Thestor and Bugno (No. 2)

[2013] FamCA 708

FAMILY COURT OF AUSTRALIA

THESTOR & BUGNO (NO. 2) [2013] FamCA 708

FAMILY LAW – ORDERS – Contravention outcome – bond – matter set down for trial and parenting orders varied on an interim basis.
FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Thestor

RESPONDENT: Mr Bugno

FILE NUMBER: MLC 1127 of 2012

DATE DELIVERED: 30 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 30 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fronistas

SOLICITOR FOR THE APPLICANT: Henty Stamfords

THE RESPONDENT: In Person

Orders

1. That paragraphs 4.7, 4.8, 5, 8, 12, 13, 14, 17 and 18 of the orders made on 13 March 2013 are discharged.

2. That until further order, during the period of time that the children are living with their mother, they speak to the father by telephone communication on each Wednesday at 7.00pm and the mother facilitate such call.

3. That during the period from the Thursday through to the Monday when the children are in the care of the father, they speak to the mother at 4.00pm on those Sundays and the father facilitate the call.

4. For the avoidance of doubt, the children speak to the parent with whom they are not living during school holiday periods at 7.00pm on the Wednesday.

5. That upon the contravention found to be within sub-division E of Division 13A of the Family Law Act 1975 (Cth), the husband enter into a bond for a period of 12 months on conditions that he comply with all order of the Court during that period.

6. 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.

7. That all applications for final orders be adjourned for hearing before Justice Cronin as the third case in the list commencing on 3 February 2014 but not before 10 February 2014 at 10 am as a two day matter and that the evidence in chief of all witnesses be given by affidavit.

8. That the matter be listed for mention before Justice Cronin at 9.00am on 31 January 2014.

9. That for the purposes of the forthcoming final hearing in relation to parenting matters, the husband shall be the applicant.

10. That by 4 pm on 6 December 2013 the applicant husband file and serve upon all other parties:

    (a)    an amended application setting out with precision the orders to be sought; and

    (b)    the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

11. That the applicant husband pay all setting down and trial fees by 4 pm on 6 December 2013.

12. That by 4 pm on 10 January 2014 the respondent wife file and serve upon all other parties:

    (a)    an amended response setting out with precision what orders are being sought; and

    (b)    the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

13. That no party file any further material other than as provided by these orders without leave of the Court.

14. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

15. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar,

    (a)    The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)    the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

16. That the practitioners for the parties file and serve electronically to …@familycourt.gov.au by 4 pm on 7 February 2014 the following:

    (a)    a concise set of orders to be sought if different from those already filed;

    (b)    a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)    a list of objections to evidence upon which rulings are required; and

    (d)    a bullet-point summary of argument in relation to the issues in dispute.

17. That the husband pay the wife’s costs fixed in the sum of $1600.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thestor & Bugno (No. 2) 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 1127 of 2012

Ms Thestor

Applicant

And

Mr Bugno

Respondent

REASONS FOR JUDGMENT

1. On 9 August 2013, I heard the contravention application by Ms Thestor, to whom I shall refer in these reasons as the wife, seeking to have Mr Bugno, to whom I shall refer in these reasons as the husband, dealt with for contravention of orders that were made by the Federal Magistrates Court on 13 March 2013. 

2. That contravention application was heard in the absence of the husband, and I do not propose to repeat the reasons why the matter proceeded on that basis. On that day, I adjourned the proceedings until today for determination of what orders should be made under s 70NEB of the Family Law Act 1975 (Cth) (“the Act”). No further affidavit has been filed by any party.

3. The purpose, therefore, of today’s hearing was to determine two specific things. The first was what to do about the finding that the husband had contravened the orders, and the second related to what should be done about the orders of March 2013 having regard to the fact that the completion of the contravention application activated Part VII of the Act.

4. Dealing with those matters sequentially, the orders in March 2013 provided, amongst other things, that the parties undertake various professional development courses, and therefore there is little point in repeating those sorts of orders. The powers of the court in relation to a contravention without reasonable excuse, but one which is deemed to be less serious, are set out in s 70NEB.

5. In discussion, it seems clear that the most sensible option is to direct that the husband enter into a bond.  A bond, if entered into, can be for a period of up to two years and can impose conditions.  There was some discussion about the prospect of making a condition that the husband attend family counselling. 

6. Having regard to what I have heard today, I have grave doubts as to whether there would be any point in doing that, and in particular if, as a result of the discussions, the parties cannot see that they have problems looming and do not get some family counselling, the only people who will suffer in this case are the children. 

7. What I therefore propose to do is to simply require the husband to enter into a bond for a period of 12 months on the condition that he complies with all orders of the court. 

8. In discussion, I have also indicated that the bond as a means of ensuring compliance is, to some extent, irrelevant because a breach has been proved and to the extent that a further breach in the future was found to have occurred where a court deemed that it fell within subdivision F, would provide the Court with powers far more serious, and which include a sentence of imprisonment. 

9. It is not necessary for me to say more than that, because the husband is obviously on notice that he does not have an opportunity to step outside of the orders as was alleged by the wife, and indeed I found that is what he did. 

10. It is clearly a matter for the husband as to whether he enters into a bond or not, and whilst the court can require him to do so, I do not propose today to actually insist that he do so.  But rather, because he is without legal representation, to give him the bond to take away requiring that he either returns it executed by Friday 6 September to the registrar, whether by post or otherwise, with a notation attached to it that he has had a legal advice about the matter. 

11. Now, whether he gets legal advice on that or not is really a matter for him, but that bond will be hanging over his head for the next week.  If he decides not to enter into the bond, then I will reconvene the court and decide what other option is open to the court. 

12. In the course of discussion, the second issue is about the fact that the existing orders are not working.  The problem in this case is that these two children are aged 10 and not quite eight.  They are obviously gifted children and to that extent, the parties are to be commended. 

13. The parents love these children very much, but because they cannot work out their own problems, the children are being parallel parented.  That is, one parent is doing one thing and the other parent is doing another. 

14. Indeed, I was so concerned about it that I asked the wife to give some evidence, and satisfied myself that there is another life for these children out there other than some of the activities that their father is insisting that they participate in. 

15. When one looks at the orders made in March 2013, which I hasten to add were at the request and consent of the parties, it is quite clear that the children are so wound up in their activities that one questions whether or not there is a prospect that they can have a life of their own without interference from their parents. 

16. I have heard a number of statements which no doubt, if necessary, can come back into evidence at a later stage, as to how problematic it will be if the children do not participate in Sport B, and I rhetorically ask whether that is really what raising children is about.  

17. It seems to me, however, that the existing orders are not working not just because there is a lack of communication between the parents, but because of the fact that each is demanding that certain things be done.  I think that all of those issues need to be fleshed out.  The parties need to have a little bit of time to think about what they are doing to their children. 

18. I will give them an opportunity to file comprehensive evidence telling the court and each other what sort of orders should be made in the future.  The orders that I am contemplating will obviously have long term ramifications, because the parties have only got a relatively small window of opportunity to be parents of young children. 

19. The husband asked me to not put the case on for some time, and certainly not until the new year, because he has just obtained employment.  The wife initially resisted that, but then agreed when I pointed out that the next six months or so might give the parties an opportunity to actually see how their children are coping with a new regime, and it may very well be that what I have in mind gives the children a chance to escape the pressures of the war that is going on between the parties. 

20. I am proposing, however, not to give it that long a period, and I intend to set the case down for two days in early February. At that point in time, of course, the children will just have resumed school, so the Court will be able to see how they have traversed the long summer holidays. 

21. Section 60CA of the Act underpins any decision the court makes. It requires the Court to make orders in which the best interests of children are paramount. When parents cannot agree what is in the best interests of their children, and ultimately end up in court, they must understand that they are giving the responsibility for the decision making process to an objective person who is using subjective judgments as to what he or she thinks is good for these children based upon the evidence that each party presents.

22. I have heard evidence about one parent wanting children to be elite sportspeople, and the other parent saying, “I want the children to just be children and spend some time with friends.”  Sometimes parents tend to forget that their children are indeed just children. 

23. I propose, therefore, to look at the orders that were made in March 2013, not just in the context of whether they are working, because they clearly have not been, but also what is good for the children over the ensuing months. 

24. Two significant things stand out in this case about the orders made in March.  The first is that there is significant involvement in telephone communication between the parents, but not only is it virtually unregulated, the children have also been given the opportunity to decide whether they speak to their parents. 

25. Children at the ages of eight and 10 years deserve to be children.  Parents have the responsibility for making decisions about their children.  Even though there is opposition from the husband to reducing the telephone time, it may be that it gives the children a chance just to settle down into two different lives with two different parents. 

26. On that basis, I have made it clear that I am only going to make an order for telephone contact for one night per week during the holiday period, and during the period that the children are living with their mother in the other weeks, then they can speak to their father on that Wednesday night.  During the period of four days when they are with their father, they can speak to their mother for one particular period. 

27. I do not propose to set the duration of the telephone calls, but I do intend to make an order that each party who has the children on those occasions facilitates the call being made.  

28. The purpose of that exercise is to ensure that the children do keep the communication lines open, and if indeed it turns out that in a few months time when the court examines the case, there is evidence to show that the children are suffering from not speaking to their parents more regularly than that, then the court can have another think about it, and decide whether it is in the best interests of the children that there is a lot more time. 

29. The second matter relates to the question of these sporting activities.  It seems to me that the orders, which again, I stress which were requested by the parties, are so prescriptive of the children’s activities that there is no opportunity for flexibility.  There are problems for the wife because she does not drive, albeit that the orders in March had a provision that she advise the husband if she obtained her driver’s licence.  She does not have a motor car at the moment, so there are problems of getting her children to various venues. 

30. There was even discussion about the fact that the child C now attends gymnastics, but not in a venue nearby.  She is not in competition gymnastics, and I do not understand why there is a problem there.  It seems to me that an eight year old should be given the opportunity to play, rather than necessarily participate in a sporting activity. 

31. On that basis, I propose to reduce the orders made in March so that when the child is in a particular parent’s care, that parent is responsible for the various activities.  If it turns out that whilst the parent has the children, the activities are full on, it may very well be that the manifestation of a problem will be clear when the case comes back in February. 

32. Section 60CA requires the court only to make a decision which is in the best interests of children, and for that purpose, s 60CC sets out the various considerations that the court must take into account when contemplating whether or not the orders it makes are in the children’s best interests.

33. Presumably, all of those matters were considered by the parties when they came before the court in March 2013.  Some of those considerations are such things as the benefit of the children having a meaningful relationship with both of their parents.  There is nothing in what I have read to suggest that these children do not love their parents each equally.  There is no suggestion in this case that the children need to be protected from physical or psychological harm as a result of abuse, neglect or family violence.

34. In this case one of the considerations is the views expressed by a child.  I do not know exactly what the children want from their parents, and I hasten to add that whilst a child may say, at the age of 10, that he wants to be a Sport B star, I would not add a lot of store to that particular comment, having regard to the maturity and understanding of the child.  Many things can happen to children during their teenage years.

35. I do not propose on that basis to take into account the views of the children.  It is quite clear that the nature of the relationship with these children is a close one with their parents.  The orders I propose to make will not alter that.

36. To the extent that it is necessary for me to consider the capacity of the parents as well as their attitude to the children and their levels of responsibility, I am not at all clear that I understand whether the respective positions of the parties relate to fulfilling their own needs or whether in fact they are genuinely focussed on what is good for their children.  Perhaps they might both benefit from some advice about just what is good for their children.

37. On the basis of the evidence that I accepted from the contravention proceedings, the existing orders are not working, and I suspect that they are largely not working because of unilateral action by the husband.  I may be wrong about that, and I am more than happy to read his evidence very carefully at any hearing in February and decide that he is totally focussed on the welfare of the children, as distinct from focussed on his own needs.

38. I am proposing to give the parties an opportunity to file some evidence as to exactly what the propose for their children, bearing in mind my finding that the existing orders are not working.

39. On the basis of all of the matters set out in s 60CC, which I have considered, it is not necessary for me to make any further findings.  One issue, however, is that the orders in March 2013 provided that the husband and the wife had equal shared parental responsibility.  There is some suggestion the wife might want to change that, and that is an issue that can be considered next year. 

40. At this stage, however, I only observe that it is quite clear from, not only the evidence I read but from what I have heard today, that it is not working. I specifically draw the parties’ attention to s 65DAC of the Act. It provides that if there is a parenting order under which two parents are to share parental responsibility for a child, and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child, the order is taken to require the decision to be made jointly by those parents. That order is taken to require each of the persons to consult the other person in relation to the decision to be made about that issue, and to make a genuine effort to come to a joint decision about the issue.

41. Although the parties have strayed into issues about Sport B, sport and transport, the real focus of parental responsibility is about the long-term future of children, and about the issues that are set out in s 4 of the Act. I am convinced at this stage that, even though those issues have become blurred, the reality is that there has been no consultation such that the parties could have made a genuine effort to come to a joint decision about major long-term issues.

42. That said, they have a looming problem in 2015 with schooling.  As I pointed out, it is not my function to decide which school the children goes to, but rather decide which parent should make that decision.  I will make that decision, if it is raised in February, based upon which of the two parents is more focussed on the long-term future of their children rather than on the gratification of the parent’s needs.

43. In my view, I am satisfied in this case that it is appropriate to make orders varying the orders of March 2013.  For that purpose, I proposed to discharge paragraphs 4.7, 4.8, 5, 8, 12, 13, 14, 17 and 18 of those orders.

1. Paragraph 8 of those orders is a contentious one.  It was agreed to by both parties, but it said:

   The parties ensure that neither of the children is exposed to cigarette smoke in a closed environment.

2. I am not entirely sure what the wording of the order means.  What does “ensure” mean?  What does “exposed to” mean?  What does “a closed environment” mean?  It is so vague, in my view, that it is unenforceable, and for that reason I propose to discharge it.

3. It seems to me that if parents are worried about the health of their children, common sense dictates that they would not expose their children to cigarette smoke in any event, but if indeed there is some evidence that suggests that order should be made, no doubt the parents can tell me about it in their affidavit material that they will be preparing for the February hearing.

4. One of the other concerns I have, and one of the reasons why I propose to discharge paragraphs 17 and 18 is that the Sport B coach seems to be the arbitrator of what is good for the child. 

5. What the order provides is that if the parties cannot reach agreement about a Sport B competition, then the coach decides.  That flies in the face of joint parental responsibility, but it also hands the responsibility to a person who quite clearly is going to be focussed on Sport B rather than on the wider needs of the child.  To the extent that Mr D or any other Sport B coach decides that that is a wrong interpretation of things, he can no doubt come along and tell me about it in person in February.

6. The other orders seem to me to relate to things that just give the children no clear guidance in circumstances where it is their parents’ responsibility.  On that basis, I propose to make those orders.  I shall replace them with the orders that I indicated before about the specific times that the parents are to speak to the children by telephone, but I add that I am intending to include in those orders that it is the responsibility of the parent who has the children at that particular time to facilitate the call.  That means that if the children are living with their mother, she has the responsibility of ensuring they ring their father.  If they are living with their father, he has the responsibility of ensuring they ring their mother.  That way the parents won’t be able to say that they rang and there was no answer.

RECORDED  :  NOT TRANSCRIBED

1. An application has been made by the wife for costs of her counsel’s appearance today and also a conference. Section 117 of the Act provides that in proceedings in this court each party shall bear their own costs. The exception to that rule is where the court is satisfied that there are circumstances that justify a departure from that principle.

2. The other unusual feature about costs in this court is that in the contravention proceedings in division 13A, there is a specific provision in the powers of the court to make an order for costs if the court is satisfied that someone has contravened the order.

3. I adjourned these proceedings to today because of the absence of the husband on the last occasion, bearing in mind that his lawyer turned up at the proceedings and then withdrew, and I have endeavoured to find out what offers have been made, and it would appear that there have been none since 9 August that might have resolved the matter.

4. It seems to me that having regard to those matters it is appropriate that the court depart from the principle. The question then remains as to whether or not I can be satisfied about s 117(2A). All of those matters in relation to finances are unclear, but on any view the husband has been wholly unsuccessful, and is also the person who is in breach.

5. The schedule 3 to the Family Law Rules provides that fees for counsel in respect of a short attendance, including a summary hearing taking less than three hours, is somewhere between $224 and $1052, but on top of that there is a conference, which can be up to $357. 

6. It seems to me that if I was to make an order for the sum sought, I would be indemnifying the wife in respect of her costs.  As much as that may be appropriate in some circumstances, having regard to the Full Court’s decision in Prantage & Prantage, then I doubt very much whether I can make that order. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 August 2013.

Associate: 

Date:  11 September 2013