Morris and Clifton - [2008] FMCAfam 1244

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MORRIS & CLIFTON

[2008] FMCAfam1244

FAMILY LAW – Costs – parenting proceedings.

Family Law Act 1975, s.117

Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725

Applicant:

MR MORRIS

Respondent:

MS CLIFTON

File Number:

CRC 147 of 2008

Judgment of:

Halligan FM

Hearing date:

14 October 2008

Date of Last Submission:

14 October 2008

Delivered at:

Coffs Harbour

Delivered on:

14 October 2008

REPRESENTATION

Counsel for the Applicant:

Ms McKinnon

Solicitors for the Applicant:

Slater and Gordon

Counsel for the Respondent:

Mr Priestly

Solicitors for the Respondent:

Green and Mackay

ORDERS

The father shall pay to the mother or her solicitors $5750 being the mother's costs of these proceedings.
By consent, orders are made in accordance with the Terms of Settlement, marked exhibit C.
The mother's solicitor shall lodge a typescript of exhibit C and the form of order with my Associate within seven days.

IT IS NOTED that publication of this judgment under the pseudonym Morris & Clifton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
COFFS HARBOUR

CRC 147 of 2008

MR MORRIS

Applicant

And

MS CLIFTON

Respondent

REASONS FOR JUDGMENT

On 19 June 2007, consent property settlement and parenting orders were made in proceedings between the parties to the current proceedings before me. The parenting aspect of those orders inter alia dealt with the elder of the parties’ two children, [X], born in 1996 by providing that the parents each have parental responsibility for the child, and that the child live with the mother.
Significantly for present purposes, the orders also provided that the mother, the father and the child attend Dr P, Clinical Psychologist for family therapy in order to improve the relationship between [X] and her father and that [X] spend time with her father as recommended by Dr P.
Subsequently Dr P indicated to the father that, having spoken with the mother but not the child, which he appears to have declined to do at that stage, he had invited the child through the mother to write a letter indicating the child's objections to the father, which he would provide to the father and then confer with the father in relation to that letter and discuss with him how he might respond in the hope of engendering or generating some indication from the child that she was prepared at least to see the father.
It would seem that the letter from the child did not eventuate for some little time. It did eventually come, and is part of the material that is before me. What the father did consequently is unclear in relation to the process with Dr P.
What he did ultimately do was to commence further parenting proceedings. The mother's solicitors sought to suggest that, amongst other things, there may be a Rice & Asplund issue (Rice & Asplund, (1978) 6 Fam LR 570, (1979) FLC 90-725) as a basis for opposing the application, but suggested a process to resolve the matters between the parents.
The father amended his application and it first came before the Court on 12 July 2008. One of the things that he sought was the appointment of an Independent Children's Lawyer. That occurred. The matter was adjourned until today.
Subsequently I am advised by the solicitor for the father that the Independent Children's Lawyer took the view that there was a

Rice & Asplund issue in this matter and that the Independent Children's Lawyer would not support any further orders for interventions with the child. At that point the father determined to withdraw his application.
In consequence, the mother seeks costs of the proceedings. That application is opposed and it is that application I am now determining. The costs that are sought are in the sum of $5,750.
The principal basis as I understand it for the mother seeking costs is the suggestion that the application was doomed to failure from the start, because there was no new circumstance beyond those which were dealt with or in contemplation at the time of the prior parenting orders, and therefore the Court would not have entertained a further parenting application. That position is challenged on behalf of the father by suggesting that the fact that Dr P has never seen the child as is contemplated by the orders means that there was a new circumstance. It also seemed to be submitted on behalf of the father that because there was no interview or interaction directly between Dr P and the child and the relationship between the child and the father was not repaired, that too may have been a new circumstance.
The fact is that at the time these orders were made the relationship between the father and the child was extremely poor. There had been two family reports prepared. For the first the child had refused to be in the same room with the father even with somebody else present. By the second, the child not having seen the father in the interim at all, the child acquiesced in being in the presence of the father provided that the family consultant was also present. I am told by the solicitor for the father that has been the only occasion that the child has been in the presence of the father between the ages of 10 and 12 and a half.
The family reports give some explanation as to why the child has such a negative attitude towards the father. Those family reports however did recommend that there be an attempt at family therapy to see if the relationship could be repaired because of the potential serious medium and long term adverse consequences for the child's emotional and psychological welfare if the relationship could not be repaired. But of course if there had been any particular form of therapeutic intervention there was never any guarantees that the relationship would be repaired.
That to my mind illustrates the fallacy of the argument that there are new circumstances in this particular case. Whilst literally the process that might be said to be contemplated by the consent parenting orders did not occur in that the mother, the father and the child have not all seen Dr P - it seems that the mother and the father have seen him or spoken directly to him but the child has not - Dr P had nonetheless embarked upon a process which he was suggesting he hoped may lead to the child being prepared to be seen with the father.
Certainly the father could take the objection, which apparently he did, that Dr P was relying upon information conveyed by the mother and had not spoken directly with [X] at all. That would seem arguably to be one of the purposes of para.9 of the consent orders.
However, Dr P is a volunteer, he is not a conscript. If, for whatever reason, he does not do what the order contemplates, that is his choice. From there what are the remedies of the parties if in fact what they feel is contemplated by the orders or alternatively required by the orders does not in fact occur? It is suggested on behalf of the father, that it is open to the father to reapply for parenting orders in relation to the child. It is put on behalf of the father that in fact the therapeutic intervention that the order contemplated was preferable to litigation to try and overcome the problem. I certainly accept that. But the orders that were made were not interim orders, that is orders to hold a situation, to provide for some therapeutic intervention, and then to see what might be achievable after the therapeutic intervention had concluded. They were expressed to be final orders and they were expressed to provide that the child spend time with her father as recommended by Dr P. That order is not conditional upon Dr P having seen the child.
The operative order about the child spending time with the father is different to the order providing for the therapeutic intervention. The order for the father to spend time with the child constitutes Dr P as the final arbiter at the time the child might spend with the father. Therefore whether Dr P saw the child or not under the therapeutic intervention order to my mind is irrelevant. One is not conditional on the other.
In those circumstances, Dr P not having made any recommendation for the child and the father to spend time together, and this being within the contemplation of the parties when they agreed to these orders, there is no new circumstance. Rice & Asplund very clearly and directly is apposite to this matter.
There was simply no new matter. The parties had litigated the issue. They had come to an agreement whether they fully understood the ramifications of the orders or not and there is no evidence that they did not. These were the orders that they asked the Court to make. These are the orders they represented to the Court were in the children's best interests to be made and the Court accepted that representation. It is now not open to one of the parties to second-guess what they previously represented to the Court.
There is no particular process that the orders explicitly required Dr P to go through before making a recommendation as to [X]’s time with the father. Even if the process of restoration of the relationship between the father and [X] had occurred successfully, if Dr P had then not made any recommendation for the child to spend time with the father, he would not have been entitled to do so under the terms of the order. That to my mind illustrates the lack of any actual connection between the therapeutic intervention and the recommendation. Perhaps some was intended, but none was expressed. In those circumstances I am satisfied that this case had no prospects of success from the start, and the commencement of them in those circumstances has quite unreasonably and unfairly put the mother to expense.
The issue of costs of course is governed by Family Law Act 1975, s.117. The starting proposition is each party bears his or her own costs. The party seeking a costs order bears the onus of establishing why a cost order should be made. In assessing whether to make a costs order, the Court must have regard to the matters that are relevant under s.117(2A).
The only matter ventilated on the costs issues was whether it was reasonable for the father to have instituted these proceedings in the first place. In the circumstances I find it was not and I am satisfied a costs order should be made.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate: Deanne Bush

Date: 24 November 2008