PATEL & O’RILEY
[2009] FamCAFC 202
•13 November 2009
FAMILY COURT OF AUSTRALIA
| PATEL & O’RILEY | [2009] FamCAFC 202 |
| FAMILY LAW - APPEAL – Appeal from a decision of a Federal Magistrate – Appeal against a discretionary judgment – Where the Mother has sole parental responsibility for the child – Where the Husband spends time with the child – Appeal against parenting orders relating to an order dealing with the cost of implementing the orders as to when the Father spends time with the child – Where the Husband seeks orders that the Mother be responsible for the full cost of the Father's reasonable travel, meals and accommodation costs incurred in respect of the time spent with the child – Whether the Federal Magistrate made any error of principle or discretion in the findings he made regarding the financial circumstances of the parties – Appeal dismissed FAMILY LAW - APPEAL AGAINST COSTS – Where the Federal Magistrate was aware of the evidence as to the financial circumstances of each of the parties and the history of the litigation and was entitled to rely on such evidence to make such findings – Appeal dismissed FAMILY LAW - COSTS – Mother sought costs of the appeal – Financial circumstances taken into consideration – Circumstances not sufficient to warrant departure from provisions of s 117(1) of the Family Law Act 1975 |
| Family Law Act 1975 (Cth) |
| Gronow v Gronow (1979) 144 CLR 513 |
| APPELLANT FATHER: | MR PATEL |
| RESPONDENT MOTHER: | MS O’RILEY |
| FILE NUMBER: | DGM | 1007 | of | 2005 |
| FIRST APPEAL NUMBER: | SA | 50 | of | 2008 |
| SECOND APPEAL NUMBER: | SA | 73 | of | 2008 |
| DATE DELIVERED: | 13 November 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 24 March 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 14 April and 4 August 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 514 & [2008] FMCAfam 816 |
REPRESENTATION
| APPELLANT: | Father in person. |
| RESPONDENT: | Mother in person (by telephone link) |
Orders
The appeal (SA 50 of 2008) by the Father against orders 5(a), 5(c), 7 and 8 made on 14 April 2008 be dismissed.
The appeal (SA 73 of 2008) by the Father against orders made on 4 August 2008 be dismissed.
The application by the Mother for costs of the said appeals be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Patel & O’Riley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 50 of 2008; SA 73 of 2008
File Number: DGM 1007 of 2005
| MR PATEL |
Appellant
And
| MS O’RILEY |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
There are appeals by Mr Patel (“the Father”) against orders made by Federal Magistrate Phipps on 14 April 2008 in parenting proceedings and 4 August 2008 in costs proceedings. The Respondent is Ms O’Riley (“the Mother”).
On 14 April 2008 the Federal Magistrate delivered reasons and made the following final orders:
1.A declaration that the applicant is the father of the child [T] born [date].
2.The respondent’s applications filed:
a) 5 October 2007 (in relation to constitutional matters),
b) 8 November 2006 (departure application), and
c) 27 July 2006 (enforcement summons),
be dismissed.
PARENTAL RESPONSIBILITY
3.That the mother have sole parental responsibility in respect of the child [T] born [date].
4.That the child live with the mother.
SPENDING TIME
5.That the child spend time with the father as follows:
a) in the 2008 mid-year (July) Queensland school holidays on seven consecutive days for the following periods;
i)on the first two days from 10:00am to 4:00pm;
ii)on the following two days from 9:00am until 5:00pm;
iii)from 9:00am on the fifth day until 5:00pm on the seventh day.
b) In the 2008/2009 summer school holidays for a period of one week from 23rd December 2008 until 30 December 2008 with the start and final days inclusive.
c) For one week of each mid year (July) school holiday period commencing in 2009 and each year thereafter at times to be agreed, such time to be in Queensland. In default of agreement, the first half (of the school holidays).
d) For two weeks in the Queensland long summer holidays each year commencing 2009/2010 between 7 January 2010 and 21 January 2010 in the 2009/2010 holidays and each alternative year and from 23 December 2010 to 6 January 2011 in the 2010/2011 summer school holidays and each alternative year.
6.The father’s time pursuant to sub-paragraphs 5(a) and 5(c) is to occur in Queensland and pursuant to sub-paragraphs 9(b) and 9(d) is to occur in Victoria, unless otherwise agreed in writing.
7.That changeover of the times spent by the father pursuant to 5(a) and 5(c) in relation to the July school term holidays shall occur at the [Q] Children’s Contact Service or if unavailable at such other place as agreed in writing between the parties. In default of agreement outside the Grand Mercure Hotel [Q].
COSTS OF TRAVEL ETC
8.The mother to be responsible for one half of the father’s travel costs to Queensland each year.
9.That the mother be responsible for the total cost of the child’s travel to and from Victoria for the purposes of sub-paragraphs 5(b) and 5(d). The mother to arrange to deliver the child to the [Q] Airport at the commencement of such travel for travel to Tullamarine Airport. The mother to advise the Father one month in advance of the child’s arrival and departure details.
10.That unless otherwise agreed in writing between the parties the times spent during all holiday periods save for the long summer vacation and 5(a) hereof shall commence on the first Monday of the relevant school holiday period.
12.That both the mother and the father be and are hereby restrained from removing the child from the Commonwealth of Australia without the written consent of the other or Order of this Court.
13.That the child’s name continue to be placed upon the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and the Australian Federal Police maintain the child’s name on the watchlist until further order of the Court as provided by orders of the Federal Magistrates’ Court on 12 April 2005.
14.The mother and father are to keep each other informed as to their current residential addresses and landline and mobile telephone numbers.
15.The mother is to provide to the father an email address to permit the father and [T] to contact each other by email.
16.That the father be permitted to attend parent/teacher interviews by telephone or by specific arrangements with the child’s teacher and upon providing notice to the mother of intended personal attendance.
17.That the father be permitted to liaise directly with the child’s school and sporting bodies to obtain any necessary information about the child’s progress. The mother is to forthwith authorise the school and sporting bodies in writing to facilitate this including authority required for the father to receive at his expense copies of all school reports, school newsletters and school photographs of the child.
18.That each parent forthwith notify the other parent of any serious illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the child.
19.That in the event the child returns to reside in Victoria, the father be permitted to attend school sports, plays and school special events on providing reasonable notice (not less than six days) to the mother.
20.That the parties are hereby restrained from denigrating (criticising) the other parent in the presence or hearing of the child and from discussing these Court proceedings with the child.
22.That the father on provision of one month’s notice to the mother may spend additional time with the child in [Q] for a period of up to three hours on a school day and nine hours on a non-school day for up to seven days, all costs of travel, transport and accommodation to be the sole responsibility of the father unless otherwise agreed.
23.That in the event the child is travelling to Melbourne or Geelong or their environs otherwise then pursuant to these Orders, the mother give reasonable notice to the father and that there be arrangements made for the child to spend some time with the father.
COMMUNICATION
24.That the father spend time and communicate with the child as otherwise agreed.
25.The father communicate with the child by webcam between 7:00pm and 8:00pm each Sunday evening, with the mother to facilitate the child receiving the webcam contact to a computer address provided by her to the father for this purpose, with the father to place the call.
26.That the mother provide the father with the child’s mobile telephone number and that there be reasonable telephone communication between the father and the child, and that the child be permitted to call his father in accordance with the child’s reasonable wishes.
27.The father communicate with the child by telephone between 9:30am and 10:00am on Christmas Day each alternate year with the father to telephone the child and the mother to provide a landline on which the child will be available for such communication. (It is understood that the times referred to are Queensland times while the child resides in Queensland.)
28.The father communicate with the child by telephone on Easter Sunday between 9:30am and 10:00am (local time with respect to where the child is) if the child is not spending time with him on that day. In the event the child is spending time with the father on that day, the mother communicate with the child between 9:30am and 10:00am on Easter Sunday. The parent having such communication is to place the call.
29.The mother communicate with the child by telephone between 9:30am and 10:00am on Christmas Day each alternate year with the mother to telephone the child and the father to provide a landline on which the child will be available for such communication. (It is understood that the times referred to are Victorian times while the child is spending time in Victoria).
30.That the father communicate by telephone with the child on the child’s birthday ([date]) each year between 9:30am and 10:00am if the child is not spending time with the father on that day.
21.The mother can communicate by telephone with the child on the child’s birthday between 9:30am and 10:00am if the child is spending time with the father on that day.
32.That the father can communicate with the child by letters, cards and gifts and the mother is to ensure the child receives all such items from the father.
33.That during all face to face time spent periods the father is to administer and make sure that the child takes Ventolin and any other asthmatic medication as may be prescribed in accordance with written instructions of a medical practitioner to be provided by the mother to the father prior to the times spent.
NOTICE OF ANY PROPOSED RELOCATION
34.That in the event the mother proposes to move the child’s home with her from [Q], she must give at least sixty days notice to the father of her intention to do so (prior to the proposed move date) such notice must include the intended place of relocation and proposed arrangements for the child to continue to spend time and communicate with the father and proposed education and living arrangements.
35.All extant applications in respect of parenting orders be otherwise dismissed.
36.The Order appointing the Independent Children’s Lawyer is discharged.
37.The respondent file and serve a written submission on costs by 4:00pm on 21 April 2008.
38.The applicant and Independent Children’s Lawyer file and serve any written submissions in reply by 4:00pm on 29 April 2008.
39.The question of costs is reserved.
40.Applicant’s solicitors to engross these Orders.
The orders above are extracted from a copy of the orders attached to the Father’s Notice of Appeal. The orders taken from the published reasons are numbered differently to the orders above. For the purposes of this hearing I will use the Father’s numbered orders as it is what he had regard to in his Notice of Appeal.
On 25 June 2008 the Father filed an application for an extension of time to file an appeal. On 6 August 2008 Mushin J heard the application and made the following orders:
1.Pursuant to Rule 1.14 of the Family Law Rules 2004, the father be and is hereby granted leave to file a Notice of Appeal against paragraphs 5(a), 5(c) and 8 of the Minutes of Orders, incorporated into orders of the Court by virtue of paragraph 5 of the order made by Phipps FM on 14 April 2008.
2.The said Notice of Appeal be filed no later than 4:00pm on 13 August 2008 and a sealed copy thereof be forthwith served on the respondent mother.
3.The said appeal be thereupon referred to the Southern Appeals Registrar for listing for the making of such directions and orders as may be necessary to prepare it for hearing.
4,All questions of costs be reserved.
5.General liberty reserved to both parties to apply, to Justice Mushin if reasonably available or otherwise such other Judge of the Court as may be nominated by Justice Finn.
On 13 August 2008 the Father filed a Notice of Appeal. In the Notice of Appeal the Father states that he is seeking to appeal against orders “5(a), 5(c), para 7 and para 8” of the Federal Magistrate’s orders of 14 April 2008. In the event that the appeal succeeds the Father seeks the following:
8 (1)that the Minute 8 of Orders made on 14th April 2005 by the Federal Magistrates Court be deleted and
8 (2)a new Order 8A substituted; that the mother to be responsible for the full cost of father's reasonable travel, meals and accommodation costs incurred in respect of the contact during June/July holidays in each year in [Q], currently estimated at $2800 for each contact covering a stay of 8 days in [Q].
8(3)that the mother shall pay to the father 50% of the estimated total cost of $2800, in advance, at least 30 days prior to the commencement of the Official Queensland school holidays in June/July each year. The mother shall pay balance 50% to the father within 28 days of submission of the account to the mother after the completion of contact.
8(4)In the event the above Orders 8(1) to 8(3) sought are not granted the contact (8 days) shall occur in Melbourne in lieu of [Q], with the Mother paying the costs of child's travel to and return from Melbourne.
8(5)In the event the above Orders 8(1) to 8(3) and 8(4) sought are not granted, alternative/substitute contact in Melbourne to be granted during first half of Queensland Easter school holidays (March/April) each year with the mother paying child's travel costs to and return from Melbourne.
8(6)that costs of this appeal be paid to the appellant father by the respondents.
In summary, if the Father does not succeed with his appeal against the order in relation to the Mother paying half of the costs for him to travel and spend time with the child in Q, then the Father seeks that time spent with the child should occur in Melbourne.
On 4 August 2008 the Federal Magistrate dismissed applications by both parties for costs and delivered reasons.
On 1 September 2008 the Father filed a Notice of Appeal against the orders made by the Federal Magistrate on 4 August 2008 and sought the following orders:
8(1)that the Costs Orders of FM Phipps delivered on 4 August 2008 be set aside.
8(2)that the father be awarded at least 50% of his costs of $11747.00, if not the full $11747.00
8(3)that costs of this appeal be paid to the appellant father by the respondents
On 13 August 2008 the Chief Justice ordered pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that the appeal against the orders made on 14 April 2008 be heard by a single Judge. On 10 September 2008 the Chief Justice ordered that the appeal against the orders made on 4 August 2008 be heard by a single Judge.
On 1 October 2008 the appeals came before Mushin J and he made various procedural orders and set the appeals down for hearing on 20 November 2008. The matter came back before Mushin J on 22 October and 10 November 2008. On 13 November 2008 his Honour made an order that the hearing “be referred to Justice Finn for listing before a Judge other than Justice Mushin as nominated by her”.
The matter first came before me on 10 December 2008 and I made the following directions:
1.On or before 4 pm on 16 January 2009 the appellant file and serve a list of the documents that were before Federal Magistrate Phipps upon which the appellant seeks to rely.
2.On or before 4 pm on 16 January 2009 the appellant obtain those parts of the transcript of evidence of the hearing before the Magistrate which may be relevant to the appeal and provide copies of such transcript to the court and to the respondent Mother.
3.The appellant file and serve a written summary of argument and list of authorities (if any) on or before 4 pm on 16 January 2009.
4.The appellant file and serve any application to lead further evidence and any material in support thereof on or before 4pm on 16 January 2009.
5.The respondent file and serve a list of any further documents that were before the Magistrate, not included in the appellant's list, upon which she seeks to rely, together with a written summary of argument and a list of authorities (if any) on or before 4 pm on 30 January 2009.
6.The respondent file and serve any application to lead further evidence and any material in support on or before 4pm on 30 January 2009.
7.The appeal be listed for hearing before the Honourable Justice O’Ryan at 10am on 11 February 2009.
8. The costs of today's proceedings be reserved.
On 23 January 2009 the Mother filed an Application in an Appeal seeking that the appeals be dismissed as the Father had not complied with the directions I made on 10 December 2008. The Mother contended that the Father had not served the required documents on the Mother by 16 January 2009 and she received them on 28 January 2009. The Father did file the documents on 16 January 2009 but had not served them on the Mother.
On 11 February 2009 the hearing of the appeal did not proceed. I heard the Mother’s application referred to in the preceding paragraph and after discussion with the parties’, dismissed her application and granted an indulgence to the Father. I also made the following procedural orders:
1.The hearing on 11 February 2009 be vacated.
2.The Notices of Appeal filed by the Father on 13 August 2008 and 1 September 2008 be listed for hearing before me on 24 March 2009 for one hour.
3.The Orders made on 10 December 2008 be varied to provide that by 4:00 pm on 27 February 2009 the Father file and serve:
3.1 an amended written summary of argument;
3.2 an amended list of documents that were before Federal Magistrate Phipps upon which the Father seeks to rely and further identify in the list with specificity which parts of the documents are relevant and provide a brief explanation as to why they are relevant;
3.3 a list of those parts of the transcripts of evidence of the hearing before Federal Magistrate Phipps which the Father contends are relevant to the appeals and in that list identify with specificity the relevant parts or pages of the transcripts that the Father contends are relevant and provide a brief explanation as to why they are relevant.
4.The Mother file and serve by 4:00 pm on 20 March 2009 a written summary of argument and a list of authorities upon which she seeks to rely.
5.The Mother file and serve by 4:00 pm on 20 March 2009 a list of any further documents that were before Federal Magistrate Phipps but were not included in the Father’s list which the Mother contends are relevant and if there are such further documents, identify in the list with specificity which parts of the documents are relevant and provide a brief explanation as to why they are relevant.
6.The Mother file and serve by 4:00 pm on 20 March 2009 any application to lead further evidence and material in support of such application, if any.
7.The Mother’s costs of today’s proceedings be reserved.
IT BE NOTED:
8.The Father will provide the Mother with an electronic version of the material referred to in these orders.
9.A copy of the transcript of today’s proceedings before me to be taken out.
On 27 February 2009 the Father filed an ‘Amended written summary of argument and list of Authorities’; an ‘Amended List of Documents relied upon by the father filed on 27 February 2009’; and ‘Relevant transcripts of the hearings before the Federal Magistrate relevant to the Appeal’. On 20 March 2009 the Mother filed ‘Submissions Filed in Response’.
On 24 March 2009 the hearing of the appeals proceeded. The Father appeared in person and the Mother appeared by telephone conference facility.
The amount of written material before me was totally disproportionate to the issues involved in the appeal. There were in excess of 42 documents identified by the Father excluding affidavits of service and other procedural documents. I observe that in his reasons of 14 April 2008 the Federal Magistrate said:
2.The application has a long history. It has many documents on the file. The last document filed has the folio number 82, which is some indication of the extent of the material on the file. Today is the final hearing. Many of those documents do not assist in determining the final issues. It would be pointless to attempt to enumerate everything which is on the file for the purpose of these reasons.
BACKGROUND
The Father was born in 1944 and the Mother in 1955. The parties met in April 1995 and at that time they both lived in Melbourne. The Father contended that the parties commenced a relationship in May-June 1995 and that they lived together for “approximately two years between August 1995 to September 1997”.
In January 1998 the child T (“the child”) was born. The Father’s name is on the birth certificate.
The relevant history, which I will hereafter set out, appears from the reasons for judgment of the Federal Magistrate delivered on 4 August 2008 in the costs proceedings. I have also considered what the Father said in an affidavit he swore on 6 February 2008.
The Father migrated to Australia in 1980. The Father deposed that he is employed in the finance industry.
The Father contended that he “started receiving a Centrelink disability pension from August 2002”. He deposed that “[e]ssentially my problem is how my depression or anxiety affects my work performance”.
By the time the proceedings were commenced in April 2005 the Mother was a working as a self employed professional. The Father had previously been married and has three adult daughters. At the time of the hearing he was unemployed and in receipt of a disability pension.
In January 2005 the Mother moved to Q in Queensland with the child. She moved to Q to take up a senior professional position with Company A. The Father contended that it was without any notice to him. Up until that time the Father had been seeing the child on weekends and at other times, but after the Mother's move to Q the Father saw very little of the child.
In April 2005 the Father filed an application in the Federal Magistrates Court. The Father sought orders to the effect that the child live with the Mother and spend time with him. He also sought an order that the Mother return with the child to Melbourne. The Mother opposed the child spending time or communicating with the Father, or alternatively proposed supervised time.
The Federal Magistrate said that in about the middle of October 2005 representation of the Father by the Legal Aid Commission of Victoria commenced. The Father’s “first appearance in court represented was on 30 November 2005”.
In early 2006 a Family Report was prepared and the Family Consultant recommended that the Father have unsupervised time with the child. The Federal Magistrate said that supervised time, which occurred at the Q Contact Centre in January 2008, received a positive report from the Centre. A similar time in July 2006 did not go so well.
On 27 July 2006 the Mother filed a child support enforcement summons.
On 9 August 2006 an order was made by consent for the preparation of a psychiatric assessment of the Father. The Mother sought the psychiatric report but subsequently the Mother objected to the nominated expert.
The applications for final orders were first fixed for hearing on 22 August 2006. The Federal Magistrate said that shortly prior to that the Mother filed an application, most of which was unsuccessful. The hearing on 22 August 2006 was vacated and relisted for 22 November 2006.
The hearing date of 22 November 2006 was then vacated and rescheduled for 18 April 2007. An order was made for an updated Family Report to be completed close to the trial date so that the Mother would not have to travel twice with the child from Q.
In November 2006 the Mother filed a child support departure application.
The Federal Magistrate said that the Mother did not travel to Melbourne in April 2007. The hearing was vacated and was then listed for 10 October 2007. An order was made for paternity testing.
On 1 October 2007 the Mother’s solicitors filed a Notice of Ceasing to Act.
On 2 October 2007 the Mother filed an application seeking to have the Father’s amended application filed on 4 July 2006 struck out; a new Family Consultant appointed; the proceedings transferred to Queensland; telephone communication between the child and the Father be supervised; and the hearing on 10 October 2007 be adjourned because the Mother had a fall and broken her arm and was not well enough to travel. The Mother also filed a Notice of Constitutional Issues under s 78 of the Judiciary Act 1903 (Cth). The Mother contended that the Court lacked constitutional power to order relocation.
The hearing listed for 10 October 2007 was vacated and then fixed for 20 February 2008. An order was also made for the parties and the child to attend upon a Family Consultant for the purposes of preparation of an updated Family Report.
The hearing did not proceed on 20 February 2008. The Mother did not travel to Melbourne and the Federal Magistrate said that “whether the Mother intended to come otherwise, she was prevented because of severe flooding in [Q]”. The hearing was then fixed for 14 April 2008.
On 14 April 2008 the hearing proceeded. However the Mother did not attend in person. The Mother advised she would not be attending and was too sick to travel. The Mother was present by telephone but did not participate in the proceedings. The Federal Magistrate said that at the trial the Independent Children's Lawyer had prepared proposed orders and shortly prior to the commencement of the hearing, the Mother emailed her agreement with those orders, or at least agreement with orders very similar to what was proposed.
On 14 April 2008 at the conclusion of the hearing the Federal Magistrate delivered ex tempore reasons and made the final orders.
The Federal Magistrate at [36] of his reasons in the costs proceedings said that the orders which were made were largely as proposed by the Independent Children's Lawyer and not what was proposed by the Father. He said that it was not a case, where it could be said, that the final hearing should not have been necessary. He said that whether “the Mother should have abandoned her stance that all time should be supervised at a much earlier stage makes no difference to the need for a final hearing. What happened at the hearing shows that at that point the Mother did put aside her supervision claim, but there was still not agreement about the amount of time and in particular about cost of travel and accommodation”.
On 4 August 2008 the Federal Magistrate delivered reasons in the costs proceedings and dismissed the applications.
REASONS IN THE PARENTING PROCEEDINGS
The Federal Magistrate at [28] – [29] and [45] – [51] of his reasons of 14 April 2008 discussed the issue of who should pay the costs of the Father to travel and spend time with the child in [Q]. He said:
28.So far as paying the cost of that is concerned, the Independent Children's Lawyer proposes that the mother be responsible for half the cost of the father's travel to Queensland, and the cost of the child's travel from Tullamarine to Melbourne when that is happening.
29.Both [Ms M] for the father and the independent children's lawyer [“the ICL”]have made some reference to the cost of travel. [Ms M] has calculated the cost to the mother on the father's proposal of $3,400 a year. That is assuming best air fares or the cheapest air fares, that I assume are reasonable, but perhaps a modest standard of accommodation …
…
45.So far as the cost is concerned, the father has quite extensive material about his financial situation. He only has a disability pension. He has a home where he is paying the mortgage. He is managing to pay the mortgage by in effect borrowing against the increased value in the home, and having a round robin of credit card payments and borrowings.
46.In a financial statement he says his only income is disability benefits of $265.45 a week. He says he has mortgage payments of $507.76 a week. Then he has his living expenses, which he sets out in his financial statement. He has close to $80,000 of superannuation not drawn on. He has a shortfall, he says. His total weekly expenditure, he says, is $1054. So on that basis his financial position, it seems, is very, very bad.
47.The mother filed a financial statement in 2006 which showed her income at just over a hundred thousand dollars a year salary, plus she receives a car for use in her employment and can use it for personal use. It is not clear to what extent she has to make a contribution.
48.In material, which I have not referred to specifically, the mother alleges that the father has access to other funds. I am looking at what he says his financial position is. It seems he must have some assistance from somewhere. He sets out his credit card debts, which are quite large, but they do not seem to explain the fact that he has been managing to survive. But it is a question of making an assessment of what is a fair sharing of the burden of the cost of travel.
49.The mother was the one who relocated but, again without going into the detail of the material, the position she puts in her material is that she was self‑employed as a [professional] in Melbourne. She was at […] but she was making very little money. She obtained an offer of employment in [Q], the position I have described. It is with [Company A], where she could comfortably keep herself and [T], so she took that job.
51.Criticism is made of her on behalf of the father for not notifying him, and that may be a valid criticism. But I consider it has to be accepted that her choice was an entirely reasonable one, to move to [Q] where she could support herself and her child. It is a matter of finding a balance.
52.I consider that the balance between the parties of sharing the cost is as the Independent Children's Lawyer proposes; that is, that the mother be responsible for half the cost of the father's travel to Queensland and the full cost of [T] travel to and from Tullamarine Airport.
REASONS IN THE COSTS PROCEEDINGS
At the end of the hearing in April 2008 both the Father and the Independent Children’s Lawyer sought costs of the applications for final orders. The Mother filed an application after the hearing also seeking costs. The Father and the Independent Children’s Lawyer were both funded by Victoria Legal Aid and the Mother retained lawyers at her own cost. The Father’s receipt of legal aid was conditioned upon a charge over his home supported by a caveat and he will have to pay the costs to Legal Aid.
The Federal Magistrate from [1] to [13] of his reasons in the costs proceedings gave a background to the proceedings that I have mentioned above. At [14] and [15] he outlined the Father’s submissions as to why the Mother should pay costs, including the Mother relocating to Q without notifying him; that he applied for the Mother to return to Melbourne; the Mother’s proposition that time spent between the Father and the child should be supervised when the expert evidence called for no supervised time; and the Mother making allegations about the Father’s character and behaviour which were never substantiated.
The Federal Magistrate at [16] of his reasons raised the issue of the paternity test and that the order for such a test was made by consent and continued:
… This was one reason for the adjournment at that time. The father supplied a sample but when the mother attended with the child in Queensland she said that the child became so upset the sample could not be taken. The father’s submission was that the mother’s behaviour made the child upset so that in effect, the mother prevented the testing occurring. I can’t make any finding of fact about what occurred.
The Federal Magistrate at [17] stated that the Father’s submission was that it was the Mother who asked for the test. The Federal Magistrate stated in his reasons in the parenting proceedings at [8] that the Father raised the “question of DNA testing”. In his reasons in the costs proceedings the Federal Magistrate said that as the order was made by consent, he did not think any issue about costs turned on the making of the order. The Federal Magistrate said that what was important was that a sample could not be obtained from the child. The Federal Magistrate said that of significance was that after the failure of the attempt to have parentage testing, the Mother was not prepared to state a position about paternity and in February 2008 filed a document which purported to dispute the paternity, but “in an illogical fashion”.
The Federal Magistrate at [18] of his reasons discussed various interim and child support applications the Mother filed in 2006 and 2007 and at [19] noted that none of those applications “were pursued”.
At [20] of his reasons the Federal Magistrate said that he could not make a finding as to why it took five months to serve the original application of the Father on the Mother.
At [21] of his reasons the Federal Magistrate dismissed a submission on behalf of the Mother in relation to a letter that her solicitors sent to the Father with an offer of settlement “on more generous terms than those obtained by the applicant”. The Federal Magistrate had not seen the letter but he did refer to a second letter in which the Mother’s solicitors gave notice “that since the father has rejected the offer it has lapsed and is at an end”. The Federal Magistrate also observed that the Mother had filed another response proposing supervised time. The Federal Magistrate said that the Mother could not “rely on her offer”.
At [22] of his reasons the Federal Magistrate said that the Mother then submitted that she obtained a final order in November 2005 but that the Father continued his relocation case until 2007. The Federal Magistrate concluded that the Father’s relocation application was “unrealistic” while the Mother remained employed in Q.
The Federal Magistrate stated at [23] of his reasons that the Mother submitted that many of the adjournments in 2006 were a result of the “father’s selective disclosure of any psychiatric report by his treating practitioner”, although he noted the order for the report of a nominated expert was by consent.
The Federal Magistrate also pointed out at [24] that the Mother could not attend certain hearings as she had a broken arm on one occasion and because of serious flooding in 2008. At [33] the Federal Magistrate stated that the hearing of 10 October 2007 was vacated because the Mother had broken her arm and at [34] noted the hearing date of February 2008 was adjourned because of floods in Q.
At [27] of his reasons the Federal Magistrate discussed the Father’s and Mother’s financial positions.
At [28] of his reasons the Federal Magistrate said that the Mother had paid $35,000.00 for legal expenses and still owed $22,000.00 to her previous lawyer. He said that the Mother contended that she has “very little disposable income” and observes that she has the full burden of the care of the child and that the Father provides little child support.
At [29] of his reasons the Federal Magistrate noted the submissions of the Father and the Independent Children’s Lawyer that the “conduct of the mother throughout the proceedings was such that she should pay all their costs” and that the Mother relocated without any contact information, although this was disputed by the Mother. The Federal Magistrate at [30] said that the Mother’s reasons for relocation “was obvious”, namely that she was offered a position in Q because she was not making much money as a self employed professional and concluded that this “is not in itself grounds for ordering costs”.
At [31] of his reasons the Federal Magistrate discussed the issue of obtaining a psychiatric report of the Father and concluded that he did not consider that the conduct of either party justified an order for costs.
The Federal Magistrate then at [32] of his reasons discussed parentage testing and noted that the final hearing could not proceed if an “issue of parentage was raised”.
The Federal Magistrate at [35] of his reasons stated that while the Mother advised that she was too ill to attend the final hearing, she had emailed her agreement with the orders proposed by the Independent Children’s Lawyer “or at least agreement with orders very similar”. At [36] the Federal Magistrate stated that the orders that he made were largely as proposed by the Independent Children’s Lawyer and “not what was proposed by the father”. He continued that while the Mother had abandoned her claims for supervised time between the child and the Father, it made no difference for the need of a final hearing as there was no agreement as to how much time should be spent between the Father and the child and “in particular” on the costs of accommodation and travel.
The Federal Magistrate at [38] of his reasons reiterated the Mother’s stronger financial position, her sole care of the child and the little financial assistance she received from the Father.
At [39] of his reasons the Federal Magistrate noted the submissions of the Father and Independent Children’s Lawyer that the matter had been set down for final hearing on six occasions and the Mother’s unsubstantiated assertions regarding the “personality and behaviour” of the Father. The Federal Magistrate said that the orders for psychiatric and parentage tests were not “made in circumstances where I consider costs should be ordered” and “cannot draw any conclusions adverse to the mother about why a sample was not obtained from the child”.
At [40] of his reasons the Federal Magistrate stated that the Mother’s application on Constitutional grounds was not pursued. He also said that the Mother sought an adjournment on the basis that she could not travel because of injury. He concluded that he could not make a finding that the Mother could travel and that the “same” applied because of the floods in February 2008.
At [41] of his reasons the Federal Magistrate concluded that he did not consider that the Mother’s conduct combined with the “other matters” required that he exercise the discretion and award costs.
As to the application by the Mother for costs, at [42] of his reasons the Federal Magistrate said that the Mother had “not shown any behaviour by the father which justifies an order for costs”.
APPEAL AGAINST DISCRETIONARY JUDGMENT
This is an appeal against a discretionary judgment. The circumstances in which I should interfere with a discretionary judgment are well known and need not be repeated: House v The King (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ; Gronow v Gronow (1979) 144 CLR 513 at 519 per Stephen J; Mallet v Mallet (1984) 156 CLR 605 and Norbis v Norbis (1986) 161 CLR 513.
GROUNDS OF APPEAL
Parenting proceedings
In the Father’s Notice of Appeal in relation to the orders made on 14 April 2008 the following grounds of appeal are stated:
7 (1)the Federal Magistrate (FM) Phipps Orders are unjust and inequitable considering all the evidence particularly, the relative financial circumstances of the two parties, it was the respondent mother who moved to Queensland without informing the Father, and the move benefited the mother at the expense and detriment of the impecunious father. The mother earned well over $110,000 per annum according to material filed in 2006 where as the father earned only a disability pension of about $13,000 per annum.
7(2)FM made a material mistake of fact in concluding that the father had hidden financial resources without further cross examination of parties, and simply based speculative, unsupported and wild allegations by mother who did not appear at the Final hearing.
7(3)that there was ample evidence leading to a contrary conclusion presented to the Court with regard to father's financial position which the FM disregarded, particularly that the Centrelink and the Child support Agency had carried out extensive investigations into father's financial affairs at the behest of the mother. There was circumstantial evidence before the Court that the mother anonymously provided material obtained through subpoenas in this case to Centrelink.
7(4)The financial effect of the minutes of Orders 8 is such that (at the very least) the Costs of contact are not equally shared and that the father has to bear more than 50% of the total costs of contact (then estimated to be $3400 an year), particularly for the July Holidays contact.
7(5)That the orders are not in the “best interests of the child” as the father will be unable visit to [Q] for contact with the child to be maintained and the orders.
7(6)The mother moved from [Q] to [North Queensland] in contravention of Minute 34 of the Orders and Minute 7 has become redundant.
Costs proceedings
In the Notice of Appeal filed in relation to the orders made in the costs proceedings the Father lists 19 grounds which are as follows:
7 (1)His Honour the Federal Magistrate (FM) Phipps Orders are unjust and inequitable considering all the evidence particularly, the relative financial circumstances of the two parties, it was the respondent mother who moved to Queensland without informing the father, and the move benefited the mother at the expense and detriment of the impecunious Father. The mother earned well over $110,000 per annum (Estimated salary package close to $130,000) according to material filed in 2006 where as the father earned only a disability pension of about $13,000 per annum.
7(2)FM made a material mistake of fact in concluding that the father had hidden financial resources without further cross examination of parties, and simply based speculative, unsupported and wild allegations by mother who did not appear at the Final hearing.
7(3)that there was ample evidence leading to a contrary conclusion presented to the Court with regard to father's financial position which the FM disregarded, particularly that the Centrelink and the Child support Agency had carried out extensive investigations into father's financial affairs at the behest of the mother. There was circumstantial evidence before the Court that the mother anonymously provided material obtained through subpoenas in this case to Centrelink.
7(4)the mother knowingly made false allegations regarding the father's financial circumstances and many other matters and avoided being cross examined at the final hearing by not appearing in Court on 14/4/2008.
7(5)the mother did not file any material to support or justify her claim of being sick and was at work on 14/4/2008 the day of the Final hearing. On the 20 February 2008 hearing, the FM had warned the mother that the final hearing would go ahead in any event on 14/4/2008 as the Final hearing had been adjourned for too long (3 years).
7(6)His Honour, the Federal Magistrate Phipps's, decision is not consistent with his findings in paragraphs 7, 11, 18 and 19 of his Reasons for Judgement. These paragraphs refer only to some of the mother's frivolous and vexatious actions in the proceedings which were not pursued or were wholly dismissed.
Medical reports
7(7)His honour FM Phipps did not take into account that the mother caused the father to incur unnecessary costs by demanding independent psychiatrist's reports. The father could not afford to contest the need for additional reports because he was constrained financially and funding limits set by Victorian Legal Aid (VLA).
7(8)Despite having favourable medical reports from the family report writer [Ms J], [Dr P] (Psychiatrist), [Dr D] (Physician) and subpoenaed medical records of the father have been made available, the mother insisted on having another independent Psychiatrist's report.
7(9)Despite father's protests about costs involved, the father consented to [Dr J] preparing such a report on the advice of his lawyer and ICL. Later, two months after having consented to [Dr J] preparing the independent report, the mother claimed [Dr J] was biased citing a previous association of [Dr J] with [Dr D] when they practised their profession from the same premises. It is common practice among professionals to share premises and the mere fact they shared premises in it self does not reflect bias when preparing specialist reports to a Court of Law.
7(10)The mother refused to pay share of [Dr J’s] bill and without even reading [Dr J’s] report and sought a third psychiatrist report from [Dr L]. In other words, mother caused three psychiatrist's report to be prepared unnecessarily in order to delay the proceedings and cause as much financial damage to the father.
Paternity Issue
7(11)In paragraph 17 of his Reasons for Judgement, His Honour states “My recollection is that the issue (paternity) was first raised on behalf of the father during one of the interim hearings.” This is incorrect and his honour based his decision about costs based on a mistaken recollection.
7(12)The father always maintained through out the case that he is the father in his affidavits. In reality, a father is not normally in a position to give an absolute guarantee that he is the biological father of a child. The mother’s solicitors insisted on such a guarantee when the father stated that the father does not deny that he is the father.
7(13)The mother used the comment in page 10 of [Dr L’s] report to raise the paternity issue. The one but the last paragraph of page 10 of [Dr L’s] report reads “Despite the difficulties he remains committed to [T] because he considers him his child, whether the child is his biological child or not…..” A paternity test was not necessary to resolve the issues in dispute. It was the ICL, at the insistence of the mother, pursued the case for a paternity test. As His honour the FM Phipps in paragraph 17 of Reasons of judgment, notes that the mother added further complication to the issue of paternity by disputing paternity in an illogical fashion
Other Issues
7(14)In paragraphs 14 and 20 the FM concludes that he cannot make a finding although there is ample circumstantial evidence to the contrary. There were more than three FM Court hearings between April 2005 and 29 August 2005 during which the father sought the assistance of the FM Courts in locating the Mother and child. FM Orders were made on 12 April 2005, 15th April 2005, 9 May 2005, 30thMay 2005 gives an indication of fathers attempts. The father did not know the name of the mother's former [employee] as claimed by the mother
7(15)The mother was served with summons he court but claimed she did not receive them. The father used every avenue to locate and contact the mother but the mother did not respond until FM Reithmuller at the hearing of 29 August 2005 the telephoned the mother at her workplace.
The father sought the assistance of the Court to get the mother to respond after having contacted her brother [Geoff O’Riley]. [Geoff O’Riley] in his affidavit of 29 November 2005 admits that the father telephoned him on 27 January 2005 seeking to locate the mother.
7(16)The mother did not succeed in most of her applications made to the FM Court including asking a for a passport for the child
7(17)The mother's claim that she could not travel to Melbourne on 7th October 2007 was not tested because the mother did not appear at the Final hearing on 14/04/2008. The circumstantial evidence points out to the contrary view in that the hearing was at least 6-7 weeks after the accident and also she was able to file a mountain of material by herself and has been attending work during this period.
7(18)By and large his Honour made his decision based on mother's submissions which had significant unsubstantiated allegations without due regard to the father's or independent Child lawyers detailed submissions.
7(19)On balance there was overwhelming evidence of the mother’s uncooperative conduct through out the 3 years of the Case which added to increased legal costs, disbursements, delays that the FM could have considered at least awarding a part of the costs against the mother, if not all.
CONCLUSION
The Father filed extensive written summaries’ of argument. He filed a summary of argument on 16 January 2009. He filed an amended summary of argument on 27 February 2009. On 20 March 2009 the Mother filed a written summary of argument in response. Then the Father filed a document which purported to be a response to the written submissions filed on behalf of the Mother and further submissions in relation to the appeals.
I do not propose to deal with all of the matters raised in the written summaries’ of argument. I am also not going to deal seriatim with each of the extensive grounds of appeal. I observe that a number of the grounds of appeal do not articulate an appellable error.
In my view the essence of the Father’s complaint in relation to the parenting orders relates to the order dealing with the cost of implementing the orders as to when the Father spends time with the child. The Father is appealing against orders 5(a), 5(c), 7 and 8. As seen, in the event that the appeal was successful, the Husband seeks that the Mother be responsible for the full cost of the Father's reasonable travel, meals and accommodation costs incurred in respect of the time spent with the child during the June/July school holidays in each year in Q, currently estimated at $2800 for each period covering a stay of eight days in Q. In the event that this does not happen the Father seeks that the period of eight days with the child occur in Melbourne in lieu of Q, with the Mother paying the costs of the child's travel to and return from Melbourne. In the event that the first alternative is not granted then the Father seeks alternative/substitute time in Melbourne during the first half of the Queensland Easter school holidays (March/April) each year with the Mother paying the child's travel costs to and return from Melbourne. In the amended summary of argument the Father said: “My appeal in SA 50 of 2008 in concerned with the Cost of contact with the Child in [Q] (now in [North Queensland]) during Queensland school holidays in July 2009 and in subsequent years”.
I have read the transcript of the hearing before the Federal Magistrate on 14 April 2008. There was no issue that the child would continue to reside with the Mother in Queensland and that the Mother would have sole parental responsibility for the child. However there was an issue as to the periods of time the child would spend with the Father. The Father sought that as from 2009 the child spend time with him for one half of each of the four school holiday periods. The Father proposed that the time during the July mid year school holiday be spent in Queensland and the other three holiday periods be spent in Victoria. The Father sought that the Mother pay all the costs of travel for the Father and also his accommodation costs.
The Independent Children’s Lawyer proposed that as from 2009 the child spend time with the Father during two of the four school holiday periods being the July mid-year school holiday period and the Christmas school holiday period. The Independent Children’s Lawyer proposed that the time during the July mid-year school holiday period be spent in Queensland and the Christmas holiday period be spent in Victoria. The Independent Children’s Lawyer proposed that the Mother pay half of the costs of travel for the Father to Queensland and the costs of the child’s travel to Victoria.
In his reasons the Federal Magistrate concluded that:
40.So far as the amount of time is concerned, the material shows - and [the Mother’s] opposition to unsupervised time in the circumstances of the reports which have appeared - shows an unwillingness by her to promote the relationship between [T] and his father. That is also relevant to her attitude to the child and responsibilities of parenthood, one responsibility being to promote a relationship with the other parent.
41.Perhaps a little perversely, I consider that the more restricted time that the Independent Children's Lawyer proposes is more likely to promote [the Father’s] relationship with his son than the greater time he proposes, because of the mother's attitude which I have described.
42.She has been resistant to the time. She may continue to be resistant to the time. If it is restricted to a week in July and two weeks in summer, she is less likely to be resistant and that will promote [T’s] relationship with his father. Once [T] gets older, he will have maintained and developed that relationship and he can then, as he gets older, improve on that relationship with his father as he goes.
43.The other consideration which has been put forward by [the ICL] is that he has had, since 2005, very little time with his father. To move next year into spending half of his school holidays with his father, he may find unsettling. It is a little difficult to make an assessment of that because, despite efforts to have another family report prepared or an up‑to‑date family report, those efforts have not come to fruition. I do not need to go into the reasons for that.
44.But I conclude that for those reasons first that [T’s] best interests are in having time with his father unsupervised; and secondly, that it should be twice a year, July and Christmas, with the introductory period which is in both the mother's and the Independent Children's Lawyer's proposal.
The Father contended that the effect of the orders is that the Mother pays only 50 per cent of one way travel cost to Queensland and thus if the one way airfare is $500.00 and total return airfare is $1000.00, the Mother pays only $250.00 while the Father has to pay $750.00. The Father contended that in addition, he has to pay for accommodation for the child and himself for eight nights, covering seven days stay in a four star hotel as the child “is suffering from asthma and cannot sleep in cheaper accommodation as the fear of bugs causing allergy. Furthermore, instead of cheaper meals at home, now he has to buy his food from the hotel he stays with additional cost for food”.
This construction of the order contended for by the Father is not accepted by the Mother. In her written submissions it was stated: “It is submitted that the construction placed on the wording of the learned magistrate's order in paragraph 3 of the appellant's amended written summary of submissions is over-literal, strained and unreasonably narrow. The respondent has always understood the order to mean half of the reasonable return travel costs should be paid to the appellant”. In other words, to use the Father’s example, the Mother accepts that if the one way airfare is $500.00 and total return airfare is $1000.00 then the Mother has to pay $500.00 and the Father has to pay $500.00.
The Father contended that the Mothers estimated gross income is around $130,000.00 a year, while that of the Father is only about $13,000.00 a year. It was submitted that therefore, considering the relative earnings of the two parents, it is extremely unfair and unjust to expect the Father to pay $2750.00 on a trip of seven days to Queensland when he earns only $13,000.00 for a whole year from a Centrelink disability pension. The Father submitted that there is a huge disparity between the Mother and the Father's financial positions, both on a net equity and cash flow bases.
The Father submitted that the Federal Magistrate made a material mistake of fact in concluding that the Father had hidden financial resources without further cross-examination of the parties’, and simply based speculative, unsupported and wild allegations by the Mother who did not appear at the final hearing.
I have set out above what the Federal Magistrate said in his reasons in relation to the costs of the periods of time the child is to spend with the Father.
In a Financial Statement sworn by the Father on 6 February 2008 he disclosed a total average weekly income of $265.45 being his disability pension. He disclosed no other income. In the Financial Statement he disclosed total weekly personal expenditure of $1054.67. The expenditure comprised:
·Mortgage 507.76
·Rates 17.54
·Life insurance 46.82
·Other insurance 43.98
·Credit card payments 101.95
·Child support 6.16
In the Financial Statement the Father disclosed property and superannuation interests of a total of $478,188.25 and secured and unsecured liabilities of $415,144.79. I observe that the Father contended that the total of liabilities was $452,896.61. I also observe that he disclosed credit card debts of $13,162.44 (Bank A); $11,576.45 (Bank B) and $16,255.94 (Bank C). However I am not sure if the amounts of $11,576.45 and $16,255.94 are included in the total of $415,144.79 or $452,896.61. I also observe that the mortgage debt in respect of which the periodic payments are $507.76 per week was disclosed as $284,425.00.
In his affidavit of 6 February 2008 the Father deposed that given that his income is only $280.00 per week and the mortgage repayments are $508.00 per week, he pays the shortfall of $228.00 “by using a ‘round robin’ credit arrangement”. In other words he increases his debt, whether on his credit cards or some other facility, and relies on “the increasing equity on [his] home” to borrow funds. I assume that the Father is contending that he borrows funds to pay the shortfall of $789.22 per week ($1054.67 less $265.45). In fact the shortfall is probably much greater than $789.22 per week because the expenses of $1054.67 do not include food, clothing and other living expenses.
It is clear that the Federal Magistrate was very aware of the evidence as to the financial circumstances of each of the Father and the Mother and that this evidence suggested a significant disparity between the parties’ respective financial circumstances. The Federal Magistrate correctly set out what the evidence was in relation to the financial circumstances of the parties’ and then carefully considered that evidence.
In his reasons the Federal Magistrate said at [48]: “It seems [the Father] must have some assistance from somewhere. He sets out his credit card debts, which are quite large, but they do not seem to explain the fact that he has been managing to survive”. I agree. In my view on the evidence available the Federal Magistrate was entitled to come to this conclusion. However the Federal Magistrate continued and said “[b]ut it is a question of making an assessment of what is a fair sharing of the burden of the cost of travel”.
Ultimately, in circumstances where the Father is paying child support of about $6.00 per week, in my opinion the Federal Magistrate was entitled to make an order that requires the Father to pay one half of the airfare for his travel once a year between Victoria and Queensland and the food and accommodation costs for about one week. For example according to the Father he is paying life insurance premiums of $46.82 per week or $2,434.64 per annum.
In all the circumstances I am not persuaded that the Federal Magistrate made any error of principle or discretion and that the findings he made were open to him on the evidence. Thus I am going to dismiss the appeal against the parenting orders.
In relation to the appeal against the costs order I observe that in his Financial Statement sworn on 6 February 2008 the Father disclosed as a debt an amount of $12,000.00 being “[e]stimated deferred liability (legal costs) at date or trial”.
The contentions of the Father are summarised in his written response to the summary of argument filed by the Mother. The Father submitted that
The respondent mother's response is a generalised statement without dealing with specifics issues and statements in the pages 4 to 9 of appellant father's Summary of argument.
There is sufficient evidence of mother's frivolous and vexatious actions and applications to the FMC which were used to delay the proceedings and as well cause to increase the father's costs of proceedings. The Mother was aware that there was a Victoria Legal Aid funding limit of $12000 which would cause the father abandon the proceedings if it delays sufficiently long period of time.
The mother succeeded in achieving her aim of delaying the proceedings and increasing the costs by systematically attacking and discrediting first, the father, then [Dr J] (Psychiatrist) and [Ms J] (Family Report writer) and finally challenging the jurisdiction of the FMC by making the appeal SA 102 of 2007 which she later abandoned on 13 March 2008.
The mother […] had a special duty to assist the FMC in settling the dispute in a speedy cost efficient manner instead of dragging the proceedings for nearly 4 years. She deliberately failed in her duty.
His Honour Federal Magistrate Phipps and the Independent Children's Lawyer both found that the mother was uncooperative an unnecessarily delayed the proceeding by confusing the paternity issue and refusing to carry out Orders for DNA testing, presenting the mother and child for Family report writing interviews and other instances.
Accordingly, there is case for awarding at least part of the costs of the appellant, if not all.
The Federal Magistrate in his reasons adequately described the relevant principles and although he did not deal with each of the statutory considerations in s 117(2A) of the Act he identified the relevant matters being the financial circumstances of the parties (pa (a)) and the conduct of the parties to the proceedings in relation to the proceedings (pa (c)). He also dealt with the outcome of a number of applications and thus considered if any party had been wholly unsuccessful in the proceedings (pa (e)).
Consideration of the reasons of the Federal Magistrate reveal that he was aware of the evidence as to the financial circumstances of each of the parties and the history of the litigation.
I am not going to repeat what the Federal Magistrate said. However he dealt with, at some length, the contentions of the Father and the Independent Children’s Lawyer in relation to the conduct of the Mother in relation to the proceedings including her various applications. The Federal Magistrate made findings in relation to the relevant matters of history and ultimately came to the conclusion that he did not consider that the conduct of the Mother, combined with other matters, justified an order being made.
I am of the view that in all the circumstances the Federal Magistrate did not make any error of principle or discretion and that the findings he made were open to him on the evidence. I am going to dismiss the appeal against the costs orders.
COSTS
The Mother seeks an order that the Father pay her costs of the appeal. The Mother made some very brief submissions in her written outline of argument. The Father made some very brief submissions in reply. The Mother did not provide any evidence of an amount of costs or what costs she has incurred.
The litigation has to come to an end. The proceedings between the Father and the Mother have necessitated the expenditure of enormous public resources. This was in circumstances where the evidence reveals that the parties have limited private resources. Although the Mother is a professional, the fact is that both parties were unrepresented.
I accept that the Mother has established a justifying circumstance, namely that the Father has been wholly unsuccessful in the proceedings. However I of the view that in the circumstances of this case the general rule expressed in s 117(1) of the Act should still apply.
I certify that the preceding ninety two (92) paragraphs are a true copy of the reasons for judgment of the Appellate Division of the Family Court of the Honourable Justice O’Ryan.
Associate:
Date: 13 November 2009
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