MANCINI & ROSEN

Case [2019] FCCA 2157

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANCINI & ROSEN [2019] FCCA 2157
Catchwords:
FAMILY LAW – Contravention Application filed by the Mother – one of two children with firm views resisting spending time with the Mother pursuant to Orders – Father contends that he could not ‘force’ child to spend time with the Mother – contraventions made out without reasonable excuse – Mother’s Application for costs arising from the contravention – Father ordered to pay costs.

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Stephens v Stephens (2011) 44 Fam LR 117
Applicant: MS MANCINI
Respondent: MR ROSEN
File Number: CAC 479 of 2013
Judgment of: Judge Neville
Hearing date: 27 November 2017
Date of Last Submission: 30 May 2018
Delivered at: Canberra
Delivered on: 6 August 2019

REPRESENTATION

Counsel for the Applicant: Ms S Christie SC
Solicitors for the Applicant: Farrell Lusher Solicitors
Solicitors for the Respondent: Self-represented
Solicitors for the Independent Children's Lawyer: Legal Aid NSW Wagga Wagga

ORDERS – CONTRAVENTION PROCEEDINGS

  1. Count 1, which events occurred on 20 July 2016:

    (a)The Father pleaded:

    (i)In relation to [X], the Orders were contravened with reasonable excuse.

    (ii)In relation to [Y], the Orders were contravened without reasonable excuse.

    (b)The Court finds: The Father contravened the Orders without reasonable excuse.

  2. Count 2, which events occurred on 27 and 28 July 2016:

    (a)The Father pleaded: the Father denies any contravention of the Orders.

    (b)The Court finds: The Father contravened the Orders without reasonable excuse.

  3. Count 3, which events occurred on 4 August 2016:

    (a)The Father pleaded: the Orders were contravened with reasonable excuse.

    (b)The Court finds: The Father contravened the Orders without reasonable excuse.

  4. Count 4, which events occurred on 5 – 8 August 2016:

    (a)The Father pleaded: the Father denies any contravention of the Orders, or in the alternative, the Father contravened the Orders with reasonable excuse.

    (b)The Court finds: The Father contravened the Orders without reasonable excuse.

  5. Count 5, which events occurred on 10 – 11 August 2016:

    (a)The Father pleaded:

    (i)On 10 August 2016, the Father contravened the Orders with reasonable excuse;

    (ii)On 11 August 2016, the Father did not contravene the Orders, or in the alternative, the Father contravened the Orders with reasonable excuse.

    (b)The Court finds: The Father contravened the Orders without reasonable excuse.

  6. Count 6, which events occurred on 17 – 22 August 2016 2016:

    (a)The Father pleaded: the Father did not contravene the Orders, or in the alternative, the Father contravened the Orders with reasonable excuse.

    (b)The Court finds: The Father contravened the Orders without reasonable excuse.

  7. Count 7, which events occurred on 24 – 25 August 2016:

    (a)The Father pleaded: the Father did not contravene the Orders, or in the alternative, the Father contravened the Orders with reasonable excuse.

    (b)The Court finds: The Father contravened the Orders without reasonable excuse.

  8. Count 8, which events occurred on 31 August – 5…

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AGLC
MANCINI & ROSEN [2019] FCCA 2157
Case
[2019] FCCA 2157
Decision Date

CaseChat Overview and Summary

In the matter of MANCINI & ROSEN, Neville J of the Federal Circuit and Family Court of Australia considered a contravention application filed by the Mother. The dispute arose from the Father's alleged failure to ensure the children spent time with the Mother, as stipulated by court orders. Specifically, one of the two children, having firm views, resisted spending time with the Mother, and the Father contended that he could not "force" the child to comply. The Mother sought costs arising from the contravention.

The primary legal issue before the court was whether the Father had contravened the existing parenting orders without reasonable excuse. A secondary issue was whether the Mother should be awarded costs on an indemnity basis due to the contravention.

Neville J determined that contraventions of the orders had been made out and that the Father had not established a reasonable excuse for these contraventions. The court's reasoning was informed by the principles regarding the awarding of indemnity costs, as outlined in *Colgate-Palmolive Co v Cussons Pty Ltd*. His Honour noted that while the ordinary rule is for costs to be awarded on a party and party basis, courts have a discretion to award costs on an indemnity basis where the justice of the case requires it. This discretion is exercised when there are special or unusual features, such as wilful disregard of known facts or clearly established law, or proceedings commenced for an ulterior motive. The court found that the circumstances of this case warranted a departure from the usual rule.

The court ordered the Father to pay the Mother's costs of the contravention application.

Orders

Orders of the court

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Background

Background to the litigation

The decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (noted by the Full Court) is a regularly cited authority for relevant principle regarding the awarding of indemnity costs.[3] In that judgment, his Honour outlined the following principles, at pp.232 – 234, which I set out in full (emphasis added):[3] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:- 1. The problem arises in adversary litigation, i.e. litigation as between parties at arm's length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority. 2. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of Order 62, rules 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity. 3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to. 4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata. 5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal)and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis. 6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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