Akayev & Akayev (No 2)
[2022] FedCFamC2F 358
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Akayev & Akayev (No 2) [2022] FedCFamC2F 358
File number(s): CRC 349 of 2021 Judgment of: JUDGE DICKSON Date of judgment: 28 March 2022 Catchwords: FAMILY LAW – CONTRAVENTION – Amended Application for Contravention brought by father against the mother for alleged breaches of final parenting orders – where certain counts of the father’s Application have already been dismissed – where the remaining counts relate to issues of a breach of orders relating to the children’s long term welfare and consulting the father with respect to the children’s health and place of residence – where on the mother’s evidence count 1 is not established and should be dismissed – where on the evidence counts 2 and 5 are made out – where the mother did not have reasonable excuse for counts 2 and 5 – where this is the mother’s first offence and no penalty should be imposed
FAMILY LAW – COSTS – where both parties seek costs against the other either on a party-party basis or in accordance with the Schedule in the Rules – where both parties have been equally successful and unsuccessful in their respective applications before the Court – where each party should bear their own costs of and incidental to the applications
Legislation: Family Law Act 1975 (Cth) Pt VII, Div 13A, ss 4, 70NAC, 70NCA, 70NAE, 70NAF, 70NEA, 70NFB, 70NFE Cases cited: Keehan & Keehan [2019] FamCAFC 250; (2019) 60 Fam LR 276
McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401; (2009)
Ongal & Materns [2015] FamCAFC 68; (2015) FLC 93-645; (2015) 54 Fam LR 87
Seaward & MacDuff [2011] FamCA 1041
Taikato v R [1996] HCA 28; (1996) 186 CLR 454Division: Division 2 Family Law Number of paragraphs: 72 Date of last submission/s: 3 March 2022 Date of hearing: 3 March 2022 Place: Adelaide Counsel for the Applicant: Mr Priestley Solicitor for the Applicant: MBT Lawyers Counsel for the Respondent: Mr O’Brien Solicitor for the Respondent: Bryant McKinnon Lawyers ORDERS
CRC 349 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR AKAYEV
Applicant
AND: MS AKAYEV
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
28 MARCH 2022
UPON NOTING THE COURT FINDINGS:
A.That between 11 September 2020 and 31 January 2021 the mother did not contravene order 2 of the orders made by consent on 24 May 2019.
B.That between 19 November 2020 and 4 December 2020 the mother contravened without reasonable excuse order 2 of the orders made by consent on 24 May 2019.
C.That between 14 September 2020 and 27 August 2021 the mother contravened without reasonable excuse order 17 of the orders made by consent on 24 May 2019.
THE COURT ORDERS THAT:
1.In respect of the finding of a contravention of order 2 of the orders made on 24 May 2019, no penalty be imposed.
2.In respect of the finding of a contravention of order 17 of the orders made on 24 May 2019, no penalty be imposed.
3.That counts 1, 2 and 5 of the Amended Application for Contravention filed on 11 January 2022 be dismissed.
4.That each party do bear their own costs of and incidental to the said contravention proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Akayev & Akayev has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
On 10 February 2022, the Court delivered a Judgment in relation to the mother’s oral application for “No Case to Answer” made at the conclusion of the evidence given by the father in support of his Amended Application for Contravention filed on 11 January 2022 (“the said Contravention Application”).
By way of order dated 10 February 2022, Counts 3 and 4 of the said Contravention Application filed 11 January 2022 were dismissed.
The Trial in relation to the balance of the said Contravention Application being Counts 1, 2 and 5 proceeded before me on 3 March 2022.
These are the reasons for my decision arising from the Trial heard that day.
BACKGROUND
The applicant father was born in 1969 and is currently 51 years of age.
The respondent mother was born in 1976 and is currently 45 years of age.
The parties were married in 2004 and separated for the final time in 2017.
There are three children of the marriage. The eldest child has now reached the age of majority. The youngest two children being X born 2005 and Y born 2008 are now aged 16 years and 14 years of age respectively (‘the children’). The children are estranged from the father. The reasons for such estrangement are contentious.
Final parenting orders were made by consent between the parties on 24 May 2019 (‘the final orders’). The final orders records that at the time the consent orders were made, each of the parties were represented by experienced solicitors and counsel. Indeed, Mr Priestley and Mr O’Brien as counsel each appeared for their clients at the making of the final orders and now, as counsel in the Contravention Trial.
On 27 August 2021, the father filed an Application for Contravention of Child Order. The said application was amended by way of an Amended Application for Contravention of Child Order filed on 11 January 2022.
The Trial commenced on 27 January 2022. As set out above, at the conclusion of the father’s evidence the mother’s counsel made a submission of a “No Case to Answer” in relation to Counts 1 to 5 inclusive of the said Contravention Application.
By way of Judgment delivered on 10 February 2022, the Court dismissed Counts 3 and 4 of the said Contravention Application filed 11 January 2022 and set the balance of the counts contained in the said Contravention Application for Trial on 3 March 2022.
THE FATHER’S APPLICATION FOR CONTRAVENTION
Counts 1 and 2 of the Contravention Application
Paragraph 2 of the final orders dated 24 May 2019 provides as follows:
2. In relation to any decision the Mother is required to make in relation to education, religious and cultural upbringing, health and any other decision impacting upon the long term welfare of any of the children, the Mother is to undertake the following actions before making such decisions:
a. The Mother is to provide the father with no less than 14 days’ notice in writing of any such proposed decision; and
b. The Mother is to consult with the father (by email or text communication in the first instance and thereafter, unless she elects to communicate by phone or in person) with regard to any proposed decision and make a genuine effort to give consideration to his expressed view, and should the relationship between the parents permit, make a genuine effort to reach agreement with the father about any proposed decision; and
c. In the event that no agreement is reached between the Father and Mother, the Mother shall make the final decision and within 14 days of so doing, provide the Father with written confirmation of the decision (by email or text is sufficient).[1]
[1] See final orders dated 24 May 2019 at [2].
In his Application, the father alleges that:
(a)Count 1 – The mother, without reasonable excuse, relocated the residence of the children prior to January 2021, between 1 September 2020 and 31 January 2021;
(b)Count 2 – The mother, without reasonable excuse, did not follow the process required by orders 2(a), (b) and (c) in relation to providing to the applicant details of her proposed decision in regard to the children’s education and failed to consult with the applicant and make a genuine effort to give consideration to his views between 19 November 2020 and 4 December 2020.
Count 5 of the Contravention Application
Paragraph 17 of the final consent order provides:
17. Each parent is to provide to the other, the names, addresses and telephone numbers of all medical professionals (other than those specifically named above) who treat the children or any of them and:
a. authorise each of them in writing to provide copies of any test results, letters of referrals, reports and letters received from other medical professionals to the other parent;
b. authorise them to discuss any aspect of the child’s or children’s health with the other parent; and
c. notify the other parent of any medication prescribed for the child or the children and shall do all act and things to facilitate the other parent to administer the medication to the child or children.[2]
[2] Ibid at [17].
The father alleges that:
(a)Count 5 – The mother, without reasonable excuse failed to provide to the father the addresses and telephone numbers of medical professionals who treated the children between 14 September 2020 and 27 August 2021.
DOCUMENTS RELIED UPON
For the purposes of the Trial which resumed on 3 March 2022, the father relied on the following documents:
(1)Amended Application for Contravention, filed 11 January 2022;
(2)Affidavit, filed 27 August 2021;
(3)Affidavit, filed 28 February 2022;
(4)Outline of Case Document.
The Affidavit of the father filed 28 February 2022 was admitted into evidence by consent without the need for further cross examination of the father.
The respondent mother relied upon the following documents:
(1)Affidavit, filed 21 February 2022;
(2)Outline of Case Document (Contravention Hearing) filed 21 January 2022.
APPLICABLE LEGAL PRINCIPLES
The applicable law in respect of failure to comply with orders that affect children is contained in Division 13A of Part VII of the Act.
In the decision of Keehan & Keehan[3] Justice Kent sitting as the Full Court stated:
The provisions of Division 13A (Consequences of failure to comply with orders, and other obligations, that affect children) and, importantly, the fact that Division 13A is included within Part VII of the Act, appear to manifest a clear legislative intention. That is, an intention that Division 13A is directed only to ensuring continued and future compliance with operative parenting orders as distinct from performing any separate or discrete role of deterrents from, or punishment of, non compliance with orders.
In other words, the purpose of Division 13A is prospective and is to be contrasted with the purposes of punishment for contempt and the powers to deal with contempt in Section 112AP of the Act.[4]
[3] Keehan & Keehan [2019] FamCAFC 250; (2019) 60 Fam LR 276.
[4] Ibid [22]-[23].
Section 70NAC of the Act sets out what must be established to satisfy a Court that a contravention has taken place:
A person is taken for the purposes of this division to have contravened an order under this Act effecting children if, and only if:
(a)where the person is bound by the Order – he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b)otherwise – he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.[5]
(my emphasis added)
[5] Family Law Act 1975 (Cth) s 70NAC.
Section 70NAF of the Act sets out the requisite standard of proof to be applied in contravention proceedings.
As stated by the Full Court in the matter of Ongal & Materns:[6]
Section 70NAF provides that the standard of proof to be applied (including on the question of whether there is a reasonable excuse) is “proof on the balance of probabilities”, except when certain harsher penalties are to be imposed, in which case the Court must be satisfied “beyond a reasonable doubt that the grounds for making the order exist”. The harsher penalties are available for “more serious” contraventions. However, the court however retains a discretion to deal with such contraventions as “less serious” if it is satisfied that course is “more appropriate”.[7]
[6] Ongal & Materns [2015] FamCAFC 68; (2015) FLC 93-645; (2015) 54 Fam LR 87.
[7] Ibid 26.
THE HEARING
Both parties were represented by experienced family law solicitors and counsel, being Mr Priestley of Counsel for the father and Mr O’Brien of counsel for the mother.
Both parties were cross examined. The father was cross examined on 27 January 2022. The mother was cross examined on 3 March 2022.
At the Trial on 27 January 2022, the mother denied in their entirety Counts 1, 2 and 5 of the said Amended Application which remained before the Court for final hearing on 3 March 2022.
The respondent mother was cross examined by Mr Priestley. At times the mother became emotional and on one occasion required a short break to compose herself.
Count 1
I propose to dismiss Count 1.
Paragraph 2 of the final order requires the mother to undertake a series of positive steps before making any decision in relation to the children’s education, religious and cultural upbringing, health and any other decision relating to the long term welfare of any of the children.
Section 4 of the Family Law Act (Cth) 1975 (‘the Act’) defines major long term issues as follows:
"major long-term issues”, in relation to a child means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.[8]
[8] Family Law Act 1975 (Cth) s 4.
Arguably, the alleged breach relates to subparagraph (e) of the above definition.
However, paragraph 14 of the final orders restrained the mother from relocating the children’s residence until January 2021, unless the children were spending regular time with the father. As and from 1 January 2021, the mother could relocate the children’s residence at her discretion if time spending with the father was not taking place.
It was an agreed position at Trial that the children were not spending time with the father as at 1 January 2021 or indeed, at any time thereafter.
Section 4 of the Act therefore needs to be read down when paragraph 14 was activated from 1 January 2021.
There is no evidence that between 1 September 2020 and 31 December 2021 the mother relocated the children’s residence from City D. It was not conceded by the mother in her evidence. Annexure A to the mother’s Affidavit filed 21 February 2022 is an email from the mother to the father dated 19 November 2020 foreshadowing a move to City L. In the email mother informs the father that “as per the consent orders we will not leave until January 2021”.[9]
[9] See mother’s Affidavit filed 21 February 2022 at Annexure A.
The mother’s evidence was not challenged. The focus of cross examination was in relation to Count 2 as it related to the children’s education.
I am not satisfied that any breach has been established. For the reasons set out above, Count 1 should be dismissed.
Count 2
Under cross examination by Mr Priestley the mother gave evidence as follows:
(1)That the mother believed that she had followed the final orders as she had understood them. On several occasions in her evidence the mother referred to the fact that a sealed copy of the final orders were “sitting on my desktop”.
(1)The mother conceded that the final orders required her to “do actions before making a decision” as was put to her by Mr Priestley.
(2)The mother agreed when it was put to her by Mr Priestley that paragraph 2 (a), (b) and (c) of the final orders required the mother to do certain things before she could undertake the final decision in this case in relation to the children’s schooling.
(3)The mother ultimately conceded under cross examination that she had made the decision in relation to a change of the children’s school before undertaking any of the steps laid out in sub clauses (a), (b) and (c) of paragraph 2 of the final orders.
(4)The mother conceded that she had been reading the order “incorrectly”.
(5)The mother conceded that she had informed the father of the decision made in relation to the children’s schooling, rather than consulting with the father as provided for in paragraph 2(b) of the said order.
(6)The mother conceded that prior to 4 December she had never communicated to the father an intention to make a decision to enrol the children at “F School”. When it was put to the mother that her actions constituted a breach of order 2 the mother stated:
How you’re explaining it to me, that is correct, but that’s not how I read it. I thought I had to present [Mr Akayev] a school. I had no presentation of a school to [Mr Akayev]. That’s why I apologised to him, being time poor…
Further on in the evidence, Mr Priestley put to mother that she had never presented the father with a school until the children were enrolled in school. The mother agreed with this proposition. Again, when it was put to the mother that this constituted a breach of paragraph 2 the mother replied “the way that you’re explaining it, that is correct”.
On further questioning by Mr Priestley, the mother apologised for having misread the consent orders and stated:
I try and be extremely careful with everything I do, especially with the consent orders. I take the law seriously and it appears that you have explained it to me that I have misread it.
When it was put to the mother by Mr Priestley that she was not confused and knew exactly what the orders were but had chosen not to comply with the order, she stated:
…the way that you have explained it, it appears that I have misread it, and I apologise. I don’t know what more I can honestly do.
I am satisfied on the mother’s own evidence that she has breached paragraph 2 of the final order.
Count 5
By its terms, paragraph 17 of the final orders provides a positive obligation on each parent to provide to the other, the names, addresses and telephone numbers of all medical professionals who treat the children or any of them. Upon such advice being provided, the final orders goes on to permit each of the parties to obtain further information or to discuss any aspect of the child or children’s health with the treating practitioner.
Under cross examination by Mr Priestley the mother conceded:
(1)That she had no trouble understanding the terms of paragraph 17 of the final order;
(2)That she had not provided to the father the names, addresses and telephone numbers of all medical professionals who had treated the children or any of them;
(3)That she had arranged for the children to be administered COVID injections without following the terms of paragraph 17 of the final order. The mother’s evidence is that the first injections were administered by a doctor and the second were administered by a nurse;
(4)That a nurse is a “medical professional” as defined in paragraph 17 of the final orders;
(5)That she had not provided to the father the name of the medical professionals who had administered the COVID vaccinations and that the father had only discovered the name of the doctor by issuing a subpoena;
(6)That in relation to the children’s attendance upon an optometrist, she had not informed the father as to the name of the optometrist or business where the children’s eye tests were undertaken. The mother’s evidence was that she saw an advertisement for free eye testing for the children on Facebook. The mother and the children then attended at M Business in City D for a “quick eye test”. The mother’s evidence is that she was not even aware of the name of the person who saw the children and had only learnt during the course of these proceedings that the practitioner was called “Dr H”.
(7)That her understanding of paragraph 17 of the said final order relating only to a “serious condition” or a “general practitioner” was erroneous.
Mr Priestley put to the mother the following:
Mr Priestley: So you’d tell the Court that when you read “before” you understood “after” and when you read “medical professional” you understood “general practitioner”;
Mother: I know. It sounds really dumb doesn’t it?
In short, the mother conceded that for the first time she had come to understand at Trial and under cross examination that she had misread the terms of the final orders dated 24 May 2019 as it related to the practical application of paragraph 17 of the final orders.
I am satisfied on the mother’s own evidence that she has breached paragraph 17 of the final orders.
REASONABLE EXCUSE
If a contravention is established then the Court must next determine whether the respondent mother has demonstrated that she has a reasonable excuse for not complying with the orders. A “reasonable excuse” is defined in Section 70NAE of the Act as follows:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contraveningan order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7)
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
a.the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
b.the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.[10]
[10] Family Law Act 1975 (Cth) s 70NAE.
Mr O’Brien submits that the mother has made out a defence of “reasonable excuse”.
Mr O’Brien contends that the decision of Taikato v R[11] and cited in a family law context the case of Seaward & MacDuff[12] is of assistance in relation to the interpretation of the term “reasonable excuse”;
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception
…
However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the courts must give effect to the will of Parliament and give effect to their own ideas of what is a “reasonable excuse” in cases.....[13]
[11] Taikato v R [1996] HCA 28; (1996) 186 CLR 454 (per Brennan CJ, Toohey, McHugh and Gummow JJ).
[12] Seaward & MacDuff [2011] FamCA 1041.
[13] Ibid at [17], quoting Taikato v R (1996) 186 CLR 454, 466.
Mr O’Brien submits that the concept of flexibility and determining whether or not a reasonable excuse has been made out was referred to in the decision of Ongal & Materns (supra) wherein the Full Court stated:
The legislation is silent on the matters a court should consider in deciding whether someone ought to be excused from a contravention pursuant to a Section 70NAE(2)(b) for misunderstanding an order.[14] The discretion is therefore of considerable breadth, to adopt the expression used in Stanfordv Stanford (2012) 247 CLR 108 at [36] “it is not possible to chart its metes and bounds”.[15]
[14] Ongal & Materns [2015] FamCAFC 68 [38].
[15] Ibid.
Mr O’Brien submitted that his client misunderstood the orders and has “done her best to apply the orders as she understood them”. Mr O’Brien submitted that if it is found that the mother has breached the orders then a “second limb” of the “reasonable excuse argument” can be enlivened in which the Court can “draw quite independently as to the environment she (the mother) was seeking to navigate with Mr Akayev”.
Whilst the relationship between the parties is demonstrably difficult and the father’s reactionary behaviour unhelpful, I am not satisfied that the mother has established a reasonable excuse for either Count 2 or Count 5. The mother did not have to personally engage with the father. All communication was in writing. The mutual SMS messages attached as Annexure F to the father’s affidavit filed on 27 August 2021 demonstrate that the mother could provoke or retaliate through that mode of communication when she wanted to. Her replies to the father were not helpful.
It is my assessment that the mother underestimated the strength of the father’s convictions on wanting to be involved in these parenting topics. The father’s conviction was undoubtedly strengthened after the reunification counselling had failed and the mother had flagged an intention to move with the children from City D. Paragraphs 2 and 17 of the final orders provided the last skerrick of connection the father had with the children and in those circumstances took on a particular importance to him, culminating in this application.
Count 1
For the reasons set out in paragraphs 28 and 37 herein, Count 1 of the said Contravention Application should be dismissed pursuant to Section 70NCA of the Act.
Count 2
The Court finds that the mother contravened order 2 of the order made on 24 May 2019 without reasonable excuse. The finding of the contravention is based on the mother’s own evidence set out in paragraphs 38 and 42 herein.
Count 5
The Court finds that the mother contravened order 17 of the order made on 24 May 2019 without reasonable excuse. The finding of the contravention is based on the mother’s own evidence set out in paragraphs 43 and 47 herein.
IMPOSITION OF PENALTIES
The father seeks the imposition of a Bond to secure compliance with the orders into the future and for the mother to be of “good behaviour”. Mr Priestley submits the mother’s behaviour constitutes a “more serious offence” within the meaning of the Act.
Section 70NFB(2) of the Act empowers the Court to order a person who has committed a contravention to enter into a Bond in accordance with Section 70NFE.[16] The Bond may be for a period of up to two years, may be with or without surety or security and may be on conditions that require the person to be of good behaviour.
[16] Family Law Act 1975 (Cth) s 70NFB(2).
In the circumstances of this case, I consider the correct approach is to adopt Section 70NEA of the Act. In other words, the Court is satisfied that the mother contravened the final orders in accordance with counts 2 and 5 of the said Contravention Application without reasonable excuse (less serious contravention).
In my view, no penalty should be imposed on the mother. This is a first offence. On the available evidence that the relationship between the parties is highly toxic. The father’s reactive conduct in posting messages on public social media platforms and accusing the mother of “abducting” the children was emotive and unhelpful. It is hard to see how his conduct would have been helpful in re-establishing his relationship with his children, as was submitted by Mr Priestley as being the primary motivator behind this application. The Court would be loath to see any situation where the outcome of these proceedings becomes seen as some empiric victory by one parent over another. The parties are reminded that the decisions of this Court are protected by section 121 of the Act and any breach of this section will be treated very seriously.
The imposition of no penalty should not be considered as without consequences for the mother. A second or subsequent finding that the mother has breached an order without reasonable excuse may well be considered as “a more serious” disregard of an order on any further application.
The focus of this Court in dealing with the Contravention Application under Division 13A is to make orders which will enforce future compliance. As was commented upon by Justice Cronin in the decision of McClintock & Levier:[17]
For a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them, in other words, to make an example of them, would be an error of law.[18]
(original emphasis)
[17] McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401; (2009) 41 Fam LR 245.
[18] Ibid [234].
I am satisfied that this process has been a salient experience for the mother. Her evidence under oath is that she now understands the terms of the final orders. The Court will expect the mother to be very careful to ensure compliance with the operative parenting orders in the future. There is merit in the submission made by Mr O’Brien on behalf of the mother that the process of going to Trial, together with the incursion of legal costs and “emotional time” would be “punishment enough” and having seen the mother give evidence, I agree.
COSTS
Each party seeks costs against the other dependent on the findings made and consequent orders at this Trial.
The mother’s Schedule of Costs dated 16 March 2022 provides that actual legal costs incurred by the mother in responding to the father’s Contravention Application are $22,616.00.
The father’s Schedule of Costs dated 7 March 2022 provides that actual costs incurred by the father are $29,209.32.
Both parties are employed. Neither party is in receipt of Legal Aid. The mother is the sole provider for the parties’ children, noting the father’s desire to provide for them if he could.
Both parties have been successful and unsuccessful in almost equal measure.
For the reasons set out herein, I decline to make any order for costs other than to confirm what has already happened, namely that each party do pay their own costs of and incidental to these proceedings.
CONCLUSION
For all of the above reasons, the Court makes orders as set out at the commencement of these reasons.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 28 March 2022
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