Weber and Lipson (No 2)

[2014] FamCA 995

FAMILY COURT OF AUSTRALIA

WEBER & LIPSON (NO 2) [2014] FamCA 995

FAMILY LAW – PARENTING – prior orders discharged – equal shared parental responsibility
FAMILY LAW – COSTS

APPLICANT: Mr Weber

RESPONDENT: Ms Lipson

FILE NUMBER: MLC 5453 of 2012

DATE DELIVERED: 12 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 12 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Van der Heyden

SOLICITOR FOR THE APPLICANT: Septimus Jones & Lee

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all prior parenting orders relating to the children C born … 2008 and D born … 2009 shall be and are hereby discharged.

2. That the mother and the father have equal shared parental responsibility for the children.

3. That the children live with and communicate with the father as follows:-

   (a)From the date of these orders until 6 October 2014 in a two-week alternating cycle as follows:-

   (i)     In week one from the conclusion of child care/kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of child care/kindergarten/school or 9.30 am Friday commencing 19 June 2014;

   (ii)    In week two from the conclusion of child care/kindergarten/school or 3.30 pm Thursday until 6.30 pm Sunday commencing 12 June 2014;

   (b)As and from 6 October 2014 until 26 June 2015 in a two-week alternating cycle as follows:-

   (i)     In week one from the conclusion of kindergarten/school or 3.30pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Friday; and

   (ii)    In week two from the conclusion of kindergarten/school or 3.30pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Monday;

   (c)As and from 26 June 2015 until 11 July 2016 in a two-week alternating cycle as follows:-

   (i)     In week one from the conclusion of kindergarten/school or 3.30pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Friday; and

   (ii)    From the conclusion of kindergarten/school or 3.30 pm (whichever is the earlier) Thursday until the commencement of kindergarten/school or 9.30 am Tuesday;

   (d)As and from 11 July 2016 on a week about basis with changeovers to occur at the conclusion of school or 3.30 pm Friday (whichever is the earlier) each;

   (e)For one half of each of the term school holidays as agreed and failing agreement:-

   (i)     For the first half of the school term holidays in 2014 and each alternate year thereafter from the last day of term until 12.00 noon on the middle Saturday of the term holiday period; and

   (ii)    For the second half of the school term holidays in 2015 and each alternate year thereafter from 12.00 noon on the middle Saturday of the term holiday period until the commencement of child care/kindergarten/school or 9.00 am on the first day of the new school term;

   (f)During the long summer vacation period as follows:-

   (i)     For the period commencing in December 2014, the father’s time pursuant to order 3(b) continues until 6.00 pm Boxing Day and thereafter the children live with the father for the following periods:-

   A.From 6.00 pm 26 December 2014 until 6.00 pm 2 January 2015;

   B.From 6.00 pm 9 January 2015 until 6.00 pm 16 January 2015; and

   C.From 9.00 am 26 January 2015 until 6.00 pm 28 January 2015;

   (ii)    In the long summer vacation period commencing in December 2015, and each alternate year thereafter for one half of the said period as agreed and failing agreement for the second half in the period commencing 2015 and each alternate year thereafter and for the first half in the summer holiday period commencing in 2016 and each alternate year thereafter, the summer holiday vacation period being calculated as commencing on the last day of the school year until 6.00 pm two days prior to the commencement of the new school year.

   (g)On C’s birthday if she is not in the father’s care as follows:-

   (i)     If the birthday falls on a school day, for a period of three hours at times to be agreed and failing agreement from 3.30 pm to 6.30 pm;

   (ii)    If the birthday falls on a non-school day, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;

   (h)On D’ birthday if he is not in the father’s care as follows:-

   (i)     If the birthday falls on a kindergarten day or school day, for a period of three hours at times to be agreed and failing agreement from 3.30 pm to 6.30 pm;

   (ii)    If the birthday falls on a non-school or kindergarten day, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;

   (i)On the father’s birthday when the children are not otherwise in his care as follows:-

   (i)     If the birthday falls on a weekday, for a period of three hours at times to be agreed and failing agreement from 3.30 pm to 6.30 pm;

   (ii)    If the birthday falls on a weekend, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;

   (j)On the Father's Day weekend from 4.00 pm on the Saturday preceding Father's Day until the commencement of day care/kindergarten/school on the Monday after Father's Day;

   (k)For Christmas as follows:-

   (i)     In 2014 and each alternate year thereafter from 12.00 noon Christmas Eve until 3.00 pm Christmas Day; and

   (ii)    In 2015 and each alternate year thereafter from 3.00 pm Christmas Day until 6.00 pm Boxing Day;

   (l)As may otherwise be agreed between the parties from time to time.

4. That the children live with the mother at all other times.

5. That the father’s time with the children pursuant to paragraphs 3(a) to (f) inclusive resume at the commencement of each new school term as if uninterrupted by the school holiday period. 

6. That the father’s time with the children pursuant to paragraph 3 hereof be suspended as follows:

   (a)For Christmas as follows:-

   (i)     In 2014 and each alternate year thereafter from 3.00 pm Christmas Day until 6.00 pm Boxing Day;

   (ii)    In 2015 and each alternate year thereafter from 12.00 noon Christmas Eve until 3.00 pm Christmas Day;

   (b)For one half of the school term holidays at times to be agreed and failing agreement as follows:-

   (i)     For the first half of the school term holidays in 2015 and each alternate year thereafter from the last day of term until 12.00 noon on the middle Saturday of the term holiday period; and

   (ii)    For the second half of the school term holidays in 2014 and each alternate year thereafter from 12.00 noon on the middle Saturday of the term holiday period until the commencement of school or 9.00 am on the first day of the new school term;

   (c)During the long summer vacation period as follows:-

   (i)     In the long summer vacation period commencing December 2014 as agreed between the parties and failing agreement as follows:-

   A.From 6.00 pm on 2 January 2015 until 6.00 pm on 9 January 2015; and

   B.From 6.00 pm on 16 January 2015 until 9.00 am on 26 January 2015;

   (ii)    In the long summer vacation period commencing December 2015 and each alternate year thereafter, for one half of the long summer vacation period at times to be agreed and failing agreement for the first half in the holidays commencing December 2015 and each alternate year thereafter and for the second half of the school holiday period commencing December 2016 and each alternate year thereafter (the long summer vacation period being defined as commencing on the last day of the school year until 6.00 pm two days prior to the commencement of the new school year;

   (d)In the event that C’s birthday falls during the father’s time as follows:-

   (i)     If it falls on a school day, for a period of three hours as agreed and failing agreement from 3.30 pm until 6.30 pm; and

   (ii)    If it falls on a non-school day, for a period of four hours at times to be agreed and failing agreement from 9.00 am until 1.00 pm;

   (e)In the event that D’s birthday falls during the father’s time:-

   (i)     If it falls on a non-school or kindergarten day for a period of four hours on the birthday at times to be agreed and failing agreement from 9.00 am until 1.00 pm;

   (ii)    If it falls on a school or kindergarten day for a period of three hours as agreed and failing agreement from 3.30 pm to 6.30 pm;

   (f)In the event that the mother’s birthday falls during the father’s period of time at times to be agreed and failing agreement from 9.00 am to 1.00 pm; and

   (g)On Mother's Day from 4.00 pm on the Saturday preceding Mother's Day until the commencement of kindergarten/school on the Monday following Mother's Day.

7. For the purposes of changeover, the father shall collect the children from school or after-school care and return them to school or before-school care, but in the event that changeover at school or childcare is not possible the father will collect the children at the commencement of his time from McDonald’s E Street, Suburb F and the mother shall collect the children at the conclusion of the father’s time from McDonald’s E Street, Suburb F.

8. That each party notify the other as soon as practicable of any accident or illness requiring either of the children to have medical treatment, and both the father and the mother be permitted to attend any specialist medical appointments and in the event of hospitalisation, the hospital.

9. That the mother and the father keep the other notified of any change of address or telephone numbers within seven days of any such change.

10. That the mother and the father be permitted to communicate by email and SMS text messaging in respect of the following matters:-

    (a)The children’s health (including but not limited to emotional and physical health);

    (b)Arrangements for the children’s extra-curricular activities; and

    (c)Arrangements for the children’s schooling and childcare arrangements.

11. That the mother and the father by themselves, their servants and agents be and are hereby restrained from:-

    (a)Denigrating the other or any member of their household to or in the presence of the children; and

    (b)Discussing these proceedings or showing the children any documents from these proceedings.

12. That in the event that either party intends to travel within Australia but outside the State of Victoria with the children, they provide to the other parent:-

    (a)At least 14 days’ notice of any intended travel, such notice to be given in writing with such notice to include a copy of the itinerary for the children, return tickets and contact details for the children during such travel;

    (b)Such time not to interfere with the other parent’s time with the children pursuant to these orders unless otherwise agreed between the parties in writing.

13. That the mother and the father each do all such acts and things as may be required to authorise:-

    (a)The children’s child care/kindergarten/schools to communicate with the other parent and to provide to the requesting parent (at that parent’s expense) copies of all school reports, notices, photograph order forms and any other documentation ordinarily provided to parents;

    (b)Both parents’ attendance at all extra-curricular and child care/kindergarten/school events ordinarily attended by parents;

    (c)The children’s medical practitioners and specialists to communicate with the other parent and enable them to provide to the requesting parent (at that parent’s expense) copies of all reports, notices, correspondence and any other documents ordinarily provided to parents;

    (d)The children to each be issued with an Australian passport when requested by the other parent to do so, with the mother to hold the passports other than during those times when the father requires them for the purpose of travel pursuant to any orders of the Court, the cost of any passport application for the children to be shared equally by the parents;

14. That the mother and the father each be permitted to communicate with the children by telephone during periods when the children are in the other parent’s care as follows:-

    (a)The children may telephone either parent at any reasonable time;

    (b)By telephone each Tuesday and Thursday between 6.00 pm and 6.30 pm.

15. That as soon as practicable the parties attend upon a psychologist as nominated by Ms B, family consultant for the purposes of therapeutic non-reportable counselling regarding the implementation of these orders, and thereafter continue to attend such therapeutic counselling sessions as may be reasonably recommended by the nominated therapist.

16. That the cost of attendance upon the therapist nominated by Ms B shall be shared equally between the parties and in the event that a party elects to see that therapist on an individual basis for additional sessions, the cost of those additional sessions be at the cost of that party.

17. That pursuant to s 117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support payable by the father to the mother in respect of the children C born … 2008 and D born … 2009 for the period 16 September 2013 to the date of these orders (“the period”).

18. That the father’s liability pursuant to the assessment for the period be equal to the amount paid by him to the mother for the period (including the value of any non-agency payments credited for the period), the effect being that there be no arrears of child support payable by the father to the mother and no over-payment created pursuant to the assessment for the period.

19. That all extant applications be otherwise dismissed.

20. 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 NOTED that publication of this judgment by this Court under the pseudonym Weber & Lipson (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 5453 of 2012

Mr Weber

Applicant

And

Ms Lipson

Respondent

REASONS FOR JUDGMENT

1. These are oral reasons for judgment with respect to the husband’s application for costs. 

2. I have before me today an oral application made by the husband for his costs incurred in relation to the child support issue heard by me about which I have made orders today, and published my reasons for judgment. 

3. The husband seeks costs fixed in the sum of $3750.  It is submitted on his behalf that those costs directly relate to the costs incurred by him as a result of the position adopted by the wife in relation to the issue of child support arrears, which had accrued pursuant to the assessment which was in place in the latter part of 2013 and which continued to operate after the parties had executed a binding child support agreement in September of that year.  The husband’s application for costs is opposed by the wife. 

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

5. Section 117(2A) sets out the matters that the Court should have regard to in considering whether to make an order for costs.  The principle basis upon which the husband relies in support of his application for costs is firstly, the fact that he was wholly successful in his application in relation to child support.  Further the husband relies upon a written letter of offer dated 11 February 2014 wherein he sought to resolve the question of child support. 

6. As to s 117(2A), the husband submits that the parties are in a similar financial position.  They are both professionally employed and earn similar incomes.  The wife submits that effectively, whilst she has an income, she is living hand-to-mouth.  She says that her expenses are such that there is no surplus of income at the end of each month.  She refers to the fact that she has a substantial obligation to meet payment for rental accommodation for herself and the two children.  She submits that she does not own her motor vehicle.  She has a credit card debt and she is solely responsible for the costs of child care, which, on a monthly basis, total approximately $4500.  She submits that the husband makes no contribution to those expenses. 

7. The wife says she cannot afford to take the children on holidays, that she is solely responsible for private health expenses for herself and the children, and that she alone meets the children’s extracurricular expenses.  She also points to the fact that there are current arrears of child support.  That is a disputed matter.  The husband asserts that there are currently no arrears of child support.  There is no evidence before me in relation to that matter and I am unable to make a determination in relation to that issue. 

8. As to subparagraph (b) of s 117(2A), that matter is not relevant as neither party is in receipt of assistance by way of Legal Aid. 

9. Section 117(2A)(c) requires me to have regard to the conduct of the parties in these proceedings. The husband is critical of the manner in which the wife has conducted the proceedings. He asserts that because of the position adopted by her during the proceedings, that the trial was lengthened. The difficulty with that proposition is that during the course of the hearing before me, the position of the husband and the basis upon which he made his application was not clearly articulated. As a result, it was necessary for me to require the parties to attend court for a further mention hearing to clarify the basis upon which he sought orders in relation to child support.

10. At that mention hearing on 16 May 2014, amended orders were filed by the husband seeking to more fulsomely articulate the order he sought and the basis upon which he sought that order.  That minute was not provided to the wife prior to that mention hearing.  As a consequence of that, the wife was effectively ambushed as to the legislative basis upon which the husband sought orders. 

11. The wife is a litigant in person.  The child support legislation is complex and the result of the late service of the amended minute of orders by the husband meant that the wife sought an adjournment of that mention hearing to enable her to familiarise herself with the relevant legislation and to understand and respond to the submissions put on behalf of the husband. 

12. Having regard to those matters, in my view, some of the responsibility for the lengthening of the proceedings with respect to child support must lay at the feet of the husband. 

13. Subsection (d) of s 117(2A) of the Family Law Act requires me to have regard to whether or not there has been any failure to comply with previous orders of the court.  There are no submissions made in relation to that aspect of the legislation. 

14. Subsection (e) requires me to consider whether a party to the proceedings was wholly unsuccessful.  The wife has quite properly conceded today that she has been wholly unsuccessful with respect to the child support matters. 

15. Subparagraph (f) requires me to have regard to any offers that had been made to attempt to resolve the issues before the court.  The husband relies upon the letter forwarded by his solicitor dated 11 February 2014. 

1. It may be that there was some possibility of the matter resolving prior to the hearing commencing before me and I do have some regard to that factor.  However, the wife is a litigant in person.  She has faced significant difficulties in conducting her case with respect to child support due to the complexities of the legislation and the confusion arising with respect to the overlap of the child support assessment and the commencement of the binding child support agreement. 

2. The usual rule is that parties in litigation each bear their own costs.  I am satisfied, having regard to the way the child support aspect of these proceeding was conducted before me, that it is not appropriate in the circumstances of this case for an order for costs to be made. 

3. I also have regard to the submissions made with respect to the financial circumstance of the parties.  It is evident that the wife is not in a strong financial position.  The fact that she has appeared on her own behalf in these proceedings, in circumstances where she was represented until approximately two weeks prior to the commencement of the hearing, supports the position that she has limited financial resources which would enable her to meet a costs order. 

4. Further, the fact that she has responsibility at this point in time for the majority of the children’s care and the financial burden association with that care is further basis for not awarding an order for costs in this instance.     

5. Accordingly, I will dismiss the oral application made this day on behalf of the husband with respect to costs. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 12 June 2014.

Associate:  Alison Power

Date:  12 June 2014