Wold and Kleppir (No 2)

[2010] FamCA 805

FAMILY COURT OF AUSTRALIA

WOLD & KLEPPIR (NO. 2) [2010] FamCA 805

FAMILY LAW – COSTS – CHILDREN – Claim for costs for a successful contravention application and a successful defence of contempt charges – Where the contempt application was dismissed largely on technical grounds – Where the mother is encouraged to organise make up time between the children and the father – Where the mother seeks a variation of orders to include a different school for the children – Where the costs in broad terms are approximately equal and should offset against each other – No order for costs

APPLICANT: Ms Wold

RESPONDENT: Mr Kleppir

FILE NUMBER: BRC 3211 of 2008

DATE DELIVERED: 27 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 27 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Mother appearing in person

SOLICITOR FOR THE RESPONDENT: Mr Mould, Solicitor of John-Paul Mould Solicitors appearing for the Respondent Father

Orders

IT IS ORDERED THAT:

1. Leave is given to all parties to inspect the Department of Communities (Child Safety Services) subpoenaed documentation with no copies to be taken without the leave of the Court.

2. The reasons for judgment to be delivered on the findings of the three (3) contraventions contained in the Father’s Application for Contravention filed 11 February 2010 and any consequential penalty against the Mother is adjourned to a date to be fixed.

3. In the event the children, J born … September 2000 and L born … May 2002, are not enrolled at R School for the commencement of the 2011 school term or such other school as the parties may mutually agree in writing, then the Father is to have sole discretion in decisions on the children’s education and is to forthwith enrol the children at R School.

4. The Mother’s Application in Form 2 filed 19 August 2010 to vary the Orders of this Honourable Court dated 27 October 2009 is adjourned to a date to be fixed.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3211 of 2008

MS WOLD

Applicant

And

MR KLEPPIR

Respondent

REASONS FOR JUDGMENT

1. There are a number of issues for determination on today’s date.  For present purposes I will treat the father, Mr Kleppir, as the applicant and the mother, Ms Wold, as the respondent.  The first issue is the father’s claims for costs for successfully prosecuting a contravention application filed on 21 January 2010.  That matter was heard on 4 June 2010.  There were four contraventions, but the fourth contravention in relation to phone calls was withdrawn, as I recall. 

2. I do not have a transcript of the proceedings of 4 June, but there were again, on that date, quite a number of issues before the Court and as I recall, I indicated that I preferred the evidence of the two police officers and the teachers from the R School to the evidence of the respondent mother and that I would find the three contraventions established, but I don’t recall delivering detailed reasons for so finding.  In relation to the most serious contravention, that is enrolment of the children in a school other than the school nominated in paragraph 12 of the consent orders of 27 October 2009, I indicated that I wished to consider further the issue of penalty and adjourned the matter through to today’s date. 

3. It is not appropriate on today’s date to determine penalty until full reasons for making the findings for the three conventions established have been delivered, and to do that I need a transcript and I don’t see any difficulty with adjourning the issue of delivery of those reasons and the issue of penalty to a date to be fixed.  I issue a caution to the respondent that the attitude to penalty will be very much governed by her ability to comply with Court orders between now and the adjourned date. 

4. I also strongly recommend in relation to contraventions 2 and 3, which related to the interruption of the father’s time with the children or not spending time with the children, that the Court has power to, and it is commonly done, to order make up time.  If between now and then the mother communicates in whatever form with the father, whether by way of text message, email, phone, letter, and proposes some holiday time or some additional weekend time, then that would be seen as a positive gesture on her part to lessen the impact of the contravention breaches, particularly contravention breaches 2 and 3. 

5. The second issue I have to determine on today’s date is the father seeking costs for what he says was successfully defending numerous contempt charges brought by the respondent against him.

6. The third issue is whether the respondent should be awarded her costs of her application filed on 24 March 2010.  In that application she was legally represented and she sought orders that the husband sign transfer documents prepared by solicitors for the transfer of the former matrimonial home and other consequential orders as to the drawing of settlement cheques, and in the event of the father failing to comply with those orders, a registrar to sign the documents in substitution for his signature.

7. The Principal Registrar heard the matter urgently on 25 March.  The father appeared and contested the application and the Registrar made orders largely in accordance with the respondent’s application, and made an order by paragraph 2 that the wife’s costs of and incidental to this application be reserved to the trial Judge to be heard in conjunction with the existing applications listed on

   
   

   4 June 2010.

8. The respondent has now filed a further application on 19 August 2010 seeking a variation to paragraph 12 of the orders of 27 October 2009 to substitute S School, the school the children currently attend, for what was the agreed school, R School.  The children have continued to attend the S School, notwithstanding the father’s objection to this course from the very outset and notwithstanding the finding of a contravention on 4 June.  At paragraph 15 of her affidavit filed on 19 August, the mother gives her version of why it was she elected to send the children to the S School.  She says:

   I rang [the father] to confirm that he had received the letter and talk with him further about the children attending [S] School.  [The father] very bluntly made it clear that he had no interest in discussing with me the children’s schooling.  [The father] went on to say that he had been waiting for me to make a mistake and that he has now got me.

9. I don’t know whether I’ll ever be able to make a finding as to whether the father made a statement like that, but I assume he would deny it.  It is sad that that is almost a stereotypical example of the attitude of the communication levels between the parties.  All I can say to you is I wish you could see yourselves as others see you.  I wish you could see yourselves as I perceive you and that is it’s very, very sad what you are doing to yourselves, your own lives, but more importantly, to the lives of your children.

10. I shall deal firstly with the application by the applicant for his costs.  I’m not minded to award costs in relation to the successful defence of the contempt application.  The contempt application was dismissed largely on technical grounds, namely the dates of the orders to which reference was made were incorrect.  In other words, the wrong orders on the wrong dates were being relied on and the finding that the matter should have proceeded by way of a contravention rather than the more serious contempt process. 

11. The respondent, to my mind, had reasonable grounds for complaint as to the number of phone calls made.  It could be interpreted as amounting to harassment.  To award costs to the father is to indirectly sanction such behaviour.  In relation to the costs of the contravention, I note that it was contested.  The father relied on four independent witnesses.  I’m not sure that it was necessary to call all four.  There was an open offer to settle on a perfectly reasonable basis which the respondent should have grabbed with both hands. 

12. There was no merit whatsoever in her defence.  I note she was not legally represented.  I have heard a sufficient number of these cases to appreciate when there is some merit and when there is not.  Again, it appeared to be a continuation of an ongoing bloody minded attitude by each of the parties.  It’s certainly not a case, to my mind, where indemnity costs are called for.  However, the matter would be viewed seriously. 

13. In relation to the quantum of the costs, there were two affidavits filed by the solicitor for the father of 20 August and 26 August.  At paragraph 5 of the affidavit of 20 August, he estimates costs at $16,364, but that is, as I understood it, pursuant to the actual costs incurred because of a costs agreement signed by the father and also because it’s based on an indemnity basis.  As I understood, the costs on a party and party basis were more in the order of about $7000.

14. I turn to consider the mother’s costs.  I bear in mind that the orders for property settlement of 14 October 2009 were consent orders. 

15. The parties agreed that the property was to be sold.  The mother says that her costs are $17,014.  She has had her solicitor itemise the bills referable to the father’s non-compliance with the various requests to facilitate an orderly properly settlement.  The father’s solicitor says that the costs really are limited to $7750 or on a party and party basis, more like $5000.  I do not necessarily accept the reasoning behind that submission on behalf of the father.  I am more inclined to accept the items particularised in the bill which, for convenience, is to be found annexed to the father’s costs submissions opposing the wife’s application for costs before Registrar Filippello. 

16. I am of the view a clear case for an award of costs has been made out.  The respondent was wholly successful.  There was no basis for the father not acceding to the application.  As I say, whether I consider the actual costs incurred by the parties pursuant to costs agreements, or the estimate of costs given on a party and party basis, I am satisfied it’s appropriate to make a finding that the costs in broad terms are approximately equal and the view that I have reached is they should be off set against each other.  The result would be there would be no order for costs.  The costs orders that would be made would simply cancel each other out. 

17. The reasons to be delivered for the findings of the three contraventions and any consequential penalty will be adjourned to a further date.  In the meantime, there is the issue of the respondent’s ongoing non-compliance with paragraph 12 of the order of 27 October 2009.  That falls to be considered and I have heard the submissions today.  I will hear the parties one more time if they wish to make any further submissions;  I think they have covered all the areas.  The father filed a detailed affidavit on 21 January 2010 in part referable to this issue.  On today’s date the applicant father has, in my view, wisely and graciously agreed that the children should remain at the current school until the end of this school year.

18. It would be a great deal of disruption to these children I believe in having to change schools at the end of the current term.  However, the view that I take, and it’s subject to further submissions, is that I put in place an order in the following terms, and really I don’t normally make orders which simply duplicate existing orders, but I am just making it crystal clear, and the order will be in these terms. 

ORDERS DELIVERED

1. Now in relation to the application of 19 August to vary the order of 27 October to substitute the S School for the R School, the preliminary point was taken by the legal representative for the father that it should be dismissed summarily.  I will not do that on today’s date.  I have not had the opportunity to research an application in these terms.  I am conscious of the fact the mother is not legally represented and it is not my function certainly to give legal advice, but there is a well know principle referred to in legal speak as the principle in Rice & Asplund. 

2. It’s a case dating back to the 1980s and that says that where there are final orders made by a court, the court will not lightly change those orders unless there are compelling reasons for doing so, particularly where the parties agreed on the terms, where the orders were made less than 12 months ago, where there has been blatant non-compliance with those orders in the meantime, one would have thought, without prejudging the matter of course, that the principle in Rice & Asplund might well produce a result where the mother’s case was summarily dismissed. 

3. By seeking a change to the orders she has the onus of proving somehow that it is in the best interests of the children that S School is the preferable place where they should be educated.  I would also say that in more than 25 years of judging, I have really never seen an application where the judge is asked to approve school A over school B.  It’s normally presented as a variation of joint responsibility.  I’m not saying it can’t be done, but it’s a most unusual form of application.  I don’t know how a judge would go about the process.  It would be fraught with difficulty to say that it is preferable to educate the children at one school rather than the other. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 27 August 2010.

Associate: 

Date:  27 August 2010