Roffe and Huie

[2016] FamCAFC 166

FAMILY COURT OF AUSTRALIA

ROFFE & HUIE [2016] FamCAFC 166

FAMILY LAW – APPEAL – CONTRAVENTION – Where the respondent admitted serious contraventions without excuse – Where the appellant was placed on a bond for 12 months conditional on complying with court orders and attending on a family consultant – Where the appellant sought the respondent pay his costs pursuant to s 70NFB of the Family Law Act 1975 (Cth) (“the Act”) – Where the judge was obliged to consider the best interests of the child in deciding if an order for costs should be made – Where it was determined it would not be in the best interests of the child to order that the respondent pay the appellant’s costs – Where the appellant argued that the judge failed to give adequate reasons and conflated the best interests considerations – Where the judge gave adequate reasons and an absence of reasons does not indicate error per Penfold v Penfold (1980) 144 CLR 311 – Where the provisions of s 70NFB are different to s 117 of the Act – Where the judge correctly made findings and gave adequate reasons – Where the consideration of best interests in contravention proceedings is not the same as parenting proceedings, reference should be made to s 60CC of the Act – Where the appellant argued that the judge was obliged to consider s 117 of the Act – Where it is correct that if a judge determines a costs order would not be in the best interests of a child, then the discretion to make such an order is exhausted – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs if the appeal was dismissed – Where the background to this matter and the arguments properly put in support of the appeal lead to the conclusion that a costs order could not be justified – No order as to costs.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B, 70NEB, 70NFA, 70NFB, 117

Penfold v Penfold (1980) 144 CLR 311
Short v Trevilian (Contempt and Contraventions) [2008] FamCA 866

APPELLANT: Mr Roffe

RESPONDENT: Ms Huie

FILE NUMBER: ROC 85 of 2013

APPEAL NUMBER: NA 49 of 2015

DATE DELIVERED: 19 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 9 May 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 23 June 2015

LOWER COURT MNC: [2015] FCCA 1988

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Carter

SOLICITOR FOR THE APPELLANT: Duffield and Associates Solicitors

COUNSEL FOR THE RESPONDENT: Ms Sheean

SOLICITOR FOR THE RESPONDENT: CQ Legal Pty Ltd

Orders

1. The appeal is dismissed.

2. No order as to costs.

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 & Roffe & Huie 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA49 of 2015
File Number: ROC85 of 2013

Mr Roffe

Appellant

And

Ms Huie

Respondent

REASONS FOR JUDGMENT

1. By way of Amended Notice of Appeal filed 11 December 2015, Mr Roffe (“the father”) appeals orders 11 and 12 made by Judge Demack on 23 June 2015. Those Orders dismissed his application for indemnity costs to be paid by Ms Huie (“the mother”). Her Honour ordered each party to bear their own costs.

2. The orders were made in the context of a contravention application filed by the father on 29 January 2015. The parties appeared before Judge Demack in May and June 2015, with the mother ultimately conceding the contraventions and withdrawing her excuse. The mother was placed on a bond for 12 months conditional on her complying with court orders and attending on a family consultant.

3. The issue raised in this appeal is that despite the trial judge finding a serious contravention of children’s orders, the judge did not order that the mother pay the costs, being satisfied that it would not be in the best interests of the child.

Background

1. The parents have one child together, born in 2012 (“the child”). They separated in December 2012. Interim parenting orders were made on 28 September 2013. Final parenting orders made by consent on 3 June 2014 provided for equal shared parental responsibility for the child, the child to live with the mother and spend graduated increasing time with the father.

2. In the appeal hearing, Counsel for the father confirmed that he was seeking that this court re-exercise the discretion. Counsel suggested procedural orders could be made for further submissions regarding evidence, and if such evidence was contentious then the matter would need to be remitted before a judge other than Judge Demack. The respondent submitted that should the appeal succeed and if there was a need for further evidence, the only option was a re-hearing.

3. As noted above, the father filed the contravention application on 29 January 2015, alleging that the mother, without reasonable excuse, withheld the child from time with him as provided by the orders. The trial judge noted that the father and the child had not spent any time together since 23 August 2014.

4. On 25 March 2015, the contravention application was listed before Judge Demack. The hearing was adjourned, as a result of the mother filing an affidavit on 20 March 2015 suggesting that the father had sexually abused the child. The allegations included incidents from April 2014. The father made an application for indemnity costs. Judge Demack dismissed the father’s application. There is no appeal from that order.

5. The contravention application was heard and the parties appeared before Judge Demack on 21 and 22 May 2015. The mother was cross-examined in relation to the allegations. The judge observed:

   18.The mother was cross-examined for some time on day 1 of that hearing.  The mother’s evidence was concerning, in that she seemed to be having difficulty in remembering any of the sequences of events;   who had told who anything at any point in time;  who had made notifications to the Department of Child Safety;  why she had done anything at any point in time;  including why she had persisted in sending the child to spend unsupervised time with the father notwithstanding having had concerns apparently since April 2014 that the child was at risk of sexual harm in the father’s care;  why she then entered into final parenting Orders in June 2014 notwithstanding these apparent concerns;  and that she seemed to be in her own words looking for evidence as to how it was that the father was a risk to the child. 

6. On the following day of the trial, the mother physically collapsed and the matter was unable to proceed. Later that year, when the matter was again listed, the legal representatives for the mother advised the court that the mother admitted the contravention, without reasonable excuse. The judge found the contravention established.

7. On that basis, the father orally applied for a variation of the parenting orders for the child to live with him, and also sought costs on an indemnity basis. The judge refused to vary the parenting orders. It is the reasons (or absence of adequate reasons) for dismissing the application for costs that forms the basis of this appeal.

Reasons of the Trial Judge

1. The order requiring that the mother enter into a bond was pursuant to s 70NEB of the Family Law Act 1975 (Cth) (“the Act”). The order providing that the mother attend on a family consultant was pursuant to s 70NFB(2)(b). In her Honour’s reasons, the trial judge determined that pursuant to s 70NFA(2)(b) of the Act, the mother “has behaved in a way that showed a serious disregard of her obligations under the primary order.” This section refers to “more serious contraventions”.

2. The trial judge had regard to s 70NFB in determining the question of costs. The relevant parts of that section are as follows:

   (1)      If this Subdivision applies, the court must, in relation to the person who committed the current contravention:

   (a)make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and

   …

   (2)The orders that are available to be made by the court are:

   …

   (g)to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or

   …

   (Emphasis added)

3. The trial judge decided that the question of costs must be determined in connection with the decision regarding the father’s application for the child to live with him:

   54.I turn firstly to the question of costs.  In some ways, this decision needs to be tied in with my decision to do with the best interests of the child.  It seems to me that in the event that I form the view that the child must live with the father and spend limited supervised time with the mother, it will be more difficult for the mother to mount the argument that a costs Order would be directly and obviously linked to something which is contrary to the best interests of the child. 

4. After detailed analysis, the trial judge concluded that the child would remain living with the mother. The question of costs was then considered. It was noted:

   116.Section 70NFB(1)(a) provides that I must make an Order with respect to the costs, unless I am satisfied it would not be in the best interests of the child concerned to make that Order. I do not understand the mother’s position at all clearly. I do not know what the quantum of the father’s indemnity costs might be.

   117.I consider the mother to be impecunious.  She is in receipt of Centrelink benefits.  She is not effectively employable.  She has the primary care of a three and a half year old in a country which is not her country of origin.  Her English proficiency is limited.  Her only significant asset is the unit that she lives in with the child, which was funded by her property settlement.  She has a piece of real property in [South East Asia], which is her only other asset.  Although she has a drivers licence, she has no car. 

   118.In all of the circumstances, I am not prepared to make an Order that would render her financial circumstances even more difficult than they presently are.  I cannot see how it would be in the best interests of [the child] for the mother to have to dispose of potentially her principal place of residence here in Australia to satisfy a costs Order on the evidence that I have before me.  I decline to make that Order. 

5. The mother is dependent on Centrelink benefits, and apparently received limited child support from the father (at [94]). The mother owns and lives in a property in Australia, and also owns a property in South East Asia. Apart from property settlement orders referring to the mother retaining a property in South East Asia, the only evidence of the property in South East Asia was that of the father and his solicitors. The father said that the property was valued at $120,000 for the property settlement proceedings. Counsel for the father argued that the mother could sell this property and realise the money in Australia to satisfy a costs order.

Discussion

Grounds 1 and 2 – the child’s best interests

1. Grounds 1 and 2 of the appeal are as follows:

   1.The learned Judge, in considering whether an Order for costs was in the child’s best interest pursuant to Section 70NFB (1) (a) of the Family Law Act 1975 gave no or inadequate Reasons as to why an Order for costs was not in the child’s best interest and therefore erred in law.

   2.Further to Ground 1, the learned Judge’s consideration of the Section 60CC factors in determining whether an Order for costs was in the child’s best interest failed to consider Section 60CC (3) (f) and how an Order for costs would affect the capacity of the [mother] to provide for the needs of the child, when that was the only factor which would negate an Order pursuant to Section 70NFB (1) (a) pursuant to Section 60CC and therefore erred in law.

2. It is convenient to consider these grounds together, as both require an analysis of her Honour’s findings as to the child’s best interests in the context of refusing the costs application.

3. There is no doubt that the purpose of s 70NFA of the Act is to ensure future compliance with court orders. The provision contained in s 70NFB in relation to best interests provides some discretion in an otherwise mandatory subsection. In addition, it is notable that s 70NFB(2)(g) appears to require that the costs order be on an indemnity basis by the use of the words “pay all of the costs.”

4. In the first ground, the father argues that the primary judge gave “no or inadequate” reasons as to why an order for costs was not in the child’s best interests. In particular, the father challenges the finding of the trial judge that the mother’s home in Australia may be put at risk if a costs order were made. It is submitted that this was not adequately explained, especially in light of the property the mother also held in South East Asia. Counsel for the father submitted:

   9.…It was incumbent upon the primary judge to explain how that risk manifested, or why it was neither appropriate or available to the mother to have recourse to the real property in [South East Asia] to satisfy the costs order.

5. The primary judge referred to the evidence of the husband’s solicitor about the mother’s property in South East Asia at [33] and [55] of the reasons. At [117], referred to above, the trial judge found the mother to be impecunious but does make reference to the real property owned by the mother here and in South East Asia. But it was at [118] that the primary judge qualified the use of any property to satisfy a costs order:

   118.In all of the circumstances, I am not prepared to make an Order that would render her financial circumstances even more difficult than they presently are.  I cannot see how it would be in the best interests of [the child] for the mother to have to dispose of potentially her principal place of residence here in Australia to satisfy a costs Order on the evidence that I have before me.  I decline to make that Order. 

   (emphasis added)

6. The mother’s case in relation to the contravention was never clear. Her actions in withholding the child, despite earlier agreeing to more regular and graduated time, and then subsequently withdrawing the most serious allegations against the father was a matter the judge properly took into account.  

7. The question is, did the judge properly consider and give reasons for the best interests exception. The mother argued that an absence of reasons does not necessarily indicate error in a costs judgment by reference to Penfold v Penfold (1980) 144 CLR 311. In that matter, the High Court considered orders made pursuant to s 117 and said at 316:

   14.…Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

8. The provisions of s 70NFB are quite different to s 117 of the Act. The source of power to make such an order does require particular findings. The judge correctly made the finding that the contravention was in the serious category but a costs order was not in the child’s best interests.

9. Counsel for the mother challenged the submissions of the father, arguing that “there was no evidence before the primary judge whether it was possible for the respondent to sell the property in South East Asia or how long such a process would take.” This is correct although it might be said that the mother should have provided the relevant evidence.  

10. The primary judge noted at [63], [66], [79], [86] and [116] of the Reasons that the mother’s position was not clear. This made it difficult for the primary judge, to decide whether a costs order would affect the best interests of the child.

11. It should also be said that the father did not indicate the likely quantum of costs. This brings into light a further complication, and informs the second ground of appeal, which is whether the trial judge properly followed the legislation in determining that the best interests of the child outweighed an order for costs.

12. Counsel for the father argued in oral submissions that the primary judge conflated the requirements for the purposes of s 70NFB(1)(a) with the factors contained in s 60CC of the Act. That is, the requirement to consider the best interests of the child under s 70NFB(1)(a) is not the same as a consideration and findings related to the factors under s 60CC when parenting orders are made.

13. It was submitted under Ground 2 that the trial “judge failed to articulate how the mother’s capacity to provide for the needs of the child would be diminished by the imposition of the costs order.”

14. Contravention proceedings are different to parenting proceedings. The orders flowing from the finding of a contravention are not parenting orders as defined by s 64B of the Act. The question then arises as to whether it is permissible to refer to s 60CC to decide whether a costs order is not in the best interests of the child. Reference was made to the decision of Dawe J in Short & Trevilian (Contempt and Contraventions) [2008] FamCA 866 (“Short”), where an order for costs was made.

15. In Short, Dawe J found that s 60CC is “not directly binding upon the Court” in contravention matters, but by reference to s 4 of the Act, which defines “interests”, her Honour concluded that some consideration could be given to s 60CC(3)(f) which is the capacity of each of the parents to provide for the needs of the child. The definition of “interests” in s 4 refers to Part VIII of the Act, which includes contraventions. While the consideration of best interests in the context of a costs order in contravention proceedings is not the same as parenting proceedings where the best interests of the child is the paramount consideration (per s 60CA), it must be correct that reference may be made to s 60CC to deal with the best interests question in a contravention costs order.

16. It can be concluded that there is no merit in Grounds 1 and 2. There was sufficient evidence for the trial judge to find that the mother was in poor financial circumstances and potentially could not satisfy a costs order without the sale of her home. While it may appear that the judge in [54] conflated the best interest test when considering the costs issue with the parenting issues, it was appropriate for her Honour to decide the parenting application first and then the costs application. In these circumstances it is apparent how the trial judge made findings that a costs order was adverse to the child’s best interests.

The other grounds of appeal – should s 117 have been considered?

1. Counsel for the father submits that if the primary judge concluded, as her Honour did, that it was not in the best interests of the child to make an order for costs pursuant to s 70NFB(1)(a), her Honour was still obliged to consider s 117 of the Act.

2. It is argued that the Court retained discretionary power under s 117(2) of the Act in addition to the provisions of s 70NFB(1)(a). In particular, it was argued that the judge should have concluded that the mother had improperly rejected the father’s offer of settlement, entitling the father to an order for indemnity costs. It is submitted that the failure to accept the offer in this matter was “imprudent” as the mother had contravened a final children’s order and had no reasonable excuse. In that offer, notice was given that an application would be made for costs on an indemnity basis should the offer not be accepted.

1. Additionally, it was submitted that the trial judge failed to consider the factors contained in s 117(2A)(a) of the Act, in particular the availability of the property in South East Asia. It was further argued that the evidence showed the father had settled his child support arrears as at 8 April 2015 and that the judges’ reasons in this respect were a mistake of fact. Not every mistake of fact will lead to an appeal being allowed. If what her Honour said in this respect was an error, it was not of such relevance to the consideration of costs that it is material.

2. In my view, if a judge determines that it is not in the best interests of a child to make a cost order in contravention proceedings, then the discretion to make such an order is exhausted. If not, the judge must make the order. Although it is understandable that the father feels aggrieved by the circumstances of this case, the approach taken by the judge was correct. Should there be any doubt that s 117 can operate with s 70NFB, the legislation provides that s 117 requires, subject to s 70NFB(1), each party bear their own costs.

Conclusion

1. The primary judge did not err in making a decision in relation to best’s interests of the child. It should be noted that trial judges often are faced with deficiencies in evidence which rarely would on its own be a basis for an appeal to be allowed, absent a denial of justice. The father failed to put forward evidence about the quantum of his costs and costs agreements to support an application for costs on an indemnity basis. The mother failed to provide detailed information about the property in South East Asia. Although the evidence was before her Honour from the father and his solicitor, and despite the judge indicating that an adjournment may be necessary, no such application was made (Transcript 16 June 2015, p.9).

2. In the circumstances of this case, where a cost order was indicated by reason of the legislation and the findings of the judge it was incumbent upon her Honour to make an order for costs, subject to the best interests exception. The reasons sufficiently explain the best interests considerations.

Costs

1. At the conclusion of the hearing of this appeal, I asked the parties for submissions on costs of the appeal. If the appeal succeeded, both parties sought a costs certificate. Counsel for the mother asked for costs if the appeal does not succeed. The appeal is to be dismissed. Although unsuccessful, there should be no order for costs. The background to this matter and the arguments properly put in support of the appeal lead to the conclusion that a costs order could not be justified.  

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 19 August 2016.

Associate: 

Date: 19 August 2016