SANDS & MOERS
[2013] FMCAfam 28
•23 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SANDS & MOERS | [2013] FMCAfam 28 |
| FAMILY LAW – Costs – application for costs by father following withdrawal of contravention of children’s orders proceedings by mother – parties have poor parenting relationship with one another – previous contested proceedings concerning living arrangements of child concerned – mother alleged father failed to provide child to spend time with her – father asserted failure to deliver child justified by mother’s breach of orders requiring her to supply him with her address details – at first mention date corrective orders made by consent requiring mother to supply address details to father – application withdrawn on morning allocated for contested hearing respondent criticised for failing to support children’s relationship with father – father put to unnecessary expense of potentially having to defended proceedings – wholly unsuccessful – matters to be considered – financial circumstances and financial circumstances of the parties. |
| Family Law Act 1975, ss.70NAF, 70NCB, 70NCD, 117 Federal Magistrates Act, ss.3 |
| Moers & Sands [2007] FMCAfam 1067 In the marriage of I and I (No.2) 22 Fam LR 557 Hale & Hale [2012] FMCAfam 684 |
| Applicant: | MS SANDS |
| Respondent: | MR MOERS |
| File Number: | ADC 2864 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 29 November 2012 |
| Date of Last Submission: | 29 November 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 23 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms Ross |
| Solicitors for the Respondent: | Clelands |
ORDERS
The mother pay the father’s costs of the contravention application filed on 30 March 2012 fixed in the sum of eight thousand and eighty two dollars fifty cents ($8,082.50).
All other applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sands & Moers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2864 of 2007
| MS SANDS |
Applicant
And
| MR MOERS |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to an application for costs following the withdrawal of a contravention application on the day allocated for the final determination of that application.
Mr Moers “the father” and Ms Sands “the mother” are the parents of [X] born [in] 2002. They have been engaged in bitter and protracted litigation regarding arrangements for [X]’s care since 2007. As a result, the Court has published three previous reasons for judgment, which detail the parties’ complex and conflicted relationship with one another.[1]
[1] See Moers & Sands [2007] FMCAfam 1067, Moers & Sands [2009] FMCAfam 1354 and Moers & Sands [2011] FMCAfam 47
In January 2011, I determined that [X]’s best interests dictated that he should live predominately with his father. Prior to this date, [X] had lived mainly with his mother. At this stage, I had heard evidence from a family consultant, who had prepared a family report for the Court and staff members from [X]’s school. Their evidence was [X] would be educationally and emotionally at risk, if he remained living with his mother.
This outcome accorded with recommendations made by an Independent Children’s Lawyer, appointed by the Court, to safeguard [X]’s interests. It was intended to be an interim outcome, pending further evidence, particularly from the parties themselves. That further hearing was scheduled for June of 2011.
In support of the orders of January 2011, I said as follows:
“… it seem apparent that there must be a change in the arrangements for [X]’s care, with the intent of normalising his attendance at school and ensuring that he receives the necessary support required to remedy his fallen academic standards. The pressing need for this support mandates a change from [X] living predominately with his mother to an arrangement where he lives more with his father.
Like Mr P, I was impressed with the dedication and professionalism of Ms D. I accept that [S] School is a good school, which continues to have much to offer [X]. [X] has attended at [S] School since his reception year. As a result, the school authorities are familiar with his needs and circumstances. As such, it is Mr P’s opinion it would not be good for [X] to try another school.
For a variety of reasons, Ms Sands is not well disposed towards [S] School. A state of affairs reciprocated so far as Ms D and her staff are concerned for Ms Sands. No matter where the fault lies, it is clear to me that Ms Sands and [S] School’s are incapable of working constructively together to provide [X] with the support that he so urgently needs.
At this stage, I can see no viable alternative for [X], other than that he continues at [S] School, where it is hoped that he can receive counselling and remedial educational support. In my view, the evidence at this stage indicates that Mr Moers is better placed than Ms Sands to ensure that [X] does have a mental health plan and is provided with the emotional support that he needs to do better at school.
I appreciate that it is a significant thing to change long standing arrangements for a child in the middle of a final hearing, particularly given that I have not heard evidence from the parents concerned. However, I am satisfied that [X] is currently a child gravely in risk of education failure, which of itself has implications for his long term well being. As such, I am satisfied that serious remedial measures need to be taken to prevent this situation becoming more entrenched.
I am usually loathed to place parental responsibility, for a child, in the hands of one parent alone. However, at this juncture, it is apparent to me that the parties are unable to discuss issues to do with [X]’s educational and health needs in any fashion whatsoever, yet alone a constructive one. This state of affairs means that one parent must be conferred with the responsibility for making decisions about [X]’s education and health issues.
Given that I have determined that [X]’s best interests will be served if he lives more with one parent than another, at this stage, necessarily this parent must be Mr Moers, who is better placed, it seems to me, to work with [X]’s school and ensure he receives appropriate counselling and other psychological support.
In this regard, I will accede to the Independent Children’s Lawyer’s submissions that Mr Moers liaise with his general medical practitioner, so that [X] has a mental heath care plan and is able to obtain a referral for appropriate psychological counselling.
… the level of conflict between the parents in this case is extraordinary. I accept that it is having a detrimental effect on [X]. As such, it seems that the parties have to be quarantined from one another, particularly on school premises and at other activities in which [X] engages.
In addition, Ms D has been concerned about aspects of Ms Sands’ behaviour on the school premises, particularly her photographing of [X] and other parents and her threat to have a private investigator attend at the school to provide surveillance of [X]. As a consequence, I will make the orders proposed by the Independent Children’s Lawyer to deal with these issues.”
The further hearing scheduled for June of 2011 did not proceed. Rather the parties, including the Independent Children’s Lawyer, agreed upon a complex raft of orders, which confirmed that [X] should continue to live predominately with his father and that Mr Moers would retain parental responsibility for the child’s health, education and participation in sporting activities. Consent orders were also made which resulted in [X] spending time with his mother on alternate weekends, during the school year, and for block periods of time in school holidays.
When these orders were made, the mother was represented by her solicitor. The negotiations leading to the orders were protracted. The orders themselves are complex. They reflect the poor and mistrustful relationship between the parties and the fact that their personal interactions with one another have been categorised by extreme levels of hostility and confrontation.
Specific orders were made for [X] to be exchanged between the parties at the [omitted] Children’s Contact Handover Service or at the [omitted] Police Station, if the Contact Service was not available. The parties were also specifically ordered to keep the other advised, in writing, of any change of address and/or telephone contact details within fourteen days of any such change.
On 30 March 2012, the mother commenced the contravention proceedings, which give rise to the application for costs. She alleged that the father had contravened the orders of June 2011 on a number of occasions but between September 2011 and March 2012 by not making the child available to spend time with her. She also alleged that the father had failed to obtain a mental health plan, for [X], as he had been ordered to do.
In an affidavit, file in support of her contravention application, the mother deposed that she had changed her address but had not informed the father of her new address because of concerns relating to an incident which she said had occurred on 3 October 2011. It was also Ms Sands’ position that the police had advised her not to inform
Mr Moers of her new address, notwithstanding the strict conditions of the Court’s order of 29 June 2011.
The mother’s contravention application was listed, for its first directions hearing on 4 May 2012. On this occasion, the father’s position was that he had not facilitated the mother’s time with the child because he was concerned that he did not know where the child would be, during these periods. At the stage of the first mention of the contravention application, it was his position that the mother had previously capriciously disregarded Court orders and, as such, he was concerned to agree to the child being taken to a location unknown to him, particularly given this was in dereliction of the Court’s own order.
Against this background, on 4 May 2012, I made the following orders, with the consent of each of the parties, both of whom were represented by Counsel:
“The mother shall file and serve upon the respondent forthwith an affidavit providing the following information:
The mother’s current residential address; and
The mother’s current mobile telephone number.
Upon being served with the affidavit the father shall facilitate the mother’s time with the child [X] in accordance with the orders made by the Court on 29 June 2011.
Further consideration of the contravention application filed 30 March 2012 is adjourned to 15 August 2012 at 10:00am.”
On 10 May 2012, Ms Sands filed an affidavit in which she set out her current address and other contact details. There is no suggestion that the father failed to comply with his obligations as detailed in order 2 of the orders of 4 May 2012.
On 15 August 2012, when the contravention application returned to Court, the mother, through her Counsel Mrs Read withdrew the application and it was therefore dismissed. As a consequence, the father, through his solicitor, has made an application for costs.
These reasons for judgment are directed to resolving this application. The mother opposes a cost application being made against her.
The solicitors who represented the mother throughout the contravention proceedings withdrew prior to the date scheduled for the hearing of the father’s application for costs. Accordingly, Ms Sands represented herself at the cost application. She has not formally filed any answering affidavit material.
The father has been represented throughout by the same firm of solicitors. Mr Farmer, the father’s solicitor filed an affidavit in support of the application for costs on 27 November 2012. In this affidavit, it was indicated that the father sought the sum of $8,082.50 by way of costs. This sum included Counsel’s fees of $3,712.50.
The legal principles applicable
Section 117(1), abolishes, for the purposes of Family Law Act proceedings the general rule that in civil proceedings costs follow the event. Section 117(2) then provides the Court with a general discretion to make costs orders if it is of the opinion that there are circumstances that justify it in so doing. The Court may make such order for costs as it “considers just”.
Section 117(2)(A) sets out the matters that the Court shall have regard to in exercising this discretion. They include the following: the financial circumstances of the parties concerned; the receipt of legal aid by the parties; the conduct of the parties to the proceedings; whether the proceedings were necessitated by the failure of a party to comply with previous Court orders; whether one of the parties to the proceedings have been wholly unsuccessful in them; any offers to settle the proceedings; and any other relevant matter.
The Court has a wide discretion as to the calculation of costs. Pursuant to Rule 21.02(2) of the Federal Magistrates Court Rules:
“In making an order for costs in a proceeding the Court may:
(a) set the amount of costs; or
(b) set the method by which the costs be calculated; or
(c)refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of costs which may be before the proceedings is concluded.”
However, pursuant to Rule 21.10:
“Unless the Court otherwise orders a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1 and
(b) disbursements properly incurred.”
Pursuant to Rule 21.15 the Court may certify that it was reasonable to employ an advocate to appear for a party in a proceeding. Part of
Mr Moers’s application for costs includes a claim for Counsel’s fees. As previously indicated, these fees amount to $3,712.50.
In section 3(2) of the Federal Magistrates Act, the Commonwealth Legislature has set out the objects of the Federal Magistrates Court in the following terms:
to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and
to enable the Federal Magistrates Court to use streamlined procedures; and
to encourage the use of a range of appropriate dispute resolution processes.
No doubt, the intention of the Legislature in this regard was to reduce the cost of Court proceedings pursuant to Federal legislation and provide litigants with a cheap and cost effective means of accessing justice within the Federal jurisdictional sphere. Rule 21.10 creates a scale of costs by reference to the occurrence of fixed events. In my view, the creation of such a scale was designed to help achieve these objects.
The fixed event scale enables litigants to readily calculate the costs by references to the stages reached in proceedings. However, it is implicit in the applicable rules that the Court retains a discretion regarding both the quantum and calculation of any costs awarded in proceedings. The circumstances of the particular case concerned may render the application of the fixed scale of costs inequitable.
The remainder of the father’s costs have been calculated pursuant to the fixed event scale provided by Rule 21.10. They are as follows:
Lump sum:
$2,428.00
Daily attendance fee (full hearing):
$1,942.00
Total
$4,370.00
The discretion in respect of costs placed in the Court, pursuant to section 117, is a wide one, which must be exercised having regard to the matters set out in section 117(2A) so far as they are relevant. In the case of In the marriage of I and I (No.2)[2] the Full Court said as follows:
“Section 117 confers upon the Court a broad discretion in relation to costs. That discretion is one which the Court should not seek to fetter. As was pointed out by the High Court in Penfold v Penfold:[3]
It is an accurate description of s 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s 117(2). As subs (1) is expressed to be subject to subs (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs.”
It is now appropriate to consider whether there are any such justifying circumstances present in this case by reference to the specific criteria as set out in section 117(2A).
[2] In the marriage of I and I (No.2) 22 Fam LR 557 at 558
[3] Penfold v Penfold (1980) 5 Fam LR 517 at 582;
In an earlier decision in Hale & Hale[4], I discussed the issue of costs particularly in the context of contravention proceedings. I said as follows:
[4] See Hale & Hale [2012] FMCAfam 684
“The normal rule in civil proceedings is that costs follow the event. Essentially the unsuccessful party pays the costs of the party who has succeeded. This is not the position in family law proceedings. Rather, the starting point is that each party should bear his or her own costs.
The rationale for this rule is that the subject matter of family law proceedings is intensely private, dealing as it does with arrangements for the care of children and the division of property. Necessarily such issues precipitate strong emotions in the parties concerned. In addition, the law pertaining to such decisions is discretionary, based upon the Court’s assessment of very many factors.
Accordingly what will be the ultimate outcome of family law proceedings may be difficult to predict with certainty. Inevitably, in such circumstances, the parties concerned will each be able to present valid and understandable reasons as to why they have proceeded with an application to Court, including pressing on to judgement.
In children’s cases, these reasons invariably relate to the love and concern held in respect of the child or children concerned; in property cases, to the financial moment of the decision concerned, which may arise after many years of personal endeavour and effort to secure the property sought to be divided by Court order.
Essentially the parties concerned are each able to present valid proposals as to how a difficult and controversial situation should be resolved and the strong feelings inevitably created by the situation may stand in the way of easy compromise. Considerations such as this make it potentially unjust for there to be any rule that costs should routinely be awarded to a successful party.
However, notwithstanding these considerations, the Court remains entrusted with a discretion to award costs in appropriate circumstances, where it is just to do so. One area particularly germane to the exercise of this discretion concerns contravention proceedings, given the idiosyncratic nature of such proceedings.
Contravention proceedings arise in circumstances where the Court has previously made a determination of what is the appropriate outcome in the case concerned – in children’s proceedings, what is the outcome in the best interests of the child or children concerned; in property proceedings, what is the just and equitable outcome.
Accordingly the applicant in contravention proceedings necessarily asserts that the other party has wantonly defied or frustrated a properly considered outcome without reasonable excuse. As such the applicant concerned asserts he or she has been compelled to commence contravention proceedings to secure adherence to the order to which he or she is entitlement by virtue of the Court’s earlier determination.
If it is subsequently established that the contravention proceedings were justified because of non compliance with the Court’s order, it is the normal rule that the guilty party pays the costs of the wronged party because it was that party’s malfeasance which was the catalyst for the proceedings in the first place.
It is a significant thing for a party to assert that a Court’s order has been contumaciously defied. For that reason, it behoves the protagonist of contravention proceedings to make sure that he or she is on firm ground before inaugurating such proceedings, which have been characterised as quasi criminal in nature, as they involve allegations of a significant defiance of the Court’s authority, which may result in the imposition of penalties if established.
Given the gravamen of contravention proceedings, if it is subsequently established that there was no such justification for the proceedings, it usually follows that the party who has brought the unwarranted proceedings should pay the costs of the party wrongfully maligned. It being a not infrequent occurrence that contravention proceedings are brought maliciously or without proper forethought to bludgeon or intimidate a former partner.
However contravention proceedings are also at times the culmination of a competitive and dysfunctional post separation parenting relationship, to which the unsatisfactory conduct of both parents has contributed. Invariably such relationships are characterised by poor or miscommunication and high levels of suspicion and mistrust.
In such circumstances, it may be difficult to easily attribute both fault and excuse, when both parties are responsible for the unsatisfactory state of affairs between them and neither has exhibited any great capacity for empathy for or respect of the other.” [5]
[5] Ibid at paragraph 26 - 38
In my view, these comments are apposite to the circumstances of the present case. The parties’ post separation relationship has been marked by an extreme level of dysfunction, with each party making consistent assertions that the other has acted inappropriately or has disregarded Court orders.
In these circumstances, in my view, it behoves a party to ensure that he or she is on very secure ground indeed before embarking on a contravention application. In my view, it is incumbent upon the Court to do whatever is open to it to emphasise to the parties that litigation, involving children, is a last rather than a first resort.
Division 13A of Part VII of the Family Law Act provides the legislative framework in which proceedings relating to the contravention of children’s orders are to be dealt with. It provides specific provisions [ss.70NCB & 70NDC] which grants the Court a discretion to make a costs order, against a person who has bought contravention proceedings and the Court is not satisfied that there has been such a breach.
In this particular case, the Court did not embark upon a fact finding exercise to the perquisite standard of proof, on the balance of probabilities [section 70NAF] as to whether or not a breach of orders had occurred or whether the father had a reasonable excuse for contravening these orders, as the mother withdrew her application.
In these circumstances, sections 70NCB & 70NDC do not appear to be specifically relevant. However, I am satisfied that I have authority to deal with the father’s application pursuant to the provisions of section 117 of the act.
The father’s position
It is the father’s position that the mother could have withdrawn her contravention application considerably earlier, following the first mention of the matter, when his concerns regarding the mother’s failure to provide him with her address were raised and subsequently resolved through a process of negotiation, which was ratified by Court order.
It is implicit in the father’s position that he believes that he has a reasonable excuse for withholding [X] from his mother because of her failure to comply with the provision of the June orders dealing with the requirement of the parties to keep each other informed about their residential details. As the hearing did not proceed, I am not in a position to resolve whether the excuse was or was not objectively reasonable within the legislative framework provided by section 70NAE of the act.
It is also Mr Moers’ assertion that Ms Sands’ contravention application has been wholly unsuccessful, as she withdrew it. Nonetheless, he was put to considerable expense in defence of the proceedings. Expense, which he can ill afford.
The father is a [omitted] by occupation, earning a salary of $80,000.00 per annum. His largest recurrent weekly expense is his rent of $200.00. I was told by his counsel that his legal expenses to date amount to approximately $100,000.00. Given the complexity and prolonged nature of the proceedings, this figure does not surprise me.
It is also the father’s position that the mother has behaved capriciously throughout the litigation. The current contravention application being the most recent example of her confrontational and unreasonable behaviour. In his submission, this is another reason why the Court should exercise its cost discretion against the mother.
The mother’s position
As previously indicated, Ms Sands did not file any affidavit material in response to the cost application nor was she represented by a legal practitioner. In these circumstances, I allowed her to give some details as to her financial circumstances.
I accept that the mother is not in a strong financial position. She to has incurred substantial legal costs, over a number of years, in respect of these proceedings. She believes that she has spent in excess of $100,000.00 in the past.
Ms Sands has been employed by [omitted] on an income of $35,000.00 per annum. Her rent is $270.00 per week. In all these circumstances, I accept that Ms Sands is in a parlous position financially.
Ms Sands submits that she withdrew her contravention application under duress. She asserted that, in the past, Mr Moers had hacked into her email account to get details about her. In addition, she was threatened that, if the contravention proceedings proceeded, evidence would be led that [X] had been exposed to the sniffing of white powder whilst in his mother’s care.
These matters were not put to Mr Moers and were not on oath. In addition, I note that the mother was represented by a barrister, Mrs Read, when the election to withdraw the contravention proceedings was exercised. In these circumstances, I can give no credence to these assertions.
In addition, in the past, it has been the mother’s consistent position that the father is a coercive and controlling person. No such findings have been made by me, in this regard, during the various proceedings, which have occupied the Court since 2007.
Conclusions
I accept that neither party can easily afford to be a party in these proceedings. From both the perspective of Mr Moers and that of
Ms Sands, the sum of $8,000.00 or thereabouts represents a significant impost.
The manner in which the proceedings were managed, in my view, gave Ms Sands an ample opportunity to consider her position and determine what utility would be served by proceeding further with her contravention application.
The impasse regarding her address was resolved and her time with [X] was resumed. To my mind, it is significant that Ms Sands withdrew her application on the morning of the case, after Mr Moers was compelled to retain counsel in anticipation of the contravention application proceeding to hearing.
Mr Moers acknowledges that he did not provide [X] to spend time with his mother on several occasions, which was prima facie in contravention of the Court’s order. However, it is his position that this omission was objectively excused because of the mother’s failure to provide him with her address details.
As previously indicated, I was not called upon to resolve this factual issue. However, it cannot be said that the mother’s contravention was entirely lacking in justification. In addition, my past experience of the parties indicates that they have an extreme level of difficulty in resolving issues to do with [X] without the assistance of third parties.
The mother’s position is that Mr Moers has misused his access to her personal details in the past. On the other hand, it is the father’s position that Ms Sands is almost impossible to deal with, a state of affairs which the Court has recognised by its decision to change arrangements for [X]’s care in January 2011.
In my view, it is significant that the mother withdrew her contravention application of her own volition, whilst she was legally represented. In this sense, the application can be said to have been wholly unsuccessful. It did not proceed to hearing. Her allegations were not substantiated.
Having considered the various matters arising under section 117(2A), I have come to the conclusion that it would be just if an order for costs is made in favour of Mr Moers. No adverse finding of fact has been made against him, in the contravention proceedings, which were withdrawn at a late stage. He was put to considerable expense in defending those proceedings.
Ms Sands was given an opportunity to consider her position following the corrective order made by the Court in May of 2012. As subsequent matters transpired, it would have been prudent of her to have accepted the father’s assertion that he was concerned about not knowing where [X] would be, whilst in his mother’s care. A concern which subsequent events demonstrated was relatively easily assauged.
At the end of the day, in my view, the Court must take steps to deter parents from embarking on unmeritorious contravention proceedings or persisting with contravention proceedings, which will serve no useful purpose. Litigation between parents has the serious potential to be emotionally detrimental for the child of the parents concerned. The earlier proceedings demonstrated to me that [X] is an emotionally vulnerable child because of the extreme level of conflict between his parents, which regrettably seems to be endemic.
It was only at the very last minute that Ms Sands stepped back from her application. In so doing, she exposed the father to the maximum amount of legal costs. Her approach to the proceedings cannot be described as conciliatorily.
Ms Sands failed to pull back from her contravention application, when it was strategic for her to do so. In all this circumstances, I have come to the conclusion that it is just and proper that she pay the costs sought by the father in the sum of $8,082.50.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 23 January 2013
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