Tripp and Newton (No.2) - [2010] FMCAfam 248

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRIPP & NEWTON (No.2)

[2010] FMCAfam 248

FAMILY LAW – Extempore ruling on matters arising from draft orders.

Family Law Act 1975

Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Applicant:

MR TRIPP

Respondent:

MS NEWTON

File Number:

MLC 7440 of 2008

Judgment of:

Burchardt FM

Hearing date:

11 February 2010

Date of Last Submission:

11 February 2010

Delivered at:

Melbourne

Delivered on:

11 February 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms J. Healey

Solicitors for the Respondent:

Lisa Speakman

ORDERS

The mother have sole parental responsibility for the children [X] born [in] 1998, [Y] born [in] 2000 and [Z] born [in] 2005 (‘the children”).
The children live with the mother.
The children [X] and [Y] spend time and communicate with their father in accordance with their wishes.
The child [Z] spend time and communicate with her father:
from Saturday 10.00 am to Sunday 6.00 pm in each alternate weekend;
from Tuesday after school until Wednesday morning in the alternate week;
by telephone twice per week at times in accordance with the father’s wishes; and
at such other times as the father and mother may agree.
The child [Z] spend time with each of her parents on her birthday.
The child [Z] spend each of her parent’s birthdays with them.
The child [Z] spend Christmas with her father from 12.00 pm Christmas Day until 5.00 pm Boxing Day in 2010 and each even-numbered year thereafter and from 5.00 pm Christmas Eve until
12.00 pm Christmas Day in the alternate year commencing 2011.
The children [X] and [Y] spend Christmas with their father in accordance with their wishes.
The child [Z] spend La Befana (6 January) each year with her father.
The children do not stay overnight with the father if he has male visitors staying overnight.
Each of the mother and the father consult a psychologist on a regular basis to assist them with the matters identified in the Reasons for Judgment delivered 5 February 2010 (“Judgment”).
The father attend school functions and extra-curricular activities for the children [X] and [Y] only by express invitation from the respective child.
The father only attend school parent/teacher interviews for the children [X] and [Y] either by express invitation from the respective child or in the event the said children are not present.
The father be permitted to obtain school reports for the children at his expense.
Both parties be restrained by injunction from using physical punishment to discipline the children and from allowing others to do so.
The father have liberty to apply for an Italian passport for himself and/or the children without the consent of the mother being obtained.
In the event of travel overseas, each parent provide the other parent with six weeks’ prior notice together with an itinerary and contact addresses and telephone numbers.
Pursuant to s.62G(2) of the Family Law Act 1975, the parties be the subject of a further family report to be prepared not earlier than
1 August 2010, such report not to be prepared by Mr Laidler, Ms M or Mr Holland.
In accordance with order 17 herein, the parties and the children attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released on a date to be advised but not before
2 August 2010.
The family report to deal with the following matters:
both the views of the children and of the parents in light of the Judgment.
any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
any other matters that the Family Consultant considers important to the welfare or best interests of the children.
The Applicant pay the Respondent’s costs of the contravention application filed 27 July 2009 fixed in the sum of $3,500.00.
The Applicant pay the Respondent the sum of $2,000.00 per annum being his contribution to standard medical expenses for the children.
The Applicant pay the Respondent the sum of $500.00 being his contribution to kindergarten expenses for the child [Z] in 2010 and thereafter $1,000.00 per annum being his contribution to [Z]’s primary school education commencing in 2011.
The Applicant pay the Respondent the sum of $1,000.00 per annum being his contribution to [Y]’s primary school education.
The Applicant pay the Respondent the sum of $2,000.00 per annum being his contribution to [X]’s secondary school education commencing 2011.
The matter be adjourned for further hearing on a date to be fixed following the preparation of the family report referred to in Order 17 hereof.

AND THE COURT NOTES THAT:

The father will seek individual counselling with respect to his anger management and relationship issues.
Each party is at liberty to apply for birth certificates for each of the children.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Tripp & Newton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 7440 of 2008

MR TRIPP

Applicant

And

MS NEWTON

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

I will now deal with the outstanding issues as I have them. Should either party feel I have failed to address one or more they should tell me at the conclusion of these reasons.
Commencing with the matters raised by counsel for the mother, the first order addressed was order 8. My draft order was that [Z] spend La Befana, 6 January each year, with her father. I gave an indication that I proposed to maintain that order. I will simply repeat that if [Z] reaches an age where the magic of that event dissipates completely and she no longer wishes to do so then the father would be well-advised to take that on board.
So far as order 13 is concerned, which is the next matter raised by counsel, I continue to be of the view that there is no difficulty with that order remaining in its current form. An interrelated issue is the question of travel. I think there should be orders permitting either parent to take the children overseas should they wish to do so, subject to the following: First, in respect of all children it must be subject to their wishes, although that I would require to be convinced that [Z] has developed any particular views; second, each parent should give the other parent six weeks' notice of their intention to travel and to provide an itinerary of the places to be visited and the dates, and most particularly the dates of departure and return, the addresses at which it is intended they stay, if those are known, and telephone numbers likewise.
I have indicated that I propose to have a further family report. I have already said, and I repeat, I take this step reluctantly but I think it is in the children's best interests that the Court revisit the matter in about six months' time. I will arrange for that through the Court's own offices and the parties will not be paying for it.
Obviously, what I would be looking for in the further report is an indication of how the children see the matter in the light of the march of events and how the parents see it. The person writing the report will be provided with a copy of these Reasons for Judgment and the final orders made.
The next matter raised by counsel for the mother was a matter arising out of various paragraphs of the Judgment in which I referred to the necessity and requirement of the father to cope with issues relating to anger management and relationship issues. My initial proposed order, order 10, requires each of the parties to consult a psychologist on an ongoing basis to assist them with the matters identified in the Judgment. In a sense, that is already happening because the mother, if I understand it rightly, is still seeing - well, gets some measure of input by her interaction with, Ms M and the orders will further annotate the father is seeking one-on-one counselling to deal with these sorts of issues. So I don't think I need to refine the order, but there will be an extra notation about the father's position.
The next issue raised - and I simply take them in the order they were raised - was the cost of the contravention that I have ordered the father to pay. The mother seeks costs on an indemnity basis fixed in the sum of $12,500.00. The relevant costs items as they seem to me are described as stage 2, interim or summary hearing as a discrete event, and the lump sum is $1,250.00 together with a Court attendance fee. The Court attendance fee is relatively low but in my view, notwithstanding that it is arguably $750.00 or $1,500.00 with a loading of 50 per cent for counsel, the appropriate hearing fee to be awarded in a matter of this order is $1,750.00. That would make a total of $3,000.00.
The next issue I would have to consider is whether it is appropriate to advance beyond that and to order the indemnity costs sought by the mother or to take some intermediate position. It is well-established that, of course, while the Court's discretion is very broad, indemnity costs are usually considered in the context of some form of outrageous conduct by the losing party. It often involves contumelious disregard of the rights of the injured party or disgraceful conduct of the proceedings by inappropriate interlocutory applications and the like. Cases such as Verna in the Victorian Supreme Court (Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129) give a good illustration, and one can go also to the judgment, I think, of Sheppard J in the Colgate-Palmolive case (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225).
In my view the father brought the contravention application in good faith, he plainly believed his case and indeed the contraventions themselves, the acts of contravention, were always admitted. The entire proceeding turned on the question of reasonable excuse on which the mother was, of course, successful but the father's actions do not in any way in my view go to the extent as to justify an indemnity order and in my view I should fix the costs of the contravention, which did have a measure of complexity beyond perhaps the norm, in the total sum of $3,500.00.
So far as the costs of Ms M are concerned, it is correct, as I apprehend the orders made, that those were ordered to be paid jointly. It is not necessary for me to do more than note that that is the case.

Mr Tripp is obliged to pay whatever the orders compel him to pay. He faces sanction if he fails to do so.
On the question of medical costs, the father has offered to pay the global sum of $2,000.00 and I think that is a very sensible way forward. That is, of course, to cover standard medical expenses.

I shall not refine this more in the order but, self-evidently, if some emergency or some serious matter arises then obviously the parties would need to consider the matter further.
I note that the father has offered to pay $500.00 this year for [Z]'s kindergarten, and I will make that order.
So far as [Y] is concerned, as I understand it, she is at a Catholic school which strikes me as being eminently reasonable. It is consistent with the parties' background and I propose to order that Mr Tripp pay $1,000.00 as a contribution towards [Y]’s school fees which I estimate as being around about roughly half and well within the range.
So far as [X] is concerned, the matter is more complex. As I understand it, he is to attend [S] College.
The competing positions here are that, it seems likely - and this is very good if it is the case - he may receive a half-bursary as to his fees. The [S] College’s website, which I have consulted during the adjournment, shows that the fees are about $11,000.00. They are marginally below in Year 7 and they go up to over 11,000.00 as the years go by, but they are effectively $11,000.00.
That, of course, is not the whole cost of having a child at a school of that order. There would be another $5,000.00 to $10,000.00 to pay, closer to $10,000.00 - I think one can take judicial notice of this fact. That raises more complex issues. To what extent is it appropriate to force a father to participate in the private school system when we have advanced from the basic fact that the Government is required to provide what is deemed to be adequate education for all children, especially when - and there is no way around this - that is more likely to be the case in the region where the mother presently lives?
This, in a very real sense, is a personal decision. It is not a matter that the Court really plays a part in. Obviously, there are arguments as to desirability of private or public education. To the extent that those, as here, seem to be primarily concerned with cost it becomes more complex where the father earns $93,000.00. At first blush, that sounds like an enormous amount of money, but average earnings are now over $60,000.00. It is more than most people earn, but not by an enormous margin. If you take out tax and rent and child support, the father's disposable income is not in hundreds of thousands of dollars.
In my view, ultimately, if the mother chooses to enrol [X] at

[S] College, that is entirely a matter for her. She has, after all, got sole parental responsibility, but I do not think it is appropriate to order

Mr Tripp to pay half the costs of that. I am going to order that he pay the sum of $2,000.00 per annum towards [X]'s school fees, whether he is educated privately or publicly. It seems to me to be a reasonable figure for him to pay, doing the best I can with limited financial information and it remains a matter for the mother whether through whatever other avenues she can obtain the extra funds to enrol him in [S] College or not. All I would say is that I would hope when the immediate bitterness of this case subsides that both parties may turn their minds to this matter further in a more constructive way.
Birth certificates for the two children born in Italy - as I indicated, either side can apply to the Italian Consul and I would see no reason why they should not be made available by way of copies.
So far as Christmas is concerned, and of course like all the orders I am making about the two elder children - these are at this stage subject to their wishes, there is no way past it, I do not think it is in the children's best interests that one parent achieve a primacy, so to speak, over the primary social function of the year. I know it is the mother's birthday every year obviously on [date omitted], the only people who have worse luck are those who are on Christmas Day, I would say.
But the reality is that if I make an order for the children to be with their mother on her birthday every year, as I was otherwise minded to do, and for Christmas lunch, the father will not get any meaningful part of the Christmas celebration and I do not think that is an acceptable outcome. What I am going to do is order a pattern from Christmas Eve through to 12.00 pm, that gives time for transport to lunch, as the case may be, on Christmas Day with transfer then from 12.00 pm to the end of Boxing Day.
So 5.00 pm Boxing Day, and then starting off Christmas Eve 5.00 pm, save as otherwise provided for in the orders because they may already be with the relevant parent, and there are no sides to this but we will start the Christmas. [The mother] will get Christmas Eve this year and we will do change-about the other years.
That deals, I think, with the matters raised by the mother and which, to an extent, I have accommodated the father's responses. I have gone along with some discrete matters raised by him. I note that it is agreed that time can otherwise be spent by all the children with the father as agreed by the parents. I note that there will be an order that the father can make telephone calls as he wishes to the children. I will note that there will be an order for him to be provided with school reports at his own expense, and there will be an order that he can attend parent/teacher interviews provided only that either [X] or [Y] are not there or agree to his attendance.
So far as [Z] is concerned, I have ordered that there be a night during the week and it is common cause, I think, that I would order it anyway, and that should take place from Tuesday after kinder or school as the case may be till Wednesday morning at school or kinder as the case may be.
This is a hope rather than an expectation - it is a characteristic of children's cases that the lead-up to and the currency of the litigation intensifies the emotions of the parties and it Is also a characteristic that they often sort themselves out or diminish to an extent when the immediacy of the proceeding is over. That may not be the case in this one and, indeed, it is for this reason that I have factored in a further report. But if the parties’ find that things are proceeding sufficiently smoothly and they do not wish to put the children through a further family report and themselves through a further hearing, the Court would be very amenable to vacating any dates that are set.
I will emphasise again - and I perhaps did not give this sufficient emphasis in the Reasons - I think that the whole situation has been so fraught and so difficult, and there have been real difficulties with the family reports in this case too, for various reasons, but we have not had the benefit, as one usually does, of a clear unequivocal statement by a witness whose credit emerges unimpeached. I do think it is necessary for the Court properly to determine where the children's best interests lie to have this further investigation.
I do not resile from my remarks in the Judgment. This is a very poignant case and I would wish to make it plain that one has firmly in mind the best interests of the children. That is what the Court is primarily concerned with, but I do hope that once this rather distorting experience is at least momentarily finished the parties will be able to move forward, however much that may prove to be or not be the case.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 11 February 2010