Cole & Ingram
[2022] FedCFamC2F 285
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cole & Ingram [2022] FedCFamC2F 285
File number(s): HBC 330 of 2018 Judgment of: JUDGE TAGLIERI Date of judgment: 18 March 2022 Catchwords: FAMILY LAW – security for costs – where mother non-compliant with final parenting orders and father has filed an enforcement parenting application – where mother seeks security for costs – reliance on, amongst other factors, past findings about father’s conduct, outstanding costs order in favour of the mother and lack of prospects – nature of enforcement parenting application, Rule 11.64 - application for security for costs dismissed Legislation: Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth) Part VII Division 13A, ss. 60CC(2A), 67X, 70NBA, 105, 117(2), 117(2A)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s10
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r11.63 - r11.69, r12.02
Cases cited: Cole & Ingram (2020) 62 Fam LR 158
Evans and Rochford [2003] FamCA 314
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish (2005) 33 Fam LR 123.
I and I (No 2) (1995) FLC ¶92-625
Jones and Jones (2001) FLC ¶93-080
Knight and Ellington [2018] FamCA 892
Lisle & Lisle [2009] FamCA 1236
Luadaka v Luadaka (1998) FLC ¶92-83
Medlon and Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157
Millson & Halbert [2021] FedCFamC1F 94
Palma and Caleffi and Anor (Security for costs) [2011] FamCAFC 174
Division: Division 2 Family Law Number of paragraphs: 98 Date of hearing: 18 February 2022 Place: Hobart Counsel for the Applicant: Ms K Mooney SC Solicitor for the Applicant: PWB Lawyers Counsel for the Respondent: Mr M Foster Solicitor for the Respondent: Murdoch Clarke Counsel for the Independent Children’s Lawyer: Ms S Watson Solicitor for the Independent Children’s Lawyer: Legal Aid Commission of Tasmania ORDERS
HBC 330 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS COLE
Applicant
AND: MR INGRAM
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 14 December 2021 is dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cole & Ingram has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
The parties to these proceedings, Ms Cole (“the mother”) and Mr Ingram (“the father”), are the parents of two children, X born 2012 (“the elder child”) and Y born 2015 (“the younger child”) (collectively “the children”). The children are now nine and a half years and six and a half years of age respectively.
This judgment is in respect of an Application in a Proceeding filed 14 December 2021 by the mother, seeking security for costs (“the security for costs application”) in proceedings for enforcement initiated by the father on 30 September 2021 (“the enforcement application”).
The children were the subject of parenting proceedings in the Family Court of Australia between 2018 and 2020. On 12 June 2020 final parenting orders were made by his Honour Justice Benjamin (“the final orders”), who produced a lengthy written judgment containing reasons for the orders made (“the final judgment”).
Various contempt proceedings were also initiated by the mother prior to the final judgment. The contempt proceedings were dismissed with no order for costs on 11 January 2021.
After final orders were made in June 2020, the Court also heard a contested costs application in which the mother sought an order that the father pay her costs of the parenting proceedings. On 18 November 2020, Benjamin J made an order for the father to pay the mother's costs in the sum of $75,062.[1] The father declared bankruptcy in 2021 and did not pay the costs.
[1] Cole & Ingram (2020) 62 Fam LR 158.
THE FINAL PARENTING ORDERS AND SUBSEQUENT EVENTS
Pursuant to the final orders made on 12 June 2020, the father was to spend time with the children in accordance with Orders 4, 6, 8, 9, 10, 11 and 12. By virtue of Order 8, the father's overnight time with the children was subject to a condition that it occur in the presence of the paternal grandmother.
It is clear from the reasons for final judgment that Benjamin J made a number of adverse findings against the father. Despite this, he was satisfied that the father should spend time with the children, subject to the regime specified in the final orders.
Up until August 2021, the father was spending time with the children in accordance with the final orders. This was despite the children telling the mother in March 2021 of what she considered constituted inappropriate touching of their bodies by the father.
After the mother had indicated that the children would not be sent to spend time with the father, some communications followed about the reasons for this, including that reports had been made to police about the alleged touching.
When the father’s time with the children did not resume, the father filed his enforcement application. This sought orders for the mother to comply with the final orders and for compensatory time. An affidavit in support of the enforcement application was filed on the same date.
On 29 October 2021, the enforcement application came before the Court for directions and case management. Counsel for the mother foreshadowed that an application for security for costs would be made and accordingly the enforcement application was not listed for hearing, and instead the proceedings adjourned to 8 December 2021 for further directions.
By 8 December 2021, the mother had not made the foreshadowed application for security for costs. The father was not spending any time with the children, and so on 7 December 2021 had filed an Application in a Proceeding seeking urgent orders for supervised time. I set the enforcement application down for defended hearing on 11 January 2021. However, I did not make any directions about the father’s application of 7 December 2021 as it had not been served and I was not satisfied it was necessary to deal with it urgently, especially because I had allocated a hearing date for the enforcement application.
On 14 December 2021, the mother filed the security for costs application and certified urgency. She also filed a Response to the enforcement application, seeking that the enforcement application be dismissed.
Another directions hearing was convened on 20 December 2021, at which time all applications by the parties were subject to case management. The father’s urgent application filed 7 December 2021 was dismissed by consent as the parties had informally agreed that the father have supervised time at Service F and then the Hobart Contact Service once it was available.
All counsel appearing on the 20 December 2021 agreed that it was necessary to obtain various subpoena material before the enforcement application could be heard. I determined the security for costs application should be heard before the enforcement application. I vacated the hearing date of 11 January 2021 without opposition and listed the security for costs application for hearing on 18 February 2022.
SECURITY FOR COSTS HEARING
The mother’s case and submissions
In her application for security for costs, the mother relied upon:
(a)The final judgment, tendered as Exhibit A-1;
(b)The costs judgment of 18 November 2020, tendered as Exhibit A-2;
(c)The section 69ZW report dated 29 November 2021 from Child Safety Services, tendered as Exhibit A-3;
(d)The mother’s affidavit filed 14 December 2021; and
(e)A written case outline and submissions filed 28 January 2022.
Although counsel for the mother initially sought to adjourn the hearing of the security for costs application, that proved to be unnecessary. After hearing some brief submissions, I made an order for the father to produce the bank records that had been requested by way of disclosure. In those circumstances, counsel for the mother was prepared to proceed with the hearing. These bank statements were tendered into evidence as Exhibit A-4.
In substance, counsel for the mother submitted that, in view of the allegations raised about the father inappropriately touching the children, the nature of which are detailed in the mother's affidavit and the Child Safety Services section 69ZW report, it was appropriate for there to be only supervised time between the father and the children.
Counsel referred me to the Court’s power to vary orders and submitted that pursuant to the enforcement application, the Court could make an order for supervised time varying the final orders previously made by Benjamin J. That power was said to be vested in sections 105 and 70NBA of the Family Law Act 1975 (Cth) (“the Act”). I was also referred to the authority of Millson & Halbert [2021] FedCFamC1F 94.
Counsel for the mother urged the Court to make an order varying the final orders for the father’s time with the children. In particular, she submitted that an order should be made for the father to:
(a)have the phone communication each Monday;
(b)spend time with the children supervised by Service F once per fortnight; and
(c)spend time with the children once per month at the Hobart Contact Service once appointments became available.
It was said that it was in the interests of the children and justice that the proposed interim orders be made to regularise the father’s time with the children and to ensure that third parties such as schools are appraised of what the arrangements are for the children.
In support of the orders sought for security for costs, I was referred to specific evidence in the mother’s affidavit of 14 December 2021, although the entire affidavit was read unopposed. It was submitted that the letter of 6 October 2021 from the mother’s solicitor, being Annexure E to her affidavit, explicitly explained why time was not being facilitated pursuant to the final orders. Namely, that Child Safety Services had recommended that she not make the children available to spend time with the father.
It was submitted that the recommendations and advice from Child Safety Services made it clear that if the mother provided the children to the father for time in accordance with the final orders, then Child Safety Services would intervene. It was submitted that for the last five months, the father had known the position of Child Safety Services and, given that position, the mother had been at all times acting reasonably by not facilitating the father's time with the children.
It was submitted by counsel for the mother that the father had been in contact with Child Safety Services and received an email of 19 August 2021 which recorded Child Safety Services’ view that the children ought not to be spending time with the father. Counsel for the mother submitted that, at the very latest by 6 October 2021, Mr G from Child Safety Services had informed the father of this.
I was referred to the statutory provisions of the Act and the Rules governing the Court’s power to order security for costs and the relevant principles. Counsel for the mother observed that the father’s position in opposing the security for costs application was predominantly based on the fact that if such an order is made, it would stifle and bring an end to the enforcement application.
However, counsel for the mother emphasised that the mother had already been required to incur significant legal costs in the past in respect to the earlier proceedings, and that engaging in further litigation regarding the children spending time with the father would expose her to further costs and require her to draw down on a home loan in order to be represented.
In relation to the father's capacity to meet the security for costs order, or indeed pay costs of any proceedings, counsel for the mother referred to the father earning in the vicinity $60,000 per annum and being fully subsidised in relation to living costs by his own mother as he lives in her home. It was submitted that the father had demonstrated capacity to pay a lump sum by way of security for costs as he had previously offered to pay such a sum in reduction of the costs order made by Benjamin J.[2]
[2] Affidavit of the mother filed 14 December 2021 at Annexure T.
It was then suggested that the father was not impecunious and the accusation that the father makes that he was forced into bankruptcy is not correct. Rather, he chose to go into bankruptcy as there was no petition by the mother to make him bankrupt.
It was said that the financial hardship imposed on the mother by these further proceedings justified making an order for security for costs. Counsel for the mother referred to the fact that the father had still not yet paid any child support in respect of the children, despite commencing employment. As the father was in employment, counsel for the mother acknowledged that if there was a future costs order made against him in favour of the mother, his wages might be garnisheed in order to secure payment in satisfaction of the order.
In relation to the merit of the enforcement application, counsel for the mother made the submission that the prospects of success of the enforcement application were poor. The basis for this submission was that there is considerable authority to the effect that the Court should not simply make an order enforcing a previous order which was already enforceable and binding on the parties. Instead, it was submitted that the appropriate application ought to have been a contravention application. It was inferred that the father had deliberately not made a contravention application because he knew that such an application would fail given the advices and position of Child Safety Services referred to at [23] – [24].
In the context of the submission referred to at [30], counsel for the mother referred to cases of anticipatory breach where a court may make an order to avoid or prevent the breach. I was referred to Lisle & Lisle [2009] FamCA 1236.
In support of the submissions that the enforcement application had no prospect of success, counsel for the mother referred to the contents of the Child Safety Services section 69ZW report, which warned the mother not to facilitate the father's time pursuant to the final orders. The warning was one taken seriously, given the findings of Benjamin J as to sexual abuse and the father's inability to respect boundaries.[3]
[3] The final judgment at [485], [468], and [536].
In relation to the mother's conduct in accepting the recommendations from Child Safety Services, it was emphasised that she had at an early time instigated and identified a means by which the father could commence supervised time with the children. It was suggested that it was her proposal for the children to see the father at Service F and that the father had prematurely and inappropriately commenced the enforcement application.
Further, counsel for the mother alleged deliberate misleading statements in the father's affidavit[4], all of which are relevant to the additional and unjust exposure to costs to which the mother is subjected because of the enforcement proceedings.
[4] Affidavit of the mother filed 14 December 2021 at [88].
It was submitted that the situation of the father not spending time with the children had arisen because the father was not respecting the children’s own boundaries. Rather than taking boundary training, the father had commenced further legal proceedings.
Referring to whether a security for costs application will have the effect of stifling proceedings, counsel for the mother referred to her written submissions on page 7 and the emphasised that although this was plainly a relevant consideration, citing also Palma and Caleffi and Anor (Security for costs) [2011] FamCAFC 174, there were other relevant considerations and in this case, existence of a previous outstanding costs order, weighed in favour of the security for costs order being made.
Responding to criticism about the delay in bringing the security for costs application as set out in the father’s written outline of submissions, counsel for the mother suggested that the reasoning of his Honour Justice Tree in Knight and Ellington [2018] FamCA 892 was not instructive to this case. The delay was far greater in the matter before his Honour. The mother had “reasonably waited before filing the application”, hoping that the father would “see sense” and accept the offered supervised time until the outcome of Child Safety Services investigation was finalised.
Counsel for the mother submitted that the father was litigating at will, and that he was bound to continue with litigation rather than accept that time should be supervised until the younger child is older and is able to self-protect. It was said that the mother was rightly in despair when the allegations were made by the children in March 2021 and knew that if she raised the issue then the father's reaction would be to litigate.
It was submitted for the mother that:
(a)she had acted in a child-focused way by following advice from Child Safety Services, not necessarily accepting the allegation to be of one of the sexual abuse, but rather one of the father failing to respect boundaries and provided an alternative means by which the father could see the children;
(b)had she written to the Independent Children’s Lawyer about the allegations, that too would have been seen as inflammatory and led to an inevitable litigation;
(c)the mother’s conduct has been proportionate and not designed to inflame the father; and
(d)On the other hand, the father has a propensity to litigate, which was a finding made by Benjamin J as demonstrated in exhibits A-1[5] and A-2[6].
[5] Final judgment at [592].
[6] Costs judgment at [42].
The father’s case and submissions
The father relied on his affidavit of 13 January 2022 and the written submissions and case summary filed 10 February 2022.
There was no dispute as to which statutory provisions applied nor the principles which were applicable. Both counsel appeared to accept that the summary at [35] of Evans and Rochford [2003] FamCA 314 was useful and instructive.
Counsel for the father addressed each of the considerations in section 117(2A) of the Act. First, he submitted that given the general rule as to costs in family proceedings, it ought not be assumed that there would necessarily be an order for costs for or against a party in the enforcement application. Second, the means of one party alone, in this case the applicant for security for costs, are not the only consideration relevant to whether a costs order should be made. It was said that the fundamental consideration was whether, if made, it would deny a party access to justice.
Counsel for the father agreed that the prospects of success of the enforcement application was a relevant consideration. As addressed in his written submissions, he stated that the success of the application was inevitable because the mother had not sought to vary or suspend the previous orders by Benjamin J, which were final orders and ought to have been complied with.
In the written outline for the father it was said that there was the no matter of public importance involved in these proceedings. However, this was withdrawn and instead it was submitted that there was a matter of public importance. Namely, the issue is one of the authority of the Court and the attitude towards its role in the administration of justice. This was particularly important, given that the final orders had been relatively recently made and the mother had simply taken it upon herself not comply. It was submitted that the mother, by making the application for security for costs, was taking strident steps to avoid the Court determining the enforcement application.
Counsel submitted that the Court also ought to have regard to:
·the delay in bringing the security for costs application; and
·the fact that the enforcement application had in fact been listed for final hearing on 11 January 2022 and had to be delayed with the hearing vacated, because of the security for costs application.
Referring to Knight and Ellington [2018] FamCA 892 at [41], counsel for the father submitted that it had long been recognised that near impecuniosity and inability to meet a costs order if one were to be made was not alone a basis for making an order for security for costs. Addressing the mother’s the outline of contentions, counsel for the father submitted that the respondent’s financial means in the substantive application, in this case the mother’s, were not relevant. Rather it was the financial means of the applicant, who in this case was the father.
Further, as to the mother's submissions that the enforcement application had no prospect of success, counsel for the father submitted that this rested solely upon the recommendations of Child Safety Services. So, in effect it amounted to a submission that the Court’s functions were delegated to a state authority, namely the Department of Communities Tasmania.
Regarding the consideration of the prospects of success of the enforcement application, it was said that it was impossible to reconcile both the positions advanced by the mother; on the one hand that the application was bound to fail, but alternatively that pursuant to the enforcement application, the Court should make orders varying the final orders of 12 June 2020.
Counsel for the father argued against the mother’s submissions of the lack of genuineness of bringing the enforcement application because that, in the statutory scheme, a contravention application was more appropriate. He submitted that pursuant to the new Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (“the Rules”), there is a recognition the contravention proceedings are complex and slow. Further, that the Rules indicate a clear purpose for enforcement applications being appropriate when there is no aim to punish a party, but rather to secure compliance. It was submitted that the father should be commended for bringing the enforcement application rather than a contravention application.
Counsel for the father submitted that notwithstanding the views of Child Safety Services there was no evidence of the father’s wrongdoing. He has sought a narrow and accelerated process to address the present circumstances where he is not spending time with the children pursuant to an existing order of the Court. It was submitted that it was vital for there to be a mechanism to determine the issue in dispute and the enforcement application was appropriate.
It was strongly contended that if a security of costs order was made, it would bring an end to the proceedings and this would not be in the interests of justice. Addressing the actual financial means of the father, it was said that although $1,500 goes into a bank account from wages, it is expended and there is no surplus available to the father to meet a security for costs application. It was said that the bank statements in Exhibit A-4 supported the proposition that the father does not have capacity to meet a security for costs order.
It was said that it could not seriously be suggested that a security for costs order would not disadvantage the father and the administration of justice and therefore the children in turn, whose entitlement to benefit from a relationship with the father was a proper consideration.
Counsel submitted that it had to be determined whether the father had done something to indefinitely justify only supervised time with the children. The enforcement application was a proper means of determining that question and that if the costs of the proceedings have become problematic for both parties, then the mother had contributed to this by her actions. I inferred that this was a reference to making the security for costs application which entailed both parties incurring further costs and delaying the hearing of the enforcement application.
Counsel for the father addressed [4(l)] of Part D of the mother’s written submissions. He submitted that the findings of Benjamin J in the final judgment as to the father's sexual assaults of the mother were irrelevant to the current proceedings as, despite those findings, the Court had decided that the father was entitled to spend time with the children and made orders with which the mother was now not complying.
Counsel for the father generally complained that the case outline included in the mother’s written submissions were irrelevant to the current issues before the Court. He agreed that the existence of an unsatisfied prior costs order against the father was a relevant consideration. However, he emphasised that it was not the only consideration, and that he had attempted to reach an agreement with the mother to pay those costs and those attempts were rejected. It was again emphasised that the mother’s conduct in the enforcement proceedings and the delay in making the security for costs application had enormously increased costs and that the mother was seeking to prevent the Court from adjudicating on the enforcement application. All of which was contrary to the principles of administration of justice and the interests of the children.
Counsel for the mother was given leave to file a further short submission about two discrete issues which arose during the course of the argument before the Court. The first matter related to whether an enforcement application was a legitimate and different form of application which could be brought by party in circumstances where there is non-compliance with a parenting order. I have had regard to those submissions, the effect of which in substance are that the example reference to Rule 11.65 of the Rules does not assist in:
(a)interpreting what power the Court has on an enforcement application; or
(b)determining the question of whether an enforcement application is a distinct type of application or merely an example or species of contravention application, the powers for which are exhaustively provided for in Part 13A of the Act.
It is submitted by the mother that, for all relevant purposes in cases of non-compliance with parenting orders, Division 13A of Part VII of the Act explicitly provides the sources of power and there is no distinction between an enforcement application and a contravention application
Further, before any order can be made by the Court for a failure to comply or a contravention of an existing court order, the Court must first be satisfied that there has in fact been contravention and then further only has the powers specified in Subdivisions C, D, E and F, which provide mandatory options:
(a)If the failure to comply is not established, merely making an order for costs in favour of the respondent; or
(b)If the non-compliance is established, depending on whether it is with a without excuse and whether it is repeat non-compliance and/or a serious non-compliance, more extensive the consequential “sanctions” to effect coercive compliance rather than punishment.
Notwithstanding the additional submissions made, counsel for the mother did not detract from the primary submissions made in writing[7] and orally during the hearing, that the existence of the enforcement application before the Court enabled the Court to make an orders amending or varying the final orders. Indeed, the mother asked that orders be made to vary the final orders on an interim basis.
[7] Page 6 of written submissions dated 28 January 2022
The second topic in respect of which the mother’s counsel was given leave to make further additional submissions was the father's the bank statements produced during the hearing.[8] Analysis conducted by the mother’s legal team is said to demonstrate in summary that:
·The father has paid a limited sum and offset $600 towards legal fees since the current dispute emerged and other costs. This money paid to Murdoch Clarke does not correspond to the sum in the costs notice filed on 18 February 2022, which costs were presumably paid by someone else; and
·A significant proportion of the father's income is diverted to another account and a significant proportion is applied to discretionary spending. No payments are made to the mother by way of support of the children.
[8] Exhibit A-4.
RELEVANT LEGAL PRINCIPLES
The general rule, found in section 117 of the Act, is that parties to proceedings under the Act bear their own costs. This is subject to the power to orders costs and security for costs set out in section 117(2), which states:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Further, section 117(2A) provides the factors which the Court must consider in making a costs order. It provides:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
No one of these considerations have primacy over the others.[9] The approach undertaken by the Court is to assess and weigh all the prescribed factors in a given case,[10] and further not all factors need to be satisfied to justify an order for costs.[11]
[9] Medlon and Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157 at [24].
[10] I and I (No 2) (1995) FLC ¶92-625.
[11] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish (2005) 33 Fam LR 123.
The Rules address the matter of security for costs at Rule 12.02, which provides:
Application for security for costs
(1)A respondent may apply for an order that the applicant in the proceeding give security for the respondent's costs.
(2)In deciding whether to make an order, the court may consider any of the following matters:
(a)the applicant's financial means;
(b)the prospects of success or merits of the application;
(c) the genuineness of the application;
(d)whether the applicant's lack of financial means was caused by the respondent's conduct;
(e)whether an order for security for costs would be oppressive or would stifle the proceeding;
(f)whether the proceeding involves a matter of public importance;
(g)whether a party has an order, in the same or another proceeding (including a proceeding in another court), against the other party for costs that remain unpaid;
(h)whether the applicant ordinarily resides outside Australia;
(i)the likely costs of the proceeding;
(j)whether the applicant is a corporation;
(k)whether a party is receiving legal aid;
(l)any other relevant matter.
(3)In subrule (1):
“respondent” includes an applicant who has filed a reply because orders in a new cause of action were sought in the response.
The making of an order for security for costs pursuant to s117(2) of the Act does not imply that ultimately an order for costs will follow, and its purpose is only to prevent difficulties in enforcing such an order should it be made.
The relevant factors to consider when assessing an application for security for costs were discussed in Evans and Rochford [2003] FamCA 314 by the Full Court comprising of Finn, Holden and Barlow JJ, discussing Jones and Jones (2001) FLC ¶93-080 and Luadaka v Luadaka (1998) FLC ¶92-83. The relevant factors and principles are well established and not contentious, having been referred to in many decisions, including Knight & Ellington [2018] FamCA 892, to which I was referred.
FINDINGS AND DETERMINATION
I find on the basis of undisputed material, that the enforcement application was made on a background of the following relevant events that occurred following the final orders being made:
(a)Between November 2020 and into early 2021, the father had failed to satisfy the terms of the costs order made by Benjamin J and various negotiations followed about satisfying the order by compromise.
(b)In March 2021, the younger child told the mother that the father “tickles my doodle when we wrestle”. The elder child told the mother that the father accidentally brushes his hands on her private parts when tickling her skin on the inner upper thigh.
(c)In May 2021, the mother asked the father to observe and respect the children’s physical boundaries and continued to facilitate the children’s time;
(d)In June 2021, the mother advised the Independent Children’s Lawyer of the reports by the children about inappropriate touching only when asked for a report.
(e)In August 2021, the younger child advised the mother again about the touching his “doodle” when wrestling and the mother gave him the opportunity to tell the school principal, who then reported to Child Safety Services, and they in turn police.
(f)The father last spent time with the children pursuant to the final orders on 12 August 2021. Around this time the school informed the father of a mandatory notification having been made.
(g)The father made contact with police on around 16 August 2021 and provided information about the allegations;[12]
[12] Affidavit of the mother filed 14 December 2021 at [37].
(h)On 20 August 2021, the father was informed by the mother’s solicitor of the Child Safety Services investigation and that time with the children would not be facilitated.[13] This communication did not state that there had been a recommendation by Child Safety Services that the mother not facilitate the time or a warning that Child Safety Services would intervene if the mother did so.
[13] Affidavit of the mother filed 14 December 2021 at Annexure M.
(i)The communications from Child Safety Services leading to the letter referred to at (h) have been closely reviewed. They recommend that the children not spend time with the father until investigations are completed and recommend that the mother seek legal advice. However, they a do not warn that they will intervene if time continues to be facilitated;
(j)On about 13 September 2021, the mother and her solicitors received notice that proceedings would be commenced if the children’s time with the father was not facilitated pursuant to the final orders;[14]
(k)On 14 September 2021, the father emailed the mother advising he had again spoken to police. He queried why supervised time was necessary, having received a call from the Hobart Contact Service;[15]
(l)On 30 September 2021, the enforcement application was filed, but not served on the mother’s solicitors until 6 October 2021. The mother asserts that the form of the application was not in accordance with the Rules. If the submission at [24] of these Reasons is founded in fact, noting that the subpoenaed materials were not before the Court, it would seem that when the father made his application to the Court he was unaware of advice Child Safety Services had given to the mother;
(m)The mother made enquiries about supervised time with Service F on 12 October 2021 and an offer for supervised time with Service F was first made on 19 October 2021, on the basis the father pay the associated costs;
(n)On 19 October 2021, the Independent Children’s Lawyer made recommendations about varying the parenting orders by implementing supervised time at Service F;[16]
(o)On 4 November 2021, the father accepted the offer of supervised time at Service F and the first visit later occurred on 9 December 2021;
(p)At some indefinite time, but I infer on the basis of [41] of the mother’s affidavit, after or around when the arrangement for supervised time was made, Child Safety Services told the mother they would intervene if she were to facilitate time with the children pursuant to the final orders;[17]
(q)The mother did not make application of her own to suspend or vary the final orders, despite not facilitating time in accordance with them; and
(r)At the hearing on 18 February 2022, the mother agreed that orders could and should be made varying the final orders, substantially in terms of what was recommended by the Independent Children’s Lawyer in correspondence dated 19 October 2021. The father did not agree.
[14] Affidavit of the mother filed 14 December 2021 at [40].
[15] Affidavit of the mother filed 14 December 2021 at Annexure N.
[16] Affidavit of the mother filed 14 December 2021 at Annexure P.
[17] Affidavit of the mother filed 14 December 2021 at [56].
To various degrees, the above findings are relevant to or inform the considerations and principles referred to at [61] to [66] which the Court should take into account on this application. That is because they impinge on the merit of the enforcement application.
I am not persuaded that the father is impecunious. An order was made for him to produce copies of statements for all bank accounts in his name in the period 1 May 2021 to the date of the hearing. Copy statements for only one bank account were, in fact, produced. These show unexplained transfers of another account, referenced as ‘Mr Ingram’. The father says that he pays his mother $250 per week for living in her home.[18] In any event, even if I do not accept the analysis and submissions of the mother’s counsel about the bank statements, I am satisfied from reviewing those that the father indeed has significant discretionary spending. Further, without explanation about the transfers to the other account, referenced ‘Mr Ingram’, it may be, although it is unnecessary to conclude, that the father may also have savings.
[18] Affidavit of the father filed 13 January 2022 at [8a].
Despite the finding at [69], it does not automatically or simply follow that the order sought should be made. Rather, other considerations need to be evaluated.
I do not accept that the father was forced into bankruptcy. He elected to make his own petition when negotiations to pay a lesser sum in compromise of the costs order failed. Whether the mother would have forced him into bankruptcy is a moot point, but the fact remains that neither she nor anyone else made a creditor’s petition under the Bankruptcy Act 1966 (Cth).
The decision to petition his own bankruptcy was no doubt one made carefully and upon weighing the benefits and disadvantages of this. This much is clear from the evidence of the father.[19]
[19] Affidavit of the father filed 13 January 2022 at [10] to [15].
The adverse findings by Benjamin J in the past related to the father’s conduct, including his litigious capacity and inappropriate boundaries with the children. Despite the adverse findings, the father was to have time with the children in accordance with the final orders. Noting that the present allegations are about inappropriate touching of the children’s genitals or private areas, not the subject of prior allegations, it is important not to conflate the father’s conduct referred to in the final judgment with the issues before the Court on the enforcement application.
Indeed, if the issues and risks were precisely the same then an application for summary dismissal could have been made, and it would be wrong in my view to look to the previous reasons as determinative of the issues now as that would entail pre-judgment.
Similarly it would be wrong at this juncture to accept the submissions made on behalf of the mother and referred to at [34] to [35] of these reasons. The submissions go to the core and merit of the enforcement application. The father denies that he has deliberately misled[20] and inappropriately touched or sexually abused the children. The evidence about these topics is not yet tested.
[20] Affidavit of the father filed 13 January 2022 at [2] to [5]
The parties’ counsel made opposing submissions about the prospects of success of the enforcement application. I do not accept the submissions by the mother that the application is bound to fail. The invitation for the Court to make orders varying the final orders and the concession that the Court has power to do so, necessarily, means that the enforcement application has served a purpose and is not procedurally or otherwise completely flawed.
Further, although the enforcement application seeks to secure compliance with the final orders, it also seeks compensatory time and so the Court is required to rule upon both aspects of it. Therefore the submissions referred to at [32] of these reasons are rejected.
I largely accept the submissions of counsel for the mother at [3] to [10] of the written submissions filed 21 February 2022. However, in my view they support the efficacy and purpose of the enforcement application.
Having reviewed the provisions of the Act referred to by counsel and the now relevant Rules, being Rules 11.63 to 11.69, it is plain that the reference to an enforcement parenting application in Rule 11.64 is a reference to any application to enforce a parenting order whether pursuant to section 67X or Division 13A of Part VII of the Act.
To the extent that Rule 11.64 refers to Enforcement parenting application (described in item 1 of Table 11.1) distinct from Contravention application (as described in item 2 and 3 of Table 11.1), it is in my view to distinguish where the applicant does not seek to invoke the specific powers for contraventions referred to in subdivisions E and F of Division 13A, Part VII and section 67X(3), relating to hindering authorised recovery actions. But irrespective, in all cases where the application is plainly to aid enforcement of parenting orders, whether the application is described as Enforcement or Contravention, it seeks to achieve compliance with an existing parenting orders. That may be achieved by seeking that the court exercise coercive powers or some other relief, for example compensatory time or variation of orders. In each case, the Court must first be satisfied that there has been non-compliance with an existing parenting order before it is empowered to make any further order.
On the facts of this case, there is no question that there has been non-compliance or contravention with the final orders. That is conceded by the mother and she provides explanation for not complying. So, the Court is empowered to make orders pursuant to Division 13A of Part VII based on what is in the best interests of the children, including vary the existing orders.[21]
[21] Section 70NAA, Division 13A of Part VII of the Act.
The reference to an enforcement parenting application in the Rules is a reference to a species of contravention application such as it concerns an existing order about children. It is to be used where the applicant seeks orders other than coercive orders provided for in Subdivisions E and F of Division 13A.
Although the Rules do not expressly provide for the procedure or powers applicable to enforcement applications, in my view they are likely the same as for contravention applications for the reasons expressed at [80] of these reasons. Further, I consider that even if a coercive order is not sought, the Court may still impose one depending on the findings made about the basis of non-compliance and what is in the best interests of the children.
It is curious that the Rules do not expressly provide for the procedure to be followed in an item 1 of Table 11.1 enforcement application, but this is immaterial because the Court may regulate its own process.[22] Although the Rules do not require an affidavit to be filed in support of an enforcement parenting application, it is likely to be useful. That is because the court will usually need to determine if there has been non-compliance with a prior order, before deciding other matters and what relief should be ordered if any. However, if the enforcement application is not to secure compliance with an existing order, but to seek a variation to clarify what is required of a party to achieve compliance with the intent of the original order, affidavit material will likely provide relevant evidence and be of assistance to the court.
[22] Federal Circuit and Family Court of Australia Act 2021 (Cth) section 10.
The procedure at a hearing provided for in Rule 11.69 explicitly applies to all applications in item 2, 3, 4 and 5 of table 11.1. although, that procedure is not required to be applied for a parenting enforcement application referred to in item 1 of the Table, in particular cases where there is a dispute about whether the order has been complied with, it nevertheless would be appropriate in my view.
The Independent Children’s Lawyer and the mother both seek variation of the final orders. In the face of the allegations concerning inappropriate touching which are subject to police and Child Safety Services investigations, the outcome of which I am unaware at this stage, it would likely have been appropriate to vary the final orders on an interim basis to provide for the father to have supervised time with the children. This would have at an early stage, ensured the father could have continuing time with the children while prioritising the need to protect the children from risk of physical or emotional harm due to the seriousness of the allegations.[23] This was proposed by the Independent Children’s Lawyer[24] and raised by me at the hearing on 18 February 2022.
[23] Section 60CC(2A) of the Act.
[24] Email from the Independent Children’s Lawyer dated 19 October 2021 as attached to the affidavit of the mother filed 14 December 2021 at Annexure P.
But, rather than take this pragmatic and child focussed approach, each party has made interlocutory applications involving additional cost and court resources. The father has accepted supervised time in the interim on an informal basis but opposed making a varied order on 18 February 2022. While I agree there is merit in the submissions by the Independent Children’s Lawyer and the mother’s counsel about regularising the court order to reflect what is occurring to avoid confusion for third parties, the strength of the submission has diminished because the hearing of the enforcement application will occur on 31 March 2022, a short time away. I will revisit if an interim varied order should be made at the hearing depending on whether I need to reserve a decision or otherwise.
The mechanism by which an order varying the final orders can be made only exists because of the enforcement application. As such, I reject the submission that the father’s application has no prospects of success. Further, it is inconsistent with the contention that the Court should make an order varying the final orders.
Having considered the judgment in Lisle & Lisle [2009] FamCA 1236, I found it of limited assistance as it does not address the context of enforcement contrary to contravention or Division 13A of Part VII of the Act in any explicit terms. It demonstrates what I understood not to be in contention, namely that the Court once seized with power under the Act because an application concerning children is made, may hear the application and make orders as appropriate to serve the best interests of the child. This includes making orders in aid of enforcement of existing orders.
Further, in seeking compliance with the final orders and seeking compensatory time, the father’s application has some similarities with Lisle. In each case the court has a proper function because it is called upon to determine what, if any, orders should be made in aid of compliance with an existing order, including avoidance of continued breach.
I generally accept the submissions made on behalf of the father referred to at [53] and [54] of these reasons for the same reasons set out above.
It is necessary to note that the father’s application was made without first seeking to secure an alternate compromise arrangement in the face of the allegations being investigated and the need for the mother to take the allegations seriously and follow advice from Child Safety Services and her lawyers. In this respect it might have been premature, as only three weeks passed between the forewarning of filing the application and it being filed and because the provisions of Rule 4.01 and Schedule 1 of the Rules were not complied with.
However, it is apparent to me, given the nature of the correspondence passing between the parties’ lawyers and the tone and content of the parties’ own communications, that attempts to find a compromise were unlikely to succeed without proceedings being on foot. Indeed, the recommendations of the Independent Children’s Lawyer of 19 October 2021 were not acted upon even after the proceedings were initiated, nor were the Court’s own suggestions at the directions hearing on 20 December 2021. My preliminary view is that both parties are still highly distrustful of the other and a court determination seems unavoidable.
Both parties have taken steps that involve additional complexity and costs. The father filed an urgent application for supervised time on 7 December 2021 and the mother made her application for security for costs on 14 December 2021. The reasonableness of these actions and what costs consequences follow must in my view be determined after the enforcement application is finally determined, if and when an order for costs is sought.
The enforcement application is now listed for hearing on 31 March 2022 and I understand that it is ready for hearing. It is not an abuse of process or fundamentally flawed. I have rejected the proposition that it has no prospect of success, especially because of the broad nature of the Court’s powers upon proceedings of this nature under Division 13A. A significant sum in costs had already been incurred by the time the security for costs application was made. Although in general terms the delay in making the application was not great, it is nevertheless significant and material delay when the substantive application is one that should be heard and determined quickly.[25]
[25] Rule 11.66 of the Rules.
As the father has regular employment and some means demonstrated in discretionary spending, a costs order in favour of the mother, if eventually made, could be enforced. Equally, if it were appropriate to make an order for security for costs, I consider that the father has some capacity to meet it, providing it is for a modest sum given that he is entitled to seek the Court’s assistance in securing compliance with existing orders which the mother did not see fit to seek to suspend or vary once the reports were made by the children in March 2021.
I appreciate the natural reluctance of the mother to embark on further dispute and court proceedings, but that reluctance ought not to take priority over the expectations that parties should comply with final orders of the Court. Further, in my view it is not appropriate to act on advice from Child Safety Services when it constitutes being in breach of existing final orders without seeking to suspend those orders. The function of the Court cannot and should not be usurped to Child Safety Services.
Ultimately, I have not been persuaded to make the order for security for costs, primarily because there is a legitimate issue to be determined to ascertain what is in the best interests of the children in the future and the enforcement application will enable that to be decided.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 18 March 2022
0
7
0