Houghton and Sutcliffe - [2007] FMCAfam 380

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOUGHTON & SUTCLIFFE

[2007] FMCAfam 380

FAMILY LAW – Practice and Procedure – costs – mother’s application for costs against father – father’s application for costs against mother – consideration of whether court functus officio – application of the slip rule.

FAMILY LAW – Practice and Procedure – costs – costs of dismissed contravention application – costs of costs application.

Family Law Act 1975

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Arnett v Holloway (1960) VR 22
Hatton v Harris (1892) AC 546
Dogramaci & Dogramaci [2000] FamCA 1668
Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) (CA)(NSW) 29 April 1991, unreported
Kazimierczak & Koch (1987) FLC 91-849
L Shaddock & Associates Pty Ltd and Anor v Parramatta City Council (1982) 56 ALJR 875 (HC)
Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193
O & L [2005] FamCA 1233
Russell & Russell [1998] FamCA 833

Applicant:

MS HOUGHTON

Respondent:

MR SUTCLIFFE

File number:

DGM 2068 of 2006

Judgment of:

Sexton FM

Hearing date:

1 June 2007

Date of last submission:

1 June 2007

Delivered at:

Sydney

Delivered on:

7 June 2007

REPRESENTATION

Counsel for the Applicant:

Ms Swart

Solicitors for the Applicant:

Ann E Gambetta & Associates

Respondent:

In person.

ORDERS

Order 8 of Orders made 28 July 2006 be discharged pursuant to Rule 16.05(2)(e) of the Federal Magistrates Court Rules.
In relation to the mother’s application for costs of recovery proceedings heard 19 July 2006 in Melbourne and 28 July 2006 in Sydney, the father pay the mother’s costs in the sum of $3,800.00 within 28 days.
The father’s application for costs of the recovery proceedings be dismissed.
The father pay the mother’s costs of the contravention application in the sum of $3,000.00 within 28 days.
The father pay the mother’s costs of her costs application in the sum of $635.00 within 28 days.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

DGM 2068 of 2006

MS HOUGHTON

Applicant

And

MR SUTCLIFFE

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings heard before me on Friday 1 June 2007 involved 7 applications between the parties:
a)The mother’s application for costs against the father arising out of an application for the recovery of the parties’ three children, A, 10, D, 9 and B, 6, filed by the mother in Melbourne on 18 July 2006 and heard in Melbourne on 19 July 2006 and Sydney on 28 July 2006;
b)The father’s application that I am functus officio in relation to the proceedings heard in July 2006 and that the mother therefore cannot make an application for costs;
c)The mother’s oral application pursuant to Rule 16.05(2)(e), known as a slip rule application;
d)In the alternative to (b), the father’s application for costs against the mother arising out of the proceedings heard on 28 July 2006;
e)The father’s application for contravention filed 10 April 2007;
f)The mother’s application for costs of the contravention proceedings; and
g)The mother’s application for costs of the costs application.
Although in affidavit material filed prior to hearing, the father foreshadowed an oral application for me to disqualify myself from hearing the case, the father advised the court on the morning of hearing, that he did not intend to make such an application.
The mother was represented by Ms Swart of counsel. The mother had travelled from her residence in New Zealand to attend the hearing.

Ms Swart had travelled from Melbourne. The father represented himself. The father had filed a number of affidavits and an application for contravention. The mother’s counsel advised the court her instructing solicitors had not been served with all the affidavit material the father had filed, nor had they been served with the father’s Application for Contravention filed 10 April 2007. The father told the court he had not been served with the mother’s application for costs nor with her affidavit in support filed on 19 April 2007. The father was unable to readily identify which affidavit evidence he relied on in support of his applications. As a consequence, considerable time was spent at the outset of the hearing identifying the affidavits the father relied on, arranging for photocopies to be made of various documents which had been filed and ensuring the Court and both parties held complete copies of all the material relied on by each party.

Conduct of the proceedings

The hearing was conducted over the course of a full day. During the morning, I heard the costs applications by each party in relation to the July 2006 proceedings, the father’s application that I was functus officio and the application under the slip rule, and the father’s application for costs of the July 2006 proceedings. I did not give a decision in relation to those applications on the day of hearing. In the afternoon, I heard the father’s application for contravention and dismissed the application with short oral reasons. During the course of hearing that application, when the father became aware of the problems with his evidence, I also heard and dismissed the father’s application for an adjournment of the hearing of his contravention application. I then advised the parties, in light of the evidence I had considered, that intended to vary a number of the current parenting orders. After inviting submissions from both parties on those variations, I made orders varying three of the orders made on 28 February 2003. I then heard the mother’s application for costs of the contravention proceedings. Given counsel had travelled from Melbourne and the mother had travelled from New Zealand for the hearing, I also heard the mother’s application for costs of the costs application in the event her costs application was successful. I did not give decisions in relation to the further costs applications on the day of hearing.
I have already given reasons for my decision to dismiss the father’s application for contravention. These are my reasons for decisions in relation to the applications earlier identified in paragraph 1 as (a) (b) (c) (d) (f) and (g).

Background

The parties separated in 2001. They have 3 children, A 10 years, D 8 years and B 5 years. The current parenting orders were made by consent in February 2003 by which time the mother was living in New Zealand. The father was living in Melbourne at that time. The 2003 orders provide for the children to live with the mother in New Zealand and to spend time with the father for half of each New Zealand school holiday period, alternating in each school holiday period between Australia and New Zealand. The orders also provide for the children to have telephone communication with the father each Tuesday, Thursday and Sunday between 5 and 5.30 p.m. Melbourne time or at times otherwise agreed between the parties. The mother and children remain living in a country town in New Zealand. The father now lives in Sydney.

Short history of these proceedings

It is common ground that the father did not return the children to New Zealand at the end of their time with him in the July 2006 school holidays in accordance with the orders of February 2003. On 18 July 2006 the mother filed an application in the Melbourne registry of the Federal Magistrates Court seeking orders on an urgent ex parte basis that the children be returned to her forthwith or that a recovery order issue. The mother also sought a watch list order and an order that the father reimburse her for any costs incurred in respect of the collection of the children pursuant to the execution of the recovery order. The matter came before Federal Magistrate Walters in the Melbourne Registry on 19 July 2006. The mother was represented by counsel. The father was located during the course of the day and appeared for himself by telephone from Sydney. On 19 July 2006, the Court restrained the father from removing the children from Australia, listed the children on the airport watch list and ordered the father to deliver the children to the child care centre of the Sydney Registry at 9.15 a.m. on 28 July 2006. The Court reserved the mother’s costs and transferred the proceedings to the Sydney Registry. On 28 July 2006 the father filed a response to the mother’s application seeking orders inter alia that the children live with him and spend time with the mother. He also sought costs. On the same day, the father filed an application for contempt alleging the mother had contravened an undertaking made to the father and to the court on 26 February 2003.
On 28 July 2006, a duty day, I heard the mother’s application for the return of the children. At the same time, given the mother was about to return to New Zealand, I dealt with the contempt application filed by the father on 28 July 2006, returnable on 16 August 2006 and served on the mother on the same morning. I vacated the August return date. Neither party was represented at the hearing of 28 July 2006, despite a Notice of Address for Service being filed by Atkinson Vinden Heazlewoods on behalf of the father on 27 July 2006. The mother relied on her affidavit filed 18 July 2006 and on the morning of 28 July 2006 filed a number of further affidavits sworn by neighbours, family and friends in support of her application. The father filed two affidavits in support of his response and application for contempt.
The matter was mentioned and stood in the list a number of times as the Court had many other matters to deal with. Having regard to the provisions of Division 12A of Part VII of the Act, which apply to Division 13A proceedings, I had the parties sworn in at the Bar Table at 2.58p.m. I asked both parties a number of questions and invited each party to make submissions. The mother acknowledged she had not complied with the undertaking she had made to the Court and to the father on 26 February 2003 that she not expose the children to her uncle, Mr H. Having heard from the parties, and having read the material each party relied on, I made the following orders:
1. Upon the Court being satisfied that the mother did contravene her undertaking made to the Court and to the father on

26 February 2003 without reasonable excuse in that the mother exposed the children to the mother’s uncle, Mr H, the Court orders that:
(a) Undertaking 7(a) made 26 February 2003 be discharged;
(b) The mother be restrained from permitting the children or any of them to be cared for in the home of Mr H;
(c) The mother ensure the children do not enter the property of her partner, Mr L at any time Mr H is present on that property or during working hours on that property, being between 5.00a.m and 6.30p.m., while Mr H remains an employee of Mr L; and
(d) The mother be restrained from permitting the children or any of them from coming into contact with Mr H.
THE COURT FURTHER ORDERS THAT:
2. The children A born in 1996, D, born in 1997 and B, born in 2000 [“the children”] be returned to the mother from the child care section of this Registry on Friday 28 July 2006.
3. The father be permitted to spend ten (10) minutes with the children in the child care section before they are returned to the mother and the father be restrained from denigrating the mother or commenting unfavourably on her during this period.
4. The father make the children’s passports and personal possessions available for collection by the mother’s father from the father’s residence at Property M between 7.00p.m and 7.30p.m. on Friday 28 July 2006.
5. IT IS NOTED that the parties agree that in accordance with Order 5(a) of Orders made 26 February 2003 the children will spend time with the father in the September/October 2006 school holidays in New Zealand, in the January 2007 school holidays in Australia and alternating thereafter between Australia and New Zealand.
6. IT IS NOTED that each party understands that Orders made on 26 February 2003 as varied by Orders made today, must be strictly complied with until any variation is made by a Court.
7. IT IS NOTED that it is the intention of the father to apply to the Family Court in New Zealand to vary the present Orders and the father intends to seek an Order that the children live with him in Australia.
8. All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
It is clear from the transcript of the proceedings on that day, that during the course of the hearing, the following exchange took place between the mother and myself[1]:
[1] Page 31 of the transcript of proceedings.
Ms Houghton: Your Honour, I’d also like to seek costs, Your Honour.
Federal Magistrate: Don’t worry about costs for the moment, Ms Houghton. This is just – we’ll just deal with one thing at a time…
The transcript continues for a further 18 pages. It is clear from the transcript that neither party raised the costs issue again, and that I did not address the question of costs. The matter concluded at 4.39 p.m. I recall the court and the parties being concerned to have the three children released from the child care centre in the registry as quickly as possible, given they had been there all day and the child care supervisor was due to leave.
On 26 September 2006 the mother’s solicitors sought to re-list the matter on the question of the mother’s costs of the proceedings of July 2006. The mother’s solicitors said from a reading of the transcript of

28 July 2006
, they noted the court had intended to deal with the question of costs but had not done so. On 13 November 2006 the father filed another application for contempt.
The matter came before me on 27 November 2006 when I noted on the record the father’s contention that in light of Order 8 of the Orders made 28 July 2006, it was not open to either party to now make an application for costs. The father submitted that the court was ‘functus officio’ because the court had ordered that all outstanding applications be dismissed, which included each party’s costs application sought in the mother’s original Application and the father’s Response filed prior to the hearing.
On 13 March 2007 I ordered the mother to file an application for costs in relation to the July 2006 proceedings and an affidavit in support. I ordered the father to file an amended application on the correct Form 18 ‘Application for Contravention’ and a response to the mother’s application for costs. I listed the matter for hearing on 1 June 2007 and marked the matter ‘with priority’ as the mother was travelling from New Zealand for the hearing.

Mother’s application for costs of recovery proceedings in July 2006

In responding to the mother’s counsel’s oral submissions on the question of costs, the father did not refer to his ‘functus officio’ argument. However, given he was unrepresented and he had raised the issue in earlier mentions and in his affidavit material, I invited him to tell the court whether he wished to pursue this argument at hearing. He said he did.
As far as I can make out, the father argues, in his affidavit filed

13 November 2006, that on the authority of Kazimierczak & Koch[2] my judgment “had been perfected by the nature of the orders and by being drawn up and sealed and signed by her Honour on 28 July 2006” in particular by the terms of Order 8 that “all outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.” The father says he further relies on the authority of O & L[3]. The father deposes in another affidavit filed 31 January 2007 that “there is an inconvenient common law doctrine… that a power conferred by statute is exhausted by its first exercise (see Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193. In the event of an application for revocation of Order 8, I would submit that detrimental reliance raises an estoppel which prevents the order being revoked.”
[2] (1987) FLC 91-849
[3] [2005] FamCA 1233
The mother’s counsel does not respond to these submissions and I do not accept them. The Full Court of the Family Court in Dogramaci[4], an unreported decision (delivered on 20 December 2000), in dealing with the issue of whether the trial judge was functus officio said this:
[4] [2000]FamCA 1668
“The CCH Macquarie Concise Dictionary of Modern Law (Sydney: CCH, 1988) defines the term “functus officio” as follows:
“Functus Officio: having discharged his duty. The phrase is used of an agent or official who, having performed his function, has no further authority in the matter.”
Further, The Australian Digest, Chapter Eleven, Part G – Estoppel, Division 3 – Intra Vires Estoppel notes:
“The validity of a decision to revoke an earlier decision turns on the question of whether the decision-maker is functus officio once the decision is made. It does not turn on the applicability or otherwise of estoppel. (see Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 (FC), Gummow J at 211). It is a question of statutory interpretation whether a particular power is only exercisable once and for all, or may be exercised from time to time as the circumstances require unless the contrary intention appears…If, as a matter of statutory interpretation, a decision is revocable the no-fettering principle applies and detrimental reliance on the original decision does not raise an estoppel preventing revocation...”
The only decision under the Family Law Act, in relation to the doctrine of functus officio to which we have been referred, is the decision of Kazimierczak & Koch (1987) FLC 91-849 in which it was argued that “…because the judgment [of the Court] had been perfected by being drawn up and signed by the Registrar…the court was functus officio and that no new order could be made for costs thereafter in the proceedings.” (page 76,418). The Full Court held that (page 76,418):
“…Whatever may be the rule in other courts, the question of costs in the Family Court [as in the Federal Magistrates Court] is regulated by s 117 of the Act. Since the power to award costs is derived from statute any limitation as to the exercise of that power must be found within the statute itself.”
In Kazimierczak & Koch there was no application for costs in the initiating application and no application for costs made at the time of delivery of judgment. The wife filed an application for costs seven weeks out of time. The wife’s application was successful. The husband appealed on the ground that the application was out of time and that the judgment had been perfected by being drawn up and signed and as a result the Court was functus officio and no new order could be made for costs. As already noted, the Full Court held at 76,418:
The Court was not functus officio – since the power to award costs is derived from the Act, any limitation as to the exercise of the power to award costs must be found within the Act itself.
In O & L, Justice Boland heard an application for a permanent stay of a costs order already made (the question of costs having been determined shortly after the substantive proceedings), and it was in relation to this application for a stay that the Court was determined to be functus officio.
In both the cases referred to, the question of costs had already been determined. In the present case, it is clear from the transcript that the mother wanted the court to determine her application for costs and the court did not hear her application. At no time did the Court make a finding in relation to costs.

The mother’s counsel submits that the father’s submission is misconceived. Counsel submits that Rule 21.02 of the Federal Magistrates Court Rules provides that an application for an order for costs may be made within 28 days after a final order is made, or within any further time allowed by the Court. Counsel submits the Order to dismiss outstanding applications in no way precludes a further application by either party for costs. Counsel says if the court does not accept her submission, she seeks leave to make an oral application for discharge of Order 8 of the Orders of 28 July 2006, pursuant to the ‘slip rule’ given the Court clearly intended to address the issue of costs, but in the difficult circumstances of the day, did not address the mother’s application made in her application and during the course of the hearing.
I am not sure counsel’s first submission in relation to the effect of Rule 21.02 is correct, given each party had sought an order for costs in the original application and response and the court ordered “all outstanding applications be dismissed”. In any event, I find it unnecessary to decide the question as I am satisfied Order 8 should be discharged pursuant to the ‘slip rule’.
In Russell & Russell [1998] FamCA 833, his Honour Justice Chisholm (as he then was) provided a useful summary of the authorities in relation to when the court will invoke the slip rule:
“It is well established that there is a jurisdiction to correct errors, known as “the slip rule”. Jurisdiction arises both under the rules of the court…and the inherent jurisdiction. Its exercise is discretionary, and it extends to authorise the correction of an omission…regardless of whether the order has been drawn up, passed and entered.[5]
The nature of the slip rule, and its rationale, emerge from the following passage from a judgments of Mason CJ[6]:
What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing…
It has been said that the rule will be applied only where the applicant can show “first, that the judgment as passed and entered contained an error; secondly, that such error was due to an accidental slip or omission”[7] It has been said that the test of whether a mistake is “accidental” is whether, had it been drawn to the attention of the court at the time, the correction would at once have been made;[8] or that the rule applies to inadvertent mistakes and not to mistakes that are the consequences of a deliberate decision.[9]
[5] L Shaddock & Associates Pty Ltd and Anor v Parramatta City Council (1982) 56 ALJR 875 (HC)
[6] Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, 301, per Mason CJ.
[7] Arnett v Holloway (1960) VR 22, at 24, per Adam J.
[8] Hatton v Harris (1892) AC 546, 558, per Lord Herschell.
[9] Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) (CA)(NSW) 29 April 1991, unreported; cited in a paper by Baker J, “The Recall and Amendment of Judgments in the Family Court of Australia” (undated).
It is clear from the transcript that it was not the court’s intention to dismiss either party’s application for costs. As already noted, the mother brought to the court’s attention her application for costs during the course of the hearing. Unfortunately, she did not raise it again, and her application was not heard. I am satisfied the order dismissing all outstanding applications should not have been made given neither party’s application for costs had been heard. As said by Justice Chisholm[10]:
it does not assist the parties or the cause of justice to confine too narrowly the powers of the trial judge to correct an obvious slip…
[10] Russell & Russell [1998] FamCA 833 at 6.
Applying the test in Russell, I am satisfied that had it been brought to the Court’s attention that the mother’s application for costs had not yet been determined, before the orders were made, the Court would have determined the application, or, given the particular circumstances on the day, adjourned the application for hearing of the costs application to another day. Order 8 of orders made 28 July 2006 will therefore be discharged pursuant to the ‘slip rule’ and the mother’s application for costs determined.
The mother relies on her original application filed 18 July 2006, her application filed 19 April 2007 and the affidavit of her solicitor sworn 13 April 2007. The mother seeks costs of $4,452 (solicitors’ costs) + $1,500 (counsel’s fees) + $944 disbursements, which totals $6,896.00. Counsel submits and I accept, this sum is less than if costs were calculated in accordance with Schedule 1 of the Federal Magistrates Court Rules. Counsel itemises the scheduled costs, being a total of $8,264, as follows:
a)$1875 – lump sum stage 1A up to completion of first court day;
b)$2250 – daily hearing fee for full day 19 July 2006 in Melbourne, including 50% advocacy loading;
c)A portion of $3,195 – lump sum stage 5 for preparation for final 1 day hearing; and
d)$944 in disbursements – the mother’s flight from Auckland to Melbourne, from Sydney to Auckland and accommodation in Sydney.
The father did not file a response to the mother’s application, but tells the court he opposes the mother’s application. He says he always believed each party would pay their own costs as the mother’s father was in court at the time of the hearing and the “mother’s father is a multi millionaire.” The father then submits that the mother cannot be entitled to costs when the court has found her to be in breach of an undertaking she gave to the court in February 2003 not to bring the children into contact with the mother’s uncle, Mr H. The father says he was justified in keeping the children in breach of the 2003 orders because he believed the children were at risk. The father says the children made it clear to him in July 2006 that they wanted to remain living with him and he says as a responsible father, and in light of the legal advice he received, he had no choice but to keep the children with him. He also submits the mother had agreed to the children living with him in 2005 and he was therefore surprised the mother objected to the children living with him in July 2006. He argues that until July 2006, he has complied with the orders which should satisfy the court that his concerns at that time were genuine and his decision to keep the children, justified. He says the court should also take into account the mother’s offer to settle the costs question on the basis of a payment by him to her of $2,000. I found the father’s various submissions somewhat inconsistent.
Ms Swart concedes the court may, at first glance, consider it inappropriate to award costs to the mother in light of the court’s finding on 28 July 2006, on her own admission, that the mother breached her undertaking of 26 February 2003 not to bring the children into contact with Mr H. However, Ms Swart submits that in light of the whole of the circumstances, the matter should not end there. Counsel submits the July 2006 proceedings involved a two stage process, involving proceedings in both Melbourne and Sydney, as a direct result of the father’s conduct. When the children were not returned at the end of their time with the father in the July holidays, the mother travelled to Melbourne to retain solicitors to file an urgent application for a recovery order, because she believed the children were with the father in Melbourne. The mother deposes to receiving a text message at 4.22:10 on 17 July 2006, the day the children were due to return to New Zealand which read as follows:
Ms Houghton the boys do not want 2 come back to nz. I enrolled them in a private school in Melb today. Thanx 4 nice voice message.
Counsel submits the mother did not discover the children were in Sydney until the father was located during the course of the proceedings before Federal Magistrate Walters in Melbourne on

19 July 2006
. The mother was therefore put to the expense of retaining solicitors and counsel in Melbourne, and appearing in the Melbourne Federal Magistrates Court for the whole of the day on 19 July 2006. Counsel argues that this hearing could have been avoided altogether had the father not misled the mother as to the children’s location. Counsel submits the mother was successful in obtaining a watch list order in the Melbourne hearing because her fear that the father might take the children from Australia to Turkey was found to be genuine. The mother was also successful in obtaining an order for the children to be brought into the Sydney Registry of the Court. The mother was then required to travel to Sydney, find accommodation and appear in the Federal Magistrates Court in Sydney a week later. She was then faced, without warning, and unrepresented, with an application for the children to live with the father in Sydney and an application for contempt. Counsel submits the mother should not be penalised for making appropriate concessions in relation to the children’s contact with Mr H, particularly as the father’s contempt application was not dealt with formally in the usual way. Further, counsel submits the mother should not be penalised for consenting to the father’s contempt application being heard on that day to avoid a further hearing in Sydney on a later date. Counsel submits the mother faced considerable trauma from 17 July when she went to the airport in New Zealand to find the children had not been returned, until the children were returned to her by order of 28 July. The mother had to borrow money from her father to meet her legal costs and the expenses of travel. Counsel submits that in all the circumstances, the father’s conduct warrants a costs order against him, as the mother incurred the costs as a direct result of the father unilaterally deciding to keep the children after the holidays in breach of parenting orders which had been in place since 2001.
In answer to questions from me, the father says he cannot recall sending the text message referring to Melbourne though concedes it is possible. However, he says although he usually takes the children to Melbourne during the holidays to see his family, the mother knows he lives in Sydney and should have known the children were in Sydney. The father says the mother only went to Melbourne because her solicitors for earlier proceedings are located in Melbourne. The father also says the mother had agreed in 2005 to the children moving to Australia and he was surprised that she objected to him keeping them with him and enrolling them in new schools.
I found the father’s evidence unconvincing. When I asked the father whether he had sent the text message as claimed by the mother, he said he could not recall doing so, but could not deny it. He only changed his position when cross examined by Ms Swart. I am not persuaded the mother went to Melbourne merely because her solicitors are located there. Her solicitors could have as readily filed an application in Sydney as in Melbourne, and I have no doubt would have done so, had they been instructed the father and children were in Sydney. Had they done so, the children are likely to have been returned to the mother days earlier. I am satisfied the Melbourne proceedings would have been avoided had the mother known the children were in Sydney.
In accordance with s.117(1) of the Family Law Act 1975 the usual rule in family law proceedings is that each party will pay their own costs. However, s.117(2) provides that the court may order costs if it is satisfied that there are circumstances that justify it in doing so.
When the court is considering what order should be made the court must have regard to the matters referred to in s.117(2A) sub-ss.(a) to (g):

a)The financial circumstances of each party.
As neither party filed affidavit evidence in relation to his/her financial circumstances, each party gave short evidence. The mother supports herself and the children on the equivalent of a sole parent benefit and $50 a month from the father in child support. She owns a home in a country town in New Zealand, subject to a mortgage, and a car. She has no other assets. The mother says she spends the whole of her income each week on hers and the children’s expenses. The mother is shortly to complete her degree and hopes to obtain employment soon.
The father says he operates two clinics and his income fluctuates between $80,000 and $200,000 a year. He says he earned an estimated $120,000 in the 2006 financial year and anticipates a similar income this year. He says he works 17-18 hours a day to support his children. He says he owns a car, an apartment in Property M, a property at Property E on the south coast of New South Wales, and two strata title units from where his clinics are run. Apart from one of his units, he says the properties are all encumbered by way of mortgage. He says he has no other debts. He used the $125,000 he recently won in Tatts Lotto towards the purchase of Property E. He says he spends $50,000 a year on the children and relies on an invoice for $843[11] in relation to expenditure for children’s clothing. He does not dispute he pays $50 a month in child support. I do not accept the father’s evidence on his income and expenditure. However, I am satisfied the father is in a much stronger financial position that the mother.
The significant disparity in the parties’ financial circumstances is a factor I take into account.
b)Whether any party is assisted by legal aid.
Neither party was assisted by legal aid.
[11] Exhibit 4.

c)The conduct of the parties to the proceedings.
The mother’s counsel acknowledges, to the father’s credit, that he brought the children to the child care facility in the Sydney registry, as ordered. I find no other relevant facts in relation to conduct.
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.
Ms Swart submits the proceedings were necessitated by the father’s failure to comply with orders that the children live in New Zealand with the mother which had been in place since 2001.
The father submits he had no choice but to keep the children, given his fears as to the children’s safety once he was aware they had been in contact with Mr H. I accepted into evidence by consent, a piece of paper with a child’s writing in support of his contention[12]. Because the writing is undated, the writer is not identified and the context is not explained, I have no regard to the document.
I was critical of both parties during the proceedings on 28 July 2006, the mother for having breached her undertaking to the Court to ensure the children were not brought into contact with Mr H and the father, for failing to return the children to the mother in New Zealand, in accordance with the orders.
Both parties argue that the failure of the other to comply with court orders is what brought the matter to court in the first instance. The mother submits that her substantive application was only necessary because the father failed to return the children to the mother in July 2006. The father submits that one of the reasons he did not return the children in July 2006 was because of the mother’s failure to comply with her undertaking not to bring the children into contact with Mr H and he genuinely believed that the children’s safety was at risk. The father further submits that he has a history of compliance with court orders between 2001 and 2006 and the court would be satisfied that he only breached the orders because of his concerns about the children’s safety. Yet he also says he understood the mother agreed to the children living with him in Sydney.
I am critical of both parties for failing to comply with court orders and I take this factor into account in reaching my decision.
e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings.
Counsel for the mother says that the court would be satisfied that the mother was wholly successful in her application to have the children returned to her in New Zealand and the fact that she made the concession in relation to the children being exposed to Mr H and consented to a variation of orders does not mean the father was successful in his application for contempt. The mother’s counsel submits that the mother should not be penalised, given the significant costs she has incurred, because of her honesty and cooperation with the court.
In relation to the mother’s application for recovery of the children, the father was wholly unsuccessful. In relation to the father’s application for the children to live with him, the father was wholly unsuccessful. In relation to the father’s application for contempt, I find the mother conceded an error of judgment in allowing the children to be exposed to Mr H in breach of her undertaking, which led to a finding against her. I take that factor into account. I agree with Ms Swart however, that the mother was not wholly unsuccessful in the sense contemplated by the sub-section, given the manner in which the matter proceeded on that day.
f)Whether either party has, in accordance with section 117C or otherwise, made an offer in writing to the other party to settle the proceedings and the terms of any such offer.
Neither party adduced evidence of making an offer to the other side. The father asked me to have regard to an offer the mother made to him to pay her $2,000 in lieu of her costs, but as I explained to him during the hearing, this offer related to the costs of the costs application, not the costs of the July 2006 proceedings. The father also appears to have misunderstood an email from the mother suggesting her solicitors were acting on a pro bono basis.[13]
[12] Exhibit 2.
[13] Exhibit 1.
g)Any such matters as the court considers relevant.
I take into account my finding that the Melbourne proceedings would have been avoided but for the father misleading the mother as to their whereabouts.

As a preliminary step to making a costs order, I must find that there are circumstances which justify the making of such an order. I take into account the significant disparity in each party’s financial circumstances. I also take into account that the matter would have been dealt with more expeditiously and at less cost to the mother had she been aware the children were in Sydney on 18 July 2006. I take into account my finding against the mother in relation to her breach of the undertaking of February 2003. On a weighing of these factors, I am persuaded it is appropriate to make an order for costs in favour of the mother but given the finding made against the mother, not to the extent sought. I find $3,800 appropriate in all the circumstances.

Father’s application for costs

The father seeks an order in his Response filed 28 July 2006 that the mother pay his costs of and incidental to the proceedings. The father seeks costs of $6,131 to reimburse him for the costs of legal fees paid for advice. He relies on an invoice from Atkinson Vinden Heazlewoods, solicitors, dated 24 August 2006 for $2,500.00.[14] He adduces no other evidence in support of his claim.
[14] Exhibit 3.
The father says at paragraph 34 of his affidavit sworn 28 July 2006 that he sought some initial legal advice from Atkinson Vinden Heazlewoods and was in the process of instructing them when the mother filed her initiating application. Atkinson Vinden Heazlewoods filed a Notice of Address for Service on 27 July 2006 and have not filed a Notice of Ceasing to Act. I note however, that the firm’s name does not appear on the father’s Response filed a day later, 28 July 2006, nor has the father been represented at any court appearance throughout these proceedings.

The father says [at paragraph 3 of his affidavit sworn 16 January 2007] that he was given incompetent legal advice and ended up representing himself. If this is so, it may be the father has not paid for the advice. The father adduces no documentary evidence as to payment.
The father adduces no evidence and makes no submissions in relation to the matters to which I must have regard under s.117(2A).
I dismiss the father’s application for costs.

Mother’s application for costs of the costs application

The mother relies on her application filed 19 April 2007. Ms Swart submits if the mother is awarded any costs of the July 2006 proceedings she should be entitled to her costs of the costs application: firstly, on the basis the father has been wholly unsuccessful, and secondly, on the basis the mother offered to settle the costs question on the basis of a payment of $2,000 by the father. I accept counsel’s submission that the mother is entitled to costs of her costs application. Pursuant to Stage 7 of Schedule 1 of the Rules, the mother claims $635 which I find reasonable. I have made an order in that sum.
On the day of hearing, I dismissed the father’s application for contravention filed by way of a contempt application in November 2006 and a Form 18 contravention application in April 2007. The mother seeks her costs.

Mother’s application for costs of the father’s contravention application

I accept Ms Swart’s submission that the mother is entitled to her costs of the father’s contravention application pursuant to s.70NCB of the Act. The father made this submission in response to Ms Swart’s submission:
I consulted a lawyer on 2 separate occasions who basically advised me that today’s hearing was a fait accompli.
…that this would go on appeal and that he would appear on appeal.
I am satisfied a costs order should be made in favour of the mother in relation to the father’s contravention application because of the following factors:
a)The mother was required to travel from New Zealand to appear personally at the hearing as a result of the contravention application. She would not have been required to appear personally on the costs application;
b)The disparity in the parties’ financial circumstances;
c)The father was wholly unsuccessful; and
d)As submitted by Ms Swart, the case was made much harder for her client as a result of the disorganised way in which the father presented his oral and written evidence. I agree with Ms Swart it was very difficult for the mother, and indeed the court, to know precisely what allegations the mother was meeting and the evidentiary basis of those allegations. The father’s evidence was confused and at times irrelevant to the question to be decided.
The mother claims $400 in airfares to and from New Zealand, $218 for two nights’ accommodation and $20 in transfer costs, a total of $638 in disbursements. In addition, she claims counsel’s fees for a one day hearing in accordance with Schedule 1 of the Federal Magistrates Court Rules at $2,250 including an advocacy loading and an amount towards her solicitors’ costs for reading and advising on the husband’s material. I take into account that the mother was not required to prepare any documents in relation to this application. I make a costs order in favour of the mother in the sum of $3,000.00.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Collette McFawn

Date: 7 June 2007