COLLINS & RICARDO
[2016] FamCA 211
•7 April 2016
FAMILY COURT OF AUSTRALIA
| COLLINS & RICARDO | [2016] FamCA 211 |
| FAMILY LAW – CHILDREN – CONTRAVENTION – Orders following findings in contravention proceedings – Where the Court had previously found that the mother had contravened Court orders without reasonable excuse in respect of three allegations – Where the mother did not appear despite having notice of the listing – Where the Court was satisfied that it would therefore be appropriate to deal with the matter in the mother’s absence – Where the mother’s conduct in relation to the contraventions showed a serious disregard for her obligations under the orders – Where the father was of the view that the mother should be imprisoned and fined – Where the Court was of the view that the contraventions should be dealt with under Subdivision E of the Family Law Act 1975 (Cth) – Where the circumstances did not warrant sanctions in the nature of those available under Subdivision F of the Family Law Act 1975 (Cth) – Where a bond would be an appropriate sanction – Where in order to satisfy the obligation to explain the purpose and effect of requiring the mother to enter into a bond and the consequences of such an order, proceedings adjourned for the purpose of ordering the mother to enter into a bond – Where the mother was ordered to pay for the father’s expenses incurred because of the mother’s contraventions. FAMILY LAW – COSTS – Application for costs – Where in respect of the father’s contravention application he was successful as to three allegations and unsuccessful as to 16 allegations – Where the Court is of the view that there should be no orders for costs. FAMILY LAW – PRACTICE AND PROCEDURE – Application that the papers be referred to the Australian Federal Police in relation to perjury – Where on the facts there should be no referral. |
| Family Law Act 1975 (Cth) ss 70 NAC, 70 NAE, 70NEB, 70NEC, 117, 117(2A) |
Crimes Act 1975(Cth) s 4AA
Malpass & Mayson (2000) FLC 93-061
Simpson v Hodges [2007] NSWSC 1230
| APPLICANT: | Mr Collins |
| RESPONDENT: | Ms Ricardo |
FILE NUMBER: | SYC | 4959 | of | 2009 |
| DATE DELIVERED: | 7 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 26 and 27 August 2013, 18-20 February 2014, 8 July 2014, 17-19 November 2014, 22 July 2015, 19 August 2015 and 15 January 2016 |
REPRESENTATION (15 January 2016)
| APPLICANT FATHER: | In Person |
| RESPONDENT MOTHER: | No appearance |
Orders
In relation to the breaches of orders without reasonable excuse found on 19 December 2014:
(a)The proceedings are adjourned to 10.00 am on 4 May 2016 for the purpose of an order being made that the mother enter into a bond, the terms of which will be: that she be of good behaviour and comply with all orders of this Court and that she forfeit $2,000 to the Commonwealth in the event that she breaches her bond.
(b)The parties are required to appear on that date but each has leave to appear by telephone, provided that arrangements are made with the Court for that appearance.
(c)The Court noted the explanation to the mother contained in paragraphs 35, 36, 37 and 38 of the reasons for judgment published this day.
(d)Within two months of the date of these orders the mother shall pay to the father or as he may in writing direct, the sum of $4,005 for expenses pursuant to s 70NEB(e) of the Family Law Act 1975 (Cth).
(e)The father’s Application in a Case filed 22 July 2015 is otherwise dismissed.
The father’s Application in a Case filed 16 February 2015 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4959 of 2009
| Mr Collins |
Applicant
And
| Ms Ricardo |
Respondent
REASONS FOR JUDGMENT
Introduction
On 19 December 2014 findings were made in relation to an Amended Contravention Application filed by Mr Collins (“the father”) on 20 March 2013[1]. The Application sought that Ms Ricardo (“the mother”) be dealt with for contravening parenting orders made by this Court on 12 January 2012[2]. The orders related to the parties’ daughter, S (“the child”), who is now seven years of age.
[1] See Collins & Ricardo [2014] FamCA 1155.
[2] See Collins & Ricardo [2012] FamCA 11.
After eight days of hearing, conducted in three sections spread over 15 months, the father’s application resulted in findings that in respect of three allegations, the mother contravened Court orders without reasonable excuse. The father withdrew two allegations and in respect of the remaining 14 allegations, no contraventions were found and the Application was dismissed.
By an order made on 19 August 2015, the proceedings were listed on 15 January 2016 in relation to consequential orders arising from the findings made on 19 December 2014 and in relation to costs. There is also before the Court, an Application in a Case filed by the father on 16 February 2015 seeking that the papers be referred to the Australian Federal Police in relation to allegations that the mother committed perjury while under cross-examination. These reasons deal with those issues.
HEARING
Each of the parties was before the Court on 19 August 2015 when this matter was adjourned for hearing on 15 January 2016. On 19 August 2015, each of the parties appeared by telephone and without legal representation. On that date each of the parties was again granted leave to attend by telephone on 15 January 2016.
On 15 January 2016, when the matter was called at 10.00 am, the father again appeared by telephone but there was no appearance for the mother. The mother resides in Queensland and with the cooperation of the father, the matter was stood in the list until 11.00 am in case the mother had failed to allow for daylight saving time in New South Wales. When the matter was called at 11.00 am there was again no appearance for the mother. At both times the mother was called at the Court precinct and a telephone call was made to her on the contact number provided by her. In the latter regard, on each occasion a recording advised that her telephone number was not available.
The mother had notice of the listed hearing, she did not appear and I was satisfied that it would therefore be appropriate to deal with the matter in her absence.
The father relied on material already filed and other material which had been provided to the Court and to the mother. The father made submissions and judgment was reserved.
SHORT HISTORY
As the factual context of the proceedings, in reasons published on 19 December 2014 the following was recorded:
7.There is little background material in the evidence before me but I do not understand the following to be controversial.
8.The father was born … 1962 and at the last date of hearing was 52 years of age.
9.The mother was born … 1963 and as at the last date of hearing was 51 years of age.
10.The parties met in September 2007, commenced cohabitation in January 2009 and separated on 1 August 2009.
11.[S] is the only child of the parties’ relationship. She was born on … 2008 and at the date of these reasons is six years of age.
12.Proceedings for parenting and property settlement were commenced, first in the Federal Magistrates Court, as the Federal Circuit Court was then known. The proceedings were subsequently transferred to this Court and were heard by Justice Watts over a total of nine days in June/July and November of 2011. Final orders were made on 12 January 2012.
13.At the time of the hearing before Watts J, the child lived with the mother and her then partner, [Mr W], on a rural property 400 kilometres south east of Perth, Western Australia. The father then lived, as he does now, on his farming property on the A River, near City 2, in the State of New South Wales.
14.The main provisions of very detailed orders made on 12 January 2012 provide for the mother to have sole parental responsibility for the child and for the child to live with the mother. The orders provide that unless otherwise agreed, the child is to spend time with her father each year for two periods of two hours in a contact centre in City 1, Western Australia and for two periods of two hours in a contact centre in Wollongong, New South Wales. The orders provide for time at alternate centres in the event that either party has a significant change of residence. The orders also provide for communication between father and daughter and for the passage of information to the father about her.
15.On 1 February 2012 the father lodged an appeal against the orders but as at the date of these reasons, the appeal had not been decided.
16.Fresh parenting proceedings have also commenced and the hearing of those proceedings is awaiting the determination of the father’s appeal.
Bringing matters up to date since 19 December 2014, on 7 May 2015 the Full Court dismissed the father’s appeal against the substantive parenting orders made on 12 January 2012.
In the fresh parenting proceedings there were competing applications for the transfer of the proceedings and for reasons published on 17 September 2015, the proceedings were transferred to the Cairns Registry of this Court. An appeal was filed by the father in relation to that decision and that appeal has yet to be heard.
Sanctions / Consequential Orders
In the decision made on 19 December 2014, I found that in relation to 16 allegations, the father did not establish that there was a contravention of the orders and his Application was variously withdrawn and dismissed. However, I found that the mother contravened without reasonable excuse, orders made on 12 January 2012 in relation to three allegations, being allegations numbered 5, 9 and 10.
Allegations 5, 9 and 10 were to the following effect:
5.[Ms Ricardo] it is alleged that you contravened without reasonable excuse, order 3.5 made on 12 January 2012 in that you failed to advise the father of your address;
9.[Ms Ricardo] it is alleged that you contravened without reasonable excuse, order 6.1.4 made on 12 January 2012 in that you failed to present the child to the City 1 Contact Centre at 10.00 am on 6 October 2012;
10.[Ms Ricardo] it is alleged that you contravened without reasonable excuse, order 6.1.4 made on 12 January 2012 in that you failed to present the child to the City 1 Contact Centre at 2.00 pm on 7 October 2012.
What orders are available?
The first issue before the Court is as to the appropriate orders to be made as a result of the findings made on 19 December 2014. Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with the consequences of failure to comply with orders, and other obligations, that affect children.
Relevant to these proceedings are the available powers arising from a finding that the mother contravened parenting orders but did not prove that she had a reasonable excuse for doing so. There are two sets of powers, which are as follows.
Subdivision E of Division 13A of Part VII of the Act applies where:
(a)No court has previously imposed a sanction or taken an action in respect of a contravention by the mother of the primary order or has adjourned the proceedings under s 70NEB(1)(c) to allow one or more parties to apply to vary the primary order AND in respect of the current contravention the mother did not behave in a way that showed a serious disregard for her obligations under the primary order; OR
(b)A court has previously either imposed a sanction or taken an action in respect of a contravention by the mother of the primary order or has adjourned the proceedings under s 70NEB(1)(c) AND this court is satisfied that it is more appropriate for this contravention to be dealt with under this Subdivision.
Subdivision F of Division 13A of Part VII of the Act applies where:
(a)No court has previously imposed a sanction or taken an action in respect of a contravention by the mother of the primary order or has adjourned the proceedings under s 70NEB(1)(c) to allow one or more parties to apply to vary the primary order BUT in respect of the current contravention the mother did behave in a way that showed a serious disregard for her obligations under the primary order; OR
(b)A court has previously either imposed a sanction or taken an action in respect of a contravention by the mother of the primary order or has adjourned the proceedings under s 70NEB(1)(c).
However, Subdivision F does not apply if the court dealing with the contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.[3]
[3] S 70NFA(4)
In my view the mother’s conduct showed a serious disregard for her obligations under the orders. Regarding allegation 5, the mother can have been under no misapprehension about her obligation to provide the details of her address to the father. She had opposed the making of such an order by the trial judge. I am not sure whether she cross-appealed in relation to that requirement but if she did, there is nothing to suggest that the requirement was stayed pending the appeal. She made no attempt to provide her Queensland address to the father. Regarding allegations 9 and 10, as to the contact arranged by the parties at City 1 on 6 and 7 October 2012, before flying to Western Australia the father specifically checked[4] to ensure that his time with the child would be facilitated. The mother had ample opportunity to notify the father that the child would not be in Western Australia, let alone in City 1, to spend time with her father. A telephone call or email from her solicitor would have sufficed. The mother made no effort to inform the father that the child would not be available or to make alternate arrangements with him.
[4] Letter attached to email dated 4 September 2012 to the mother’s solicitor – annexure 3 to the father’s affidavit sworn 18 March 2013
Despite finding that the mother’s conduct showed a serious disregard for her obligations under the orders, in my view these were contraventions that should be dealt with under Subdivision E. Not only had there been no earlier sanctions applied to the mother, there had been no earlier finding of a contravention of the substantive orders. The parents have a very difficult relationship and that, in part, led to the very restricted arrangements for time between the father and the child. In my view the circumstances do not warrant sanctions in the nature of those available under Subdivision F.
The remedies available under Subdivision E are set out in s 70NEB as follows:
…the court may do any or all of the following:
(a)make an order directing:
(i)the person who committed the current contravention; or
(ii)that person and another specified person;
to attend a post-separation parenting program;
(b)if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;
(e)if:
(i)the current contravention is a contravention of a parenting order in relation to a child; and
(ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(emphasis added)
The father correctly submitted that the question of the appropriate sanctions is a matter for the Court. Nevertheless his submissions were invited. In the father’s view it would be appropriate for the mother to be imprisoned for one month and fined an amount of the order of $2,000. The father seeks that the mother pay an amount of $4,005 to him by way of compensation for his expenses associated with the missed City 1 visit. The father seeks make-up time for the missed visit and he seeks his costs.
Imprisonment is not an available sanction under Subdivision E and therefore the question of the mother being gaoled does not arise. Of course there would be practical problems in relation to the living arrangements for the child if the mother was incarcerated but again, that will not arise here. Similarly, unless the mother is ordered to enter into a bond and fails to do so without reasonable excuse, a fine is not an available sanction under that Subdivision.
For completeness it should be noted that contravention proceedings, including the establishment of a reasonable excuse are generally decided on the civil standard of proof (on the balance of probabilities). However, if as the father sought, the Court was to make an order such as an order for a fine or imprisonment, the standard of proof in relation to the findings giving rise to those sanctions must be made on the criminal standard (beyond reasonable doubt).[5] This matter was not addressed in the contravention hearing but it is possible that some or all of the necessary findings on the three successful allegations would not have been made on the higher standard.
[5] s 70NAF
Discussion about the appropriate s 70NEB orders
Parenting programs
In my view it would not be fruitful for the parties to attend a parenting program or any further parenting programs. The parties have been engaged in litigation about their daughter, who is now seven years of age, for more than six years. I am not confident that a parenting program for the mother or for both parents, for that matter, would be of real benefit to the child. I note that Watts J canvassed the question of the parents attending parenting programs in his judgment of 12 January 2012, and was of a similar view.
Compensatory time
In relation to time that compensates the father for time he did not spend with the child as a result of the breaches, the father and the child were denied two, two hour sessions at a contact centre in City 1, Western Australia. The father presses for make-up time with the proviso that it is exercised without the requirement of supervision prescribed in the original orders, or, if that requirement is necessary, that the compensatory occasions occur in City 2, instead of Western Australia, and be supervised by an agency which I assume to be the agency referred to in my judgment of 19 December 2014 as the PP Contact Service. The orders being enforced are those made on 12 January 2012 by Justice Watts. The father’s appeal against those orders was unsuccessful and so the requirement for supervision remains. In those circumstances and subject to future parenting orders, there is no basis for compensatory time to be exercised without supervision. Similarly, as discussed in my reasons for judgment published on 19 December 2014, in my view the condition for changing the location of the New South Wales occasions from Wollongong to the City 2 area, was not met. I assume that the issue of supervision will be again considered in the fresh parenting proceedings.
In the normal course, subject to considerations raised by the parties and usually, by an Independent Children’s Lawyer, a contravention of a residence or spend time order would result in compensatory time. However, orders for compensatory time must not be made if it would not be in the child’s best interests for the Court to do so[6].
[6] s 70NEB(5)
An unusual aspect of these proceedings is the fact that the substantive orders put in place minimal time – four pairs of two hour occasions each year. There is reference in the 12 January 2012 reasons for judgment to the occasions being “recognition” time. The Application I heard was only the first of many contravention proceedings instituted by the father. I recall that there are also contempt proceedings in relation to similar issues. There are also some contravention proceedings initiated by the mother. Watts J contemplated the possibility that the regime of supervised visits imposed by his orders would break down although he anticipated that might arise if the father did not take up the opportunity to spend time with the child. I understand that the regime has broken down. After the circumstances dealt with before me, at first the Wollongong visits did not occur and I understand from something said by the father, that more recently, the Queensland visits have also failed.
In my view there should be no compensatory time. Firstly, the idea of ordering compensation time is complicated because of the nature of the original orders being recognition time. Next, the ongoing orders have fallen into disuse and yet another obligation is likely to simply add to the unending enforcement proceedings. Finally, I am not confident, particularly in dealing with the issue of consequential orders on an undefended basis, that compensatory time would be in the child’s best interests. Sadly, the father is not in a position to put evidence about the child’s current situation before the Court and the mother has elected not to take meaningful part in this section of the proceedings.
Adjournment of the proceedings
When dealing with these proceedings I have on occasions canvassed with the parties the option of adjourning the enforcement proceedings to await the outcome of the fresh parenting proceedings. Ultimately I decided that as to the father’s first contravention application which was part heard over several occasions and some years, I would hear the matter to conclusion. Save for a matter raised below, having made that decision, it would be expected that the proceedings be finalised after the hearing on 15 January 2016.
A bond
As to s 70NEB(1)(d), I could require the mother to enter into a bond in accordance with s 70NEC.
The imposition of a bond is arguably the most serious of the category of orders available to a Court in relation to a contravention to be dealt with under Subdivision E. However, in my view the circumstances of this case warrant such an order. Given the antipathy between the parents, their years of disputation and importantly, the unexplained failure of the mother to appear before the Court on 15 January 2016, I have no confidence that any order short of a bond, will bring home to the mother her obligation to comply with court orders.
On the one hand a requirement that a person enter into a bond is of significance and not a trivial matter but on the other hand, it represents no penalty at all. In this instance a bond would be a written promise by the mother to do what she is obliged to do in any event, in particular to comply with orders of the Court. In that regard, it is always open to a parent, including a parent who has entered into a bond such as I have described, to seek changes, including interim changes to the applicable parenting orders.
In these very unfortunate proceedings, requiring the mother to enter into a bond may well cause further litigation but that may be unavoidable. If I do not require the mother to enter into a bond, I would in effect be encouraging her in breaching court orders. That would be unfair and inappropriate for the child. Of course it would also be unfair on the father. If, the mother believes that she should not or cannot comply with the orders made in 2012 then she should seek and obtain a variation or suspension of those orders. While the orders remain in force, the father is entitled to expect compliance with them and is entitled to ask the Court to enforce them.
Unfortunately, it is not simply a matter of requiring the mother to enter into a bond. Section 70NEC(5) provides:
(5)If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a)the purpose and effect of the proposed requirement; and
(b)the consequences that may follow if the person:
(i)fails to enter into the bond; or
(ii)having entered into the bond--fails to act in accordance with the bond.
The terms of s 70NEC(5) are unambiguous, mandatory and represent a condition precedent to an order requiring a party to enter into a bond. The mother did not attend before the Court and therefore there was no opportunity to provide her with the required explanation. What I propose to do is to set out the explanation in these reasons and adjourn the proceedings to a date after the mother has had the opportunity to read and digest them. The adjournment will be only for the purpose of ordering the mother to enter into a bond.
No submissions were made to me about the terms of a bond that the mother should enter. Pursuant to s 70NEC of the Act a bond can include a monetary term whereby an amount of money would be forfeit to the Commonwealth in the event of a breach of the bond. Such a monetary term can be the subject of a surety (whereby another person agrees to satisfy the monetary term in the event of a breach) or security (whereby the amount itself or an asset of a value equal to or greater than the monetary term is provided as a guarantee that the term will be satisfied). I propose to attach a monetary term of $2,000 to the mother’s bond. There is no evidence before the Court about the availability of a surety or security. I will not impose either condition.
Section 70NEC(5) explanation
On 4 May 2016 I intend to require that the mother enter into a bond for a period of two years. The terms of the bond will be that she be of good behaviour and comply with all orders of this Court. I will order that she forfeit $2,000 to the Commonwealth in the event that she breaches her bond. I will not require the provision of security or a surety. An explanation of the import of requiring the mother to enter into a bond is set out below.
The purpose and effect of requiring the mother to enter into a bond
A bond is a written promise entered into in the presence of an officer of the Court. The bond is made for a period of time specified in the bond but up to a maximum of two years. In the context of these proceedings it is the intention of requiring the mother to enter into a bond to compel her to comply with Court orders in future.
The consequences that may follow if the mother is ordered to enter into a bond and fails to do so
If the mother is ordered to enter into a bond and fails to do so, pursuant to s 70NEB(1)(da) of the Act, if she fails, without reasonable excuse, to enter into a bond as required by an order, the Court can impose a fine not exceeding ten penalty units on the person. Pursuant to s 4AA of the Crimes Act1914 (Cth) a penalty unit is currently $180. Therefore a fine for failing to enter into a bond could be an amount up to but not exceeding $1,800.
The consequences that may follow if the mother is ordered to enter into a bond and fails to act in accordance with the bond
In the event that the mother enters into the bond and is later found to have breached it, she will be required to pay $2,000 to the Commonwealth. That penalty will be in addition to any sanctions that might apply as a result of further contravention proceedings, because of any further contravention of Court orders without reasonable excuse. In addition, in the event of such a further contravention, the Court is likely to consider dealing with the matter under Subdivision F of Division 13A of Part VII of the Family Law Act 1975 and potentially applying the more serious penalties of a fine and or imprisonment.
Payment of the father’s expenses
The father seeks that the mother pay a sum of $4,005 to him by way of compensation for his expenses incurred because of the mother’s contraventions.
The father set out his expenses at paragraphs 29, 37 and 38 of his affidavit sworn 18 March 2013. The expenses are made up of the following:
Expense
Cost
Airline tickets for the father and his then partner (now wife)
$939.00
Car rental
$884.00
Accommodation
$878.00
Fuel
$190.00
Taxi
$56.00
Train
$128.00
Casual labourer for farm
$680.00
Lost wages (pamphlet delivery)
$250.00
Total
$4,005.00
The preconditions set out in s 70NEB(e) for an order for the payment of expenses have been made out. There has been a contravention of a parenting order in relation to a child; the contravention resulted in the father not spending time with the child; and the father contends that he incurred expenses as a result of the contravention.
The only available questions would seem to be whether the expenses were actually and reasonably incurred. The father attached a copy of a Qantas E-ticket receipt for travel on 28 September and 8 October 2012 showing a ticket total of $939.40[7]. He indicated in his affidavit that otherwise receipts could be produced for all but the last item being lost wages for pamphlet delivery. I have no record of there being a challenge in relation to the payment or reasonableness of the claimed expenses during any phase of the hearing. Of course there was no challenge on 15 January 2016 by way of cross-examination or otherwise as the mother was not present. Had there been a challenge to the reasonableness of the expenses, the two items of concern would seem to be the airfares for the father’s partner and the cost of a casual labourer to maintain the father’s farm during his absence. In each case the father sets out a reason for the cost – him recovering from back and shoulder surgery and requiring assistance on the drive to City 1 and the need for attention to livestock and other maintenance at his farm. He was not challenged on that evidence.
[7] See Annexure 7 of the father’s affidavit sworn 18 March 2013
In my view the father has made his case for the payment of expenses and I will order that there be such a payment. The order will be that the payment be made within two months.
Costs
Costs applications are decided by reference to s 117 of the Act and by certain other specific costs provisions. In the context of this case s 117 relevantly provides:
Costs
(1) Subject to subsection (2) … each party to proceedings under this Act shall bear his or her own costs.
(2) If …the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) 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.
(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.
Section 70NEB(1)(f) confirms the Court’s power in the context of a proven breach without reasonable excuse dealt with under Subdivision E to “make an order that the person who committed the current contravention pay some or all of the costs of another party … to the proceedings…”
I understand from his Application in a Case filed 3 February 2014 that the father seeks costs in the sum of $19,101.54. The father has categorised his costs as follows[8]:
[8] See paragraphs 3 – 13 of the affidavit of the father sworn 3 February 2015
Expense
Cost
“Photo copy fees”
$864.00
Casual labour for the father’s farm at $440 per day (nine days)
$3,960.00
Travel costs to Sydney for five return trips –calculated at $1.20 per km for each round trip of 692 kms
$4,152.00
Postage and service fees
$380.00
Accommodation for nine nights at a B & B at PD Town at $140 per night
$1,260.00
Lunches
$180.00
Transcripts
$7,454.54
Parking fees
$441.00
Issuing eight subpoenas
$330.00
Total
$19,021.54
I note that the costs itemised by the father do not total $19,101.54 and take it that the claim is for $19,021.54.
As a general proposition the costs awarded in litigation are the costs charged to a litigant by his or her lawyers. Those costs are made up of profit costs and disbursements. The costs awarded represent a degree of indemnity to the litigant who incurred the costs of defending or prosecuting the proceedings. A litigant in person cannot be remunerated for work done in the litigation and therefore cannot be indemnified in relation to the cost of that work. A litigant in person can however, be reimbursed for out of pocket costs or expenses.
Section 117(2A) considerations
Section 117(2A) of the Act requires that the Court shall have regard to certain factors when considering what order, if any, should be made pursuant to s 117(2). Those considerations are addressed as follows.
There is no current detail about the financial circumstances of the parties. In about 2012/2013 the mother bought a property in far north Queensland. She says that she is a student. The father owns and operates a farm in the City 2 area. At one time he had other casual employment. No findings are possible about the precise income and outgoings, assets and liabilities of the parties.
The father did not have legal representation for the proceedings. I was not told that the wife’s representation involved a grant of legal aid.
The important issue about conduct is that the mother failed to appear at the final hearing date. She had leave to attend by telephone and she failed to attend. That probably shortened the hearing but it necessitated an adjournment to allow for an explanation to the mother about a bond.
Three findings were made of a breach of the orders by the mother, without reasonable excuse. In part, those breaches were the catalyst for the proceedings.
Neither party was wholly unsuccessful in the proceedings.
The evidence includes some correspondence from the father to the mother’s solicitor seeking to address alleged failures by the mother to comply with Court orders. There was the father’s letter attached to an email to the mother’s solicitor dated 4 September 2012 which is referred to above. By that letter the father brought to attention his assertion that there had been a number of breaches of the order and said “I treat this very seriously and intend to lodge a contravention order and a enforcement order if they are not complied with at weeks end”. No response to that letter is in evidence but the mother’s solicitor wrote back on 10 September 2012 referring to a personal attendance by the father on his offices that day, including a statement to the effect that the upcoming City 1 visit would proceed and: “I will pass on your message about getting better quality photos of this [S]”.
The father emailed the mother’s solicitor again on 11 September 2012 including the following: “I will again bring to your attention the remaining contravention of court orders. There so far has been no explanation from your client or offer to make up days. I will place a contravention order in by this Friday and it will not be with drawn once submitted.”
On 5 November 2012 the father emailed the mother’s solicitor including the following:
…. Today you informed both myself and [Ms I] (that) [Ms Ricardo] has now relocated to Queensland. I now inform you, your client is in breach of order 3.1 3.2, 3.3, 3.4, 3.5 If this is not rectified by the end of the week I will lodge a contravention order.
I do however offer your client the chance for myself and my partner to care for the child until your client works out what she is doing.
I would hope she relocates to her friends and family in Sydney, as we can then share [the child]. …
This can be done in writing to protect your clients rights and we understand it would only be on an interim basis. … (sic).
There is no record of responses to those offers.
As to any other matters that would be relevant, importantly, the costs claimed by the father were incurred in proceedings which involved 19 allegations of contraventions. Three were established, the father withdrew two allegations and in relation to the balance, his application was dismissed. There would be no basis for an award of costs in relation to the 16 allegations that were withdrawn or dismissed. Quite the contrary. The question is what the overall impact should be on the father’s costs application of the qualified outcome of the proceedings.
Although not of primary importance, assuming that there was an apportionment of the father’s costs by reference to the successful parts of the proceedings, the quantification of costs would necessarily lead to more costs. A court can make an order for costs. If no other basis is specified then the calculation of costs is made on a party and party basis which would provide for a partial indemnity for the father. In my view the evidence is not sufficiently detailed to allow the Court to make a specific assessment of costs. The evidence of the disbursements does not permit the Court to evaluate all of the claims, let alone to identify the costs related to the successful elements of the proceedings, so as to make a considered assessment itself. That would leave open the Court specifying a way in which the costs could be assessed. For arguments sake, the Court could specify that the costs be those relating specifically to allegations 5, 9 and 10 or it could specify some proportion of the father’s costs. The usual order would leave the parties with the option of agreeing on a figure for the specified proportion or taking the issue to an assessor.
The parties are unlikely to agree on an amount of costs and in my strong view, the parties do not have the capacity to efficiently engage in a process of quantifying costs before an assessor. Such a process would likely be prolonged, expensive and burdensome for the parties and for the assessor and ultimately out of all proportion to the costs in issue.
Taking those matters into account, and the starting position established by s 117(1), on balance there should be no order for costs. Some or all of the husband’s claim for the cost of transcripts would fall away in a calculation of party and party costs. Importantly, as to three of 19 allegations the father’s application was successful and as to 16 allegations the application failed.
Application for the Referral of the Papers
By an Application in a Case filed 16 February 2015 the father sought the following order:
1.I ask Justice Loughnan makes orders to refer the Mother to the Australian Federal Police for investigation of obvious and blatant Perjury in an attempt to mis lead (sic) the court while under cross examination between the 18-20 February 2014 and 17-18 November 2014.
Here the father is not seeking relief under Division 13A of Part VII of the Act, nor is he seeking relief under any other provision of the Act. The father is asking the Court to take an administrative step, presumably in aid of the administration of justice. In fact, during the substantive proceedings the father raised the question of referring the papers in relation to allegations of perjury by the mother. Clearly not satisfied with my decision not to refer the papers at that time, the father has brought the current Application. I assume he meant no discourtesy in repeating his request and will set out in some detail my consideration of the issue.
I have no doubt that I could direct that some part of the record in the proceedings be referred to the police or some other public authority with power to investigate and take action on a breach of the law. That could be done in relation to part of the Court’s record which suggests that deliberately false evidence has been given.
In Malpass & Mayson (2000) FLC 93-061 (“Malpass & Mayson”) the Full Court of this Court canvassed some authorities about a Court referring the papers to the relevant agencies in relation to allegations of breaches of the law. In Malpass & Mayson the trial judge had directed that relevant papers be referred to the Deputy Commissioner of Taxation. The focus of the referral in those proceedings was in relation to possible revenue fraud. However, relevant to the issue before me, after reviewing the authorities the Full Court concluded:
31.Despite these authorities we do not think that it necessarily follows that the Court is always under a duty to report the fact of commission of possible offences to relevant authorities including revenue authorities, although it clearly has the power to do so. Questions of degree must be relevant. There are many cases where minor irregularities are revealed in relation to taxation, social security and other issues. We think it unreasonable for the Court to burden itself with a duty to report all of these matters. Different considerations may apply in relation to more blatant and substantial irregularities. We leave the determination of this issue to be determined in a case where the point arises directly. It does not arise here for there is no dispute as to the Court's power to make such a reference, as his Honour did.
It needs to be borne in mind that in relation to evidence of revenue fraud in the context of financial proceedings, the result of the referral may have a direct impact on the subject matter of the proceedings. For example, the pool of assets may be diminished by a re-assessment and penalties. In other words the referral may be necessary for the purposes of the subject proceedings, not just in respect of the general administration of justice.
In Simpson v Hodges [2007] NSWSC 1230 Hall J decided to refer the papers in relation to false evidence and said:
266 The evidence of Mr Richardson having been given on these matters, the question arises as to whether the papers should be referred to the appropriate authority. It is important to observe that such a referral, if it is to be made, simply has the effect of directing the attention of the executive arm of government to a possible breach or breaches of the law so that it may, if it sees fit, investigate the matter and, as a consequence of that investigation, take such steps as it sees to be appropriate: see In the Marriage of P and P (1985) Fam LR 1100 per Lindenmayer J; Normandy Woodcutters Limited v Simpson [2002] NTSC 43 at [53].
267 In a number of cases, the question of a referral of papers has arisen with respect to breaches of revenue laws as disclosed in evidence: see Magafas v Carantinos [2007] NSWSC 416; Petera Pty Limited v FAG Pty Limited [1985] FCA 277; (1985) 7 FCR 375 and Georginis v Kastrati (1988) 49 SASR 371 and the cases referred to in the preceding paragraph. A question of referring the papers equally arises, in my opinion, where the evidence in proceedings discloses an offence or a possible offence involving an abuse of this Court’s process or otherwise concerning the proceedings of this Court.
268 A judicial officer who believes that offences have been committed is under a duty to refer the proceedings to the relevant authority: Normandy Woodcutters (supra) per Mildren J at [53]. Accordingly, where evidence is given in proceedings in this Court that reasonably suggests that an offence has or may have been committed in relation to proceedings conducted before it, the Court has a duty to refer the proceedings. As Mildren J observed in Normandy Woodcutters (supra), referring the papers is not an exercise of judicial power and no findings are made and no injury to anyone’s reputation arises by a mere referral. Nor, as his Honour observed, is the judicial officer required to give anyone an opportunity to be heard in such a matter.
269 In light of the evidence to which I have referred and for the above reasons, the Registrar of this Court will be directed to forward a copy of these reasons for judgment to the Director of Public Prosecutions and to make available, as may be required, the full transcript of these proceedings and the exhibits for inspection by any officers authorised in that behalf by the Director of Public Prosecutions. (original emphasis)
Normally the referral of papers is a matter initiated of the Court’s own motion and arises because of an observation of the presiding judge about written or oral evidence given by or executed by the person who might have breached the law. That said I know of no reason why the issue of referring papers could not be raised by a party to proceedings.
The evidence relied on by the father in relation to this Application is nine closely typed pages[9] of purported examples of the mother misleading this and other courts. In effect what the father seeks to do, is to have his allegations of perjury, not those of the Court, referred to the police. In the substantive proceedings there were three charges in respect of which I found that the mother breached the orders and did not have a reasonable excuse for doing so.
·In relation to allegation 5 the mother failed to establish a reasonable excuse but that failure was not as a result of a finding that she gave false evidence.
·In relation to allegations 9 and 10 the mother’s excuse was in the alternative, that she did not know that she would not be returning to Western Australia in time for the father’s visit to the City 1 contact centre on 6 and 7 October 2012 and that she had a type of breakdown. I was not satisfied that the mother discharged the onus of establishing either proposition. Obviously, that is not to say that the mother perjured herself about those matters. I also noted the mother’s reference to her finances at the time was wrong, but also recorded that the mother had not relied on that evidence as part of an excuse.
[9] The affidavit of the father sworn 2 February 2015
The father’s focus on the mother’s credibility was addressed in the reasons for judgment published by me in the substantive proceedings on 19 December 2014. From paragraph 54 I said the following:
54.It transpired that rather than being aimed at resolving relevant factual disputes much if not all of the focus of the father’s cross-examination was to discredit the mother as a witness. Indeed, even before the conclusion of submissions, the father sought that the mother be dealt with for perjury and later, that her testimony be referred to the Director of Public Prosecutions for consideration of perjury charges. Unfortunately, despite considerable discouragement from the bench, the issues addressed in cross-examination were largely irrelevant or peripheral. The father variously asked the mother about the amount paid by the mother to register her car in Queensland; the sale price of a property in [Sydney Suburb TT]; the cost and nature of medical treatment undergone by the mother in June / July 2012; whether or not the mother received a call from Anglicare at City 1 on 6 October 2012; and whether the $200,000 received by the mother in early September 2012 came from [Mr W]. None of those questions were relevant to the allegations and if any, they had only the most peripheral connection with the mother’s case about a reasonable excuse.
55.Credit findings in Court proceedings are not a relevant end in themselves. Particularly in this jurisdiction where the focus is usually on a history spread over years, if not decades, rather than on a particular incident and where there is often a heightened emotional overlay to interactions between the parties, credit findings are rare. The human brain is not a computer and even the memory of a witness who is otherwise motivated to give careful and frank testimony, is not always reliable. In the process of storing and recalling events, a witness is likely to innocently colour the recollection with his or her perceptions about an event. Two otherwise reliable witnesses can recall the same event in very different terms.
56.When possible and appropriate, credit findings are made to assist in the resolution of disputes about relevant facts. There were few relevant and significant factual issues between the parties where the evidence comprised only the uncorroborated testimony of two or more witnesses. In these proceedings, as is usually the case, disputed facts fall to be determined issue by issue and it is not possible to prefer one witness over another on all issues or to entirely exclude the evidence of one party.
The question is whether I should now refer the papers to the Australian Federal Police in relation to an investigation leading to possible charges of perjury against the mother. Courts have taken different approaches to this topic but in my view, the question of referring the papers remains a matter to be determined on the facts in each case. While judges of other Courts have taken a different stance, there is support for that view in the comments of the Full Court in Malpass & Mayson above. For the reasons I have given, there will be no referral in the circumstances before me.
I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 7 April 2016.
Associate:
Date: 7 April 2016
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