O'Brien & O'Brien

Case [2017] FamCAFC 219

FAMILY COURT OF AUSTRALIA

O’BRIEN & O’BRIEN [2017] FamCAFC 219

FAMILY LAW – APPEAL – CHILDREN – Where final parenting orders were made in 2013 by consent – Where the primary judge dismissed the mother’s application for variation of the orders – Where the primary judge’s expression of the Rice and Asplund test does not align with Full Court authorities – Where the primary judge impermissibly restricted his consideration of the evidence – Where several orders were sought on discrete issues not covered in the consent orders – Where the primary judge erred in dismissing the application in its entirety – Appealable error demonstrated – Order set aside and matter remitted.

FAMILY LAW – APPEAL – COSTS – Where the primary judge ordered that the mother pay indemnity costs for a discontinued contravention application – Where his Honour’s conclusion that the mother filed the application for an improper purpose was unsupported by the evidence – Where the primary judge denied the mother procedural fairness – Where the primary judge did not resolve the issue as to the quantum of costs claimed – Appealable error demonstrated – Re-exercise – Where the mother conceded that she should pay costs – Costs ordered as per Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).

Family Law Act 1975 (Cth) s 117(2A)

Federal Circuit Court Rules 2001 (Cth) Schedule 1

Bale v Mills (2011) 282 ALR 336

Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
D & D (Costs) (No. 2) (2010) FLC 93-435
Kohan and Kohan (1993) FLC 92-340
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Marsden v Winch (2009) 42 Fam LR 1
Rice and Asplund (1979) FLC 90-725
Smit and Pickworth (1981) FLC 91-071
SPS and PLS (2008) FLC 93-363

APPELLANT: Ms O’Brien
RESPONDENT: Mr O’Brien
FILE NUMBER: PAC 3667 of 2012
APPEAL NUMBER: EA 14 of 2017
DATE DELIVERED: 17 October 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ainslie-Wallace, Aldridge & Watts JJ
HEARING DATE: 17 October 2017
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 21 December 2016
LOWER COURT MNC: [2016] FCCA 3194

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Kearney SC
SOLICITOR FOR THE APPELLANT: Anderson Boemi Lawyers
COUNSEL FOR THE RESPONDENT: Mr White SC
SOLICITOR FOR THE RESPONDENT: Michael Conley Lawyers

Orders

  1. The appeal against the orders of Judge Dunkley made on 21 December 2016 be allowed.

  2. Order 2 of the orders made on 21 December 2016 be set aside.

  3. The appellant mother’s Further Amended Initiating Application filed on 7 September 2016 be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Dunkley.

  4. Order 1 of the of the orders made on 21 December 2016 be set aside insofar as it provides for payment of the amount of $9,611 and the amount of $915 be inserted in lieu thereof.

  5. The respondent father pay the appellant mother’s costs of and incidental to the appeal, such costs to…

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AGLC
O'Brien & O'Brien [2017] FamCAFC 219
Case
[2017] FamCAFC 219
Decision Date

CaseChat Overview and Summary

The case of O'Brien & O'Brien involved a dispute between the parents regarding the parenting orders concerning their children. The primary judge dismissed the mother's application for a variation of the 2013 consent orders, which had been made by the parties. The mother appealed against the orders made by Judge Dunkley on 21 December 2016, and the father cross-appealed against the dismissal of his application for contravention orders. The legal issues that the court had to decide included whether the primary judge had erred in his application of the Rice and Asplund test and whether he had improperly restricted his consideration of the evidence. The court also had to determine whether the primary judge had erred in dismissing the mother's application in its entirety and whether the order for indemnity costs was appropriate.

The court found that the primary judge had erred in his application of the Rice and Asplund test, which was not aligned with the Full Court authorities. The court also found that the primary judge had impermissibly restricted his consideration of the evidence by not considering several orders sought on discrete issues not covered in the consent orders. The court further found that the primary judge had erred in dismissing the mother's application in its entirety and that the order for indemnity costs was not supported by the evidence. The court held that the mother's filing of the application was not for an improper purpose, and the father's counsel had not impugned the mother's motives. The court also found that the primary judge had denied the mother procedural fairness by not allowing her to address the point of her apparent mala fides. The court concluded that the appealable error demonstrated required the order to be set aside and the matter to be remitted.

The court allowed the appeal against the orders made by Judge Dunkley on 21 December 2016. Order 2 of the orders made on 21 December 2016 was set aside, and the appellant mother's Further Amended Initiating Application filed on 7 September 2016 was remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Dunkley. Order 1 of the orders made on 21 December 2016 was set aside insofar as it provided for payment of the amount of $9,611, and the amount of $915 was inserted in lieu thereof. The respondent father was ordered to pay the appellant mother's costs of and incidental to the appeal, such costs to be agreed or assessed. The form of the order was subject to the entry of the order in the Court's records.

Orders

Orders of the court

1.

The appeal against the orders of Judge Dunkley made on 21 December 2016 be allowed.

2.

Order 2 of the orders made on 21 December 2016 be set aside.

3.

The appellant mother’s Further Amended Initiating Application filed on 7 September 2016 be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Dunkley.

4.

Order 1 of the of the orders made on 21 December 2016 be set aside insofar as it provides for payment of the amount of $9,611 and the amount of $915 be inserted in lieu thereof.

5.

The respondent father pay the appellant mother’s costs of and incidental to the appeal, such costs to be agreed or assessed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Continuing his theme that the mother’s bringing of the application was not bona fide he said:37. The filing and then discontinuance before hearing of the contravention application leads to the conclusion that it was filed other than for legitimate litigation purposes.38. The discontinuance came after the provision of “evidence” on behalf of [the father] by his solicitors.39. Commencement and discontinuance before hearing of an application are indicative of wholly unsuccessful proceedings. (Emphasis added) The grounds of appeal challenge his Honour’s findings that the application was brought for some ulterior motive and that the allegations made in the application ought not to have been made. It was argued that the reasons do not provide any foundation for the conclusions on which his Honour relied. Further, the grounds challenge the making of the order without any apparent consideration of the basis of the claimed costs. Counsel for the father on appeal acknowledged considerable difficulty in maintaining his Honour’s findings of the mother’s lack of bona fides but contended that his Honour’s finding at [32] was sufficient to found the order for indemnity costs. The acknowledgment of the difficulty in supporting the primary judge’s findings as to the mother’s motive was well made. I must first observe that, although at [26] his Honour adverted to the possibility of an improper motive for bringing the proceedings and at [27] his Honour thought that he was not in a position to find that the application was an abuse of process, at [37] his Honour nonetheless concluded that it was filed for an improper purpose. Nowhere in his reasons does his Honour support either his suspicion of improper purpose at [27] or his conclusion of an improper purpose at [37] by reference to the evidence. It is to be observed that counsel for the father did not impugn the mother’s motives but did contend that the application ought not to have been brought and clearly, in those circumstances, counsel for the mother had no opportunity to address the primary judge on the point of the mother’s apparent mala fides. His Honour’s conclusions as to the mother’s motives were unsupported by the evidence and no submission was made as to there being an ulterior motive by the father’s counsel. In circumstances where nothing was put to the mother’s counsel, his Honour erred in so finding because in doing so he denied her procedural fairness (see Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361). Further in Bale v Mills (2011) 282 ALR 336 Allsop P, Giles JA and Tobias AJA said at 355:The inference sought was one, but only one, possibility. The matters to which we have already referred at [39] above in discussing what was not put to Mr Schipp reveal that a recognition of error and conscious dishonesty are not the only possible explanations. The inference that Mr Schipp was aware of the error and intentionally deceived his client is a possibility. It is a possibility about which minds might differ as to whether it is sufficiently probable to be a proper inference, that is more probable than not. … In our view that inference cannot be drawn as more probable than not, for the reasons set out below. Most importantly, however, could it be drawn with the requisite confidence in circumstances where that inference and its significance was never raised with Mr Schipp so that he was deprived of any opportunity to respond to it? The answer is plainly, no.(Emphasis added, references omitted)

Ratio Decidendi

Legal Principle Established

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