Shailer and Shailer (No 2)

[2009] FamCA 1288

FAMILY COURT OF AUSTRALIA

SHAILER & SHAILER (NO. 2) [2009] FamCA 1288

FAMILY LAW – CHILDREN – With whom a child spends time and parenting orders – Husband travelled from United States to facilitate his time spent – Variation of order – Application recently filed – Wife not legally aided – Order of costs in favour of wife – Prohibition order issued by Child Support Agency – Adjournment of that issue to Federal Magistrates Court on jurisdictional basis

Family Law Act 1975 (Cth)

APPLICANT: MS SHAILER

RESPONDENT: MR SHAILER

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4210 of 2007

DATE DELIVERED: 23 DECEMBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 23 DECEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS TREYVAUD

SOLICITOR FOR THE APPLICANT: KENNEDY WISEWOULDS

COUNSEL FOR THE RESPONDENT: MS STOIKOVSKA

SOLICITOR FOR THE RESPONDENT: HICKS OAKLEY CHESSELL WILLIAMS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS WELDON

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SEPTIMUS JONES & LEE

Orders

IT IS ORDERED BY CONSENT:

1. THAT for the purposes of the time to be spent by the husband with the child … born … July 2006 (“the child”) and by variation of paragraph 3(d), (e) and (f) of the Orders pronounced 21 July 2009:

   (a)the supervisors be the wife for the 25^th and 27^th December; Mrs R for 29^th and 31^st December 2009; Mrs B on 2^nd January 2010;

   (b)the periods to be supervised by the wife be undertaken at D Street, D;

   (c)for the periods supervised by Mrs R and Mrs B the husband by no later than 12.00 noon on each of the 28^th, 30^th December 2009 and 1 January 2010, notify the wife by e-mail the address of his proposed location for meeting the child and supervisor for each period provided that the location nominated by him be within the suburbs of … and ….

2. THAT the husband is to e-mail the wife via his e-mail address:

   
    

   …@hotmail.com to the wife’s email address: …@hotmail.com.

3. THAT in the event the husband does not e-mail the wife by 12.00 noon on 28 and 30 December 2009 and 1 January 2010 the location of the meeting place the parenting be at D Street, D.

4. THAT for the 2010 time spent provided for in paragraphs 3 (e) and (f) of the Orders made 21 July 2009:

   (a)the wife e-mail to the husband, fourteen (14) days prior to the first visit details of the proposed supervisors;

   (b)no later than seven (7) days prior to the first scheduled visit the husband e-mail to the wife details of the address of the proposed location for meeting the supervisors and the child.

5. THAT in the event the husband does not e-mail the wife in accordance with paragraph 4 (b) herein the location of the meeting place be D Street, D.

6. THAT otherwise paragraphs 2, 3 and 4 of the initiating application of the husband filed 12 November 2009 and paragraphs 4, 5 and 6 of the amended application filed 9 December 2009 be dismissed.

7. THAT in furtherance to paragraph 6 of the orders pronounced 21 July 2009 the further court mention of this matter be fixed before Registrar Sikiotis on 7 April 2010 at 2.30 p.m. with the legal representatives of all parties, or otherwise the parties themselves, to attend by telephone.

IT IS FURTHER ORDERED, NOT BY CONSENT

1. THAT the husband pay the costs of the wife of and incidental to the proceedings before the court this day and referrable to each of his applications filed 12 November 2009 and 9 December 2009, such costs to be paid at a rate of 80% of the taxed quantum thereof and that such payment be stayed for a period of sixty (60) days beyond the agreement or assessment of such costs.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife and solicitor appearing as counsel for the Independent Children’s Lawyer.

SEPARATELY, IT WAS FURTHER ORDERED – BUT WITHIN THE SAME HEARING AND NOT THE SUBJECT OF REASONS GIVEN

IT IS ORDERED:

1. THAT paragraph 1 of the husband’s application in a case filed 12 November 2009 and paragraphs 2 and 3 of the husband’s amended application filed 9 December 2009 be adjourned for hearing in the Federal Magistrates Court and be listed for priority hearing before Federal Magistrate Reithmuller on Monday 4 January 2010 at 9.45 a.m.

2. THAT (with the consent of both parties) paragraph 1 of the orders sought in the amended application filed 9 December 2009 be otherwise dismissed.

3. THAT any further application deemed to be filed by or on behalf of the husband as to his appeal pursuant to s 72Q of the Child Support (Registration and Collection) Act 1988 (Cth) be filed and served on or before 4.00 p.m. Wednesday 30 December 2009.

4. THAT there be no order as to costs of and incidental to this application this day.

5. THAT if the Registrar of the Child Support Agency, or any delegate thereof pronounces any determination or grants any Certificate so as to permit the husband to depart Australia then that fact is to be communicated to the Family Court, Registrar Sikiotis, as soon as is practicable by the Child Support Agency and the husband’s solicitor.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and solicitor appearing as counsel for the Second Respondent.

IT IS NOTED

A.THAT the intended issue before the Federal Magistrate on the adjourned hearing date is by way of an appeal against the decision to place a prohibition order upon the husband as made by the Delegate of the Registrar of the Child Support Agency.

B.THAT as a result of out of Court discussions this day the husband has been in telephone contact with his Case Manager, in Hobart for the purposes of obtaining a Certificate which would enable him to depart Australia notwithstanding the continued existence of that prohibition order by way of exemption thereto.  Additionally the husband has this day verbally applied for a revocation of that prohibition order to be made by the Agency.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4210 of 2007

MS SHAILER

Applicant

And

MR SHAILER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In this hearing today Ms Stoikovska of counsel appears for the wife, Ms Treyvaud of counsel for the husband, and Ms Weldon appears for the Independent Children’s Lawyer.

2. This matter has been before the court on too many occasions over past years and remains ongoing before the court with a projected final hearing date in the middle of next year.  It is then expected that the issues will be better identified and some level of common sense can apply, and in that regard there is a significant onus upon solicitors for all parties to confer with their clients, to provide proper and meaningful advice and not merely to follow instructions that are costly and perhaps inappropriate. 

3. I make those preliminary observations in the context that hopefully there will be a common sense approach in the wider context of the parental responsibility and parenting orders that are sought in a case complicated by distance, travel and limited finances.  The issue before me today arose in the husband’s application in a case filed 12 November 2009 where he sought to vary existing orders as to his time to be spent with his daughter, who is now three and a half years of age or thereabouts, and otherwise issues of supervision and the location for that time to be spent between father and daughter. 

4. By a further amended application in the case filed 9 December 2009, further orders were sought in addition to the earlier parenting orders that had been filed with the court.  Substantial preparation has gone into this case through the husband, his affidavit and those of his witnesses and with the wife filing a response dated 22 December 2009, and a substantial affidavit of hers and supporting affidavits.  By way of background, there were consent orders negotiated by former counsel for the various parties that were pronounced in July of this year and which intended to cover all matters in dispute in both December and, looking ahead, to Easter and July of next year (2010).

5. The issue today revolved around the identity of the supervisors and the location of the meeting place, and relatively minor issues to be adjusted between the parties.  The tragedy of this case, both in terms of the relationship between parents and on a financial basis, is that there is no meaningful discussion or co-operation and hence monies are expended by the engagement of lawyers on issues that simply should not or do not require legal representation, and if so, certainly not of counsel.  The husband’s initial application of 12 November 2009, as best as I can understand the various submissions, was made without prior written notification to the wife’s solicitors or otherwise direct discussion and communication between the parties.

6. His application was the trigger to further court action and expense.  I well understand that there were other matters concerning the husband of and related to a departure prohibition order imposed by the Child Support Agency.  That was part of each application, but was not a matter that directly impacted upon the wife.  Whilst the husband therefore had a twin purpose in issuing applications, only one aspect of the case, that is the parenting child aspect, necessitated the wife’s involvement and engagement of lawyers.  There are now minutes of consent orders, they are relatively straightforward on these issues.  I have indicated I will make orders in these terms.

7. What now arises is a costs application made by counsel for the wife.  It is opposed by counsel for the husband.  The estimate of legal costs incurred of and incidental to the wife’s response to the application and her attendance and legal representation here today is a sum of approximately $8,500.  On behalf of the wife there was filed extensive affidavit material and she had the attendance of both solicitor and counsel throughout this hearing today.  The wife is on Centrelink benefits, has limited income and minimal assets, and relies upon her extended family to pay legal expenses.  She is not legally aided.

8. I am aware of the husband’s financial circumstances from his most recent filed financial statement.  He has a home in the United States of America, valued, he says, at approximately $100,000, but encumbered by a mortgage almost three times that sum, together with other significant credit card and family debts.  There has been no investigation of his financial circumstances.  There is also an outstanding child support assessment of approximately $14,000, which includes arrears and interest accrued and other charges.  The relevance of that debt is it forms the basis upon which a Delegate of the Registrar of the Child Support Agency has issued a prohibition notice which restricts the husband’s departure from Australia.

9. The husband is currently in Australia for a brief period and is scheduled to depart on 4 January 2010. Within that limited framework I am asked to adjudicate on the costs payable by the wife and for which she would have the husband pay or contribute to as a result of the orders made this day. Section 117(1) of the Family Law Act1975 (Cth) requires each party to pay their own costs as the commencement point on any consideration of a costs outcome. A very clear exception is in circumstances where it is just to make an order for one party to pay or contribute to the costs of the other party. Sub-section 2(A) sets out the various factors that the court must have regard to and, in summary, these include the financial circumstances of the parties, the conduct of the proceedings and all matters of and incidental to the application and subsequent evidence in the hearing and ultimately as to the result and whether a party has been wholly unsuccessful or otherwise.

10. There is the additional discretion with the court to have regard to any other relevant matter.  Costs are discretionary subject to being properly considered and balanced within the ambit of s. 117 and appropriate reasons being provided.  The principal issue that is of concern to me and has balanced the scales in favour of a costs order is the manner in which the husband, knowing the wife’s communication address and that of her solicitors, instructed his solicitors in the matter generally but particularly with the issuing of proceedings on 12 November 2009.  There are, and solicitors must understand, significant responsibilities in issuing proceedings without exploring all available levels of discussion or negotiation and, as best as I can ascertain in this case, the issuing of that application was a pre-emptory strike by the husband to the court to recommence proceedings in this litigious matter.  I have therefore evaluated each of the required and relevant factors, particularly the conduct and outcome of proceedings and all of the financial circumstances of each party. I find that it is just that there be a departure from the commencement basis of each party paying their own costs.

11. As I understand, the husband had a dual purpose and it may simply be that his view and that of his solicitor was that they were required in court for matters against the Child Support Agency and have involved the wife on the basis that he, otherwise, would have been in court.  That does little for the financial circumstances of the wife and indirectly, therefore, the wellbeing and financial circumstances of the child.  The issues before the court were limited and clearly were the subject of agreement and should always have been the subject of agreement between the parties or solicitors.  The dispute was really no more than a modest adjustment to existing orders.  Having said that, the balancing matter of concern is order 4 where the wife was required to arrange a supervisor for each visit “well in advance and notify the husband as soon as practicable of the identity and location of each supervisor and venue for supervision.”

12. That order was drawn by counsel who are no longer engaged in the matter.  It is unhelpful in that it is general and does not prescribe a time limit and gives no certainty to the parties.  In any event, and given what has been outlined before me today, it cannot be said that the wife attended to her obligations with punctuality.  My understanding is the recent letter is only a matter of a week or thereabouts past as to issues of the supervisor and the venue.  Nevertheless, the matter was in court and that issue probably went more to the actual representation engaged for this day and the cost of this day as distinct to the cost of all of the proceedings.

13. What I propose to do is to mitigate, to some extent, the costs order that otherwise would have been made wholly against the husband and to make an order that the husband pay the wife’s costs to be taxed of and incidental to the proceedings in this application as to 80 per cent of the total sum.  That provides a just balance and outcome for the parties.  What I add is to commence that litigation is expensive and somehow, someway the message needs to be understood by solicitors, both the solicitor present and perhaps more particularly the solicitor not present, that litigation is a costly exercise.  The lawyers may get paid but the clients pay and some clients cannot afford litigation, particularly non-productive litigation, and parties need show a marked level of commonsense before briefing solicitors and or counsel.

14. The costs of these proceedings across the board are wholly disproportionate to the issue before the court and the outcome.  As to the child and parenting issues there is little or no complexity.  I do not include the issuing or the existence of the prohibition order within that comment.  Accordingly, I will direct that the costs of the wife of and incidental to these proceedings including counsel’s fees be taxed and when taxed be paid by the husband as to 80 per cent thereof.  The issue of payment of those costs and any delay in payment is a matter that should be considered when the quantum is known but I would stay payment for a period of 60 days beyond the formality of the proceedings to assess such costs.  Hopefully solicitors can agree on a proper sum for costs without again involving the court.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: