BEST & BEST
[2015] FamCA 55
•5 February 2015
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) Supreme Court Rules 1970 (NSW) |
| Cachia v Hanes (1994) 179 CLR 403 Sandler v Kerrington [2007] FamCA 479 |
| APPLICANT: | Mr Best |
| RESPONDENT: | Ms Best |
| FILE NUMBER: | WOC | 91 | of | 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 the father, without reasonable excuse, had committed a contravention of order 2 by sending an email addressed to each of the children (C aged 15 years old and L aged 13 years old), in the terms of the text set out in annexure B to the mother’s affidavit. That email commenced with the words:
Hi [C], [L]
([C] – please see that [L] reads this)
By the time you get this you will no doubt have been told that there are new court orders.
The effect of those court orders is that Mum has finally obtained her goal that she has tried so hard to obtain over the last 5 year period.
The orders that she has actively, and with such utter determination, sort to obtain is that we do not get to see each other until such time as you guys are 18 years old.
The father sent this email either on 1 July 2014 just before midnight or on 2 July 2014, just after midnight.
On 27 October 2014 I found that the mother had established on a prima facie basis, that the father had breached order 2 of the 27 June 2014. The reason for that finding was the knowledge the father displayed of the effect of order 1 made on 27 June 2014 in the words of the opening paragraphs of the email which I have set out above. Order 1 is in the same set of sealed orders as order 2. The matter was adjourned after the prima facie finding to allowing the father to prepare his defence.
The father, in his defence, asserted that he was not aware of the injunctive order in order 2 at the time he sent the email to the children. He says he received the orders in the mail on 3 July 2014, when he returned from the Southern Tablelands of NSW where he had been working. He asserted that the source of his knowledge of order 1 at the time that he sent the email was a telephone call he had received from the mother’s father. The difficulty with that proposition was that that telephone call took place on the afternoon of 2 July 2014, that is after he had sent the email.
On 23 December 2014 and before the conclusion of the hearing, the mother filed a Notice of Discontinuance of her Application for Contravention. The matter was then removed from my list and the contravention application was finalised by the Registrar.
The father had filed an affidavit on 3 December 2014. At [103] of that affidavit the father made an application under s 70NBA of the Family Law Act 1975 (Cth) (“the Act”) to vary “a primary order” and sets out the orders that he sought at [107]. The father does not continue to seek all of the parenting orders sought in that application but still seeks that some of them be made. He also seeks by way of an Application in a Case filed 7 January 2015 (order 3), an order for costs arising from the filing of the Notice of Discontinuance. The mother’s contravention application has therefore been reinstated for the purpose of dealing with those two outstanding matters. The mother opposes the orders which the father now seeks.
SECTION 70NBA OF THE FAMILY LAW ACT
Section 70NBA(1) of the Act provides the court with the power to make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
In considering whether to make an order varying a parenting order, the court must treat the child’s best interests as the paramount consideration (s70NBA(2)).
In this case, the mother had alleged that the father had committed a contravention of order 2 made 27 June 2014. In the circumstances described above, given that the mother had filed a Notice of Discontinuance, the court did not find that the father had committed a contravention of that order. The preconditions set out in s 70NBA(1) enabling the court to exercise power to vary the orders are consequently satisfied.
Relying upon s 70NBA of the Act, the father seeks that the court now make the following orders (as set out in [107] of his affidavit filed 3 December 2014):
1. That the parents are to both attend and complete in a full post-separation program as directed by the family consultant of the Family Law Court with the direct purpose of reducing/removing conflict between the parents.
…
6. That communication between the children & the father be immediately re-established by any such means including but not limited to letters, email, telephone and Skype technology.
7. That the children free (sic) to communicate with the father between the hours of 6:00am & 10:00pm daily and at a frequency as so nominated by the children.
8. That the mother shall provide all means necessary for the children to communicate with the father.
9. That the mother be restricted from denigrating the father to the children, in front off (sic) and or within the hearing of the children and shall prevent any other person from doing so.
The purpose of the placement of s 70NBA into Division 13A of Part VII of the Act is explained in [253] of the Exploratory Memorandum that introduced that section, in the following terms:
Experience suggests that many contravention applications come to the court because circumstances have changed and the existing order are no longer appropriate.
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)).
Division 13A Part VII of the Act deals with the powers to enforce compliance with orders under the Act affecting children (s 70NAA of the Act).
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 substantially arose because of some ambiguity in an order or because some of the order’s terms, in particular for matters such as changeover arrangements or other “mechanics” of contact provisions, were the cause of the difficulty. Often, there was no concurrent application for variation and in any event, the general principle was that the court should deal with the contravention application before dealing with any question of variation of the orders.
44. The introduction of s 70NBA overcomes these difficulties and it may be that, in many circumstances, amendment to an order can be made in a summary way. But that would be because of the nature of the issue, not the terms of the Act.
Any variation to parenting orders under s 70NBA of the Act is to be approached in a similar way to an application for variation to parenting orders under s 65D(2) of the Act (see Irvin and Carr (2007) FLC 93-322 at [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 the parties had recently been completed.
Nothing in the father’s affidavit points to any change in circumstances, from when Justice Aldridge heard and determined the competing parenting applications in June 2014, sufficient to justify embarking upon a hearing which considered a variation of those orders.
There is no difficulty in understanding the terms of the orders made on 27 June 2014. The children were to have no time with the father and the father was not to contact them. The fact that the mother asserted that the father almost immediately breached part of those orders is no basis for the father to seek a variation of those orders pursuant to s 70NBA.
I dismiss the father’s application pursuant to s 70NBA of the Act.
THE FATHER’S APPLICATION FOR COSTS
Given the mother’s application for contravention was concluded as a result of her filing a Notice of Discontinuance, the father seeks an order for costs and expenses against the mother pursuant to s70NCB(1) of the Act, and I infer s 117 of the Act and rule 10.11(4) Family Law Rules (“FLR”).
The father is a self-represented party.
The note to rule 19.01 FLR is in the following terms:
1. Note A self-represented party is not entitled to recover costs for work done for a case (except work done by a lawyer) but, if so ordered, may be entitled to recover some payments.
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 “…“costs” provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of “costs””.
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 with claims for recovery of “expenses” as “costs”. Those expenses 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 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, 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) 51 ALD 767 at [45]);
f) appeal book binding (see, for example, 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 BlueberryFarms 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 although they did not have legal representation at the hearing itself.
87. Expenses which have been held not to be recoverable include:
a) travelling costs (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 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 costs. As Toohey and Gaudron JJ said in Cachia v Hanes (supra) at p 419:
In truth any relevant statute or subordinate legislation must be the starting point for a consideration of the appellant’s entitlement to costs. That is not to say that the interpretation of any statutory provision or rule of court should be divorced from the historical context in which it was introduced or from the understanding of the time. But the ultimate question is one of interpretation.
89. The starting point must therefore be the proper interpretation of the words “costs” and “expenses” as they appear in the Rules. It will be recalled that:
(a)“costs” has been defined as “… an amount paid or to be paid for work done by a lawyer, and includes expenses”; and
(b)“expense” has been defined as “… an amount paid to a third party, other than a lawyer, for work done in a case or services provided for a party” [our emphasis added].
There is nothing in the affidavit in support of the father’s Application in a Case, that is, the affidavit filed 7 January 2015, that would indicate or give any evidence about what costs or expenses the father claims. The father told me today he incurred costs because of time away from work, costs of travel and costs of seeking advice. The first two categories are not a proper basis for a claim for costs or expenses. More importantly, the father has not adduced any evidence about any of these matters and the father’s application for costs must fail on that basis.
In any event, had the father provided evidence of his claim, the issue would still arise as to whether or not as a matter of discretion any costs order would be made.
Section 117(1) of the Act provides that a party to proceedings shall bear his or her own costs.
Section 117(2) provides that if there are circumstances justifying it and subject particularly to s (2A), (4) and (5), and the applicable rules of court, the costs order can be made if the court considers it just to do so, and in determining whether it is just to do so, s 117(2A) provides that the court shall have regard to a number of considerations.
As to the financial circumstances of the parties, the father says he has no assets, he has an income of about $70,000 a year. The mother has assets although they were not detailed to me, and the mother is working.
Neither party is in receipt of legal aid.
The important consideration in this matter, in my view, is the conduct of the parties to the proceedings and whether the proceedings were necessitated by the failure of a party to comply with previous orders by the court.
In this case, on the face of the emails sent by the father to the children, the mother was entitled to conclude that the father had seriously breached the order shortly after receiving a copy of it. Her conduct in bringing the application was justifiable. Her decision to discontinue the proceedings at the time that she did was understandable.
In looking at the question as to whether any party to the proceedings has been wholly unsuccessful in the proceedings, I take into account the purpose for which the mother brought the application was to enforce the father’s compliance with the order that the court had made. So far as I have been made aware, the father has not repeated the behaviour that caused the mother to file the application. It might be argued that the mother was wholly unsuccessful in obtaining a finding that the father had contravened the orders because she filed the Notice of Discontinuance. She did however achieve a finding of contravention on a prima facie basis. It is difficult in all the circumstances to describe the mother’s action as being entirely unsuccessful.
The father has of course been wholly unsuccessful in pursuing his application under s70NBA of the Act.
The father has referred in oral submissions today to offers that have been made by him. Those offers so far as I am aware, are based on an attempt by the father to renegotiate the orders that Justice Aldridge made after an extended final hearing in June 2014.
In the circumstances, I find that it would not be just to make a costs order against the mother in the favour of the father even if the father led evidence in respect of costs or expenses that he could otherwise validly justify as a self-represented litigant.
Accordingly, I dismiss the father’s application for costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 5 February 2015
Associate:
Date: 6.2.2015
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