Rilak and Tsocas (No 2)
[2016] FamCA 590
•22 July 2016
FAMILY COURT OF AUSTRALIA
| RILAK & TSOCAS (NO 2) | [2016] FamCA 590 |
FAMILY LAW – CONTRAVENTION – Where the mother alleged there have been six contraventions – Where the mother alleged the father had not facilitated the supervised visits –Where the father denied five contraventions and admitted one with reasonable excuse – Where the mother is unable to establish a prima facie case in relation to four contraventions – Where the father had reasonable excuse for two contraventions – Contravention Application dismissed.
FAMILY LAW – LEGAL COSTS – Where the father seeks a costs order against the mother for a contravention application – Consideration of factors set out in s 117(2A) of the Family Law Act 1975 (Cth) – Where the wife given time to file and serve submissions as to costs.
Family Law Act 1975 (Cth) s 117(2A)
| APPLICANT: | Ms Rilak |
| RESPONDENT: | Mr Tsocas |
| FILE NUMBER: | SYC | 2062 | of | 2010 |
| DATE DELIVERED: | 22 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 19 July 2016 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Gutierrez |
| SOLICITOR FOR THE RESPONDENT: | Peter Baker Solicitor |
Orders
IT IS ORDERED
That the Contravention Application filed by the mother on 17 March 2016 be dismissed.
That within 14 days the mother file and serve any written submissions in relation to the father’s application for costs.
That the father’s assessment of costs on a party and party basis be served upon the mother forthwith.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2062 of 2010
| Ms Rilak |
Applicant
And
| Mr Tsocas |
Respondent
REASONS FOR JUDGMENT
Orders were made in parenting proceedings between Ms Rilak (“the mother”) and Mr Tsocas (“the father”) on 13 November 2015. The effect of those orders was to change the residence of their child, B born … 2010 (“the child”) so that she thereafter lived with the father and spent supervised time with the mother.
The mother appealed against those orders and on 20 November 2015, the orders were stayed and further orders were made, pending the disposition of the appeal. Those orders were varied on 4 December 2015.
THE ORDERS
The various orders are set out below. For convenience, those portions of the orders relied on in the application have been emphasised.
13 NOVEMBER 2015
IT IS ORDERED THAT
PARENTING
1. All previous orders with respect to B… born … 2010 are hereby discharged.
2. Without requiring the permission and/or consent and/or signature of the mother, [Mr Tsocas] (“the father”) is authorised to apply to amend the registration of the child’s name with the Registrar of Births, Deaths and Marriages such that “[B Ranis]” be registered as “B”.
3. Pursuant s 28(5) of the Births Deaths and Marriages Act 1995 (NSW) the NSW Registrar of Births Deaths and Marriages shall register the child’s name as “[B Rilak – Tsocas]”.
4. The father shall forthwith serve a sealed copy of this Order upon the Registrar of Births, Deaths and Marriages.
5. The father shall have sole parental responsibility for long-term decisions about the child.
6. [B] shall live with the father.
7. Pursuant to s 68Q of the Family Law Act 1975 (Cth) (“the Act”), the Court declares that:
(a) These Orders are inconsistent with the Interim Apprehended Domestic Violence Order made by the Local Court of New South Wales at [I Town] on 18 April 2015; and
(b) The whole of the Interim Apprehended Domestic Violence Order made by the Local Court of New South Wales at [I Town] on 18 April 2015 is invalid.
8. Unless the parents otherwise agree in writing, subject to Order (9) herein, the child shall spend time with [Ms Rilak] (“the mother”) at such times and on such dates as may be arranged with and supervised by Interrelate, [Suburb J].
9. Unless the parties otherwise agree in writing, the mother’s time with the child pursuant to Order (8) herein shall:
(a)commence not before 14 days after the child commences living with the father;
(b)occur on a Saturday or Sunday, not more than once per week;
(c)occur at the equally shared expense of the parents; and
(d)be suspended in the event the father elects to take the child outside the Commonwealth of Australia pursuant to Order (21).
10. For the purpose of Order (8) above, each party shall:
(a)contact Interrelate within seven days of the date of these Orders and arrange an appointment for an intake assessment;
(b)attend the assessment;
(c)comply with all reasonable rules of Interrelate; and
(d)comply with all reasonable requests or directions of the staff of Interrelate.
11.In the event that the child’s time with the mother does not occur because of the child’s illness or because of some circumstance other than the unavailability of the mother, then the father is to:
(a)provide a medical certificate where applicable; and
(b)arrange makeup time for the child with the mother as close to the scheduled period as is practicable.
12.[B] shall communicate with the mother by electronic means each Tuesday and Thursday for a period of half an hour between 5.00 pm to 6.00 pm, with the father to initiate the call. The communication may occur by telephone or by Skype as the parties may agree and in default, by telephone. The father is at liberty to conclude the telephone call or Skype call in the event that he is of the opinion it is not in the child’s best interests for the call to continue.
13.The father shall be at liberty to arrange for the child to be vaccinated at [X Hospital] in accordance with the recommendations of [Dr Y].
14.The father shall advise the mother in a timely manner about any long term parenting decisions, invite the mother’s views about all decisions, consider such views as the mother may express, and advise the mother of the decisions he ultimately makes.
15.Unless the parents otherwise agree in writing, the mother be restrained from approaching:
(a)the child, except in accordance with these Orders;
(b)the residence of the child or the premises in which she is staying from time to time, except in accordance with these orders; or
(c)any pre-school or school that the child might attend from time to time, or any place where the child participates in extra curricular activities.
16.Each parent is restrained from denigrating the other parent or any member of the other parent’s family and/or discussing these Court proceedings in the presence or hearing of the child, and each parent is restrained from causing, allowing or permitting any other person to do so in the presence and/or hearing of the child.
17.The mother is restrained from removing and/or causing or allowing the child to be removed from the Commonwealth of Australia.
18.The Court requests that the Australian Federal Police place the name of the child (Female) on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child on the Watch List until 25 January 2028, save that the Court noted that the father is at liberty to remove the child from the Commonwealth of Australia in accordance with Order (21) hereof.
19.The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders.
20.The father is at liberty to apply for a passport and or renewal of a passport for the child without first obtaining the consent of the mother.
21.Pursuant to section 65Y(2)(b) of the Act, the father is at liberty to travel overseas with the child.
22.In the event that the father intends to travel overseas with the child, he shall provide written notification to the mother of this intention to travel 28 days prior to the proposed date of departure and provide details of the itinerary for each overseas trip.
23.If the child would have otherwise spent time with the mother during the period when the child is overseas with the father, upon the child’s return to Australia the father will nominate a day or days on which the missed time with the mother will be made up. The father will appoint a day or days for such make-up time not later than three months after the child’s return to Australia, unless the parents otherwise agree.
24.At the times when the father elects to travel with the child outside the Commonwealth of Australia pursuant to Order (21) herein, the child’s name is to be removed from the Airport Watchlist for the period of that travel and placed back on the Airport Watchlist upon his return with the child.
25.The parents shall forthwith make appointments to attend upon [Ms RR], psychologist, telephone number …, or any other family therapist agreed to by the parties.
26.The father shall provide to the therapist a copy of the Orders of the Court, the Reasons for Judgment, together with a copy of the report of [Dr C] dated 28 May 2014.
27.The parents shall attend such appointments as the therapist makes and follow all recommendations made by the therapist, including but not limited to referrals to other treating professionals for either or both of the parents and for the child.
28.The parents shall share equally the fees of any professionals engaged to assist them and the child pursuant to these Orders.
29.The father shall keep the mother informed as to any school enrolment he makes for the child and shall do nothing to prevent the mother from obtaining information about the child’s progress directly from the child’s school.
30.The father shall advise the mother immediately if the child suffers illness or injury requiring hospital admission.
31.Not less than once each week the father shall send to the mother an email about the child’s health, general welfare and activities.
32.The parents shall maintain courtesy and civility in all communications with each other and shall not make comments of an insulting or derogatory nature about each other in the child’s presence or hearing.
33.Each parent shall pay to Legal Aid NSW, one half of the costs of independent representation for the child in accordance with the relevant legal aid scale, such payments to be made within six months of receipt of a memorandum of fees from the Independent Children’s Lawyer, or otherwise by agreement with Legal Aid NSW.
34.Pursuant to s 62B and s 65DA(2) of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
20 NOVEMBER 2015
IT IS ORDERED THAT:
1.By consent the operation of Order 13 made on 13 November 2015 is stayed pending the disposition of the appeal initiated by the mother by her Notice of Appeal filed 17 November 2015.
2.By consent orders 2, 4 and 30 made on 13 November 2015 are varied to provide as follows:
(2)Without requiring the permission and/or consent and/or signature of the mother, [Mr Tsocas] (“the father”) is to apply within 14 days from the date of these Orders to amend the registration of the child’s name with the Registrar of Births, Deaths and Marriages such that “B XXX” be registered as “B Rilak – Tsocas” (“B”)
(4)Within 14 days from the date of these Orders, the father shall serve a sealed copy of these orders upon the Registrar of Births, Deaths and Marriages.
(30)The father shall advise the mother immediately if the child suffers illness or injury requiring hospital admission, including details of any medical practitioner, specialist or hospital attended upon.
3.By consent the father shall notify the mother in writing no later than 14 days after forming an intention to move from his residential address and provide the mother the address of the child's new residence, including details of the school and any medical practitioner.
4.Orders 8, 9 and 10 made on 13 November 2015 are stayed pending the finalisation of the mother’s appeal against those orders and in lieu thereof for that period, the orders will be:
(A)Unless the parties otherwise agree in writing, commencing not earlier than 28 November 2015, the mother may spend time with the child at: [Suburb O Park]; the Westfield Shopping Centre at [Suburb W], or at such other venue as is agreed to by the parents and by the supervisor, each Sunday, for a period up to three hours.
(B)For the purposes of Order (A), the parents shall contact Phoenix Rising for Children (“PRFC”) on … within seven days from the date of this Order and do all things and sign all documents to arrange for that agency to supervise the mother’s time with the child;
(C)The supervision will be paid for by the mother and the parents will comply with all rules, directions and reasonable requests of PRFC;
(D)Unless the parties otherwise agree, the mother’s time will commence with the father delivering the child to the mother and the supervisor at the commencement of each occasion and collecting her from them at the conclusion of each occasion; and
(E)The father is at liberty to provide a copy of the judgment delivered in these proceedings on 13 November 2015 to PRFC.
5.It is a further condition of order 4 that the mother diligently prosecutes her appeal.
6.Otherwise the mother’s application for a stay in respect of parenting orders made on 13 November 2015 in relation to B born … 2010, is dismissed.
7.Any cross-appeal on behalf of the father be filed and served within 14 days.
8.The Court noted that the mother intends to seek expedition of her appeal.
4 DECEMBER 2015
IT IS ORDERED THAT:
1.Order 4 made on 20 November 2015 being a conditional stay of orders made on 13 November 2015, is varied in the following ways:
a)Unless the parties otherwise agree in writing, the supervised occasions where practicable shall be for three hours, once a week;
b)Prior to the commencement of 2016 school year, they shall occur on a weekday agreed between the parents and available to the supervising agency but not on a Wednesday or a Friday;
c)From the commencement of the 2016 school year the date is to be on a Saturday or Sunday as agreed between the parents and in default of agreement, on a Sunday;
d)Otherwise the times are to be exercised in accordance with Order 4 made on 20 November 2015 save that the costs of supervision shall be equally shared between the parents and the parties are at liberty to change by agreement the supervising agency to SUCO or another suitable agency;
e)The Court notes that the father has no objection to the mother conversing with the child during supervised occasions in a language other than English;
f)The Court notes that the father does not object to the attendance on supervised occasions of the maternal grandmother;
g)The food and drink to be ingested by the child on supervised occasions shall be the food and drink provided by the mother and it is a condition of these orders that any dairy products be provided to the child and maintained in a chilled condition.
2.The Court notes that neither of the parents seeks orders in relation to the costs of the substantive proceedings concluded by orders made on 13 November 2015.
3.The listing on 8 December 2015 in relation to those costs is vacated.
THE PROCEEDINGS
The mother contends that the father has acted in contravention of some of the above orders and filed a Contravention Application on 17 March 2016. The mother’s application is supported by her affidavit sworn on 16 March 2016.
The father relies on an affidavit sworn by him on 13 July 2016.
The mother appeared unrepresented at the hearing of her Contravention Application on 19 July 2016. The father appeared by Counsel.
At the commencement of the hearing, the mother sought leave to file in Court an application to adjourn the proceedings. She advised that she had received the father’s affidavit only a few days ago and wished to file an affidavit in reply. In addition, she wished to be represented by Counsel who was not currently in the country but who would be available on his mobile telephone. Counsel was not permitted to appear by telephone as requested by the mother.
Counsel for the father told the Court that he wished to make an application for summary dismissal. I indicated that, since the parties were present and the matter was listed for hearing, the preferable course was to hear the application.
The procedure was explained to the mother. She was told that the father’s affidavit would not usually be available to her until a prima facie case had been established. To that extent, early notice of his defence was to her advantage.
The mother was told that the matter would proceed at least to the determination of whether there was a case to answer and that, upon that determination, I would consider the further conduct of the proceedings.
The father was charged.
THE CHARGES
The father was charged with six counts of contravention and required to inform the Court whether he admitted or denied each charge, or whether he admitted any charge but contended that he had a reasonable excuse for the contravention.
The charges, and the father’s response in relation to each allegation, are here set out:
1.That contrary to the provisions of Order 4(A) made 20 November 2015 as amended by Order 1(a) and 1(b) made on 4 December 2015, you did not, between 21 December 2015 and 28 January 2016, cause the child the child B to spend time with the mother once each week for a period of three hours, excepting for a period of time on 29 December 2015.
The father denied the charge.
2.That contrary to the provisions of Order 4(A) made on 20 November 2015 and Order 1(a) and 1(c) made 4 December 2015, you did not cause the said child to spend time with the mother on Sundays between 31 January 2016 and 13 March 2016.
The father denied the charge.
3.That contrary to the provisions of Order 9(c) and Order 28 made on 13 November 2015 as amended by Order 1(d) made on 4 December 2015, you did not pay for the supervised contact visit on 30 November 2015.
The father denied the charge.
4.That contrary to the provisions of Order 9(c) and Order 28 made on 13 November 2015 as amended by Order 1(d) made on 4 December 2015, you did not pay for one half of the costs of the supervised contact visit on 29 December 2015.
The father denied the charge.
5.That contrary to the provisions of Order 12 made on 13 November 2015, you did not facilitate telephone calls between the said child and the mother on 29 December 2015, 31 December 2015 and 7 January 2016.
The father denied the charge.
6.That contrary to the provisions of Order 12 made on 13 November 2015 you terminated the telephone calls between the said child and the mother on 21 January 2016 and 26 January 2016.
The father admitted the charge but said he had a reasonable excuse.
Counsel for the father indicated that he wished to cross-examine the mother.
The mother asked for a short adjournment before the cross-examination proceeded. The Court was adjourned for 15 minutes.
When the Court resumed, there was no appearance by the mother. She did not answer when her name was called three times outside the Court.
The matter proceeded in her absence.
PRIMA FACIE CASE
Counsel for the father made submissions as to whether, on the evidence relied upon by the mother, a prima facie case had been established.
The affidavit of the father was then read and submissions were made by Counsel for the father in relation to his defence.
CHARGE 1
This charge concerns the period between 21 December 2015 and 28 January 2016.
Order 4(B) made 20 November 2015 specified that Phoenix Rising for Children (“PRFC”) supervise contact between the mother and the child.
On 4 December 2015 the orders were varied to provide that the supervised contact with the mother was to occur on a weekday agreed upon by the parents and available to the supervising agency, but not on a Wednesday or Friday.
Order 1(d) of the Orders made on 4 December 2015 also provided that the parties are at liberty to change the supervising agency by agreement.
The affidavit of the mother, at Paragraph 27, dealing with this period, does not establish that supervision by PRFC or another agreed organisation was available.
Absent evidence of the availability of a specified supervisor, no breach can be established.
No prima facie case has been established in relation to Charge 1.
CHARGE 2
This charge concerns the period between 31 January 2016 and 13 March 2016 when, in accordance with Order 1(c) made 4 December 2015, supervised contact was to occur on Sundays.
The evidence of the mother is contained in Paragraph 28 of her affidavit.
Again there is no evidence that a suitable supervisor was available.
No prima facie case has been established in relation to Charge 2.
CHARGE 3
This charge relates to payment for supervision in relation to a supervised visit on 30 November 2015. The mother complains that the father did not pay the costs of supervision.
The relevant Order is Order 4(C) made 20 November 2015, which provides that “The supervision will be paid for by the mother”.
No prima facie case is established in relation to Charge 3.
CHARGE 4
This charge relates to the assertion that the father did not pay one half of the costs of the supervised visit on 29 December 2015.
Order 1(d) made 4 December 2015 provides that the costs of supervision be equally shared between the parents.
The mother’s evidence in relation to this charge is contained in Paragraphs 29 and 30, and Annexures “D” and “E”, of her affidavit.
Annexure “D” to the mother’s affidavit is an email from the father dated 18 December 2015. The father indicated that Interrelate was available to supervise the contact, noting that Interrelate would charge $80 as opposed to PRFC which charged $277. He proposed that Interrelate supervise future contact and asked for the mother’s agreement. The father indicated that he could not afford to continue to pay the costs charged by PRFC but that, if the mother was prepared to pay the costs of PRFC, he did not object to their continuing to supervise.
Annexure “E” is a document evidencing a transfer of funds in the sum of $98.50 from the mother’s bank account to PRFC on 21 December 2015.
There is no evidence as to the payment or non-payment of the costs of the supervised visit on 29 December 2015.
No prima facie case is established in relation to Charge 4.
CHARGE 5
This charge relates to telephone calls in accordance with Order 12 made 13 November 2016 which were to occur each Tuesday and Thursday.
The mother alleges that no telephone calls occurred on specified dates, being 29 December 2015, 31 December 2015 and 7 January 2016.
29 December 2015 was a Tuesday. 31 December 2015 and 7 January 2016 both fell on a Thursday. These were all days on which the father was ordered to initiate telephone communication with the mother.
I find that the mother has established a prima facie case in relation to the telephone calls on 29 December 2015, 31 December 2015 and 7 January 2016.
CHARGE 6
In relation to the sixth charge, Order 12 made on 13 November 2015 provides that the father may conclude the telephone call between the mother and the child “in the event that he is of the opinion it is not in (the child’s) best interests for the call to continue”.
The affidavit of the mother states at Paragraph 22 that on 21 January 2016 the telephone call was terminated after 17 seconds, and that on 26 January 2016 the telephone call was terminated after 65 seconds. The mother gave no evidence about the circumstances in which the calls were terminated. There is thus no evidence in the mother’s case to support the mother’s contention, implicit in the charge, that the calls were terminated contrary to the order.
The father in answer to this charge, said that he had a reasonable excuse for contravening the order. This compels a finding that a prima facie case has been established.
The mother has established a prima facie case in relation to Charge 5 and Charge 6.
This matter had already been listed for hearing in a Judicial Duty List on 18 May 2016 and was not reached. The father was represented by Counsel on that occasion. The mother filed an Application in a Case on 15 June 2016 seeking an early listing of the Contravention Application. No notice had been given to the father’s legal representatives that the mother was not ready to proceed on this occasion.
The charges in relation to which a prima facie case had been established were not of a serious nature. The father’s solicitor and Counsel were ready to proceed. The mother had left the Court.
Substantial costs would be incurred by the father if the matter did not proceed to finality, and an adjournment would have required the allocation of a further hearing day.
In those circumstances it was in the interests of justice that the matter proceed.
THE FATHER’S EVIDENCE
The father’s affidavit sworn 13 July 2016, was read.
CHARGE 5
The father deposed that, on 29 December 2015, the mother had a period of supervised contact with the child which was scheduled to begin at 3:00pm and end at 6:00pm.
The child was returned to the father at 5:30pm. The father and the child left the contact venue, at approximately 5:40pm.
For half of the period in which the telephone call was to be made, the child was with the mother.
The father deposed that he did not understand that, in those circumstances, he was required to institute a telephone call to the mother immediately upon their return home. He also deposed that such a call would have been inappropriate having regard to the level of distress exhibited by the child at the end of the supervised contact.
After the supervised contact on 29 December 2016 with PRFC, PRFC sent an email to the father on 30 December 2015 stating:
We have reviewed the report of supervised contact service date 29 December 2015 and have now suspended this service to the child and her mother [Ms Rilak].
There are numerous issues that occurred at this contact and due to [Ms Rilak] breaching her signed service agreement, we can no longer provide this service.
The report of the supervised contact on 29 December 2016 is annexed to the father’s affidavit. The report sets out the circumstances in which the child became distressed and that, as a consequence of her being upset and distressed, the supervisor terminated the visit.
The father’s failure to institute a telephone call to the mother between 5:00pm and 6:00pm on that day, when the child was with the mother between 5:00pm and 5:30pm, does not constitute a breach.
In relation to the failure to institute a telephone call on 31 December 2016, the father deposed at Paragraphs 85 to 89 of his affidavit that on that day the child was withdrawn, clingy, complained of an upset tummy and repeatedly said that she did not want to see her mother again, that her mother said bad things about her father and that her mother said that her father would hurt her. The father considered it inappropriate in those circumstances to institute the telephone call.
The father had a reasonable excuse for not implementing the order for telephone contact on that occasion and no breach occurred.
In relation to the failure to institute a telephone call with the mother on 7 January 2016, the father deposed at Paragraphs 87 to 90 of his affidavit that he telephoned the mother on her usual mobile phone number but that the call did not connect.
The mother sent an email to the father at 4:54 pm on 7 January 2016 advising the father that her number was not working and providing an alternative number for the father to call. This email is annexed to the father’s affidavit. The father deposed that he did not see this email until 11 January 2016, as it was the holiday season and he was not regularly checking his emails.
The father had a reasonable excuse for not implementing the order for telephone contact on that occasion and no breach occurred.
CHARGE 6
Order 12 made 13 November 2015 authorises the father to terminate the telephone call if he is of the opinion that it is not in the child’s best interests for the call to continue.
At Paragraphs 95 to 98 of his affidavit, the father deposed that on 21 January 2016, after the call was instituted, the mother began to speak to the child in Country A. He deposed:
I observed that (the child) appeared uneasy and started to pace the room. I then observed (the child) to cover both of her ears with her hands….I terminated the call. (The child) appeared relieved when the call ended and said to me words to the effect of: “Mummy says bad things about you, thank you for stopping the telephone”.
I accept that the father had a reasonable excuse for terminating the call.
At Paragraphs 99 to 103 of his affidavit the father deposed to the events surrounding the telephone call on 26 January 2016.
He deposed that, amongst other things, the mother, discussing the child’s birthday presents said “I want to know what presents you got. Did your dad give you the presents I left or did he throw them in the rubbish”. The child became upset and both the child and the mother raised their voices and talked over each other. The child became distressed and the father terminated the call.
I accept that the father had a reasonable excuse for terminating the call.
CONCLUSION
The Contravention Application of the mother filed 17 March 2016 is dismissed.
COSTS
At the conclusion of submissions, Counsel for the father made an application for costs in the event that the application was dismissed.
The mother had notice that an application for costs would be made. When the matter was listed for hearing on 18 May 2016, Counsel for the husband filed in Court and served upon the mother a case outline which stated, at Paragraph 3, that the father sought the dismissal of the mother’s application “with costs”.
In support of the application, an assessment of costs was tendered. The father’s costs, on a party and party basis, are estimated to be $22,055.55.
That assessment has not been served upon the mother.
The application falls to be determined according to the provisions of s117(2A) of the Family Law Act1975 (Cth) which are set out below:
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
In relation to the relevant matters, the following submissions were made on behalf of the father.
The father earns between $35,000 and $38,000 per annum. He pays $600 per week for board for himself and his two children. He has sold his home to pay the amounts he was ordered to pay to the mother pursuant to orders for property settlement, and retains $260,000. The mother pays minimal child support, and he is responsible for the financial support of the two children in his care.
The mother is not in paid employment. She has received from the father sums totalling $163,182 for property settlement, interest and costs.
She has yet to pay to the father the costs awarded to him in the Full Court by way of Order made 24 June 2015.
Neither party is in a superior financial position. The father has more income and assets than the mother, but he also has the financial responsibility for two children.
Neither party is in receipt of legal aid.
In relation to the conduct of the proceedings, the father referred to the history of the proceedings. The mother’s Contravention Application was filed on 17 March 2016. The application was listed for hearing in a Judicial Duty List on 18 May 2016. On that occasion the mother appeared for herself and Counsel appeared for the father. The matter was not reached and it was referred to the List Clerk for the allocation of a further date, reserving the costs of both parties.
On 15 June 2016 an Application in a Case was filed by the mother seeking, inter alia, an urgent listing of her Contravention Application. That application was rejected for filing by a Registrar, in Chambers, in the absence of the parties.
Not only was the mother ready to proceed with the application on 18 May 2016, but she was anxious that an early date be allocated for the matter to proceed when it was not reached in the Judicial Duty List.
The father, in relation to conduct, also relies upon an offer of settlement forwarded by the mother to the father on 12 January 2016. In summary, the mother proposed to resolve the matter on the basis that the child live with her, that the father retain the money he was ordered to pay by way of property settlement ($130,187.67), and the mother would not then file a proposed application asserting 54 breaches, at that date, of the orders.
The father did not accept the offer. The mother filed the Contravention Application.
Also in relation to conduct, the father relied on the mother’s failure to disclose relevant matters in her affidavit in support of her Contravention Application, including, but not limited to, the fact that PRFC had refused to continue supervision and the fact that, on a day when she complained that there was no telephone call (29 December 2015) she was, in fact, with the child at the specified time.
I consider that only the last of these matters, the failure to disclose relevant information, is relevant to the issue of costs.
The mother has been wholly unsuccessful in the proceedings. This is a relevant factor.
The mother has not been afforded the opportunity to be heard in relation to costs. She will be allowed to file written submissions and will be provided with a copy of the costs assessment.
Judgment in relation to costs will be delivered after considering the mother’s submissions.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 July 2016.
Associate:
Date: 22 July 2016
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