SHADDOCK & WREN
[2014] FamCA 88
FAMILY COURT OF AUSTRALIA
| SHADDOCK & WREN | [2014] FamCA 88 | |
| FAMILY LAW – ORDERS – CONTRAVENTION – Children – Where the father alleges that the mother contravened parenting orders – Whether the mother has a reasonable excuse. FAMILY LAW – COSTS – Where the mother has made an application for costs – Where the application includes costs reserved to the trial judge – Where the parties subsequently made substantive consent orders – Where those orders were silent as to costs. | ||
| Family Law Act 1975 (Cth) ss 64B(2)(i), 65NA, 70NAC, 70NAD, 70NAE, 70NAF, 70NEB, 70NFE, 117(2A), Family Law Rules 2005 (Cth) r 19.08. | |
| Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248. | |
| APPLICANT: | Mr Shaddock |
| RESPONDENT: | Ms Wren |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | BRC | 11407 | of | 2008 |
| DATE DELIVERED: | 21 February 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 22 October 2013 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Barry Nilsson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Ehlers of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Richard Gray & Associates |
it is ordered that
The Application for Contravention filed 12 July 2013 is dismissed.
The Respondent’s Application that the Applicant pay her costs of and incidental to the Amended Initiating Application filed 23 October 2012 is dismissed.
The Applicant, Mr Shaddock, pay the Respondent’s costs of and incidental to the Application in a Case filed on 4 February 2013 fixed in the amount of $1,530.20.
The Applicant, Mr Shaddock, pay the amount of $1,530.20 referred to in (3) above to the Respondent by 4.00 pm on 21 April 2014.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shaddock & Wren has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: BRC 11407 of 2008
| Mr Shaddock |
Applicant
And
| Ms Wren |
Respondent
REASONS FOR JUDGMENT
Contravention Application
On 12 July 2013 the father filed an Application for Contravention alleging two (2) contraventions of the Further Amended Order made in the Federal Magistrates Court (as it was then known) on 15 December 2011 (“the December 2011 Order”):
(a)in contravention of Clause 5, the mother, without reasonable excuse, failed to make the children [K], born … July 1997, and [C], born … January 1999, (“the children”) available to spend time with him on the weekend commencing 7 June 2013; and
(b)in contravention of Clauses 6 and 7, the mother, without reasonable excuse, failed to make the children available to spend time with him (during the school holiday period) commencing on 3 July 2013.
It is accepted that the children did not spend time with the father on these occasions.
The statutory provisions relevant to the determination of this Application are contained within Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 70NAC of the Act relevantly prescribes the circumstances in which a party is taken to have contravened an order under the Act:
Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order-he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order;
Whilst parenting orders were made by the Court by consent on 18 July 2013, there is no doubt that, on 7 June 2013 and 3 July 2013, the mother was bound by the terms of the December 2011 Order.
Counsel for the mother informed the Court that the mother accepted that she had contravened the December 2011 Order in the manner alleged. I accept this admission in so far as it relates to the contravention alleged to have commenced on 7 June 2013. Consequently, the issue requiring determination is whether, on this occasion, the mother had a reasonable excuse for the contravention.
It is for the mother to establish, on the balance of probabilities[1], that she had a reasonable excuse for the contravention. Section 70NAE(1) of the Act provides that the circumstances in which a person, such as the mother, may be taken to have had a reasonable excuse for contravening an order such as the December 2011 Order include, but are not limited to, the circumstances set out in subsections (2), (4), (5),(6) and (7) of that section.
[1] Section 70NAF(2)
Did the mother have a reasonable excuse for the contravention on 7 June 2013?
The father attended at the children’s schools on 7 June 2013 to collect them. They were not present. He says that he later became aware that the mother had collected the children earlier in the day. The mother accepts that she did so because K was unwell.
Nearly three (3) weeks later, the father sought an explanation for the children’s absence.[2] In response, the mother advised that:
a)K had told the father prior to the long weekend that she was working and would not be spending time with him; and
b)C had told the father that she did not want to go to his residence that weekend and had suggested a catch up weekend the following weekend: a proposal that was not suitable to the father.[3]
[2] correspondence dated 25 June 2013
[3] correspondence dated 1 July 2013
The mother’s case is, therefore, that before he travelled to their respective schools on 7 June 2013, the father was aware that the children would not be collected by him. She says that her failure to inform him that she collected the children early that day because of K’s ill-health should be seen in circumstances where she thought he would not be attending that day because of the children’s prior communication with him.
The mother’s evidence was consistent with the explanation provided to the father as outlined above.
I accept that K, who was then nearly 16 years of age and in Grade 11, had weekend work commitments (obtained after her involvement in a school-based traineeship) which, on occasion, conflicted with her time with the father. I accept that K had previously sought time away from her weekend work so as to spend time with the father and had previously tried to spend time with him by juggling her work commitments or asking him to transport her to and from work.
The father said, during his evidence in reply, that he did not recall K “definitely saying ‘I am not going to come Dad.” (my emphasis) Such evidence clearly suggests that there was, in fact, a prior conversation during which K raised the topic of her non-attendance that weekend. Further, it cannot be forgotten that, for no less than about 18 months before this weekend, she had ceased spending time with the father during holidays. By whatever terms, I accept that, on this occasion, K told the father that she would not be attending because of her work commitments.
I accept the mother’s evidence that when C, then 14 ½ years of age, told her that she wanted to go to a birthday party rather than spend time with the father on that weekend, she tried to encourage her to go to the father’s residence. I also accept that when C continued to maintain her oppositional position, the mother suggested that she try to negotiate with the father that she spend time with him the following weekend. It is clear that the mother herself did not email, text or send correspondence to the father about this issue and that personal direct oral communication between the parties is non-existent.
I accept the mother’s evidence to the effect that her lengthy work hours have resulted in the children being reluctant to involve her in communication with the father about issues involving their time with him and that, consequently, direct communication between the children and the father about these matters has previously occurred.
This conclusion is supported by the father’s evidence:
c)when asked whether the children had discussed with him what time they were to spend with him, he responded to the effect that “he was told by the children that the mother says that they can come on this day during a certain time.” (my emphasis);
d)that, on occasions, the children did discuss their time with him, albeit that, on occasions, he was not sure whether such discussions occurred without reference to the mother;
e)that on “very rare” occasions in the past he had negotiated with the children about their time with him and that they had made ‘arrangements.’
Such evidence clearly establishes that, prior to the weekend commencing 7 June 2013, there had been previous occasions when direct discussions between the children and the father about their time with him resulted in different ‘arrangements’ about that time being made.
Whilst the father said, during evidence in reply, that he had not made any arrangements with C to change the long weekend time, he later admitted, during cross examination, that it was “possible” that he could have told C that he could not spend time with her the following weekend. Given the specific reference in the correspondence (referred to in paragraph 9) to the father’s unavailability on the following weekend, I consider it more likely than not that there was some discussion between C and the father prior to the weekend about a change to the time arrangements for the weekend commencing 7 June 2013.
Against this background, I accept the mother’s evidence that C told her that she had spoken with the father who said that it was okay and fine with him that she not spend any time with him on the weekend commencing 7 June 2013. Whilst it may be easy, in hindsight, to conclude that the mother should have been sceptical about this information, I accept that the mother took it at face value, particularly in circumstances where the children had previously themselves negotiated changed time arrangements with the father and it had previously been difficult for her to get C to spend time with the father against her wishes.
I therefore accept that the mother’s state of knowledge about the arrangements between the children (then aged nearly 16 years and 14½ years respectively) and the father for that weekend was that she understood that he had agreed to arrangements which would accommodate K’s employment and C’s desire to attend at a party.
I also accept the mother’s evidence to the effect that she thought the parties, who do not communicate orally, had communicated via SMS message about make up time the following weekend and that the father was happy for this to occur. I accept the mother’s evidence that she did not engage solicitors to communicate with the father about the change to the weekend arrangement because of the cost involved in taking such action.
Whilst it is, of course, legitimate to suggest that, as a parent, the mother should be able to ensure that the children spend time with the father in accordance with operative orders, I accept the mother’s evidence to the effect that :
a)as teenagers, the children do not always do what she tells them; and
b)during the past six (6) years of post-separation parenting she has tried her best to get the children to go and spend time with the father and has generally “made” time occur; and
c)sometimes it was too hard to make the children go to spend time with the father.
In all of the circumstances outlined above, I am persuaded that the mother had a reasonable excuse for failing to provide the children to spend time with the father on the weekend commencing 7 June 2013.
Did the mother have a reasonable excuse for the contravention on 3 July 2013?
Clause 6 of the December 2011 Order provided that the children were to spend time with the father for the second half of the midyear gazetted school holiday period in 2013.
Clause 7 of the December Order provided that, for the purpose of clause 6 of the Order :
(a)the holiday period commences from after school at 4.00 pm on the last day of school;
(b)the holiday period concludes at 5.00 pm on the day immediately before the commencement of the new school term;
(c)the mid point of the school holidays is 4.00 pm on the second Saturday of the June/July and September/October school holidays and the fourth Saturday of the Christmas school holiday period.
Despite these terms, the father calculated the midway point of this period to be on Wednesday 3 July 2013 and, on 25 June 2013, correspondence to the mother’s solicitors outlined his intention to collect the children at 4:00 pm that day.
There is no evidence to support a conclusion that the parties had agreed to depart from the clear terms of Clauses 6 and 7 of the December 2011 Order which provided that the midpoint for the purpose of calculating the children’s time with the father was the second Saturday of the school holiday period.
In these circumstances, I do not accept the admission proffered on behalf of the mother that she contravened the December 2011 Order by failing to make the children available to spend time with the father from 4.00 pm on Wednesday, 3 July 2013 and I am not persuaded that she contravened the Order as alleged.
For the reasons outlined above, I dismiss the Contravention Application filed 12 July 2013.
Application for Costs
In an Application in a Case filed 13 August 2013 (“the costs application”) the mother sought orders[4] that the father pay, on an indemnity basis:
a)the costs of and incidental to the appearance before the Principal Registrar on 19 March 2013;
b)the costs of and incidental to the Amended Initiating Application filed by the father on 23 October 2012.
[4] Rule 19.08 (1), Family Law Rules 2004 (Cth)
On 18 July 2013, following agreement between the parties as to the terms of parenting orders, the Court made final orders by consent (“the July 2013 Order”). The July 2013 Order is silent as to costs.
The costs application was filed within 28 days after the July 2013 Order was made. [5]
[5] Rule 19.08 (2), Family Law Rules 2004 (Cth)
The general rule in proceedings under the Act, is that each party bears his or her own costs. However, if the Court is of the opinion that there are circumstances that justify it doing so[6] the Court may, subject to certain considerations, make such order as to costs as the Court considers just. In considering what order as to costs, if any, to make, the Court shall have regard to matters prescribed in s 117(2A) of the Act.
[6] Penfold v Penfold (1080) 144 CLR 311, 315.
The costs reserved on 19 March 2013
On 19 March 2013 the Principal Registrar dismissed the father’s Application in a Case filed 4 February 2013 (“the February application”) and ordered that the mother’s costs be reserved to the trial judge (“the March 2013 Order”). At this stage the father appeared on his own behalf.
Clearly, the issue of costs arising from February 2013 application was not heard and determined by the Principal Registrar other than by a determination to reserve this issue to the trial Judge for consideration. Obviously, an order reserving the question of costs does not amount to an order dismissing an application for costs.
The father’s legal representative submitted that, given that Clause 32 of the July 2013 Order discharged all previous orders, the March 2013 Order was also discharged.
Whilst I do not accept the submission by Counsel for the mother that Clause 32 of the July 2013 Order should be interpreted to refer only to substantive parenting orders – there being nothing ambiguous in its terms – the discharge of the March 2013 Order does not prevent the mother from applying for an order that the father pay her costs of and incidental to the February application: Rule 19.08 (1) and (2) of the Rules.
Further, the July 2013 Order contains no provision in relation to the manner in which the parties are to bear the costs of the proceedings. The position would have been different had the parties, for example, decided and agreed upon a term to the effect that “there is no order as to costs” or “each party bears their own costs”.
The order sought by the father in the February 2013 application was that the children K and C continue their enrolment through to and including the Year 11 and 12 school years at B School, Suburb D, Queensland. This order was sought in circumstances where the operative parenting order[7] provided that the mother have sole parental responsibility for the children in relation to, among other things, issues about their current and future education.
[7] made 9 June 2011 and amended 12 September 2011 and further amended 15 December 2011.
In such circumstance, it is unsurprising that the Principal Registrar dismissed the ill-conceived February 2013 application.
Costs of and incidental to the Originating Application filed 23 October 2012
Counsel for the mother submitted that, whilst the Originating Application filed 23 October 2012 (“the October 2012 application”) sought to vary the operative final order dated 15 December 2011[8] (“the December 2011 Order”) by proposing changes to Clauses 1 and 29 of that order, the terms in which the parties agreed the July 2013 order were almost identical to those contained in the December 2011 Order. Such an event, it is submitted, would persuade the Court to conclude that the father was “wholly unsuccessful” in the October 2012 application.
[8] as amended on 12 September 2011 and further amended 15 December 2011
It is clear that the terms of Clauses 1 and 29 of the December 2011 and July 2013 Orders are, for all intents and purposes, the same. However, in agreeing upon the terms of the July 2013 Order, the parties had also reached agreement about other variations to the December 2011 Order:
a)Clause 3 of the July 2013 Order provides that the time that the child K is to spend with the father and the communication between them will occur at all such times as that child expresses a wish to do so; but
b)in contrast, the December 2011 Order provided that K’s time with and communication with the father occur each alternate weekends, for half of each gazetted school holiday period, on Father’s Day and at specified times on Christmas Day, Boxing Day, Good Friday and Easter Sunday, on K’s birthday and by telephone no less than each Monday.
Discussion of relevant s 117(2A) matters
The mother is a healthcare worker who is employed on a permanent part-time basis at E Hospital. Her gross remuneration from employment is $1,220.00 per week. She receives child-support in an amount of $30.00 per week from the father. She is responsible for the payment of private school fees for those children who remain at secondary education. She has savings of $94,000.00, superannuation in an amount of $20,000.00 and two (2) motor vehicles valued at about $46,000.00. She lives in rental premises and has credit card debt of about $2,500.00. She also has a HECS debt of $8,000.00.
It is apparent from the above that that her financial circumstances are modest.
The father owns real property at F Street, Town G. It is said to be worth approximately $300,000.00. He has a loan, secured by mortgage, in an amount of $170,000.00. He also says that he borrowed $80,000.00 from his mother in order to fund the purchase of this property. He has equity of about $50,000.000 in the property.
The father receives NewStart allowance in an amount of $220.00 per week. He has no surplus income and juggles the payment of the mortgage and his living expenses. There is nothing in the evidence to suggest that the father has any physical limitations which would prevent him from engaging in paid employment.
In fact, the father has, with the financial assistance of his mother and brother, established H Business which he operates from rental premises in Suburb I. He says that he borrowed $7,500.00 from his mother to pay the bond associated with the rental of these premises and will commence paying rent of $650.00 per week from December 2013. On his evidence, he personally earns approximately $120.00 per week gross from this exercise and employs other managers.
The father submits that he does not have the financial capacity to meet any order for costs and that the mother’s financial circumstances are such that she is able to meet her own legal fees.
It cannot be forgotten that “a limited financial capacity to meet an order cannot be determinative; if it were, a party would always be able to plead impecuniosity as a means of avoiding a costs order in circumstances where pursuit of the litigation has continued in the face of a reasonable offer to cease that litigation and the incurring of its attendant costs.”[9]
[9] Lenova & Lenova (Costs) [ 2011] FamCAFC 141, [12].
Whilst made in the context of discussing timely offers in writing to resolve litigation, such comments are pertinent to my consideration of the current costs application.
Counsel for the mother submitted that the “overall conduct” of the father in the matter would persuade the Court that that it was appropriate that he contribute to the mother’s costs. In particular, I understood him to refer to the father’s conduct in bringing the February 2013 application in circumstances where the operative order invested the mother with sole parental responsibility in relation to educational issues for the children.
Neither party is in receipt of assistance by way of legal aid. Both parties have engaged legal representation. The father says that his brother has agreed to pay previous legal bills of $10,000.00 and has agreed to meet the legal fees incurred by the father in responding to the costs application.
Given that the father:
a)was wholly unsuccessful in prosecuting the February 2013 application and it was dismissed; and
b)sought, by it, specific orders about the children’s schooling in circumstances where the operative parenting order invested the mother with sole parental responsibility for educational decisions about the children; and
c)did not challenge the accuracy of the evidence given by the mother or her solicitor about the Principal Registrar’s dismissal of the February 2013 application;[10] and
d)has some equity in the real property owned by him and the demonstrated financial support of family members,
I am satisfied that the circumstances are such as to justify the making of an order that the father pay the mother’s costs of and incidental to the February 2013 Application.[11]
[10] D & D (Costs) [2010] FamCAFC 63
[11] see: Penfold at 315 - 316.
Given that the July 2013 Order reflected the parties’ agreed variation to the December 2011 Order, I am not persuaded that circumstances are such as to justify the making of an order that the father pay the mother’s costs (exclusive of those already considered above) of and incidental to the October 2012 application.
Quantum of costs sought
The mother relevantly seeks that, on an indemnity basis, the father pay her costs of and incidental to the February 2013 Application in the following amounts:
a)$2,750.00 in relation to the unsuccessful application heard by the Principal Registrar on 19 March 2013; and
b)$1,100.00 being the costs of the prosecution of the costs application.
Unless there are exceptional circumstances, an order for costs should be made on a party and party basis.
I have had regard to D & D Costs (No. 2) (2010) FLC 93-435 in which the Full Court reviewed extensively earlier authorities, including Limousin & Limousin (Costs) (2008) 38 Fam LR 478 and Kohan and Kohan (1993) 16 Fam LR 245, and also Sheppard J’s decision in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248. I am not persuaded, on the evidence before me, that the circumstances of this case are ‘exceptional’ so as to warrant the making of an order for costs on an indemnity basis.
In the circumstances of this case (including the clear difficulties in communication between the parties), I consider it is appropriate that I fix the quantum of the costs to be paid by the father to the mother rather than ordering that payment occur in an amount as agreed or failing agreement as assessed.
In undertaking this exercise, I have had regard to Schedule 3 of the Rules. Doing the best that I can, I have determined that the time reasonably spent in relation to the February 2013 application, the appearance before the Principal Registrar on 19 March 2013 and the preparation of the application for costs is unlikely to have been less than about seven (7) hours in total. Using the scale rate of $218.60 per hour I arrive at the sum of $1,530.20. I consider it just in the circumstances that the father pay to the mother the sum of $1,530.20.
Given the father’s financial circumstances, it is just that he have two (2) months within which to make such payment.
I order accordingly.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 21 February 2014.
Associate:
Date: 21 February 2014
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Costs
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Consent
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Intention
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Procedural Fairness
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