STEWART & STEWART

[2015] FamCA 805

FAMILY COURT OF AUSTRALIA

STEWART & STEWART [2015] FamCA 805

FAMILY LAW – CHILDREN – Application by the mother seeking to suspend final orders and interim and final parenting orders – father’s contravention application in relation to the mother failing to provide the children – final orders made by consent

FAMILY LAW – COSTS – Application by the father for costs – where both parties have agreed to withdraw their respective applications – where neither party is currently employed – where both parties live in unencumbered homes – no reason to depart for the general rule – final orders made dismissing the father’s application for costs

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Stewart

RESPONDENT: Ms Stewart

FILE NUMBER: MLC 4727 of 2012

DATE DELIVERED: 23 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 23 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dosanjh

SOLICITOR FOR THE APPLICANT: Hartleys Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT THAT

1. Leave be granted to the mother to withdraw her Initiating Application filed 18 May 2015.

2. Leave be granted to the father to withdraw his Contravention Application filed 22 May 2015.

3. The children B born … 2002 and C born … 2005 spend time with the father as follows:

   (a)       from 31 July 2015 until 5 August 2015;

   (b)       from 7 August 2015 until 12 August 2015;

   (c)       from 14 August 2015 until 19 August 2015;

   (d)       from 21 August 2015 until 26 August 2015;

   (e)       from 28 August 2015 until 2 September 2015;

   (f)       from 4 September 2015 until 9 September 2015;

   (g)       from 11 September 2015 until 16 September 2015;

   (h)       from 18 September 2015 until 5 October 2015;

   (i)        from 9 October 2015 until 14 October 2015;

   (j)        from 16 October 2015 until 21 October 2015; and

   (k)       as otherwise agreed in writing between the parties.

4. Commencing on 23 October 2015 the children spend time with the father in accordance with the final orders made in this Court on 6 June 2014.

5. The mother forthwith do all acts and things and sign all necessary documents to withdraw her applications for intervention orders against Mr Stewart and Ms D and provide proof of same to the father.

IT IS FURTHER ORDERED THAT

1. The father’s oral application made this day for costs is dismissed.

2. The matter be removed from the list of cases awaiting hearing.

IT IS NOTED THAT

A.These orders provide for make-up time between the children and the father.

B.The orders for make-up time and the existing final orders made by consent on 6 June 2014 are inconsistent with the provisions of the intervention orders against the father made in the Magistrates Court at Suburb E on 9 June 2015 and against Ms D made in the Magistrates Court at Suburb E on 10 June 2015. It has been explained to the mother who is the applicant in both intervention orders that the orders to be made by consent this day are inconsistent with the intervention orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stewart & Stewart 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 4727 of 2012

Mr Stewart

Applicant

And

Ms Stewart

Respondent

REASONS FOR JUDGMENT

1. This matter was first listed for hearing before me in the Judicial Duty List on 8 July 2015.  The proceedings in the Judicial Duty List that day were the mother’s Initiating Application in which she sought orders seeking to suspend previous parenting orders on an interim basis and further final parenting orders.  There was also the father’s Application for Contravention, which was filed on 22 May 2015.

2. The father’s application for contravention proceeded before me that day and was adjourned part-heard to today.  The parties have now reached agreement on the basis that the mother be granted leave to withdraw her Initiating Application, which was filed on 18 May 2015.  The father will similarly withdraw his contravention application filed 22 May 2015.  They have agreed upon make up time with the father and have also agreed that the mother will do all acts and things necessary to withdraw her application for intervention orders against both the father and his now wife.

3. An interim intervention order was made against the father in the Magistrates’ Court at Suburb E on 9 June 2015.  That order, however, permitted the father to do anything permitted by a Family Law Act order; hence, any orders with respect to him spending time with the children can occur notwithstanding the intervention order. 

4. There is also an intervention order made in the Magistrates’ Court at Suburb E on 10 June 2015 against the father’s new wife, Ms D, which, amongst other things, restrained her from going to or remaining within 200 metres of F Street, Suburb G, or any other place where a protected person lives, works, or attends school/child care.  The children were parties to that application.

5. There is no restraint in the orders proposed to made by consent upon the children coming into contact with the father’s new wife, to the contrary it is intended that she will be present for the purposes of the time the children spends with the father.  That is clearly inconsistent with the intervention order as it is presently worded and that has been explained to the mother.  She understands the ramifications of that.  These are orders made by consent, and in those circumstances, I am satisfied it is appropriate to make orders that are intended override the interim intervention orders particularly as the mother has also consented to an order that she will do all acts and things and sign all necessary documents to withdraw her applications for intervention orders and that it is appropriate that I make the orders the parties seek by consent..

6. Having made orders by consent which include each of the parties withdrawing their applications - in the mother’s case, her Initiating Application seeking to vary final orders made on 6 June 2014, and in the father’s case an Application for Contravention seeking to enforce those orders - the father seeks an order that the mother pay his costs fixed in the sum of $8000. The general rule is that each party to proceedings in this Court bears his or her own costs. That general rule is subject to s 117(2) of the Family Law Act 1975 (Cth), which provides that:

   If … the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

7. Section 117(2A) provides that in considering what order, if any, should be made under subsection (2), the court shall have regard to the matters set out in that subsection, which include:

   a)the financial circumstances of each of the parties;

   b)whether any party to the proceedings is in receipt of legal assistance by way of legal aid;

   c)the conduct of the parties to the proceedings;

   d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   f)whether any offer has been made by either party in writing;

   g)such other matters as the court considers relevant. 

8. The weight to be given to these matters is at the discretion of the Court and obviously subject to the particular circumstances of each case.

9. It is submitted on behalf of the father that in this case each of the parties own their own homes unencumbered.  The father is presently unemployed, as would appear is the mother.  The father submits that the mother has money in a bank account, and essentially what he is saying is that there is no financial impediment to her meeting an order for costs, and that neither of their financial circumstances would be determinative of whether a costs order should or should not be made either in favour of the father or as against the mother.

10. It’s the father’s case that the mother’s Initiating Application was essentially vexatious, that she has unilaterally suspended his time with the children, and that he had no option other than to bring an Application for Contravention.  It is further submitted that the mother has suffered no financial detriment as a result of these proceedings as she has represented herself throughout the proceedings, whereas he has incurred significant costs.  It was also submitted that the Court should send a message to the mother that she can simply not stop time when it suits her without justification.

11. The mother, for her part, relies upon the fact that, whilst she does live in an unencumbered property, she is not working and is presently not entitled to Centrelink benefits because she is not an Australian citizen, and the money she has available is used to meet the living expenses for herself and the children.  Although she has some qualifications, she had a car accident in December last year, as a result of which, because of medication she was taking, she blacked out, broke her ankle and was bedridden for some months  early this year.  She is aiming to get employment as a swimming instructor but is presently not working. 

12. It is also her case that she was told a story by her daughters, and that she acted, appropriately at the time.

13. I am satisfied that the financial circumstances of both the father and the mother are such that they neither militate against an order being made or warrant an order being made.  Neither party in this case has been wholly successful or unsuccessful because what has occurred is that the parties have both agreed to withdraw their applications. Given the outcome, there are no findings with respect to either the mother’s application being vexatious or, for that matter, that she has contravened the order.

14. Whilst it is suggested that a costs order would send a message to the mother, costs are not intended to be a penalty or punitive as submitted an order in this case should be.

15. This case however, presents somewhat of a cautionary tale, and the answer may well be that whilst children tell you things, that there may need to be some more reflection upon what they have said.  In any event I have not made any findings.

16. I am also mindful of the fact that, had this matter not resolved and gone to a judgment, there would have, of necessity, been a further hearing date in relation to this application, there would have still been on foot the initiating application, which would have required further Court days, and which would have resulted, in the father incurring further costs, if he was to continue to be legally represented,  There are also the intervention order proceedings which, as I understand it, were listed for a contested hearing in the Magistrates’ Court at Suburb E in early September.  By resolving the matter in this way, the parties have not only avoided the further proceedings and the possible costs that might be incurred as a result of those proceedings, but hopefully they have drawn a line in the sand and will move forward to parent these children, hopefully avoiding further proceedings such as these ones.

17. if there were to be further contravention applications of a similar kind, whilst there is no finding that the mother has contravened the order, as demonstrated by the hearing before me today, the history of the matter is likely to be relevant, and no doubt the circumstances of this application would be the subject of evidence in any future proceedings. 

18. In all of the circumstances, I do not consider that it is appropriate to depart from the usual rule, and I propose to dismiss the father’s application for costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 23 July 2015.

Associate: 

Date:  29 September 2015