TAMASINE & WEERASINGHE

[2016] FamCA 1108

FAMILY COURT OF AUSTRALIA

TAMASINE & WEERASINGHE [2016] FamCA 1108

FAMILY LAW – CHILDREN – Final parenting orders made by consent

FAMILY LAW – COSTS – Application by the mother for costs – difference between the mother’s proposed orders and consent orders reached by the parties – no circumstances to justify a costs order

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

APPLICANT: Ms Tamasine

RESPONDENT: Mr Weerasinghe

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 8742 of 2014

DATE DELIVERED: 20 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 20 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Mills Oakley

COUNSEL FOR THE RESPONDENT: Mr Atkinson

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all previous parenting Orders be and are hereby discharged, save that Orders 32 to 34 of the Orders made 22 December 2015 continue in full force and effect.

2. That Mother and Father have equal shared parental responsibility for B born …, 2001 and C born …, 2003 ("the children").

3. That the children live with the Mother.

4. That C spend time with the Father as follows:

   (a)in each alternate week, from 4.00pm on Saturday until the commencement of school the following Tuesday (3 nights),  commencing Saturday 16 July 2016;

   (b)for 6 days and nights in each of the First and Second school term holidays and 8 days and nights in the Third school term holidays on dates and times to be agreed between the parties, and failing agreement in the first part of each school holiday period commencing at 4.00pm on the first Saturday of the school holiday period and concluding at 5.00pm at the end of the 6 or 8 night period (with the times pursuant to sub paragraph (a) herein to be suspended during such holiday periods);

   (c)      during the long summer school holidays:

   (i)from 4.00pm on 10 December until 5.00pm on 17 December;

   (ii)from 10.00am on 20 December until 5.00pm on 26 December; and

   (iii)from 10.00am on 17 January until 5.00pm on 24 January.

   (d)on C's birthday for no less than two hours if a school day and no less than four hours if a non-school day; and

   (e)      as otherwise agreed between the parties.

5. In the event that C has a tournament on a Sunday when he is due to spend time with the Father, the Father shall ensure C’s attendance and participation in his tournaments (whether for rookie tournaments or other tournaments occurring on his weekend).

6. That the Father shall complete an approved course as nominated by the Independent Children’s Lawyer.

7. That the Mother be at liberty to travel outside of Australia with the children (or either of them) during times that the children (or either of them) are spending time with her over the school holidays upon giving the Father 30 days’ written notice of the proposed dates of travel and itinerary.

8. That for the purposes of C’s changeover the Father collect C from the Mother’s home at the commencement of the Father’s time with C and, when the conclusion of the Father’s time with C falls on a non-school day, the Mother collect C from the Father’s home at the conclusion of such time, unless otherwise agreed by the parents in writing.

9. That the time B spends with the Father be pursuant to her wishes.

10. That the parties keep each other informed of each other’s current contact details including mobile telephone numbers (for emergencies), email and residential address.

11. That the Father and Mother are each authorised and entitled to receive information from all professionals concerned with the children’s health, welfare and education and from the children’s respective schools and extra-curricular activity providers (including but not limited to school reports, photographs, newsletters and all other information ordinarily provided to parents).

12. That the Father and Mother each be entitled to attend all school and extra-curricular occasions for C to which parents are normally invited regardless of who C is living with at that time.

13. That the Father and Mother each be and are hereby restrained from:

    (a)       denigrating the other parent to or within the hearing of the children; and

    (b)      physically disciplining the children;

    or suffering another person doing so.

14. Each party shall, as soon as possible, keep the other informed of any significant illness or injury suffered by either of the children which requires medical treatment whilst the children are in that party’s care and further advise of any medical treatment that the children receive including any hospital or other facility that the child attends.

15. That B continue her regular attendances upon Ms D, Psychologist for the purpose of therapeutic counselling and C attend upon Mr E, Psychologist to provide therapeutic counselling for B and C on such terms and frequency as recommended by Ms D/Mr E, from time to time, it being noted that this is at the Father’s expense.

16. That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS ORDERED

1. That all extant applications be dismissed.

2. That pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable for the parties to engage Counsel for the purposes of these proceedings.

3. That each party bear their own costs.

IT IS DIRECTED

1. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same.

AND THE COURT NOTES:

In addition to the monthly Sunday chess tournaments attended by C, C also attends competitive tournaments during long weekends and school holidays.

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 Tamasine & Weerasinghe 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 MELBOURNE

FILE NUMBER: MLC 8742 of 2014

Ms Tamasine

Applicant

And

Mr Weerasinghe

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me today for final hearing.  It is a matter that has some history before the Court, originally having been docketed to Bennett J and then listed for a final hearing before Berman J earlier this year.  It was not reached on that occasion and as a result was listed before me today for a three-day hearing. 

2. The issues before the Court relate to the future parenting arrangements for the parties’ two children, B who is aged 14 and C who is aged 13. 

3. The background to the dispute is as follows.

4. The mother is aged 48 years.  She is engaged in home duties presently although she has academic qualifications.  She resides in the former matrimonial home with the two children.

5. The father is aged 47 years.  He is engaged in full-time employment as a health professional, and I note that he operates a business providing specialist services to a hospital. 

6. The parties commenced their cohabitation in February of 1999.  They married in that year, and final separation occurred in 2014. 

7. The parties have had both financial as well as parenting proceedings before the Court.  There have been a range of issues between them with respect to future parenting arrangements.

8. It is clear from the material that has been filed that the period leading up to the separation and in the aftermath of the separation has been difficult.  It is a complex matter for many reasons.  One of the principle issues in the parenting dispute has been the decision of the father to be more open as to his transgender identity.  That has been a significant issue for the parties, and there are questions as to the children’s knowledge of that aspect of their parents’ lives. 

9. The parties have engaged with a range of professionals to assist them with future parenting arrangements.  Initially, they engaged with a psychologist Ms F; there were difficulties with that engagement.  As a result, they moved to seek a family report and did, in fact, seek a Family Report from Dr G who, unfortunately, died during the period the proceedings have been on foot.  As a result of Dr G’s death, it was necessary to engage a further report writer.  Ms H has been assisting the parties and prepared a Family Report in August of 2015. 

10. In addition to the input from Ms H the children have also attended upon psychologists to provide them with support and assistance since the parties’ separation.  Each child has their own psychologist with whom they continue to attend, and I note that the proposed orders make provision for that to continue. 

11. The parties have also had, no doubt, enormous assistance from the Independent Children’s Lawyer who has clearly taken a very active role in the matter including as recently as last Friday arranging appointments to meet with C, the parties’ youngest child, and Ms H who is, as I have already noted, the psychologist who has prepared the family report in the matter.  Following that meeting, the Independent Children’s Lawyer provided feedback to the parties initially in the form of a letter forwarded to each of them late on Friday evening indicating her views and the position to be taken by her for the purposes of the trial commencing today.

12. At the commencement of the hearing before me, it was sought that the matter be stood down so that further information could be obtained from the Independent Children’s Lawyer as to the basis for the recommendations that she was making to the Court.  It is during the course of those discussions that the parties have found a way to compromise their positions and to resolve the matter, and the fruit of those discussions is the minute of order that is now presented to me. 

13. The orders as sought provide for a continuation of the child C to spend time with his father on an alternate weekly basis commencing on Saturday afternoon and concluding at the commencement of school on Tuesday mornings.  That provides C with the opportunity to have his father engage not just in his weekend leisure activities, but also to have some active and meaningful involvement in his school life.  It is the arrangement that has been in place for some time now.  It is an arrangement that accords with the recommendations made by the report writer.  It is also an arrangement which reflects the views expressed by C, who as I have already noted, is aged 13 years.

14. Having regard to those matters I am satisfied that it is an arrangement that is in C’s best interests. 

15. Further, the proposed orders provide for C to have extended holiday periods with the father, and there is significant care and consideration in the formulation of the orders such that it specifically sets out for C to have the opportunity of six nights with his father during the first and second term holidays as well as extended periods during Term 3 holidays and during the long summer holiday period.  The advantage to that arrangement is it provides C the opportunity to spend holiday time with both parents.  It will provide the opportunity for him to travel either interstate, and in the case of the mother, overseas for extended periods to spend time in holiday activities. 

16. Again, I am satisfied that they are appropriate orders.  They accord with the recommendations of the Independent Children’s Lawyer based upon discussions with Ms H, and, accordingly, I am satisfied that they are proposals that are in C’s best interests. 

17. As to the child B, she is aged 14 years, and it is common ground between the parties that the time between her and her father should be subject to her wishes.  The orders reflect those arrangements.  I am satisfied having regard to B’s age and maturity that that is an appropriate arrangement in the circumstances of this case. 

18. There are further detailed orders setting out arrangements for the provision of information both with respect to any medical treatments as well as information regarding the children’s schooling and extracurricular activities.  Again, I am satisfied that they are proper arrangements that appropriately meet the children’s best interests.  Having regard to all of those matters, I will make orders in the terms of the consent order that is signed by the parties.  I will make three further orders.  Order 17 will be that the appointment of the Independent Children’s Lawyer be discharged.  Order 18 will be that all extant applications be otherwise dismissed, and order 19 will be a certification for counsel.  I will make a further direction that the documents produced under subpoena be returned to the relevant agency.

19. Having made final orders by consent in this matter, I am now asked to consider an application on behalf of the mother in respect of costs.  The order that she seeks is that the father pay her costs of these parenting proceedings as and from 22 December 2015 as agreed and failing agreement as assessed.  The submission that is made on behalf of the mother is that she has since the date identified in her application, that is, 22 December 2015 sought orders in the terms of the recommendations of the family report writer Ms H and sought to adopt the recommendations of the Independent Children’s Lawyer, those recommendations being that the child C continue to spend time with his father for three nights per fortnight. 

20. Particular reliance was placed upon a directions hearing before Bennett J which occurred on 22 December 2015.  That day, her Honour made final property orders.  She also made directions fixing these applications for final hearing before Berman J on 15 February 2016.  At paragraph 36 of those orders, her Honour made directions for the filing of amended application and evidence in support.  It was submitted that on 24 December, some two days later, a letter was forwarded on behalf of the mother setting out her position adopting the recommendations of Ms H.  Now that the matter has resolved, largely in the terms of those recommendations, the mother submits that it is appropriate that orders be made for the father to pay her costs from that date. 

21. Emphasis was also placed on the disparity in income-earning capacity between the parties.  In particular, submissions were made in respect of the binding child support agreement that was entered into by the parties which provides recitals detailing the parties’ respective financial positions.  It was submitted that the father’s income is between $660,000 and $800,000 per annum whilst the mother is occupied in home duties and receives only passive income from her investments which were received following the parties’ property settlement.

22. It is alleged on behalf of the mother that she has incurred approximately $25,000 in costs since December of 2015.  It was submitted that the letter forwarded to the father’s solicitor on 24 December was sent in order to avoid the hearing.  Further, I was informed that a minute of proposed order was sent at that time. 

23. The father puts his position as follows.  He points to the fact that the parties have been unable to resolve their differences by consent, that the resolution today has avoided the necessity of two further days of hearing.  It is put on behalf of the father that the arrangements with respect to the long holiday period were not clear at the time of the mention before Bennett J on 22 December 2015.  Indeed, what is said on behalf of the father is that the position with respect to holidays was not clarified until this morning when the parties had the opportunity to meet with Ms H and the Independent Children's Lawyer . 

24. The Independent Children’s Lawyer and Ms H met with C on Friday afternoon last week.  Recommendations were provided to the parties by the Independent Children’s Lawyer following that meeting, but those recommendations were silent as to the position with respect to the long summer holiday period.  It was only this morning when the opportunity was provided for the parties to have some discussion with the Independent Children’s Lawyer that her position was clarified.  Upon those recommendations being made, the parties resolved that issue in the terms of the consent orders. 

25. The position of the mother prior to the commencement of the hearing today was that set out in her case outline document filed on her behalf on 9 February 2016.  That document set out at part 4, paragraph 3(c) her position in relation to the long summer holiday period.  That position was that the father should spend time with C for three periods.  The first of four days, the second of five days and the third of five days duration.  The agreement that the parties have reached today and the basis upon which I have made final orders is that C will spend the long summer holiday period with the father over three blocks of time:  the first of seven days duration, the second of six days duration and the third of a further seven days duration.

26. There is some difference and in fact, it is a difference of approximately a week between the two positions. 

27. The general rule with respect to costs applications is that each party to proceedings pursuant to the Family Law Act 1975 (Cth) should bear their own costs. Section 117(2) provides that if the Court is of the opinion that there are circumstances that justify doing so, the Court may, subject to the provisions of subsection 2A, 4, 4A and 5 and the Rules of Court make such order for costs and security for costs as the Court considers just.

28. Section 117(2A) sets out the matters that the court should have regard to in considering whether to make an order for costs.  Those circumstances include the financial circumstances of each of the parties to the proceedings and the conduct of the parties to the proceedings in relation to the proceedings.  That conduct can include matters such as the history that I have indicated as to the positions of the parties with respect to their proposals and the like. 

29. The issues before the Court were complex.  It is clear from the material filed that each of the parties in their own ways had difficulties with respect to insight. 

30. The position of the Independent Children’s Lawyer was clarified today.  It is to the credit of the parties that they were able to consider the indications of the Independent Children’s Lawyer and to adjust their positions. 

31. In my view, in light of the history, it is not appropriate that an order for costs be made in respect of these proceedings. 

32. I recognise that parenting proceedings, as with other applications that come before the Court, are not immune to costs orders.  However, it cannot be said that the mother has been wholly successful in her application.  She has modified and adjusted her position no doubt taking into account the discussions that occurred between C and the Independent Children’s Lawyer and Ms H on Friday evening.

33. Likewise, the father has had to reflect and consider the impact of those discussions, and it is in that context that the matter has resolved before me today.  In my mind, that history does not justify an order for costs.  Accordingly, I dismiss the mother’s application for costs made this day

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 20 June 2016.

Associate: 

Date: 20 June 2016