OSBORNE & OSBORNE

[2014] FamCA 1208

FAMILY COURT OF AUSTRALIA

OSBORNE & OSBORNE [2014] FamCA 1208

FAMILY LAW – PROCESS AND PROCEDURE – Adjournment – Costs

APPLICANT: Ms Osborne

RESPONDENT: Mr Osborne

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

FILE NUMBER: MLC 4860 of 2007

DATE DELIVERED: 20 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 20 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carter

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE ICL Ms Dowler

INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

1. That all extant applications be adjourned for final hearing before the Honourable Justice Johns at 10.00am on 9 February 2015 noted as a five-day matter.

2. That by 4.00pm on 10 November 2014 the father make, file and serve any affidavit of evidence-in-chief upon which he seeks to rely.

3. That by 4.00pm on 24 November 2014 the mother make, file and serve any affidavit in reply upon which she seeks to rely.

4. That the Family Consultant prepare a supplementary Family Report and for the purposes of the preparation of that report the father and the children (if so required) attend for interview with Ms K, Family Consultant on 5 December 2014 or such other date as is nominated by the Family Consultant AND IT IS REQUESTED that such report be released by 19 December 2014.

5. That the father pay the mother’s costs of this day, the quantum of such costs to be as agreed and failing agreement as assessed on a party-party basis.

6. That payment of the costs order pursuant to Order 5 hereof be stayed for a period of 45 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Osborne & Osborne 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 MELBOURNE

FILE NUMBER: MLC 4860 of 2007

Ms Osborne

Applicant

And

Mr Osborne

Respondent

REASONS FOR JUDGMENT

1. In the matter of Osborne, I have heard an oral application made by the father that these proceedings be adjourned to enable him to file affidavit material in support of his case and, further, to enable him to engage with the family consultant for the completion of a family report. 

2. These proceedings have been on foot since August, 2013.  They relate to the parenting arrangements with respect to the three children of the marriage: B, who is aged 15 years, C, aged 11 years, and D who is aged nine years. 

3. The matter is a Magellan case.  It has been so categorised due to the very serious allegations made against the father in relation to his conduct towards the children and specifically in relation to his conduct towards B. 

4. A notice of risk was filed on behalf of the mother, that notice having been filed on 16 August 2013.  It is alleged in that notice that the father physically abused B in December 2012.  Further, it is alleged in that notice that in or about May, 2013, B made disclosures that the father had sexually abused her.  It is those allegations that are the central issues in this matter. 

5. The proceedings were listed before me as a first day on 2 June 2014.  That day I made directions for the preparation of the matter for a final hearing, including orders for the preparation of a family report.  The matter was listed for final hearing before me to commence this day.  At the time of that hearing, the father was represented. 

6. Ms K was appointed as the family consultant.  She interviewed the mother and the children on 12 August 2014.  She was also scheduled to interview the father.  For reasons best known to the father, he failed to attend those interviews.  Today before me, he states that he did not remember the appointment.  Given the seriousness of the matters before the court, I find such an explanation extraordinary.  That is particularly so in circumstances where, at the time the interviews were conducted, the application by the father was that he have sole parental responsibility and, further, that the children live with him.

7. The father’s solicitors filed a notice of ceasing to act on or about 15 September 2014.  The matter was listed before me for mention on 17 September 2014.  That day, the father failed to appear before me. 

8. At the mention hearing before me on 17 September, counsel appearing for the mother confirmed her client’s readiness for the matter to proceed to final hearing.  Given the failure of the father to attend on that occasion, a notation was made to the effect that, in the event of the father’s continued non-compliance with my previous orders, the mother indicated through her counsel that it would be her intention to seek to have the proceedings heard on an undefended basis at the hearing.

9. In light of the history, the mother today opposes the father’s application for an adjournment.  She says that she has done all matters necessary to ensure readiness for trial.  She has been put to considerable expense in preparing the matter for final hearing.  She has been inconvenienced insofar as she has taken leave from work in order to be available for the court hearing this week.  Further, it is said on behalf of the mother that, from the children’s perspective, these matters should be brought to a conclusion as quickly as possible. 

10. Counsel appearing for the ICL supports the father’s application for an adjournment, albeit reluctantly.  Whilst the ICL shares the concerns of the mother that these proceedings should be concluded without further delay, ultimately she concludes that the children’s best interests are served by ensuring that all relevant evidence is put before the court.  She points to the fact that there is a significant gap in the evidence insofar as the family consultant has not had the opportunity of interviewing the father who, prior to the allegations to which I have already referred, played a significant role in these children’s lives.

11. There is a range of concerns raised by the family consultant in her report as to the genesis of the allegations levelled against the father, and that a proper inquiry of those matters must entail a consideration of the father’s position and, if possible, that he engage in an interview process with the Family Consultant.  In addition to the difficulties with the evidence of the Family Consultant, the ICL also points to the fact that the contact supervisor, Ms M, has not been in a position to complete her report due to ill-health.  It is said by counsel for the independent children’s lawyer that, in those circumstances, it is undesirable that the case proceed where so much of the evidence is incomplete.  It is submitted that, in circumstances where the best interests of the children are the paramount consideration, those interests must support the granting of an adjournment to ensure that every opportunity is given for all relevant evidence to be put before the court. 

12. It is with great reluctance that I must agree with the submissions of counsel for the independent children’s lawyer.  As I have already noted, I find the father’s position extraordinary.  That he has failed to file affidavit material, that he has failed to attend for time with his children as ordered, that he has failed to attend court ordered appointments with the family consultant is an extraordinary position in circumstances where he now comes to court stating that the orders he seeks are for week about time with his children.  That conduct reflects poorly upon him.  However, in the discharge of my duty to ensure that the best interests of the children are the paramount consideration, I am satisfied that an adjournment is necessary to provide the father with one final opportunity to engage in the court process, and ensure that all relevant evidence is placed before the Court. 

13. I am likely to be greatly assisted in the determination of the issues before me if the father does file affidavit material and attend such an appointment with the Family Consultant as he now says he is willing to do. 

ORDERS DELIVERED

1. The mother seeks an order for costs.  I will give the father an opportunity to respond formally to that application. 

RECORDED:  NOT TRANSCRIBED

1. What I will do is require that the father’s affidavit material be filed mid‑November.  The mother will have an opportunity to reply.  The reply will be due, say, a fortnight later, by 30 November so that Ms K has all of that material at the time she conducts her interviews with the father.

RECORDED:  NOT TRANSCRIBED

1. In the matter of Osborne, the mother has made an application that the father meet her costs thrown away this day as a result of the adjournment of these proceedings.  The mother seeks a costs order in the sum of $4715.  That sum is calculated having regard to her counsel’s fees of the day of $2750, the setting‑down fee for the hearing this day of $765 together with her instructing solicitor’s fees for four hours calculated at a total of $1200. 

2. It is said on behalf of the mother that a costs order is appropriate in the circumstances due to the conduct of the father.  In particular, she points to the failure of the father to file affidavit material and also the failure of the father to attend the family consultant for the preparation of the family report.  It is said on her behalf that it is those failures to comply with court orders that has given rise to the adjournment of today’s proceedings. 

3. She points to the financial circumstances of the parties.  The father has indicated to the Court that his current income is $96,500 per annum.  The mother’s income is approximately $37,000 per annum.  She has had to rely upon assistance from her partner in order to fund these proceedings. 

4. The father opposes the order for costs.  He acknowledges his error in failing to comply with court orders.  He says by way of excuse that he has had enormous difficulty emotionally in confronting the very serious allegations which have been levelled against him – that he has sexually abused his eldest child.  He says that he has felt humiliated and this, in part, has been the reason why he has had difficulty in complying with court orders.  He says that whilst he has an income of some $96,500, his income is applied to servicing a significant debt secured over his home, which was purchased approximately three years ago, and towards the payment of child support for the children of the marriage.  He says that he currently pays something in the order of approximately $900 per fortnight for the support of the children. 

5. Further, he says that he is solely responsible for meeting the orthodontic expenses associated with the child B’s braces.  The father also says that he has significant credit card liabilities, he has outstanding fees in respect of his own lawyers and that he is required to meet the costs of supervision when he spends time with the children.  Simply put, the father says he cannot afford to meet an order for costs.  Further, the father says that whilst his conduct has been a contributing factor to the need for an adjournment of these proceedings, the absence of a report from the contact supervisor, that is, Ms M, has also been part of the reason why these proceedings have had to be adjourned. 

6. Section 117 of the Family Law Act provides that each party should bear their own costs in proceedings, subject to the provisions set out in subsections (2) and (2A) of the Act. Section 117, subsection (2A) sets out the matters that the Court is required to have regard to in determining an application for costs. Those considerations include the financial circumstances of the parties, which I have considered, as outlined earlier in this extempore judgment. It also requires that I take into account the conduct of the parties to the proceedings, whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court, as well as a range of other matters which the Court considers relevant.

7. I am satisfied that the adjournment of the proceedings has been caused by the failure of the father to comply with court orders.  Had he communicated with the independent children’s lawyer or the wife’s solicitor prior to this day his intention to participate in the proceedings, it is likely that appropriate arrangements could have been made at a much earlier time for the necessary preparation of the matter to ensure that it would be able to proceed.  Whilst the father is correct insofar as the Court is likely to be assisted by the evidence of Ms M, I am satisfied that had he communicated with the independent children’s lawyer and the mother’s solicitor, it is likely that the matter could have been appropriately adjourned at a much earlier time, which would have avoided the costs of the mother thrown away this day.

8. The father has the benefit of a substantial income by community standards.  That he chooses to house himself in circumstances where a significant proportion of his income is committed to his mortgage is a matter for him.  It should not be a barrier to a costs order being made in such circumstances.  It may be that the father simply needs to adjust his circumstances to ensure that he appropriately prioritises his commitments. 

9. It is of great concern to me that currently he is not spending time with his children because of his stated inability to afford the costs of such supervised time.  I note his statement from the bar table that the costs of supervision are approximately $175 for two hours.  I note that the father is soon to be commencing cohabitation with his partner.  Presumably that is a circumstance that will alleviate some of the financial pressures that he is currently experiencing. 

10. In light of the matters I have identified, I propose to make an order that the father pay the mother’s costs, such costs to be as agreed and, failing agreement, to be assessed on a party‑party basis.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 20 October 2014.

Associate: 

Date:  20 October 2014