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Case [2015] FamCA 55 5 February 2015

Statutory Construction

Family Law

Statutory Interpretation

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FAMILY COURT OF AUSTRALIA

BEST & BEST

[2015] FamCA 55

FAMILY LAW – CHILDREN – Where an application for contravention had been brought against the father – Where the father brought an application to vary the parenting orders under s70NBA of the Family Law Act 1975 (Cth) – Purposive approach to interpreting the legislation – No evidence of any change in circumstances – The orders are not difficult to understand – Father’s application dismissed.

FAMILY LAW – COSTS – Where the father seeks costs – Where the father is a self-represented litigant – Consideration of rule 19.01 of the Family Law Rules 2004 – Where the father has not led evidence about costs or expenses incurred – Where the mother’s conduct in bringing the application was justifiable – Where the father has been wholly unsuccessful in his application to vary parenting orders – Father’s application for costs dismissed.

Acts Interpretation Act 1901 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Supreme Court Rules 1970 (NSW)

Cachia v Hanes (1994) 179 CLR 403
Irvin and Carr (2007) FLC 93-322
Mills v Meeking (1990) 169 CLR 214
Oscar v Traynor [2008] FamCAFC 158
Project Blue Sky v ABA [1998] 194 CLR 355
Rice v Asplund (1979) FLC 90-725

Sandler v Kerrington [2007] FamCA 479

APPLICANT:

Mr Best

RESPONDENT:

Ms Best

FILE NUMBER:

WOC

2010

DATE DELIVERED:

5 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

5 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

The father’s application pursuant to s 70NBA Family Law Act 1975 (Cth) contained in [103] and [107] of his affidavit filed 3 December 2014 be dismissed.
The father’s application for costs (order 3 sought in the father’s Application in a Case filed 7 January 2015) be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 91 of 2010

Mr Best

Applicant

And

Ms Best

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

On 27 June 2014, after a hearing of over five days, Justice Aldridge made orders in the following terms:
1.    That the children shall spend no time with the father.
2.    That the father is hereby restrained from contacting the children by telephone, email or any other form until the children each attain the age of eighteen (18) years.
3.    That the father is hereby restrained from contacting or approaching the mother in any manner whatsoever.
NOTATION:
A.    I note that the orders made by her Honour Justice Ryan on 3 February 2012 and as varied by the Full Court on 1 February 2013 otherwise apply.
On 16 July 2014 the mother filed an Application for Contravention and an affidavit sworn on 9 July 2014. In the Application for Contravention the mother asserted that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BEST & BEST [2015] FamCA 55
Case: [2015] FamCA 55
Decision Date: 5 February 2015

CaseChat Overview and Summary

In the Family Court of Australia, Justice Watts considered an application by the father to vary existing parenting orders, brought pursuant to s 70NBA of the *Family Law Act 1975* (Cth). This application was made in the context of a contravention application brought against the father.

The primary legal issue before the court was whether the father had established grounds to vary the parenting orders. A secondary issue concerned the father's application for costs, particularly given his status as a self-represented litigant.

Justice Watts approached the interpretation of s 70NBA purposively. The court found no evidence of any change in circumstances that would warrant a variation of the existing orders, nor did it find the orders themselves to be difficult to understand. Consequently, the father's application to vary the parenting orders was dismissed. The father's subsequent application for costs was also dismissed, as he had not adduced evidence of any costs or expenses incurred, and the mother's conduct in bringing her application was deemed justifiable. The father had been wholly unsuccessful in his application to vary the parenting orders.

Orders

Orders of the court

The father’s application pursuant to s 70NBA Family Law Act 1975 (Cth) contained in [103] and [107] of his affidavit filed 3 December 2014 be dismissed.

The father’s application for costs (order 3 sought in the father’s Application in a Case filed 7 January 2015) be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

BEST & BEST [2015] FamCA 55

Cases Citing This Decision

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Cases Cited

Oscar & Traynor [2008] FamCAFC 158
Citation 1 (Para 5)

…The Full Court in Oscar v Traynor [2008] FamCAFC 158 at [85-89] reviewed what expenses could be recovered by a self-represented party. In doing so they discuss and apply the High Court’s decision in Cachia v Hanes : 85. There has been considerable case law since Cachia v Hanes , much of which is unreported, dealing w…
Farquar & Farquar (No. 2) [2008] FamCA 682
Citation 2 (Para 5)

…osts (see, for example, the discussion of the Full Court in W (deceased) and W and Ors (supra at [49]); and also Farquar and Farquar (No 2) [2008] FamCA 682; Cachia v Hanes (supra) at p 417); b) parking costs (see, for example, H & H [2006] FamCA 257 at [9]); and c) meals (see, for example, Maronis Holdings Ltd v N…
Step v Northern Territory of Australia [2007] NTCA 6
Citation 3 (Para 5)

…, Winter v Fleeton [2002] WASCA 73 at [23]); g) disbursements incurred by a litigation guardian (see, for example, Step vNorthern Territory (2007) 20 NTLR 141); and h) incidental expenses in relation to photocopying, postage and telephone and facsimile transmissions (see, for example, Shephard v Blueberry Farms of Au…
Pittwater Council v Bolitho [2007] NSWLEC 355
Citation 4 (Para 5)

…(see, for example, Winter v Fleeton [2002] WASCA 73 at [23]); d) freedom of information fees (see, for example, Pittwater Council vBolitho [2007] NSWLEC 355 at [159]); e) fees for searching registers, such as an ASIC search fee (see, for example, Re Sullivan and Department of Industry, Science and Technology (1998)…
Sandler & Kerrington [2007] FamCA 479
Citation 5 (Para 8)

…Warnick J in Sandler v Kerrington [2007] FamCA 479 reflected on the purpose of s 70NBA as follows: 43. Prior to the 2006 amendments, from time to time matters came before the court by way of contravention applications and in the hearing of those applications it became apparent that the alleged contraventions substa…
H & H [2006] FamCA 257
Citation 6 (Para 5)

…at [49]); and also Farquar and Farquar (No 2) [2008] FamCA 682; Cachia v Hanes (supra) at p 417); b) parking costs (see, for example, H & H [2006] FamCA 257 at [9]); and c) meals (see, for example, Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 at [14]). 88. When considering the case law, it is…
Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838
Citation 7 (Para 5)

…costs (see, for example, H & H [2006] FamCA 257 at [9]); and c) meals (see, for example, Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 at [14]). 88. When considering the case law, it is important to keep in mind that each jurisdiction has different legislative provisions and rules dealing with…
Winter v Fleeton [2002] WASCA 73
Citation 8 (Para 5)

…e Full Court in W (deceased) and W and Ors [2004] FamCA 319 at [41]); c) expenses for serving documents (see, for example, Winter v Fleeton [2002] WASCA 73 at [23]); d) freedom of information fees (see, for example, Pittwater Council vBolitho [2007] NSWLEC 355 at [159]); e) fees for searching registers, such as an…
Cary v Owners of Strata Plan No. 7241 [2002] FMCA 18
Citation 9 (Para 5)

…(see, for example, Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339 at [66]; Cary v Owners of Strata Plan No. 7241 [2002] FMCA 18). 86. There are, of course, also many cases in which a litigant has been awarded costs relating to the legal advice obtained in preparation for a hearing altho…
Shephard v Blueberry Farms of Australia (Corindi) Ltd [2001] FMCA 2
Citation 10 (Para 5)

…to photocopying, postage and telephone and facsimile transmissions (see, for example, Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339 at [66]; Cary v Owners of Strata Plan No. 7241 [2002] FMCA 18). 86. There are, of course, also many cases in which a litigant has been awarded costs relating t…
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 53
Citation 11 (Para 6)

…A purposive approach should be taken to s 70NBA of the Act (see Project Blue Sky v ABA [1998] 194 CLR 355 said at paragraph 69 and 70; Mills v Meeking (1990) 169 CLR 214; s 15AA of the Acts Interpretation Act 1901 (Cth)).…
Cachia v Hanes [1994] HCA 14
Citation 12 (Para 4)

…The High Court in Cachia v Hanes (1994) 179 CLR 403 considered Part 52, r 23(2) of the Supreme Court Rules 1970 (NSW) which provides for “… costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed”. The majority held that “…“cost…
Mills v Meeking [1990] HCA 6
Citation 13 (Para 6)

…purposive approach should be taken to s 70NBA of the Act (see Project Blue Sky v ABA [1998] 194 CLR 355 said at paragraph 69 and 70; Mills v Meeking (1990) 169 CLR 214; s 15AA of the Acts Interpretation Act 1901 (Cth)).…
Full Court in B and P [2000] FAMCA 392
Citation 14 (Para 5)

…nses which have been found to be properly recoverable include: a) court fees (see, for example, the discussion of the Full Court in B and P [2000] FamCA 392 at [50]; and also the Family Law Regulations 1984, reg 11(6)(b)); b) transcript costs, on the basis that they cannot also be claimed as costs in connection wit…
W and Ors [2004] FAMCA 319
Citation 15 (Para 5)

…not also be claimed as costs in connection with the trial (see, for example, the discussion of the Full Court in W (deceased) and W and Ors [2004] FamCA 319 at [41]); c) expenses for serving documents (see, for example, Winter v Fleeton [2002] WASCA 73 at [23]); d) freedom of information fees (see, for example, Pit…
Rice v Asplund 220 FLR 300
Citation 16 (Para 9)

…68]). That is, there would need to be a consideration of s 70NBA(2) and s 60CC of the Act and importantly, an application of the guidance provided by Rice v Asplund (1979) FLC 90-725 and the cases that have followed it. That is particularly so in a case such as this where a full final hearing of parenting issues between…

Legislation Cited

Family Law Act 1975 (Cth)
2 mentions (from Para 1)
Acts Interpretation Act 1901 (Cth)
1 mention
Family Law Regulations 1984 (Cth) 11(6)(b))
1 mention (from Para 5)
Family Law Rules 2004 (Cth)
1 mention
Supreme Court Rules 1970 (NSW)
1 mention (from Para 4)