RITCHIE & FEAKS

[2017] FamCA 488

FAMILY COURT OF AUSTRALIA

RITCHIE & FEAKS [2017] FamCA 488

FAMILY LAW – PRACTICE AND PROCEDURE – Independent Children’s Lawyer – Child support – Costs

APPLICANT: Mr Ritchie

RESPONDENT: Ms Feaks

INDEPENDENT CHILDREN’S LAWYER: Children’s Law Chambers

FILE NUMBER: SYC 5143 of 2008

DATE DELIVERED: 7 July 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 7 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: No attendance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Giblin

IT IS ORDERED THAT

1. I dismiss the application of Ms Feaks filed 17 February 2017, being an Application in a Case seeking a restraint upon the father and paternal grandmother from approaching the child B or herself.

2. I dismiss the Application in a Case filed by Ms Feaks on 17 February 2017, being an application to remove the Independent Children’s Lawyer, Ms M, and her counsel Ms Z from the case.

3. I dismiss the Application in a Case filed by Ms Feaks on 10 May 2017, being an application for no contact orders between B and the father.

4. I dismiss the Application in a Case filed by Ms Feaks on 10 May 2017, being an application in relation to child support, a so-called special needs trust, adult child support and for loss of income and future earnings. 

5. Ms Feaks is to pay the costs of Mr Ritchie in relation to the contravention proceedings filed by him on 15 August 2016 in the sum of $4,614.06, such amount becoming due and payable 14 days from today’s date.

6. Ms Feaks take all necessary steps to enable the child B, born … 2006, to be assessed by a Family Consultant at Child Dispute Services, including but not limited to the following steps:

   (a)Bringing B to Child Dispute Services at the Family Court at Sydney at 9am on 6 September 2017 for such assessment.

   (b)Leaving B at Child Disputes Services for the purposes of assessment, if requested to do so by the staff of Child Dispute Services.

   (c)Attending for assessment with B herself, if requested to do so by the staff at Child Dispute Services.

7. I direct Mr Ritchie to comply with directions given to him by Child Dispute Services in relation to his attendance for the purposes of assessment.

IT IS NOTED THAT

1. The father seeks that Child Dispute Services involve the paternal grandmother in the assessment process.  This will be a matter for them to assess.

IT IS FURTHER ORDERED THAT

1. I grant liberty to the parties to apply on 14 days’ notice for the relisting of the matter in order to deal with the question of the appointment of a Single Expert.

2. The matter is otherwise adjourned to 10am on 25 October 2017.  On that day the parties are at liberty to attend by video link from the Family Court at Sydney to the Family Court at Canberra should they choose to do so.

3. Any party seeking to attend otherwise than in accordance with the above order will be required to comply with the Rules in relation to any such application.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ritchie & Feaks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 5143 of 2008

Mr Ritchie

Applicant

And

Ms Feaks

Respondent

REASONS FOR JUDGMENT

1. On 17 February 2017 with Mr Ritchie appearing for himself, Ms Feaks representing herself and Ms Z for the Independent Children’s Lawyer, I listed the mother’s Application for the discharge of the Independent Children’s Lawyer and for restraints to be made against the father to 7 July 2017 at 10am for a period of two hours.  The applicant in those applications has failed to attend Court to prosecute those applications and accordingly, they are dismissed. 

2. Further, the mother filed two Applications in a Case on 10 May 2017.  Those applications were listed before Justice Le Poer Trench who subsequently adjourned those Applications to today’s date.  The mother has not attended to prosecute either of those Applications and they are accordingly dismissed.

Contravention - Application for Costs

1. Mr Ritchie sought that Ms Feaks be dealt with for four contraventions.  He was successful in relation to two of these contraventions, unsuccessful in relation to one and withdrew the fourth.  The question arises for the purpose of determining what costs order should be made as to the characterisation of those contraventions that he was successful in prosecuting.  As yet I have not dealt with the effects of the contraventions in the sense that I have not made orders to deal with the contraventions.  Not having yet made orders in relation to those means it is necessary that I should consider whether or not Mr Ritchie should pay costs in this matter.  I do not consider that it is appropriate, for reasons which will become apparent later in the proceedings but are based upon the fact that I have not yet finalised dealing with the effect of the contraventions, as Ms Feaks has failed to comply with consequential orders to provide the child B for the assessment by the Family Consultant.  Accordingly, the mere failure to make orders to deal with Ms Feaks does not lead me to a conclusion that it would be appropriate for Mr Ritchie to pay any costs consequent to s 70NEB.  In this matter I have asked Mr Ritchie as to the proper way of characterising the two breaches that Ms Feaks was found to have committed, that is whether they are more serious or less serious contraventions.  The first breach deals with a failure to provide B to spend time with Mr Ritchie, the second breach deals with the attendance of B upon a medical practitioner under circumstances that required her to comply with other orders made by Justice Rees.

2. There is one matter in particular that leads me to the conclusion that these are both examples of more serious contraventions.  That matter is the timing of the contraventions.  The first of the contraventions, that is the failure to produce the child B to the father to spend time with him, occurred a mere six days after the orders were made by Justice Rees on 25 May 2015.  That fact on their face gives them the appearance of being a flagrant breach of the order that was made by Justice Rees.  Similarly, contravention number three which related to medical treatment required the mother to undertake particular steps should B be taken to a doctor other than Dr E or Dr F.  Again, those orders were made by Justice Rees on 25 May 2015.  I found that the evidence established that it was shortly after the making of the orders by Justice Rees that the mother acted in contravention of those orders having B attend upon a Dr Y.  Again, it is the timing of the contravention that is shortly following the making of orders by Justice Rees that leads me to the conclusion that it constitutes a flagrant breach the Court order.  The flagrancy of the breach again leads me to the conclusion that on each of these occasions these constitute a more serious contravention.

3. As each constitutes a more serious contravention. Section 70NFB of the Family Law Act 1975 requires to order costs under paragraph (2)(g) of that section, unless I am satisfied that it would not be in the interest of B to make that order. Subsection (2)(g) relates to an order that the person who committed the current contravention pay all of the costs of another party or other parties to the proceeding under this division, and that provision of s 70NFB operates as an exception to the general operation of s 117 as that deals with costs orders. Section 117 generally provides that each party to a proceedings under this Act shall bear his or her own costs, however, it is made subject to the operation of s 70NFB(1). Accordingly, I am required to make an order for costs in favour of Mr Ritchie unless it is otherwise established to not be in the best interests of B to do so. I have no evidence before me that enables me to be satisfied that it would not be in the best interests of B to make that order. Mr Ritchie has presented to the Court evidence as to the costs that he incurred in respect of the prosecution of four contraventions only two of which were successful. When queried as to how I might apportion those costs Mr Ritchie invited me, as he was successful on half of the contraventions, to award him half of the costs. I propose to award Mr Ritchie the costs of the filing fees along with half of the balance of the costs in accordance with his concession to the Court.

Family Report

1. Orders have previously been made for the mother to present the child, B, to Child Dispute Services in order to enable B to be assessed for the purpose of the preparation of a Family Report.  The Family Report has now been made available and reveals that the mother failed to attend in person for the preparation of the Family Report and failed to provide B for the preparation of Family Report either in person or otherwise.  The mother was interviewed for the Family Report by telephone. B took no part in the preparation of the Report whatsoever. 

2. The Family Report was a step that I considered previously as being necessary in order to determine what ought to happen in terms of further orders to be made in consequence of the contraventions found against the mother in respect of the parenting orders.  The failure of the mother to present B for the purpose of assessment has at this stage thwarted the progress of the proceedings in relation to what should or should not happen as a result of those contraventions.

3. I have formed the view that it is necessary for the Court to have further information before it in respect of B in order to understand how B functions and what her particular needs might be and how interaction with each of her parents is important to her.  In order to do this it is necessary to obtain a further report.

4. The Family Reporter recommended that a Single Expert be appointed with particular expertise that is, the expertise of a family and child psychiatrist, in order to specifically canvas the possible impact of poor parental mental health or personality disturbance on B’s wellbeing.  At present the Independent Children’s Lawyer is seeking a grant of Legal Aid for the provision of a Single Expert under circumstances where neither of the parties are apparently able to fund a Single Expert and nor is it known whether or not the mother would support the appointment of a Single Expert.  The answer to the application has not yet been given and the Independent Children’s Lawyer proposes to pursue Legal Aid to see whether or not one may be appointed.

5. If a Single Expert is appointed a Single Expert may have expertise which will enable a better engagement with the issues that face B and each of the parents, and may be able to assess B in a more flexible manner than is available through Child Dispute Services.

6. However, in the absence of any arrangements for the appointment of a Single Expert it is important that the assessment of B continue in any event.  Should a Single Expert become available then it may be appropriate to amend the arrangements so that B is assessed by the Single Expert rather than by Child Dispute Services.  Pending such an arrangement orders will be made for the mother to provide B for assessment to Child Dispute Services. 

7. Should the mother fail to comply with the orders to provide B to Child Dispute Services a question may arise as to whether or not such breach of the Family Court orders warrants dealing with the mother for contempt.  This is a matter that would need to be dealt with in due course.   

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 7 July 2017.

Associate: 

Date:  12 July 2017