Deane and Pace (No. 2)

[2017] FamCA 287

FAMILY COURT OF AUSTRALIA

DEANE & PACE (NO. 2) [2017] FamCA 287

FAMILY LAW – COSTS – Application for costs of contravention application – Where the mother was found to have contravened parenting orders – Where the mother placed no evidence before the Court of her financial circumstances – Where the proceedings were necessitated by the mother’s failure to comply with previous consent orders – Costs ordered – Where there is no basis asserted on which costs should be assessed other than on a party and party basis – Where costs can also be ordered on a finding of contravention pursuant to s 70NEB(1)(f) of the Family Law Act 1975 (Cth) – Mother ordered to pay a specified amount towards the father’s costs.

Family Law Act 1975 (Cth) ss 70NEB(1)(f), 117(2A)

APPLICANT: Mr Deane

RESPONDENT: Ms Pace

FILE NUMBER: SYC 2263 of 2008

DATE DELIVERED: 10 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: IN CHAMBERS

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Phillip A Wilkins & Associates

Orders

IT IS ORDERED

1. That within three months of the date of this order, Ms Pace pay to Mr Deane, the sum of $5,000 on account of the costs of the Application – Contravention filed 16 December 2015.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Deane & Pace (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2263 of 2008

Mr Deane

Applicant

And

Ms Pace

Respondent

REASONS FOR JUDGMENT

1. On 23 February 2017, judgment was delivered and orders made in relation to an Application – Contravention filed by the father, Mr Deane. The Court found that, on three separate occasions in November and December of 2015, the mother contravened orders for the parties’ child to spend time with the father.

2. Also before the Court was an application to re-instate the contact arrangements which had been in place before the contraventions. Orders were made for the resumption of the time the child spent with the father.

3. In the contravention proceedings, the father sought “make up time” but I declined to make an order for “make up time” because the orders which were put in place provided for the child to spend three out of four weekends with the father and any more time would not have been workable.

4. On 23 February 2017, the father’s application for costs was adjourned because there was insufficient evidence before the Court to deal with the relevant matters. The mother was represented at the hearing of the application.

5. Orders were made that each party file any further evidence and any written submissions in relation to costs within 28 days of the date of the orders.

6. The father has filed an affidavit sworn 16 March 2017. No material has been filed by the mother.

7. The determination is governed by the provisions in s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) which are set out below:

   (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.

1. In addition, it is noted that an order for costs is one of the penalties in relation to contravention provided by s 70NEB(1)(f) of the Act.

2. There is no evidence before the Court of the relative financial circumstances of the parties. The father in his affidavit deposed to “limited earning capacity” and the fact that he has borrowed money from family and on credit cards to fund the proceedings. However, there is no evidence of his earnings, outgoings, assets or liabilities.

3. The mother has placed no evidence before the Court of her financial circumstances.

4. Neither party was in receipt of legal aid.

5. The father does not assert that anything in the mother’s conduct of the proceedings aggravated the costs.

6. The proceedings were necessitated entirely by the mother’s failure to comply with previous orders made by consent.

7. The mother, who pleaded that she had a “reasonable excuse” in relation to each allegation of contravention, was entirely unsuccessful in relation to each allegation.

8. There is no evidence of any offer of settlement.

9. It is appropriate that the mother, in all the circumstances set out, make a contribution towards the father’s costs.

AMOUNT OF COSTS

1. The contravention application before the Court was filed on 16 December 2015.

2. The relevant documents filed in the father’s case were an Application – Contravention and an affidavit in support of the application. Excluding annexed documents, the affidavit contained 14 paragraphs. The father also filed an affidavit of the paternal grandmother but that affidavit did not address the three contraventions asserted by the father against the mother and was thus not relevant to the proceedings.

3. Annexed to the father’s affidavit in support of costs were itemised memoranda of fees from his solicitors. The fees were charged in accordance with a costs agreement and not at scale.

4. There is no basis asserted on which fees should be assessed other than on a party and party basis. There is no evidence of the fees which would have been incurred if calculated on that basis.

5. It is not possible to assess what the appropriate amount would be, particularly as the itemised memoranda make no attempt to isolate those items that refer to the application under consideration.

6. Doing the best I can on the limited evidence available, I propose to order that the mother pay $5,000 towards the father’s costs both on the basis of s 117(2A) of the Act, and by way of penalty pursuant to s70NEB(1)(f) of the Act.

7. Since I have no evidence of the mother’s financial position, I will allow her three months to pay the sum assessed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 10 May 2017.

Associate

Date:  10/5/2017