Casati and Blanchett - [2009] FamCAFC 23

FAMILY COURT OF AUSTRALIA

CASATI & BLANCHETT

[2009] FamCAFC 23

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – where the Federal Magistrate made orders compensating the respondent for expenses incurred, and costs relating to contraventions by the appellant – Appellant appealed against findings of contravention and amounts of compensation – Appellant conducted appeal without transcript – Parties conceded that the orders contained an error as to the amount lost on unused airfares in light of fresh evidence of refunded fares – No evidence that the Federal Magistrate erred in relation to findings of contravention – Uncertainty existed over the portion of compensation awarded in relation to Easter “spends time with” contraventions – Intermingling of airfare costs, accommodation and other costs not fully explained – Appeal allowed in part – Certain orders for compensation varied – Question of expenses incurred in relation to Easter “spends time” with contravention remitted

Family Law Act 1975 (Cth) s 70NEB(1)(e)

APPELLANT:

Ms CASATI

RESPONDENT:

Mr BLANCHETT

FILE NUMBER:

2008

APPEAL NUMBER:

BRC

10577

2007

DATE DELIVERED:

19 February 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick J

HEARING DATE:

12 February 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

26 June 2008

LOWER COURT MNC:

[2008] FMCAfam 1026

REPRESENTATION

APPELLANT:

Appellant appears in person

COUNSEL FOR THE RESPONDENT:

Mr Smith

SOLICITOR FOR THE RESPONDENT:

PWB Lawyers

Orders

That the appeal be allowed in part.
That Order 6 of the orders of Spelleken FM made 26 June 2008 be varied:
(a)By deleting the sum of $3,722.00 and substituting the sum of $1,235.00;
(b)By deleting the sum of $2,583.00 in paragraph (a) of Order 6, and substituting the sum of $96.00.
That the claim of the father for compensation to be paid by the mother as set out by the father in paragraph 17(b), (c) and (d) of his affidavit filed in the Federal Magistrates Court of Australia on 24 April 2008, be remitted to Spelleken FM for further consideration.
That the father pay two thirds of the mother’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 98 L of 2008
File Number: BRC 10577 of 2007

Ms CASATI

Appellant

And

Mr BLANCHETT

Respondent

REASONS FOR JUDGMENT

In March 2007, Carmody J made parenting orders in respect of the two children of Ms Casati and Mr Blanchett. Those children are M, nearly eleven years old at the time of the orders and N, then just over ten years. Part of the background to the orders was that the mother wished to relocate with the children from Tasmania to Queensland.
The orders provided for the time the children would spend with the father, following any relocation to Queensland, to be not less than:
(a)for 70 percent of each gazetted school holiday period;
(b)for one week during each school term the father shall, upon giving the mother adequate notice, spend one week with the children on the Gold Coast;
Order 4 of Carmody J’s orders provided:
(4)That the costs of the children’s interstate travel be shared equally between the parents;
The mother moved to Queensland very shortly after Carmody J made the orders discussed. In May 2008, Federal Magistrate Spelleken heard and determined, for reasons given on 26 June 2008, two contravention applications brought by the father. The learned Magistrate found the mother had contravened Carmody J’s orders without reasonable excuse, in six particulars. The mother was ordered to attend a parenting orders program. An order was made for “make up time” between the father and the children and further:
(6)That by 31 December 2008 the mother pay to the father the sum of $3722 being:
(a)The $2583 incurred by the father by the mothers failure to comply with the orders of Justice Carmody that she meet half the costs of the children’s interstate travel to spend time with the father;
(b)The sum of $1139 representing the father’s costs of and incidental to his Contravention Applications filed on 27 February 2008 and 24 April 2008.
The Federal Magistrate also varied the orders of Carmody J in an endeavour to remove the cause of some difficulties between the parties about the operation of those orders.
These reasons relate to the mother’s appeal against the findings of contravention, and the consequent orders, save for those varying Carmody J’s orders.
It is common ground in the appeal that the particulars contained in order 6 of the Federal Magistrate’s orders set out above are inaccurate, or at least might be misleading. The reference in order 6(a) to “$2583 incurred by the father by the mother’s failure to comply with the order that she meet half of the costs of the children’s interstate travel” is not an order relating to simply half of the costs of the children’s interstate travel. It is an order compensatory in nature, to reimburse the father for losses allegedly arising out of the failures of the wife to meet all of her obligations in respect of certain periods, both as to meeting the costs of travel and/or production of the children.
Order 6(b), which describes the sum of $1,139 as representing “the father’s costs of and incidental to his Contravention Applications”, when compared to her Honour’s reasons, is not an order relating to legal costs. It is an order both compensating the father for “out of pocket” expenses of $1,139.00 in relation to occasions when it was found he was denied agreed time with the children (other than those to which Order 6(a) relates), and enforcing the wife’s obligation to pay for half the children’s interstate travel.
It is clear from the learned Magistrate’s reasons that she also intended that the mother pay the father’s costs of and incidental to the Contravention Applications, fixed in the sum of $2,750.00, against which would be offset $1,200.00 that the father owed the mother for costs of earlier proceedings. However, no such order actually issued.
There are three grounds in the mother’s Notice of Appeal. I do not set them out, as much of their content is in the nature of submissions.
However, the challenges appear from the first sentence of each ground:
1.Magistrate Spelleken errored [sic] in relation to the losses incurred by the father, [Mr Blanchett]:
…
2.Magistrate Spelleken did not put enough weight on issues relating to my financial circumstances:
…
3.Magistrate Spelleken failed to consider vital information in my affidavit, which showed that I did have reasonable excuses for all alleged Contraventions:
…
The first ground of appeal succeeds to some extent, because I received further evidence from the mother which Mr Smith, counsel for the father, conceded, demonstrated that most of an airfare, claimed by the father and allowed by her Honour, had been refunded to the father, before her Honour’s orders.
Though the mother’s challenge to the findings of contravention without reasonable excuse is her last ground, it logically comes first.

Did Spelleken FM err in finding the mother had contravened the orders of Carmody J made in March 2007, without reasonable excuse?

The contraventions alleged were primarily in relation to the orders providing for the father to spend time with the children. However, one related to an order:
(5)That the Registry Manager of the Hobart Registry of the Family Court of Australia make suitable arrangements to ensure that these orders and the reasons for them are explained to the children in language they are likely to understand;
The mother has appeared without legal representation on the directions hearings relating to the appeal and the hearing of the appeal itself. At the directions hearing when the material to be before me on the hearing of the appeal was discussed, she decided she did not wish to obtain transcript of the proceedings before the Federal Magistrate. I explained to the mother the potential disadvantage to her in arguing her appeal in the absence of transcript. The mother’s arguments in relation to this particular ground suffer considerably because of the absence of transcript.
Indeed, Mr Smith, counsel for the father, submitted that at the hearing before the Federal Magistrate, the mother had admitted the contraventions, but stated that she had a reasonable excuse.
In paragraph 33 of her reasons, Spelleken FM said:
33.In relation to all of the alleged breaches, it is the mother’s case that she accepts the children did not attend at the various times referred to in the Contravention Applications and that she did not meet the costs of airfares in accordance with the orders, but she says she has a reasonable excuse for not doing so.
I will not approach the arguments on any other basis than is set out in that paragraph.
In relation to her challenge to the finding of contravention of the order providing for Carmody J’s decision to be explained to the children, the Federal Magistrate said in relation to that finding:
6.It is not in dispute that on or around 26 March 2007 the mother received Carmody J’s orders. The mother told the Court that after receiving those orders she sat the children down to explain that the Court had made an order that they were able to move to Queensland. I understand her evidence to be that as a result of speaking with them on that occasion, she became aware of the likelihood of the father lodging an Appeal against Carmody J’s orders and to make an Application to stay those orders pending the hearing of the Appeal.
7.The mother was quite clear in her evidence to the Court that to avoid being kept in Tasmania any longer and to give effect to his Honour’s orders, she made a decision to leave Tasmania as quickly as possible which she did on 27 March 2007.
…
13.It is then clear from the material that on 19 April 2007 the father filed a Form 2 Application in a Case seeking a stay of Carmody J’s orders pending the Appeal. On 15 May 2007 it is not in dispute that the mother, rather than taking the children to the Hobart Registry of the Court, as provided for in Carmody J’s orders, took the children to the Brisbane Registry of the Court so that a family consultant in that registry could explain the orders to the children.
…
41.Dealing firstly with what I have referred to as a stand alone Contravention, that is with regard to the children not being taken to the Hobart Registry, as I said before, the mother accepts that the children were not taken to the Hobart Registry but were taken to the Brisbane Registry of the Family Court and spoken to by a family consultant from that Registry.
42.Under cross-examination it was clear from the answers she gave to questions from Mr Smith that when the mother spoke with the children about the orders that had been made by Carmody J which allowed the children to live with her in Queensland, she became aware from things that children said that the father was likely to lodge an appeal and an Application for a stay. The mother conceded that she was concerned that her move to Queensland would be delayed and as a result made a decision to go to Queensland, if not the next day, then very quickly thereafter, so that she would have moved by the time the father could lodge his appeal and file his stay application.
43.The mother also says that she complied with the intent of the orders because she did take the children to the Brisbane Registry and a family consultant at that Registry explained the orders to the children.
44.The order made by Carmody J for a Family Consultant to explain the orders to the children is not an uncommon order for a Judge of the Family Court or a Federal Magistrate of the Federal Magistrates Court to make in circumstances where the effect of the orders are a significant change in their living arrangements such as children moving from one parent where they have lived for some time to another parent, or in this case, the children moving from Tasmania to live in another State.
45.The purpose of the Court making those orders is so the children understand from someone who is independent of the proceedings, someone independent from the mother and father to explain the orders and let the children have any questions with regard to those orders or any concerns with regard to those orders, explained by someone, not only independent, but someone who is trained in dealing with children and children’s concerns and issues.
46.The intention of the order was that the children would have those orders explained to them prior to relocating to Queensland with their mother. The mother however by the decision she made to move so quickly and not have the children spoken to by a family consultant in Hobart meant that the effect or intentions of his Honour’s orders were not carried out. What his Honour intended by those orders did not happen. I am not satisfied that the mother therefore has a reasonable excuse with regard to breaching that order.
I initially held some concerns that the terms of the relevant order did not (at least expressly) require the mother to take the children to the Hobart Registry. Rather, the order on its face was directed to the Registry Manager. However, many steps might have been taken at trial to expand upon the circumstances surrounding this order and the mother’s understanding of it. It is clear, from the reference to cross-examination of the mother in paragraph 42 quoted above, that questions were asked of her about at least some events pertinent to this particular alleged contravention. No argument was developed before me, one way or the other, about obligations upon the mother implied in order 5 and/or anything which transpired before Carmody J or otherwise, affecting the mother’s understanding of her obligations under that order. In the absence of transcript, it is not possible to explore this area.
In the circumstances I am not satisfied that any error is shown in the approach taken by the Federal Magistrate.
I turn then to the mother’s arguments against the findings that she contravened the orders by failing to provide the children to spend time with the father and by failing to meet half the costs of their interstate travel. In short, the mother’s argument is that she had wished to place certain qualifications on the father’s time with the children and had initiated applications seeking to amend the orders to enable her to do so. The mother also contended that her incapacity to pay the children’s travel costs constituted a reasonable excuse.
At trial, the Federal Magistrate dealt with these arguments as follows:
47.Turning then to the next category of alleged contraventions which are the time the children should have spent with the father and the costs of travel. Firstly in relation to the mid-term time the children were to spend with their father, the reasonable excuse the mother gives is that the father refused to give the undertakings referred to in her letter of

11 February 2008
, that he would take the children to swimming lessons and make sure they do their homework.
48.It was, in my view, correctly pointed out by the solicitor for the father to the mother in correspondence sent back to her, that his Honour made an order for equal shared parental responsibility and was satisfied, as was the mother, because that order was made by consent, that the father was able and capable of making appropriate decisions with regard to the children’s welfare which would, of course, include doing their homework, caring for them appropriately during periods he spends with them and making sure that the accommodation he provided for them was appropriate.
49.It is not in dispute also that the mother had a mobile telephone number for the father that she could use in the event of an emergency to contact the father and/or the children. Although I accept there would be benefits for the children if their father went with them to their swimming lessons it was not his Honour’s intention that the time the children spend with their father be dependent on him doing the things the mother asked. His Honour no doubt trusted the father to care for the children properly during these periods. Therefore, it was not in my view appropriate or possible for the mother to impose those conditions on the time the children spend with their father. It was not a requirement of his Honour’s orders. It was incumbent on the father to make the appropriate decisions with regard to the children and he should not have to provide an undertaking to do so. Therefore I do not accept that the mother had a reasonable excuse with regard to those mid term periods.
50.Turning then to the school holiday periods and the cost associated with the children’s travel to spend time with the father during those periods, essentially the mother says that her excuse for not sending the children during those periods or not paying her share of the airfares was that the father was either not paying child support at all or was not paying an appropriate level of child support and that he had not paid the costs ordered by his Honour, Benjamin J of $1,200.
51.For the mother to satisfy me that she had a reasonable excuse I would need to be satisfied that there was a change in the mother’s financial circumstances from when the proceedings were before his Honour and during the school holiday periods that are referred to in the Contravention Applications.
52.I note in this regard that the first of those school holiday periods was only a short time after his Honour’s orders, he made his orders in March 2007 that the children were to spend time with their father in the Easter 2007 school holiday periods.
53.It is clear from the evidence that is before the Court that it was the mother’s case in the Application before Carmody J that she was financially able to contribute towards the cost of the children’s travel to and from Tasmania to spend time with the father during the school holidays. No doubt that was one of the significant factors that his Honour took into account in making the orders that he did. A Court, in my experience, does not normally make an order for the relocation of children, there are exceptions to this of course, unless it is satisfied that the children are going to be able to spend reasonable periods of time with the other parent, and that the costs of that travel can be met by the order the Court makes.
54.It was clear from his Honour’s orders that he made an order for the mother to make a contribution to those costs. I accept that the mother had legal fees associated with the proceedings before Carmody J, no doubt, however, she had some idea of those legal fees prior to this hearing. If they had not already been paid she was aware that she had legal fees. I accept also that there would have been costs associated with the mother’s defending the Application for a Stay. The father was always able to lodge an appeal however and of course make an Application for a Stay so those Applications really should not have been a complete surprise to the mother.
55.More importantly, in relation to this issue about change of circumstances, the mother was very evasive when asked questions about her current financial circumstances, and answers to questions from Mr Smith about the value of her property, the value of land, the costs of building a home on that property here in Queensland, the value of the property that she admits was transferred by her to her de facto partner and the income that comes into the household. Despite the fact that she is a bookkeeper for her partner’s business, the answers she gave to any questions about her and her partner’s income were, as I said before, at best evasive. Her answers to most questions about her finances were that she did not recall or was not aware.
56.In relation to the issue of child support, I understand there are reviews or Applications for departure currently before the Child Support Agency or the S.S.A.T. It is not, in my view, a reasonable excuse for not complying with an order to pay airfares to say there is child support outstanding, that is a matter for the relevant tribunal or Child Support Agency.
57.In relation to the payment of Benjamin J’s costs, again, the appropriate Application to be made in that regard would have been an enforcement summons and that is not the application before the Court. In those circumstances, therefore, I am not satisfied either that the mother had a reasonable excuse in not sending the children to the father or meeting her share of those costs.

In her Summary of Argument, the mother says, in relation to her submissions in support of this ground:
18.In summary:
FM Spelleken did not give proper consideration to the mother’s efforts trying to prevent the alleged Contraventions. FM Spelleken did not give proper consideration to the fact that the father fabricated the alleged Contraventions. FM Spelleken did not apply the principles of law as defined in s. 70NAC meaning of “Contravention” (see paragraph 16 above) and exercised her discretion wrongly by not giving proper consideration to what the mother considered as a “reasonable excuse” (see paragraph 17 above).
While what Spelleken FM said, of the Child Support debt allegedly owed by the father to the mother and of the legal costs incurred by the mother after the proceedings before Carmody J, may seem rather dismissive of aspects of the mother’s financial circumstances, I am again conscious of the absence of transcript and that I do not have before me all of the evidence that was before the Federal Magistrate.
Moreover, in so far as the mother relied upon her financial circumstances as constituting reasonable excuse, the learned Magistrate was clearly dissatisfied with the mother’s evidence on point.
In my view, the mother’s arguments do not establish any error of principle or of fact in the learned Magistrate’s reasoning set out above. In effect, she says no more than that at trial her arguments ought have persuaded the Federal Magistrate that a reasonable excuse existed.
In summary, I am not satisfied that, in finding the particulars of contravention that she did without reasonable excuse, the learned Magistrate made any error.

Did the learned Magistrate err in ordering that the mother pay to the father the sum of $3,722.00?

I should at this stage indicate that in the father’s contravention applications he did not seek compensation as such. However, he clearly did so in his affidavit material. There is no sign that, before the Federal Magistrate, and it certainly did not occur before me, any issue was taken with any deficiency of form or in respect of the Federal Magistrate’s powers to make orders for monetary compensation in the circumstances. There is no discussion in the Federal Magistrate’s reasons of such a power, but it is contained in s 70NEB(1)(e) of the Family Law Act 1975 (Cth).
As seen, the sum referred to in the above heading was made up of $1,139.00 and $2,583.00, each of these figures being the subject of explanation in affidavit material filed by the father. The paragraph central to the father’s claim for $1,139.00 was:
35.Accordingly I seek that the respondent pay me $1,139 as follows:
a)The premium paid for the children to travel from Queensland on 23^rd December 2007 as no saver flight was available - $382;
b)Half of the airfares to travel from Queensland to Tasmania - $281;
c)The cancellation fee for the flights of 15^th December 2007 - $184;
d)Half the airfares for the children’s return to Brisbane on the 25^th January 2008 - $292.
The mother’s challenge to the adoption of this figure by the Federal Magistrate is based on two incorrect premises. The first is that Carmody J’s orders only obliged her to pay half the cost of interstate travel of the children, but in relation to the premium paid for the children and the cancellation fee referred to in the father’s affidavit, the father claimed and Spelleken FM ordered that she pay the whole.
The mother’s misconception arises because she overlooks that the Federal Magistrate was not just enforcing that part of Carmody J’s order which required her to pay half the costs of interstate travel, but was compensating the father for losses which she found occasioned by the mother’s contravention.
The second premise on which the mother’s challenge is founded is that the father should not have been compensated in respect of upgrading air-tickets for the purpose of ensuring or maximising his chances of obtaining a full refund if they were cancelled, nor for a cancellation fee.
In his affidavit filed in February 2008, the father said:
23.As the respondent was threatening not to send the children to Tasmania unless I paid for the return flights, on the 12^th December 2007 I paid for return flights for the children from Hobart to Brisbane on the 17^th of January 2008. Annexed hereto and marked with the letter “D” is a copy of the return flights for the children. The cost of the flights was $504.
24.As I had not had confirmation from the respondent that the children would be placed on the flight on the 12^th of December I upgraded the flights booked to Hobart on the 15^th of December to Corporate so that if necessary I could cancel and rearrange the flights within 24 hours and not lose all the costs I had already paid. The cost of the upgrade was a further $602, which was added to the original fare of $562. A business upgrade allows the fare to be cancelled 24 hours after departure without penalty. All other virgin airfares cancelled after departure incur penalties. As the respondent may have placed the children on the flight at the last minute I did not want to cancel the fare. Annexed hereto and marked with the letter “E” is as copy of the upgraded flight schedule showing the new fares as $1,164.
…
26.The children were not placed on the flight leaving Brisbane on the 15^th December despite me having paid the return flight, and the respondent being aware of the same. I had to pay a cancellation fee in the sum of $184. Annexed hereto and marked with the letter “G” is a copy of the cancellation fee account.
…
29.I booked flights with Virgin Airlines departing at 8:45am on the 23^rd December 2007 for the children to travel to Tasmania. Due to the timing no discount fares or saver fares were available. These airfares were paid with the funds from the cancelled airfares. That is the upgraded airfares cost $1,464, less the cancellation fee of $184. The remainder of $980 was used to pay for the flights of the 23^rd December 2007, which were $944. Annexed hereto and marked with the letter “J” is a copy of the flights I booked for the children to travel to Tasmania on the 23^rd December 2007.
…
32.I booked flights for the children to return to Brisbane on the 25^th of January 2008. Annexed hereto and marked with the letter “K” is a copy of the flight itinerary. The costs of these flights were $584, which included an $80 cancellation fee for the original airfares booked for a return on the 17^th January 2008. As the Queensland school year recommenced on Tuesday the 29^th January 2008, the return date did not affect the children’s attendance at school.
…
34.I see reimbursement for half of the costs of the airfares incurred by me for the children’s travel interstate pursuant to the Court Order, the costs of the upgrade necessary to ensure that all costs already incurred were not lost and the premium of the flight on the 23^rd December 2007 as a saver flight was not available due to the respondent’s refusal to send the children as previously agreed.
The mother presented no argument to say that the view taken by the Federal Magistrate of the reasonableness of the father’s actions was not open to her.
The mother accepted that unless her premises were made out, there was no error in the detail of paragraph 35 of the father’s affidavit, amounting to $1,139.00.
In so far as the mother raises her financial circumstances as a basis for arguing that Spelleken FM should not have ordered her to re-imburse or compensate the father, I repeat what I have already said about the learned Magistrate’s view of the mother’s evidence.
I see no merit in the mother’s appeal in relation to that amount.
The detail of the father’s claim for $2,583.35, accepted by Spelleken FM, was contained in paragraph 17 of his second affidavit and was as follows:
17.As a consequence of the most recent breaches I am therefore out of pocket in the sum of $2,583.35 made up as follows:
a)Children’s flight from Brisbane to Hobart on the 5^th April 2008, $444.00.
b)My return flight (Hobart to Brisbane) to spend time with the children from the 11^th March 2008, $394.00.
c)Europcar rental in Brisbane $585.35.
d)Accommodation in Brisbane, $1160.00.
It is in relation to the first item in that paragraph that the mother’s further evidence shows that the father in fact received a refund of $348.00. As to the balance of the items, they relate to a mid-term contact sought by the father. That time was to take place in Queensland and the mother was not obliged by Carmody J’s orders to make any contribution to the costs of it. In relation to the proposed time, the Federal Magistrate said:
27.The father went to Queensland on 11 March 2008 and went to collect the children from school however the mother and her de facto partner were in attendance and eventually and unfortunately the children were not able to spend that scheduled time with their father.
In the circumstances, the order for the mother to pay the sums set out in the last three subparagraphs of paragraph 17 of the husband’s affidavit, is by way of compensation. One can readily accept that, if the father did not spend time with the children because of a contravention by the mother without reasonable excuse, the father’s airfares were wasted. Queries present however in relation to the rather large sums for car rental and accommodation. I am not aware of any other evidence before the Federal Magistrate that explained those items or which might be raised in support of an order that the mother reimburse the father for them.
Mr Smith argued that the “losses” were deposed to and it was at least open to the Federal Magistrate to accept them, if indeed she was not bound to do so. That may be so, although the result may seem harsh on the mother. However, I do not think I need to decide the point because I am satisfied that, on the face of it, the learned Magistrate did not address the nature of these claims by the father. In paragraph 30 of her reasons, she said:
30.On 26 March 2008 the father’s solicitors wrote to the mother referring to what they understood the holiday period to mean and asking that the mother pay her half of the airfares. The father then made some arrangements for the payment of the airfares but, unfortunately, the children were not put on the plane and they were then not able to spend the Easter school holidays in 2008 with the father. The cost of airfares associated with that period were $2,583.35. (emphasis added)
As seen, the airfares for the Easter school holidays were not $2,583.35. Rather, that sum comprised of airfares relating to the Easter school holidays, and airfares, care rental and accommodation relating to a mid-term period. True it is that her Honour again mentioned this aspect of the claim in paragraph 71 of her reasons where she said:
71.In relation to the costs of travel thrown away by the children not spending time with the father, they are referred to, and I accept the amounts referred to in paras.35, 23, 24, 26 and 29 of the father’s first affidavit. They are referred in paras.17, 9 and 10 of the father’s material which support the second contravention. In relation to the first period they are $1,139, and the second period, $2,583.
I note that her Honour did not again use the term “airfares” but referred to the “costs of travel thrown away by the children not spending time with the father”. However, this term is not specific enough to overcome the use of the term “airfares” in relation to the $2,583.35 in paragraph 30 of her Honour’s reasons and I remain unsatisfied that her Honour correctly appreciated the nature of the father’s claims.
Accordingly, in these respects in my view the mother’s appeal should succeed.

The appeal against Spelleken FM’s “costs order”

As noted, no order for costs actually issued. However, in her reasons, the learned Magistrate said:
73.In relation to the issue of costs, costs are sought in this application. The Act provides that a costs order can be made by the Court, s.70NEB(1)(f) provides that:
“The Court may make an order that the person who committed the contravention pay some or all of the costs of another party to the proceedings.”
It is the case that while s.70NFB(1) and s.70NNB(1) do not refer to s.117 of the Act, the sections do not attempt to state all the principles that might apply. It is my view that the legislature intended that the Court should be guided by the relevant matters in s.117(2)(a) and the matters in s.117(2)(a) that are relevant to these proceedings, including the conduct of the parties of the proceedings; whether the proceedings were necessitated by the failure of a party to comply with the orders, and the extent that a party has been successful in the proceedings.
74.In this case it is my view that the conduct of the mother was such that I have found that she has contravened the orders. The applications were necessary because of her failure to comply with the orders, and the mother has been unsuccessful in satisfying the Court that she had a reasonable excuse for not complying with the orders.
75.In relation to the amount of costs I refer to the appropriate Federal Magistrates Court Rules. Before I move onto that I should say that there is not a lot of information before the Court in relation to the financial circumstances of the mother. The mother, however, as I said before was evasive in providing information to the Court when asked by Mr Smith about her financial circumstances.
76.The Court does take into account however that the mother has the majority of the care and financial responsibility for the children.
77.In relation to the costs of these proceedings the Federal Magistrates Court Rules provide a Schedule of Costs. The relevant amounts in that Schedule for this matter include:
a)Making an application in a summary matter such as a contravention application $1,500, and
b)A hearing fee of $1,250 making a total of $2,750.
78.I will, however, deduct from those costs the amount that the father owes the mother from Benjamin J’s orders for costs of $1,200 making the total amount of costs $1,550. I also intend giving the mother some time to pay those costs. Those orders will be typed up and sent to the parties next week, otherwise the Contravention Applications before the Court are removed from the pending cases list.
I have not found merit in any challenge to Spelleken FM’s findings of contravention. Her Honour placed no reliance in making the costs order on any of her conclusions in respect of which I have found error.
The discretion as to costs is broad. Had there been an order, I would not have found appellable error in respect of it.

Consequential orders

The order of the Federal Magistrate ought be amended in respect of the amount claimed by the father in paragraph 17 a) of his affidavit, because of the refund of airfare that he received. I do not consider that I am in a position to otherwise re-exercise the discretion. I do not have the assistance of any discussion by the Federal Magistrate of the items of car rental and accommodation. In my view the proper course is to remit the matter to the Federal Magistrate for the reconsideration of those parts of the father’s claim.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate:

Date: 19 February 2009