Sawer and Hugh

[2010] FamCA 362

FAMILY COURT OF AUSTRALIA

SAWER & HUGH [2010] FamCA 362

FAMILY LAW – STAY – Application for a stay of orders in relation to costs, payment of a fine and interim parenting orders – other misconceived applications – costs of other parties including independent children’s lawyer where party unsuccessful in application

Family Law Act 1975 (Cth) ss 70NBA(1)(b)(ii), 117
Family Law Rules 2004 (Cth) rr 9.05, 22.11(2), Schedule 3

APPLICANT: Mr Sawer

RESPONDENT: Ms Hugh

INDEPENDENT CHILDREN’S LAWYER: David Walker & Co

FILE NUMBER: LNC 511 of 2008

DATE DELIVERED: 11 May 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne and Launceston via videolink

JUDGMENT OF: Bennett J

HEARING DATE: 22 and 23 April 2010

REPRESENTATION

FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Lewis

SOLICITOR FOR THE RESPONDENT: Temple-Smith Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MR D Walker

Orders

IT IS ORDERED:

1. That I dispense with the operation of Rule 9.05 of the Family Law Rules 2004 with the effect that the respondent mother and the independent children's lawyer can seek a dismissal of the father's application in a case filed 16 April 2010  with costs notwithstanding that neither has filed a response to the father's application in a case nor any evidence.

2. That until further order the enforcement of paragraph 1 of the Order made on 17 March 2010 (as to costs) be stayed pending determination of the father's appeal in proceeding SOA24 of 2010.

3. That until further order the enforcement of paragraph 2 of the Order made on 17 March 2010 (being a fine) be stayed pending determination of the father's appeal in proceeding SOA24 of 2010.

4. That the father pay a contribution towards the mother's costs of an incidental to this application fixed in the sum of $1,400 and make such payment by 4.00 p.m. on 12 July 2010.

5. That the father pay a contribution towards the costs of the independent children’s lawyer of and incidental to this application fixed in the sum of $1,200 and make such payment by 4.00 p.m. on 12 July 2010.

6. That otherwise the application of the husband filed 16 April 2010 be and is hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sawer & Hugh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: LNC 511  of 2008

MR SAWER

Applicant

And

MS HUGH

Respondent

AND

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Background

1. At a hearing which proceeded before me in Hobart on 15, 16 and 17 March 2010 I found that the father had without reasonable excuse contravened a parenting order in relation to E and H both born in January 1999 and J born in June 1996.  The contraventions were constituted by eleven separate counts.  On 17 March 2010 I made consequential orders requiring the father to pay the mother’s costs of the contravention application fixed in the sum of $6,276 and the he pay a cumulative fine of $3,000 by 17 May 2010.  On the mother’s application, I also varied parenting orders including injunctions for the personal protection of the mother and the twin girls, E and H, to preclude the father and his partner, Ms B, from attending at the twins’ sporting fixtures or at school events which are not conducted on school grounds.  The order was a holding order to cover the period between those sittings and the next hearing in mid-May 2010.  I am yet to hear full submissions by any party on the continued operation of the injunctions.

2. By notice of appeal filed 14 April 2010 the father appealed the consequential orders, that is, the costs, fine and more extensive injunctions.

3. On 16 April 2010 the father filed an application in a case seeking three orders, namely:-

   i)That the orders of Justice Bennett in the matter of [Sawer & Hugh] file number (P) LCN511/2008 made on 17 March 2010 be stayed pending the appeal filed on 14 April 2010.

   ii)That all orders made by Justice Bennett previous (sic) be stayed or dismissed giving the effect that orders in place prior to Justice Bennett’s intervention become valid again.

   iii)That [the mother] and Emily Turner immediately remove the caveat placed on the former matrimonial property known as [T property] and bear any and all costs.

4. The father’s application was listed as an application for a stay of orders pending appeal and, accordingly, allocated the earliest possible date on which I was available.  This hearing was conducted over two days by video link between the Launceston Registry and the Melbourne Registry.  These are the reasons for my determination of the father’s application in case.

5. The father is self represented and appears on his own behalf.  I granted permission for his father, who is the paternal grandfather of the children, to sit by the father at the bar table to offer support.  The father relied upon his affidavit sworn on 16 April 2010, the affidavit of his partner Ms B sworn 15 April 2010[1] and the affidavit of Ms G sworn 22 April 2010.  Additionally, he referred to the child and parent issues assessment of Ms N dated November 2008 and a family report also prepared by Ms N concerning the children, but prepared for proceedings between the paternal grandparents and the mother, dated 19 February 2010.  The father also relied upon a memorandum dated 28 September 2009 from the Department of Health and Human Services.  The father relied upon various exhibits.

   [1] Annexure “F” to father’s affidavit sworn 16 April 2010.

6. Mr Lewis, of counsel, appeared for the mother.

7. Mr Walker, solicitor, appeared as the independent children’s lawyer.

8. Neither the mother nor the independent children’s lawyer filed a response, affidavit material nor sought to adduce evidence.  The father objected to the absence of responding documentation.  He contended that, absent responding documentation, the mother and independent children’s lawyer had no right to be heard.

9. Rule 9.05 of the Family Law Rules 2004 (Cth) (‘FLR’) requires that a party seeking to oppose an application in a case must file a response. However, I am satisfied that the father is not disadvantaged by the other parties’ lack of documentation in the particular circumstances of this case. As the other parties do not adduce evidence and seek only a dismissal of the father’s application and costs, there is no prejudice to the father in the matter proceeding. Indeed it is consistent with the principle of proportionality and the purpose of the rules of court to “ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.”[2] I therefore dispense with the operation of Rule 9.05 FLR 2004.

[2] Rule 1.04 FLR 2004

Stay of orders under appeal

1. The first order sought by the father was that “the orders of Justice Bennett in the matter of [Sawer & Hugh] file number (P) LCN511/2008 made on 17 March 2010 be stayed pending the appeal filed on 14 April 2010.”

2. Ordinarily a successful party is entitled to the judgment but circumstances may exist which justify a stay until the appeal is heard or other relevant event occurs.  The power of the court to stay an order is part of the court's inherent power, namely to stay on a temporary basis orders which it has made.

3. Rule 22.11(2) provides that where, as here, an appeal has been commenced, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.

4. There is a distinction between an order which stays the "enforcement" of an order and one which stays the "operation" of an order.  In the former case the order remains valid but cannot be executed until further order or other relevant event, whereas in the latter case the order does not come into effect until further order or other relevant event.[3]

   [3] Millar (1983) FLC 91-326; (1983) 9 FamLR 5.

5. The Order under appeal dealt with:-

   a)the consequences of the father’s non-compliance with the primary order which imposed costs and a fine, so the order is financial in nature; and

   b)parenting matters arising on the mother’s application under s 70NBA(1)(b)(ii).

6. I will deal first with the stay of the parts of the order which are financial in nature.

7. I have already found that these proceedings place a financial burden on all parties.  That is, none is so comfortably well-off that he or she can pay for their own or someone else’s legal representation as a matter of ease.  That includes the independent children’s lawyer who is in receipt of assistance by way of legal aid.  The father is required to pay a total of $9,276 of which $6,276 relates to the costs of the mother and the independent children’s lawyer.

8. The father admitted the eleven counts for which he has been found to have contravened the primary order.  Accordingly, his appeal can only relate to the consequential orders as opposed to the finding of contravention without reasonable excuse.  If the father is wholly successful on his appeal against the financial aspects of the order, the fine as well as the costs will be set aside.

9. For so long as the costs order is not paid, the mother (who is not in receipt of legal aid) is deprived of the benefit of the order with which she could pay for her own legal representation.  The issue is whether the circumstances of the case warrant a postponement of benefits to which the mother is entitled.  The relief is discretionary.  It is a question of where the balance of convenience lies.

10. I take into account the father’s position.  He says that any costs order will have to be paid from his partner’s income.  That is Ms B who is a solicitor. Even a payment from that source could conceivably result in some hardship to the father because there will be less support available for their household.  The father says that he has not been gainfully employed for some years.  The task is for me to balance the hardship to the father in the event that he pays the money and is then successful on appeal and entitled to a refund against the lawyers and counsel for the mother not receiving the contribution to the mother’s costs which I have ordered.

11. In relation to other relevant considerations, the father has brought his stay application promptly.

12. I should consider the merits of the appeal.  He deposes to the following as the grounds of his appeal:-

    •         The penalty was manifestly excessive;

    •         Justice Bennett failed to take all relevant evidence into account;

    •         Justice Bennett is incompetent;

    •         Justice Bennett is biased;

    •Justice Bennett’s decision does not (sic) put to children as paramount.

13. I have difficulty making a realistic assessment of the father’s prospects of success on appeal.  In these two days, the father has not been well organised, his focus slips and he is distracted.  He is angry.  He cries.  He throws papers and then recovers his composure and makes thoughtful submissions.  Unfortunately, he would not abide my request to make submissions on certain relevant matters, such as the genuineness of his appeal.  He is disrespectful of the lawyers at the bar table.

14. Having regard to his demeanour in court over the last two days, it is probably not fair to assess his prospects of success solely on the grounds to which he deposed just a week ago.  Frequently, grounds of appeal are added or changed once or twice before the hearing of the appeal and sometimes a previously unremarked matter attracts the attention of the Court and is developed in the running of the appeal with the consequence that it is manifestly obvious that a decision at first instance cannot stand.  I cannot say that the appeal has no prospect of success.

15. I have regard to the genuineness of the father’s appeal.  The father is an unusual litigant whose behaviour in court, or his refusal to come to court, have occasionally been disruptive.  That said, he appears to feel aggrieved and to wish to pursue his remedies. On reflection, the father’s outbursts and unwillingness to come to court, such as leaving on 15 March and not attending on 16 March 2010, are generally in the context of him being confronted with his own actions and the consequences of those actions for the children.  Introspection is not the father’s strong suit and, when required to reflect on his own conduct, he refers to being very uncomfortable and of having a “phobia” which prevents him from coming to court.  He does not, however, appear to labour under the same degree of difficulty when he is criticising others such as the mother, her lawyers, the independent children’s lawyer or the court.  He appears to be comfortable in that role.  As an appeal is the process of examining reasons and the judicial process, as opposed to a scrutiny of the father’s behaviour, I have some confidence that he will pursue the appeal.  If he does not, the appeal will be dismissed or the parties can return to me on the basis of that circumstance.

16. In the circumstances, I am satisfied that the father should not have to pay the fine or the costs until after determination of the appeal.  To guard against the possibility that the appeal may not be prosecuted with diligence, I will make my order subject to any further order of the court.  If there is undue delay on the part of the father in the appeal, the parties can return the matter to me and I will examine the circumstances afresh.

17. Counsel for the mother did not oppose an order whereby the enforcement of the orders relating to payment of money, being costs and the fine, is stayed pending the determination of the appeal.  The independent children’s lawyer did not seek to be heard in opposition to that course.  The father did not further pursue his stay application in respect of the orders requiring payment of money.  Accordingly, I will order that enforcement of the relevant orders be stayed.  The effect is that, subject to further order of the court, the father does not have to pay the monies until the determination of the appeal but interest will accrue in respect of his liability to pay costs, as from the date of the order, and the fine, as from 17 May 2010.

18. The balance of the stay application concerned the parenting orders which I pronounced as holding orders until I could recommence the case before myself, in Hobart, in May 2010.  The orders were as follows:-

    4.      That all previous parenting orders be and are hereby discharged.

    5.      That the mother have sole parental responsibility for the children [E] born […] January 1999 and [H] born […] January 1999 (“the children”).

    6.      That the children live with the mother.

    7.      That the father be prohibited by himself his servants and agents from communicating with the children or by placing any call or message to a mobile telephone service in the possession of the children or either of them.

    8. That pursuant to Section 68B of the Family Law Act 1975 the father and/or [Ms B] be and are hereby prohibited from:-

    a.contacting the mother save as may be provided in any subsequent parenting order of this Court;

    b.contacting the children [E] born […] January 1999 and [H] born […] January 1999 or either of them save as may be provided in any subsequent parenting order of this Court;

    c.approaching at or within 200 metres of the mother’s residence at [R], Tasmania save as may be provided in any subsequent parenting order of this Court or with the mother’s prior written consent;

    d.approaching at or within 200 metres of the children’s school, being [L School]; and

    e.from attending at or approaching within 100 metres of any venue at which [L] School or the [V] Basketball Club, at which the children [H] or [E] (or either of them) play, have a function or conduct or participate in a sporting activity; and

    This order is made for the personal protection of the mother and the children and has attached to it a power of arrest pursuant to Section 68C of the Family Law Act 1975 so that if a police officer believes, on reasonable grounds, that the father and/or [Ms B] has breached the injunction by:-

    i)causing or threatening to cause bodily harm to a protected person; or

    ii)harassing, molesting or stalking that person;

    the police officer may arrest that person without warrant.

    IT IS REQUESTED:

    9.      That the independent children’s lawyer explain the outcome of the contravention proceedings to the children and the operation of this order to the children and to [J] in terms likely to be understood by all of them.

    IT IS DIRECTED:

    10.    That the independent children’s lawyer make such enquiries as is necessary to furnish to the mother and the father and to [Ms B] details of the opportunities and availabilities for the children [J], [H], [E] and [C] to spend time together in a contact centre between now and the adjourned date.

19. The matters which inform the exercise of my discretion to stay the parenting orders are the same as outlined above but with an overlay of what is in the best interests of the children, being J as well as the twins.  My earlier discussion in these reasons at paragraphs 19 to 24 applies.

20. Essentially, the effect of these interim  parenting orders was:-

    a)To discharge orders which provided that J reside with the mother in circumstances where J has been living with the father since the middle of last year.  There are now no parenting orders in relation to J and s 61C(1) applies;

    b)To expand the operation of the Order made on 12 March 2009 precluding the father from contacting or approaching the mother or the children and from attending at the children’s schools or within 200 metres of the mother’s residence, to include sporting grounds at which the twins were participating in team sports or school functions outside school grounds, such as the school concert venue in 2009;

    c)To expand the operation of the injunction made on 15 December 2009 (paragraph 9), which provided that the father’s partner, Ms B, not attend herself or with C (the daughter of the father and Ms B) at or within the immediate proximity of the twins’ school and to prohibit her from attending at or within 200 metres of the twins’ school or the mother’s residence and at or within 100 metres of venues where the twins’ school or the V Basketball Club have a function or are conducting a sporting activity in which the twins (or either of them) are participating.

21. The original injunctions which were made on 12 March 2009 and 15 December 2009 were contained in an order which gave the father and Ms B liberty to apply to vary or set aside the injunctions.  Neither have done so. However, both the father and Ms B utilised the twins’ participation in weekend basketball for the V Basketball Club and the school concert which was conducted at hired premises, to approach the girls and speak with them and, in one instance, to invite them to accompany the father to his car after the basketball game was over to receive presents.

22. For reasons which I expressed on 17 March 2010, I considered that it was contrary to the twins’ best interests for the father and his partner to persist with these visits until I could look at the matter more fully in mid-May 2010.  The father’s partner, Ms B, requested time in which to consider her position and to obtain representation.  She is a lawyer but, like anybody else, is entitled to procedural fairness and to put such opposition as is relevant by herself or through counsel.  However, in light of their attitude that the visits to the sports grounds and the school functions were “allowed” by orders made on 12 March 2009 and 15 December 2009, it was necessary to expand the injunctions and remove all doubt until the matter was considered in May 2010.

23. In the context of the necessity for an adjournment, I note that much more could have been achieved in the week of 15 March 2010 by way of the determination of the application to vary parenting orders, if the father, who was then represented by Mr Dixon SC, had not left court without notice on the afternoon of 15 March 2010, failed to appear the following day and then appeared on 17 March 2010 as a litigant in person who wished to address the court on further matters in mitigation of the eleven contraventions.  This is said by way of observation rather than criticism and to illustrate that the time allowed by the court for this matter was either not able to be used or was not consistently productive vis-à-vis the variation of parenting orders application because of disruptions.  Four days were allocated to matters involving J, E and H in the week of 15 March 2010, originally the only matter for determination was the paternal grandparents’ application to spend time with H and E. The contravention application should have been contained to a day.  However, because of the prolongation of the contravention proceeding, less than one day was devoted to the grandparents’ case and then only to receive the evidence of a psychiatrist and a school teacher which it was agreed could be interposed.  The balance of the grandparents’ application is adjourned to May 2010.

1. On the issue of the stay, the father submitted that there is ample evidence upon which I must now be satisfied that it is in the best interests of the twins that they be able to see C, Ms B and himself when they play basketball and at school or school events.  The father wants the children to spend time together regularly.  He places reliance upon the report of Department of Health and Human Services dated 28 September 2009[4] and to an apparent acceptance by Ms N, family consultant, in her family report in the grandparents’ application dated 19 February 2010 that the father is both a necessary and not harmful component of the twins’ time with the paternal grandparents.  This evidence is yet to be tested.  There will be opportunity to test it when the hearings resume in May 2010.  Until it is tested, I will have regard to it but not accept it in preference to other evidence.  For instance, Ms N’s report in the grandparents’ application arose from an assessment in which the father did not participate in any way.  The last assessment by Ms N, at which she had an opportunity to observe and converse with the father, included her opinion that “[whether] [the father] consciously intends to or not, his behaviour involving the children must be described as emotional abuse. It is recommended that [the father] seeks professional assistance in reviewing how his behaviour is experienced by the children”.[5]

   [4] Annexure “B” to the father’s affidavit sworn 15\6 April 2010.

   [5] Issues Assessment, November 2008, page 6 of 8.

2. On the hearing of the contravention proceeding, senior counsel for the father informed the court (the father did not give evidence) that the father had consulted a psychologist on five occasions but acknowledged, correctly in my view, that in the absence of evidence from that psychologist, I must infer that her evidence would not have assisted the father’s case or plea in mitigation.  On 17 March 2010 the father attended court, representing himself, and brought with him an x-ray slide and a receipt from a psychologist.  The purpose of those documents was, he submitted, to justify his inability to attend court the previous day due to a medical condition.  Neither document could be admitted into evidence for that purpose.  This court could not interpret an x-ray without expert evidence and an accounting record from a psychologist is not proof of anything other than payment of fees.  By way of clarification, the x-ray was said to relate to injuries sustained by the father the day before the contravention hearing commenced at a car race in South Australia when the car he was driving collided head on into a brick wall at 160 kilometres per hour.

3. Before Senior Counsel for the father withdrew from the father’s case on 16 March 2010, he was reminded of the need for “expert evidence” of the father’s inability to attend court that day.  I ordered that “the father forthwith provide the wife’s legal practitioner with a copy of any medical evidence upon which he relies in relation to his inability to attend Court this morning.”[6]  Nothing was tendered. The father’s partner is a lawyer and presumably aware of what constitutes evidence but, making allowances for the father, I will assume that she did not tell him.

   [6] Order 16 March 2010, paragraph 5.

4. Apart from the father’s description of himself as “suffering court phobia”, the preceding two paragraphs is the sum total of references to “professional assistance” which the father has received since the family consultant described his behaviour as emotionally abusive of the children and recommended that the father “seeks professional assistance”.

5. Additionally, the father relies on the evidence of one Ms G[7] who deposes to her assessment of the father and Ms B as good parents.  Ms G was the legal practitioner who appeared for the father, via telephone, on 12 March 2009 when he left her office saying that he would not participate further in proceedings in this court.  She is also a friend of the father’s partner, Ms B.  Her association with the father in both capacities may, ultimately, lead me to conclude that she is well placed to give such evidence and, when tested, I might place considerable weight on her evidence but I am unable to do so now.

   [7] Affidavit of Ms G sworn 22 April 2010

6. The orders are interim orders by nature but, more than that, were expressed as “holding orders” by which I meant to convey that they were made without the court being able to come to any concluded view and merely acting conservatively in the interests of the children until there could be a comprehensive examination.  All issues will be open to submissions at my determination of the matter later this month.

7. In this context, I wanted to know when the appeal was likely to be listed for hearing. The father did not know. At my request the Acting Appeals Registrar for the Southern Region attended Court and, at that time, advised the court and the parties that the appeal is a considerable way off with none of the procedural steps having been completed.  In particular, the father is not due to file his draft index until 17 May 2010 after which the directions hearing may be listed on 30 May 2010.  At the directions hearing the appellant father will be given 28 days to file the appeal books which, if he complies, will bring the matter to the end of June 2010.  It may be heard in August 2010 or, if not then, in October 2010.  It sounds to me as though, come what may, the appeal is unlikely to be listed until the last quarter of the year and, as I understood the Appeals Registrar, will be part of the Melbourne (as opposed to Hobart) sittings. I asked the father whether he would participate in the proceedings which will resume in May 2010 because, amongst other things, they represent the earliest and only opportunity to test the relevant evidence.

8. The father informed the court that he would not participate in the hearing in May 2010 because the court is incompetent, and I am biased and have already drawn adverse conclusions about his metal health and ability to control himself.

9. Given that the father could participate in the hearing when the court resumes later this month without prejudice to his position on the appeal, his refusal to participate at the earliest opportunity leads me to conclude that he seeks to avoid the operation of the holding orders entirely rather than to seek that they merely be stayed pending appeal.  I am mindful that the original injunctions were granted in necessitous and urgent circumstances in March and December 2009 but neither the father nor Ms B subsequently sought to set the injunctions aside.

10. It remains my view that the extended form of the injunctions is necessary for the best interests of the twins until such time as the court looks at the matter comprehensively.  I am not satisfied that the orders which were in existence prior to 17 March 2010 were adequate for the children’s needs.  I had and now have due regard for the upset that not seeing the father or Ms B may cause the children.  It is no doubt contrary to their views but against that I weigh the need to preserve the stability that the mother’s care offers them.  On balance, I am satisfied that the girls’ best interests are served by not undermining the mother’s care of them.  It is not ideal but there may be no ideal outcome for this family. Until the hearing resumes, a continuation of the expanded injunctions is the least worst outcome for the girls and that is my view whether J continues to spend time with the girls (as he has been) or if he does not.

11. If the father does not want to participate when the hearing resumes in May 2010, that is up to him.  As matters stand he is free to participate.  However, it would be inappropriate to cancel the operation of the injunctions in the expanded form until after determination of the appeal which is in its earliest stages.  It is not infrequently the case when an interim (or holding) order is under appeal and the final determination of the substantive proceedings in which the interim order is made is likely to overtake the hearing and determination of the appeal in relation to the propriety of the interim order.  Of course, there are rights of appeal from the determination in May 2010 of which the father can avail himself.

12. In summary, whilst the father’s appeal may have prospects of success, I have doubts as to amenity of the father’s appeal.

13. I also asked the father to address me on the hardship which would flow from the stay not being granted.  Initially the father’s submission was to the effect that, if no stay is granted, there may be a liability for him to pay costs which would mean that there is less money in his household to spend on the children and less money that he could devote to further proceedings.  A potential liability for costs is not a hardship which is relevant for current purposes.

14. The father also pointed to the hardship which flows from Ms B being subject to the expanded form of injunctions, which preclude her from going to basketball games and school functions conducted off school grounds.  He referred to Ms B’s affidavit evidence.  However, that affidavit relates solely to her knowledge and involvement, presumably in her capacity as legal adviser of some sort for the father, “for the last 12 months [into] [the mother], Ms Emily Turner and [the mother’s] former lawyer, Federal Magistrate Terry Maguire [as] the subject of an ongoing police investigation in relation to [the mother’s] eligibility for legal aid funding and the processing of her applications for legal aid since 2001.”  These are the same investigations described by the father in paragraph 2 of his affidavit sworn 16 April 2010 in the following terms:

    [The mother], Emily Turner, David Walker, David Lewis, Terry Mcguire are under investigation by Tasmania police fraud squad I have been led to believe by police that if convicted all would face charges which would result in lengthy jail terms.

15. The evidence of Ms B, does not touch on child related matters.  Curiously, her suitability as a person with whom the twins should spend time is deposed to by another solicitor, Ms G, whose evidence I have commented on earlier in these reasons.

16. The father also complains that the independent children’s lawyer has not done all that is required of him to investigate contact centres.  The father said “Mr Walker didn’t contact a contact centre at all”.  From the bar table, Mr Walker stated he did and referred to correspondence to that effect having been sent to the parents on 24 March 2010 which is within a week of the Order having been made.  The father further complains that the independent children’s lawyer has not provided Ms B or himself with details of the twins’ scheduled basketball games (so that they can refrain from attending).  Mr Walker said that he has done all he can do and is waiting to hear from the mother with details of the teams.  If the injunctions were proving to be unworkable, I would take that into account in my assessment of hardship on the basis that it is difficult to demonstrate hardship in the staying of an order that is not working.  However, I am not satisfied this is the case here.

17. The father did not address me as to the impact on J of the operative order of 17 March 2010 or a stay not being granted.  I take it that he did not pursue his application in respect of a discharge of all previous parenting orders.

18. For the above reasons, I do not consider that it is appropriate to grant a stay of the operation of the parenting Orders made by me on 17 March 2010.

Stay of orders not under appeal

1. The second order sought by the father was that “all orders made by Justice Bennett previous be stayed or dismissed giving the effect that orders in place prior to Justice Bennett’s intervention become valid again.”

2. The father was under the misapprehension that, having appealed the orders of 17 March 2010, he could now apply for a stay of every order which I have ever made in the matter commencing with those made on 12 March 2009.

3. Alternatively, he contended that he has appealed every order that I have made.  That is clearly wrong.  As best I understand the situation, the Orders of 17 March 2010 are the only Orders which the father has appealed.  There are no other appeals pending by any party.  There are no applications for leave to appeal any other order out of time.

4. The father’s application in this regard is misconceived and must fail.

removal of a caveat

1. The final order sought by the father was “that [the mother] and Emily Turner immediately remove the caveat placed on the former matrimonial property known as [T property] and bear any and all costs.”

2. The father deposes that on 31 March 2010 (two weeks after the Order was made), the mother and her solicitor lodged a caveat for registration over the title to a property on which he and Ms B propose to build a house.  He complains that the caveat has put a halt to building works.  In summary he says that they have no caveatable interest.

3. It is common ground that final orders have been made which altered property interests between the father and the mother.  There is no pending relief under Part VIII of the Act.  The father was unable to identify any jurisdiction pursuant to which I could make the order sought.  I do not identify any jurisdiction pursuant to which I can make the order sought.

4. His application to this court in this regard must fail.

Costs

1. The mother and the independent children’s lawyer each seek costs of and incidental to the father’s application in a case.

2. The mother seeks costs of $1,659 comprised of a brief fee of $1,560 per Item 204 of the Itemised Scale of Costs, Schedule 3 to the FLR 2004 (“the FLR scale”) and $99 for petrol. Counsel has elected to charge for one day for a hearing of more than three hours rather than for two days of hearings less than three hours. In my view that is permissible if an order for costs is made.

3. The independent children’s lawyer seeks the costs of $1,899 made up as follows:-

   a)Preparation for 2.5 hours  $600;

   b)Appearance on 22 April 2010 from 2.00 p.m.     $600;

   c)Appearance on 23 April 2010 from 11.00 a.m.   $600

   d)Travel expenses, petrol   $ 99.

   I note that the costs for preparation exceed the amount calculable by reference to Item 108 of the FLR scale by $22.00 but is otherwise reasonable if a costs Order is made. The appearance fees are within Item 203 for counsel who is not Senior Counsel.

4. The father opposes any costs Order being made against him.  He complained about earlier estimates of costs from Mr Walker and Mr Lewis in excess of the amounts claimed.  However, as the estimates were more, not less, than the amount claimed, I cannot see the relevance.

5. Section 117(1) provides that each party should bear their own costs subject to the court being satisfied that there are circumstances which justify an order being made otherwise. In considering what (if any) order should be made under s117(2), I am required to take into account such of the matter set out in s117(2A) as are relevant.

6. The father is not represented so only the mother has incurred costs.  I was not informed of any aspect of her financial circumstances which leads me to change my earlier conclusion that legal costs are any more affordable for her now than they were in March 2010.  Even if she is in receipt of legal aid for these proceedings, every appearance increases her liability to the funder.

7. I have considered whether the father would suffer financial hardship if he has to bear all or part of the costs of the independent children’s lawyer.  Since the matter was before me on 17 March 2010, the father informed the court that his partner, Ms B, will meet any cost liability out of her income.  The father has not informed the court of his partner’s financial circumstances or any hardship which may accrue to him by virtue of costs being paid in that way.

8. I have mentioned earlier in these reasons, payment of the father’s liabilities may result in less money being made available to his household, on the facts currently presented, but that does not necessarily equate to hardship.  I note that the father’s submission (in relation to the hardship he would suffer if a stay were not granted) was that there would be less money to spend on the children and on future legal proceedings. He did not say that a costs order would leave them without sufficient funds to support his household and, it is my view that funds earmarked for legal proceedings can, to the extent it is necessary to do so, be paid for the benefit of parties who have incurred costs as a result of the father’s partially misconceived and largely unsuccessful application.

9. I do not underestimate the burden of costs or an order for costs. However, not being able to pay costs is different from not wanting to pay costs or from not wanting to divert funds from other endeavours such as building a house or car racing.  I am not satisfied any hardship is such that the father ought not be responsible for the independent children’s lawyer having incurred costs that he should not have had to incur.  The father’s application was without merit vis-à-vis the independent children’s lawyer.  The independent children’s lawyer should have the benefit of an order for most of his costs.

10. That the independent children’s lawyer is in receipt of legal assistance by way of legal aid is not a matter to which I have regard (s117(5)).  The mother may be in receipt of legal assistance for this part of the proceeding.  However, I take judicial notice of the fact that legal aid funding is finite and what is spent on one matter cannot to spent elsewhere.  This factor does not mitigate against a costs order being made against the father.

11. I take into account the conduct of the parties in the filing of documents and in the presentation of their case. Unfortunately, the father’s presentation of his case prolonged the proceeding. If he had understood what orders he had appealed and had turned his mind to the powers of the court and to jurisdiction, the proceedings would have been much shorter and containable within the afternoon of the first day, 22 April 2010.  Apart from legal issues, he was prone to get excited, be distracted and to pursue irrelevant matters even after being directed not to do so.  This matter supports an allowance for costs being made in favour of the other parties who were represented.

12. There is no non-compliance with orders which bears directly on the costs of the father’s application under consideration.

13. The father was wholly unsuccessful in his application for orders sought.  However, an order was made, without opposition, that the enforcement of the costs and fine be stayed pending the outcome of the appeal.  That is of some relief to him.  The lack of success by the father with his application, as drawn, is a matter which is strongly supportive of a costs order being made in favour of the mother and of the independent children’s lawyer.

14. I was not addressed on any offer of settlement relevant to this costs application.

15. I was not addressed on any other matter which is relevant to my considerations.

16. It is appropriate that the father bear most of the costs of the other parties in this application by reason of him having been unsuccessful in his application, and to a lesser extent, the manner in which he conducted the hearing. 

17. The costs as claimed are reasonable.  I will order that the father pay most of the other parties’ costs.  The discount is referrable to the fact that it was probably necessary for a stay of enforcement of the $3,000 fine to be obtained and that was done, on 22 April 2010, without opposition.  I will order that the father be responsible for $1,400 of the mother’s costs and $1,200 of the costs of the independent children’s lawyer.  That is a total of $2,600.

18. No one sought time to pay.  The father has previously confused no specified time with no compulsion to pay.  Where no time is specified, the payment is to be forthwith.  In the circumstances of this case, both sums should be paid within 60 days.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Associate: 

Date:  11 May 2010