Oakes and Oakes

[2015] FamCA 1223

FAMILY COURT OF AUSTRALIA

OAKES & OAKES [2015] FamCA 1223

FAMILY LAW — CONTRAVENTION — Dismissal of contravention application — costs.

APPLICANT: Mr Oakes

RESPONDENT: Ms Oakes

FILE NUMBER: MLC 7723 of 2012

DATE DELIVERED: 4 November 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 4 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Campbell

SOLICITOR FOR THE RESPONDENT: Forte Family Lawyers

Orders

IT IS ORDERED THAT

1.There be leave to the mother to file a Notice of Address for Service AND IT IS NOTED that such notice has been served on the father this day.

2.I dismiss the first count of the father’s contravention application filed 12 October 2015.

3.The father have leave to amend the second count in his contravention application filed 12 October 2015 so that it reads as follows:-

“That without reasonable excuse the mother failed to comply with paragraph 4 of the Order made on 2 May 2014 by providing a photograph of the child [J] born … 2011 (“the child”) to the father at his nominated address by 1 May 2015”.

4.In regards to the second count of the father’s contravention application I find the count not proved.

5.The contravention application of the father filed 12 October 2015 be and is hereby dismissed.

6.The father pay the mother’s costs of and incidental to his contravention application fixed in the sum of $1,000 and to be paid by 1 November 2016.

7.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oakes & Oakes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7723 of 2012

Mr Oakes

Applicant

And

Ms Oakes

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter becomes before me in the duty list.  It is the father’s contravention application filed on 12 October 2015.  There are two counts in the application.  The application is against the mother, Ms Oakes (“the mother”) for whom Ms Campbell, solicitor, appears today.  The mother does not appear at Court.  She is apparently a resident of Queensland.  A notice of address for service has been filed and there are no issues in relation to service.

2. It is alleged by the father in the first count that on a date in June 2015 at 8 pm on social media and in particular, Facebook, the mother committed some contravention.  The contravention is not particularised any more than the following: uploading and sharing of Federal Court documents, i.e. “family law decision”. 

3. The father appears on his own behalf.  It is a contravention application.  I would accord to the father such assistance as the authorities require me to do, but not advise him on how to prosecute his case.

4. It is incumbent upon me, however, and as I have done, to consider whether some form of amendment of the application might cure any apparent defects in it.  I have done so and find that it is not amenable to curing by amendment.  It being a contravention application, the respondent is entitled to certain safeguards in the hearing of it.  I have not asked Ms Campbell to make any submissions, I have asked her if she wants to and she understandably does not.

5. What appears to be the basis of the allegation of contravention which I take from the father’s affidavit affirmed on 12 October 2015, is that in June 2015, the father uploaded an image of himself standing outside a supermarket with a placard which referred to domestic violence not being gender based and recited the fact, amongst other things, that 465 male persons had committed suicide so far this year, presumably as a result of, or in some way connected with, domestic violence.

6. There followed some Facebook postings of support for the father’s position with the exception of one person, “XXX” who identified the father as being “actually the abuser”.  Ultimately, the person who posts communications as XXX uploaded the link to the anonymised version of the Reasons for Decision and Orders which finalised parenting issues in this Court.  These being the decision of Benjamin J delivered on 2 May 2014. 

7. The father’s case is that it would have been apparent to anyone looking at all of the Facebook postings that he had been a party to proceedings in this Court. That he has been identified.  However, looking at the annexures to the father’s affidavit which constitutes his only evidence before the Court, it is not apparent that the father has identified himself as Mr Oakes and so all that is in the public domain is the conversations conducted on Facebook and a reference to an anonymised decision which pertains to this family. 

8. That is the background of the application. 

9. The impediments as I see it to this count of the father’s contravention application is that first of all, he points to no order which has been contravened.  The matter of which the father may legitimately complain is dealt with by the Family Law Act1975 (Cth) (“the Act”) in s 121 which provides as follows:

   (1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

   (a) a party to the proceedings;
   (b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
   (c) a witness in the proceedings;    

   is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

10. However, s 121(8) of the Act provides that proceedings for an offence against this section shall not be commenced except by or with the written consent of the Director of Public Prosecutions. The father has informed me from the bar table that he does not have the written consent of the Director of Public Prosecutions. Even if he did, this would not be an appropriate application. This would not be an appropriate way to commence any such proceedings. In the circumstances of the case, I am not satisfied that there is a case to answer in relation to the first count and I dismiss it.

11. In relation to the balance of the contravention application, without objection I have provided the father with leave to amend his application, so that it reads as follows:

    That without reasonable excuse, the mother failed to comply with paragraph 4 of the order made on 2 May 2014 by providing to the father by pre-paid post, a photograph of the child, [J] born 1 September 2011 at his nominated address on or before 1 May 2015.

12. The father was required for cross-examination by Ms Campbell and during that cross-examination, it was put to the father that he wrote to the mother’s solicitors, that is, Forte Family Lawyers on or about 8 January 2015, although that correspondence said to be by email was not produced.  What was produced and became exhibit “M1” is a letter dated 20 January 2015 from Forte Family Lawyers addressed to the father at W Street, Suburb K in the State of Victoria.

13. The father acknowledged receipt of that letter, the first and second paragraphs of which are read as follows:

    We refer to your email dated 8 January 2014.

    It is not clear from the Orders made on 2 May 2014 whether our client is required to send one photograph of [the child] per calendar year or each year starting from the date of the Orders (being 2 May 2014).  In any case, our client instructs that she sent a photo to your nominated address on 16 January 2014.  Please let us know if you did not receive it or if your address has changed.

14. To the extent that it may be of assistance to the parties, my interpretation of the orders made by Benjamin J on 2 May 2014 obliged the mother to send a photograph to the father each year commencing 2 May 2014.  Therefore, the first photograph should have been sent so that it was received by not later than 1 May 2015. 

15. Turning, however, to the alleged contravention.  The father’s evidence was that at some stage after his receipt of the letter of 20 January 2015, he placed a phone call to the office of the mother’s practitioners.  He was somewhat vague.  He did not know to whom he spoke.  He did not know the day on which he made the phone call and he said that he was told that the office would return his call at some stage.  But it appears from his evidence that he did nothing further.

16. In particular, he did not do, as requested, and advise the mother’s lawyers that he did not receive the photograph referred to in the correspondence.  He said that he did not have internet connection sufficient to respond by email.  However, under cross-examination, he conceded that he could have sent a handwritten letter by pre-paid post.  Rather more tellingly, the father said words to the effect of, “I assumed that you [the solicitor] would contact me again”. 

17. In my view, the correspondence sent by the mother’s solicitors makes clear that a photograph had been sent, and asks for notification in the event that the father did not receive it.  Having not received it and not having made any notification, I am not prepared to find that knowingly and without reasonable excuse, the mother failed to comply.  That is, that the fact that the father did not receive the photograph to which he was entitled, is met by the reasonable excuse that the mother thought that he had received it and was relying on his silence or lack of notification and response to the letter of 20 January 2015 in that regard.

18. Accordingly, I find that the alleged contravention is not proved and I dismiss that part of the contravention application which disposes of the application in its entirety.  I should mention, however, that sitting in the witness box, the father was handed an A4 sized photocopy of a colour photograph of the child and has retained that.  It would be as well, in my view, for the mother to comply well prior to the year being up by sending a photograph of the child to the father.  The father has confirmed that his current address is C Street, Suburb X in the State of Victoria.

19. The mother seeks a costs order against the father. The Act provides that each party bear their own costs unless I’m satisfied that there are circumstances which justify some other order being made. Now, the father has been wholly unsuccessful in his application and that does satisfy me that there are circumstances by which an order should be made.

20. The mother seeks the sum of $1225 calculated in accordance with the family law scale, perhaps not allowing for all of the items that the mother’s practitioner would have included but certainly the bulk of them.  In proceedings under the Family Law Act, such as this contravention application, s 117(1) provides that each party to proceedings bear their own costs unless there are circumstances which justify a contrary order being made.  As indicated, I am satisfied that as the father has been wholly unsuccessful in his contravention application and that one part of it, in relation to s 121, was misconceived, that such circumstances exist.

21. I am therefore satisfied that an order for costs is justified. In turning to what order ought then be made, I have regard to the matters set out in s 117(2A) of the Act. The father is currently unemployed. He has skills but not those which have led him to employment, certainly this year. He is in receipt of a Newstart Allowance. He says that he has no capital or other income and is living a frugal existence in which much of his Newstart Allowance is paid to his stepfather for board and lodgings. He is nonetheless paying child support at the rate assessed, which is $15 per fortnight.

22. The mother is in part-time employment, having recently obtained that employment.  She is employed in some sort of a call centre and I am satisfied that that would not be for a great deal of money.  What is obvious is that neither party can afford legal costs in these proceedings.  The father’s lack of employment and lack of money does weigh in favour of a costs order not being made but it cannot be a complete answer because otherwise impecuniosity would be a defence to anyone incurring costs or having to pay them.  Nonetheless, I take into account the fact that the father has little money and probably no money with which to pay costs at this point. 

23. Neither party is in receipt of assistance from Legal Aid in any state. 

24. I take into account the manner in which the father brought his application, the fact that it was not particularised adequately.  However, I also note that that represented no impediment whatsoever to the matter proceeding today. 

25. The main factor which I take into account is that the father has been wholly unsuccessful in his application.  In my view, this strongly supports an order for costs being made in favour of the mother.  As Kay J in Brown & Brown observed, “[i]n many cases there will be an outstanding feature that makes an order for costs appropriate, a feature of the case which so dominates the scene that it can outweigh any of the other s 117(2A) considerations”.[1] 

    [1] (1998) FLC 92-822 at 85,347

26. On behalf of the mother, I was also asked to take into account a further matter and that is that the mother has facilitated this proceeding being concluded as early as possible and minimising the costs to herself of so doing. 

27. The mother is a resident of Queensland.  She did not fly to Melbourne for the proceedings but she was prepared to make herself available by telephone.  Furthermore, she instructed her solicitor to prepare an affidavit which could be relied upon in this proceeding if she wanted to.  As it turned out, she did not have to but it was a means by which the mother’s evidence could have been put before the Court.  The father refers to the application and material having been served.  In fact, it appears that there was an unsuccessful attempt at service.  However, following on that attempt, the mother instructed her solicitors to find out what was happening and they searched the Commonwealth Law Courts Portal and obtained copy documents from that source.  The mother then considered herself to be served and today, without reservation, completed an address for service which nominates their address as a future address for service, in accordance with the Family Law Rules. 

28. I take into account that the mother has done all that she can to conserve her costs whilst preserving for herself the safeguards that any respondent to a contravention application is entitled. 

29. I am satisfied that the father should make a contribution to the wife’s costs of, and incidental to, today.  Turning to quantum, I was not addressed by the father specifically in relation to quantum but it is difficult, in my view, to get the costs below the amount claimed of $1225.

30. In fact, it could comfortably have been able to be more.  I am informed by the solicitor for the mother that the Federal Circuit Court scale of costs for this item would be something in excess of $2000 and that does not surprise me. 

31. I have regard to the father’s difficult financial circumstances.  I also have regard to the fact that the mother has unnecessarily and inappropriately incurred costs as a result of an application which he alone brought.  In my view, the father should make a contribution to the mother’s costs of, and incidental to, his application in the sum of $1000 and should do so within 11 months of this day.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 4 November 2015.

Legal Associate:

Date:  29 March 2016