Rose and Barwon (No 2)

[2010] FamCA 738

FAMILY COURT OF AUSTRALIA

ROSE & BARWON (NO. 2) [2010] FamCA 738

FAMILY LAW – COSTS – Where consent orders were entered into by the parties – Where the mother made false allegations about the father – Where the father is legally represented but not legally aided – Costs agreement not produced – Order for same – Where the mother’s Facebook entries suggest she engaged in certain conduct so the father incurred large legal bills – An impecunious litigant cannot litigate with impunity and then hide behind the fact of no assets and no income – Terms of section 117(2)A considered – Mother ordered to pay a proportion of costs

APPLICANT: Mr Rose

RESPONDENT: Ms Barwon

FILE NUMBER: BRC 1372 of 2009

DATE DELIVERED: 2 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 2 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge of Counsel appearing for the Applicant Father

SOLICITORS FOR THE APPLICANT: Journey Family Lawyers

COUNSEL FOR THE RESPONDENT: The Respondent Mother appearing in person

Orders

IT IS ORDERED BY CONSENT THAT:

1. The children, D born on … March 2001 and T born on … August 2002, live with the Father.

2. The Mother and Father have equal shared parental responsibility for decisions concerning the long term care, welfare and development of the children.

3. The Mother spend time with and communicate with the children at all times as may be agreed between the parties but failing agreement as follows:

   a.for the Christmas school holiday period:

   i.during the first half of the school holiday period from 12.00 pm on the first Sunday and conclude at 12.00 pm Sunday three (3) weeks later in all even numbered years; and

   ii.during the second half of the school holiday period to commence at 12.00pm on the forth Sunday of the school holiday period and conclude at 12.00pm Sunday three (3) weeks in all odd numbered years;

   b.the first weekend of March commencing at 4.00 pm on the first Friday of the month and concluding at 4.00 pm on the Sunday;

   c.for the Easter school holiday period:

   i.for the Easter school period beginning at 12.00 pm on the first Saturday and concluding at 12.00 pm on the Friday before the commencement of school in all odd numbered years;

   ii.for the Easter school period beginning at 12.00 pm on the last Friday prior to the commencement of school and concluding at 2.00 pm on the last Sunday prior to the commencement of school in all even numbered years;

   d.the long weekend in May being the ‘May day’ long weekend, commencing at 4.00 pm on the Friday and concluding at 4.00 pm on the Monday;

   e.for the June/July school holiday period:

   from 12.00 pm on the first Saturday of the school holiday period until 12.00 pm on the Saturday one (1) week later;

   f.for the September school holiday period:

   from 12.00 pm on the first Saturday of the school holiday period until 12.00 pm on the Saturday one (1) week later;

   g.the second weekend of November commencing at 4.00 pm on the second Friday of the month and concluding at 4.00 pm on the Sunday;

   h.by telephone on Tuesday and Thursday each week and Christmas, Easter Sunday, the children’s birthdays, the Mother’s birthday and Mother’s Day between 6.30 pm and 7.00 pm with the Mother to initiate such phone communication and the Father to ensure that the children are available to receive such phone calls;

   i.that the Mother be at liberty to communicate with the children by letters whilst ever they are spending time with their Father and the Father is to ensure that all such communication is provided to the children as soon as possible after it is received.

4. The parents will facilitate the children telephoning the parent with whom they are not spending time as they shall reasonably request.

5. The Father be at liberty to contact the children, whilst they are spending time with the Mother on Tuesday and Thursday each week and Christmas, Easter Sunday, the Father’s birthday and Father’s Day between 6.30 pm and 7.30 pm or 4.30 pm and 5.30 pm with the Father to initiate such phone communication and the Mother to ensure that the children are available to receive such phone calls.

6. In relation to phone communication:

   a.each party is to ensure that the children are able to speak to the other party in privacy without interruption or any restriction placed on the nature and content of the telephone call;

   b.should the children be unavailable to receive any telephone call, the parent who was unable to speak to the children be at liberty to call the children the following day, in accordance with these Orders.

7. Changeover shall take place at O at the Tourist Information Centre or at C Post Office:

   a.the Mother shall be responsible for facilitating changeover at the commencement of the school holiday periods and at the commencement and conclusion of weekends and long weekends;

   b.the Father shall be responsible for facilitating changeover at the conclusion of the school holiday periods;

   c.should either parent be unable to facilitate changeover personally, they be at liberty to arrange for another person known to the children to attend changeover on their behalf and shall provide the other parent with their intention to do so forty-eight (48) hours prior to changeover or as soon as reasonably practicable, prior to changeover.

8. The parents agree that they shall endeavor to keep the parent not living with the children informed and updated in relation to any long term care, welfare and developmental matters concerning the children including but not limited to school, health and extra- curricular matters.

9. The Father shall ensure the Mother is provided notice of dates and ordering information for the children’s school photo each year.

10. That during the time the children are with either parent, that parent shall:

    a.respect the privacy of the other parent and ensure the children are not questioned about the personal life of the other parent;

    b.speak of the other parent respectfully;

    c.not denigrate to insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or indult the other parent in the hearing or presence of the children.

11. Should either child receive any medical or dental treatment, suffer any injury requiring medical attention or receive any other psychological or emotional counselling the parent who makes the arrangements for such treatment/ counselling shall notify the other parent the proposed treatment or treatment received as soon as practicable.

12. These Orders authorise any medical practitioner, specialist psychologist, psychiatrist or other health professional attended by the children to provide to each of the parents at the expense of the requesting parent such information as they may require but not limited to copies of medical reports.  Both parents are authorised to discuss the children’s treatment with the child’s medical practitioner, specialist psychologist, psychiatrist or other health professional.

13. These Orders authorise any school, day care centre or other educational institution to provide each of the parents at the expense of the requesting parent such information as they may request regarding the children’s education including school report cards, notices of parent teacher evenings, and the like.

14. Each party shall keep the other informed of their current residential address, landline and mobile and shall advise the other parent of any intention to change their address, landline and mobile within seven (7) days prior to any such change.

15. The parties shall ensure that the children are not exposed to cigarette smoke within any enclosed area.

16. Should any dispute arise in the future in relation to parenting matters, the parents agree to attempt to resolve such dispute directly with the other party.  Should they be unable to do so, then the parties agree to follow these Orders and participate in Alternative Dispute Resolution prior to the commencement of any litigation with a view to resolve the dispute in an amicable manner.

17. That within six (6) months from the date of these Orders the Mother shall participate in a Parenting After Separation Program (POP) with the Foundations organization and the Father will provide evidence to the Mother of his completion of an appropriate parenting skills course previously completed but no longer then twelve (12) months prior.

18. These Orders shall be explained to the children by a Court appointed specialist and the Father shall make all necessary arrangements for the children’s attendance upon such a specialist within six (6) months of the date of the Orders.

19. That in the instance of the death of an immediate family member (being only biological members of the family, not withstanding the children’s step father and step grandfather, Mr W) the Mother shall request in writing that the children are able to attend the funeral of that family member.  The Father shall not unreasonably deny this request. The period of time that the children spend with the Mother be not more than twenty-four (24) hours and the children are not to miss more than one school day.  The Mother shall be responsible for the pick up and drop off of the children.

20. In the instance that an immediate member of the Father’s family pass away (including the children’s step mother and step grandmother) during the time the children are spending time with the Mother, Order (19) be reciprocated.

IT IS FURTHER ORDERED THAT:

UPON THE UNDERTAKING OF THE FATHER’S LEGAL REPRESENTATIVES PROVIDING THIS HONOURABLE COURT WITH A COPY OF THE COSTS AGREEMENT ENTERED INTO WITH THE FATHER

1. The Mother to pay the Father’s costs fixed at $15,000.

2. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Rose and Barwon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1372 of 2009

MR ROSE

Applicant

And

MS BARWON

Respondent

REASONS FOR JUDGMENT

1. Earlier today I made consent orders in relation to the children’s issues in this matter.  Those orders are almost identical in their form to orders that the parties signed back in January this year.  I was asked to make the orders in these terms in January.  I followed my usual practice of inquiring directly from the litigants at that time whether the orders were entered into of their own free will.  The mother, who had family support with her, said they were not and she really wanted the children to live with her.  It is a situation where, although the mother’s household may have improved considerably, the case would have to be mounted on the basis that her household represented such an improvement on the father’s that the court would be persuaded to accede on such evidence to a change of primary care.  There has been no genuine complaint about the care the father provides to these two children.  There is the concept known as the status quo.  The court won’t interfere with existing arrangements unless there are really compelling reasons for doing so.

2. Counsel for the father has taken me through the history of this litigation.  I am certainly familiar with it from the time that it came into my docket and I am also familiar with the reasons for judgment delivered by Baumann FM.  The term is often used of somebody’s behaviour as a model litigant - meaning their conduct has been exemplary; they have always filed material on time; they have always filed material giving full disclosure and making appropriate concessions and such like.

3. Here, I have to record that the mother has been anything but a model litigant.  Her behaviour over the years is the stuff of nightmares.  False allegations.  False allegations on such a serious matter as accusing the father of sexually abusing his daughter.  That was made as an instinctive response to an adverse decision from Baumann FM.  A Federal Magistrate made a decision and then suddenly there is a way of attempting to put off the impact of that decision by making such a serious allegation.  Fortunately, nobody believed it.

4. Later in time because of a change in geography the orders had to be reconfigured.  Agreement was reached.  The orders were signed.  The next day pursuant to the agreement the children went to spend time with their mother.  One of the children had a bruise or a cut of some description and the mother turned that into an assault by the children’s stepmother.  Thereafter, the mother had the children in her care for six months under what I subsequently found to be totally spurious inappropriate circumstances.  The system let the father and the children down badly at that time.

5. Counsel has set out in great detail, as I have said, the history of this matter.  I am perfectly familiar with it and I accept the accuracy of the information that he has placed before the court.  In more recent times there was supposed to be agreement.  Orders for trial directions were made.  The father is legally represented but he is not legally aided.  All the time, the cash register is ringing, because he has to file an affidavit from himself and from his partner.  The mother did not file a thing.  Not one scintilla of evidence until she filed at my direction a document setting out the financial situation of her household.

6. The upshot of all this is the father is left with a legal bill of some $35,000 in a household where the total equity they have is about $36,000.  There is a real sense in this matter, and it saddens me to have to make these findings, but the mother has at times over the years attempted to manipulate the court system.  With her track record a Judge could have no confidence in her bona fides.  To put it in more simple language, I don’t accept that she has acted in good faith.  I do not doubt for one moment her love of the children, the fact that she would wish it were otherwise that the children had been taken from her.  It is almost a case where one could interpret the mother’s conduct as motivated by malice.

7. What lends weight to that suggestion is the entry on page 6 of exhibit 1, from the proceedings in April this year.  It is an entry from the mother’s Facebook site.  The entry reads:

   I was worried for a while there he wouldn’t turn up, but he was running late.  I don’t care.  I’ve still got my babies.  Felt like being a smart arse and telling him to be afraid that I won’t take them back for another six months which would equal another $20,000.

   And, then, a:

   Bwahahaha lol.

   So if the mother thinks that she can keep engaging in this sort of conduct and forcing the father to incur large legal bills in trying to present his case she has to have a rethink about that, because there are consequences for a litigant behaving in this manner. 

8. I accept the submission by counsel for the father that the two important issues that stand out in this matter, pursuant to the terms of section 117(2)A are conduct, on the one hand, and capacity to pay.  If the father’s household sounds financially better off than the mother’s it is only marginal.  I have often held that an impecunious litigant cannot litigate with impunity and then hide behind the fact of no assets and no income.  There is a decision to this effect by Warnick J, sitting as an Appeal Court judge, in the matter of W & L, the reference number is NA9 of 2006.  It was 2006 FamCA 313, a decision with which I am quite familiar.

9. Simply because it is going to be difficult to enforce an order does not necessarily mean the order shouldn’t be made.  A Judge is normally reluctant to make an order knowing that parties with little assets and little income are going to be saddled with significant debt.  But it is a situation where in this case I think it is called for.  I had toyed with the idea of simply adjourning the costs application as some measure of ensuring the mother’s compliance in the future and of appropriate behaviour in the future.  The mother has to accept that the father is the primary caregiver and has the greater influence with these children.  The way she has behaved leads to a lack of trust between the households.  You want to bend the rules.  You want to ask a favour, “Can we have them for extra time?”  Why should you be trusted?  And that is the sad consequence of engaging in conduct such as this.

10. I have been given the itemised account, but it is based on a costs agreement which has not been produced.  However, I am familiar with this matter and I do take into account the fact that the recovery proceedings were fully justified and the mother’s conduct in holding over there was totally unjustified.

11. I am aware of the fact that the orders were made.  There had been agreement.  And as with the sexual abuse allegations, suddenly there were assault allegations against the stepmother.  The situation as I read it is, I am prepared to make an order for an amount which I would estimate would be in the range of half the costs.  I am going to fix the costs to save the father further expense of having to have the fees assessed.

12. The mother is ordered to pay the father’s costs fixed at $15,000.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  2 August 2010