Ebsworth and Ebsworth

[2019] FamCA 409

FAMILY COURT OF AUSTRALIA

EBSWORTH & EBSWORTH [2019] FamCA 409

FAMILY LAW – CHILDREN – Review of Senior Registrar decision – Consent orders – Parenting.

Family Law Act 1975 (Cth) s 117

Commissioner of Taxation v Day [2007] FCAFC 19
Makhoul v Barnes (1995) 60 FCR 572
Reid & Lynch (2010) FLC 93–448
Fitzgerald v Fish and Anor (2005) 33 Fam LR 123
Lenova & Lenova (Costs) [2011] FamCAFC 141

APPLICANT: Mr Ebsworth

RESPONDENT: Ms Ebsworth

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1037 of 2013

DATE DELIVERED: 3 June 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 3 June 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Delaney Lawyers

SOLICITOR FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The Application in a Case filed by the father on 29 May 2019 be dismissed.

2. The father pay the mother’s costs associated with that Application in a Case on a party/party basis, within 28 days of those costs being agreed or assessed.

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 Ebsworth & Ebsworth 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 1037 of 2013

Mr Ebsworth

Applicant

And

Ms Ebsworth

Respondent

EX TEMPORE JUDGMENT

1. By way of an Application in a Case filed on 29 May 2019, Mr Ebsworth (“the father”) sought that certain consent orders made by Senior Registrar Campbell on 3 May 2019 be set aside. The father framed that application, as follows:

   I seek orders 9 and 10 be removed from the orders dated 3 May 2019, as they were not consented to and were, clearly, not intended to be part of the orders made that day by the Senior Registrar.

2. Orders 9 and 10 made by the Senior Registrar on 3 May 2019 are, as follows:

   BY CONSENT AND PENDING FURTHER ORDER IT IS ORDERED:

   9. That the Father be and is hereby restrained from

   9.1 Assaulting, threatening, stalking, harassing or intimidating the mother;

   9.2 Allowing each of the children to assault, threaten, stalk, harass or intimidate the other child;

   9.3 Discussing any Court proceedings between the parties with the children, or allowing a third party to discuss such proceedings with the children;

   9.4 Denigrating the other party to the children, or within their hearing, or allowing a third parent to denigrate the other party to the children, or within their hearing, or allowing the children to remain in a place where the other party is being denigrated;

   9.5 Attending [X’s] school without first having obtained the consent of the mother, except in the case of medical or other emergency.

   10. That the mother be and is hereby restrained from

   10.[1] Assaulting, threatening, stalking, harassing or intimidating the Respondent;

   10.[2] Allowing each of the children to assault, threaten, stalk, harass or intimidate the other child;

   10.[3] Discussing any Court proceedings between the parties with the children, or allowing a third party to discuss such proceedings with the children;

   10.[4] Denigrating the other party to the children, or within their hearing, or allowing a third parent to denigrate the other party to the children, or within their hearing, or allowing the children to remain in a place where the other party is being denigrated;

   10.[5] Attending [Y’s] school without first having obtained the consent of the Respondent, except in the case of medical or other emergency.

3. Those orders replicate orders 7 and 8 of the orders proposed by Ms Ebsworth, (“the mother”), in her “Outline of Case” document filed in Court on 10 April 2019. 

4. I have listened to the recording of the proceedings on 3 May 2019.  Relevantly, I note the following extract from those proceedings:

   Senior Registrar: I do not believe that I have sufficient foundation to make the restraining orders against each of the parties respectively. Although, if that parties were prepared to indicate consent to mutual restraining orders I would be prepared to consider that on a consent basis. Do you see what I mean Sir? The orders proposed by the mother seek some restraining orders. Orders restraining you and then there are also orders proposed that equally restrain the mother in the same terms as I understand them. Would you be prepared for me to make those orders by consent? They protect each of you equally.

   The father: Yes, Sir.

   Senior Registrar: Well then, by consent, I make orders 7 and 8 of the orders proposed in the mother’s minute of order set out on pages 3 and 4 of the case outline.

5. Having regard to that recording, I am satisfied that Senior Registrar Campbell did, in fact, make orders 9 and 10 by consent of the parties, and, accordingly, the father’s Application in a Case filed on 29 May 2019 is misconceived. That is because the Application in a Case seeks a review of the decision of the Senior Registrar, presumably, in accordance with r 18.10 of the Family Law Rules 2004 (Cth). That Rule provides for the power of the Court on review of a registrars decision.

6. In circumstances where, as in this case, the relevant orders were made by consent, they remain the orders of the Court, unless and until an application is made to vary them. 

7. In that regard, in the decision of the Federal Court of Australia in Commissioner of Taxation v Day [2007] FCAFC 193 at [15], their Honours Bender, Dowsett and Edmunds JJ applied the decision of Makhoul v Barnes (1995) 60 FCR 572 at [582], where the Full Court of the Federal Court said:

   … it seems now to be clear that a judgment entered by consent is as much a judgment as one obtained after a full argument and as such capable of founding an estoppel: see Spencer-Bower and A K Turner Res Judicata (2nd ed, 1969) p 37 and cases cited at note 5.  Thus, provided it is clear what the issues involved in the consent order may be, those issues will be taken as having been conclusively determined so as to prevent [their] being raised in subsequent proceedings: cf Thompson v Moore (1889) 23 LR Ir 599. 

8. A similar principle was applied by the Full Court of this Court in Reid & Lynch (2010) FLC 93–448 at 229, where their Honours Finn, O’Ryan & Strickland JJ confirmed that a consent judgment, intended by the parties to dispose finally of substantive proceedings between them, will give rise to a res judicata.  In that way, as the Full Court said in Reid, “Consent orders absolve the court from the duty to make a decision on the merits and convert an agreement [of the parties] into a judicial decision”.

9. Accordingly, the orders made by Senior Registrar Campbell on 3 May 2019 determine, as between the parties, the interim applications heard by the Court on that date. 

10. In those circumstances, the potential remedy available to the father is not, as he has done, to seek a review of the Senior Registrar’s decision, but rather, subject to providing justification, to seek a variation of the relevant orders.  Clearly, the father’s application is not framed in that manner. 

11. In that context, in Reid & Lynch (supra), the Full Court referred to the well-known decision of Rice & Asplund (1979) FLC 90-725, among other cases, noting that the Court always retains the power to review parenting orders on the basis that the paramount consideration for determining such applications is the best interests of the child/ren.

12. In summary, the application before the Court today is not an application to vary the orders made by Senior Registrar Campbell on 3 May 2019, but rather, seeks a review of those orders on the basis that, despite their wording, he did not consent to them.  As I have indicated, that application is based on a false premise.  Clearly, the father indicated to the Senior Registrar that he consented to those orders being made and the father has agreed that the extract of the recording of the proceedings to which I have referred reflects that position of consent.

13. On that basis, I dismiss the father’s Application in a Case filed on 29 May 2019.

Costs

1. The mother has made an application for the father to pay her costs, on the basis that he has been wholly unsuccessful in his application.

2. The father has indicated that his financial circumstances are such that he would find it difficult to meet an order for costs.  In that regard, he notes that he is no longer able to afford legal representation. 

3. I am not in possession of detailed information regarding the parties’ financial circumstances. However, it remains the case that the mother has been put to expense as a result of the misconceived application made by the father. 

4. The Court’s power to award costs is set out in s 117 of the Family Law Act 1975 (Cth), as follows:

   (1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

   (2)  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.

   (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.

5. Authorities are clear that, in making an order for costs, the Court does not need to be satisfied of each and every matter referred to in paragraphs (a) through to (g): Fitzgerald v Fish and Anor (2005) 33 Fam LR 123 at [41].

6. I have considered each of those matters set out in s 117(2A), including the father’s argument that, as a result of the matter not being heard and determined on 10 April 2019, he has incurred additional costs.

7. However, the issue I have to consider is costs in respect to today’s proceedings.

8. The father argues that such an order would cause him financial hardship. However it is clear that impecuniosity is not, of itself, a bar to a costs order: Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].

9. Most relevantly for these proceedings, I have had regard to s 117(2A)(e), and the fact that the father has been wholly unsuccessful in his application. This is in circumstances where it would have been relatively easy for the father to have checked his recollection of the proceedings before the Senior Registrar by obtaining a copy of the brief transcript of the day’s proceedings. His failure to do so has resulted in the wife incurring unwarranted expenses and, in those circumstances, it would be unfair for her to be unable to recover her costs associated with the husband’s application.

10. On that basis, I will make an order that the father pay the mother’s costs referable to that application, on a party-party basis.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 3 June 2019.

Associate:

Date:  03.07.2019