Ongal and Materns (No. 2)

[2008] FamCA 531

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS (NO. 2) [2008] FamCA 531

FAMILY LAW – COSTS – contravention applications against the wife dismissed – wife seeking costs – wife put to cost in getting solicitors to prepare for proceedings due to the large volume of material put to the court for consideration – variety of possible interpretations of the orders - husband wholly unsuccessful for reasons of lack of clarity and particularity within orders themselves – no order for costs

Family Law Act 1975 (Cth) s 117

APPLICANT: MR ONGAL

RESPONDENT: MS MATERNS

FILE NUMBER: ADC 2107 of 2007

DATE DELIVERED: 4 JUNE 2008

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 4 JUNE 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Pyke QC

SOLICITOR FOR THE RESPONDENT: Denise  M Rieniets & Associates

Orders

1. No order made for costs.

IT IS NOTED that publication of this judgment under the pseudonym Ongal & Materns is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC  2107   of 2007

MR ONGAL

Applicant

And

MS MATERNS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Having determined the issues surrounding the father’s Contravention Application (being document 22 on the Family Court file) which resulted in a dismissal of all alleged contraventions by the mother, I have now received an application for costs on behalf of the mother. 

2. In considering any application for costs, I have to have regard to the provisions of Section 117 of the Family Law Act 1975 as amended, but particularly sub-section (2A), which requires me to consider:-

   (a)      the financial circumstances of each of the parties to the proceedings;

3. I have made a previous determination in these proceedings which I will not repeat but which I still deem to hold valid as to the father’s capacity to meet the costs of these proceedings and I am satisfied from that previous determination and the materials contained therein, that whilst his capacity has diminished given the previous order for costs that I have made, he still does bear that capacity to pay, particularly an amount of no greater than $3,000.00.

(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

1. This sub-section is not relevant as it relates to the issue of legal aid.

(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

1. Of relevance here is the amount of material that the Court was obliged to consider in dealing with the single Application for Contravention.  Whilst I may be inaccurate as to the final count of such affidavits, it would appear that it did require me to consider at least 6 or 7 affidavits in order to gain a full understanding of the allegations of the father as to the alleged breaches by the mother.  Such an exercise, I am satisfied, would have put the mother to cost in getting her solicitors to also identify and refer to those documents in order to adequately prepare for today’s proceedings.

(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

1. This sub-section is not relevant.

(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

1. This sub-section is particularly relevant.  As all alleged contraventions were dismissed, either on the father’s own application or by my Order in relation to the only two remaining contraventions, it is clear that the father has indeed been wholly unsuccessful on the application before me.

(f)whether any party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;  

1. This sub-section is not relevant.

(g) such other matters as the court considers relevant.

1. In my view, whilst there are often no additional matters to consider on a costs application, it does not apply here and the factor of particular relevance is the variety of possible interpretations of the Orders made on 27 February 2007, particularly as to paragraph 6 of those Orders.  Certainly it was not clear to me at the outset and did not become any clearer during the course of the hearing before me, as to whether or not it was appropriate to interpret that order as obliging only the mother and the father to be present at the time of handovers and including the general vicinity of the W Police Station or whether or not it referred only to the point of handover inside the W Police Station.  In my view, it was perfectly understandable that the parties came to a different interpretation of that particular order.

2. In dismissing the remaining 2 of the alleged breaches by the mother, I expressed the view that it was quite reasonable for her to interpret the order that nobody else was to be present at the point of handover inside the W Police Station.  However, in my view it was equally open to the father to interpret the order as suggesting that no other member of the mother’s family and indeed nobody else ought to be there at the time handover occurred, whether it occurred inside the police station or not.  Thus, in my view, it was a quite reasonable position for the father to adopt and which led to him bringing the proceedings which, in my view, were not improperly brought.

   Finding

3. Thus, whilst he was wholly unsuccessful, in my view it was for reasons of lack of clarity and particularity within the orders themselves.  In those circumstances, and given that it is a matter of interpretation across all of the orders that were made, in my view it is inappropriate to make any order for costs and I decline to do so.

I certify that the preceding eleven (11) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  4 June 2008.