Randle and Vaughton (No.4)

[2012] FMCAfam 1065

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RANDLE & VAUGHTON (No.4) [2012] FMCAfam 1065

FAMILY LAW – Contravention – father found to have contravened order – penalty to be imposed – application for costs.

Family Law Act 1975, ss.112AD(2)(c) & 117(2A)(g)
Crimes Act 1914, s.4AA

Applicant: MS RANDLE

Respondent: MR VAUGHTON

File Number: ADC 3046 of 2010

Judgment of: Lindsay FM

Hearing date: 21 September 2012

Date of Last Submission: 21 September 2012

Delivered at: Perth in Chambers

Delivered on: 4 October 2012

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Mr B McQuade

Solicitors for the Respondent: Adey Lawyers

ORDERS

1. That in respect of the contravention referred to in paragraph 7 of the Contravention Application filed on the 11 July 2011, the father be fined ten penalty units (or $1,100.00).

2. That there be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Randle & Vaughton (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 3046 of 2010

MS RANDLE

Applicant

And

MR VAUGHTON

Respondent

REASONS FOR JUDGMENT

1. On 20 September 2011 I found that the father had contravened my orders of 28 March 2011 in respect of his obligation to contribute one half of the cost of the airfares associated with the travel of the child [X] from Tasmania to Adelaide on a fortnightly basis.

2. The contravention application was filed on 11 July 2011.  It was dealt with as one contravention with three aspects.  That is to say, the order was contravened on three separate dates in June and July 2011 but they were treated as a single breach.  As I remarked at [10] of my Reasons for Judgment at the time of finding the contravention proven, the contraventions were pleaded as one compendious charge.

3. I do not propose to set out the detailed factual history of the matter.  A parenting order trial was part heard when I was obliged to recues myself from further hearing.  My recusal was necessary in my view because of findings I had made in respect of contravention applications the father had brought against the mother and which he continued to prosecute notwithstanding the delays that such a course inevitably occasioned in respect of the parenting dispute.

4. Paragraph 7 of the orders required him to forthwith reimburse the mother for half of the cost of the child’s travel to Adelaide upon presentation of an account to him, with the mother being obliged to book the airfares to facilitate the time-spent referred to in other paragraphs of those orders.

5. I was satisfied that the father had not forthwith made the payment in respect of the time-spent that was to occur on the weekend of 11 June 2011, 25 June 2011 and 25 July 2011 and that he had contravened the order without a reasonable excuse.

6. The order is related to a parenting order but is not itself a parenting order and the matter fell to be determined pursuant to the provision of Part XIIIA of the Family Law Act 1975.

7. The order arose in circumstances where the mother had unilaterally relocated to Tasmania with the child in company with another man with whom she has lived in Tasmania.  I permitted her to remain in Tasmania pending the outcome of the parenting order proceedings (in which the father sought her return to Adelaide) but only upon the basis of obliging her to give fortnightly time-spent with the child.  The father’s obligation to pay one half of the airfares is an integral and necessary part of the machinery necessary to make these arrangements work.  The mother has been uncooperative in implementing the order and has been convicted of several contraventions and there are other occasions in which the time-spent has not been given.

8. But the mother’s conduct affords no mitigation in respect of the father’s non-compliance.  His failure to punctually meet payment of the accounts presented was foolhardy and imprudent, and added significantly to the stresses arising out of the present circumstances of the child.

9. The amounts owing have subsequently been paid.  Whilst the mother has alleged a subsequent contravention it has not been established to my satisfaction that the father has continued to disregard his obligations. 

10. Pursuant to s.112AD a number of sanctions for failing to comply with orders of the Court are available to me. Pursuant to s.112AD(2)(c) the father can be fined not more than sixty penalty units. A penalty unit is defined in s.4AA of the Crimes Act 1914 as one hundred and ten dollars.

11. In the circumstances I propose to impose a fine of ten penalty units.

12. The mother makes an application for costs. Pursuant to the scale of costs set forth in Schedule 1 to the Rules of Court the mother’s entitlement would be a lump sum for filing the application of $1,942 and a half day hearing fee of $971 x 50 per cent advocacy loading which equals $1,942 being a total of $3,884.

13. Because the mother has been successful and because the contravention arises out of the father’s failure to co-operate with the implementation of an order I think that the mother would ordinarily have been entitled to an order for her costs notwithstanding her superior financial position and the superior financial position of her household relative to that of the father’s household.

14. I recently imposed penalty on the mother in respect of three contraventions of parenting orders, being her obligations to facilitate the time-spent with the child [X].  In those proceedings the father sought an order for costs.  I considered he was entitled to costs for the reasons I gave but I discounted the amount which would otherwise have been ordered pursuant to the Schedule to the Rules by a factor of approximately two-thirds, i.e. he only was awarded one third of his costs on scale.

15. I consider that circumstance to be a relevant circumstance in terms of s.117(2A)(g) of the Act.  The circumstance that he has received only a limited and partial indemnity in respect of his application for costs is a matter that I take into account in evaluating the mother’s application for costs.  Put another way, if I had dealt with the father’s contravention and consequent cost application by the mother first, and made an order in the mother’s favour, I would have taken that into account in evaluating the father’s application for costs and the extent of the reduction in his entitlement.

16. The reduction in his entitlement was substantial, especially having regard to the high degree of seriousness associated with the breaches of the order by the mother.

17. In the circumstances, there will be no order as to costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date:  4 October 2012