Mahoney & Dieter (No. 2)
[2022] FedCFamC1F 149
•16 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mahoney & Dieter (No. 2) [2022] FedCFamC1F 149
File number(s): MLC 4348 of 2020 Judgment of: MCEVOY J Date of judgment: 16 March 2022 Catchwords: FAMILY LAW – SECURITY FOR COSTS – Where the father seeks an order for security for costs with respect to contravention application – Where the mother and the stepfather have brought various unsuccessful applications – Security for costs ordered – Contravention application filed by the stepfather stayed pending payment of the security for cost – Costs reserved Legislation: Acts Interpretation Act 1901 (Cth)
Family Law Act 1975 (Cth) ss 70NDB, 70NDC, 117
Family Law Rules 2004 (Cth) rule 19.05
Interpretation of Legislation Act 1984 (Vic) section 35
Cases cited: Atkins & Hunt (2015) FLC 93-646
Luadaka v Luadaka (1998) FLC 92-830
Palma & Caleffi (Security for Costs) [2011] FamCAFC 174Rice & Asplund (1979) FLC 90‑725
Division: Division 1 First Instance Number of paragraphs: 31 Date of last submissions: 29 March 2021 Date of hearing: 29 March 2021 Place: Melbourne Counsel for the Applicant: Ms Harris Solicitor for the Applicant: Melbourne Family Lawyers Counsel for the Respondent: Litigant in person ORDERS
MLC 4348 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DIETER
Applicant
AND: MR MAHONEY
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
29 MARCH 2021
THE COURT ORDERS THAT:
1.The respondent, Mr Mahoney, pay the sum of $8,944.00 by way of security for costs, such amount to be paid to the Registrar of the Family Court of Australia and to be held as security for costs pending the determination of the Contravention Application filed on 4 February 2021 and any application for costs arising from that application to be released as directed by further order of the Court.
2.The Contravention Application filed on 4 February 2021 be stayed pending the payment of the amount of the security for costs as provided for in order 1 hereof.
3.The hearing of the Application in a Case filed 2 May 2020 by Ms & Mr Mahoney (“the Rice & Asplund application”) presently listed for hearing on 19 May 2021 be adjourned to a date to be fixed for two days and listed as the primary matter.
4.Subject to the payment of the amount of the security for costs as provided for in order 1 hereof, the Contravention Application filed by Mr Mahoney on 4 February 2021 be listed for hearing before the Honourable Justice McEvoy together with the Rice & Asplund application.
5.The hearing of the Contravention Application filed 4 February 2021 listed for hearing in the Judicial Duty List on 12 April 2021 be vacated.
6.Each party’s costs of today be and are hereby reserved to the hearing of the Contravention Application filed 4 February 2021.
AND THE COURT NOTES:
A.The applicant for security for the costs of the Contravention Application, Mr Dieter, and the respondent, Mr Mahoney, accepted that it would be more efficient for Mr Mahoney’s Contravention Application to be heard at the time of the Rice & Asplund application and that it would be preferable that these applications be listed as the primary matter on the relevant days.
B.Mr Mahoney proposes to travel to Melbourne to appear in the Rice & Asplund application and to prosecute his Contravention Application filed 4 February 2021.
C.The Court informed the parties that reasons for the making of the order that Mr Mahoney provide security for costs will be provided in the Court’s judgment on the Rice & Asplund application.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCEVOY J:
These proceedings concern X, who was born in 2011 and is now 10 years old (“the child”). The mother of the child, Mrs Mahoney (“the mother”) and the child’s stepfather, Mr Mahoney (“the stepfather”) are the applicants in the substantive proceedings before the Court. The child’s father, Mr Dieter (“the father”) is the respondent in the proceedings. The substantive proceedings are, in effect, a Rice & Asplund (1979) FLC 90‑725 (“Rice & Asplund”) threshold application brought by the stepfather and the mother which had been listed to be heard on 19 May 2021. The stepfather and the mother have brought several applications over the past few years.
The present application was brought by the father on 5 March 2021. He sought an order for security for his costs in the amount of $9,000 (later modified to $8,944.00) with respect to a contravention application filed by the stepfather on 4 February 2021. The father also sought to have the contravention application stayed pending the payment of security, and that the costs of the hearing on his security application be reserved to the hearing of the contravention application.
The father’s application was heard on 29 March 2021 as an interim defended hearing. I made orders at the conclusion of the hearing, including an order that the stepfather provide security for the father’s costs of the stepfather’s contravention application in the amount of $8,944, and an order staying the contravention application until the security was paid. On the basis that the stepfather’s contravention application would be heard at the same time as the substantive Rice & Asplund application (assuming the security was paid), I informed the parties that reasons for the security for costs orders would be provided in conjunction with reasons in the Rice & Asplund application once that application, and the contravention application, had been heard. The stepfather did not request that reasons be provided before then.
In order to accommodate the hearing of the substantive proceedings and the contravention application, and to provide a fixed date for the hearing of both so as to enable the stepfather to travel from New Zealand to Melbourne to appear, the substantive proceedings and the contravention application were adjourned to a date to be fixed later in 2021. However, as matters transpired, the stepfather informed the Court that he would not be making a payment by way of security for the father’s costs of his contravention application, and that application has remained stayed. Subsequently it was necessary for the substantive proceedings to be transferred to Johns J, however because her Honour was unable to hear the proceedings they were then transferred to Bennett J. Bennett J has now listed the matter for hearing on 28 July 2022 and ordered a report directed specifically to the Rice & Asplund issue. In the circumstances therefore it is appropriate that I provide my reasons for the security for costs and ancillary orders that I made on 29 March 2021. These are those reasons.
BACKGROUND
It appears to be uncontroversial that the mother and the stepfather were married in 1996 and had three children. Two of their children are now adults and the third child died in 2009. Although there has been some dispute about the nature of the relationship between the mother and the father, whatever be its nature the mother became pregnant with the child in 2010. The father was apparently unaware that the mother was married until after the child’s birth. The mother is a New Zealand citizen and the father is an Australian citizen. The child has dual Australian/New Zealand citizenship. The stepfather became aware that he was not the biological father after the child’s birth.
Communication between the mother and the father apparently ceased in January 2012 and in early 2014 the father commenced proceedings in the Family Court Division of the District Court of New Zealand Court seeking orders to spend time with the child.
Thereafter proceedings have continued virtually unabated in New Zealand and in Australia. There were fully contested parenting proceedings in New Zealand between the father and the mother. The stepfather assisted the mother in the New Zealand parenting proceedings, acting as the mother’s McKenzie friend. The stepfather is also a professional in New Zealand. The New Zealand proceedings concluded on 24 March 2017 and judgment was delivered in early 2017. The orders of the New Zealand Court provided for the father to have day to day care of the child and be permitted to relocate to Australia after 27 April 2017, which he duly did. The orders also provided that the father return the child to New Zealand each school holidays for her to have supervised time with her mother and the stepfather. The mother appealed this decision, but the appeal was dismissed.
On 14 November 2017 the mother filed proceedings in the Family Court of Australia seeking that the New Zealand orders be discharged and fresh parenting orders be made that provide for the child to live with her in New Zealand. That application was dismissed on 27 June 2018 by Austin J. His Honour found that the mother had failed to demonstrate any material change in circumstances. The mother appealed the decision of Austin J, but that appeal was dismissed on 7 March 2019.
On 9 May 2019 the mother filed a further Initiating Application seeking final and interim parenting orders. The mother sought final orders in much the same terms as her 2017 application. This application was dismissed by Hartnett J on 16 September 2019. The mother appealed this decision also, but that appeal was dismissed on 21 April 2020. The father had sought an order that the mother’s second unsuccessful parenting proceeding be declared vexatious, however Hartnett J declined to make such an order.
The mother and the stepfather filed the substantive proceedings on 2 May 2020 as joint applicants seeking both final and interim parenting orders. The stepfather was named the first applicant and the mother was named the second applicant. They essentially seek new (or varied) parenting orders.
On 14 June 2020 the mother and stepfather filed an Application in a Case. They sought orders that the father be dealt with for contempt by reason of withholding and concealing information from the Court and for giving incomplete or misleading evidence to the Court. This application was heard before Bennett J on 20 July 2020 in the judicial duty list and was dismissed. Bennett J made orders, inter alia, that the stepfather pay the father’s costs fixed in the sum of $5,750 and her Honour reserved her decision as to whether the application ought to be regarded as a vexatious proceeding. These costs apparently remain unpaid by the stepfather. On 14 August 2020 Bennett J made an order that the application filed by the mother and stepfather was instituted and conducted as a vexatious proceeding.
The stepfather’s Contravention Application filed on 4 February 2021 complained that the father had not made the child available for time with the mother and himself in New Zealand consistently with the extant orders of the New Zealand Court and that the father had failed to seek any variation to those orders. The mother was not listed as a party, however the stepfather filed an affidavit in support deposed to by her which was some 161 pages long, including annexures. The mother alleged that the father had breached certain parenting orders providing for school holiday time that did not occur in the term school holidays in 2020 and the Christmas school holiday period in 2020-2021. It will be recalled that travel to New Zealand was difficult, and at times impossible, during those times by reason of COVID-19 restrictions on movements between the two countries. It was in this context that the father sought security for his costs of the stepfather’s contravention application.
MATERIAL RELIED ON
The father relied upon the following documents:
(a)reasons for judgment of Bennett J dated 14 August 2020;
(b)Application in a Case filed 5 March 2021;
(c)his Affidavit filed 5 March 2021;
(d)Affidavit of Ms O filed 5 March 2021;
(e)his Affidavit filed 22 March 2021; and
(f)Outline of Case filed 22 March 2021.
The stepfather relied upon the following documents:
(a)Response to Application in a Case filed 13 March 2021;
(b)his Affidavit filed 13 March 2021;
(c)Contravention Application filed 4 February 2021;
(d)Affidavit of the mother filed 4 February 2021; and
(e)Outline of Case filed 22 March 2021.
THE FATHER’S SUBMISSIONS
The father submitted that it was open to the Court pursuant to s 117(2) of the Family Law Act 1975 (“the Act”) and r 19.05(1) of the then Family Law Rules to make an order for security for costs in appropriate circumstances. He submitted that in determining whether to make such an order the Court may consider the prospects of success of the underlying application, whether the claim for security is a bona fide claim, whether such an order would stultify the litigation, whether a matter of public importance is involved, whether there has been delay in bringing the application for security, and whether there would be difficulty in enforcing any order for costs: see Atkins & Hunt (Security for Costs) (2015) FLC 93-646 (Strickland, Ainslie-Wallace and Kent JJ); Luadaka v Luadaka (1998) FLC 92-830 (Ellis, Finn and O’Ryann JJ) (“Luadaka”) and Palma & Caleffi (Security for Costs) [2011] FamCAFC 174 (Coleman, Thackray & Strickland JJ).
Insofar as the relevant factual considerations are concerned, the father drew attention to the multiple applications of the mother and stepfather including “[three] applications to the Court in [the stepfather’s] own name (or with [the mother]), the current contravention, an application seeking that the applicant be found in contempt of court and an application seeking final parenting orders…”. He submitted that each application made by the mother and stepfather have been wholly unsuccessful, and that this was a factor to be taken into consideration by the Court in these proceedings.
The father also relied on the observations made by Bennett J regarding the stepfather and the mother in her reasons for judgment of 20 July 2020:
41.I am satisfied that the stepfather has not only enabled the mother to make her numerous applications but that he has been the motivational force behind proceedings being issued in Australia, whether in the name of the mother or with them both as applicants.
42.I conclude that the failure of the joint contempt application will not deter the applicant stepfather and/or the mother from bringing further applications against the father. Nor will it give them pause for thought about whether their applications are advancing their joint cause to reverse the current parenting arrangements for [the child] or are, perhaps, confirming an impression of them as lacking in insight, obsessive and unable to come to grips with why [the child] was removed from their care by child welfare authorities in New Zealand in the first place.
43.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 [the stepfather and the mother] have against the father.
The father submitted that it was also relevant that he earned $55,000 per annum, and had spent in excess of $112,083 in legal expenses as a result of responding to the proceedings brought by the mother and stepfather. By contrast he noted that the stepfather is a professional, and that the mother is not in paid employment.
The father submitted that the substantive proceedings will not be stultified by an order for security for costs in the relation to the contravention proceedings, and that one critical purpose of a security for costs order is to prevent an impecunious party from proceeding with litigation irresponsibly. This, he submitted, is what is occurring here; particularly given that the contravention application is made in circumstances where he had not complied with an order that he return the child to New Zealand to spend supervised time with the mother during the COVID-19 pandemic when travel between the two countries was difficult, if not practically impossible.
THE STEPFATHER’S SUBMISSIONS
The stepfather contended that the father’s application was flawed because an order for security for costs is not a remedy ordinarily available under the applicable sections of the Act, namely s 70NDB and s 70NDC. He submitted that the father was inviting the Court to interpret the statue contrary to s 35(a) of the Interpretation of Legislation Act 1984 (Vic) (“the Victorian Interpretation Act”).
It was the stepfather’s position that the usual remedy for a contravention is an order compensating that person for lost time with the child. He maintained that it would be “monstrous for the Court to contemplate any action other than making up the lost time”, and that it would be “truly monstrous” if the father were to succeed in his application for security of costs and to oppose any make-up time between the child and the mother and himself. He submitted that s 70NDC of the Act is clear and unambiguous that costs is a remedy only if an order under s 70NDB is not made.
It was also submitted by the stepfather that the application for security for costs was “unambiguously, an attempt to unfairly shut out a party to litigation by imposing an unnecessary and unwarranted financial barrier to allowing the court to make a ‘make-up’ order”. He contended that “[t]he prospects of any Court finding that a ‘make-up order’ is unwarranted are infinitesimally small”, and that his contravention application was the only one he has brought and thus that s 70NDC(2) of the Act did not apply.
The stepfather also submitted that the father and his counsel had conducted the proceedings in a hostile manner, “obsessed by the issue of costs”, and that the application for security for costs was doomed to fail. He sought an award to him of the sum of $1.00 by way of exemplary costs “to signal in an unambiguous way the folly of repeated costs and security for costs applications”.
DETERMINATION
The stepfather’s submission that there can be no order for security for costs in the context of s 70NDB and s 70NDC of the Act is misconceived.
Section 70NDB of the Act is in the following terms:
Order compensating person for time lost
(1) If:
(a)the primary order is a parenting order in relation to a child; and
(b)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court:
(c)may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and
(d) must consider making that kind of order.
Note:If the person does not have a reasonable excuse for a contravention, the court has the power to make an order compensating a person for time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).
(2)The court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the court to do so.
(Emphasis in original)
Section 70NDC of the Act is in the following terms:
Costs
(1)If the court does not make an order under section 70NDB in relation to the current contravention, the court may make an order that the person who brought the proceedings (the applicant) pay some or all of the costs of another party, or other parties, to the proceedings.
(2) The court must consider making an order under subsection (1) if:
(a) the applicant has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and
(b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i)was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii)was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NEB or 70NFB in relation to the contravention.
(Emphasis in original)
It is clear on their face that these sections of the Act concern the conduct of contravention applications and costs orders arising from such applications in certain circumstances. However there is nothing contained in these sections, or in the scheme of the Act more generally, which would render inoperative s 117 of the Act or have the effect that s 70NDB and s 70NDC would prevail over s 117 of the Act. Plainly the provisions of the Victorian Interpretation Act are irrelevant to the exercise of statutory construction which supports this conclusion, and the equivalent provisions of the Acts Interpretation Act 1901 (Cth) would not have this effect either.
If any authority was needed for this unremarkable conclusion, counsel for the father referred to Luadaka, the relevant parts of which are as follows:
[38]Section 117(1) provides that, subject to sub-section (2), each party to proceedings under the Act shall bear his or her own costs. Section 117(2) provides that if in proceedings under the Act the court is of the opinion that there are circumstances that justify it in doing so the court may, subject to sub-section (2A), make such order for security for costs as the court considers just. Section 117(2A) provides that in considering what order should be made the court shall have regard to the matters set out in paragraphs (a) to (g) inclusive. Section 117(2A)(g) provides that the court shall have regard to such other matters as the court considers relevant.
[39]An order that an applicant provide security for costs may be made in appropriate circumstances. However, it must be established that there are circumstances justifying the making of such an order. In considering whether to make such an order regard must be had to the provisions of s 117(2A). The Family Law Act does not separately list factors which should be taken into account when dealing with an application for security for costs of a pending application for relief pursuant to provisions of the Act.
[40]The Rules of Court of all Australian jurisdictions ascribe power for the court to order security for costs: See New South Wales Supreme Court Rules, Pt 53 r 2; Victorian Supreme Court Rules, O 62 r 2. There is also an inherent jurisdiction to order security for costs: Rajski v Computer Manufacture & Design Pty Ltd (1983) 2 NSWLR 122, Quick on Costs at [4.8090-4.8110]. The power of the Family Court is contained in s 117, Family Law Act.
…
[61] In our opinion, when dealing with an application for security for costs the general rule provided for in s 117(1) applies, namely that subject to s 117(2) each party to proceedings shall bear his or her own costs. However, if the court is satisfied that there are circumstances that would justify an order then the court may, subject to s 117(2A), make such order for security for costs as the court considers just. It is not necessary to establish that there are special circumstances. However, it is necessary to establish that there are justifying circumstances. The decision to order security for costs is discretionary, both as to whether to order security, and as to the amount to be secured.
In argument the stepfather was unable to explain how the statutory scheme of the Act enabled a conclusion that s 70NDB and s 70NDC prevailed over s 117 of the Act and that the costs power to be found in s 117 could be regarded as inapplicable in the present circumstances.
The question therefore is whether there are justifying circumstances for the making of an order that the stepfather provide security for the father’s costs of the contravention application. I am satisfied that there are such circumstances. They include that the father has a limited income, that he has already expended significant funds in responding to several wholly unsuccessful applications brought by the stepfather and the mother, that the prospects of success of the stepfather’s contravention application in the context of the reasonable excuse provided to the father by reason of the COVID-19 pandemic must surely be regarded as low, and that the stepfather and the mother show no signs of relenting in their efforts to force the father to incur further legal costs. Indeed, I embrace, with respect, the observations of Bennett J quoted above in the context of the stepfather’s contempt application: namely that the stepfather and the mother’s repeated applications lack insight, are obsessive, and reflect an inability to come to terms with the reasons why the child was removed from their care by child welfare authorities in New Zealand in the first place. I am also concerned, as was her Honour, that the stepfather and the mother may be weaponising the process of the Court against the father.
For these reasons I determined that it was appropriate to order that the stepfather pay the sum of $8,944.00 by way of security for costs pending the determination of his Contravention Application of 4 February 2021, and that the Contravention Application be stayed pending the payment of that sum. I also reserved the costs of the father’s security for costs application to the hearing of the father’s Contravention Application. Given that it has now become apparent that the stepfather will not press his Contravention Application, any application for the costs of the father’s security for costs application of 5 March 2021 can be heard and determined by Bennett J in conjunction with the substantive proceedings, or by another judicial officer.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 16 March 2022
0
2
4