Roberts & Roberts

[2007] FamCA 191

FAMILY COURT OF AUSTRALIA

ROBERTS & ROBERTS [2007] FamCA 191

FAMILY LAW – APPEAL AGAINST DECISION OF FEDERAL MAGISTRATE – CHILDREN – Federal Magistrate made an order for an injunction which was not part of the application – Denial of natural justice - Orders in relation to the child travelling overseas agreed by consent – S 65Y Family Law Act 1975

FAMILY LAW – APPEAL - COSTS – S 117(1) Family Law Act 1975 - Costs certificate granted to the appellant pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 – Costs certificate granted to the respondent pursuant to s 6 of the Federal Proceedings (Costs) Act 1981

Family Law Act 1975 (Cth)

Fitzgerald v Fish (2005) 33 Fam LR 123
Gronow v Gronow (1979) FLC 90-716
In the Marriage of Harris (1991) FLC 92-254
In the Marriage of Higginbotham and Robinson (1991) FLC 92-209

APPELLANT: MS ROBERTS

RESPONDENT: MR ROBERTS

FILE NUMBER: BRM 8153 of 2002

APPEAL NUMBER: NA 92 of 2006

DATE DELIVERED: 9 March 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: MAY J

HEARING DATE: 6 March 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 14 November 2006

LOWER COURT MNC: [2006] FMCAfam 711

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Galloway

SOLICITOR FOR THE APPELLANT: WHD Lawyers

COUNSEL FOR THE RESPONDENT: Ms Brasch

SOLICITOR FOR THE RESPONDENT: Family Law, Doyle Keyworth & Harris

BY CONSENT IT IS ORDERED:

1. That the mother give to the father not less than two months written notice of any intention she may have to take the child, born 2 May 1994, overseas.

IT IS FURTHER ORDERED:

1. The appeal in relation to order 8 of the orders made in the Federal Magistrates Court on 14 November 2006 be allowed and that order be set aside.

2. The appeal in relation to order 10 of the orders made in the Federal Magistrates Court on 14 November 2006 be dismissed.

3. That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

4. That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Roberts and Roberts.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 92  of 2006
File Number: BRM 8153 of 2002

MS ROBERTS

Appellant

And

MR ROBERTS

Respondent

REASONS FOR JUDGMENT

1. In a Notice of Appeal filed 2 December 2006 the wife appeals against orders 8 and 10 made by FM Walters on 14 November 2006. Those orders provided:

   1.Within fourteen days of the date of these Orders, the father do all things and sign all such documents necessary to procure, with the mother, a passport for the child born 2 May 1994.

   2.The mother be permitted to travel with the said child on a holiday overseas to Hawaii from 27 March 2007 to 12 April 2007, provided that she first complies with paragraph 3 below.

   3.Twenty one days before the mother leaves Australia with the said child on the said overseas holiday, she provide the father the following:

   (a)an itinerary for travel;

   (b)a copy of the return ticket to Australia for the said child and herself;

   (c )proof of appropriate travel health insurance for herself and for the said child; and

   (d)a contact number or numbers at which the mother and the said child may be reached while overseas.

   4.If the respondent father fails or refuses to sign the Passport Application within fourteen days of the date of these Orders, then the Registrar or Deputy Registrar of the Brisbane Registry of this Court is authorised to sign the said application.

   5.Proof that the father has failed or refused to sign the Passport Application in accordance with paragraph 4 above may be given by an affidavit under the hand of the mother’s lawyer.

   6.Once the said child’s passport is obtained, it be held by the Registrar of the Federal Magistrates Court, to be released only upon the written consent of both parents, or by order of the Court.

   7.Subject to paragraph 6 above, the passport be held by the Court upon being issued and then be released to the mother 48 hours before travel and returned by the mother within 48 hours of returning from travel.

   8.Save in the event of the said child being ill, or other exceptional circumstance (not including overseas holidays), the mother be restrained by injunction from causing or permitting the said child to miss periods of schooling of in access [sic] of 2 days without the written consent of the father having first been obtained or, alternatively, without prior order of the Court.

   9.The mother’s application otherwise be dismissed.

   10.Each party bear his/her own costs.

2. The appeal is being determined by me as a single judge pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).

3. The application of the mother with which the Federal Magistrate dealt was filed on 29 September 2006. The orders she sought were as follows:

   1.Within fourteen (14) days of the date of these Orders, the Respondent Father do all things and sign all such documents necessary to procure with the Applicant Mother a Passport for the child [the child] born 2 May 1994.

   2.That the Mother be permitted to travel with [the child] on a holiday overseas provided that she complies first with paragraph 3 below.

   3.That twenty one (21) days before the Mother leaves Australia with [the child] on an overseas holiday, that she provide to the Father the following:

   (a)An itinerary for travel;

   (b)A copy of the return Ticket to Australia for [the child] and for herself;

   (c)Proof of appropriate travel health insurance for herself and for [the child]; and

   (d)A contact number or numbers at which the Mother and [the child] may be reached at while overseas.

   4.If the Respondent Father fails or refuses to sign the Passport Application within fourteen (14) days of the date of these Orders, then the Registrar or Deputy Registrar of the Brisbane Registry of this Honourable Court is authorised to sign this application.

   5.Proof that the Respondent Father has failed or refused to sign the Passport Application may be given by an Affidavit under the hand of the lawyer for the Applicant Mother.

   6.That the Respondent pay the Applicant’s costs of and incidental to this application.

4. The orders asked for by each of the parties assume some significance in this appeal since the Federal Magistrate made an order for an injunction which was not asked for by either party in any application or response.

5. The response filed by the father on 31 October 2006 asked that the Court not make orders for a passport, that the child not be permitted to travel overseas and that the applicant pay her own costs.

6. In annexure 4 to the father’s affidavit filed 31 October 2006 the final orders as asked for by the father included at paragraph 1:

   1.That the Mother [Ms Roberts] not be permitted to travel overseas with [the child] during any school time. Only during the 15 weeks of allocated school holidays offered by [the child’s] school.

7. Having regard to the issue of costs it can be observed that the orders that were ultimately made were very much like the consent orders sent to the father by the mother’s solicitors’. The father however refused to sign those consent orders and the matter was listed for hearing.

8. Ultimately the passport issue and the overseas travel to Hawaii was largely agreed between the parties outside the Court. The only possible dispute for the Federal Magistrate to adjudicate upon was that the father was asking that the mother be restrained from travelling overseas other than during school holidays and the mother’s application for costs. The Federal Magistrate made an order that the mother be restrained from not allowing the child to miss periods of schooling in excess of two days without the written consent of the father or prior order of the Court, with the exception of illness or what was described as “other exceptional circumstances”.

9. There are no reasons for judgment in relation to this order. It is apparent from the transcript that the learned Federal Magistrate formed a view that such an order ought to be made after the proposed consent orders were handed to him. There was no real opportunity for submissions. It is thus complained by the appellant that there was no opportunity to be heard in that the order was made without any prior notice to her and without the benefit of either evidence or submissions. It is clear that this ground of the appeal must lead to the appeal against those orders being allowed. Fortunately after the hearing of the appeal and prior to the reasons being delivered the parties were able to agree about orders in relation to the child travelling overseas. The mother will give the father two months notice in writing of any intention to travel overseas. Consequently this judgment principally deals with the issue of costs.

10. As counsel for the appellant properly pointed out, no thought seems to have been given to the provisions of s 65Y of the Act which apply in this case. Unfortunately, those provisions were not referred to by the solicitor for the appellant mother but in any event they would not have dealt with the apparent concerns of the Federal Magistrate.

Background

1. The parties were married on 24 April 1993 and separated on 28 January 2003. There is one child, born 2 May 1994 so that he is now 12 and a half years. On 28 April 2005 consent orders were made by the Federal Magistrates Court which provided that the child live with his mother and that the father have liberty to communicate with the child via letter, telephone and email. Further, if the child at any time expressed a desire to have contact with the father it was agreed that the parents would do all things practicable to facilitate such contact. The father was also authorised to communicate with the child’s school and receive copies of all notices and reports. It is common ground that the father has had very little face to face contact with the child and none since late February 2005.

2. In 2006 the mother wrote to the father asking for his consent to take the child to New Zealand and for that purpose she needed him to sign a passport application. The father refused to sign the passport application setting out in a letter his distress about not having contact with the child and his concern that this might mean that the child would miss some school.

3. The wife’s proposal to take the child to Hawaii in March/April 2007 with which the Federal Magistrate was concerned was said by her to be a reward for the child’s hard work at school and involved him missing about 5 days of school. The mother had obtained permission from the school for him to be absent. The mother engaged solicitors to write to the father. Their letter dated 25 September 2006 asked that the father sign the passport application and attempted to assure the father that:

   “My client is prepared to keep you informed of any proposed overseas travel for [the child] and, in particular, is prepared to provide to you:

   (a)       A travel itinerary;

   (b)       A copy of the return ticket for herself and for [the child];

   (c)Details of appropriate travel and health insurance; and

   (d)A number or numbers at which [the child] and she may be contacted while overseas.”

   It was asked that the father respond in writing or:

   “If I do not have your response within seven (7) days, an Application will be made to the Federal Magistrates Court of Australia requiring you to sign the Passport Application and in default for the Registrar of the Family Court to sign the Passport Application on your behalf.

   …

   My client will rely upon this letter to support any application for costs which flow from your unwillingness to reach a reasonable agreement.”

   No response was received from the father and the mother’s solicitors’ filed her application on 29 September 2006.

4. The father did respond to the mother’s solicitors by email on 6 October 2006, a copy of which appears as annexure 5 to the affidavit of the father. It is important to set out that correspondence in full:

   “Dear [Mr Roberts],

   As you are acting on behalf of [Ms Roberts], I leave you the responsibility of asking [Ms Roberts] to attend Mediation in regards to children matters. [Ms Roberts] needs to register with Relationships Australia to attend [the] Mediation Centre. [Ms Roberts] needs to phone [phone] to register and she will need to indicate she is the 2^nd person to register. I believe these matters of the passport and the change in contact, can be sorted through mediation, instead of going through the court process. I believe that [Ms Roberts] like myself are both thinking of the best interest of our [child] and [Ms Roberts] like myself would only be happy to sort this out. I will give [Ms Roberts] 7 days to respond as this matter is seen as urgent, due to upcoming court proceeding.

   Regards

   [Mr Roberts]

5. It seems that the learned Federal Magistrate was particularly impressed by this offer to attend mediation to both discuss the passport and future contact. As already mentioned, it is important to note that at this time that father was not having any contact at all with the child nor were there any applications before the court seeking orders in relation to the child. In the transcript (p.15) commencing at line 20 there appears an interchange between the Federal Magistrate and the solicitor for the mother. This takes place just after the solicitor provided to the Federal Magistrate the consent orders largely in terms of the mother’s application:

   “FEDERAL MAGISTRATE: [Mr Roberts] and Mr Turnbull, I’m not satisfied with the orders at all. I think they might need some substantial redrafting. I’ve read the material. I want to say, Mr Turnbull, that if the father had an application for costs that he could properly make against your client I would be inclined to grant the application for costs against your client.

   As far as I’m concerned she’s acted in a high-handed and arrogant manner and I’ve read the application that she made, which was in effect for carte blanche. I see nothing wrong with the father’s response to the application or to the matters that he’s raised. They are reasonable in the circumstances given that he is entitled to expect some communication at a reasonable level from the mother of his child.

   The evidence appears to be that he proposed there be mediation and your client declined and she didn’t even have the good grace in the affidavit material presented to the Court to explain why she refused to participate in mediation Am I right or am I wrong?”

   And later at line 41 without any opportunity for either party to make submissions the Federal Magistrate then said:

   “FEDERAL MAGISTRATE: …Now as far as I’m concerned this child should not be removed from school for the purpose of holidays and it would appear on my reading of the material that the father’s concerns about the child being unnecessarily removed from school for holidays are valid. Now, what that does to the relationship between him and his son I don’t know, it will probably make it worse than it is, but it doesn’t sound like it’s a very good relationship in the first place.

Grounds of appeal

1. The grounds of appeal are divided into two categories. It is not necessary to deal with those relating to the injunction other than to observe as I have already, that the father did not ask for orders in those terms and that there was no opportunity given to the solicitor for the mother to be heard on the orders made.

   Under the heading of Costs:

   6.The Federal Magistrate exercised a discretion on whether to orders costs and that discretion miscarried.

   7.The Applicant filed the Application because the Respondent would not agree to the Orders Sought.

   8.The Respondent filed a Response denying the relief the Applicant sought.

   9.The Applicant obtained the relief that she sought.

   10.The Federal Magistrate found the Respondent had capacity to meet a Costs Order.

   11.The Federal Magistrate’s discretion miscarried as he found the Applicant was not successful in her Application when clearly she was.

   12.The Federal Magistrate did not recognise the Application was necessary to obtain the relief sought nor that the issues were only litigated because the Respondent refused to concede, before filing, the relief sought.

Reasons for judgment

1. There are no reasons for judgment in relation to order 8 that the mother be restrained. The reasons in relation to refusing the costs order may be summarised as follows.

2. At the outset of the judgment in relation to costs the Federal Magistrate referred to his remarks about the mother and incorporated them into his judgment. These are those already referred to from the transcript (p.15) at paragraph 12 of this judgment.

3. It should also be added that the Federal Magistrate at this point in the judgment also referred to “a very long and very full duty list” which no doubt provides the explanation for how he came to make the orders in paragraph 8.

4. His Honour then correctly referred to the provisions of s117 of the Family Law Act 1975 (Cth) and the broad discretion in relation to such matters. As to the father’s financial circumstances he said:

   “7.I understand that there are five children in his present family and that, although he earns something in the order of $75,000 or $76,000 per annum, he clearly has commitments to maintain the members of his household. I also understand that the father’s present wife has health problems

   …

   8.I see no reason, though, why the father ought not to be held to have the capacity to pay the costs sought by the mother.

5. It was about the conduct of the parties’ that his Honour placed the greatest reliance. He seemed particularly concerned that the orders as sought by the mother:

   “11.…did not give the father any automatic right to veto the travel … or … seek to discuss the suitability of the arrangements with the mother. …”

6. Further in determining that there should be no order for costs his Honour said:

   “12.Further, it is apparent from reading the affidavit material that, in 2005, the mother travelled overseas with [the child] without telling the father of her intention in that regard.  When the father found out, whatever trust may have existed between these parties (and it would appear that there was very little of that) clearly evaporated.

   13.There has been a long history of litigation between these parties and I take into account the matters contained in the father's affidavit in that regard.  I also take into account, of course, the mother’s initial affidavit and responding material.  I take into account, as well, the fact that the father sought to resolve this issue, not by litigation but by mediation.  The father's approach in that regard was rebuffed by the mother, who did not even condescend to set out – in her lengthy affidavit in reply to the father's affidavit – her reasons for refusing to participate in mediation (which procedure might have avoided this matter coming before the Court at all).

   14.I am of the view, from the material contained in the father's affidavit, which I do not need to review in detail at this point in time, that the father's concerns about [the child] being removed from school are reasonable.  I have read the correspondence between the father and the school and, in my view, he was perfectly entitled to raise that as an issue, as he has done.  Indeed, he has been wholly successful in his application to me for some form of order that would prevent the mother behaving in the manner that she has behaved in the past in relation to removing [the child] from his school.

   …

   16.Accordingly, I am not prepared to find that the father has acted unreasonably in any way in bringing his concerns before the Court.  Given that the mother was not prepared to involve herself in mediation, I see no other way for the father to have his concerns brought to a Court's attention, or to otherwise have them taken into account.  Indeed, and as I have already indicated, he was successful in persuading the court that they should be taken into account.

   …

   18.The next consideration is whether any party to the proceedings has been wholly unsuccessful in the proceedings.  In my view, it is arguable that the mother has been more unsuccessful in these proceedings than the father has been, particularly in the light of the injunction that I saw fit to make regarding [the child’s] schooling and the fact that the mother ultimately conceded that the [child’s] passport should be held by a Registrar of the Court, and only released upon the written consent of both parents or by order of the Court.  Such an order was not included within the mother’s initial application.

   19.I accept that the trip that the mother wished to embark upon was ultimately consented to by the father, but, in my view, the provisions of s.117(2A)(e) could not justify the making of an order for costs against the father. After all, the father clearly stated that he did not object to [the child] going on holiday with the mother to Hawaii in March and April 2007 only on condition that she does not again take him on a holiday during school time.

   20.Section 117(2A)(f) requires the Court to consider whether either party to the proceedings has made an offer in writing to the other party to settle the proceedings, and the terms of any such offer. In this case, I am not aware of any formal offer, although I note that there was correspondence that passed between the mother’s solicitors and the father, and I note, in particular, that the father sought that the mother involve herself in mediation to try to assist in the re-establishment of a relationship between the father and his son and, indeed, to deal specifically with the question of overseas travel.

   21.The final matter for the Court to take into account is set out in s.117(2A)(g): the Court should have regard to such other matters as it considers relevant. I have already commented upon the mother's unwillingness to involve herself in mediation as described by the father in paragraphs 39 and 40 of his affidavit, and I have also referred to the fact that the mother saw fit to travel overseas without telling the father in 2005.

   22.I confirm that I am of the view that the father has not acted irrationally or in order to spite the mother.  He has brought his concerns to the attention of the Court because – as seems apparent from the material now before me – he felt that he had no other option.”

Principles relating to costs

1. For an appeal to succeed an appellable error of the trial Judge must be found.  Where a factual or legal error is not found to have been made, a decision at first instance should not be easily overturned.  This well known principle was encapsulated by Stephen J in Gronow v Gronow (1979) FLC 90-716 at 78,849:

   “When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge.  Because of this […] an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.”

1. Specifically in relation to costs, in In the Marriage of Harris (1991) FLC 92-254, the Full Court held that orders for costs are matters which are within the discretion of the trial judge and that interference should only be in the rarest of cases. Although the Full Court will be reluctant to interfere, it will do so when the result is plainly unjust or if the discretion was exercised on wrong grounds; as was done in In the Marriage of Higginbotham and Robinson (1991) FLC 92-209.

2. The general rule, under s 117(1) of the Family Law Act 1975, is that each party to proceedings shall bear his or her own costs. This principle however, is subject to subsection (2) which enables the Court to consider whether circumstances are present that justify the making of a costs order and to do so, providing it would be just.

3. The matters a judge ‘shall have regard to’ in considering what order (if any) should be made under subsection (2), are:

   s 117(2A)

   (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.

4. The basis for finding such justifying circumstances may be upon any one factor alone.  The Full Court held in Fitzgerald v Fish (2005) 33 Fam LR 123 that there is nothing to prevent any factor being the sole foundation for an order for costs. In that judgment their Honours said the following:

   “40.The introductory words of subsection (2A) of section 117 are:

   “In considering what order (if any) should be made under sub-section (2) the court shall have regard to:”

   41.A number of factors are then listed in the subparagraphs.  The financial circumstances of each of the parties to the proceedings is the first mentioned factor.  Nowhere in [subsection] 2(A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in [subsection] 2(A).  As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.”

1. With those principles in mind, it is necessary then to return to the reasons of his Honour for making those orders and the submissions made by counsel for the parties.

Conclusions

1. The order made by the Federal Magistrate, being the parts with which the father agreed, differed from the application in that paragraph six and seven were not included. This idea apparently emanated from the father having the assistance of a Duty Lawyer. These orders were considerable concessions made by the mother beyond the contents of her original letter and proposed consent orders.

2. Having made that observation it is important also to remember that the father completely opposed the mother’s application in his response and his affidavit.

3. The father in his affidavit expressed concern about the mother’s conduct in the past, in particular taking the child overseas in 2005 without notice to him. The mother conceded that she did take the child. The father in his affidavit said that he had no confidence that the mother would do as the letter from her solicitor provided. It was in that context that the father told the Federal Magistrate that he would like an order providing that there would be no travel other than in school holidays.

4. In addition, the father was concerned about the impact on the child’s education if he missed school and said that the travel should be during school time. There was some evidence from the school about absences including their advice that “this is not considered an excessive absence by the [school]”.

5. The Federal Magistrate was no doubt correct in observing that the father had the capacity to meet an order for costs. The documents from the Child Support Agency reveal that the parties’ taxable income are of similar amounts being in the region of $74,000 to $75,000 per year, the father pays the sum of $5,294 per annum in child support and has two other children of his own to support and lives with his present wife and her three children.

6. While accepting as counsel for the wife properly conceded that there was no justification for the finding repeated at the commencement of the judgment that the mother had acted in a high handed and arrogant manner it certainly was the case that she never offered to enter into any discussions with the father about her proposed arrangements. This might be understandable in view of the history of the matter particularly that the child was not having contact with the father. In my opinion, the mother was entitled to ask for costs by reason of the proper manner about which her solicitors had conducted her case by first writing to the father and then providing him with consent orders.

7. However, it might equally be said as was pressed by counsel for the father, that the father’s concerns about the child missing school and the impact on his education were certainly bona fide. Although the order as imposed by the Federal Magistrate was excessive it can properly be said that the father achieved one of his aims in coming to Court in having an order made that restricted the ability of the mother to send the child on holiday, particularly overseas and outside school holidays. On balance it can be said that the mother achieved her aim in that she was able to take the child to Hawaii and the father achieved some restriction albeit as I have described it, an excessive one. As importantly the father managed to negotiate the inclusion of paragraph seven and eight of the orders.

8. Even if there be some argument that the appeal should be allowed in relation to costs and the discretion re exercised, for the reasons I have mentioned, no order would be made for costs in any event. Consequently, the appeal in relation to costs is not allowed.

9. It is appropriate in the circumstances of allowing the appeal in relation to the restraining order that each party receive a certificate as they each submitted should be ordered as clearly an error has been made.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  9 March 2007