CARLSON & CARLSON

[2016] FamCA 817

FAMILY COURT OF AUSTRALIA

CARLSON & CARLSON [2016] FamCA 817

FAMILY LAW – COSTS – Where costs arise from an application for contravention –  Where a contravention is found –  Where both parties are employed – Where the father has capacity to meet expenses –  Where the father is entirely unsuccessful – Where the mother writes providing the father the opportunity to cease the conduct that gives rise to the application – Where there is uncertainty as to when the matter will progress to final hearing –  Ordered costs reduced by 20 percent – Ordered the father pay a reduced sum of money as costs to the mother 

Family Law Act 1975 (Cth), 70NEB, 70NFB, 117

APPLICANT: Ms Carlson

RESPONDENT: Mr Carlson

FILE NUMBER: NCC 1538 of 2015

DATE DELIVERED: 5 August 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 5 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Rankin Ellison Lawyers

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Mark Graham Solicitor

Orders

1. That the father pay to the mother the sum of $5,044.00 within 42 days of the date of these Orders.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1538 of 2015

MS CARLSON

Applicant

And

MR CARLSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. In the matter of Carlson, this is an application by the mother, Ms Carlson, for her costs to be paid by the respondent father, Mr Carlson. 

2. The question of costs arises from an application for contravention of interim parenting orders made 10 August 2015. 

Hearing of Contravention Application

1. The application by the mother for contravention was filed 6 July 2016.  On 5 August 2016, the application was heard.

2. The matter ran all day.  Both parties were represented by solicitor and counsel.  The application, was in respect of each allegation of breach, defended.  Judgment was reserved.

3. On 9 August 2016, a finding was made that there had been contraventions of the relevant order.  The father was ordered to enrol in, and complete, a parenting after separation course.  The mother made an application for costs.  An order for costs was opposed.

Submissions 

1. The parties were directed to file written submissions, which they both did in a thorough and timely way.  I have marked the submissions by the applicant mother as exhibit 1 and by the respondent father as exhibit 2.

2. On 5 September 2015, the respondent father forwarded to the Court, with the written consent of the solicitors for the mother, documents marked H1 and H2 relating to relevant employment of the mother.  Those letters have been marked as exhibit 3.

3. The costs sought by the mother are $6305.37.  The figure is reasonable in the context of this case.  Solicitors for the husband advised that their costs of the day were estimated to likely be $9180.

THE LAW

1. Pursuant to s 70NEB(1)(a), the Court made an order that the father attend a post separation parenting program.  Section (1)(f) of that section also states that the Court may make an order that the person who committed the current contravention pay some or all of the costs of another party to the proceedings.

2. There is a presumption set out in s 117 of the Act that each party pay their own costs.  In relation to contravention, s 117(1) says this: Subject to subsection (2), subsection 70NFB(1) [and other sections], each party to proceedings under this Act shall bear his or her own costs.

3. The reference to s 70NFB is a reference to contravention of the more serious kind.  The reference to s 70FB(1) and s 117 displaces the presumption that each party bear his or her own costs in the event of a more serious contravention.  Accordingly, it is arguable that in this matter, a less serious contravention, the presumption is still displaced by s 70NEB(1)(f), but of course with the discretion of the Court still to be exercised by consideration of the factors in s 117(2)(a).

4. The first relevant consideration is subsection (a) the financial circumstances of the parties.  Each of the parties are employed.  The father is self-employed; the mother has part-time employment at the school where the children attend.  The mother has the use of the family home and has had a partial property settlement.  She receives child support at the original figure, $412.67 per month, and not in accordance with the current assessment, which is $749.67.  The father’s expenses, as set out, appear to exceed his income.  However, it is apparent that the father has the capacity to meet expenses, including his own legal expenses from this particular application and others, and I conclude that each of the parties have financial circumstances which allow them to provide for themselves and the children and also to conduct litigation in this Court.

5. Subsection (d) is clearly in issue, whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.  This was a contravention where the father failed to comply with orders and further ignored a request to desist from attending the former family home.  His attendance at the home is at the heart of the contravention.

6. Next, subsection (e) is directly relevant, namely whether any party to the proceedings has been wholly unsuccessful in the proceedings.  The father was entirely unsuccessful.  He raises as a consideration the withdrawal by the mother of an additional allegation of contravention.  That occurred during the course of the hearing.  The allegation was withdrawn by consent and with no order as to costs for reasons of pragmatism, namely, to complete the matter within the one day allocated.  It was clearly the case that had the additional allegations been dealt with, the matter would have gone into a second day with additional costs incurred.

7. Subsection (f) relates to offers in writing.  The mother did write, giving the father the opportunity to cease the conduct which gave rise to the application.  The father chose not to.  For reasons set out in the Reasons for Judgment, it must have been clear to the father that he was to stay away from changeovers.

8. I turn to other relevant considerations.  This is a first contravention by the father.  I have found that his focus was on his perceived rights to be present at the former matrimonial home with his children, rather than the impact on the children of overt conflict at changeovers, to which the relevant orders were directed.  The father has been ordered to complete a post separation course which may alter his focus in this regard.  In the circumstances of a first offence, it is appropriate to reduce the costs and I do so by 20 percent.

9. The father submits that operation of a costs order, if made, should be stayed to the conclusion of the property settlement proceedings.  To do so would be unjust to the mother in circumstances where the father has failed to respond in any way to the property directions sought by the mother in her response to an application in a case filed by her on 6 July 2016.  The property aspect of this case is not progressing and there is no certainty about the date of a final hearing.

10. In those circumstances, although some time to pay is reasonable, the costs in the sum of $5044 should be paid within 42 days of the date of these orders. 

11. Orders are made accordingly.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 7 September 2016.

Associate: 

Date:  7 September 2016