BURT & CARTER

[2015] FamCA 941

FAMILY COURT OF AUSTRALIA

BURT & CARTER [2015] FamCA 941

FAMILY LAW – COSTS – where the respondent seeks that her costs of responding to a contravention application be paid in a fixed sum – where the circumstances do not justify the costs in the fixed sum sought – where costs order made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Burt

RESPONDENT: Ms Carter

FILE NUMBER: BRC 9916 of 2014

DATE DELIVERED: 27 October 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 27 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Gilfoyle, Conradie & Associates

Orders

IT IS ORDERED THAT

1. Court 4 of the Application – Contravention filed 30 June 2015 is dismissed.

2. The Applicant pay the Respondent’s costs of the Application – Contravention, filed 30 June 2015 fixed in the sum of $1,000.00 within 28 days of the date of this Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burt & Carter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9916 of 2014

Mr Burt

Applicant

And

Ms Carter

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. There is an application made by the Respondent for an order requiring that the Applicant pay her costs of and incidental to the Application for Contravention filed on 30 June 2015, fixed in the sum of $2,200.00.  It is submitted that this amount arises because the Respondent’s legal representative has charged a fixed fee, it is said to be an amount lower than would be arrived at had the Scale been applied to calculate the costs associated with the Response to this Application. 

2. The Application for Contravention has been before me twice.  On the first occasion, there was no appearance by the Respondent - it is clear that she was not put to cost associated with that appearance, because the Applicant had not served her at that time. 

3. When the matter returned today, the Applicant informed the Court that he had withdrawn – or was withdrawing - a number of the Counts:  namely, Counts 1, 2 and 3 of the Application for Contravention.  He informed me that he did so on the basis that, having received information from the mother via her legal representative, he was satisfied with explanations that had been provided.  During his cross-examination, however, it appeared that he had been provided with some of those answers, at least, in relation to those queries in an email sent in response to an email he sent on 28 May 2015 - that response having been made on the same day, namely, 28 May 2015. 

4. The only Count that proceeded, therefore, for a period this morning was Count 4, which asserted contravention of Clause 21(a) and (b) of the Order made by the Principal Registrar by consent on 24 March of this year. 

5. After cross-examination, it appeared, from Mr Burt’s evidence, that he had received information from Ms B, the counsellor – or social worker - referred to in Clause 21 of the Order no later than about a week ago that she considered she was conflicted and thus unable to provide therapeutic support for both he and the Respondent and, therefore, unable to facilitate the process clearly agreed by the parties as reflected in the terms of Clause 21 of the Order. 

6. That being the case, it was, I consider, clear that the particulars relied upon in the Application for Contravention were not capable of sustaining a finding that the Respondent had intentionally contravened a term of the Order, namely, Clause 21(a). 

7. I should also record that Mr Burt withdrew, during the course of cross-examination, his reliance upon Clause 21 (b). 

8. The consequence, then, for the Respondent is that she has been put to the cost associated with appearing via legal representatives this morning only to find that three of the four Counts were withdrawn when the proceeding commenced and that the fourth did not withstand the challenge of cross-examination. 

9. Ms Gilfoyle, who appeared on her behalf, consequently made submissions seeking that the Court be persuaded that the circumstances justify the making of an order for costs and that the Court should be persuaded, in the circumstances, that there are circumstances that justify a departure from the starting point that parties to proceedings in litigation in this jurisdiction bear his or her own costs. 

10. In support of that application, Ms Gilfoyle submitted that the Application for Contravention commenced a relatively short period of time after the Consent Orders were made, that correspondence had been sent by the Respondent to attempt to address the issues but was returned as a consequence of not having the new address to send the correspondence to Mr Burt, that the application could have been resolved without resorting to an Application for Contravention and the associated costs of the same, that her client has the care of the children and has borrowed the money used to meet the legal costs associated with responding to the Application from a family member, that her client works as a family day care provider and her client’s husband works on somewhat of an ad hoc basis. 

11. She says that, having regard to those factors, then, the Court would be persuaded circumstances justify the making of an order for costs. 

12. In opposing that application, Mr Burt submits that the Court would not make such an order because his intention in bringing the proceedings was to ensure that the parties in fact participated in the counselling referred to in the Order, and that, in essence, the threat of proceedings was a tool that was helpful in suggesting to the Respondent that she should, in fact, participate in the counselling in accordance with her obligations as agreed under the Order. 

13. He submitted that, despite the email of 28 May 2015, he remained of the view when he filed the Application for Contravention that the mother had not, in fact, engaged with Ms B and that, at that stage – namely, as at 30 June 2015 – all that had happened was an expression of intention by the Respondent to so engage in the process envisaged by the terms of Clause 21 of the Consent Order. 

14. He was clear in saying that the information he had from Ms B was to the effect that all she had had by way of interaction with the Respondent at the time he commenced the Application was a phone call;  he formed the view that, in essence, as I conclude from his submissions, the way to ensure complete engagement in the agreed process was to file an Application for Contravention, with the accompanying threat of a fine or punishment as a motivator, it would seem, to the Respondent for compliance. 

15. His submissions in relation to his financial circumstances were to the effect that, he is employed as a public servant, he has expended significant financial resources as a consequence of the previous proceedings between the parties - those proceedings having been finalised by the making of the consent Order.  He submits that he pays the full amount of child support as assessed by the authority, is up-to-date in relation to that payment and that it requires that he pay about $1,200.00 per month by way of child support for the children to the Respondent. 

16. He submits that his financial circumstances are such that he and his wife have moved to live with his parents-in-law and that they have significant costs associated with their family and that the funds previously available to them have been depleted, as I have said, by engagement in earlier proceedings, including proceedings in other jurisdictions.  He submits, therefore, in essence, that I would not be persuaded that the circumstances are such as to justify the making of an order for costs. 

17. I take into account that the financial circumstances of each of the parties are strained to some extent.  They clearly have financial obligations to their respective families, and they clearly have financial obligations to their children.  I take into account that the Applicant father pays child support in the amount assessed by the relevant agency.  Neither party is in receipt of assistance by way of legal aid, the Respondent appearing via Ms Gilfoyle and the Applicant appearing as a litigant in person on his own behalf. 

18. Whilst the nature of the contravention is such that it asserts that this proceeding was necessitated by the failure of the Respondent to comply with the previous Order – namely, the Order asserted to have been contravened – the reality is that three of the four counts were withdrawn this morning; further, during the course of his cross-examination, Mr Burt withdrew reliance upon Clause 21(b) as an asserted contravention and his evidence itself established that, no less than about a week and a half ago, he became aware of information which clearly suggested that the person intended to be used to facilitate the process agreed upon by the parties was herself unavailable to provide that assistance. 

19. I take into account that the Application for Contravention has been wholly unsuccessful.  There is no evidence to suggest – beyond the submissions made by Ms Gilfoyle – that an attempt was made by the Respondent to resolve the proceedings earlier.  There is no evidence, as I have said, to suggest that there has been an offer in writing to the other party to settle the proceedings.  There is, however, as I have said, the evidence from Mr Burt, as outlined by him, of the details of the email exchange on 28 May 2015 and his evidence as to his information from Ms B about a week and a half ago. 

20. I consider, therefore, that the circumstances do justify the making of an order for costs.  I am not persuaded, however, that an order should be made in the amount of $2,200.00, as sought.  Rather, taking into account and balancing competing submissions, I am persuaded that the circumstances justify the making of an order that the Applicant pay the Respondent’s costs of and incidental to the Application for Contravention filed 30 June 2015 fixed in the sum of $1,000.00, with that amount to be paid within 28 days of the date of the Order

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 October 2015.

Associate:     

Date:              27 October 2015