Walters and Walters

[2011] FamCA 342

FAMILY COURT OF AUSTRALIA

WALTERS & WALTERS [2011] FamCA 342

FAMILY LAW – COSTS

APPLICANT: Ms Walters

RESPONDENT: Mr Walters

FILE NUMBER: SYC 6584 of 2007

DATE DELIVERED: 11 March 2011

PLACE DELIVERED: Sydney

PLACE HEARD:

JUDGMENT OF: Stevenson J

HEARING DATE:

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Uther Webster & E

SOLICITOR FOR THE RESPONDENT: Meredith Hatton Solicitor

Orders

1. I dismiss the mother’s application for costs made on 22 January 2009.  

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6584 of 2007

Ms Walters

Applicant

And

Mr Walters

Respondent

REASONS FOR JUDGMENT

1. Mr Walters and Ms Walters are the parents of a child, B, born in August 1994 (‘the child’).  They engaged in litigation concerning parenting orders.

2. By way of oral application made on 22 January 2009, the mother seeks that the father pay her costs of and incidental to this matter. The amount sought is the total of invoices sent to the mother by her lawyers, being the sum of $32,425.19. 

3. Consent Orders were made by the Local Court at Suburb C on 2 April 2007 in relation to both parenting and property issues. The parenting orders provided that the child:

   reside with the mother and that he spends time with the father, such time to be equivalent to each alternate weekend and half school holidays, also to include shared special days as may be agreed between the parties and [the child].

4. On 3 April 2008 an interim AVO was granted against the father for the child’s protection.  A final AVO was granted by consent in August 2008.  The father’s solicitor states that the father did not defend the final AVO so that the child was not required to give evidence (Paragraph 5 Affidavit of Ms Nicole Evans filed 17/2/2009).  The father gave the same explanation to the single expert, Dr D.

5. On 20 May 2008 the mother’s solicitor wrote to the father’s solicitor, advising that the child did not wish to have any communication with the father.

6. On18 June 2008 the father filed an application in this Court seeking interim and final parenting orders for the child to live with the mother and spend time with him.  He sought an interim order that the child spend time with him under supervision.  That application was amended on 16 July 2008.

7. On 16 July 2008 the mother filed a Notice of Child Abuse or Family Violence and an affidavit. The Notice stated that the child alleged:

   1.        that the father placed his hand on the child’s penis while they were seated on the lounge watching television

   2.        that the father requested that the child watch pornography with him

   3.        that the father lay on top of him during visits.

8. On 21 July 2008 the mother filed a Response seeking orders that the child spend no time with the father and that she be given sole parental responsibility. The mother amended her Response on 4 August 2008 and, inter alia, sought that an expert report be prepared.

9. On the first return date of the father’s application, 16 July 2008, the matter was referred to the Magellan list.  On 23 July 2008 a Magellan report was ordered, and an Independent Children’s Lawyer (“ICL”) and a single expert were appointed. On 14 August 2008 the parties agreed to appoint Dr D as single expert. 

10. On about 8 January 2009 the parties received a copy of Dr D’s report.   When the matter was next before the Court on 22 January 2009 Consent Orders were made in the following terms:

    1.The Orders of [Suburb C] Local Court made pursuant to the Family Law Act 1975 on the 2^nd of April 2007, being Orders numbered 4 & 5, be discharged.

    2.That the child of the marriage, namely [B], born on … August 1994, live with the Respondent Mother.

    3.That the Respondent Mother have sole parental responsibility for the child.

    4.That the Respondent mother do all acts and things and sign all documents necessary to:

    (a)instruct the school that the child attends to provide to the Applicant Father copies of all school reports, such instruction to be provided to the school by the mother within 14 days of commencement of Term 1 in the 2009 academic year;

    (b)cause the Applicant Father to be advised by telephone as soon as practicable and subsequently in writing of any major illness or accident affecting the child requiring hospitalisation, such advice to be given to the Applicant Father within 24 hours of such hospitalisation and include details of the particular hospital to which the child has been admitted.

    5.That the Applicant Father do all acts and things necessary to forthwith withdraw his Initiating Application filed on 18^th June 2008.

    6.That the Respondent Mother do all acts and things necessary to forthwith withdraw her Response to an Initiating Application filed on the 4^th August 2008.

    7.That the Applicant Father not be permitted to make further application to the court regarding the child the child without prior leave of the court.

11. On 22 January 2009 the mother’s counsel made an oral application for costs.  This application followed the making of the above orders by consent.

12. In relation to the costs application the mother relies on:

    (a)      an affidavit of her solicitor Meredith Hatton filed on 31 January 2009

    (b) an amended Financial Statement sworn by the mother and filed on 23 February 2009 and

    (c)      written submissions filed on 23 February 2009.

    The father relies on:

    (a)      an affidavit of his solicitor, Nicole Evans, filed on 17 February 2009,

    (b) a Financial Statement sworn by the father and filed on 17 February 2009 and

    (c)      written submissions filed on 3 April 2009.

    The lawyers for each party objected to the other relying on certain material.  Ultimately, these objections were withdrawn and it was agreed that I read all of the material specified above.   

13. The ICL forwarded to the court a letter dated 31 March 2009, advising she did not wish to be heard in relation to the costs application.  She advised that she held funds from each party amounting to half of her costs.

14. In considering whether to make a costs order the Court must have regard to the factors listed in Section 117 (2A) which provides that:

    (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

    (a)  the financial circumstances of each of the parties to the proceedings;

    (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

    (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

    (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 either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

    (g)  such other matters as the court considers relevant.

    Section 117(3) provides that:

    To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.

15. In relation to each of these subparagraphs in S117(2A):

    (a)The parties both filed sworn Financial Statements which showed that, while the father had a greater income than the mother, they each had cash in excess of $200,000 from their property settlement and an entitlement to superannuation. 

    The father thus has sufficient funds to meet an order for costs.

    (b)Neither party was in receipt of legal aid.   

    (c)The mother submits that the father knew or ought to have known that the contents of the mother’s affidavit presented considerable hurdles for him to overcome if he were to be successful.  She submits further that the father withdrew his application when Dr D’s report was released rather than testing that report by cross-examination.     

    The father submits that, at the time he filed his application, he was not spending any time with the child despite the previous orders and that he was not being provided with adequate or objective information about the child. 

    Dr D noted (at paragraph 63 of his report) that the father’s primary concern was with the child’s welfare. 

    The father was not charged with any criminal offence. The allegations against him were untested. The father submits that he was entitled to objective information about the child’s mental and medical condition and his views.

    The father points out that, immediately upon receiving the report of the expert he agreed to settle the matter on the basis that he had no contact with the child.

    (d) The issue of the existence of prior court orders has not been raised by either party in their submissions.  Orders were made by consent in 2007 for the child to spend time with the father. The mother did not seek to set those orders aside and the father did not seek enforcement, despite the fact that the child had not spent time with the father.    

    (e)  The terms of the settlement were, clearly, much more consistent with the mother’s position than that of the father.  The father, however, was not wholly unsuccessful. The consent orders required the mother to notify him of illnesses and accidents which necessitate the child’s admission to hospital.  She was ordered to provide details of the admission and also to authorise provision to the father of school reports.  The father received no such information prior to the consent orders.

    The mother submitted that: “the father, as the policy holder of private health care for the child had access to information about the child’s treating medical professionals prior to the commencement of the proceedings. Also prior to commencing proceedings the father through his solicitors, sought information regarding the child. He was advised by those professionals that they did not consider it was in the child’s best interest for that information to be released to the father.”    I do not understand how this submission is said to assist the mother’s application for costs.  She consented to an order that the father be provided with information which had previously been denied to him.

    (f)      Not applicable.

    (g)  The mother submits that the father brought and “maintained an application that appeared to have no hope of success … wasted the court’s resources and forced the mother to incur substantial legal fees which she should never have had to. “

16. The parties agreed to a compromise in terms of the consent orders.  The allegations about the father’s conduct which were never tested by cross-examination. The father was not charged with any criminal offence. He denied to Dr D that his relationship with his son was sexualised (paragraph 13 of Dr D’s report).

17. Prior to filing his application the father was denied objective information about the child, including his medical treatment. In the absence of the provision of medical or other information about the child it was reasonable that the father filed an application in this court. 

18. The father told Dr D that he would accept any recommendation that he made, to the effect that the child spend no time with him.  He informed Dr D that he would not pursue that issue when he was told in clear terms that the child expressed a strong view that he did not wish to see him. 

19. The mother submits that the father maintained his application until he received a letter written by the mother’s solicitor on 13 January 2009.  He had been in receipt of Dr D’s report for some four days by that date.  I regard that time lapse as entirely reasonable, given the gravity of the decision which the father made.  I n my view, it was completely understandable that the father decided to abandon his pursuit of time with the child only after he had the benefit of Dr D’s expert opinion on the dynamics of the family situation.

20. The mother suggests that the father should have abandoned his application on the strength of the contents of her affidavit.  In my view, this submission is simplistic and conveniently ignores the complexity of the dynamics of the relationship between the father and the child, as identified by Dr D.  He reported: 

    It was my impression that the child had become alienated from his father in the context of complex circumstances.  His strong genetic loading for Mood Disorder had placed him at risk of a Major Depressive Disorder with Melancholia in the context of life stress.  His experience of parental conflict and separation was experienced as a significant disruption.  This followed his adjustment to immigration from [Country F].  There had been a period of separation from his father during this period, which was also experienced as a disruption, highlighting that there had indeed been an underlying positive aspect to the father/son relationship.  His mother had confided in him her plans for separation.  It had been necessary for him to keep this secret from his father.  This added to his load.  His experience of his father’s covert activities had amplified his vulnerability.  Importantly, he had experienced his father’s behaviour as suspect and abusive in the context of his vulnerable mental state.

21. The mother could have arranged for the parties to file terms of settlement, rather than make a further appearance before the court.  There is no evidence that she made any attempt to do so.

Conclusion

1. In my view, the father was completely entitled to await receipt of the expert report before electing to abandon his application for orders for time with the child.  That report identified a complex mix of reasons why the child was resistant to spending time with his father.  Those reasons extended well beyond the father’s alleged inappropriate conduct toward the boy.  These allegations were never tested by cross-examination.  Very soon after he received Dr D’s report, the father indicated that he would respect the child’s views.  The consent orders entitled him to receive information about the child’s medical treatment and education, to which he had previously been denied access.

2. For all of these reasons, I dismiss the mother’s application for costs.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 11 March 2011.

Associate:     

Date:              11 March 2011