Malcher & Malcher (No 2) - [2012] FamCA 1115

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER (NO. 2)

[2012] FamCA 1115

FAMILY LAW – CHILDREN –Where the father made an application to vary interim parenting orders made two weeks previously –– Where it was determined that the father’s application did constitute an abuse of process –– Where the father’s interim application is dismissed

FAMILY LAW – COSTS – Where the mother made an application for costs on an indemnity basis in circumstances where father was wholly unsuccessful in his interim application –– Whether dismissal of the father’s application on the basis that it constitutes an abuse of the Court’s process attracts the entitlement to an order for indemnity costs –– Consideration of section 117(2A) –– Order for costs made in the mother’s favour on an indemnity basis

Family Law Act 1975 (Cth): ss 117(1); 117(2); 117AA; 118; 117(2A)

Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225
Munday & Bowman (1997) FLC 92-784
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Malcher

RESPONDENT:

Mr Malcher

FILE NUMBER:

SYC

3808

2012

DATE DELIVERED:

3 December 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

3 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R. Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Clinch Long Letherbarrow Pty Limited

COUNSEL FOR THE RESPONDENT:

Mr M.P. Kearney SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

That the father’s Application in a Case filed 27 November 2012 is dismissed.
That the father pay the mother’s costs of his Application in a Case filed 27 November 2012 on an indemnity basis in the amount of $6,000.00.
That the father pay the costs referred to in Order 2 within twenty eight (28) days.
The Court Notes the parties will proffer written undertakings to each other that the children will not be removed from the Commonwealth of Australia without the prior written consent of the other party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3808 of 2012

Mr Malcher

Applicant

And

Ms Malcher

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.
Before the Court is Mr Malcher’s (“the father”) application to vary interim parenting orders made on 15 November 2012. The November 2012 interim orders are the second set of interim parenting orders made since Ms Malcher’s (“the mother”) initiating application was filed on 29 June 2012.
The first set of interim parenting orders were made on 16 July 2012. Essentially, the July 2012 orders provided that the father would vacate the family home, the children would live with the mother and spend time with their father four nights overnight each fortnight plus one afternoon during term. Arrangements for the term 3, 2012 school holidays were also addressed.
The July 2012 orders were silent in relation to the children’s arrangements for the Christmas 2012/2013 school holidays and holidays thereafter. As I said in my Reasons for Judgment delivered on 15 November 2012, I infer that these matters were not addressed because the parties wished to consider those and long term parenting arrangements informed by the opinion of a single expert psychiatrist. Provision for the obtaining of that opinion was made in the July 2012 orders with further machinery provisions made in my orders of 15 November 2012.
As must be apparent, the opinion was delayed and thus on 9 October 2012 the father filed an interim application that relevantly sought orders in relation to the 2012/2013 school holidays. Simply put, he proposed that the children be in the mother’s care from 7 to 24 December 2012, and 26 December 2012 to 4 January 2013, and otherwise with him. So that it is clear, the father wanted the children to be with him at Christmas and for most of January 2013. His rationale for this proposal is set out in his affidavit filed 9 October 2012.
This was predicated on his contention that January is when he had made arrangements to take leave. He planned to spend one week with family at a beach house on the south coast of New South Wales and two weeks on a driving holiday within Australia. There was no suggestion by him that he would seek to make arrangements to spend time overseas, whether that be in January 2013 or at any other time that the Court may order for the forthcoming holidays. Although the mother agreed that the children should spend a significant part of the holidays with the father, she wanted him to have them for 16 days in December 2012 and nine days in January 2013.
Again it would seem it was clear that her proposal was predicated on the children being in Australia throughout the holiday season.
The father’s interim application came before me in the duty list on 13 November 2012 on which occasion both parties were represented by senior counsel. Following that hearing, judgment was reserved until 15 November 2012.
On 15 November 2012 both parties were present and represented by their solicitors. In her affidavit filed in Court today, the mother said as follows:
Prior to making the Orders on 15 November 2012, Her Honour provided the parties and their respective solicitors with a draft of the Orders she proposed making. Both parties considered the proposed Orders and brief submissions were made by each of the solicitors in relation to the proposed Orders. Following the submissions of the parties’ solicitors, Her Honour made the Orders. At no time did [the father’s] solicitor make any submissions to change the dates in the proposed Orders nor did he raise [the father’s] proposal for international travel. (paragraph 13)
So that it is clear, I agree with the categorisation by senior counsel for the father today, that the invitation to the parties was in effect to tweak dates and times but not for a wholesale reconsideration of the essential structure of the orders. However, it is important to note that there was no impediment on the solicitor for the father raising, if that was the father’s idea, that the Court should consider whether he should be able to take the children overseas. That issue was not raised and the orders were made as follows:
Amended pursuant to Rule 17.02 of the Slip Rule
PENDING FURTHER ORDER
IT IS ORDERED
1.That Order 2 of orders made in this Court on 16 July 2012 is varied as follows:
1.1The children’s time with the father on weekends shall commence at the end of school Friday and continue until 7.00 pm the following Monday.
1.2That the children shall spend time with the parties as follows during the 2012/2013 Christmas school holiday period:
1.2.1with the father from 6.00 pm on 7 December 2012 to 6.00 pm until 14 December 2012;
1.2.2with the mother from 6.00 pm on 14 December 2012 until 6.00 pm on 24 December 2012;
1.2.3with the father from 6.00 pm on 24 December 2012 until 4.00 pm on 25 December 2012;
1.2.4with the mother from 4.00 pm on 25 December 2012 until 2.00 pm on 4 January 2013;
1.2.5with the father from 2.00 pm on 4 January 2013 until 6.00 pm on 18 January 2013;
1.2.6with the mother from 6.00 pm on 18 January 2013 until 2.00 pm on 22 January 2013;
1.2.7with the father from 2.00 pm on 22 January 2013 until 6.00 pm on 28 January 2013;
1.2.8with the mother until the children commence school.
2.For the purpose of implementation of Order 1.2 above the parent into whose care the children will move will collect them from the other parent’s home.
3.During school holidays the parties are to facilitate telephone contact between the children and the other parent at the children’s request and otherwise each third day between 4.00 pm and 4.30 pm. If for some reason the call is unable to be taken or made it is to be either returned or made as soon as possible thereafter.
4.Upon the commencement of Term 1 2013 Order 2 of the orders dated 16 July 2012 as varied by these orders shall be implemented so that the children spend time with the father commencing with pattern week 2 and continuing thereafter.
5.The children shall spend the father’s birthday with him from 6.00 pm on … March 2013 to 6.00 pm on … March 2013.
6.That Order 2 of the orders dated 5 November 2012 are varied so that Dr A is instructed in accordance with the letter marked “A” annexed to the Response to an Application in a Case filed by the mother on 2 November 2012 save that documents 6, 8, 9, 10 shall not be included.
7.Nothing in these orders limits the documents or investigations to be undertaken or given to Dr A at his request.
8.That Order ~~3 and~~ 4 of the orders dated 5 November 2012 are set aside.
9.That the further listing of this matter on 10 December 2012 and 25 February 2013 are vacated.
10.The father’s application for Orders 5 and 6 of his Application in a Case filed 9 October 2012 is adjourned pending receipt of Dr A’s report.
11.Other than as provided above (excluding any application for costs) the father’s Applications in a Case filed 9 October 2012 and 9 November 2012 and the mother’s Response to an Application in a Case filed 2 November 2012 are dismissed.
12.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Within two days of the 15 November 2012 orders, the father seems to have reconsidered his position and determined that he would seek to make arrangements to take the children to the Country J for a period longer than the orders enabled the children to be with him. Those arrangements are set out in his two affidavits filed in support of this application.
The mother also made arrangements, as a consequence of the orders of 15 November 2012. She said, in her affidavit filed today in court, as follows:
24.… I made arrangements with my work so that I could be available to care for the children during the periods they are to live with me pursuant to the Orders. I have re-arranged my surgery hours and patient clinics to be available to care for the children. I deny that the current arrangements lead to the children spending limited time with me and a greater involvement of third party carers. I will be caring for the children when they are with me.
25.Following the making of the Orders on 15 November 2012, I made plans to travel to Brisbane with the children to visit my family. This already involved re arranging appointments for over 20 patients and cancelling operating lists. If the Orders sought by [the father] are granted, I will have to re-arrange my travel plans and my staff and practice sessions again.
When the matter was first called on this morning I invited senior counsel for the father to address the Court on why his application did not constitute an abuse of the Court’s process. It will be apparent from my reasons given thus far that this application seeks to revisit orders made about two weeks ago, following a defended interim hearing. At paragraph 12 of his affidavit filed 27 November 2012, the father said as follows:
The dates and times the children are to spend with [the mother] and me pursuant to the Orders were decided by Her Honour and [the mother] and I had little input. Neither [the mother] nor I are particularly happy with the dates.
If it is intended to convey that the proceedings involved are a denial of procedural fairness to the father, his remedy is an appeal. He is clearly within time in which to appeal as of right and it is apparent that no such step has been taken. Having regard to the exchanges that fell between bench and bar this morning and the evidence that is before the Court, one might reasonably apprehend that an appeal has not been lodged because it would be difficult to mount a denial of procedural fairness argument based on the facts as they have been outlined and as are known to the parties.
This is not a court of unrelenting interlocutory applications. The father’s application in relation to the children’s time with him over the forthcoming school holidays has been heard and determined. It is not an answer to his invitation to revisit the Court’s decision given on 15 November 2012 that he has been able to adjust his circumstances so that he could take the children overseas. His obligation was to adjust his circumstances to the outcome ordered by the 15 November 2012 orders. With respect to the carefully constructed submissions made by senior counsel for the father, he has not persuaded me that there has been a change in circumstances such as to warrant reconsideration by the Court of its orders made two weeks ago.
That said, while it is accepted that the proposals the father puts forward for the proposed trip to the Country J at the end of this week are arrangements which one might anticipate the children would enjoy, that is not the point. The point is it was for the father to make arrangements for him to spend time with the children along the lines he proposed to the Court only a couple of weeks ago. I agree with senior counsel for the mother’s description of this application as being an abuse of the Court’s process. In those circumstances and on that basis, the application will be dismissed. Lest it be thought that a consideration on the merits would achieve a different outcome, in my view, a proper application of the best interests principles to the facts of this case would not result in orders different to those made on 15 November 2012.

Costs application

The father’s application filed 27 November 2012 has been dismissed as an abuse of the Court’s process. As a consequence the mother seeks costs on an indemnity basis.
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) is the relevant provision concerning costs and provides the general rule that subject to ss 117(2), 117AA and 118, each party to proceedings under the Act shall bear his or her own costs. If there are circumstances that justify it in so doing, the Court may make an order for costs pursuant to s 117(2) as the Court considers just.
The justifying circumstances for an order for costs in this case are that the respondent mother has been entirely successful and that the application has been dismissed as an abuse of process. The application is pressed on the basis of indemnity costs. As senior counsel for the father correctly points out, indemnity costs are rarely awarded and when awarded it is generally accepted that the circumstances which warrant elevating an order for party/party costs to indemnity costs must be exceptional and are still an exception in this and other jurisdictions. See Munday & Bowman (1997) FLC 92-784. In Munday & Bowman Holden CJ cited with approval Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225; in particular, the circumstances identified by Sheppard J wherein the exercise of the Court’s discretion indemnity costs have been awarded.
Subsequently in Yunghanns v Yunghanns (2000) FLC 93-029 the Full Court of this Court commented that the category of circumstances that would justify an order for indemnity costs is not closed.
I have no difficulty concluding, as I do, that an application that has been dismissed on the basis that it constitutes an abuse of the Court’s process attracts the entitlement to an order for indemnity costs. That is compounded in this case by the fact that the Court has been asked to reconsider orders made as recently as 15 November 2012.
Turning then to the factors referred to in 117(2A), to the extent that each is relevant.
Subsection (a) is concerned with the parties’ financial circumstances. There is little evidence about that before the Court but in my reasons delivered on 15 November 2012 I observed that both parties have successful professional careers. The very nature of the father’s application today makes plain that he is in a financial position to afford significant costs for the forthcoming school holidays. There is, however, nothing before the Court that would enable me to determine whether one or other of the parties’ financial position is superior to the other’s, the point thus being moot.
Subsection (e) is the next relevant subsection, and as I have indicated, the father has been wholly unsuccessful.
Subsection (g) entitles the Court to take into account such other matters as the Court considers relevant. Here it is of particular relevance that the application is brought within two weeks of the Court’s orders on the father’s application to address the current Christmas 2012/2013 school holidays.
In my view, the matters arising under subsections (e) and (g) weigh heavily in favour of an order for costs and they support the mother’s contention that the costs should be ordered in her favour on an indemnity basis. Accordingly, the Court orders that the father pay the mother’s costs of his Application in a Case filed 27 November 2012 on an indemnity basis in the amount of $6,000.00.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 3 December 2012.

Associate:

Date: 21 January 2013