HARDING & WATSON
[2014] FamCAFC 188
•2 October 2014
FAMILY COURT OF AUSTRALIA
| HARDING & WATSON | [2014] FamCAFC 188 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – APPLICATION IN AN APPEAL – where the appellant seeks to adduce further evidence – where the application is opposed – where the evidence sought to be adduced is not evidence that comes within the principles established in CDJ v VAJ (1998) 197 CLR 172 and plainly fails to demonstrate error by the trial judge – application dismissed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the trial judge found there were no changed circumstances sufficient to re-open the litigation – where there is no merit in any of the grounds of appeal – appeal dismissed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent seeks an order for costs on an indemnity basis – where the application is opposed – where there are circumstances that justify an order for costs being made – where the respondent has failed to comply with Rule 19.08(3) of the Family Law Rules 2004 (Cth) and that failure is fatal to the application for the costs to be assessed on an indemnity basis – costs ordered in favour of the respondent to be assessed on a party/party basis in default of agreement. |
| Family Law Act 1975 (Cth) – ss 60CC and 117 Family Law Rules (2004) (Cth) – rr 1.12 and 19.08(3) |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Harding |
| RESPONDENT: | Mr Watson |
| FILE NUMBER: | MLC | 12820 | of | 2007 |
| APPEAL NUMBER: | SOA | 56 | of | 2013 |
| DATE DELIVERED: | 2 October 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 27 February 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 August 2013 |
| LOWER COURT MNC: | [2013] FCCA 1198 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Davis |
| SOLICITOR FOR THE APPELLANT: | Berger Kordos Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Smallwood |
| SOLICITOR FOR THE RESPONDENT: | Robinson Gill |
Orders
The application in an appeal filed on 10 February 2014 be dismissed.
The appeal be dismissed.
The appellant mother pay the costs of the respondent father of and incidental to the appeal, with such costs to be as assessed on a party/party basis in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harding & Watson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 56 of 2013
File Number: MLC 12820 of 2007
| Ms Harding |
Appellant
And
| Mr Watson |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 11 September 2013, Ms Harding (“the mother”) seeks to appeal orders made by Judge Hartnett on 14 August 2013.
The appeal is opposed by Mr Watson (“the father”).
The orders appealed provide for the Initiating Application filed by the mother on 2 August 2013 to be summarily dismissed, for the parties to attend upon a dispute resolution practitioner, that no further application, with the exception of a contravention application, be filed by either of the parties until that occurs, and for the mother to pay the father’s costs fixed at $3,150.
On 8 October 2012 final orders were made by consent by Judge Hartnett which provided for the father to have sole parental responsibility for the one child of the relationship, X (“the child”), for the child to live with the father, and to spend time with the mother.
In her Initiating Application, the mother sought that the application be heard “on an urgent basis”, that all previous orders be discharged, the parties have “equal shared parental responsibility for the long term care, welfare, schooling and development” of the child, the child live with the father and spend time with the mother, neither party denigrate the other in the presence of, or to the child, the father be restrained from referring to any person other than the mother “as the mother of the Child”, the parties be restrained from removing the child from the State of Victoria or the Commonwealth of Australia without order of the court or the written consent of the other party, and a Family Report be prepared. The mother further sought to “be excused from particularising” the final orders sought by her “pending the outcome of a Family Report and further assessment of the Mother”.
Brief Factual Background
The father was born in 1966 and was aged 47 years at the time of the hearing.
The mother was born in 1971 and was aged 42 years at the time of the hearing.
The parties met in July 2006 and separated in July 2007.
The child was born in 2007 and he lives with the father. The father is the full-time carer for the child, the father having suffered an acquired brain injury whilst undergoing surgery for a medical condition.
In her Initiating Application filed on 2 August 2013 the mother described herself as a Program Support Officer. However at the hearing of the appeal the mother’s counsel advised that the mother was an invalid pensioner in receipt of a Newstart allowance.
The father commenced proceedings in the Federal Magistrates Court (as it then was) in November 2007, when the child was aged eight months, seeking parenting orders. The mother opposed the father’s application asserting that he had a medical condition which would impact on his ability to care for the child.
The trial in relation to children’s issues proceeded over five days between
31 July 2008 and 24 November 2008, but was then aborted as a result of the mother failing to attend court. The mother says she was unable to attend court due to her mental state.
On 13 July 2009 the matter again came before Federal Magistrate O’Sullivan (as his Honour then was) who ordered that, given its complexity, the matter be transferred to the Family Court of Australia.
On 25 October 2010 the trial commenced before Dessau J.
On 9 February 2011 Dessau J made final parenting orders by consent. One of the orders made on that day required an updated Family Report to be prepared by Mr P. Mr P’s updated Report is dated 19 September 2011.
On 30 August 2012 the mother filed an application in the Federal Magistrates Court, seeking final and interim parenting orders. That application came before Judge Hartnett in a duty list on 8 October 2012 and her Honour made the consent orders referred to (at [4]) above.
On 2 August 2013 the mother filed the Initiating Application referred to (at [5]) above.
Reasons for Judgment delivered on 29 August 2013
Judge Hartnett commenced her reasons for judgment by setting out the applications before the court, reciting the orders made by consent on 8 October 2012, and then providing a history of the matter which included the orders sought by the mother in her application filed on 2 August 2013.
At [11] her Honour found that the mother “must establish for the Court that there is a changed circumstance that justifies the recommencement of litigation between the parties”. Her Honour went on to say that the stress caused by the proceedings was not desirable and did not help the “respective medical conditions” of the parties, and further, that “[a]ny diminution in the mental functioning of each of his parents, is not in the best interests of [the child]”. Her Honour found that there were no significant changed circumstances “indicative of a necessity to alter the existing Orders, founded upon a fact not known to the parties at the time of entering into the consent Orders” on
8 October 2012.
Her Honour then noted that the mother alleged that the father had breached a number of the orders made by consent on 8 October 2012, and that the correct application to address those circumstances was a contravention application, but the mother instead elected to file the Initiating Application.
Judge Hartnett then addressed the mother’s allegations, finding that she had not provided evidence of a change significant enough to warrant altering the consent orders made in August 2012, and that many of the allegations made by her could have been dealt with by way of a contravention application (at [13]-[24]).
At [25] her Honour noted that the father asserted that any action he had taken had been in the child’s best interests, and to protect the child, particularly in light of the mother’s behaviour when attending the child’s previous school on 21 June 2013. On that day the father alleged that the mother attended at the school and he observed her to be “behaving erratically, and appearing dishevelled and distressed” (at [16]). The school principal took the mother to her office, an ambulance arrived and the mother was taken to hospital where she remained for 16 days. At [25] her Honour found that the mother had “not satisfactorily answered questions put to her by the father concerning that admission”.
Reference was then made by her Honour to correspondence dated 30 July 2013 from the mother’s treating psychiatrist, directed to the mother’s solicitor, and annexed to the mother’s affidavit sworn on 2 August 2013. In that correspondence the mother’s psychiatrist noted the mother’s history of “schizoaffective disorder”, confirmed that she had been admitted to hospital in November 2010 with a “depressive episode occurring in the context of multiple medication changes and the court case regarding the care of her son”, and that she had been “readmitted in December 2010 following an overdose of medication” (at [26]). Since that time though the mother’s psychiatrist noted that the mother had been “compliant with medication and follow-up”, that she “exhibited very good insight into her illness” and her mental health was “stable” with the exception of “brief periods of increased depressive symptoms and anxiety related to Family Court hearing/mediation and financial stresses” (at [27]).
Her Honour observed that the correspondence from the mother’s psychiatrist did not explain the mother’s admission to hospital in June 2013, why she was admitted for such a long period of time, and nor did it address the mother’s current presentation. The information provided was historical and it did not “provide medical evidence that there had been a changed circumstance such that the mother’s mental health functioning had been without relapse since the making of the Orders in October 2012” (at [28]). Her Honour also noted that the mother had not complied with paragraph 13 of the consent orders made on 8 October 2012 which required her to direct her mental health care providers to send to the father on a six monthly basis from the making of the consent orders, a report addressing her “health and compliance with treatment (if any)”
(at [28]).
At [31] of her reasons for judgment Judge Hartnett said:
None of the evidence provided by the mother is a change of circumstances of such degree that warrants a discharge of the previous Orders. The threshold test has not been met and the mother has not made out her case. Her complaint about alleged breaches by the father could have been brought before the Court in a contravention application. The father indicated in submissions from his Counsel at hearing that he would defend any such application on the basis of the necessity of his actions as a consequence of the mother’s health.
Her Honour went on to note at [32] that the mother’s counsel put to the court that “the ‘bigger issue’ needed to be addressed, which was that his client was ‘entitled’, ‘able’ and ‘willing’ to now share parental responsibility with the father” because the mother “was now mentally stable”. However, her Honour found that “[t]here [was] no conclusive evidence before the Court as to that fact and indeed some contrary evidence”.
At [33] and [34] her Honour addressed the father having agreed to a resumption of the child spending supervised time with the mother, despite him having no medical evidence as to the mother’s state of mental health, and his concerns about the child’s safety when with the mother. The father’s solicitors also wrote to the mother’s solicitors asking that the proceedings be discontinued “in favour of a staged reintroduction of time spent with” (at [33]). They also wrote to the mother’s solicitors questioning whether, given her recent “significant psychotic episode”, she was able to in fact give instructions, and pointing out the requirement to satisfy the threshold test.
In the end result the application was dismissed.
Her Honour then considered s 117(2A) of the Family Law Act 1975 (Cth)
(“the Act”) and found that as the mother had been wholly unsuccessful in the proceedings she should pay the father’s costs fixed in the sum of $3,150, which payment was stayed for three months from the date of the making of the orders.
Her Honour also found that the Registrar should not have granted an exemption from the requirement to provide a certificate pursuant to s 60I(8) of the Act, and ordered that with the exception of an application for contravention, no further application could be filed by either party without attendance upon a dispute resolution practitioner.
Grounds of Appeal
The grounds of appeal as set out in the Notice of Appeal filed on 11 September 2013 are as follows:
1.That the learned trial Judge heard the matter summarily, at first instance, without a proper consideration or at all of the principles of natural justice.
2.The learned trial Judge erred in misapplying the principles in Rice and Asplund in circumstances as follows:
(a)where the Respondent was estopped from relying on such principle due to his own unilateral action in varying parenting orders to create a significant change in circumstances; or alternatively:
(b)(i) where there was a significant change in circumstances due to reasons, inter alia, relating to:
A.the Applicant’s mental health;
B.the Respondent’s intentional ongoing failure to comply with Court orders;
C.the breakdown and non-compliance of the Court orders;
(ii)the learned trial Judge failed to consider properly or at all or give sufficient weight to:
A.the available evidence relied upon by the Applicant; and
B.the express intent of the parties in terms of progressing the child’s time with the Applicant as specifically noted in the orders so as to make an informed decision as to the best interests of the child.
3.That the learned trial Judge failed to consider, or to consider sufficiently, adequate and proper parenting orders that would meet with the child’s best interests, where there was a significant change in circumstances.
4.The trial Judge erred in the exercise of her discretion to award costs against the Applicant after improperly and without proper notice reviewing the Registrar’s decision in non-compliance of Rule 20 of the Federal Circuit Court Rules 2001.
Orders Sought
The mother seeks the following orders in her Notice of Appeal filed
11 September 2013:
1.That the appeal be upheld and the Orders dated 14 August 2013 be set aside;
2.That the matter be remitted for hearing on the questions of joint parental responsibility and the child’s increased contact with the Applicant.
Application to adduce further evidence
On 10 February 2014 the mother filed an application in an appeal to adduce further evidence. That evidence comprised a Family Report by Mr P dated
19 September 2011, and two letters from two medical practitioners. That application was opposed by the father.
At the hearing of the appeal counsel for the mother only pursued the application insofar as it related to the Family Report.
The principles applicable to the admission of further evidence under s 93A(2) of the Act are well settled (see CDJ v VAJ (1998) 197 CLR 172) and do not require re-stating here. Importantly though, further evidence can be adduced if it demonstrates error by the trial judge. However, it readily became apparent that this was not the usual application to lead further evidence. Rather, it related to Ground 2(b)(ii)A. In other words, the Family Report is the “available evidence” referred to in that ground of appeal, and the complaint is that the trial judge failed to consider it at all. Indeed, it is common ground that her Honour refused to receive the Report into evidence.
The relevance of the Report is that it is claimed to have been the basis of the consent orders made on 8 October 2012, and it demonstrated that the mother’s mental health had improved over time, (see paragraph 7 of the affidavit of the mother filed on 10 February 2014 in support of the application in an appeal). However, there was no evidence to establish the first proposition, and as is obvious from the timing involved, the Report could not be a basis for establishing a change of circumstances. In any event, given the purpose of seeking to adduce this Report, namely in relation to Ground 2(b)(ii)A, I will leave further discussion about it until I address that ground of appeal. For now though I indicate that it is not evidence that comes within the principles established in CDJ. It is a Report that was prepared approximately 12 months before the hearing on 8 October 2012, and approximately two years before the hearing before the trial judge; it is plainly historical; it can say nothing about the progress or otherwise of the mother’s mental health after the orders of
8 October 2012; it can have no forensic purpose; and it plainly fails to demonstrate error by the trial judge. Thus, the application to adduce the Family Report as further evidence must be dismissed.
Discussion
At the outset of the hearing of the appeal counsel for the mother submitted that the gravamen of the appeal is whether the “test” in Rice and Asplund (1979) FLC 90-725 is satisfied per se when the existing parenting orders have broken down completely. It was said that that was the case here namely, the existing parenting orders had broken down, and thus the mother “had nowhere to go”. However, after the morning adjournment, counsel advised that that was not in fact the case, and the existing orders were back in place. Indeed, counsel for the father indicated that the orders had been “back in place since November” 2013. Apparently there had also been a contravention application filed on
25 November 2013, but that was dismissed on 10 February 2014. There was no challenge to the correctness of these statements.
Given this circumstance, the court would have expected the appeal to have been withdrawn, but counsel for the mother indicated that he “had no instructions to do otherwise than pursue the appeal”, which he did.
As to the specific grounds of appeal counsel for the mother indicated that they had been pleaded in a “general way”. Grounds 1, 2(b)(i), (ii) and 3 were proceeded with. Ground 2(a) was not. Counsel further indicated that Ground 2(b) really only provided further and better particulars of Ground 1, and that Ground 4 was only to be proceeded with if the appeal was successful.
I now turn to the grounds of appeal.
Ground 1
As explained in the mother’s amended summary of argument, the complaint is that the trial judge applied the “rule in Rice and Asplund as a threshold issue on a summary basis”, when the circumstances suggested otherwise.
There are two difficulties with this proposition. First, once it is conceded, as it was by counsel for the mother, that it was “open” to the trial judge to take the approach that she did, the complaint cannot succeed. Secondly, the “circumstance” that is said to militate against a summary approach, is that the existing orders “have broken down”. However, as identified above, that is no longer the case.
In any event, it is submitted by the mother that she was not afforded natural justice by not having “the opportunity in further court proceedings to lead further evidence” as to the terms of any time to be spent with the child. Further, she claims to have been “denied any opportunity to call further evidence in respect of her complex medical condition”. However, these claims are simply not made out. It was the mother who filed the application, and it was she alone who sought to discharge the existing orders and put new orders in place; the father in his Response sought the dismissal of the mother’s application, and thus there were no competing proposals which rendered it necessary in any event to conduct an enquiry into the child’s welfare. Further, in her affidavit in support of her initiating application, the mother put the evidence before the court that she wanted the court to rely upon. Indeed, she annexed a report from a psychiatrist, but she chose not to provide any medical evidence as to her hospitalisation in June 2013, despite being requested to do so by the father’s solicitors, and in fact despite there being an order that the mother was to “authorise and direct her mental health care providers to send a report to the father of her health and compliance with treatment (if any) each six months” (paragraph 12 of the orders made on 8 October 2012).
This ground of appeal must fail. However, before leaving this ground it is necessary for me to address a further argument raised by counsel for the mother.
In oral submissions, although not the subject of this or any other ground of appeal, it is said that her Honour erred by not giving any consideration to the issue of the child’s best interests as required by the Act.
True it is that her Honour did not specifically address any of the matters set out in s 60CC of the Act, but that is understandable given the nature and context of the application before her (SCVG & KLD [2014] FamCAFC 42). In that application the mother sought a discharge of all previous orders, and that new orders be put in place significantly different from the existing orders. Thus, given the history of the proceedings between the parties, her Honour’s primary task was to determine whether there were sufficient changed circumstances to warrant reopening of the litigation in the manner sought by the mother. Her Honour, correctly in my view, and plainly in accordance with authority, chose to address this task as a preliminary issue, but as is also clear from the authorities, a decision whether to dismiss the application or not at that point is still a decision based on the child’s best interests (SPS & PLS (2008) FLC 93-363, and Poisat & Poisat [2014] FamCAFC 128 (at [42]-[43])). That “best interests” enquiry though is to weigh up the benefits to the child of allowing the litigation to be reopened, against the detriment of the child again being involved in the stresses of litigation. In turn, that primarily depends on whether there are sufficient changed circumstances to warrant the matter to be contested in a fresh hearing. That is the enquiry her Honour undertook, and no error has been demonstrated.
As was said by Warnick J in SPS & PLS at [81]:
… [w]hen the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
For completeness, I record again that the principal argument of the mother is that with a complete breakdown of the existing orders, she had “nowhere to go”, and thus it was imperative that the litigation be reopened. Apart from the fact that, as was conceded by counsel for the mother, the premise on which this argument was based no longer applies, it also takes no account of the circumstances in which the “breakdown” occurred, and the options that the mother had.
As to the former, the mother apparently had yet another psychotic episode in June 2013 which led to her hospitalisation for 16 days. The father took the obvious and sensible course of withholding the child from contact, initially until information was provided that would indicate the child would not be at risk in the care of the mother. However, that information, despite being requested, was not only not forthcoming, but the mother’s case in support of her application to put new orders in place, was that her mental health had improved since the orders were made in October 2012, and that provided the necessary change of circumstance to allow her application to proceed.
As to the options open to the mother, as her Honour correctly pointed out, rather than bring the application that she did, the mother should have brought a contravention application; the mother was alleging a breach of the orders, and the Act and the Family Law Rules 2004 (Cth) (“the Rules”) provide a process for that to be addressed.
When the mother’s counsel was challenged about this, he suggested that that was not a course open to the mother effectively because the father would have a “defence” to the application given the mother’s psychotic episode, and her mental health concerns! Plainly, and obviously, that then begs the question as to why take the course that the mother did. In any event, that cannot be a reason why the mother would not take contravention proceedings, and there is also the distinct possibility of alternative arrangements being put in place in the context of such proceedings.
This then leads to one final comment. It was submitted by counsel for the mother that because the father in correspondence between solicitors was proposing supervised time as an initial step, at the very least her Honour should have considered putting something like that in place, rather than just dismissing the mother’s application. However, that was not what the mother was seeking. She was seeking more time than under the existing orders.
Ground 2(b)
The complaint here suggests that her Honour erred in her application of the principles in Rice and Asplund.
It is perhaps instructive to remind ourselves of what Evatt CJ said in Rice and Asplund, which has become known as the principles emanating from that case. Her Honour said this, at 78,905-06:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. … These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
First, in 2(b)(i) the mother submits that there was a significant change in circumstances arising from three matters, namely, the mother’s mental health, the father’s failure to comply with court orders, and the breakdown of the orders.
As to the first matter, there was no basis on the evidence before her Honour to conclude that the mental health of the mother had improved to such an extent that that, per se, provided the necessary change of circumstance. Although the mother provided a letter from a psychiatrist, and that was encouraging, as referred to above, there was no medical report provided as to the mother’s most recent hospitalisation, and which led to the difficulties with the existing orders.
Her Honour addressed this issue in extenso in her reasons for judgment, and those reasons are unchallenged in this appeal.
As to the second matter, it is plain that this only became an issue following the mother’s unexplained hospitalisation in June 2013.
The father understandably did not make the child available to spend time with the mother initially, and suggested through his solicitors a limited time spent with supervision, before reverting to the existing orders.
Thus, as her Honour quite correctly found, these circumstances did not provide any basis for reopening the litigation, and particularly given that at the time of the hearing the mother had not brought a contravention application alleging the father had breached the existing orders.
Her Honour said this:
30.It is correct that the current Orders do not provide for any suspension of time spent with, or supervision of the time spent, but the relevant circumstances are such that the mother has had a recent unexplained and lengthy hospital admission to which the father has responded, and in his proposals put to the mother, for no longer than necessary to protect the health and safety of the child. A sensible and appropriate response to the father’s requests for information as to the mother’s health would have seen [the child] continuing to spend time with his mother, albeit under supervision for an initial period of time, before a resumption in operation of the current Orders, instead of the launching of these proceedings and the expenditure of further costs by the parties and the occasioning of further stress to them.
31.None of the evidence provided by the mother is a change of circumstances of such degree that warrants a discharge of the previous Orders. The threshold test has not been met and the mother has not made out her case. Her complaint about alleged breaches by the father could have been brought before the Court in a contravention application. The father indicated in submissions from his Counsel at hearing that he would defend any such application on the basis of the necessity of his actions as a consequence of the mother’s health.
The third matter is substantially similar to the second, and requires no further elaboration except to say that it is now common ground that contravention proceedings were instituted but they were ultimately dismissed, and in the meantime (commencing in November 2013) the existing orders resumed. Plainly there can be no basis here to reopen the litigation.
Secondly, in 2(b)(ii) the mother complains that the trial judge failed to consider, properly or at all, or give sufficient weight to the evidence relied on by the mother or the notation to the orders of 8 October 2012.
The claim that the trial judge failed to consider the evidence, as has been explained, relates to her Honour’s refusal to receive the Family Report of
Mr P dated 19 September 2011. However, as is obvious from my previous remarks, I consider that her Honour was correct in refusing to receive that Report. As counsel for the father submits, that Report pre-dates the final orders; it cannot address any change of circumstance since those orders; and it can have no forensic value. Accordingly, there can be no merit in this aspect of this ground.
As to the notation to the orders of 8 October 2012, that can provide no comfort to the mother either. The notation provides as follows:
AND THE COURT NOTES the parties shall attend mediation no sooner than July 2013 should variations to time spent be sought by either of them and prior to that mediation the Mother shall provide an updated medical report informing as to her state of health and her compliance with medical direction.
The mother suggests that that notation “indicated the party’s expectations that the parenting orders would be revisited”. However, I consider that is putting it far too highly. As can be seen it provides for mediation, and not a return to court, and to suggest that that justifies a reopening of the litigation is fanciful. In any event, as explained by counsel for the father, the notation was in fact put in place to dissuade the mother from continuing to change arrangements.
Again, there is no error here by her Honour and thus no merit in this aspect of this ground of appeal.
Ground 3
As explained in the mother’s written summary of argument, in support of this ground she “refers to and repeats the arguments in support of Grounds 1 and 2”. Having found no merit in those grounds, and in particular that her Honour was correct in finding that there were no significant changes of circumstances to warrant a reopening of the litigation, there is also no merit in this ground.
Ground 4
Given the concession made by the mother’s counsel as to this ground, on the basis that there is no merit in Grounds 1, 2 or 3, this ground is not pursued and I need say nothing further about it.
Conclusion
Having found no merit in any of the grounds of appeal the appeal must be dismissed.
Costs
At the conclusion of the hearing I sought submissions as to costs depending on the outcome.
In the event that the appeal was dismissed the mother sought an order for costs against the father, calculated on an indemnity basis. That application was opposed by the father.
Any application for costs is governed by s 117 of the Act, ss (1) of which provides for each party to bear their own costs, but relevantly subject to ss (2) which provides that an order for costs can be made if there are circumstances that justify such an order. Subsection (2A) then sets out the factors that the court shall have regard to, in determining what order (if any), should be made under ss (2).
In support of an order for costs being made here counsel for the father relies primarily on the fact that if the appeal is dismissed the mother has been wholly unsuccessful ((2A)(e)). In opposition to an order being made counsel for the mother relies on the mother’s poor financial circumstances ((2A)(a)). The mother is an invalid pensioner receiving a Newstart allowance; she resides in government provided housing and she cannot meet the costs order made by the trial judge.
Although the financial circumstances of the mother might be said to militate against an order for costs being made, in this instance, I consider that the fact that she has been wholly unsuccessful requires that an order for costs be made. It was the mother who chose to file the Notice of Appeal and the father has had to respond to it. In so doing he has incurred significant legal costs, and given the result of the appeal, he should not have to bear the entirety of those costs. Thus, I find that there are circumstances here that justify an order for costs being made.
I now turn to whether those costs should be calculated on an indemnity basis or on the usual party/party basis.
In making the application for indemnity costs the father has not complied with the Rules. Rule 19.08(3) provides as follows:
A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.
I was not told of any costs agreement or the terms of the same. I was also not asked to waive compliance with that sub-rule under r 1.12.
In my view, despite the fact that there may very well be a basis for indemnity costs to be considered, the failure to comply with the Rules is fatal to the application. I have to assume that there is a costs agreement, otherwise there would be no basis for seeking indemnity costs, and for all I know that agreement may provide for a relatively high level of charges. Thus, I am in no position to decide whether it would be appropriate or not, when compared with the party/party scale, to require costs to be paid effectively in accordance with any such costs agreement, and that also prevents me dispensing with compliance with r 19.08(3), as I am able to do, under r 1.12 of the Rules.
In these circumstances I propose to order that the mother pay the costs of the father of and incidental to the appeal, with such costs to be assessed on a party/party basis in default of agreement
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
2 October 2014.
Associate:
Date: 2 October 2014
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