MACKENZIE & GALE (No.2)
[2015] FCCA 3117
•16 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACKENZIE & GALE (No.2) | [2015] FCCA 3117 |
| Catchwords: COSTS – Application for costs – where contraventions established – party and party costs – time to pay. |
| Legislation: Family Law Act 1975 (Cth), ss.70NAA, 70NEB, 117 Federal Circuit Court Rules 2001, Part 1, Sch. 1 |
| Cases cited: Mallet v Mallet (1984) 156 CLR 605 McAlpin v McAlpin (1993) 16 Fam LR 888; FLC 92-411 MacKenzie & Gale [2015] FCCA 2755 Penfold v Penfold (1980) 144 CLR 311 |
| Applicant: | MR MACKENZIE |
| Respondent: | MS GALE |
| File Number: | CRC 125 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing date: | Dealt with in chambers |
| Date of Last Submission: | 13 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mrs Tanner |
| Solicitors for the Applicant: | Coffs Coast Family Law |
| Solicitor for the Respondent: | Ms McKinnon |
| Solicitors for the Respondent: | Slater & Gordon |
ORDERS
The Respondent mother is to provide to the Applicant father by way of compensation for time that the father did not spend with the child X born (omitted) 2003 a total of eight (8) nights time with the child either by way of individual nights or in blocks of two (2) the first of which is to occur on or after 19 February 2016.
It is a condition of the above Order that the father is restrained by injunction from consuming any alcohol whilst the child X is in his care in accordance with the above Order.
The mother is to pay the father’s costs of the Application-Contravention in the sum of $4,135.50 within four (4) months of the date of this Order.
IT IS NOTED that publication of this judgment under the pseudonym MacKenzie & Gale (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
CRC 125 of 2010
| MR MACKENZIE |
Applicant
And
| MS GALE |
Respondent
REASONS FOR JUDGMENT
Application
The Respondent Mother has been found to have contravened earlier parenting orders without reasonable excuse on four occasions but to have established a reasonable excuse on three other occasions (MacKenzie & Gale[1]). Both the Applicant and the Respondent have now made submissions as to penalty and costs.
[1] [2015] FCCA 2755
Submissions as to Penalty
The Father submits that the appropriate Order should be for make-up time:
1. That the mother provide 8 nights makeup time as follows:
1.1The father will advise the mother by text message at least 7 days prior to the date/s the makeup time is to be taken, such time not to be refused by the mother.
The Mother submits that there should be no financial penalty imposed on her. In relation to makeup time she seeks to have the input of a Family consultant before decisions are made in relation to the child spending additional time with his father.
The Mother has filed an Application in the Brisbane Registry of the Court seeking to vary the primary orders. This Application is returnable on 2nd February 2016 at 9:30 am. It is hoped that an order will be made for a child inclusive conference to take place.
It is further submitted that:
Division 13A s.70NAA sets out what should happen in a contravention Case where a parent contravenes without reasonable excuse but where the contravention is of a less serious nature. The mother has promoted contact between the child and the father without incident from 2010 until 2015. The Court itself has found that the mother had reasonable excuse on three of the seven occasions to contravene. The mother has raised serious issues about the father’s capacity to protect X from exposure to dangerous behaviour, namely drink driving. The mother’s fresh application also raises issues about the quality of the relationship between the father and son and what role the father has taken in the poor quality of that relationship. The mother submits that it is in the interest of X’s welfare for a court consultant to see the parents and the child to ascertain what may be an appropriate solution for makeup time.[2]
[2] Submissions in relation to penalty and costs made by the Respondent Mother page 2 paragraph 6
Submissions as to Costs
The Father refers to the decision of the High Court in Penfold v Penfold[3] where it was held that s.117(1) of the Family Law Act 1975 (Cth) is not paramount to s.117(2) and that as s.117(1) is expressed to be subject to s.117(2) the former must yield whenever a Judge determines in a particular case that there are circumstances that justify making an Order (see also Mallet v Mallet[4]).
[3] (1980) 144 CLR 311
[4] (1984) 156CLR 605
It was further submitted that the Father’s income is not excessive and he has no funds excess to his needs. The Court’s jurisdiction to order costs under s.117 of the Family Law Act 1975 is unlimited (see McAlpin & McAlpin[5]) and the Court should have a reasonable expectation that the Mother has sufficient funds or the ability to raise funds for a costs order in a reasonable period. Neither party was in receipt of legal aid.
[5] (1993) 16 Fam LR 888; FLC 92-411
As to the parties’ conduct, it was submitted that the Father’s solicitors had written to the mother as early as 12th December 2014 seeking that she would comply with the existing orders, but she did not. These proceedings were commenced because she did not.
There were no written offers of settlement. Neither party was wholly unsuccessful in the proceeding.
The Father sought an amount of $4,135.50, calculated on a party and party basis in accordance with the Court Scale under Schedule 1, Part 1 of the Rules. The Father sought payment within three months.
The Mother submitted that she was partly successful in the proceedings, as the Court found that she had a reasonable excuse for three of the seven contraventions alleged. She has now corrected the position in that she has commenced proceedings to vary the existing Orders. The Application is returnable on 2nd February 2016 in Brisbane. Any financial penalty imposed on the Mother by way of a costs order would impact on the child’s future, as the Mother was hoping to send him to a private school. She is now unable to afford this.
Conclusions
The four contraventions found are of the less serious variety and therefore the sanctions under s.70NEB of the Family Law Act 1975 apply. I believe that it is appropriate that there should be make-up time ordered, as the child did not spend time with the Father on four occasions.
However, noting that proceedings have been commenced by the Mother to vary the primary order, I will delay the implementation of the Order for make-up time until on or after 19th February next year, after the Mother’s Application haws come back before the Court in Brisbane. I will also make an order restraining the Father from consuming any alcohol whilst spending time with the child on those occasions, as I note that the Mother expressed concerns about the child’s complaints that his father was drinking alcohol whilst driving him in the car. This untested allegation is concerning, and will need to be explored when the matter is back before the Court.
This is a case for an order for costs. The amount sought accords with the Court scale, although I will allow four months to pay rather than three. To my mind, the Mother’s conduct in not commencing proceedings to vary the existing orders and continuing to disobey the orders warrants the imposition of an order for costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 20 November 2015
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