Paulson & Castro
[2024] FedCFamC2F 361
•27 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paulson & Castro [2024] FedCFamC2F 361
File number(s): BRC 4120 of 2014 Judgment of: JUDGE DICKSON Date of judgment: 27 March 2024 Catchwords: FAMILY LAW – CONTRAVENTION – Costs – Parenting – Where it was alleged the father contravened by overholding the child following periods of time spending – Where the father admitted the breaches at the commencement of Trial but maintained he had a reasonable excuse – Where after giving evidence at Trial, the father plead guilty to each count without reasonable excuse – Father to enter into a Bond – Orders for costs. Legislation: Family Law Act 1975 (Cth) ss 70NAE, 70NEB, 70NEC, 102NA, 117.
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) sch 1.
Cases cited: Keehan & Keehan [2019] FamCAFC 250
In the Marriage of Kohan (1992) 16 Fam LR 254
McClintock & Levier [2009] FamCAFC 62
Millson & Halbert [2021] FedCFamC1F 94
Rice v Asplund (1979) FLC 90-725.
Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 21 February 2024 and 19 March 2024 Place: Adelaide Counsel for the Applicant: Ms Frazelle Solicitor for the Applicant: Keyworth Harris & Lowe Family Lawyers Counsel for the Respondent: Mr Hanlon Solicitor for the Respondent: A P Hodgson & Associates ORDERS
BRC 4120 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PAULSON
Applicant
AND: MR CASTRO
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
27 MARCH 2024
UPON NOTING:
A.That the respondent father admits that he has contravened without reasonable excuse the following parenting orders made 14 October 2016:
(a)3 October 2021, order 16(a);
(b)5 January 2022, order 16(c);
(c)1 May 2022. order 14;
(d)20 September 2022, orders 16(a) and 16(b);
(e)30 October 2022, order 14;
(f)13 November 2022, order 14;
(g)17 November 2022, order 15; and
(h)27 November 2022, order 14.
B.That the contraventions were less serious contraventions within the meaning of subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth).
THE COURT ORDERS THAT:
1.Pursuant to section 70NEB of the Family Law Act 1975 (Cth) (‘the Act’) the father is required to enter into a Bond pursuant to section 70NEC of the Act for a period of 12 months from the day upon which the father enters into the Bond upon condition that the father complies with all parenting orders made and to be made under the Act.
2.The father do attend at the Brisbane Registry of the Federal Circuit and Family Court of Australia in person on 28 March 2024 at 2:30pm (Queensland Time) to receive an explanation in relation to the Bond referred to in Order 1 as required by section 70NEC(5) and to sign the Bond in the presence of Judicial Registrar of the Court.
3.Pursuant to section 70NEB(1)(f) of the Act, the father do pay the mother’s costs of and incidental to the mother’s Application for Contravention (Amended) in the sum of EIGHT THOUSAND DOLLARS ($8,000.00) (GST inclusive) within sixty (60) days of this order.
4.There be liberty to re-list this matter before Judge Dickson upon written application to her Associate at …@... in the event that the father does not comply with the requirement to enter the bond referred to in paragraph 1 herein.
5.The Application for Contravention (Amended) filed on 9 November 2023 do otherwise stand dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The Applicant Mother, Ms Paulson (‘the mother’) and the Respondent Father, Mr Castro (‘the father’) are the parents of one child, namely X born in 2014 (‘X’).
On 14 October 2016 following Trial, the Court made final parenting orders in relation to X.
On 28 April 2023, the mother filed an Application for Contravention (‘the initial Application’). The Application was subsequently amended and refiled on 9 November 2023 (‘the Amended Application’).
The Amended Application for Contravention came on for Trial before the Court on 21 February 2024.
These are the Courts Reasons arising from the Contravention Trial.
BACKGROUND
The mother was born in 1979 and is aged 44 years.
The father was born in 1975 and is aged 48 years.
Following a short relationship, the parties separated.
Regrettably, the parties have been engaged in ongoing litigation since shortly after the child’s birth when the mother was required to file and application seeking a recovery order for the child to be returned to her care. At the time the application was filed, the child was only a few months of age and still being breastfed.
The parties competing applications for parenting orders proceeded to Trial before the Court in October 2016. On 14 October 2016, final parenting orders were made.
In 2020, the father filed an application seeking to re-visit the final parenting orders. The mother opposed the re-opening of litigation arguing that there had been no change of circumstances substantial enough to warrant a variation of the existing orders.[1]
[1] Rice v Asplund (1979) FLC 90-725.
On 26 May 2021, the Court delivered further Judgment. The father’s Application filed 13 August 2020 was dismissed.
On 28 April 2023, the mother filed an Application for Contravention alleging that the father had overheld the child following periods of time spending pursuant to the final order. The said application was subsequently amended and re-filed on 9 November 2023.
On 21 February 2024, the Court heard the Trial in relation to the mother’s Amended Contravention Application. The mother sought only to press Counts 5, 7, 11, 14, 15, 17, 18 and 19.
At the commencement of the Trial, counsel on behalf of the father informed the Court that his client admitted breaching the counts set out in the mother’s Amended Contravention Application but maintained that he had a reasonable excuse for doing so pursuant to section 70NAE(5) of the Family Law Act 1975 (Cth) (‘the Act’).
The mother was not required for cross-examination and her documents relied upon were admitted into evidence without challenge.
The father was vigorously cross-examined by the mother’s counsel. His evidence was unsatisfactory in several respects. Following the conclusion of the evidence and after hearing submissions from counsel, the Court indicated a preliminary view that the father had not in any way established to the satisfaction of the Court that he had a reasonable excuse for contravening the parenting orders as alleged by the mother.
The father’s counsel obtained instructions. The father’s counsel then informed the Court that the father now changed his plea. The father now admitted that he had breached the said order as alleged by the mother and that he had no reasonable excuse for doing so.
Regrettably, the parties were not able to resolve the matter and the matter has proceeded to Judgment on a limited basis namely:
(1)The question of penalty arising from the father’s pleas; and
(2)Costs.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
(1)Application for Contravention (Amended) filed 9 November 2023;
(2)Mother’s affidavit filed 28 April 2023;
(3)Mother’s Outline of Case Document (Final Hearing) dated 16 February 2024;
(4)Applicant’s Annexures relied upon provided in bundle on 21 February 2024;
(5)Document entitled ‘Index to Bundle’ of further documents sought to be relied upon in accordance with the orders made on 25 January 2024;
(6)Applicant’s Costs Notice pursuant to Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);
(7)Mother’s Affidavit filed 6 March 2024 as to costs;
(8)Mother’s Affidavit filed 14 March 2024 as to mother’s financial circumstances; and
(9)Amended Submission on Costs filed 18 March 2024.
The father relied upon the following documents:
(1)Outline of Case Document (Final Hearing) dated 20 February 2024;
(2)Affidavit filed upon leave being granted by the Court on 21 February 2024; and
(3)Submissions on Costs (undated).
PENALTY ARISING FROM THE FATHER’S ADMISSIONS
On behalf of the mother, Ms Frazelle of Counsel sought that the father enter into a Bond to comply with orders of the Court for a period of 18 months. The mother did not seek any surety.
In addition, the mother sought costs arising from the Trial in the sum of $13,265.00 on an indemnity basis or in the alternative, costs fixed in the sum of $12,731.27 in accordance with Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.
On behalf of the father, Mr Hanlon of Counsel submitted that whilst ultimately it was a matter for the Court, it would be appropriate to have the father enter into a Bond for a period of between six to 12 months. Mr Hanlon ultimately conceded that 12 months would be the more appropriate term. The father resisted any order for costs.
CONCLUSION AS TO PENALTY
As identified herein, by the conclusion of the Trial the area of dispute between the parties was very narrow.
The mother submits that the penalties to be imposed by the Court must be seen considering the father’s conduct leading up to the mother filing the initial Application.
The mother argues that the Court should bring to account the historical nature of the alleged breaches by the father. The mother submits in effect, that the ‘ink was not yet dry’ on the final orders before the father commenced allegedly breaching the Court orders. The mother contends that she was put to the expense of having to file her initial Application and that it was not until the ‘writing was on the wall’ that the father finally instructed his counsel that he admitted his conduct constituted a breach of the existing parenting orders without reasonable excuse.
The father’s defence in his Affidavit and in his oral evidence constituted repeated statements that he had overheld X because he (the father) had unilaterally determined to ‘support’ his son’s wishes to spend more time with him.
The father withheld X despite clear and unequivocal statements by the mother in writing to him that she did not consent to an extension of time. The mother stated that she expected the father to comply with the orders by returning X to her at the handover location. The father conceded under cross-examination that he knew he was breaching the final orders when X was overheld.
On each occasion where the father now acknowledges a clear breach of the Court order, I find that he deliberately took matters into his own hands and withheld the child in the face of the mother’s stated opposition. The father withheld X even when correspondence was sent to the father by the mother’s solicitor warning him that failure to comply may result in the mother seeking a recovery order.
I find that the father’s conduct was disrespectful to the mother and high handed. Having been unsuccessful in re-opening the litigation in May 2021, the father simply took matters into his own hands and overheld X contrary to Court order. It is not open to parents to simply ignore Court orders and take matters into their own hands. If this was the benchmark, then the entire family law system would break down.
It should have been obvious to the father that the over-holding of X would cause the mother distress, particularly given their shared history. When challenged about this in the witness box, the father was dismissive and condescending of the mother. He refused to acknowledge that the mother would have been genuinely upset by his actions and suggested that the mother was feigning distress to mislead others. I have little difficulty in rejecting the father’s evidence on this topic.
The Court is advised that the father has now filed an Initiating Application seeking to vary the final orders which will next come before the Court on 31 May 2024. This is a step the father should have taken in the first place. It may ultimately be the Court’s decision to vary the final orders if the parties cannot agree to do so as X’s parents. Time will tell. However, it was not open to the father to simply impose his will on the mother in the face of her unequivocal opposition to his overholding of X in defiance of Court orders.
The mother’s counsel conceded that this is the first occasion upon which the father has been dealt with by the Court for contravening Court orders. Counsel are in agreement that the Court should approach the question of penalty pursuant to Subdivision E of the Act as a “less serious contravention.” I propose to adopt the course promoted by the parties.
The mother’s counsel urges the Court to direct that the father enter into a bond for a period of 18 months and to comply with all orders of the Court. The mother does not seek financial surety.[2]
[2] Family Law Act 1975 (Cth) s 70NEC.
The father’s counsel concedes that a bond is appropriate but submits that the term of any bond should be for no more than 12 months.
I am satisfied in this case that it is sufficient penalty for the father to enter into a bond for a period of 12 months and to comply with orders of the Court.
I acknowledge that there is a cumulative nature to the father’s conduct and that his plea came late and after he had been cross-examined. It should have been obvious to those advising the father, that his instructions as set out in his Affidavit relied upon, fell far short of the standard required in section 70NAE(5) of the Act to constitute a reasonable excuse.
Contravention applications are to ensure ongoing compliance with Court orders.[3] They are not to be misused as some form of punishment. I am satisfied that a bond for 12 months, together with an order for costs, will be a sufficient deterrent to the father particularly given that he is seeking to now prosecute a fresh application for more time with X.
[3] Millson & Halbert [2021] FedCFamC1F 94; Keehan & Keehan [2019] FamCAFC 250; McClintock & Levier [2009] FamCAFC 62.
Costs
The wife seeks costs in her favour either:
(1)The sum of $13,265 on an indemnity basis; or
(2)The sum of $12,731.27 in accordance with Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.
The initial Application was prepared by the mother’s former solicitors, C Law Firm and comprised 33 alleged counts of the final order. Some of the counts dated back to 2016. The initial Application was supported by an Affidavit comprising 164 paragraphs and 40 annexures and was approximately 216 pages in length. Some of the annexures form part of the actual Court record.
On 1 June 2023, the Court made an order pursuant to section 102NA of the Act.
On 1 August 2023, a Notice of Address for Service was filed by the father’s solicitor, A.P Hodgson and Associates. On 8 November 2023, the mother filed a Notice of Address for Service in her own right. On the 21 December 2023, the mother’s current solicitors Keyworth Harris and Lowe Family Lawyers are first recorded on the Court file.
On 9 November 2023, the mother filed an Application for Contravention (Amended) which pleaded 22 counts. Of that Application, only eight counts were pressed by the mother at Trial.
The mother’s claim for costs covers the period from 1 June 2023 to 7 November 2023 when she was legally represented and not in receipt of a grant of legal aid.[4]
[4] See the Affidavit of Ms Paulson filed 6 March 2024 at paragraph 17.
Section 70NEB(1)(f) of the Act provides that if Subdivision E applies, the Court may make an order that the person who committed the current contravention pay some or all of the costs of the other party to the proceedings where other orders pursuant to section 70NEB have been made. Costs will include legal expenses comprising costs and disbursements incurred in conducting the legal case.
Counsel conceded at Trial that if considering an order for costs, the Court may impose costs pursuant to Section 70NEB(1)(f) of the Act and I propose to adopt this course.
At Trial, both parties were in receipt of legal aid provided under the Commonwealth Family Violence and Cross-Examination of Parties Scheme.
Prior to the declaration being made by the Court on 1 June 2023, the mother was paying her legal costs privately.
The mother’s initial Application was necessitated by a failure of the father to comply with orders of the Court. The mother has been wholly successful in her application.[5] The father’s concession that he had no reasonable excuse to the eight counts pressed by the mother only came after the Court determined that he had not met the threshold required for such a finding to be made in his favour.
[5] Family Law Act 1975 (Cth) s 117(2A).
The father submits that he should not be responsible for the costs incurred by the mother arising from the excessively lengthy Initial Application and supporting Affidavit especially considering the Amended Application later filed and noting that ultimately only eight counts were pressed at Trial. The father submits that:
…anything that happened before the Final Hearing day is a bridge too far to include in costs considerations as it was only after the filing of the Outline of Case of the Applicant Mother on the 16th February 2024, that common sense seemed to arrive in the matter, as anything before that time was some more akin to a Leo Tolstoy Russian novel…[6]
[6] See the Written Submissions of the Mr Castro filed 18 March 2024 at paragraph 39.
The father has elected not to put any information before the Court as to his financial circumstances. The mother is employed as a professional and earns approximately $2,405 net per fortnight. She deposes to having approximately $1,161 per week in expenses. The father has been assessed to pay the mother $254.42 per month in Child Support and as of 12 March 2024 is $1,262.46 in arrears.[7]
[7] See the Affidavit of Ms Paulson filed 14 March 2024 at paragraphs 4 and 5.
In this case, I do not consider that an order for indemnity costs would just. As the Full Court have observed “the Court should not depart lightly from the ordinary rules relating to costs between party and party, and the circumstances justify the departure should be of an exceptional kind.”[8] In this case, there is no compliance with the Rules for the provision of a costs agreement or retainer. I do not consider the circumstances of the matter to be so exceptional as to warrant such an order being made.
[8] In the Marriage of Kohan (1992) 16 Fam LR 254, 258.
There is merit in the submissions made by the father’s counsel as to the excessively long initial Application and Affidavit filed by the mother and the amendments which followed. However, the father was not required to answer the Affidavit nor file a Response. The father was always in receipt of legal aid funding after the section 102NA order was made on 1 June 2023. The mother did not have that luxury because she was required to bring the father’s failure to comply with orders to the attention of the Court in order to seek relief.
In balancing all of these matters, I believe an order for costs should be made for the father to pay the mother’s costs in relation to the contravention proceedings fixed in the sum of $8,000.00 inclusive of GST after taking into account the matters raised herein and to spare the parties any further expense in undertaking an assessment of costs. I will allow the father 60 days for payment of this sum to the wife in the absence of a submission having been made on his behalf as to time for payment if an order for costs was so made.
I will fix costs in the sum of $8,000 payable within 60 days of the date hereof.
For all of the above Reasons, the Court makes the orders as set out at the commencement of this Judgment.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 27 March 2024
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