BAMKIN & TATE (No.2)

[2015] FCCA 1562

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMKIN & TATE (No.2) [2015] FCCA 1562

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – consequential orders – less serious contravention – where no previous contravention of primary order – imposition of bond.

FAMILY LAW – Costs – whether respondent should pay applicant’s costs – consideration of parties’ financial circumstances – where Applicant has significant arrears of child support – where neither party in receipt of legal aid – where Respondent not wholly unsuccessful – proceedings necessitated by failure to comply with previous orders of the court – where Respondent ordered to meet some but not all of Applicant’s costs.

Legislation:

Family Law Act 1975 (Cth), ss.70NEA, 70NEB, 70NEC, 117

Federal Circuit Court Rules 2001, Sch.1

Cases cited:
Bamkin & Tate [2015] FCCA 779
Mallet v Mallet (1984) 156 CLR 605; FLC 91-507
Penfold v Penfold (1980) 144 CLR 311
Woodley & Time & Anor [2008] FamCA 162

Applicant: MR BAMKIN

Respondent: MS TATE

File Number: SYC 1276 of 2008

Judgment of: Judge Scarlett

Hearing date: 3 June 2015

Date of Last Submission: 3 June 2015

Delivered at: Sydney

Delivered on: 11 June 2015

REPRESENTATION

Counsel for the Applicant: Mr Davis

Solicitors for the Applicant: Robertson Saxton Primrose Dunn

Counsel for the Respondent: Ms Barker

Solicitors for the Respondent: Marsdens Law Group

ORDERS

1. The Respondent mother is required to enter into a bond under the provisions of section 70NEC of the Family Law Act 1975, without surety or security, for a period of twelve (12) months from the date of this Order on the following conditions:

   (a)that she be of good behaviour during the term of the bond; and

   (b)that she comply with Orders of this Court.

2. The Respondent is to pay one-half of the Applicant’s costs and disbursements calculated according to Schedule 1 Part 1 of the Federal Circuit Court Rules 2001 fixed  in the sum of $5,059.75 within six (6) months of the date of this Order.

IT IS NOTED that publication of this judgment under the pseudonym Bamkin & Tate (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1276 of 2008

MR BAMKIN

Applicant

And

MS TATE

Respondent

REASONS FOR JUDGMENT

Further Proceedings

1. On 20 March 2015 the Court found that the Respondent had, without reasonable excuse, contravened the primary Orders in this matter. Three other counts were dismissed, and the Respondent was found to have stablished a reasonable excuse in respect of another count.

2. As a result, there are two matters that need to be decided. First, the Court needs to consider what orders should be made in respect of the five contraventions that have been established. Second, the Applicant seeks an order for his costs.

An Appropriate Sanction

1. Section 70NEA of the Family Law Act 1975 (Cth) provides that where the Court is satisfied that a person has committed a contravention of a primary order without a reasonable excuse and no court has previously imposed a sanction in respect of an earlier contravention of the primary order, then the Court may deal with the matter under Subdivision E of Division 13A, unless the Court is satisfied that the person has behaved in a way that showed serious disregard for his or her obligations under the primary order.

2. I am informed that no court has previously made an order imposing a sanction or taken an action in respect of a contravention of the primary order. I am also not satisfied that the Respondent has behaved in a way that showed a serious disregard for her obligations under the primary order.

3. Consequently, I propose to exercise the powers given to the Court under Subsection 70NEB(1) of the Family Law Act 1975, which provides that the Court may do any or all of the following:

   a)direct the person to attend a post-separation parenting program;

   b)make a further parenting order that compensates the other person for time he did not spend with the child;

   c)adjourn the proceedings to allow a party to apply for a further parenting order;

   d)make an order requiring the Respondent to enter into a bond under section 70NEC of the Act;

   e)make an order requiring the Respondent to compensate the Applicant for reasonably occurred expenses; and

   f)make an order for costs against the person.

4. I have considered all of the above matters.

5. The relationship between the parties is poor and their communication is marked by acrimony and discourtesy. I believe that the time for a post separation parenting program is long past.

6. There are already proceedings on foot to vary the earlier parenting orders, so that neither of the options in paragraphs (b) or (c) of subsection 70NEB(1) appears to be appropriate.

7. There is no compensation sought for reasonable expenses.

8. In my view, the appropriate sanction is a bond in accordance with section 70NEC of the Family Law Act 1975. Subsection 70NEC(2) provides that a bond should be for a period of up to 2 years. I consider 12 months will be sufficient, without the need for a surety or security, on condition that the Respondent is of good behaviour and complies with Orders of this Court. The Respondent will need to enter into the bond before a Registrar, who will explain the obligations under the bond.    

Costs

1. Paragraph 70NEB(1)(f) makes provision for an order that the person who committed the current contravention pay some or all of the costs of the other party to the proceedings. In my view, the Court must still consider the matters in subsections 117(2) and (2A) of the Act.

2. Ms Barker, for the Respondent, has submitted that no order for costs should be made. She has prepared a very careful written submission in which she provides a detailed survey, not only of the requirements under s.117, but of a number of authorities, including Penfold v Penfold[1], Mallet v Mallet[2] and Woodley & Time[3]. She submits that the Respondent’s financial circumstances are tight, as she is the primary carer of the parties’ child and receives little or no child support from the Applicant. He currently owes approximately $30,000.00 in arrears of child support.

   [1] (1980) 144 CLR 311

   [2] (1984) 156 CLR 605; FLC 91-507

   [3] [2008] FamCA 162

3. Ms Barker also submitted that the Respondent was not wholly unsuccessful in the proceedings, as three counts were dismissed and she was able to establish a reasonable excuse in respect of another one.  

4. Mr Davis, for the Applicant, has submitted a calculation of party and party costs based on Schedule 1 of the Rules. The total, including disbursements of $207.00, comes to $10,119.50.

5. I have considered all of those matters.

6. I note that neither party is in receipt of Legal Aid. I have no evidence of the Applicant’s financial circumstances but it is clear that the Respondent’s circumstances are strained, as she has the primary care of the child and the Applicant is considerably in arrears with child support payments.

7. The Respondent was not wholly unsuccessful, as only five of the nine counts were found proven. Nevertheless, the Court found that the Respondent had contravened the primary orders on five occasions without reasonable excuse. The proceedings were necessitated by the Respondent’s failure to comply with previous Court Orders.

8. I am satisfied that the Respondent should pay half of the Applicant’s costs. The costs have been calculated correctly by the Applicant’s solicitor, and $10,119.50 appears to be the correct figure. One half of that amount comes to $5,059.75.

9. I will allow six months to pay.   

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  11 June 2015