O & D

[2006] FamCA 1286

FAMILY COURT OF AUSTRALIA

O & D [2006] FamCA 1286

FAMILY LAW – APPEAL – CHILDREN – Contact – Appeal in relation to the place for contact changeover dismissed - COSTS – Appellant to pay respondent’s costs of the appeal – Each party to bear own costs of the judicial settlement conference.

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Fitzgerald v Fish (2005) 33 Fam LR 123
House v The King (1936) 55 CLR 499, at 504-505
Greedy (1982) ¶FLC 91-250

APPELLANT:  O

RESPONDENT:  D

FILE NUMBER:  CAF1436 of 2001

APPEAL NUMBER:  EA123 of 2004
DATE DELIVERED  18 September 2006
PLACE DELIVERED:  Brisbane
JUDGMENT OF:  Finn, Warnick, May JJ
HEARING DATE:  27 July 2006

LOWER COURT JURISDICTION:  Family Court of Australia  

LOWER COURT JUDGMENT DATE:               25 January 2005

JUDGMENT OF:  Finn, Warnick, May JJ

HEARING DATE:  27 July 2006

COUNSEL FOR THE APPELLANT: Mr Harper

SOLICITOR FOR THE APPELLANT: Creagh & Creagh, Solcitors

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITORS FOR THE RESPONDENT: David Lardner, Solicitor

ORDERS

1. The appeal is dismissed.

2. The appellant pay the costs of the respondent of and incidental to the appeal including reserved costs.

3. Each party pay their own costs of and incidental to the judicial settlement conference

FAMILY COURT OF AUSTRALIA  AT BRISBANE

APPEAL NUMBER:           EA 123 of 2004

FILE NUMBER:                  CAF 1436 of 2001

O
Appellant Father

And

D
Respondent Mother

REASONS FOR JUDGMENT

Introduction

1. On 23 January 2005 a number of orders were made by Faulks DCJ in relation to a child, the child M, born November 1999. Some of the orders were in fact made a few months earlier, on 8 November 2004, and no doubt for the convenience of the parties to have a comprehensive document, appear in the orders of 23 January 2005. In the January orders, the earlier orders are marked with an asterisk.

2. The father of the child, appeals against paragraph 5(a) and paragraph 22(a) and (b) of those orders. These orders are as follows:

   ‘5(a).     That changeover for contact will occur during term time at the     children’s changeover and contact centre at [the place M] in the ACT.

   22.(a)       That the father will pay the mother’s cost of and incidental to   these proceedings from the adjourned date previously set for the hearing in November 2004 until noon on 8 November 2004.

   (b)      Such costs will be agreed or taxed.’

   In the written submissions it is explained that there is no issue that there is an error in the orders and what his Honour was clearly referring to is the period from November 2003 until 8 November 2004. The appellant refers to the orders as paragraphs (2) and (11) as they appear in the reasons for judgment.

3. The grounds of appeal are directed to those orders as follows:

   1.The changeover order made in paragraph 2 was contrary to the evidence and constitutes a danger to the child and the father.

   2.The discretion to award costs was not properly exercised in all the circumstances.

4. The orders sought are that:

   1.The order in paragraph 2 should read that the changeover should occur at the Shell Service Centre at [the place S]. In the alternative the Friday changeover is to occur at Centacare Contact Service at [the place C]. With the Sunday changeover to occur at the Children’s Changeover and Contact Centre at [the place M] in the Australian Capital Territory.

   2.The order in paragraph 11 should read that each party is to pay its’ own costs of the hearing.

Background

1. The respondent, the mother of the child M aged nearly 7 also has another child, a boy, the child L, born December 2002 aged nearly three and a half, whose father is Mr D. The mother resides in Canberra and both the appellant father and the child L’s father reside in Sydney.

2. Orders made on 2 February 2005 by Brewster FM provided for alternate weekend and holiday contact between the child L and his father to mostly commence and conclude at [the place S] during weekend contact. It is understood that [the place S] is a place geographically located between Sydney and Canberra.

3. At the time of the hearing before the trial Judge in relation to the child M the orders provided for changeover of alternate weekend contact for the child to occur at [the place P] in New South Wales. The appellant is seeking in his notice of appeal that the contact changeover place be the same for both children being [the place S].

4. However, it is understood from the summary of argument that the appellant asks that rather than an order being made should his appeal succeed, his application be remitted for re-hearing due to the time which has elapsed since the hearing.

5. The other aspect of the appeal is from the order that the father pay the mother’s costs for a period leading up to and including the first day of the hearing. The appellant had originally asked for orders for residence which he abandoned on the first day.

6. It is convenient to deal with the two grounds discretely.

Ground 1 – Place of Contact Changeover

1. Leave is sought to amend the ground as follows:

   1.That in determining that contact changeover be in [the place M] his Honour’s discretion miscarried in that;

   a   He failed to consider the impact of alternate contact arrangements for the child’s sibling;

   b   He failed to give sufficient weight to the burden imposed upon the father by the orders.

   As there was no objection leave is granted.

Reasons

1. The trial Judge commenced his reasons in relation to this topic by dealing with the facts relating to the long history of difficulties about contact. He referred to submissions made by counsel on the mother’s behalf:

   11.‘…the mother had been obliged to move to Canberra where she could enlist the support of her family, both physically and for accommodation and financially because of the fact that [the child M]’s father had failed adequately to support her and [the child M] and that she was unable, at that point, to obtain employment except in the Canberra context.

   12.The consequence is that the parties now live, on the evidence before me (latterly in the proceedings) about three hours and 56 minutes apart from each other. This obviously complicates the parties’ having an adequate relationship with [the child M]. Further complicating the process to some extent is that subsequent to the relationship of the parties the mother married [Mr D] and they also have a child, [L]. Following upon their subsequent separation, there is a need to take account of the inter-relationship of the arrangements about contact for both [the child L] and [ the child M].

   13.The practical questions associated with contact might be summarised in this way. First, with young children and with adults for that matter, travelling frequently and for long distances is generally regarded as being undesirable if it could reasonably be avoided.  The second matter is that the relationship between Mr O and Ms B remains significantly hostile and the arrangements for more frequent contact, theoretically at least, may suggest that there is likely to be more frequent hostility.

   14.The third question of course is the matter of cost associated with the travel of [the child M] from one place to another.’

2. His Honour then referred to a number of other important matters, including the question of time restraints and the child reaching the changeover point after the completion of a school day.

3. At the time of the Deputy Chief Justices’ orders the existing changeover point was at [the place P] in New South Wales, which he observed is somewhat closer to Canberra than [the place S]. As the trial Judge observed, each of these changeover points offered what was described as the benefit of

   18. ‘…fast food establishments which provide light, airy, public places in which a handover can reasonably occur without much threat of any particular incident occurring , together with some play facilities for the [child M] and toilets...’

   19The alternative, which was recommended by the counsellor, is that the contact changeover should occur at a professional contact and changeover centre.  There are two that may be applicable in this regard.  One is a changeover centre at [the place C] in New South Wales and the other is the Changeover and Contact Centre at [the place M] in Canberra.

   20These organisations are crucial to the proper adjustment of matters between parties who have personal hostility.  They provide an opportunity for people who have those difficulties nevertheless to ensure that children have a good time and an effective and developing time with the non-residential parent.  Necessarily, there are constraints on the services they are able to offer. …’

4. The Deputy Chief Justice in accepting the opinion of the Court Counsellor that the handover should occur at a professional centre said:

   ’25.However, recognising that parents who spent as much time, money and emotion on Court proceedings as these, are unlikely to be able to do that in the short term, it seems that the desirable outcome, as the counsellor recommends, is the removal of the source of conflict by the application of professional assistance in the changeover.’

5. In paragraph 26 of the judgment the trial Judge acknowledged the benefits of the father’s proposal:

   26. ‘…while attractive in one sense, particularly on a financial basis, particularly on a flexibility basis, particularly on the fact that it would ultimately suggest to [the child M] that this was a good thing and that his parents both recognise the legitimacy of the contact and relationship that he had with the other parent is unachievable.  Notwithstanding all of those reasons, in my opinion, at this point, the only viable option for the parents is either [the place M] or [the place C].  For the reasons that I have expressed above, [the place C] is not a viable option during school term and accordingly, on that basis, in my opinion, the initial handover should occur at [the place M] in the ACT.’

   In addition the judgment reveals that there was consideration given to the father’s employment circumstances, his financial position and the burden on him that the proposed order would place.

The Evidence

1. In the Family Report dated 31 March 2004 prepared by Ms W, who interviewed the family members in February and March 2004, she described briefly the history of the matter and how the parents currently saw the issues in relation to residence and contact. In paragraph 2.2 Ms W said:

   ‘The parents have a hostile relationship and do not communicate with each other. Both complain that the changeover of [the child M] is an upsetting ordeal for everyone concerned. They both accuse the other parent of acting inappropriately and provocatively.’

2. Ms W set out, apparently accurately, the allegations made by each parent against the other. The only common ground is that changeover ‘rarely occurs without an unpleasant incident of various magnitudes and the child being distressed’. Despite the allegations made by the mother about the child’s relationship with the father when observed with him the report writer said,’ He was smiling and relaxed throughout the time’. His behaviour while with the father was in marked contrast to what was observed when with the mother. The child’s behaviour was more relaxed however when observed with his mother in her own home. It seems that the child is managing pre-school well.

3. In relation to the question of the changeover for contact the counsellor said at paragraph 4.3:

   ‘For [the child M] the transition from his mother’s care to his father’s company was observed to be very difficult. He shows a high level of insecurity at leaving and returning to his mother’s care.’

4. In paragraph 4 under the heading ‘Recommendations’ it was said ‘That changeovers occur at a professional contact centre with a third person facilitating the changeover. [The place M] in Canberra or the contact centre in Sydney would be two options.’ In her oral evidence Ms W confirmed her opinion in relation the changeover arrangements.

Submissions

1. Counsel for the appellant refers in his written submissions to the various matters considered by his Honour in concluding that the contact changeover take place at a contact centre. Appropriately, these included the father’s employment, his financial position and should the father for some reason fail to attend contact, then the mother would not have far to travel to collect the child.

2. The essence of the appeal seems to be subsequent circumstances being orders made by Brewster FM three months later on 2 February 2005 in relation to the child L, provided that his father have alternate weekend contact with him and depending on the day of commencement of contact, it be on a Friday at  [the place S], on a Saturday at [the place D] and on a Sunday or Monday and for most holidays at [the place S]. The only exception to this being at the Children’s Contact Centre at [the place C] when it coincides with the changeover for the child M.

3. It is clear, as was submitted, that his Honour did consider the importance of coordinating the children’s arrangements. The effect is that the mother must now deliver one child to [the place M] and the other child to [the place S]. This may have the effect, it is submitted, of increasing the travel for one or both children, greater difficulty for the mother and ‘the frustration for the father in driving past the point of changeover for the other child’. It is submitted that in failing to consider the consequences of that possibility the trial Judge fell into error and that this issue be remitted for re-hearing.

Conclusions

1. The principles in relation to appeals from discretionary judgments are well known.

2. It was clearly enunciated in House v The King (1936) 55 CLR 499, at 504-505 that:

   ‘It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.’

3. Kirby J said the following in AMS v AIF (1999) 199 CLR 160:

   ‘150. … an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.’

4. In this case it cannot be seen that an error was made in relation to the exercise of the discretion, however, it is clear that there are circumstances since the making of the order, in particular the orders of Brewster FM about the other child, that might lead to the matter being reconsidered. However that is not a proper basis for an appeal being allowed at least in the absence of an application to adduce further evidence being made and being granted..

5. But in any event, the submissions for the appellant overlook what was possibly the most significant factor relied upon by the trial Judge in making the order for changeover at a contact centre, namely the hostile relationship of the parties and the difficulties generated at contact changeover. That factor seems unaffected by any change to the arrangements for the child L, an observation not only highly relevant to the propects of this appeal but which may also be highly relevant to any application for variation that the father might bring.

6. It is important to appreciate that the judgment was based on the strong evidence from the counsellor, the history of the matter, the competing proposals of the parties and ultimately what was in the child’s best interests. It cannot be said that the decision was clearly wrong or in any way fell outside the bounds of proper orders to be made in the discretion of the Court. The appeal in relation to the place for contact changeover is dismissed.

Ground 2 – Costs

1. The background is that the proceedings were initially listed for hearing on 4 November 2003. Shortly before the commencement of that hearing it seems that Mr D said various things to Mr O which alarmed him about the mother and her family. The father amended his application to seek orders for residence filing that application on 31 October 2003.

2. The allegation made by Mr D was contained in his affidavit filed 30 October 2003 and an affidavit of the father was filed at the same time. In essence Mr D,  who had been living with the mother and the child, explained that he separated from the mother on 14 May 2003 having commenced living with her in December 2001. He observed that there was significant stress due to contact changeovers with the child M. The main issues he raised with the father were what he described as ‘attempts made by the respondent and her mother to coach [the child M] into alleging sexual misconduct against [Mr O].’ The other concern was that the mother told him in the presence of the grandmother that the grandfather had ‘hired and paid for someone to kill [Mr O]’. This allegation was reported to the police.

3. The application for costs was based on the fact that the trial was adjourned on the first day due to the request of the father to allow him to place before the Court evidence about these allegations. As the Deputy Chief Justice explained ‘Those allegations, it is common ground, never made it into admissible evidence but the claim about residence continued up until the first day of this hearing when it was appropriately abandoned.’ The application asked for costs for the preparation for the hearing up until the end of the first day of the adjourned trial:

   ‘…based on the fact that the abandonment of the father of his application for residence and his failure to make good his claim and desire to be able to put evidence before the Court supporting the grave allegations he made, has meant that the costs relating to this matter and indeed the level of representation desired by this matter, altered quite dramatically.’ (Para 50)

4. Although the trial Judge accepted the proposition of counsel for the father that:

   ‘... this was a matter that was going to occupy considerably more time and the fact that his client was prepared to compromise significantly on the primary application he made before the Court, enabled the matted to be completed in a much more appropriate and cheaper time.

5. The trial Judge remarked:

   Nevertheless it seems to me that in practical terms it was always open to [Mr O] to acknowledge, at a much earlier point, that either his application was ill-considered so far as residence is concerned or alternatively, that even if he felt that the allegations that he had previously voiced were real, that he was unable to muster the evidence in an admissible form to support those allegations.

   In either event, it was his obligation, as a litigant and most importantly, it was his obligation as the father of [the child M], to limit the nature of the proceedings and the expense of him by conveying his opinion at the earliest possible time.

   …

   However, the effect of [Mr O’s] actions or inactions has been significantly to increase the cost to the mother of these proceedings even if his eventual agreement about matters of substance has left a reduced bill over what might have been the case. I should point out that an offer of settlement was tendered. This was a document which had been filed although I had no view of it until now. That proposed that there should be residence of [the child M] with his mother, that there should be contact on every third weekend and that there should be different arrangements about block periods of contact, which I accept were less generous in some respects than the orders that I have eventually made about matters that were in contention between the parties.’

1. The fact of the offer did not, as the Deputy Chief Justice said, cause him to change his view about the matter other than to say it should additionally have had the effect of drawing to the father’s attention in September that the lack of evidence together with other factors nominated by the trial Judge would have required what the trial Judge referred to as

   ‘…a massive level of evidentiary support for the fact that under s 68F(2) of the Act, should have led him, at least then to have concluded that it was important that he should, for [the child M’s] sake, indicate his abandonment of what ultimately must have been a futile application about residence.’

2. The trial Judge ordered that the father pay the mother’s costs of and incidental to the proceedings up until noon on 8 November 2004. The reason for the time and date was that it coincided with the acknowledgement that there was a concession made and that in any event it would have been necessary to have one day’s involvement of counsel.

3. It is submitted that his Honour failed to directly address each of the matters listed in Section 117(2A), most notably the financial circumstances of the parties. However, it is correctly observed that in the reasons his Honour did refer to that and other factors when reviewing another earlier costs order.

4. We accept as correct that it is not possible to understand exactly what significance the trial Judge attached to the very limited evidence in relation to the financial circumstances of the parties and whether in particular his Honour was mindful of the costs to the father of the orders for contact. However, in relation to the argument about costs for contact the order for costs was directed to the persistence of the father in relation to the residence application.

5. The principles in relation to appeals against costs orders make it clear that such orders being of an entirely discretionary nature should not be interfered with unless the result is plainly unjust or if the discretion was exercised on wrong grounds.

6. The general rule, under s 117(1) of the Family Law Act 1975, is that each party to proceedings shall bear his or her own costs. This principle however, is subject to subsection (2) which enables the Court to consider whether circumstances are present that justify the making of a costs order and to do so, providing it would be just.

7. While s 117(2) provides that the court must be of the opinion that there are circumstances justifying an order for costs, the court does not necessarily need to provide detailed reasons for its decision.  An exercise of discretion to order costs will not be disturbed if it appears that there are reasons on which the Judge could rely (Greedy (1982) FLC 91-250).

8. The basis for finding such justifying circumstances may be upon any one factor alone.  The Full Court recently held, in Fitzgerald v Fish (2005) 33 Fam LR 123 that there is nothing to prevent any factor being the sole foundation for an order for costs. In that judgment their Honours said the following:

   ‘40.   The introductory words of subsection (2A) of section 117 are:

   “In considering what order (if any) should be made under sub-section (2) the court shall have regard to:”

   41.  A number of factors are then listed in the subparagraphs.  The financial circumstances of each of the parties to the proceedings is the first mentioned factor.  Nowhere in [subsection] 2(A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in [subsection] 2(A).  As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.’

9. In this case, the reasons for the limited order for costs is entirely clear and well within the discretion of the trial Judge.

Costs

1. At the conclusion of the appeal, we asked for submissions from counsel. The appellant submitted that each party should pay their own costs, even if the appeal failed because of the father’s financial circumstances. It was not part of this argument that we should consider the financial burden on the father of travelling to Canberra for contact. The respondent asked for costs. In relation to financial matters it was submitted that the father works as a nurse and is in a stronger financial position than the mother. Further, it was submitted that instead of an appeal the father should have applied for a variation of the order and that the appeal had little or no merit. We accept the latter submission and would make an order that the appellant pay the respondent’s costs.

2. Counsel for the appellant asked that we also make an order that each party pay their own costs of the judicial settlement conference which failed to resolve the issues between the parties. To the extent that such an order is necessary an order appears appropriate in the circumstances.