BOTSMAN & AMUNDSON

[2010] FamCA 156

FAMILY COURT OF AUSTRALIA

BOTSMAN & AMUNDSON [2010] FamCA 156

FAMILY LAW – ORDERS – CONTRAVENTION – penalty – where father contravened orders without reasonable excuse and father showed serious disregard for his obligations under the court order – application by mother seeking order for costs and a good behaviour bond to be placed on father – held not appropriate for court to impose bond – best interests of the child – father to pay mother’s costs

FAMILY LAW – ORDERS – CONTRAVENTION – penalty – where the father contravened an order without reasonable excuse – application by mother for an order for costs and imposition of good behaviour bond – not within the court’s power to impose a bond – father to pay a fixed amount of the mother’s costs

FAMILY LAW – COSTS – application by mother seeking order for costs against the father – where the father initiated proceedings in which he was wholly unsuccessful – father in poor financial circumstances – father to pay a fixed amount of mother’s costs

Family Law Act 1975 (Cth) ss 70NEB, 70NEC, 70NFA, 70NFB, 117, 117AA, 117AB, 117AC & 118

Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) [2007] FLC 93-341

APPLICANT: Ms Botsman

RESPONDENT: Mr Amundson

INDEPENDENT CHILDREN’S LAWYER: Mr Croft

FILE NUMBER: ADC 75 of 2007

DATE DELIVERED: 19 February 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Tinning

SOLICITOR FOR THE APPLICANT: Adey Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Croft

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Richard J Croft

Orders

UPON NOTING THE COURT FINDS that on 1 February 2009 and 15 February 2009 the father MR AMUNDSON contravened paragraph 1 of the order of 26 August 2008 without reasonable excuse and showing serious disregard for his obligations under the order

IT IS ORDERED THAT

1. Within twenty-eight [28] days from today the father pay to the mother the sum of SEVEN THOUSAND DOLLARS [$7,000.00] by way of costs.

AND UPON FURTHER NOTING THE COURT FINDS that on 25 January 2009 the father MR AMUNDSON contravened paragraph 3 of the order of 26 August 2008 without reasonable excuse and by way of costs in relation to the application filed by the father on 23 January 2009 and dismissed on 16 October 2009
IT IS ORDERED THAT

1. Within three [3] months from today the father pay to the mother the sum of THREE THOUSAND DOLLARS [$3,000.00] by way of costs.

IT IS NOTED that publication of this judgment under the pseudonym Botsman & Amundson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 75 of 2007

MS BOTSMAN

Applicant

And

MR AMUNDSON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the adjourned hearing in relation to the question of penalty to be imposed in relation to the contraventions that the Court dealt with last year.  The judgment in relation to the contravention was delivered in October 2009, together with the judgment in relation to a Rice & Asplund argument. The father’s application seeking further final orders in relation to children’s matters was dismissed at the preliminary stage.  

2. In relation to the contravention, the judgment which I delivered on 16 October 2009 had the effect of finding that the father had contravened the orders of the Court.  In the summary and conclusions of that judgment, I stated that the father contravened the order of 26 August 2008 on 25 January 2009, when he failed to return the child to the mother on that date, and that he contravened the order without reasonable excuse. 

3. I was also satisfied that on 1 February 2009 and 15 February 2009, the father contravened paragraph 1 of the order of 26 August 2008 when, without reasonable excuse, he refused to comply with a reasonable direction of the Children’s Contact Service when he failed on those occasions to wait the 15 minutes specified in the service agreement with the Children’s Contact Service.

4. I also found that the Court was satisfied in relation to those contraventions, (being the contraventions of 1 February and 15 February 2009) that the father behaved in a way that showed a serious disregard for his obligations under the order.  Counsel for the mother made submissions in relation to penalty on that occasion, but I adjourned the matter for further consideration, to give everyone an opportunity to consider the reasons I had delivered that day and to consider the specific provisions of the Family Law Act which applied different outcomes for different types of contraventions.

5. The matter has come before me today:  Mrs Tinning of counsel, representing the mother;  the father is unrepresented;  and Mr Croft of counsel for the Independent Children’s Lawyer.  I have heard the submissions from each of those parties in relation to the question of the penalty to be imposed for the contraventions, and what orders, if any, should be made in relation to costs (both in relation to the contravention proceedings and the proceedings in relation to the further orders sought by the father, which were dismissed on the basis of the Rice & Asplund argument).

6. The parties have also filed further affidavit material, some at the direction of the Court, in relation to their financial circumstances, to assist the Court in making appropriate decision in relation to the question of costs.  The parties do not agree, or accept the evidence of the other, in relation to their financial circumstances. There remains dispute concerning the financial circumstances of both parties. 

7. Mrs Tinning, for the mother, seeks that the father be placed on a bond to be of good behaviour and to obey the Family Court and Federal Magistrates Court orders, that bond to be for a period of two years with a forfeiture of the sum of $2000 if the father is subsequently found to have breached an order of this Court. 

8. The mother, through her counsel, also seeks costs in relation to the contravention proceedings and in relation to the preliminary or Rice & Asplund proceedings.  The costs are set out in affidavit material provided by the mother. I have been informed that the mother seeks a global order in relation to costs rather than to go to the substantial expense of  further costings by a registrar of this Court (which would be an estimated further two or three thousand dollars).

9. In relation to the question of costs, Mrs Tinning submitted that the Court should take into account that the husband had chosen to be unrepresented, but nonetheless, the fact that he was unrepresented and was of limited financial means should not be a factor which would automatically mean that there should be no order for costs made against him.  She submitted that there was an onus upon the father to consider the significant risk in relation to costs before bringing proceedings which were thereafter unsuccessful. 

10. In relation to the financial circumstances of the parties, it was acknowledged that the mother is employed and has a reasonable income, but it was submitted that she receives little financial support from the father and that although she owns other pieces of real estate, as well as a home she has little equity in those properties. 

11. The father submitted that I should take into account that the mother refused to attend mediation. He also submitted that the application which was dismissed was one that he brought in the best interests of his son, and that the contraventions which have been dealt with by the Court were trivial.  He specifically said that they had no effect on the child and that the breach of the orders related only to an inconvenience.  He used the word “inconvenience” when describing the contraventions.  He emphasised his financial difficulties and the mother’s better financial circumstances and sought that the Court take those into account. 

12. The Independent Children’s Lawyer submitted that he was not seeking any order for costs against the father in relation to the Independent Children’s Lawyer’s costs, and requested that the Court consider that any penalty should not prejudice the father’s relationship with the child.  He noted that the father appears to pay no child support in relation to the child. 

13. I turn my attention to the provisions of the legislation. As has been pointed out in other cases before the Court, the provisions of the division of the Act which deals with contraventions is a complex one. The provisions that relate to contraventions which are in the less serious category in section 70NEB(1), on the face of it, provide for the Court to impose a bond in relation to a contravention within the provisions of that section and section 70NEC.

14. However, the Full Court, in the matter of Elspeth & Peter; Mark & Peter and John & Peter(Penalty and Costs) [2007] FLC 93-341 found that the provisions of subdivision E did not set out any consequences of a failure to comply with a bond and therefore it was pointless to create an obligation that is likely to be ignored. I am bound by the comments of the Full Court in the case of Elspeth & Peter, Mark & Peter and John & Peter (Supra), and therefore the types of outcomes which are available to the Court to impose, under the provisions in relation to the less serious contravention found to have been committed without reasonable excuse, appear to be limited to an order for costs or “make up time”.

15. In relation to the more serious contravention, the provisions of section 70NFA, combined with section 70NFB, require that the Court make an order in terms of section 70NFB(2)(g) (which is an order that the person who committed the current contravention pay all of the costs of another party, or other parties to the proceedings). The Court is required to do so because the provisions of section 70NFB(1) say that if the subdivision applies (which it does in this case) the Court must, in relation to the person who committed the contravention, make an order under paragraph 2(g) unless the Court is satisfied that it would not be in the best interests of the child concerned to make that order. The Court therefore needs to consider the best interests of the child.

16. It is clear from the material that I have before me that the child spends time with the father and he currently is in what appear to be limited financial circumstances.  However, when considering the best interests of the child, it is also necessary to consider some of the other factors, not the least of which in this matter is that there be an end to proceedings between the parties.  It is therefore significant that one of the factors which might be considered when weighing up the best interests of the child is a factor which would promote the making of an order for costs against the father (albeit that the father’s financial circumstances are not as good as those of the mother) and that he may find it significant to be requested to pay the order for costs.

17. I take into account the background to the orders and the provisions of section 70NFB (namely that they apply to orders where the contravention has been found to be serious and without reasonable excuse). I am therefore satisfied that, taking into account all of these circumstances of this matter (including the best interests of the child) the Court needs to make an order that the father pay the mother’s costs in relation to the more serious contravention.

18. I accept that it is to the benefit of all parties that there be a global approach and a figure representing an appropriate amount for the mother’s costs incurred be ascertained now, rather than referring the matter for agreement or taxation.  Counsel for the mother have given me a breakdown of the material in the schedule to the affidavit, which indicates that so far as the more serious contravention is concerned, the solicitors fees would be approximately $4500 on the Family Law scale and counsel fees, if assessed on the Family Law scale, in the region of $2500, making a total of the costs of $7000 for the more serious contravention.

19. I therefore propose to order that the father pay the mother’s costs of and incidental to the contravention, in relation to the contraventions on 1 February 2009 and 15 February 2009, in relation to paragraph 1 of the order of 26 August 2008, fixed in the sum of $7000;  such sum to be paid within 28 days from today. 

20. The Court is empowered under section 70NFB to make a further order including an order placing the father on a bond in relation to the more serious contravention. However, I have made a significant order in relation to those contraventions by way of the order for costs. The bond would have no specific immediate effect other than to require the father to obey orders of the Court. He is already required to obey orders of the Court in any event, and before any sum could be forfeited to the Court, the father would have to be found to have contravened the order of the Court again.

21. In view of the penalty which I have imposed by way of a significant order for costs of the $7000, I am not satisfied that it is appropriate to make a further order placing the father on any bond in relation to the more serious contraventions.  The Court does not currently have the power to place the father on the bond for the less serious contravention. 

22. In relation to the less serious contravention and in relation to the Rice & Asplund preliminary determination, I accept the submission by the mother’s counsel that simply because the father has chosen to be unrepresented and is in lesser financial situation than the mother does not mean that the Court is not able to make an order for costs against him, in the circumstances. 

23. The provisions of section 117 need to be considered. Section 117(1) says subject to subsection (2) and provisions such as section 70NFB(1), 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

24. In relation to the provisions of section 70NFB(1), I have already made the order concerning the more serious contravention. I need to consider, therefore, the provisions of section 117(2). Where the Court is of the opinion that there are circumstances that justify it in doing so, the Court may subject to the provisions of other subsections in 117 and the rules of Court, make such order as to costs as the Court considers just.

25. The Court is required to consider the matters set out in 117(2A), the first of which is, quite specifically, the financial circumstances of each of the parties to the proceedings. The financial circumstances in this case indicate that the mother is employed, owns real estate which she asserts has a small equity. On the face of the documents, she is in a much sounder financial position than that which the father alleges are his present circumstances. The factors under section 117(2A)(a) are, however, not the only determining factors.

26. The other significant factors in relation to section 117(2A) are subsection (d), “whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.”  The contravention proceedings in relation to the less serious contravention were brought about by the failure of the father to comply with the previous order of the Court. 

27. Subsection (e) is “whether any party to the proceedings has been wholly unsuccessful in the proceedings.” 

28. The father has been wholly unsuccessful in bringing the application in relation to further final orders concerning the child, and was wholly unsuccessful in relation to the contravention of the order which related to the requirement to return the child on a particular time.

29. The Court is required to consider whether there has been any offer in writing.  The Court has not been given any information to indicate that there was any offer in writing to settle the proceedings. 

30. Subsection (g) is “such other matter as the Court considers relevant.” One of the factors that would be relevant in relation to an order for costs, apart from the financial circumstances of the parties, is the possible impact of any order upon the welfare of the child and, as counsel for the Independent Children’s Lawyer’s referred, any possible impact upon the relationship between the father and the child.  Having heard the submissions and evidence of the father, I am satisfied that his relationship with the child is such that he would maintain that relationship with the child regardless of any order that this Court might make in relation to costs. 

31. The impact that such an order for costs might have upon his lifestyle would, of course, indirectly affect the child, but I am not satisfied that that is a significant factor in this matter. 

32. It is the requirement that the Court weigh carefully the various factors set out in section 117(2) and (2A) to determine what order would be considered just in all of these circumstances.

33. One of the factors that has to be taken into account is that I have already made an order that the father pay the mother the sum of $7000 in relation to the costs of the more serious contravention. 

34. The mother’s overall costs in relation to the proceedings (being all of the proceedings; the contraventions, and the father’s application, which was dismissed on the preliminary point) are in excess of $19,000 if I include all recent counsel fees.  That is a significant sum which she will have to pay in relation to proceedings in which she has been successful. 

35. Accepting, however, that the financial circumstances of the father are significantly less than the mother’s, but taking into account the fact that the mother has been successful and the father wholly unsuccessful, I consider that it is just that the father pay the further sum of the $3000. Taking into account his financial circumstances, he is to be given be given a period of three months from today to make arrangements to make the payment. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  4 March 2010