EASTON & EASTON (No.2)

[2015] FCCA 1834

FEDERAL CIRCUIT COURT OF AUSTRALIA

EASTON & EASTON (No.2) [2015] FCCA 1834

Catchwords:
FAMILY LAW – Children – contravention – parenting orders – contravention of parenting orders – where respondent found to have contravened parenting orders without reasonable excuse on two occasions – consequential orders – less serious contravention – where no previous contraventions of primary order – parties to attend a post-separation parenting program.

FAMILY LAW – Costs – whether respondent should pay applicant’s costs – consideration of parties’ financial circumstances – where respondent in receipt of legal aid – where respondent not wholly unsuccessful – proceedings necessitated by failure to comply with previous order of the court – where respondent ordered to pay half the applicant’s costs.

Legislation:

Family Law Act 1975 (Cth), ss.70NEB, 70NEC, 117

Federal Circuit Court Rules 2001, Sch.1, Part 1

Cases cited:
Easton & Easton [2015] FCCA 1269

Applicant: MR EASTON

Respondent: MS EASTON

File Number: SYC 6515 of 2013

Judgment of: Judge Scarlett

Hearing date: 1 July 2015

Date of Last Submission: 1 July 2015

Delivered at: Sydney

Delivered on: 1 July 2015

REPRESENTATION

Solicitor for the Applicant: Mr Khedr

Solicitors for the Applicant: Cambridge Law

Solicitor for the Respondent: Ms Kaiti

Solicitors for the Respondent: CBD Legal

ORDERS

1. The Respondent and the Applicant must each attend a post-separation program nominated by the Independent Children’s Lawyer within 28 days.

2. Upon being informed of the nominated post–separation parenting program the Respondent and the Applicant must do all things necessary to enrol in the said program within a period of 28 days.

3. The Respondent is to pay one half of the Applicant’s costs and disbursements calculated according to Schedule 1 Part 1 of the Federal Circuit Court Rules 2001 fixed in the sum of $2,528.00.

4. The Respondent is allowed four (4) months to pay the costs referred to in the immediately preceding Order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6515 of 2013

MR EASTON

Applicant

And

MS EASTON

Respondent

REASONS FOR JUDGMENT

Further Proceedings

1. On 15 May 2015 the Court found that the Respondent had, without reasonable excuse, contravened the primary Orders in this matter on two separate occasions. One other count was dismissed and the Respondent was found to have established a reasonable excuse in respect of two other counts.

2. As a result, there are two matters that need to be decided. First, the Court needs to consider what orders should be made in respect of the two contraventions that have been established. Second, there is the question of costs.

An Appropriate Sanction

1. Section 70NEA of the Family Law Act 1975 (Cth) provides that where the Court is satisfied that a person has contravened a primary order without a reasonable excuse and no Court has previously imposed a sanction in respect of an earlier contravention of the primary order, then the Court may deal with the matter under Subdivision E of Division 13A, unless the Court is satisfied that the person has behaved in a way that showed serious disregard for his or her obligations under the primary order.

2. I have not been informed that any court has previously made an order imposing a sanction or taken an action in respect of a contravention of the primary order. Also, I am not satisfied that the Respondent can be described as having behaved in a way what showed a serious disregard for her obligations under the primary order.

3. Consequently, I propose to exercise the powers given to the Court under subsection 70NEB(1) of the Family Law Act 1975. That subsection provides that the Court may do any or all of the following:

   a)direct the person, and another specified person, to attend a post-separation parenting program;

   b)make another parenting order that compensates the other person for time he did not spend with the child (or children, in this case);

   c)adjourn the proceedings to allow a party to apply for a further parenting order;

   d)make an order requiring the Respondent to enter into a bond under section 70NEC of the Family Law Act;

   e)make an order requiring the Respondent to compensate the Applicant for reasonably occurred expenses; and

   f)Make an order for costs against the person.

4. I have considered all of the above matters.

5. The relationship between the two parents is poor and their communication is acrimonious, when they communicate at all. It would appear that a post-separation program would be of assistance to both parents and I propose to require both of them to attend such a program, not necessarily together. There is an Independent Children’s Lawyer in the parenting proceedings that are on foot, so the ICL will be the one to nominate the appropriate post-separation parenting program.

6. There are already proceedings on foot to vary the earlier parenting orders, by means of an Application filed on 20 October 2014, so that neither of the options in paragraphs (b) or (c) would appear to be appropriate.

7. I am not of the view that a bond under s.70NEC is necessary or appropriate.

8. There is no application for compensation for reasonably incurred expenses.  

Costs

1. Paragraph 70NEB(1)(f) makes provision for an order that the person who committed the current contravention pay some or all of the costs of the other party to the proceedings. In my view, the Court must consider the matters in subsections 117(2) and (2A) of the Act.

2. The financial circumstances of the parties are relatively modest. Ms Kaiti for the Respondent told the Court that her client was in receipt of a grant of Legal Aid. I am not aware that the Applicant is legally aided.

3. The conduct of the proceedings was not particularly satisfactory. The matter took place in fits and starts over several days, on 15 December 2014, 12 February, 4 March and 11 May 2015, with the decision being handed down of 15 May (Easton & Easton[1]).

   [1][1] [2015] FCCA 1269

4. The Respondent was not wholly unsuccessful in the proceedings, as one count was dismissed and she established a reasonable excuse in respect of another two counts. The Respondent was found to have contravened the primary order on two occasions with reasonable excuse.

5. In my view, the Respondent should pay an amount equivalent to one half of the Applicant’s party and party costs, calculated in accordance with Part 1 of Schedule 1 of the Rules. I calculate the proper amount at $5,056.00, half of which would be $2,528.00. I will allow four months to pay.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  2 July 2015