Baldwin & Baldwin
[2024] FedCFamC2F 1131
•2 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baldwin & Baldwin [2024] FedCFamC2F 1131
File number(s): BRC 1683 of 2024 Judgment of: JUDGE BERTONE Date of judgment: 2 August 2024 Catchwords: FAMILY LAW – COSTS – where 92 count contravention application egregious – where contravention application was withdrawn on the morning of hearing - where an order in accordance with the scale of costs is not sufficient Legislation: Family Law Act 1975, s 117 Division: Division 2 Family Law Number of paragraphs: 57 Date of last submission/s: 2 August 2024 Date of hearing: 2 August 2024 Place: Brisbane Counsel for the Applicant: Mr Cahill Solicitor for the Applicant: N Law Firm, City K Counsel for the Respondent: Mr Jordan Solicitor for the Respondent: Keating Lehn Solicitors ORDERS
BRC 1683 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BALDWIN
Applicant
AND: MS BALDWIN
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
2 AUGUST 2024
THE COURT ORDERS BY CONSENT ON A FINAL BASIS THAT:
1.Orders 3 to 23 inclusive, of the Orders dated 28 August 2014 are hereby discharged.
2.The Applicant Father’s time with the child, X born in 2008 (the child), be in accordance with the child’s wishes and as agreed by the Respondent Mother in writing.
3.Pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child, is entitled to have an Australian travel document including but not limited to an Australian Passport.
4.To give effect to this Order, the Respondent Mother is permitted to complete, sign and lodge any application for issue and/or renewal of the child’s Australian Passport, or any other document required to allow the child to travel outside the Commonwealth of Australia, without the need to obtain the Applicant Father’s consent.
5.The Applicant Father is restrained from making an application for an Australian passport or travel-related document for the child.
6.It is requested that the Department of Foreign Affairs and Trade (Australian Passports Office) issue and renew an Australian Passport for the Child upon application of the Respondent Mother alone.
7.For the purposes of section 65Y(1)(c)(ii) of the Family Law Act 1975 (Cth), the Respondent Mother is permitted to take or send the child outside the Commonwealth of Australia without the need for the Applicant Father’s consent.
8.The Respondent Mother will retain the Child’s Passport at all times.
THE COURT ORDERS THAT:
9.The Applicant Father pay the costs of, and incidental to, the Contravention Application filed on 12 February 2024 fixed in the sum of $40,000 payable in equal monthly instalments over three (3) years with the first payment to be made on 1 September 2024 and subsequent payments paid on the first of every month until paid.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BERTONE
This judgment was delivered orally and has been corrected for comprehension.
Before me today was to be the hearing of the Father’s contravention application filed 12 February 2024. The contraventions were in respect of parenting orders made on 28 August 2014, for X, who was born in 2008.
X will be 16 in 2024. He has not seen his Father since early 2023.
The Father’s contravention application sets out 92 counts of alleged contraventions of the parenting orders by the Mother.
I was informed at the commencement of the hearing that the parties had agreed to consent orders which would provide, in essence, for the following:
(1)The contravention application to be dismissed;
(2)For orders 3 to 23 of the parenting orders made 28 August 2014 to be discharged;
(3)For the child to spend time with the Father in accordance with his wishes and as agreed between the Mother and the Father;
(4)Orders for X to obtain a passport and to travel overseas.
I have received a draft minute of orders that I am informed by both parties’ Counsel that the parents have agreed to. I consider those orders to be appropriate in the circumstances and that they are in this child’s best interests.
The remaining issue for my determination is in respect of costs. The Mother seeks an order that the Father pay her costs, preferably on an indemnity basis, but certainly at the very least on a calculation of the scale.
Exhibit 6 identifies the Mother’s costs incurred to be $52,306.88 and, calculated on the scale, those fees come to a total of $17,062.83. A separate line on exhibit 6 sets out the costs incurred since 8 July 2024 being $22,335.49. The relevance of the period being from 8 July 2024 will become clear later in these reasons.
The Father, of course, resists any costs application against him by the Mother and submits that the usual order that is provided in section 117 of the Family Law Act 1975 (Cth) (“the Act”) is that each party should bear their own costs.
In considering what order I should make in respect of costs I am required to have regard to the factors set out in section 117(2A) of the Act.
Section 117(2A)(a): Financial Circumstances of Each of the Parties
On 8 July 2024 I held a compliance hearing in this matter and the parties attended with their respective solicitors. I ordered the parties to file a financial statement because I informed the parties that costs would be an issue in these proceedings.
The Mother filed her financial statement on 29 July 2024. I have had regard to that financial statement. What it indicates is that she is on a carer’s pension and other family tax benefits. She is the sole carer for X who has special needs. Mr Jordan, her Counsel, confirmed that the Mother and X live with her father, being the Maternal Grandfather, in the Maternal Grandfather’s house. The Mother, therefore, does not have to pay rent or mortgage.
The Father in these proceedings filed his financial statement on 23 July 2024. His Counsel, Mr Cahill, had today to clarify and correct certain evidence in that sworn document to this effect:
(1)That the Father receives a carer’s pension for his care of his Mother-in-law;
(2)That he and his wife own property in City K, in respect of which there is a mortgage owing; and
(3)That his mother-in-law lives with both him and his wife in their City K property.
I am not able to make a finding as to what the value of the property is nor what the value of the mortgage is, because in a sworn document, I am told today that the figures are incorrect. Therefore, I make no finding other than this: the Father and his new wife are joint registered proprietors of a property in which they live and against which there is a mortgage.
Contained in the financial statement is the detail that the Father’s wife earns $1200 per week, and that she is responsible for making the repayments on the mortgage which are $339 per week. This is in addition to the Father’s carer’s pension. This means that the household in which the Father lives receives $1700 per week in income.
I note the Father does not pay child support for X. I have no evidence as to whether he ever paid child support for X.
On the basis of the evidence contained in the financial statements of each parties and the evidence I allowed to be given from the bar table, I find that the Father is in a superior financial position to that of the Mother because there is more money coming into his household, given that his wife does earn an income of $1200 per week, that he co-owns real property with his wife, and that he does not pay child support.
I note that not only is the Mother X’s sole caregiver, but she is also homeschooling him due to his special needs.
Section 117(2A)(b): Whether Either Party is in Receipt of Legal Aid
The Father has a grant of Legal Aid pursuant to section 102NA of the Act. The Mother has been privately paying her legal fees.
I pause to note that the basis upon which the Father was in receipt of Legal Aid was as a result of the very serious allegations the Mother made of family violence against the Father. I am not required to make any findings about whether or not there was family violence except to note this: in the child impact report, which was dated 2 July 2024, the Father admitted to saying, at paragraph 24, that he would, “Cut the Mother up and place her body parts in drums.”.
Section 117(2A)(c) and (d): Conduct of the Parties to the Proceedings and Failure to Comply with the Orders
I will deal with section 117(2A) subsections (c) and (d) of the Act together. Dealing with (d) first, because that is the subsection that deals with the question of whether the proceedings were necessitated because of a party having failed to comply with orders.
The Father would say that his contravention application has been made in the context of what he considered to be the Mother’s failure to comply with previous orders of the Court. The difficulty with that thought is that the original parenting orders were made in August of 2014 and seem to have been largely complied with up until early 2023 when X stopped seeing his Father.
I note in the Father’s contravention application, which sets out 92 counts, some of the counts go back to 2020 which deal with an order, which is Order 17 of the original parenting orders, that each parent is restrained from denigrating the other parent.
The Father had been self-represented until the grant of the section 102NA Legal Aid funding. This strikes me as self-evident, given the failure to particularise, and the Father’s failure to understand what the obligations were upon the Mother of the original parenting orders, which led the Father to file a contravention application against her, including 92 counts, many of which, on their face, would simply be dismissed.
Exhibit 5 is a schedule that I ordered to be prepared on 8 July 2024 when I had the parties before me for a compliance mention. On that date, I asked the Father’s solicitor if the Father had had regard to the contents of the child impact report. I was informed that he had not, as yet, had the opportunity to consider the contents.
I made the order for the schedule in exhibit 5 because I had, it seems wrongly, believed that if the Father had regard to the contents of the child impact report, he might reflect on the number of alleged contraventions he was making.
What transpired was the filing of exhibit 5 with, instead of 92 counts being proceeded with, 89 were to be prosecuted. If I have got that wrong, it is clear from exhibit 5, though it is not clear from the document and the contraventions itself, that contravention number 1 was not prosecuted. I do not know which contravention to which that refers because the numbers in the contravention application are absent.
Further in exhibit 5, on page 5, number 67 is said to not be prosecuted. Again, I do not know to which that contravention is addressed. Page 7 identifies that contraventions 85 and 86 are not to be prosecuted. Again, I do not know which ones those contraventions refer to.
What remains in exhibit 5 is a clear indicator of the Father’s complete lack of understanding of the obligations of these parenting orders on the Mother with respect to her requirement to keep him informed about X’s progress, health, and education, etcetera, given that she has sole parental responsibility for X.
Perhaps the main thrust of the Father’s contravention application was the complaint he has that X has not spent time with him since early 2023. Exhibit 5 shows that some 19 counts of contraventions of the order for time to be spent between X and his Father were alleged.
Submissions by Mr Cahill, on behalf of the Father, in terms of his change in position as to proceeding with his contravention application right up until 6 pm on 1 August 2024 (being the day before the hearing), was because he had not really understood or appreciated the contents of the child impact report.
I have had regard to the Father’s affidavit, filed 12 February 2024, which supported the contravention application because, as I indicated at the beginning of these reasons, I was to hear the contravention application itself. That affidavit was not responded to by the Mother because I did not order her to respond to any of the evidence put forward by the Father. This means that the evidence that the Father has put before the Court is as contained in his affidavit filed that day and also the affidavit of his new wife, filed 12 February 2024.
In the Father’s affidavit, it is apparent that the Mother had provided the Father with medical evidence that identified, from early 2023, that, at the very least, X was struggling.
Page 85 of the Father’s affidavit sets out a letter that was sent to the Father and it is dated 23 January 2023 and this is from Dr L, who is X’s psychiatrist. It is of great concern to me that this Father had this letter in his possession and could not seem to understand the gravity that was facing X after the visit that he had with his Father and I specifically refer to paragraph 3 which I will quote now:
Mother was extremely concerned about [X]’s mental health. After a visitation to father she reports that he returned home in an agitated state saying that he wanted to harm himself and had thoughts of [self-harm]. This appeared to be triggered by what mother describes as a stressful environment in the father’s home and father talking to [X] about parental issues including upcoming Court cases and the poor relationship between himself and his mother. Mother states that he will often denigrate her to [X]. Mother was also concerned that the long travel time it took [X] to visit father and the extra burden and stress this was for him.
It is not controversial that, at the time the parents made the orders in 2014, they were living in close proximity. By the time of early 2023, which was the last time that X saw his Father, the Father had moved some five hours away to City K. It seems the Father had no consideration for any possible negative impact on X of having to travel that distance every fortnight and during the school holidays.
Prior to that Dr L report there was the short letter from X’s GP, dated early 2023, which identifies at page 92 that X had been seen in early 2023 for a medical consultation and he demonstrated a great deal of distress following his recent visit with his Father. He expressed multiple times that he did not want to go to his Father’s this coming Friday.
The recommendation from the GP was that X should skip the next upcoming visit. This was provided to the Father because it has made its way into his affidavit.
A further medical report was provided by the Mother to the Father from Ms M who is X’s psychologist. It is dated mid-2023. I quote the third paragraph:
[X] does not yet have the skills to express his feelings in the moment and his anxiety can build up to intense levels. His concerning comments about wanting to [harm] himself in [early] 2023 after coming home from a visit to his father was an indicator that he was in extreme anxiety upon which it was decided to reduce the level of stress in his life which included ceasing his travels to his father’s [City K] home.
Armed with this medical documentation on the letterheads of medical practitioners, so not just hearsay from the Mother but they were medical reports from medical practitioners, the Father wrote to the Mother’s solicitors on 7 August 2023 – and this is contained at pages 52 and 53 of the Father’s affidavit – I will quote the second last paragraph of this letter:
Your client also has given no reason for the cessation of all communication with [X], nor has any evidence been provided by medical specialists that shows a relationship with us is detrimental to [X]’s health and welfare.
I find that such a statement is patently false and flies against the detailed medical evidence that the Father had been provided by the Mother in early 2023 and as late as mid-2023.
Notwithstanding this medical evidence, the Father then filed his contravention application, as I have said repeatedly, citing 92 counts.
In the circumstances of the Father having been provided the medical evidence from the Mother, and in the circumstances of his earlier admission that he had made a threat upon the Mother’s life, although he would minimise that and say he did not mean it, I find that the Father filing this 92 count contravention application to be particularly egregious, oppressive, harassment and haranguing of the Mother.
When faced with the very detailed report by the child impact report writer on 2 July 2024, and with the benefit of the Father having finally been allocated lawyers to give him legal advice, still he persisted with this application.
A sensible offer was made by the Mother’s lawyers, this was exhibit 1, being a letter of offer sent to the Father for his consideration on 8 July 2024, inviting him to withdraw his contravention application and for each party to bear their own costs of this application. That offer was not accepted and, in fact, was met by a long letter counteroffering which set out the details of further orders that the Father wanted.
Again, in the context of the detailed child impact report, in the context of X’s special needs and in the context of the detailed medical evidence, the Father was pushing his own barrow to have the Mother dealt with by this Court for contravention. That can be the only conclusion I can draw.
Section 117(2A)(e): Whether a Party has been Wholly Unsuccessful
The evidence clearly showed that the Father’s application was, to use Mr Jordan’s words, doomed to fail.
By conceding the contravention application at the 11th hour, the Father has been wholly unsuccessful in the proceedings.
Section 117(2A)(f): Offers Made
I have already referred to offers being made. That is under subsection (f).
Section 117(2A)(g): Any Other Matters
Under section 117(2A) subsection (g), such other matters as the Court considers relevant, I do consider it relevant to note that, because the Father had been unrepresented, he did not obtain legal advice until he was allocated a Legal Aid lawyer. That was his choice. He did not have “skin in the game”, as it were, because he was not paying for lawyers to respond to the letters being sent to him by the Mother’s lawyers for which she was paying.
That created an imbalance, in my view, as between the Mother and the Father because the Mother made serious allegations of family violence and she did not want to deal directly with the Father. She then had to pay for legal representation.
The Father was not so constrained. He felt well able to write very long letters to the Mother, as is evidenced by the annexures to his affidavit, and then send long letters also to the Mother’s lawyers, for which the Mother had to pay for the lawyers to read that correspondence.
That imbalance meant that the Father could represent himself at no cost and the consequence of that was that the Mother was not able to represent herself and had to pay for her representation at significant cost.
Conclusion
The case authorities make clear[1] that it is the usual position of the Court that each party should bear their own costs unless there are circumstances that arise which persuade the Court that one party should bear the costs of the other. I am persuaded that there should be a cost order made against the Father to pay the legal costs of the Mother and I have articulated the reasons for which I make that finding.
[1] Kohan & Kohan [1992] FamCA 116.
The second question is what is the basis of the costs to be paid. Again, the case authorities specify that an indemnity cost order is an order to be made in a rare circumstance.[2]
[2] Prantage & Prantage [2013] FamCAFC 105.
I find that, in this case, the behaviour of the Father is so egregious that an order in accordance with the scale of costs is not sufficient. However, I do take into account that the Father is not a wealthy man and I take that into account in terms of the sum that I consider is reasonable in all the circumstances and takes into account all of the findings that I have made.
I was prevailed upon by Mr Cahill, on behalf of the Father, that if a costs order was to be made, that such a payment should be made over 3 years on a monthly basis until the amount was paid. Mr Jordan sensibly did not cavil with such a submission.
I therefore make an order that the Father pay the Mother’s costs fixed in the sum of $40,000 payable in equal monthly instalments over three (3) years with the first payment to be made on 1 September 2024 and subsequent payments paid on the first of every month until paid.
I make orders accordingly.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Bertone. Associate:
Dated: 2 September 2024
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