PALMA & MURPHEY

[2020] FCCA 120

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMA & MURPHEY [2020] FCCA 120

Catchwords:
FAMILY LAW – Parenting – Contravention Application proceedings – costs application – no order for costs made.  

Legislation:

Federal Circuit Court Rules 2001, sch 1

Family Law Act 1975 (Cth) ss.70 NBA(1)(b)(i), 117,

Applicant: MR PALMA

Respondent: MS A MURPHY

File Number: PAC 2868 of 2012

Judgment of: Judge Newbrun

Hearing date: 30 July 2019

Date of Last Submission: 30 July 2019

Delivered at: Parramatta

Delivered on: 29 January 2020

REPRESENTATION

Solicitors for the Applicant: Ms Taylor

Solicitors for the Respondent: Ms Morrison

ORDERS

1. The father’s Application in a Case filed 7 May 2019 seeking costs is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2868 of 2012

MR PALMA

Applicant

And

MS A MURPHY

Respondent

REASONS FOR JUDGMENT

1. This is the determination of the father’s Application in a Case filed 7 May 2019 seeking an order that within 28 days the maternal grandmother pay the father’s costs in responding to the maternal grandmother’s Contravention Application filed on 12 October 2018, with such costs to be calculated in accordance with Schedule 1 of the Federal Circuit Court Rules 2001. This application for costs was opposed by the maternal grandmother (see her Response to the father’s said Application filed 3 June 2019).

2. In particular, the father relied upon his Affidavit filed 7 May 2019.  The maternal grandmother relied upon her Affidavit filed 3 June 2019.

History of Contravention Application proceedings

1. The above Contravention Application filed by the maternal grandmother was first returnable on 15 November 2018.  It was adjourned for hearing to 1 April 2019.  Directions were made for the maternal grandmother, if she so chose, to file a further short Affidavit, in addition to her originally filed Affidavit that had been filed on 12 October 2018 and she did so with an Affidavit filed 3 December 2018.

2. On 1 April 2019, the maternal grandmother’s Contravention Application was dismissed, the Court having determined that the paternal grandmother’s evidence in support of her filed Contravention Application did not prove the alleged contraventions. Having dismissed the Contravention Application, the Court then proceeded to make directions for written submissions by the parties in relation to the Court potentially varying the original final parenting orders of the Family Court of Australia made on 24 November 2015, pursuant to section 70 NBA(1)(b)(i) of the Act.

3. Thereafter, the parties filed written submissions, and, pursuant to later directions of the Court, the parties each additionally filed Affidavit evidence.

4. On 4 November 2019, the Court made the following orders pursuant to section 70NBA(1)(b)(i) of the Act:

   1. That the orders dated 24 November 2015 in the Family Court of Australia be varied as follows: that order (2) 2.1 and 2.2 be discharged and new orders (2) (2A) and (2B) be made as follows:

   (2) That the father will be at liberty to suspend the grandmother’s time with [B] pursuant to order 1.1 to enable [B] to attend paternal family events or social events including but not limited to friends’ birthday parties and in the event of such suspension of time, makeup time shall occur as agreed between the father and grandmother and in default of agreement on the following weekend.

   (2A) That the father shall be at liberty to suspend the grandmother’s time with [B] pursuant to order 1.3 on one occasion during the Christmas school holiday period to enable the father to travel on a family holiday with [B] with makeup time to occur as agreed between the father and grandmother. The father shall, if he seeks to suspend the grandmother’s time pursuant to this order, give the grandmother at least 4 weeks notice of his proposed suspension and, at the time of giving such notice, provide in writing to the grandmother the dates of his proposed travel on a family holiday with [B].

   (2B) That the father shall be at liberty to suspend the grandmother’s time with [B] at such other times as agreed to between the father and grandmother.”

5. The Court refers to its Reasons for Judgment in relation to the above orders made on 4 November 2019; it is apparent from those Reasons that order (2) 2.1 and 2.2 of the orders of the Family Court of Australia made on 24 November 2015 were , in the form they were in, unworkable and required variation. Ultimately, based on the evidence before the Court from both parties, the Court made certain variations to the old parenting orders, seeking to remove ambiguities in those old orders.

Determination

1. The Court refers to section 117 of the Act relating to costs.

2. The father states that he works as a tradesman and takes home about $1000 per week on wages.  He is the sole person who is financially responsible for the subject child [B] born … 2010.  He refers to having engaged a solicitor and barrister for the contravention hearing on 1 April 2019.

3. The maternal grandmother states that she is currently employed part-time as an administrative officer by Employer C.  She states that she earns about $1704 net per fortnight (about $852 per week) after tax.  She states that her weekly expenses total about $692.  Her Annexure states that she earns, per annum, about $54,965.  She asserts that she does not have the funds to pay for the father’s legal fees the subject of his present application for costs.

4. The maternal grandmother asserts that she felt she had no choice but to file the Contravention Application as the father had not been willing to negotiate a change in the orders of the Family Court of Australia.

5. Whilst the Court acknowledges that the maternal grandmother’s Contravention Application was dismissed on 1 April 2019, the reality is that the maternal grandmother’s filing of her Contravention Application, ultimately dismissed, led the Court to make variation orders under section 70 NBA(1)(b)(i) of the Act, which variation orders were necessitated by the Orders of 24 November 2015 being (in part) unworkable.

6. In the above circumstances, including the financial circumstances of the maternal grandmother, it would not be just for the Court to make an order for costs as sought by the father and his Application in a Case filed 7 May 2019 will be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 29 January 2020