Mahoney & Dieter
[2021] FedCFamC1F 111
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Mahoney & Dieter [2021] FedCFamC1F 111
File number(s): MLC 4348 of 2020 Judgment of: MACMILLAN J Date of judgment: 8 October 2021 Catchwords: FAMILY LAW – INTERIM HEARING – where the child’s step-father and the mother seek an order placing the child on the Airport Watch list – where the step-father and mother live in New Zealand – where the father and the child live in Australia – where final orders were made in the Family Court of New Zealand and registered in the Family Court of Australia – where the threshold issue of whether there has been sufficient change in the circumstances to warrant the matter being re-litigated has been listed for hearing – where there is no evidence establishing a risk of the child being removed from the Commonwealth of Australia and not returned or any attempt to frustrate the applicants application for parenting orders – where a Watch list order not made. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 65AA, 68B, 117, 117(2A), 102(Q)(1), 102QB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.17
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481
CDJ v VDJ (1998) 197 CLR 172
Flanagan & Handcock (2001) FLC 93-074
Kuebler & Kuebler (1978) FLC 90-434
Lees & Halstead and Anor [2018] FamCA 920
Line & Line (1997) FLC 92-729
Marsden & Winch (2013) FLC 93-560
Division: Division 1 First Instance Number of paragraphs: 49 Date of hearing: 22 September 2021 Place: Melbourne The Applicants: In Person Counsel for the Respondent: Ms Harris Solicitor for the Respondent: Melbourne Family Lawyers ORDERS
MLC 4348 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MAHONEY
First Applicant
MS MAHONEY
Second Applicant
AND: MR DIETER
Respondent
ORDER MADE BY:
MACMILLAN J
DATE OF ORDER:
8 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Applicants Application in a Case filed 5 July 2021 is hereby dismissed.
2.The Application in a Case filed by the Applicants on 5 July 2021 was instituted and conducted as a vexatious proceeding within the meaning of s 102(Q)(1) of the Family Law Act 1975.
3.The Applicants pay the Respondent's costs of and incidental to the Application in a Case filed 5 July 2021 fixed in the sum of $5,418.22.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mahoney & Dieter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Macmillan J
The application listed for hearing before me in the Judicial Duty List was the applicants Application in a Case filed on 5 July 2021 seeking an order in the following terms:
That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, Mr Dieter, Ms Mahoney and Mr Mahoney their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X (DOB …/…/2011) from the Commonwealth of Australia or from New Zealand for a period of eight (8) years to any destination other than the Commonwealth of Australia or New Zealand.
AND IT IS REQUESTED that the Australian Federal Police and the New Zealand Police give effect to this order by placing the name of the said child X (and the name X) on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and New Zealand and maintain the child's names on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties.
BACKGROUND
The child the subject of these proceedings is X (“the child”) born in 2011 who is 10.
The first named applicant Mr Mahoney is the step-father of the child and the husband of Ms Mahoney the second named applicant and mother of the child (“the mother”). The respondent, Mr Dieter is the child’s father (“the father”). As referred to by Bennett J in her reasons delivered on 14 August 2020 Mr Mahoney has “...assisted the mother in all the parenting proceedings between the mother and the father by paying all costs and acting as the mother’s McKenzie friend up until recently when he has made himself a party to parenting proceedings in his own right.” The parties were all born in New Zealand and the applicants continue to reside in New Zealand. The father lived in Melbourne as a child before returning to New Zealand as an adult and now resides with the child in the Melbourne.
Although there have been numerous hearings in this matter and the history has been covered in great detail in the various judgments that have been delivered some background is required as part of these reasons. The parties have been engaged in litigation both in New Zealand and Australia since 2014. Parenting proceedings commenced in New Zealand following the child being removed from the mother’s care and placed in foster care by New Zealand’s child welfare authorities. On 7 April 2017, following a contested hearing in the Family Court of New Zealand, Moss J made orders which were subsequently registered in this Court which provided for the child to live with the father and permitted him to relocate to Australia with the child. The orders further provided for the child to spend professionally supervised time with the mother on two occasions each school holidays with the father to pay for the child’s travel to New Zealand to enable such time to occur and for the child to communicate with the mother via Skype once per week with said Skype calls to be recorded and supervised by the paternal grandmother or the father. Although the mother appealed Moss J’s decision her appeal was not successful.
Between 2017 and 2021 the applicants have initiated the following proceedings:
(1)Initiating Application for Parenting Orders filed 14 November 2017 - Dismissed;
(2)Application for Contravention filed 10 May 2018 – Withdrawn;
(3)Notice of Appeal to Full Court filed July 2018 and an Amended Notice of Appeal filed 6 September 2018 – Dismissed by Full Court of the Family Court of Australia (“the Full Court”);
(4)Initiating Application for Parenting Orders filed 12 April 2019 – Summarily Dismissed;
(5)Notice of Appeal to Full Court filed 25 September 2019 – Dismissed by Full Court;
(6)Initiating Application for Parenting Orders filed 5 May 2020 – Awaiting threshold hearing;
(7)Application in a Case filed 14 June 2020 – Withdrawn at trial with costs awarded and a declaration that proceedings were vexatious;
(8)Application for Contravention filed 4 February 2021 – Order for Security for Costs; and
(9)Application in a Case filed 5 July 2021.
All of the applications made by Mr Mahoney and/or the mother, including the two appeals, have been unsuccessful and Bennett J, having dismissed the applicants’ Application in a Case filed on 14 June 2020, ordered Mr Mahoney to pay the father’s cost of and incidental to that application and on 14 August 2020 found that the application was instituted and conducted as a vexatious proceeding within the meaning of s 102(Q)(1) of the Family Law Act 1975 (Cth) (“the Act”). Mr Mahoney is yet to pay the costs order making the point during the hearing before me firstly that he had not done so on principle and secondly that as he lives in New Zealand this Court does not have jurisdiction over him. At the very least a somewhat surprising submission given that he is a professional and that he and the mother are seeking to invoke this Court’s jurisdiction to make parenting orders.
Counsel for the father also referred to their being current proceedings in the Family Court of New Zealand which was confirmed by the applicants. These proceedings were commenced by the mother who is appealing the decision of the New Zealand Inland Revenue Department requiring her to pay child support to the father on the basis of her allegation that the child was conceived as a result of a rape, an allegation strongly denied by the father and which was an issue during the New Zealand proceedings.
LEGAL PRINCIPLES
The Court’s power to grant an injunction to prevent a parent from taking a child overseas is found in s 68B of the Act as follows:
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
The order the Court is being asked to make, not being a parenting order, is not governed by the paramountcy principle found in s 65AA of the Act, nor is the Court required to follow the pathway in s 60CC of the Act. However as per Kay and Holden JJ (at [64]) in Flanagan & Handcock (2001) FLC 93-074 although it may not be subject to s 65AA, as the High Court said in CDJ v VAJ (1998) 197 CLR 172, the best interests of the child in relation to whom the injunction is sought are a relevant consideration.
Mr Mahoney relied on the decision of the Full Court in Line & Line (1997) FLC 92-729 (“Line & Line”) in which the Full Court made it clear that the fixing of an appropriate level of security for a child’s return is a matter for the trial judge’s discretion and discussed the relevant factors the court should consider when deciding whether to allow international travel and upon what terms. In Lees & Halstead and Anor [2018] FamCA 970 (at [28]-[29]) Berman J helpfully summarised the relevant principles in Line & Line as follows:
In Kuebler & Kuebler [1978] FamCA 26; (1978) FLC 90-434 the Full Court set out a number of factors that are relevant to an application for children to travel overseas including the length of stay, the genuineness of the application, the effect on the child of any interference or interruption with orders for time between children and other parties and the extent to which the Court can be satisfied that the children be returned to the jurisdiction together with any threat to the welfare of the children in terms of the proposed destination of travel or environment.
In Line & Line [1996] FamCA 145; (1997) FLC 92-729 the Full Court relied upon Kuebler (supra) and further considered that it was a relevant factor as to whether a parent is to travel with a child to a country that is, or not, a signatory to the Convention on the Civil Aspects of International Child Abduction 1980, namely the Hague Convention. The Court considered that in relation to an application for the children to be taken to the USA for a holiday, given the mother was born in the USA there was a risk that she may not return the children to the jurisdiction, however, it was a risk that could be lessened by fixing an appropriate level of security for the children’s return.
Mr Mahoney referred me to the matters in Line & Line which he said the Court should have regard to in the exercise of its discretion to permit overseas travel and the requirement of security to ensure the child’s return. Those matters summarised at [4.48]-[4.51] are as follows:
(a)the two-fold purpose of the security, namely:
•to provide a sum which will realistically entice the person removing the child to return; and
•to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas to obtain the return of the children if required;
(b)the degree of risk that the departing parent will choose not to return with consideration of “the existence of ties between the departing parent and Australia,…the existence and strength of possible motives not to return,…and the existence and strength of possible motives to remain in the other nominated country”;
(c)whether the country to which the parent will travel with the child/children is a signatory to the Hague Convention on the Civil Aspects of International child Abduction;
(d)the financial circumstances of each of the parties and the relative hardship imposed on the departing parent by fixing “security at a particular level as compared with the hardship to the non-departing parent if security were fixed at a lower level.” Hardship to the children flowing from these factors will also be relevant.
Although I accept that the Court has the discretion to grant an injunction restraining the removal of a child from the Commonwealth of Australia, the circumstances in Line & Line were very different to the circumstances of this case.
In this case there is no travel proposed other than to New Zealand for the purposes of the orders for the child to spend time with the mother when boarder restrictions permit. Although that would not preclude the Court making a watch list order the injunction sought by the applicants clearly impinges on the rights of the father and/or his parents to travel with the child and that being the case the Court must weigh that up against the risk of the father and/or his parents removing the child and not returning her to Australia in order to thwart the Court’s jurisdiction, that being the basis upon which the applicants put their case. The onus of establishing that risk falls on the applicants.
THE EVIDENCE
The standard of proof in this Court is the balance of probabilities. Pursuant to s 140 of the Evidence Act 1995 (Cth) the Court in applying that standard must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged. In circumstances where the evidence has not been tested it is not possible to make findings of fact where that evidence is in dispute.
The applicants relied upon their Application in a Case filed 27 June 2021, the Affidavits of Mr Mahoney filed 27 June 2021, 8 August 2021 and 14 June 2020, the Affidavit of Ms Mahoney filed 12 October 2020 and a Notice of Risk filed 29 August 2021.
The father relied upon his Response filed 17 August 2021, his Amended Outline of Case filed 21 September 2021, the Affidavits of Mr Dieter filed 17 August 2021 and 25 August 2021, the Affidavit of M Q filed 20 September 2021, and the Schedule of costs dated 21 September 2021.
Both the applicants and the father filed a case outline and submissions in support of their cases.
In my view the evidence upon which the applicants rely in support of their case that the parenting issues should be re-litigated and the child live with them lacks context and it is not simply, as the applicants appear to have assumed, a matter of identifying a timeline. Although, given the way the applicants put their case in support of their application for a watch list order it is necessary to have some understanding of their case in support of re-litigating the parenting issues, I cannot, nor in my view is it necessary, to make findings with respect to the relevance of the evidence upon which they rely.
DISCUSSION
The parties are currently awaiting the hearing of the threshold question of whether circumstances have changed to the extent that the arrangements for the care of the child should be re-litigated. The applicants third such application.
As previously referred to the applicants’ filed detailed affidavits and relied on lengthy and factually complex written and oral submissions in support of their case. Although it is somewhat difficult to follow their reasoning doing the best I can it is the father’s alleged failure to consult and provide information about the child’s welfare to the mother, thereby not having met his obligation to “jointly co-parent” with the mother in the exercise of parental responsibility, that underpins the applicants case that they be permitted to re-litigate the parenting issues. The applicants also submit that the father and his legal representatives have withheld information from the Court over a number of years thereby perverting the course of justice and that this fraudulent and unethical conduct is relevant to the question of the risk of the father and/or his parents removing the child from Australia in order to prevent the Court making the orders they seek. It is further submitted that that it is the Court’s usual practice to make watch list orders in cases where there is a “low degree of parental co-operation and a high degree of parental conflict” as they assert is the position in this case.
Underlying the applicants’ case in support of the watch list order is the assertion that their application to re-litigate the parenting issues and thereafter their application that the child live with them is likely to succeed and that recognising that to be the case the father and/or his parents will abduct the child and take her to the United Kingdom or Europe to avoid the Court making the orders they seek. The applicants rely in support of their case on the following matters:
·That the child lives with the father in the grandparents’ home and they have contributed to the cost of her support and paid the father’s legal fees;
·That the father’s parents are wealthy and can afford to relocate with the child to either the United Kingdom or Europe or financially assist the father to do so;
·That the father’s parents have business interests in New Zealand, Australia and the United Kingdom; and
·That the paternal grandfather is a Country T citizen.
In my view the assumption the applicants’ make, even if they do establish that the father has withheld information about the child, failed to consult with the mother or that either he or his legal representatives have misled the Court, that they will be permitted to re-litigate the question of with whom and where this child should live and that there application for residence will be successful is problematic. Even if the parenting issues were to be re-litigated, which given this will be the applicants’ third attempt to do so, the first two being unsuccessful both at first instance and on appeal, is likely to be a difficult case for them to make, the outcome of any substantive application will be governed by the child’s best interests. The assumption upon which the applicants base their case generally and in support of the watch list order ignores the fact that the child has been living with the father in Australia for many years.
Having assumed that they will be successful the applicants then predict that the father and/or his parents, fearing the outcome, are likely to abduct the child. Given the circumstances and history of this case it is reasonable in my view to infer that the neither the father nor his parents consider it likely that the parenting issues will be re-litigated or that even if there was to be a hearing of those issues that the child would be removed from the father’s care. More importantly the evidence does not support the applicants’ case that the father and/or his parents are likely to abduct the child.
To the contrary there is evidence, not really disputed, as to the connection of both the father and his parents to their lives in Australia. It is also common ground that the father has travelled to New Zealand for the purposes of the child spending supervised time with the mother and travelled to New Zealand with the child for a weekend to attend a wedding in City R in December 2017 returning to Australia on each occasion. It is also not in dispute that on the one occasion when there was a proposal that the child travel to Country W in August 2020 for a wedding the father sought the mother’s permission for the proposed travel which she refused and the child did not go. In my view the fact that the father’s parents are wealthy and are able to provide him with financial support or that he and the child live with them does not, absent other evidence, support the applicants’ case with respect to the risk that he or his parents will abduct the child.
Counsel for the father also submitted that the Court does not have the power to make the order sought by the applicants in so far as it requests the New Zealand Police to give effect to the order. I accept that the Court cannot make an order binding the New Zealand Police and in my view, there is in those circumstances no utility in requesting them to give effect to an order even if the Court were mindful to make such an order.
Counsel for the father further submitted that an order made only in relation to the Commonwealth of Australia would render the orders for the child to spend time with the mother nugatory. Although I do not accept that the spend time orders would be rendered nugatory, I do accept, as submitted by counsel for the father, that the order would be likely to make it more difficult for him to comply with the orders for the child to spend face to face time with the mother. The alternative being an order in the usual form that the child not be permitted to be removed from the Commonwealth of Australia would require the father to apply to the Court to suspend the order so as to meet his obligation to travel with the child to New Zealand to see the mother. In my view this would be an unnecessary burden to place upon the father who in this case has the responsibility for the child’s care without any financial contribution by the mother in circumstances where I am not satisfied that the applicants have demonstrated that there is any risk of the father and/or his parents abducting the child.
It is not as submitted by the applicants’ usual practice to make a watch list order in high conflict cases. And, in so far as the applicants submit that this is a high conflict case I note that, as previously referred to, it is the applicants who have pursued the litigation in this Court not the father.
In my view the applicants’ case rests on their prediction, without any factual basis or evidence to support that prediction based upon their assumption as to the likely outcome of their application to re-litigate the parenting issues and orders being made for the child to live with them. In any application for injunctive relief the Court must weigh up the likely prejudice to the parties of making or not making that order. I am not satisfied that there is evidence in this case that would warrant the Court placing any restrictions upon the father, who has the primary care of this child apart from the child’s limited supervised time with the mother, with respect to any travel he might propose with the child or that he should be required to have to apply to the Court in order to do so. I propose on this basis to dismiss the application for a watch list order.
VEXATIOUS PROCEEDINGS
Pursuant to s 102QB(1) of the Act the Court can make a vexatious proceedings order if it is satisfied that:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(emphasis added)
For the purposes of determining s 102QB(1) of the Act, a Court may consider other proceedings instituted in any Australian court or tribunal including the frequency of such proceedings, the orders made and the person’s overall conduct, whether alone or in concert with another person who instituted or conducted vexatious proceedings in Australia.
“Vexatious proceedings” are defined in s 102Q(1) of the Act as follows:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
The list in not exhaustive and the Court can consider other matters relevant to the particular case in its determination as to whether or not to characterise proceedings as vexatious.
The principles to be applied when determining whether proceedings are vexatious are well established. In Marsden & Winch (2013) FLC 93-560 (“Marsden & Winch”) the Full Court (at [81]) referred to Roden J’s definition of vexatious proceedings in Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481 as follows:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
If the Court establishes that the proceedings are vexatious, pursuant to s 102QB(2) of the Act the Court can make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
This matter is listed for a hearing before McEvoy J on 19 November 2021 to determine whether the parenting issues should be re-litigated. His Honour made the orders for that hearing on 4 May 2021, a little over two months before the applicants filed their Application in a Case seeking a watch list order. There is simply no evidence of anything that has occurred since the matter was set down for a hearing which would suggest that the father or his parents are likely to remove the child from the Commonwealth of Australia in order to avoid an unfavourable outcome following the hearing before McEvoy J. Significantly in my view the application for a watch list order also ignores the fact that the father and/or his parents would currently be likely to need a permit in order to leave the Commonwealth of Australia to travel to either the United Kingdom or Europe due to Covid-19 border restrictions and that there is no guarantee that a permit would be granted. Whilst that may change, it does not alter the fact that when the applicants filed their application they either did not know about or had not considered these travel restrictions before filing their application. It is difficult, given the publicity surrounding the restrictions on overseas travel, to accept that the applicants had no knowledge of them. For all of the reasons discussed as to the merits of this application I am satisfied that the applicants did not have reasonable grounds for pursuing their application.
I have also had regard to what I consider to be quite outrageous submissions made with respect to the conduct of the father’s legal representatives. It is a serious matter to make such serious allegations against an officer of the Court without strong evidence to support those allegations. Once again those submissions appear to be based upon assumptions that the applicants have made based upon their interpretation of the evidence rather than the evidence itself or the context of that evidence. Mr Mahoney is a professional and should have understood the seriousness of the allegations he was making. Even if the mother is not a professional she is a seasoned litigant. And, although Mr Mahoney was largely responsible for their oral submissions, during the hearing the mother did not hesitate to make her own submissions. In my view the mother as a seasoned litigant would have understood the risks associated with her application and the seriousness of the allegations that they were making. I am satisfied that in all of the circumstances Mr Mahoney and the mother are equally responsible for this application and the submissions made in support of the application.
The applicants’ lack of reflection upon the likelihood of success of their application to re-litigate parenting issues and their ongoing focus on establishing that the mother was raped by the father, as evidenced by the proceedings they have instituted in New Zealand, when combined with the serious allegations they have made about the father and/or his parents and the father’s legal representatives raises questions about the bona fides of this application. In all of the circumstances it is in my view reasonable to infer that this application was likely instituted with the intention of annoying or embarrassing the father and/or his parents and his legal representatives or for some collateral purpose. This is reinforced by the fact that the applicants make it clear that they have no money and that they are not bound by orders made by Bennett J that Mr Mahoney pay the father’s costs. Bennett J said [at 43] of her reasons as follows:
The fact that the stepfather states that the mother has no money and he has spent all of his money impresses me as cavalier to the point that he and the mother are also unlikely to be dissuaded from pursuing further court cases by costs orders being made against them. Indeed, the relentless filing of proceedings irrespective of the prospect of success, and forcing the father to incur legal expenses, may be the only weapon that Mr and Ms Mahoney have against the father.
In my view these proceedings lacked any real purpose or foundation and were an abuse of process. They unnecessarily took up time in the Court’s busy duty list and in all of the circumstances I am satisfied and find accordingly that the Application in a Case was a vexatious proceeding as defined by s 102Q of the Act.
COSTS
The father in this case has been put to considerable expense and seeks an order that the applicants pay his costs of and incidental to the Application in a Case filed 5 July 2021 fixed in the sum of $5,418.22 calculated in accordance with Schedule 3 of the Family Law Rules 2004, now Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
The general rule in this Court is that parties to proceedings pursuant to the Act bear their own costs (s 117(1)). However the Court can make an order for costs if it is of the opinion that there are circumstances that justify it doing so (s 117(2) of the Act). Section 117(2A) of the Act sets out the matters the Court must have regard, subject to their relevance to the circumstances of the particular case, in considering what if any order should be made 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, inspections, directions to answer questions, admissions of facts, 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 either 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.
Rule 12.17 of the Rules sets out the various methods by which any costs that are ordered may be calculated. The Court may order costs of a specific amount, as assessed on a particular basis such as party and party or indemnity costs, in accordance with the method specified in the order or for part of a proceeding or part of an amount assessed in accordance with Schedule 3 of the Rules.
Financial Circumstances
The father deposes that he remains employed and that his income is as previously disclosed. The father and the child remain living with the paternal grandparents and he does not receive any child support from the mother.
During his submissions Mr Mahoney said that the mother is a student and not currently working. When asked whether she was contributing to the child’s support she said that “under New Zealand law I do not have to”. Mr Mahoney works full-time as a professional.
Neither party in this case is in receipt of legal aid.
Conduct
The applicants conduct in these proceedings in particular the serious allegations they make against the father and/or his parents and the father’s legal representatives, is a significant issue. Conduct which is even more inappropriate given Mr Mahoney’s legal qualifications.
Failure to Comply
Although these proceedings were not necessitated by a failure to comply with previous orders I note that the applicants have failed to comply with previous orders for costs which highlights their lack of any regard for the Court or the orders it might make and gives rise to concerns as to their willingness to engage in proceedings without reasonable grounds for doing so.
Wholly Unsuccessful
The applicants in this case have been wholly unsuccessful.
Other Matters
The other matter that stands out in this case is that, not only were the applicants wholly unsuccessful, I have found that their application for a watch list order was a vexatious proceeding.
Conclusion
In all of the circumstances I am satisfied that there are circumstances in this case that justify an order for costs. Rule 12.17(1)(a) provides that the Court can make an order for a specific sum. Although I am not confident that the applicants will satisfy any order for costs made against them, and they said as much during the hearing, that is not a reason not to make that order. In all of the circumstances the costs having been calculated in accordance with the relevant schedule and in order to avoid any further dispute as to the quantum of costs I propose to make an order for costs in the quantum sought by the father.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan. Associate:
Dated: 8 October 2021
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