Hale and Hale
[2012] FMCAfam 684
•27 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HALE & HALE | [2012] FMCAfam 684 |
| FAMILY LAW – Costs – application for costs following contested contravention of children’s orders proceedings – applicant commenced proceedings following failure of children concerned to attend for holiday time – parties live interstate following contested relocation proceedings – previous contested proceedings concerning living arrangements of children – respondent criticised for failing to support children’s relationship with father – contravention proceedings dismissed – reasonable excuse established – mother seeks cost – father opposes application for costs citing mother’s previous poor behaviour – matters to be considered in costs application. |
| Family Law Act 1975, ss.69ZN, 117(1), 117(2), 117(2A), 117(2A)(f) Federal Magistrates Court Rules, rr.21.02(2), 21.10, 21.15, 25B.04 |
| Hale & Hale (No.2) [2009] FMCAfam 873 Hale & Hale [2011] FMCAfam 1107 In the marriage of I and I (No.2) 22 Fam LR 557 Penfold v Penfold (1980) 5 Fam LR 517 |
| Applicant: | MS HALE |
| Respondent: | MR HALE |
| File Number: | ADC 3419 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 29 June 2012 |
| Date of Last Submission: | 29 June 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 27 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kane |
| Solicitors for the Applicant: | Elringtons |
| Counsel for the Respondent: | Ms Lewis |
| Solicitors for the Respondent: | Lessli Strong & Associates |
ORDERS
The applicant Mr Hale pay the respondent Ms Hale the costs of the contravention proceedings herein fixed in a sum of eight thousand two hundred dollars ($8,200.00) within twenty eight (28) days of the date of these orders.
The application for costs is otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hale & Hale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3419 of 2007
| MS HALE |
Applicant
And
| MR HALE |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to costs. The applicant for costs is Ms Hale “the mother”. The respondent to her application is Mr Hale “the father”. The parties are the parents of three children, [X] born [in] 1996 and twins, [Y] and [Z] born [in] 1999.[1]
[1] The parties married in 1989. They have been separated since March of 2002 and are long divorced. In these circumstances the convention of referring to them as husband and wife in these reasons for judgment seems inappropriate.
Mr and Mrs Hale separated over a decade ago now. Since that time, they have been engaged in several protracted pieces of litigation. Initially, the mother sought property settlement orders and more importantly, in the context of the current proceedings, the court’s authority to move with the children from [D] to Adelaide.
The father has been [living on property omitted] at [D], in Southern New South Wales, for all of his life. The parties themselves spent their married life on the [property] and each of the children was born in [D].
In these circumstances, the father was vehemently opposed to the children moving away from [D]. His position was that the children should be parented in a shared care arrangement, moving between their parents respective households on a weekly basis. Necessarily, this regime would have entailed the mother remaining indefinitely in [D], against her wishes.
These two issues were determined by Faulks J (as he then was) in the Family Court at Canberra in May of 2004. It was determined that
Ms Hale and the three children could move to live together in Adelaide. It was also ordered that the three children spend regular periods of time with their father, at the [property] in [D], where they had grown up, during school holidays.
Other orders were made in respect of the division of property, particularly that the father should pay the mother a significant sum of money and he should retain the [omitted] property in [D]. Both the children’s orders and the property orders were subject to appeal by the father.
The father was unsuccessful in respect of his appeal against the order permitting the relocation of the children to Adelaide but was partially successful in respect of the property aspect of the matter, as the amount of money, which he was initially required to pay to the mother was reduced.
In order to understand the current cost proceedings, it is necessary to place them in context and have regard to two earlier decisions made by me.[2] The first set of proceedings was brought by the father, who sought to revisit the parenting arrangements inaugurated by Faulks J in 2004. The second set relate to contravention proceedings commenced by him following the determination of this application.
[2] See Hale & Hale (No.2) [2009] FMCAfam 873 and Hale & Hale [2011] FMCAfam 1107
Briefly, at first instance, it was the father’s position that the mother was incapable of supporting his relationship with three children concerned and was intent on alienating their affections from him. In those circumstances, he argued that the only viable arrangement by which the children could have a meaningful level of relationship with both their parents was if they lived predominantly with him in [D] and spent regular periods of time with their mother in school holidays. This was the rationale for his application.
The father commenced this round of proceedings in June of 2007. At this stage, [X]’s relationship with her father was strained and she was apparently unwilling to go to [D] to spend time with him. He feared that the twins were likely to follow their older sister’s lead, with their mother’s acquiescence, and elect not to visit him at the [property].
Ms Hale denied the assertion that she was, in any way, manipulating the children’s affections with their father. It was her position that the children were reacting to a number of incidents of poor parenting, in their father’s home, and were reluctant to spend time with him for understandable reasons.
This round of proceedings was difficult and protracted. An order was made for each of the children to be independently represented. In addition, an experienced child psychologist, Dr B, was engaged to provide a number of assessments of the family, particularly the views of the children concerned and what were the factors at play in shaping those views, particularly in terms of their alleged resistance to visiting their father in [D].
Ultimately, for reasons provided at some length, I determined that the best interests of the children would be served if they remained living in the existing regime. By the time of judgment, it was clear that [X] had become alienated from her father. [Y] had continued to see her father regularly, whilst there had been intermittent difficulties so far as [Z] was concerned.
However, although I ultimately elected to accede to the mother’s position, I was not without criticisms of her behaviour, particularly in respect of her attitude towards the father and her capacity to support a meaningful level of relationship between all of the children concerned and their father.
Some of the flavour of the reasons for judgment in the case can be gleaned from the following passages:
“… I am of the view that there is much to be critical of in Ms Hale’s parenting of the three children concerned in terms of her impaired capacity to facilitate their paternal relationships and her propensity to expose the children to her negative views of Mr Hale.
However, as outlined above, I do not think that her behaviour and attitude is the sole reason why [X] and more recently [Z] have become estranged from their father. In these circumstances, I must be careful not to impose an unduly prescriptive solution to the problem.
In these circumstances, I have some grave concerns that it is not likely to be in the children’s best interests for an extreme solution to be imposed. In this regard, I believe that it is likely to be more helpful for the court to explore therapeutic means by which the attitudes of both the children and the mother may be changed.
Ms Hale’s position, as advanced by her counsel Mr Kane, is that the process of these proceedings has caused her to reflect on the longstanding impasse between [X] and her father, which has more recently also involved [Z] and enabled her to come to the understanding that this situation is not only Mr Hale’s problem, but also hers. As such, in order to solve the problem and in order to protect [Y] from following in her sisters’ footsteps, she has come to the realisation that the court is likely to consider a remedy she would regard as draconian.
Ms Hale is correct to believe that the court has earnestly considered a change of living arrangements for [Y] and [Z], particularly in the light of Dr B’s evidence regarding the inevitability of [Y] being unable to resist the unconducive nature of her mother’s household, so far as the maintenance of the children’s paternal relationships is concerned.
Ms Hale’s evidence is that she has now seen the error of her ways in this regard. Mr Hale greets this assurance with incredulity, in the light of his experience to date, particularly at the [omitted] Hospital. The independent children’s lawyer reserves her ultimate judgement on the issue.
For the court the question is, to coin the phrase used by Benjamin J, has Ms Hale “turned the Titanic around in time” and as such should it defer the possible implementation of the orders sought by Mr Hale, which are likely to be, of themselves, highly problematic and liable to precipitate serious and possibly unforeseen consequences?
I am somewhat sceptical about the mother’s self professed “road to Damascus” realisation, which has the flavour of a tactical change of tack. However, I must remain focused on achieving what I consider will be the best outcome for all three children, rather than on punishing Ms Hale for her past omissions.”[3]
[3] See Hale & Hale (No.2) [2009] FMCAfam 873 at paragraphs 461 – 469
Ultimately, and over the strenuous objections of Mr Hale, I determined to approach the case in what can be characterised as a “therapeutic mode”. This was the approach advocated by the independent children’s lawyer and Dr B. It involved the children and indeed
Ms Hale engaging in a course of counselling designed to facilitate the children seeing their father regularly, during school holidays, as the orders of the court envisaged.
In order to facilitate this therapeutic approach, the appointment of the independent children’s lawyer was extended for a period of twelve months from the date of judgment in the matter (21 August 2009). In this period, it was envisaged that the independent children’s lawyer would hold a role of oversight, with a view to ensuring that the children were supported and encouraged to spend time with their father, during school holidays, as the court ordered.
Accordingly, the independent children’s lawyer was discharged on 21 August 2010. There is no controversy between the parties that [Y] and [Z] went to [D], as required, between mid-2009 and the mid-year school holidays of 2010. Thereafter, the children were due to leave Adelaide for Canberra on 25 September 2010 but did not board the aircraft, on which seats had been booked for them to travel to Canberra.
This event was the catalyst for the father to commence contravention proceedings against the mother in November of 2010. Given the preceding history, particularly the recent discharge of the independent children’s lawyer, he assumed the mala fides of the mother. It was his position that it could be no coincidence that as soon as the independent children’s lawyer ceased her role of oversight, the mother assumed her machinations designed to secure the estrangement of the twins from his affections.
In addition to the allegation that the mother had failed to enable [Z] and [Y] to spend time with him from 25 September 2010 to 2 October 2010, the father brought a number of other contravention applications, which related to alleged failures of the mother to provide information to him about the children and to engage both herself and the children in the process of counselling, envisaged in the court’s orders, which inaugurated the therapeutic approach to the maintenance of the children’s relationship with their father.
Ms Hale, as she was entitled to do, denied the gravamen of the various charges against her. It was her position that she had a reasonable excuse in respect of each of the allegations against her. In particular, she asserted that [Z] and [Y] were free agents, who had decided not to board the aircraft independently of her. She was not present at the airport at the time, having deputised the task of delivering the children to the airline staff to a friend of hers.
Once again, there was a lengthy hearing in respect of the contravention proceedings. At this time, the parties had been in almost constant litigation for around ten years. As such, their capacity to compromise with one another or see the other’s point of view was close to zero, if not totally non existent. They communicated, in the main, through emails or, particularly in Mr Hale’s case, through lawyer’s letters.
Ultimately, for reasons again which were provided at length, I determined that none of the contravention charges had been made out and each therefore was dismissed. There remains the issue of costs. The contravention proceedings were protracted and complex. Each party was represented by counsel.
Necessarily each has incurred substantial legal costs. From both parties’ points of view, much was at stake in the contravention proceedings. The father sought vindication for his stance in the earlier proceedings, which was rooted in his suspicion of the mother and his conviction that she would do whatever she could to alienate the twins from him.
From the mother’s perspective, in the light of the court’s previous comments about her, an adverse finding had the potential to result in significant penalties being imposed upon her. A contrary finding was also likely to precipitate a further agitation of the issue of where the children should predominantly live. For these obvious reasons, the contravention proceedings were hard fought.
The normal rule in civil proceedings is that costs follow the event. Essentially the unsuccessful party pays the costs of the party who has succeeded. This is not the position in family law proceedings. Rather, the starting point is that each party should bear his or her own costs.
The rationale for this rule is that the subject matter of family law proceedings is intensely private, dealing as it does with arrangements for the care of children and the division of property. Necessarily such issues precipitate strong emotions in the parties concerned. In addition, the law pertaining to such decisions is discretionary, based upon the court’s assessment of very many factors.
Accordingly what will be the ultimate outcome of family law proceedings may be difficult to predict with certainty. Inevitably, in such circumstances, the parties concerned will each be able to present valid and understandable reasons as to why they have proceeded with an application to court, including pressing on to judgement.
In children’s cases, these reasons invariably relate to the love and concern held in respect of the child or children concerned; in property cases, to the financial moment of the decision concerned, which may arise after many years of personal endeavour and effort to secure the property sought to be divided by court order.
Essentially the parties concerned are each able to present valid proposals as to how a difficult and controversial situation should be resolved and the strong feelings inevitably created by the situation may stand in the way of easy compromise. Considerations such as this make it potentially unjust for there to be any rule that costs should routinely be awarded to a successful party.
However, notwithstanding these considerations, the court remains entrusted with a discretion to award costs in appropriate circumstances, where it is just to do so. One area particularly germane to the exercise of this discretion concerns contravention proceedings, given the idiosyncratic nature of such proceedings.
Contravention proceedings arise in circumstances where the court has previously made a determination of what is the appropriate outcome in the case concerned – in children’s proceedings, what is the outcome in the best interests of the child or children concerned; in property proceedings, what is the just and equitable outcome.
Accordingly the applicant in contravention proceedings necessarily asserts that the other party has wantonly defied or frustrated a properly considered outcome without reasonable excuse. As such the applicant concerned asserts he or she has been compelled to commence contravention proceedings to secure adherence to the order to which he or she is entitlement by virtue of the court’s earlier determination.
If it is subsequently established that the contravention proceedings were justified because of non compliance with the court’s order, it is the normal rule that the guilty party pays the costs of the wronged party because it was that party’s malfeasance which was the catalyst for the proceedings in the first place.
It is a significant thing for a party to assert that a court’s order has been contumaciously defied. For that reason, it behoves the protagonist of contravention proceedings to make sure that he or she is on firm ground before inaugurating such proceedings, which have been characterised as quasi criminal in nature, as they involve allegations of a significant defiance of the court’s authority, which may result in the imposition of penalties if established.
Given the gravamen of contravention proceedings, if it is subsequently established that there was no such justification for the proceedings, it usually follows that the party who has brought the unwarranted proceedings should pay the costs of the party wrongfully maligned. It being a not infrequent occurrence that contravention proceedings are brought maliciously or without proper forethought to bludgeon or intimidate a former partner.
However contravention proceedings are also at times the culmination of a competitive and dysfunctional post separation parenting relationship, to which the unsatisfactory conduct of both parents has contributed. Invariably such relationships are characterised by poor or miscommunication and high levels of suspicion and mistrust.
In such circumstances, it may be difficult to easily attribute both fault and excuse, when both parties are responsible for the unsatisfactory state of affairs between them and neither has exhibited any great capacity for empathy for or respect of the other.
In this case, Mr Hale argues that the court should look at his contravention proceedings in the context of the long struggle between him and Ms Hale to secure the regular attendance of the children at [D] in school holidays, which was the Family Court’s initial order and which was an essential corollary of the children’s relocation to Adelaide in the first place.
He portrays himself as a man at the end of his tether, who came to the court to secure only what was his entitlement pursuant to earlier orders made. It being unequivocal common ground that [Y] and [Z] did not get on the plane in September 2010 and as a consequence of that he did not spend time with them in the holiday in question as the court’s order required.
As such, he refutes any characterisation of himself as a vindictive or intimidating person, who has used the contravention proceedings as a bludgeon against Ms Hale. Rather he came to court in response to the manifest failure of the earlier orders to achieve one of their primary objectives, namely that the children came to [D] for the September school holiday.
On the other hand, Ms Hale’s position is that she has been wrongfully maligned and totally vindicated by the court’s decision to dismiss the various allegations of contravention made against her. In defending herself she was put to expense. As the claims against her have been found to be without substance, it is her case that Mr Hale should pay her costs.
The amount of costs sought by Ms Hale is $16,429.89. Mr Hale’s position is that each party should bear his or her costs and no order for costs should be made. The reasons for judgement are directed towards resolving this issue.
The legal principles applicable
Section 117(1), abolishes, for the purposes of Family Law Act proceedings the general rule that in civil proceedings costs follow the event. Section 117(2) then provides the court with a general discretion to make costs orders if it is of the opinion that there are circumstances that justify it in so doing. The court may make such order for costs as it “considers just”.
Section 117(2)(A) sets out the matters that the court shall have regard to in exercising this discretion. They include the following: the financial circumstances of the parties concerned; the receipt of legal aid by the parties; the conduct of the parties to the proceedings; whether the proceedings were necessitated by the failure of a party to comply with previous court orders; whether one of the parties to the proceedings have been wholly unsuccessful in them; any offers to settle the proceedings; and any other relevant matter.
The court has a wide discretion as to the calculation of costs. Pursuant to Rule 21.02(2) of the Federal Magistrates Court Rules:
“In making an order for costs in a proceeding the Court may:
(a) set the amount of costs; or
(b) set the method by which the costs be calculated; or
(c)refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of costs which may be before the proceedings is concluded.”
However, pursuant to Rule 21.10:
“Unless the Court otherwise orders a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1 and
(b) disbursements properly incurred.”
Pursuant to Rule 21.15 the court may certify that it was reasonable to employ an advocate to appear for a party in a proceeding. Part of
Ms Hale’s application for costs includes a claim for counsel’s fees. These fees amount to $8,160.00.
The remainder of her costs ($8,269.89) have been calculated pursuant to the Family Law Rules. This scale calculates costs by reference to the time spent by a legal practitioner or law clerk on preparing the case concerned and the reading and preparation of documents and correspondence relating to it, depending on the length of the document concerned. No doubt it is the position of Ms Hale’s solicitor that this scale is the appropriate mechanism to calculate the costs arising, given the complexity of the contravention proceedings.
In section 3(2) of the Federal Magistrates Act, the Commonwealth Legislature has set out the objects of the Federal Magistrates Court in the following terms:
to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and
to enable the Federal Magistrates Court to use streamlined procedures; and
to encourage the use of a range of appropriate dispute resolution processes.
No doubt, the intention of the Legislature in this regard was to reduce the cost of court proceedings pursuant to Federal legislation and provide litigants with a cheap and cost effective means of accessing justice within the Federal jurisdictional sphere. Rule 21.10 creates a scale of costs by reference to the occurrence of fixed events. In my view, the creation of such a scale was designed to help achieve these objects.
The fixed event scale enables litigants to readily calculate the costs by references to the stages reached in proceedings. However, it is implicit in the applicable rules that the court retains a discretion regarding both the quantum and calculation of any costs awarded in proceedings. The circumstances of the particular case concerned may render the application of the fixed scale of costs inequitable.
The discretion in respect of costs placed in the court, pursuant to section 117, is a wide one, which must be exercised having regard to the matters set out in section 117(2A) so far as they are relevant. In the case of In the marriage of I and I (No.2)[4] the Full Court said as follows:
“Section 117 confers upon the court a broad discretion in relation to costs. That discretion is one which the Court should not seek to fetter. As was pointed out by the High Court in Penfold v Penfold:[5]
It is an accurate description of s 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s 117(2). As subs (1) is expressed to be subject to subs (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs.”
It is now appropriate to consider whether there are any such justifying circumstances present in this case by reference to the specific criteria as set out in section 117(2A).
Consideration of the matters arising under section 117(2A)
[4] In the marriage of I and I (No.2) 22 Fam LR 557 at 558
[5] Penfold v Penfold (1980) 5 Fam LR 517 at 582;
a)The financial circumstances of the parties
Mr Hale is a self employed [omitted]. He estimates his weekly income at $938.00. He does not receive income on a regular basis but only when he sells [omitted]. Accordingly his income is seasonal and dependent on the vagaries of the weather and the market. He [works] in partnership with his current wife and splits the [omitted] income with her.
There has never been any suggestion that Mr Hale has not paid regular child support for the three children concerned. At the present time he pays child support at the rate of $588.25 per month. He also provides financial support for his step children. Mr Hale owns his home and [business] but has a significant overdraft which relates to the [omitted] business. I accept that he is not in a strong financial position.
Ms Hale is not currently in the paid workforce and has not been since prior to the parties’ marriage. She receives Centrelink payments of $610.00 per fortnight and child support from Mr Hale. She has not re-partnered. She received approximately $500,000.00 in settlement of the matrimonial property proceedings between her and Mr Hale. It is her evidence that she has funded these proceedings from her savings.
Mr Hale is critical of Ms Hale for not attempting to re-join the workforce. Prior to the parties’ marriage she was a [occupation omitted] in the Northern Territory. Ms Hale’s preference at present seems to be to be a full time homemaker. On any view, she is not in a strong financial position. I suspect that both parties are financially exhausted after the protracted and bitter proceedings between them.
b) Legal Aid
Neither party was in receipt of legal aid.
c) Conduct of the parties
The specific sub-section directs the court to have regard to the conduct of the parties in respect of the management of the proceedings themselves. In this regard Mr Hale is critical of Ms Hale for not supplying him with details of her defence prior to the contravention proceedings commencing on 31 May 2011. In particular, he is critical that he and his counsel, Ms Lewis were only supplied with a copy of Ms Hale’s affidavit, which denied the specifics of the contraventions alleged against her and a copy of her supporting witness, Ms I on the morning of 31 May 2011.
The necessary implication of this criticism being that, if Mr Hale had received this material sooner, it might have caused him to re-consider his position and not to proceed to hearing with the contravention applications.
True it is that, as matters transpired, the evidence of Ms I was crucial. Ms Hale had taken steps to secure testimony from her by issuing a subpoena directed her to attend court to give evidence on 2 September 2010, this was around the time of the first mention of the contravention application. It is also true that a formal proof of her evidence, in affidavit form, was provided to Mr Hale and those advising him at a late stage.
However, in my view, the potency of Mr Hale’s criticism in this regard is considerably weakened when the quasi-criminal nature of contravention proceedings is considered. The defendant in a criminal prosecution is not required to provide to the prosecution comprehensive details of his or her defence prior to the commencement to the case against him or her. This principal is enshrined in the rules of the court dealing with contravention proceedings at rule 25B.04. I outlined the applicable rules in the earlier judgement.[6]
[6] Hale & Hale [2011] FMCAfam 1107 at paragraph 54
In strict terms, Ms Hale was not required to file any affidavit material in the matter and was only required to set out any exculpatory matters on which she sought to rely after she had formally “pleaded” to the charges against her and the evidence in support of the alleged contraventions had been led from Mr Hale.
In addition, in the earlier reasons for judgement, I referred to the inevitable tensions arising between the need for the court to be, on the one hand a helping court in respect of proceedings relating to children and, on the other, the need for the court to require strict adherence to procedure in matters relating to the contravention of orders, particularly in cases involving the potential for penalties to be imposed.[7]
[7] Ibid at paragraphs 55 – 60
It was clear, at an early stage of the case, that Mr Hale had commenced the contravention proceedings because [Y] and [Z] had not boarded the aircraft for Canberra to spend time with him in the September 2010 school holidays. In the circumstances which had prevailed up to that time, I can appreciate why he wasted no time in bringing his application. It was filed on 12 November 2010 and made returnable on 8 December 2010, which was a short time prior to the commencement of the end of year holiday, when once again [Y] and [Z] were scheduled to visit him in [D].
The gravamen of Mr Hale’s complaint at the time centred on the issue of adherence to the regime for holiday contact. The other complaints made by him in the contravention application, although I concede of individual importance to him, seemed to me to be subsidiary to his main concern that there had been an apparent return to the previous history of the children not attending in [D] to spend time with him, as the court’s orders required.
For obvious reasons, given the previous approach taken in the matter and my knowledge of it, I was anxious that whatever could be done, to ensure the attendance of the children in [D] in the forthcoming Christmas school holidays, be done. In terms, of the aspirations of the court to be a helping court that seemed to be the best course to adopt. Essentially see if the orders could be put back on track.
For that reason, the proceedings were adjourned until 31 January 2011, when I was told that the children had attended in [D] as required. This was good news. However, Mr Hale was not prepared to consider the withdrawal of the proceedings, which were fixed for hearing on 31 May 2011. This date followed the end of first term school holidays, when the children would once again be required to be made available to go to [D].
There is no dispute that the twins did attend in [D] during that school holiday and all subsequent ones. Notwithstanding this state of affairs the matter proceeded to hearing. This state of affairs is relevant to one other of the applicable criteria arising under section 117(2A).
Mr Hale was entitled to proceed with his contravention application, notwithstanding Ms Hale ostensible compliance with the terms of the orders dealing with the children travelling to [D] in the period since he commenced his application. However, in my view, it would also have been prudent of him to have considered whether having achieved the primary objective of the proceedings, namely compliance with the orders, discretion was the better part of valour.
c) Failure to comply with previous orders
d) Party wholly unsuccessful
In the circumstances of this case, it is convenient to consider these two criteria together. Mr Hale relies on the former to justify his inauguration and continuation of the contravention proceedings in the first place. Ms Hale relies on the latter to justify an award of costs in her favour. In my view, the two matters are central to my exercise of the discretion to award costs arising under section 117(2) of the Act.
Mr Hale brought a raft of contravention proceedings against Ms Hale. In my view, the bulk of these matters were less serious matters and represented grievances against Ms Hale, which Mr Hale has warehoused until a suitable opportunity arose to bring them out. He was wholly unsuccessful in each of his applications, including the major complaint regarding the failure of the children to attend in [D] in the September 2010 school holiday.
I accept that Ms Hale was put to significant cost in defending the charges against her. Given the history of the matter up to this stage and Mr Hale’s obvious antipathy towards her, she was not in a position where she could afford to adopt a lackadaisical attitude to the proceedings. Her stance in the proceedings has been vindicated by the court’s decision to dismiss each contravention application. This is a significant factor in favour of her application for costs.
However although Mr Hale may be open to retrospective criticism for instituting contravention proceedings first before considering any form of conciliatory approach to Ms Hale, the fact remains that following the lengthy trial between the parties, I made a number of significant criticisms of Ms Hale and put her on notice that her behaviour in respect of supporting the children’s relationship with their father was unsatisfactory. Accordingly, in my view, it cannot be said that the contravention proceedings arose in a vacuum.
In the conclusions to the judgement delivered in respect of the contravention proceedings, I wrote as follows:
“This is a perplexing case. Notwithstanding the fact that the parties have been separated for many years, the tension and mistrust between them remain endemic and their lines of communication twisted and tangled. It is simplistic to regard one party as being the victim of the other’s conduct.
In these circumstances, a contravention application provides a blunt instrument for apportioning fault between the parties, particularly in the context of children who are reported to be oppositional to spending time with a parent. As such there are potential perils arising for any person who elects to engage the process of contravention, notwithstanding the emphases in the Family Law Act and the desirability of the court being a helping one.
I have decided that none of the various counts of contravention have been made out. This should not be seen as a vindication of one party and a condemnation of the other. Both must bear responsibility for the atrocious parenting relationship which exists between them and which must have consequences for the three children concerned.”[8]
[8] Ibid at paragraphs 226 – 228
In my view, these comments remain apposite to the considerations arising under this sub-section. Ms Hale’s earlier unsatisfactory behaviour in regards to her responsibilities arising under the court’s order is a relevant consideration. Although the question is hypothetical and so incapable of definitive answer, the court is, I think, entitled to consider what would have happened in terms of the twins spending time with their father in [D] in future, if Mr Hale had done nothing formally following their failure to get on the aircraft, in Adelaide, on 25 September 2010. As such, in my view, it remains simplistic to categorise the case as being one in which one party has won and the other party has lost.
e) Offers to settle
Following the initial adjournment of the proceedings in December 2010 and following the children having visited their father in [D] over the preceding Christmas period, on 14 January 2011, Ms Hale’s solicitors wrote to Mr Hale’s solicitors inviting him to discontinue the proceedings on the basis that each party bear his/her own costs.[9] In a letter dated 24 May 2011, Ms Hale’s solicitors advised Mr Hale’s solicitors that they would be defending the contravention proceedings and seeking costs, presumably if successful.
[9] See affidavit of Ms Hale filed 25 November 2011 at paragraph 24
In June and September of 2011, prior to the contravention proceedings recommencing, further correspondence passed between the parties’ respective solicitors regarding one of the contravention allegations concerning the children mandated attendance at counselling. It being Ms Hale’s position that these counts could not be made out. Notwithstanding this correspondence, Mr Hale continued with this aspect of the contravention application.
Although ordinarily, contravention proceedings are to be heard expeditiously, this was not the course adopted in the present matter. Rather the court adopted a wait and see approach to ascertain whether the arrangements whereby the twins visited [D] regularly could be put back on track.
In my view, this approach was justified given the principles for conducting child-related proceedings arising under section 69ZN of the Family Law Act. The court is directed to consider the needs of any child likely to be affected by the proceedings and the impact the proceedings may have on the child concerned. It seemed to me that the best outcome for [Y] and [Z] was for them to resume spending time with their father without the necessity for the contravention proceedings to be formally concluded.
Whatever were the factors at play, the children did recommence spending time with their father prior to the actual process of the court considering the respective positions of the parties in what can only be described as highly polarised circumstances. It was in this context that Ms Hale’s offer to settle the proceedings must be considered.
The import of section 117(2A)(f) is to ensure that, when offers to settle are made, they are seriously considered by the other party concerned. Litigation is expensive and for that reason is not to be embarked upon lightly. In addition, it can have drastic emotional consequences for children. Accordingly, courts such as this one should encourage the parties to litigation to seek a compromise of their proceedings whenever possible and should discourage a party from cavalierly disregarding any reasonable offers to settle.
As matters transpired, it would have been prudent of Mr Hale to have accepted the offer made to compromise the proceedings, particularly given that the children had resumed spending time with him as the court’s order envisaged. Although such an outcome would not have provided Mr Hale with any personal sense of vindication, equally it would not have compromised the on-going protection of his rights arising under the applicable order.
Essentially for Mr Hale to have compromised the proceedings, on the occasion offered to him, would have enabled him to have garnered his financial resources for any future exigencies arising under the orders and to have kept his powder dry for them. It would have also saved each of the parties from a significant financial outlay.
Conclusions
Having considered the various matters arising under section 117(2A) I have come to the conclusion that it would just if an order for costs is made in favour of Ms Hale. Her stance in the proceedings was ultimately vindicated following a lengthy and expensive hearing. Significantly, after [Y] and [Z] had resumed spending time with their father, Mr Hale declined an offer to withdraw the proceedings on the basis that the parties bear their own costs.
In these circumstances, it seems clear that Mr Hale made a major error of judgement in deciding to proceed with the case to judgement. His decision has had major financial implications for Ms Hale, who cannot be described as a wealthy person. Given what had transpired between the parties, in the earlier bitterly contested litigation, I accept that it would have been unwise of her not to have had recourse to legal representation in the matter. In any event, this was her entitlement.
However, these bitterly contested contravention proceedings did not arise in a vacuum or on the petulant whim of Mr Hale. To the contrary, proceedings have been on foot, in one form or another, almost since the time the parties finally separated, over a decade ago now. The perennial issue has been how the children may maintain a proper level of relationship with their father, following the bitterly contested relocation.
One of the major issues before Faulks J was Mr Hale’s concern that
Ms Hale would not abide by her undertaking to support the children spending time regularly with him in [D] if she was able to live with them in Adelaide. In the period since the mother and children moved to Adelaide, [X] has become estranged from her father and many of the visits of the twins to [D] have been disrupted, most recently in September of 2010.
In addition there has been a further bitterly contested hearing, which centred on the father’s application to change the living arrangements of the children. In the course of this hearing, the mother’s behaviour was criticised by the court and she herself undertook to do better in terms of supporting the children’s relationship with their father.
In all these circumstances, it is hard to characterise Mr Hale’s conduct in instituting contravention proceedings in November of 2011, following the failure of the twins to arrive in [D], as precipitate, particularly as this failure coincided with the discharge of the independent children’s lawyer.
To the contrary, it is difficult to conceive what other action was open to Mr Hale, given his experience up to that stage. In my view, his frustration with both the mother and the system itself is understandable. However, to a large extent, following the abortive September visit (and indeed during and following the trial process of 2009) Ms Hale has mended her ways.
The criticisms which can be levelled against Mr Hale are that he failed to pull back from the contravention application, when it was strategic to do so and that he opportunistically added counts to his application, which have been found to be without basis.
For all these reasons, I have come to the conclusion that there should be an award of costs in the mother’s favour but she should be only entitled to 50% of these costs. In my view, this represents a just outcome of the costs application. I will allow Mr Hale twenty eight days to pay the sum in question, which I have rounded down to $8,200.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 27 July 2012
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