Sandison & Thornhill
[2022] FedCFamC1F 894
•18 November 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sandison & Thornhill [2022] FedCFamC1F 894
File number: NCC 1503 of 2016 Judgment of: CARTER J Date of judgment: 18 November 2022 Catchwords: FAMILY LAW – CONTRAVENTION – contravention of final parenting orders – where the mother pleaded guilty to the alleged contraventions – where the mother acknowledged she had no reasonable excuse – consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – where the contraventions are regarded as less serious – penalty – bond without security and without surety – where a bond of twelve months is imposed upon the mother – whether there should be make up time ordered.
COSTS – where the applicant sought indemnity costs – whether costs should be ordered on party-party or indemnity basis – consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – costs ordered in a fixed sum.Legislation: Family Law Act 1975 (Cth) Part VII, Division 13A, ss 70NAF, 70NBA, 70NEA, 70NEB, 70NEC, 70NECA, 70NFA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Colgate-Palmolive Company & Cussons Pty Limited [1993] FCA 801
D & D (Costs) (No. 2) [2010] FamCAFC 64
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655
Hugh & Sawer [2010] FamCA 290
Keehan & Keehan [2019] FamCAFC 250
Kohan & Kohan [1992] FamCA 116
Limousin & Limousin (Costs) [2007] FamCA 1178
Munday & Bowman (1997) FLC 92-784
Spencer & Verity [2012] FamCAFC 210
Division: Division 1 First Instance Number of paragraphs: 81 Date of last submission: 20 September 2022 Date of hearing: 20 September 2022 Place: Melbourne (via videolink) Counsel for the Applicant: Ms Melissa Gillies SC Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Linton Teoh Solicitor for the Respondent: Lindeman Lawyers ORDERS
NCC 1503 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SANDISON
Applicant
AND: MS THORNHILL
Respondent
order made by:
CARTER J
DATE OF ORDER:
18 November 2022
THE COURT ORDERS THAT:
Upon finding that the mother has contravened parenting orders without reasonable excuse:
1.Pursuant to s.70NEB(1)(d) of the Family Law Act 1975 (Cth), the mother forthwith enter into a bond to be of good behaviour upon the following conditions:
(a)the bond shall be without surety or security;
(b)the mother shall be of good behavior for the duration of the bond, which shall include compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and
(c)the bond shall be for a period of 12 months.
2.By way of make-up time:
(a)for the balance of this school year, and for the duration of Terms 1 and 2, 2023, the child’s time with the father pursuant to Order 4.2 of the orders made 3 March 2020 commence at 3.00 pm Tuesday;
(b)for the purposes of the long summer holidays in 2022/2023, the child shall spend a total of 30 nights with the father, at times agreed, and failing agreement, the father shall nominate the nights, not less than 14 days prior to the commencement of the holiday period, with such nights to not include both the night of 24 December and the night of 25 December 2022, and the balance of the holiday period with the mother; and
(c)for the purposes of the Term 1 2023 school holidays, the child spend the first 12 nights of that holiday with the father, from the conclusion of school on the last day of term, and the balance of the holiday period with the mother.
3.Paragraph 6 of the orders made 3 March 2020 be varied to provide as follows:
6. During school holiday periods as defined in these orders the child shall spend time with the Mother and Father for one half of the school holiday period as agreed between the parties in writing and failing such agreement, with the father for the first half of each school holidays period and with the mother for the second half of each school holiday period.
4.The mother shall pay the father’s costs assessed in the sum of $12,000, with such sum to be paid within twelve months.
5.The Contravention Application filed 25 May 2022 otherwise be dismissed.
THE COURT NOTES THAT:
A.Following the publication of this order, the mother’s solicitors forthwith arrange an appointment for the mother to attend the Sydney Registry to enter into the bond in accordance with Order 1 herein.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandison & Thornhill has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
Introduction
A Contravention Application was initiated by the father on 25 May 2022, with respect to the mother’s breaches of the final parenting orders made by consent on 3 March 2020 (“the primary order”).
The parties have one child together, X (“the child”), who was born in 2013 and is nine years old. Following a protracted period of litigation, the primary orders provided inter alia that the parties have shared parental responsibility for the child, that he spend time with the father for six nights over a two-week cycle, half of all school holiday periods, and otherwise live with the mother. Until the matter came before me for Contravention Hearing neither party had sought to vary the primary order since being made, and it appears that that order was implemented substantially without incident until early 2022.
Relevantly, the primary order provides as follows:
Live with arrangements - school terms
4. That during school terms, [X] shall live with the Father on a two-week cycle as follows:
4.1Week One: from after school, or 3.00pm on Thursday until before school, or 9.00am on Monday;
4.2 Week Two: from after school, or 3.00pm on Wednesday until before school, or 9.00am on Friday;
…
School holiday periods
6. During school holiday periods as defined in these Orders at the conclusion of Terms 1, 2 and 3, [X] shall spend time with the Mother and Father for one half of the school holiday period as agreed between the parties in writing and failing such agreement:
6.1 With the Father for the first half of each school holiday period at the conclusion of Terms 1, and 3 in years ending in an even number and the second half of the school holiday period at the conclusion of Term 2 in years ending in an even number
…
7. During school holiday periods at the conclusion of Term 4:
7.1 [X] shall spend time with the Mother and Father for half of the school holiday period as agreed between the parties in writing, and failing agreement, with the father for the second half of the school holiday period in 2020 and each year ending in an even number thereafter.
…
Parenting Course
19.That within 21 days of these Orders, the Mother shall enrol in, attend and complete the next available parenting after separation course with Relationships Australia and provide to the Father written evidence of completion from the organisation conducting the program, noting that the Father has previously completed this course.
The father’s application outlined 18 alleged contraventions of the final order by the mother. Those counts can be summarised as follows:
(a)two counts of the mother withholding the child from the father’s care during the school holidays being in January 2021 and April 2022, in breach of Orders 6 and 7 of the primary orders respectively;
(b)fifteen counts of the mother withholding the child from the father’s care during the school term between 24 February 2022 and 8 April 2022, in breach of Order 4 of the primary orders; and
(c)one count of the mother failing to complete the parenting after separation course with Relationships Australia, which was to occur within 21 days of the primary orders, as provided for in Order 19 of those orders.
When this application first came before the court on 24 June 2022, the mother agreed she had not made the child available to spend time with the father pursuant to the primary order. However, she asserted she had a reasonable excuse in relation to the contraventions. Notations to that effect were made in the orders of the Senior Judicial Registrar on that day.
The matter came before me for directions hearing on 19 July 2022. The mother again conceded on that date that time between the father and the child had not occurred as was alleged in the Contravention Application. She again informed the court through her solicitor that she had a reasonable excuse for breaching the primary order.
At that time – and after what by then was a five month hiatus – the mother agreed that time between the father and the child in accordance with the primary order would recommence forthwith. The parties also entered into consent orders which placed restraints on the mother and her family members from entering upon or loitering near the child’s school on days that the child was in the father’s care. The matter was set down for final hearing of the Contravention Application, with a notation that consideration would be given to proposals for make-up time and costs at the next hearing date, should those matters remain in dispute.
As I understand, the week following that directions hearing time between the father and the child pursuant to the primary orders re-commenced. However, I was made aware at the final hearing that regrettably there was again a disruption of the father’s time with the child over the Term 3 2022 school holiday period.
The matter was listed as a one day final hearing before me on 20 September 2022. At the outset of the hearing the mother through her counsel pleaded guilty to all 18 counts of breaching the primary orders without reasonable excuse.
Whilst the mother formally pleaded guilty to all 18 contraventions, it appears that some of the counts relate to the same incident and therefore should not have been considered as separate breaches of the primary orders. For example, both Count 15 and Count 18 refer to the mother withholding the child from the father’s care on 8 April 2022. One count is pleaded as being a breach of Order 4 of the final order relating to spend-time arrangements during the school term, and the other count pleaded as being a breach of Order 6 of the final order relating to spend-time arrangements during the school holiday period. Further, on occasions where the mother did not facilitate the child entering the father’s care, the father pleaded a separate breach for the subsequent days during the spend time period the child was not made available.
It is my view that there is little utility in proceeding with multiple charges for the same incident, and duplicate counts – or counts relating to the same spend time period – should have been struck out. Unhelpfully, the mother’s counsel did not address me on this point at the final hearing.
When carefully considered, and if properly pleaded, there would have been eight contraventions in relation to the spend time periods. In chronological order, pursuant to the pleaded contraventions, the time the child did not spend with the father is as follows:
a)Count 17; for time during the second half of the 2020/2021 long summer holidays, being 7 January to 19 January 2021 (12 nights);
b)Counts 1 and 2; from after school Thursday 24 February 2022, to 9.00am Saturday 26 February 2022 (two nights);
c)Counts 3 and 4; from after school Wednesday 2 March 2022, to the commencement of school Friday 4 March 2022 (two nights);
d)Counts 5, 6, 7 and 8; from after school Thursday 10 March 2022, to the commencement of school Monday 14 March 2022 (four nights);
e)Counts 9, 10, 11 and 12; from after school Thursday 24 March 2022, to the commencement of school Monday 28 March 2022 (four nights);
f)Count 13; from after school Thursday 31 March 2022 (one night);
g)Count 14; from after school Thursday 7 April 2022 to school the following day (one night); and
h)Counts 15 and 18; for the first half of the Term 1 school holidays commencing 8 April 2022, (nine nights).
That amounts to 21 nights during school holidays and 13 nights during school terms. Of course, it also appears to be common ground that time also did not resume until July 2022, but those additional missed times do not form part of the Contravention Application before me.
Count 16 pleads the mother’s failure to complete a Parenting After Separation course in accordance with Order 19 of the primary order.
I note that according to the father’s affidavit material, the mother’s explanations to him as to why she did not make the child available included allegations that the child had suffered a complete breakdown, that the child did not feel safe with the father, that the child had threatened to kill himself if required to spend time with the father, that medical professionals and the police supported the mother’s position, that the child hates the father, that the child is in therapy, that the father has abused the child, that the child was strongly physically resisting spending time with the father, that the child was unwell, that he may have COVID-19, that the child has severe anxiety and behaviour issues, and that she did not believe it was in the child’s best interests to be “anywhere near” the father.
The mother did not file any material either by her, or by any medical of allied health professionals in support, in these proceedings.
To the parties’ credit, orders were made by consent at the hearing which provided that the father have time with the child to make-up for the disrupted Term 3 2022 school holiday period time. Those orders also stipulated that the mother enrol in a parenting course no later than 4 October 2022 in accordance with Order 19 of the primary order.
Matters that require determination
The matters that fell to be determined by me are as follows:
(a)whether the contraventions were “less” or “more” serious, and accordingly whether Subdivisions E or F of Division 13A of the Family Law Act 1975 (Cth) (“the Act”) apply;
(b)the penalty to be imposed for the contraventions, as instructed by the relevant subdivision;
(c)how the father’s makeup time with the child should be arranged;
(d)whether there should be any variation made to the primary order; and
(e)whether the mother should pay the father’s costs of and incidental to the Contravention Application. If so, whether that should be on a party-party or indemnity basis, and the quantum of such costs order, if any.
Consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Act
The court’s jurisdiction to deal with contraventions without reasonable excuse can be found in Subdivisions E and F of Division 13A of the Act. Where the contravention is deemed “less serious”, Subdivision E will apply, and Subdivision F will apply in the case of “more serious” contraventions.
Subsection 70NEA(2) of the Act provides that Subdivision E will apply where a court has not:
(a)previously made an order imposing a sanction for a contravention or taken action in respect of a contravention; or
(b)adjourned proceedings in respect of a contravention under paragraph 70NEB(1)(c) .
An adjournment pursuant to s 70NEB(1)(c) is an adjournment for the purposes of allowing a party to apply for further parenting orders that discharge, vary or suspends or revives some or all of an earlier parenting order.
Even where the court has previously taken one of the steps contained in s 70NEA(2) in earlier contravention proceedings, s 70NEA(3)(b) stipulates that Subdivision E may still apply where the court considers it more appropriate for the contravention to be dealt with under Subdivision E.
No orders have been previously made imposing a sanction for a contravention, or adjourning proceedings pursuant to s 70NEB(1)(c) in this particular matter.
Pursuant to s 70NFA(2)(b), if the court is satisfied that the contravening party “has behaved in a way that showed a serious disregard of his or her obligations under the primary order”, then Subdivision F will apply.
Section 70NFA(4) provides that Subdivision F does not apply if the court is satisfied that it is more appropriate for the contravention to be dealt with under Subdivision E.
Whilst the meaning of “serious disregard” is not defined in the Act, the Full Court in Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655 (“Elspeth & Peter”) at [61] said:
The theme that emerges from an examination of several decisions… is that “serious disregard” tends to be found in cases of deliberate, pre-meditated non-compliance with orders, and continued and protracted breach.
Their Honours continued at [66]:
What seems to be a common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on the first breach does not appear to be sufficient to attract the more stringent sanctions set out under Subdivision F.
Helpfully, in the matter of Hugh & Sawer [2010] FamCA 290, Bennett J further summarised the Full Court’s interpretation of the meaning of “serious disregard” in Elspeth & Peter. At [15] her Honour noted:
The Full Court, comprising Faulks DCJ, Kay and Penny JJ reviewed earlier decisions and certain explanatory memoranda from which I discern the following principles arise:
(a)what amounts to a serious disregard will depend on the circumstances of the case and the terms of the order;
(b)serious disregard is a description of a degree of intent that is something less than the intent required for a contumacious breach, but something more than the intent present in a finding of a contravention;
(c)serious disregard has to be seen as a question of proportion and a question of degree, and which I take to require some examination of whether it was premeditated, impromptu or minor in its nature;
(d)serious disregard may involve no intention on the part of the respondent to support the primary order and/or an intention to circumvent the provisions of the primary order.
As provided by s 70NAF(1) of the Act, I must be satisfied on the “balance of probabilities” when determining matters under Division 13A. However, where a more serious sanction, such as imprisonment, is to be imposed, s 70NAF(3) of the Act requires that the standard of proof to be applied is “beyond reasonable doubt”.
It was the father’s submission at the final hearing that the mother’s breach of the primary order should be assessed as a “more serious contravention” under the Act. Through senior counsel the father said that the mother simply ignored the primary order for five months, which amounted to a “flagrant disregard”. Further, it was asserted in the father’s written submissions that the contraventions were a result of “the Mother’s deliberate and calculated failure to facilitate time”. It was the father’s position that the mother had not produced evidence to show any insight into her problematic behaviour. Nor did she adduce evidence that she did not intend to breach the primary order again, or evidence that demonstrated she places any importance on the child’s relationship with the father. Whilst the mother originally asserted she had a reasonable excuse, she abandoned that position at the contravention hearing and made no real attempt at all to explain her contraventions of the orders. Senior counsel for the father asserted accordingly that the mother’s actions and the penalties that flow from those actions should be assessed in the more serious category.
The mother’s counsel did not address me specifically on whether this contravention should be assessed as being “less” or “more serious” under the legislation. However, it was submitted that whilst there were repeated contraventions, they mostly only occurred “in one block” and not over a protracted period of time. Whilst the mother’s counsel accepted that the numerous contraventions were made without reasonable excuse, he asserted that the contraventions were made in the context of the mother’s expressed concerns about the child’s safety and welfare. It was also submitted that the mother had communicated with the father about why the time had not occurred, and that this was “not a case where she has been totally outside communication”.
As was conceded by counsel for the mother, I cannot put much weight on the assertion that the mother withheld the child from the father’s care in circumstances where she had a genuine concern about the child’s health. She herself had not put her concerns into evidence, and there was also no evidence adduced by any medical or other professional to support the submission. It is also difficult to discern how the mother’s ‘concerns’ about the child, resulting in the suspension of time with the father, can be given much consideration where time has resumed since the parties came before me for directions in mid-July and there is no evidence to show there has been a change in the child’s health or safety conditions. However, this does not mean that the mother’s conduct necessarily amounts to a “serious disregard” of the orders.
Aside from a breach of spend-time orders in January 2021, and the mother’s failure to complete the Parenting After Separation course within 21 day period stipulated in the primary order, the remainder of the contraventions occurred over a period of less than two months. I do not consider that to be a protracted period of time. Moreover, I do not infer that the mother’s withholding of the child involved a degree of intent which amounts to a deliberate or pre-meditated breach of the orders, although it is clear that the mother’s role in the breaches did go beyond being ‘merely passive’. I also note that for the most part, and save for the period between March and July of this year, time has, generally, occurred in accordance with the primary order.
Accordingly, in my view the mother’s conduct falls just short of meeting the statutory threshold of a “serious disregard”, and therefore should be considered under the “less serious” Subdivision E category of the Act.
Just because I have decided not to proceed under Subdivision F of the Act in this matter, does not mean that I determine the mother’s conduct as being inconsequential, or that the contraventions are only minor. As I have now made a finding that the mother has contravened court orders, any subsequent proven contraventions may well be dealt with under Subdivision F, and therefore could attract the more serious penalties available under that Subdivision.
Penalties to be imposed
As discussed in Keehan & Keehan [2019] FamCAFC 250, the purpose of Division 13A of the Act is coercive, and not punitive. Therefore, the legislation intends to focus on enforcing compliance with orders, rather than to punish non-compliance.
Section 70NEB of the Act sets out the powers the court has in relation to contraventions under Subdivision E. That includes requiring the contravenor to enter into a bond, as was sought on behalf of the father. Senior counsel for the father said to ensure the mother’s behaviour was moderated, to provide a deterrent to the mother further contravening orders and to guarantee that she comply with orders moving forward, the “full gamut of remedies” available to the court should be applied to the mother.
The father sought that the mother enter into a bond of $10,000 over two years. That is the maximum time period permitted under the legislation, pursuant to s 70NEC(2) of the Act. Senior counsel for the father submitted that the proposed bond payment was a “modest amount”, but that it should be in place for the maximum time period allowed to appropriately ensure future compliance with the orders.
The mother did not offer to enter into a bond, either with or without surety or security. Counsel for the mother said he was instructed that she was of limited financial capacity and did not agree to a bond payment. Counsel for the mother otherwise made no submissions as to what, if any, would be an appropriate sanction.
As discussed earlier in these reasons, I am not satisfied the mother’s contraventions meets the threshold of “serious disregard” pursuant to s 70NFA(2)(b) of the Act. However, that does not mean that the mother’s contraventions were not serious. They are.
In the circumstances I am satisfied that it is appropriate to require the mother to enter into a bond for a period of 12 months to require her to be of good behaviour and comply with all current and future parenting orders made by the Court. Whilst the mother did contravene the orders on a number of occasions, time has resumed in accordance with the primary order. I am not satisfied that a surety or security ought be imposed in the absence of any evidence regarding the mother’s financial circumstances.
As section 70NECA of the Act provides, should the mother not comply with the bond, the court may impose a fine or any other serious consequences which the court has the power to impose under Division 13A the Act. I am satisfied that the potential of facing those penalties, if the bond is breached, is most likely to ensure the mother’s compliance with the orders of the Court in the future. The mother must understand the importance of her entering into and complying with the bond, and the significant consequences that may flow to her if she does not do so.
Therefore, I will make an order under s70NEB(1)(d) of the Act requiring the Mother to enter into a bond without surety or security, in accordance with s70NEC of the Act. The bond is to be for a period of 12 months.
Make-up time arrangements/variation of the primary orders
Having made the finding that the primary order was contravened, and that resulted in the child not spending time with the father, as set out in s 70NEB(4) of the Act, I must consider making an order to compensate for the time missed as a result of the contravention. Makeup time can only be ordered if it is in the child’s best interests to do so. There is no requirement or presumption that time be made up for each and every night missed.
Pursuant to s 70NBA of the Act, I do also have the discretion to vary a primary order by virtue of the filing of the Contravention Application. However, as observed in Spencer & Verity [2012] FamCAFC 210, any variation would ordinarily be of a minor nature.
As indicated, the time missed as a result of the contraventions that have been found to have been proven, amounts to 21 nights with the father during school holidays and 13 nights during school terms. These are significant amounts of time that the child has been deprived of spending in his father’s home.
It was the father’s position that the appropriate way to compensate for missed time was to essentially vary the primary orders, for the next year, to provide that during school terms, time commence on a Tuesday rather than a Wednesday in week two. That is, adding an additional night per fortnight, during school term, making the arrangement one of equal time for a period of 12 months.
In support of that position, it was put that the child has missed a significant amount of school, largely as the mother either withheld the child from school on the days he was to be collected by the father, or removed him early on those days. That assertion was substantially corroborated by the child’s absentee record from the school annexed to the father’s material. Accordingly, the father said it was in the child’s best interests that all make-up time should fall during school terms, rather than on holidays. This would enable the father to arrange for the child to attend school on time, and be more involved with his education. However, I note that the parties’ relationship is quite conflictual. I have little evidence that would suggest a shared care arrangement for such a protracted period of time would be workable, or in the child’s best interests.
I understood the mother did not agree to mid-week time being extended. From the bar table counsel for the mother advised he was instructed the child’s absences from school were explained by him being unwell. However, no medical evidence was adduced to support that assertion. The mother proposed that the time missed be made up essentially by the child spending additional time with the father over the 2022/2023 long summer holidays, but no additional time mid-week during school terms.
Additionally, the father also sought that the primary order be varied in relation to the holiday periods – to provide for him to have the first half of each term and long summer school holiday period in each year. He said that would increase his confidence that time will occur, by collecting the child from school at the commencement of the holiday period, rather than being uncertain whether the child would be made available for handover mid-holiday. In relation to the long summer holidays each year, he said the first half of the holidays the child spent with him would be subject to a suitable arrangement being made for a division of time over Christmas, so the child could spend time with the mother as well for that special occasion.
It seems to me that it is in the child’s best interests for there to be some make up time during school terms, and some during the school holiday period. These periods of time missed are qualitatively different. Additional time during school terms for a period will provide the father with more time to engage with the child’s schooling, and ensure that he attends school regularly. Mid-week time enables parents to participate in their child’s day to day life, assist with homework and take them to and from extra curricula activities.
Makeup time during holidays will provide the child with the opportunity to spend extended, relaxed leisure time with the father, some of which he has missed out on as a result of the mother’s non-compliance with the primary orders. Accordingly, the orders I am making provide for both some additional mid-week and some additional holiday time.
In relation to varying the primary order, I accept that there is utility in the father having the first half of the school term holidays. It will mean the child can be collected by the father from school at the conclusion of each school term. There will then be no confusion or debate about whether or not time with the father will occur during the holidays, and accordingly, that seems to be a way of reducing the child’s likelihood of being exposed to his parents’ ongoing acrimony and dispute. That must be in his best interests, and accordingly, I make that variation.
In relation to the long summer holidays, I am not moved to vary the primary order that provides for time as is agreed and in default of agreement the father has the second half of the long summer holidays in 2020 and alternate years thereafter. Although it is not spelt out in the orders, it is implicit that the father would have the first half in 2023 and alternate years thereafter.
Whilst the term holiday dispute can be resolved by the father having the first half, I am reluctant to impose a substantial change on the parties for this longer holiday without proper evidence as to why the orders were drafted the way they were in March 2020, and what the implications of altering those orders will be. I note as well that the parent who has the first half has the benefit of a number of public holidays. The parent who has the second half has the benefit of their holiday period being uninterrupted by Christmas celebrations.
I do not know why the primary order does not make specific provision for the arrangements for Christmas. Neither counsel before me made any detailed submissions regarding proposals for how the child was to spend time with each parent for that celebration. The parties should ensure they make appropriate arrangements that enable the child to have the benefit of being able to celebrate those days with each of his parents.
Lastly, I note that withholding a child from attending school without a valid reason is not acceptable. Substantial school absences can have a significant impact on a child’s education. I anticipate that if the child continues to be removed early from school or not delivered to school on days he is due to be collected by the father, necessitating further proceedings, it may be the court is then persuaded to make more substantial changes to the parenting arrangements.
Costs
Section 70NEB(1)(f) of the Act relevantly provides that the court “may” make an order that the person who committed the contravention pay some or all of the costs of the other party.
That section needs to be read in conjunction with s 117(1) of the Act, which sets out the general rule that in proceedings brought pursuant to the Act each party bears their own costs. That general rule is subject to the provisions of s 117(2) of the Act, which provides that a court may make such order for costs as it considers just if “…the court is of opinion that there are circumstances that justify it in doing so…”.
Subsections 117(2A)(a)-(g) of the Act set out the matters the Court must consider in determining whether to exercise its discretion and make an order as to costs. No one factor must be present, and no particular factor has more or less weight than any other. The factors to which the court must have regard are as follows:
(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.
I have no independent evidence before me as to the financial positions of the parties. Neither party relied on a financial statement. From the bar table, counsel for the mother asserted his client had limited financial capacity. I was told by senior counsel that both parties are employed. I was also advised the mother has not filed a tax return for some years. According to a child support assessment accompanying written submissions from senior counsel, for the period from 1 October 2017 to 31 December 2018, the mother’s income was assessed to be $79,715 for the purposes of calculating child support. On that same child support assessment, and for the same period, the father’s taxable income was recorded at $349,822. I do not know whether the parties’ incomes have changed or remained substantially unchanged in the years since that assessment was made.
Of course, impecuniosity is no bar to a court making an order for costs. However, I note the mother is also the primary carer for the child, and accordingly, any costs order may adversely impact on him.
Neither party is in receipt of legal aid.
The mother’s conduct as a party in these proceedings is problematic. The matter came before the court on 24 June 2022 and 19 July 2022. On both those occasions, the mother asserted she had a reasonable excuse. The matter then had to be set down for a final hearing in September to determine, inter alia, whether her excuse was reasonable. It was only on that day that the court was advised the mother abandoned her position that she had a reasonable excuse. I note also it was only at the hearing on 19 July 2022 that the mother agreed that time would resume – after a cessation of time for five months.
Although the mother maintained previously she had a reasonable excuse – and earlier asserted the child was unwell, or psychologically at risk – the mother adduced no evidence from medical or allied health professionals to support her assertions. The position adopted by the mother meant that the matter required further court appearances, rather than being resolved at a preliminary stage.
The proceedings were necessitated by the mother’s failure to comply with the primary orders. She was advised in March 2022 that the Contravention Application would be filed. It was subsequently filed on 25 May 2022. As is evident, the child’s time with the father did not recommence until July 2022.
Effectively, the mother has been wholly unsuccessful. She has pleaded guilty and failed to adduce any evidence to support a reasonable excuse. However, I do note that whilst counsel for the mother did not raise issues with the contraventions as pleaded, there was some ‘doubling up’ in the application as outlined. Namely, there were eight ‘time spend’ periods under the primary orders that were not wholly complied with. Together with the failure by the mother to complete a parenting course, in my view, that would have amounted to a total of nine counts, rather than 18.
I understand the mother provided an offer for makeup time on 16 September 2022 – just four days before the hearing before me. I was not advised that she made an offer to contribute to costs. I was not provided with a copy of this offer, and do not know precisely what was offered. Accordingly, little weight can be given to this consideration.
In terms of additional matters to consider, I do note that the child’s time re-commenced in July 2022, with no conditions or requirements being imposed on the resumption of that time by the mother. At no time has the mother provided the father with any information from doctors or other professionals to support her unilateral determination to suspend time for what was ultimately five months. Through her counsel, the mother said she did enrol in a parenting course, but neither the father, nor the court has been provided with a certificate of completion, or indeed documentary evidence that she did – or as at the time of hearing had – in fact enrolled.
Senior counsel on behalf of the father asserted this was a matter in which indemnity costs was warranted. She said those costs amounted to $51,938 based on the Costs Agreement signed by the father. Alternatively, calculated at scale, she said those costs amounted to $26,339. Senior counsel for the father asserted that the court ought fix an amount now, rather than requiring the parties to undergo a process for the determination of the quantum.
In relation to indemnity costs, it will only be in exceptional circumstances – where there is some special or unusual feature – that the court will depart from the general rule that costs are calculated on a party-party basis (Kohan and Kohan [1992] FamCA 116; D & D (Costs) (No. 2) [2010] FamCAFC 64; Limousin & Limousin (Costs) [2007] FamCA 1178; Colgate-Palmolive Company & Cussons Pty Limited [1993] FCA 801 (“Colgate”)). That means I must be satisfied that there is something special or unusual in the matter that might justify the awarding of indemnity costs before determining to exercise my discretion to do so.
In Colgate, Shepherd J provided some examples of circumstances that might justify the awarding of indemnity costs, and usefully, Holden CJ in Munday & Bowman (1997) FLC 92-784, at 84,660, drew from his Honour’s decision those examples:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts…
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud…
(c)Evidence of particular misconduct causing loss of time to the court and to other parties…
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions…
(e) An imprudent refusal of an offer to compromise.
Senior counsel for the father said the mother should have known she never had any reasonable excuse in contravening the orders. She should have known accordingly she had no basis to oppose the Contravention Application. She said the mother has made baseless allegations, disobeyed court orders for tactical reasons and used the child as a weapon against the father. In the circumstances she submitted sufficient grounds exist for the making of an indemnity costs order.
Counsel for the mother opposed a costs order being made. He made no submissions regarding an appropriate quantum of costs, in the event the court determined to make an order as to costs. He only said that in considering the quantum, this was not necessarily a complicated matter.
In the exercise of what has been described as a wide discretion, and taking all of the factors into account, it does seem to me there are circumstances that justify departing from the usual rule that each meet their own costs, and instead require that the mother contribute to the father’s costs. In particular, these proceedings arose as a result of the mother’s non-compliance with the orders, the mother has conceded the breaches, and only abandoned her assertion that she had a reasonable excuse at the hearing before me. However, I am not satisfied that there is a basis upon which there should be an indemnity costs order made. Again, should the matter return to court for further contraventions, it may be at that time a different approach is adopted.
In terms of the quantum, I am able to fix an amount for costs. Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) makes that plain. This enables the parties to avoid the expense, delay and inconvenience involved in taxation. In making an order under r 12.17(1), as I am, I may consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c) the rates ordinarily payable to lawyers in comparable proceedings;
(d) whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e) the time properly spent on the proceeding, or in complying with pre-action procedures;
(f) whether expenses (paid or payable) are fair, reasonable and proportionate.
There were three appearances necessitated. Senior counsel appeared on behalf of the father at the directions hearing on 24 June 2022 and at the hearing before me. The father’s solicitor appeared at the directions hearing on 19 July 2022. In their schedule of costs, the solicitor claims $518 for that appearance if calculated on scale. I have also allowed for the drafting of application and affidavit in support.
I note that under the scale there is a substantial breadth in the allowable fee for senior counsel’s appearances. As best I can tell from the material provided to me, I understand senior counsel marked her fee at $9,900 for the hearing on 20 September 2022. That is in excess of the amount allowed on scale, of between $925.85 and $7,122.64. For the mention on 24 June 2022, she marked $2,970. Again that is in excess of the amount allowed on scale of between $1,494 to $2,564.
The matter is not overly complex or difficult. I note the father’s solicitors prepared and relied on a detailed affidavit – which apparently took considerable time to draft, and re-draft – together with his Contravention Application (that I have already observed included some overlapping charges).
Taking all these matters into account, and in the exercise of my very broad discretion, I have determined the appropriate costs order to be made against the mother is the sum of $12,000. Although no-one addressed me as to time frame, in light of what may be the mother’s relatively modest financial circumstances, and given that she will continue to be primarily responsible for the care of the child at least once time has been made up, it is appropriate she be given a protracted period to pay those costs. Accordingly, I will make an order that the mother will be required to pay the father’s costs assessed in the sum of $12,000 within a twelve month period.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 18 November 2022
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