Gravis and Major (Costs)
[2012] FamCAFC 78
•12 June 2012
FAMILY COURT OF AUSTRALIA
| GRAVIS & MAJOR (COSTS) | [2012] FamCAFC 78 |
| FAMILY LAW – APPEAL – COSTS – Outstanding costs issue – In circumstances where the Full Court allowed an appeal against the decision of a Federal Magistrate concerning contravention proceedings commenced by the father against the mother – In circumstances where an indemnity costs order made by the Federal Magistrate had been set aside by the Full Court – In circumstances where, as a result of the appeal, neither party had been wholly unsuccessful in the contravention proceedings – On redetermination of the costs issue, the mother is required to meet one third of the father’s costs of the contravention proceedings – No basis for awarding costs on an indemnity basis. |
| Family Law Act 1975 (Cth) |
| Collins and Collins (1985) FLC 91-603 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123 I and I (No 2) (1995) FLC 92-625 |
| APPELLANT: | Ms Gravis |
| RESPONDENT: | Mr Major |
| FILE NUMBER: | PAC | 2874 | of | 2008 |
| APPEAL NUMBER: | EA | 56 | of | 2009 |
| DATE DELIVERED: | 12 June 2012 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 21 May 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 April 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 263 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Livingstone |
| SOLICITOR FOR THE APPELLANT: | McQiu Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Judge |
| SOLICITOR FOR THE RESPONDENT: | Webb Thom & Associates |
Orders
The appellant mother pay one third of the respondent father’s costs of and incidental to the contravention application filed 18 June 2008, as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gravis & Major (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 56 of 2009
File Number: PAC 2874 of 2008
| Ms Gravis |
Appellant
And
| Mr Major |
Respondent
REASONS FOR JUDGMENT
Introduction
On 1 December 2010, the Full Court (Boland, Thackray and O’Ryan JJ) allowed an appeal against orders made by a Federal Magistrate concerning contravention proceedings commenced by the father against the mother.
The Federal Magistrate had found that the mother contravened a parenting order on seven occasions. He concluded that these breaches fell into the “more serious” category and, on that basis, ordered the mother to pay the father’s costs on an indemnity basis.
The Full Court found the Federal Magistrate had erred in deciding the contraventions were “more serious”, and accordingly set aside the costs order. The Full Court also found error in the finding that the mother was in breach of the orders on three of the occasions alleged. The Full Court left undisturbed the finding that the mother did not have a reasonable excuse for breaching the orders on four other occasions. There was no appeal against the finding that the mother had a reasonable excuse in relation to another breach.
The Full Court decided not to order a rehearing of the three counts in relation to which error had been found. The final outcome, therefore, was that:
· four of the original counts were made out;
· one count was dismissed; and
· the fate of the remaining three counts would never be known.
Although the indemnity costs order was set aside, the question remained whether the mother should pay at least some, if not all, of the costs of the proceedings before the Federal Magistrate. That question now falls for determination by me in the unusual circumstances described below.
Background
The mother and father consented to orders for their children to live with the mother, and for the father to spend time with them each alternate weekend.
On 18 June 2008, the father commenced contravention proceedings, asserting that the children had not been made available to him on eight weekends.
The mother denied she was in breach of three of the eight counts. She admitted the remaining five, but claimed she had a reasonable excuse. The Federal Magistrate accepted she had a reasonable excuse for one breach (“Count 4”) but rejected the balance of her defence.
The Federal Magistrate determined the appropriate penalty for the seven breaches was for the mother to enter into a good behaviour bond and pay the father’s entire costs, quantified at $22,162.50. The father was also allowed 14 additional “make-up” days with the children.
In making the costs order, the Federal Magistrate relied upon s 70NFB(1) of the Family Law Act1975 (Cth) (“the Act”), which provides that where a breach of a parenting order is found to constitute a “serious contravention”, a court “must” make an order for the person in breach to pay “all of the costs” of the other party, unless such an order would not be in the best interests of the child.
In arriving at his decision, the Federal Magistrate recorded that the mother was a health professional, who owned her own home and had an income. He observed it had not been submitted that a costs order would not be in the best interests of the children, and he said any submission to that effect would have been rejected.
His Honour found that notwithstanding the father had failed in relation to Count 4, his entire costs should be paid by the mother. His Honour reasoned:
61.…The failure of one Count has not resulted in the incurring of any additional hearing costs. The failure has not resulted in the hearing being longer. The corollary is true. No less costs would have been incurred and no further hearing time would have been expended.
The Full Court said in the concluding part of its judgment:
171.Having found appealable error in respect of counts 1, 2 and 5, we have considered the practicality of remitting those counts for rehearing. Ultimately we have concluded, for the reasons we have already discussed, that such a course has minimum utility and would involve a lack proportionality [sic] having regard to the time and costs involved.
172.…
173.We are conscious however that the father was successful in respect of four counts, and the question of costs of the proceedings below requires re-determination. We are of the view, on the evidence before us, we could re-determine the issue of costs, thus saving the parties the time and expense of a rehearing on this limited issue. To afford natural justice to the parties we propose, if they wish to make submissions to us on whether or not we should re-determine the costs issue, that they may do so, and the matter can be relisted before us by arrangement with the Appeal Registrar in the Full Court week scheduled for Sydney commencing 7 December 2010. In the event the parties do not seek a relisting we will re-determine the issue of the costs of the proceedings before the Federal Magistrate.
Neither party sought a relisting. In these circumstances, the Full Court should have proceeded to redetermine the issue of the costs of the proceedings before the Federal Magistrate. Regrettably, this did not occur prior to Boland and O’Ryan JJ both retiring from office in February 2011.
Section 28(4) of the Act deals with the exercise of jurisdiction by the Full Court in circumstances where one member of the bench retires, but no provision is made to deal with the retirement of two. The Chief Justice, does, however, have authority to delegate a single judge to hear an appeal from a Federal Magistrate pursuant to s 94AAA(3) of the Act. After affording procedural fairness to the parties, the Chief Justice has now delegated me to deal with the one remaining aspect of the father’s appeal.
Law applicable to the father’s application for costs
The Full Court’s finding that the contraventions were not “more serious” renders s 70NFB of the Act inapplicable. Instead, s 70NEB applies, since it deals with the court’s powers where a contravention has been proven, but does not fall into the more serious category. Section 70NEB(1) provides that a court “may”, inter alia, order the person who committed the contravention to “pay some or all of the costs of another party…to the proceedings”.
Section 70NEB needs to be read in conjunction with s 117(1) of the Act, which provides that:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
It will be noted that whilst s 117(1) is made subject to s 70NFB(1), it is not made subject to s 70NEB(1). The effect is that in proceedings where a contravention has been proven, but the contravention does not fall into the “more serious” category, each party will bear his or her own costs. This proposition, however, is subject to s 117(2), which relevantly provides:
(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…make such order as to costs…as the court considers just.
Subsection 117(2) is, in turn, made subject to s 117(2A), which 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.
The Full Court in Collins and Collins (1985) FLC 91-603 at 79,877 described the discretion conferred by s 117 as being a “broad” one, and noted that the s 117(2A) factors are not to be read in a restrictive way. The Full Court in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123 at 130 [41] also made clear that any one of the factors referred to in s 117(2A) may be the sole foundation for an order for costs. Nevertheless, as an earlier Full Court said in I and I (No 2) (1995) FLC 92-625 at 82,277, the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.
Discussion of relevant factors
I have limited material on which to make my determination, given the absence of findings by the Federal Magistrate, and the limited submissions made to him on the topic. However, very sensibly, neither party sought that this remaining discrete issue be remitted for hearing in the Federal Magistrates Court.
I turn then to consider, as best I can, each of the s 117(2A) factors.
The financial circumstances of the parties
The Federal Magistrate made no findings in relation to the parties’ financial positions, save his uncontested reference to the mother being a health professional, who owned her own home and had an income.
The father gave his occupation as “[IT] consultant”, and said he lived in a unit. However, in the absence of other findings or uncontroversial evidence, I am not in a position to determine his financial position.
Legal aid
There was no suggestion either party was in receipt of legal aid.
The conduct of the parties in relation to the proceedings
The Federal Magistrate made no findings concerning the conduct of the parties in relation to the proceedings, and nothing emerges from examination of the record to suggest this would be a relevant factor. The matter had not been reached on occasions prior to it finally being heard, but the Federal Magistrate recorded that this was the Court’s fault, and not the fault of the parties. (Transcript, 16 February 2009, page 87).
Whether the proceedings were necessitated by the failure of a party to comply with previous orders
The proceedings were, in a sense, necessitated by the failure of the mother to comply with orders of the court (at least to the extent that it was found that she had failed to do so without reasonable excuse).
Whether either party has been wholly unsuccessful
Ultimately neither party was wholly unsuccessful. The mother succeeded in defending one of the eight counts, and the Full Court found error in the adverse finding made against her in relation to three of the other counts. The father was successful in pursuing the remaining four counts.
Offers
This factor is not relevant.
Other relevant matters
The father conceded in cross-examination at the trial on 16 February 2009 that the mother had complied with the parenting order since the matter had last been before the court on 2 October 2008. (Transcript, 16 February 2009, page 29). In my view, that is a matter of relevance in determining whether costs should be ordered, given that one of the primary reasons for pursuing a contravention application is to ensure future compliance. On the other hand, I accept that seeking “make-up” time is another proper reason for pursuing a contravention application, and the father was successful in obtaining such an order.
Ultimately, I consider the extent to which the father was, in fact, able to spend time with the children, including on occasions to which he was not “entitled” under the terms of the order, is relevant in determining whether he should recover the costs associated with his application. The full history of the father’s time with the children was set out in paragraphs 133 to 159 of the judgment of the Full Court. In that part of its discussion, the Full Court also drew attention to confusion on the part of both parents in relation to the operation of the orders (which were later varied to avoid further confusion) and the desirability of adopting a flexible approach to the implementation of parenting orders.
Conclusion
In the exercise of the undoubtedly wide discretion afforded by the Act, taking all of these matters into account, I have concluded the mother should be required to meet only one third of the father’s costs. I am not satisfied there is any basis upon which those costs should be ordered on an indemnity basis.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of Justice Thackray delivered on 12 June 2012.
Associate:
Date: 12 June 2012
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