilitate the child’s time with the Aunt meaning to enable the time to occur. The Order makes reference to times and locations for collecting the child and returning the child. There is no requirement of the Aunt to take the child to the Church Service or to ensure that the child attends a church service.
Order 3 is another Order about location for collection (but not return) when the child’s time with the Aunt falls on a non-school day. Order 5 refers to the holiday period that the child will spend with the Aunt which is stipulated as being one half of all school holiday periods and goes on to state in order 5 b specific arrangements for changeovers during the holidays. The Order reads:
All changeovers which do not occur during the usual school week will take effect as provided for above at clause 3.
I consider that the Orders do not contain any obligation for the Aunt to take to or deliver the child to or collect her from Church during the school holiday periods. Order 5 is a specific order stipulating that during the holiday, all changeovers happen from the father’s residence or other destination as notified by the father through texting.
I consider that the father has failed in his attempt to have the Orders interpreted as meaning that the child was to attend Church during the school holidays. His opposition to an amending clause to correct his own misunderstanding of the Orders was misplaced. I accept the submission of the Independent Children’s Lawyer that it is disingenuous to argue that the Aunt has been unsuccessful. The Aunt was correct in her interpretation of the Orders both on Monday 8 March 2010 and today. Any amendment was a mechanism to reduce the ongoing conflict between the parties which has come about due to the father’s misunderstanding of the terms of the Orders.
Conduct of the parties
The father has misinterpreted Orders and this has caused what
Mrs Reaston described as a plethora of correspondence between the parties. Answering this correspondence has generated extra legal fees for the Aunt. It was the father’s persistence in arguing that the Orders required the Aunt to ensure the child attended Church during the holidays that lead to unnecessary correspondence and this interim hearing.
At the interim hearing the father conceded that there had been an omission on his part, that the Orders did not contain any obligation on the Aunt as he had thought or intended. At the interim hearing the father agreed that the amendment which rectified his misunderstanding could be inserted into the Orders. Having made this concession, the proposed amendment was superfluous. By the end of the hearing however, because the other parties would not agree to a notation the father sought, the father then withdrew his Consent to the amendment that would have clarified his misunderstanding.
I consider that it was the father’s groundless refusal to make the concession as to the proper interpretation that has been at the heart of this dispute.
Despite conceding that the Orders contain no requirement for the Aunt to take the child to Sunday school during the School Holidays, he has nonetheless had his lawyers write to the Aunt insisting that the Orders require this[11]. It is agreed by the parties that this caused much correspondence to be sent between the parties during the Christmas school holiday period. After conceding at the interim hearing that there were no Orders supporting his contention and the orders should be amended to clarify that there was no such obligation, the father tried to manoeuvre the inclusion of a self serving notation. When this was opposed by the other parties he imprudently withdrew his previous consent to the amendment which was after all only to correct his own misunderstanding.
[11] Exhibit F1.
The cost to the other party’s to face an argument about inserting a notation into what was after all a Consent Order, has to my mind, been incurred completely unnecessarily. It has also amounted to a waste of Court time.
Offers
The Aunt indicated through her solicitors that she would not agree to the proposed notation and that if any further costs were incurred, the Aunt would seek an indemnity costs order against the Father[12].
[12] Exhibit M2.
Any other matters
I have re-read the transcript for both the mention date of 8 March 2010 and the interim hearing date of 11 March 2010. From the transcript it is abundantly clear that I indicated from the outset that on a preliminary reading of the Orders that there appeared to be no obligation on the Aunt to ensure that the child was returned to the father to enable her to attend Church, during the school holidays. I indicated even if such a request had been made to me on the day the Orders were made, I probably would not make an order requiring the Aunt to return the child from holidays so that she could attend Church. I suggested that that if the matter continued to run as an interim hearing, I would consider the issue of costs.
On 31 August 2009, when the Orders were agreed upon and drafted, the father was represented by Counsel and a solicitor. The original of the Consent Orders were signed off by both the father and his solicitor. If the father has reason to complain that the Orders did not accurately reflect what has been described as his very strong intentions, I suggest that his remedies lay elsewhere and not against the Aunt or the Independent Children’s Lawyer.
I consider that it is appropriate that the father pay the costs of and incidental to this hearing. Those costs should include the time wasted in Court and an allowance for the unnecessary correspondence that the Aunt has had to engage in.
I Order that the father pay to the respondent Aunt the costs of and incidental to this interim hearing the cost at the relevant scale of
2 hours Court time and another hour which time goes towards the time wasted by the Aunt’s solicitors in responding to correspondence from the father relating to their interpretation of the Orders, which was clearly wrong.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Willis FM
Associate: Megan Cunnane
Date: 9 April 2010
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