Mephiste and Mephiste (No. 2)

[2008] FamCA 446

FAMILY COURT OF AUSTRALIA

MEPHISTE & MEPHISTE (NO. 2) [2008] FamCA 446

FAMILY LAW - COSTS

APPLICANT: Ms Mephiste

RESPONDENT: Mr Mephiste

FILE NUMBER: PAF 1468 of 2006

DATE DELIVERED: 11 June 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATE: By written submissions 

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Georgiadis & Baker

SOLICITOR FOR THE RESPONDENT: McDonnell Schroder

Orders

I make the following orders:

1. I dismiss the wife’s Application for Costs of the husband’s Application in a Case filed on 24 October 2007.

2. I make no order as to the costs of the present application.

IT IS NOTED

that publication of this judgment under the pseudonym Mephiste & Mephiste is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1468 of 2006

MR MEPHISTE

Applicant

And

MS MEPHISTE

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. Ms Mephiste (“the mother”) seeks an order that Mr Mephiste (“the father”) pay her costs of $1,925 incurred in relation to his Application in a Case filed on 24 October 2007.  On 23 August 2007 the Court orders, inter alia, as follows:

   “The parents shall attend upon the child’s general practitioner for the purposes of drawing up a ‘mental health plan’ for [the child D’s] referral to a counsellor as nominated under the scheme for ongoing counselling regarding anxiety and weigh issues.”

   By his Application in a Case the father sought to discharge this order and that the following order be made:

   “That the father be solely responsible for attending upon a medical general practitioner to obtain a referral to a counsellor to address the anxiety and weight issues of the parties’ child, [D], who was born on […] July 1997.”

2. In his affidavit sworn on 23 October 2007 the father said that D’s “treating practitioner” was Dr Y.  He deposed to a conversation with Dr Y in which he was told that both the mother and her solicitor had informed the doctor that he was not authorised to refer D to a counsellor.  He thus sought an order that he be solely responsible for obtaining this referral.

3. In her affidavit sworn on 28 November 2007 the mother said that Dr H “was the children’s regular doctor” and that they only saw Dr Y if Dr H was unavailable.  Following the orders she arranged for two alternative appointments with Dr H and asked the father to select one for them to attend together.  She advised the father of these arrangements by fax dated 29 August 2007.

4. The father’s solicitor replied by letter dated 31 August 2007 to the mother’s lawyer.  This letter alleged that the mother had “acted unilaterally” and had nominated dates when the children would be with the father.  On that basis the father made an appointment for 10 September 2007. Apparently the mother declined to attend on this occasion.

5. A bundle of correspondence was tendered in evidence in this application.  It is abundantly clear that a dispute arose as to whether Dr Y or Dr H was the children’s general practitioner.  Ultimately D was referred to Ms G, psychologist, by Dr H.

6. When the father’s application came before the court on 31 October 2007 it was ordered that D not attend upon Ms G, pending further order, and the matter was adjourned to 7 November 2007.  On that date the order prohibiting D from attending upon Ms G was discharged.  It was noted that the father would take her to the next appointment with Ms G on 12 November 2007.  The cost of the mother and the Independent Children’s Lawyer of “today” were reserved on 7 November 2007.  There was no order reserving the costs of 31 October 2007. 

7. I will now consider the evidence within the framework of section 117(2)(A), which governs the determination of application for costs.

   Section 117 (2A)(a)  the financial circumstances of each of the parties to the proceedings;

8. No submissions were put in relation to the respective financial positions of the parties.  I am aware from evidence in the substantive proceedings that the father operates a retail business and the mother is employed in a bank.  I am also aware that there are outstanding proceedings for settlement of property.

   Section 117(2A)(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

9. Neither party was in receipt of a grant of legal aid.

   Section 117(2A)(c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

10. The conduct of neither party, in relation to the arrangement of counselling for D, can be regarded as praiseworthy.  The contents of the report of the court-appointed expert, Dr W, were very concerning as to her emotional problems.  Nonetheless, the parties seemed to focus on their dispute with each other rather than securing the professional assistance so obviously needed by their daughter.  Neither of the parties was prepared to yield to the choice of a general practitioner by the other.  In these circumstances, the only solution was a further approach to the court.

    Section 117(2A)(d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

11. It is arguable that each of the parties failed to comply with an order of the court.  It is not necessary that I make a finding for present purposes.

    Section 117(2A)(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

12. The father’s application has the result of breaking the deadlock between the parties and allowing D therapy to begin.  He did not, however, obtain the orders which he sought. 

    Section 117(2A)(f) whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

13. The father’s solicitor gave advance notice to the lawyers for the mother of the proposed application and sought their consent.  There was no response to this proposal.

    Section 117(2A)(g)  such other matters as the court considers relevant

14. Basically, the application was prompted by inflexibility on the part of each of the parents.  It was always open to them to put aside their own dispute and act cooperatively in the best interests of their daughter.

Conclusion

1. I can see no reason why there should be an order for costs in favour of the mother.  Neither party can be seen to be putting D’s interests ahead of their own.  The whole dispute and subsequent application could have been avoided if they had each adopted a more reasonable and conciliatory approach. 

2. I do not propose to make an order for costs in respect of the present application.  Essentially, my reasons are as set out above in respect of the costs application itself. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              11 June 2008