Liddell and Macey and Anor

[2018] FamCA 1028

FAMILY COURT OF AUSTRALIA

LIDDELL & MACEY AND ANOR [2018] FamCA 1028

FAMILY LAW – COSTS – Circumstances justifying order – Quantum.

Family Law Act 1975 (Cth) ss 117, 117(2A)

APPLICANT: Ms Liddell

1st RESPONDENT: Ms Macey

2nd RESPONDENT: Mr Macey

INDEPENDENT CHILDREN’S LAWYER: Nicholas Eid Lawyer

FILE NUMBER: ADC 1539 of 2014

DATE DELIVERED: 7 December 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 23 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tredrea

SOLICITOR FOR THE APPLICANT: Carmen Wood & Associates

COUNSEL FOR THE 1ST RESPONDENT: Ms Ross

SOLICITOR FOR THE 1ST RESPONDENT: Clelands Adelaide Pty Ltd

COUNSEL FOR THE 2ND RESPONDENT: Mr Praolini

SOLICITOR FOR THE 2ND RESPONDENT: Angela Ferdinandy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lewis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nicholas Eid Lawyer

Orders

1. That the paternal grandmother pay the mother’s costs fixed in the sum of ONE THOUSAND FOUR HUNDRED AND FORTY DOLLARS ($1,440) payable to the Trust Account of Carmen Wood and Associates for and on behalf of the mother on or before four (4) calendar months from the date of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Liddell & Macey and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1539 of 2014

Ms Liddell

Applicant

And

Ms Macey

First Respondent

And

Mr Macey
Second Respondent

REASONS FOR JUDGMENT

introduction 

1. Following the hearing of a Contravention Application on 9 August 2018, orders were made on 29 August 2018 that dismissed the applications for contravention filed by Ms Macey (“the paternal grandmother”) on 21 March 2018 and 2 August 2018.

2. By Application in a Case filed 28 September 2018, Ms Liddell (“the mother”) seeks that the paternal grandmother do pay her costs fixed in the sum of $2,880.90.

3. The paternal grandmother opposes the mother’s application for costs.

QUANTUM OF COSTS NOT OPPOSED

1. The mother is in receipt of Legal Aid to enable her to be represented in complex parenting proceedings pertaining to X born in 2012 (“the child”). The contravention proceedings alleged that the mother failed to comply with parenting orders made 8 December 2014 and 15 September 2017 without reasonable excuse. A combination of the orders provided for the child to spend time with the paternal grandmother.

2. The quantum of the mother’s costs is the exact amount of the Legal Aid funding that was expended in the defence of the contravention applications. Whilst it was not disclosed, it is accepted that the mother’s grant of Legal Aid is subject to a funding cap and she would prefer to preserve, as far as is possible, her grant of Legal Aid to meet the anticipated costs of her representation at the final hearing.

3. The paternal grandmother accepts that if the Court exercises its discretion in favour of a costs order, then the quantum as sought is reasonable. The remaining consideration is whether a costs order should be made and if so whether in whole or in part of the sum sought. 

THE CONTRAVENTION PROCEEDINGS

1. The orders of 8 December 2014 provided for the child to spend overnight time with the paternal grandmother each alternate weekend and four hours with her on the intervening Friday. 

2. The orders provided for an injunction restraining the paternal grandmother from taking the child to visit Mr Macey (“the father”) whilst he was incarcerated, or until further order that permitted the child to have contact with the father.

3. The handover arrangements were the subject of variation by consent order made 15 September 2017.

4. As at the date of judgment delivery, the mother conceded that the child had not spent time with the paternal grandmother since March 2018. The mother argued that she had not contravened the orders on any of the 20 occasions as alleged because the orders were varied by correspondence dated 29 March 2017 and 31 January 2018, but that whilst they affected the arrangements they did not represent a variation of the orders.

5. I found that “the gravamen of non-compliance with the order arises from [the mother’s] suspicion that the child had come into contact with his father contrary to the injunction that restrains the paternal grandmother from allowing this to happen”. I found that the variations to the parenting orders arising from the correspondence did not represent a “mere variation” but rather, resulted in an entirely different order. Accordingly, I found that the paternal grandmother had not established that the mother had contravened the orders and the contravention applications were dismissed.

6. It is an important consideration that pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”) the Court is able to consider a change to parenting orders even in circumstances where a “contravention has been alleged but not established (subdivision C)”.

7. On 26 September 2018 orders were made that provided for the child to spend time with the paternal grandmother each alternate weekend from Saturday at 10 am to Sunday at 4 pm. It is agreed that the child has been spending time with the paternal grandmother pursuant to the orders.

MOTHER’S COST APPLICATION

1. In considering what orders should be made if any, in respect of the mother’s costs, s 117(1) of the Act provides that each party to proceedings shall bear his or her own costs.

2. If the Court considers that there are circumstances that may justify an order for costs being made, then the Court is required to consider the provisions of s 117(2A) as follows:-

   (a)The financial circumstances of each of the parties to the proceedings;

   (b)Whether any party to the proceedings is in receipt of assistance by way of Legal Aid and, if so, the terms of the grant of that assistance to that party;

   (c)The conduct of the parties to the proceedings in relation to the proceedings, including without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of fact, production of documents and similar matters;

   (d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)Whether any party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)Such other matters as the court considers relevant.

SHOULD AN ORDER FOR COSTS BE MADE IN FAVOUR OF THE MOTHER?

1. The mother is in receipt of Legal Aid and I accept her financial circumstances are modest. Without a grant of aid the mother will likely be a self-represented litigant. There is clear and obvious advantage to a party in being able to retain competent representation and it is also a stark factor that the Court is usually better assisted in determining what is in the best interests of a child if the parties are represented.

2. The financial position of the paternal grandmother, whilst superior to that of the mother is nonetheless parlous. 

3. The paternal grandmother is 68 years of age and single. She has part-time employment and receives $400 per fortnight together with an aged pension of $876 per fortnight. She has limited superannuation and I accept that she has paid $30,000 in legal fees since 2017.  She owns her own home worth $260,000 and a motor vehicle and boat to the total value of about $21,000.

4. She no longer has any financial resource to pay future legal fees and it is anticipated that she will apply for a grant of Legal Aid.

5. The financial circumstances of each of the parties are relevant to a determination as to whether the Court should exercise its discretion and make an order for costs in favour of the mother.

6. The principal ground relied upon by the mother is that the paternal grandmother was wholly unsuccessful in the contravention proceedings. The Court ordered that both applications be dismissed.

7. Counsel for the paternal grandmother contends that whilst unsuccessful, the applications were made necessary by the mother stopping the child’s time with the paternal grandmother which, whilst not enforceable was nonetheless clearly defined by reference to the correspondence that varied by consent the terms of the existing orders.

8. It is not a coincidence that following the dismissal of the contravention proceedings orders were made that effectively reinstated the child’s time with the paternal grandmother.

9. Counsel for the paternal grandmother contends that the contravention proceedings had utility under s 70NBA in that it provided the Court with an opportunity to reconsider what was in the child’s best interests, hence the orders made on 29 September 2018 for the child to spend time with the paternal grandmother.

10. Whilst the mother stopped the child spending time with the paternal grandmother because of her concern that the child was being brought into contact with the father contrary to the order of injunction, the gravamen of her defence to the contravention applications was a “technical” argument. No finding was made that the mother had a reasonable excuse for not complying with the orders arising from her fear that the paternal grandmother was facilitating the child coming into contact with the father.

CONCLUSION

1. The paternal grandmother could have brought an application to re-determine or vary the parenting arrangements for the child. She elected to proceed by contravention application. She was unsuccessful and in those circumstances it reasonable that an order for costs should be made in favour of the mother. A significant focus of the proceedings was in respect of what should be the future parenting arrangements pending final determination. The mother’s actions were clearly the catalyst for the paternal grandmother filing the contravention proceedings albeit that they were ill-conceived.

2. To provide for the ongoing interim arrangements as such there was clear utility in the proceedings.

3. I propose to order that the paternal grandmother pay the mother’s costs fixed in the sum of $1,440 with four calendar months to pay. I bring to account the deteriorating financial circumstances of the paternal grandmother as the basis for the extended time allowed for payment of the costs order.

4. I make orders as appear at the commencement of these reason.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 7 December 2018.

Associate: 

Date:  7 December 2018