Clemens & Sparks
[2021] FamCAFC 94
•9 June 2021
FAMILY COURT OF AUSTRALIA
Clemens & Sparks [2021] FamCAFC 94
Appeal from: NA - Extract of proceedings only Appeal number(s): WEA 5 of 2021 File number(s): PTW 692 of 2017 Judgment of: STRICKLAND J Date of judgment: 9 June 2021 Catchwords: FAMILY LAW – Appeal – Parenting – Where the appeal had every prospect of succeeding at least in part given prima facie the injunction the subject of the appeal was too wide – Where the parties entered into correspondence and the respondent indicated she would agree to the injunction being dismissed – Where that was not agreed to by the appellant he looking to bring in what was happening in the lower court in relation to contravention proceedings – Where the sticking point became the appellant’s intention to seek costs – Where the respondent opposed any order for costs – Where it is not appropriate to make an order for costs in favour of the appellant nor to provide for costs certificates – Appeal allowed by consent – Paragraph 1 of the orders appealed set aside. Legislation: Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Division: Appeal Division Number of paragraphs: 21 Date of hearing: 9 June 2021 Place: Perth The Appellant: In Person The Respondent: In Person ORDERS
WEA 5 of 2021
PTW 692 of 2017APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR CLEMENS
Appellant
AND: MS SPARKS
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
9 JUNE 2021
BY CONSENT THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Paragraph 1 of the Order made by the Magistrate on 15 January 2021 be *set aside
dismissed.
*IT IS FURTHER ORDERED THAT:
3.*The appellant father’s application for costs or in the alternative a costs certificate be dismissed.
*Pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth) Order amended on the 17th day of June 2021.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clemens & Sparks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
STRICKLAND J
Before the Court today is an Amended Notice of Appeal filed by Mr Clemens (“the father”) on 23 April 2021, appealing against an order made by a magistrate on 15 January 2021. That order provided as follows:
1.Until further order of the Court, the Applicant, MR CLEMENS, be restrained and an injunction is hereby granted restraining him from removing the children, … from the State of Western Australia.
The brief background to the making of that order was that on 12 September 2019, final parenting orders were made by a judge of the Family Court of Western Australia, and those orders included an order permitting the parents, namely the parties to these proceedings, to be at liberty to take the children interstate within Australia, during their time with the children, provided that the parent seeking to do so notified the non-travelling parent of the details of the travel, and confirmed the children’s safe arrival upon arrival at the destination.
In reliance on that order, the father made arrangements to take the children from Western Australia to South Australia where he has family, and also for the purpose of celebrating his birthday. However, that proposed trip was opposed by Ms Sparks (“the mother”), and she brought an application before the Magistrates Court of Western Australia seeking an injunction restraining the father from taking the children to South Australia as planned.
In summary, the mother’s reasons for seeking that order related to the then current circumstances in Australia in relation to the COVID-19 pandemic, and the concern that if there was a lockdown, so called, the children, for example, would not be able to be returned to Western Australia for a period of time, or if they were, they may need to go into a 14 day period of quarantine.
The mother’s application came before the magistrate, and on 15 January 2021, the magistrate determined to grant the injunction, and made the order the subject of the appeal.
The father then appealed against that order, initially in a Notice of Appeal filed on 12 February 2021, but subsequently by an Amended Notice of Appeal filed on 23 April 2021.
The appeal initially came before this Court on 30 March 2021 and then on 6 April 2021. I indicated to the parties that, in my view, the injunction the subject of the appeal was too wide, and the appeal had every prospect of succeeding, at the very least in part, so that the injunction would be pared back as sought by the father. And by being “too wide”, what I was referring to was that the injunction did not simply restrain the father from taking the children on the planned trip, it restrained, to repeat and summarise that order, the father from removing the children from the State of Western Australia. There was also no temporal limit to that order, and as can be seen, there was no geographical limit either.
Of course, by the time the appeal came before this Court, the opportunity had, by then, been lost for the father to take the children on the planned trip.
For those reasons I indicated that the appeal had every chance of success.
However, on 6 April 2021, the mother indicated that she still wished to oppose the appeal, and so on that date, orders were made to prepare the appeal for hearing.
Subsequently, I understand that the parties entered into correspondence whereby the mother indicated that she would be prepared to agree to the injunction being dismissed, however, that was not agreed to by the father, he apparently looking to bring in what was happening in the lower court in relation to contravention proceedings. In any event, there was no agreement about dismissing the injunction, and that remained the position until today when, subject to one matter, the parties agreed that the appeal could be allowed by consent.
That matter as explained to me by the father, is his intention to seek, as he describes it, “costs against the respondent mother.”
In discussion today I have clarified what those costs are, and they are said to be primarily costs associated with the loss of time. I have indicated to the father though that he is only able to seek an order for any legal costs that he has incurred, and he tells me today that he has no such costs. He does though have a disbursement which is able to be claimed, namely, the purchase of the transcript for the purposes of the appeal, and that was at a cost of approximately $160.
The position of the mother is that she is not prepared to agree to meet any of the costs of the father.
In the alternative, the father has raised the question of a costs certificate being ordered pursuant to the Federal Proceedings Cost Act 1981 (Cth), and I thus proceed on the basis that his application is, first, for an order for costs, but if that is not granted, then for a costs certificate to be issued.
It is unfortunate that the matter has reached this point.
Initially of course, the mother opposed the appeal, relying on the order made by the magistrate, and proceeding on the basis that the magistrate had made no error in making that order.
On the other side of the coin, the father brought his appeal on the basis that the magistrate had made an error.
Thus, no criticism can be made of either the position of the mother or the father at that point.
Then, of course, when the matter came before me, I provided my preliminary view, and it is apparent that that struck a chord with the mother, and led to her indicating to the father that she would be prepared to have the injunction dismissed. However, as I have indicated, the father did not agree to that and, indeed, that position was maintained until today. Thus, in those circumstances it is not appropriate to make an order for costs in favour of the father, nor to provide for a costs certificate. What I propose to do is, by consent, make orders allowing the appeal, and then set aside paragraph 1 of the orders made on 15 January 2021.
I remain of the view that the magistrate has erred in the way I have outlined earlier in these reasons.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 17 June 2021
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