Sheffield and Oaks

[2007] FamCA 407

FAMILY COURT OF AUSTRALIA

SHEFFIELD & OAKS [2007] FamCA 407

FAMILY LAW - CHILDREN - ORDERS - Contravention

Family Law Act 1975

APPLICANT: Mr Sheffield

RESPONDENT: Ms Oaks

FILE NUMBER: HBC 97 of 2007

DATE DELIVERED: 2 April 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Bennett J

HEARING DATE: 2 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T. Fitzgerald

SOLICITOR FOR THE APPLICANT: Fitzgerald & Browne

COUNSEL FOR THE RESPONDENT: Mr M. Trezise

SOLICITOR FOR THE RESPONDENT: Dobson Mitchell & Allport

Orders

1. That I dismiss count one of the alleged contravention in the father’s application filed 19 January 2007.

2. That the contravention by the mother of paragraphs 9(d)(ii) of the Orders made on 27 September 2006 that she failed to provide the children the elder son born in September 1995 and younger son born in April 1997 to the father for the purpose of them spending time with the father for seven (7) days commencing 13 January 2007 is found proved. 

3. That the mother has not proved that she had a reasonable excuse for the said contravention. 

4. That the contravention by the mother of paragraphs 9d(ii) of the Orders made on 27 September 2006 that she failed to provide the children for seven days commencing on 27 January 2007 to the father for the purpose of them spending time with the father for seven (7) days is found proved. 

5. That the mother has not proved that she had a reasonable excuse for the said contravention.

6. That pursuant to section 70NEB(1)(a)(i) of the Family Law Act 1975

   within

   
   

   7 working days from the date of this order make contact with Relationships Australia, L telephone: … for an appointment at the D office, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the mother, the mother shall attend that program or that part of the program.

7. That pursuant to section 70NEB(1)(a)(ii) of the Family Law Act 1975 within

   
   

   7 working days from the date of this order make contact with Relationships Australia, L, telephone: …, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the father, the father shall attend that program or that part of the program.

8. That in the event that the practitioners for the parties jointly communicate to my chambers that there is no post separation parenting program offered in the north west region of Tasmania I will entertain that communication as an application to discharge the order and do so without the need for appearance by either party.

9. That in relation to the second contravention and pursuant to section 70NFB(2)(a) I require the mother to enter into a Bond in accordance with section 70NFE to be without security but with surety of $1,000 with the effect that in the event that the Court subsequently determines that the terms of the Bond have been breached the mother will be required to pay $1,000 with the following conditions:-

   (a)To require the mother to comply with parenting orders of this Court providing for the children (or either of them) to spend time with the father.

10. That pursuant to section 70NFB(2)(c) of the Act that the further compensatory time to operate as follows:-

    (a)That the time which the children are to spend with the father pursuant to paragraph 9(b)(i) of the orders made on 27 September 2006 be enlarged by three days from 5pm on Good Friday until 5pm on the following Monday to 5pm on Good Friday to 5pm on Friday 13 April 2007;

    (b)That the time which the children are to spend with the father during school holiday periods provided for in paragraph 9d(i) of the orders made on 27 September 2006 be extended by two days from 5pm on the first Saturday until 5pm on the second Saturday in the May / June and August / September school holidays to 5pm on the first Saturday until 5pm on the second Monday each school holiday period;

    (c)

    That the time which the children are to spend with the father provided for in paragraph 9(d)(iii) of the orders made on 27 September 2006 for the periods expressed to commence at 5pm on 30 December and 5pm on

    
    

    13 January by extended by one day each so that the children spend eight (8) consecutive days with the father on each of those periods.

11. That the father’s application for compensatory time be otherwise dismissed.

12. That the father’s application for costs be dismissed.

13. I DIRECT that my Associate forward a copy of these reasons for judgment and these orders to the family consultant who is assigned to deal with this matter pursuant to paragraph 3 of the orders made on 27 September 2006 pursuant to section 65L of the Act.

14. I DIRECT that my reasons for judgment be transcribed and when transcribed a copy sent to each of the parties and the original placed on the court file. 

15. That the applications filed on 19 January 2007 and 6 February 2007 be otherwise dismissed and removed from the list of pending cases.

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 97 of 2007

MR SHEFFIELD

Applicant

And

MS OAKS

Respondent

REASONS FOR JUDGMENT  

(ex tempore)

1. This matter comes before me for the hearing of contravention proceedings under Part VII, Div.13A of the Family Law Act 1975 (“the Act”).  The applicant is the father who is not employed.  He is in receipt of a disability pension.  The respondent is the mother who is not employed outside the home. 

2. It is alleged that the respondent contravened paragraph 9(d)(ii) of the orders made on 27 September 2006 which provided as follows:

   Subject to paragraph 10 below, during school holiday periods the father spend time with the children, [the elder son] born [in] September 1995 and [younger son] born [in] April 1997, in the 2006/7 Christmas school vacation for three periods of seven consecutive days commencing at 5 pm on Saturday, 30 December 2006, 13 January 2007 and 27 January 2007.

3. That was an order engrossed in compliance with s.65DA(2) and s.62B of the Act.

4. It is alleged that the mother breached the orders by not making either child available to spend time with the father on 30 December 2006, 13 January and

   
   

   27 January 2007.  The children were to have spent seven days with the father on each occasion.  As it turned out, neither of the children spent any time with their father during that period. 

5. The mother denies the contraventions.  Her case was that a pre-condition to the orders had not been met.  The pre-condition is set out in paragraph 10 of the orders and reads as follows:

   That the father's contact under paragraph 9(d) will commence if, and only if, [Dr S] is of the opinion that the father has a good understanding of high‑functioning autism; that the father will comply with his recommendations and advice in relation to interaction with and management of the [younger son] on a consistent basis and that the father will ensure that the recommendations and advice are fully communicated to any person or persons who provide substantial care for [the younger son] during any period of holiday time with the father.

6. At the time the orders were made, the parties were due to recommence a final hearing before me in relation to all parenting matters.  The matter had been mentioned to me on Monday, 18 September 2006; quite extensively on Monday, 25 September 2006, and then evidence was taken from Dr G, paediatrician, and Ms D, school principal, on 27 September 2006.  The parties also had a duty report prepared by a family consultant attached to this registry, at which time the family consultant saw the parties and the children.  My recollection is that a written report was prepared but that the family consultant was not required for cross-examination. 

7. Prior to the final hearing, the parties had lost the independent children's lawyer previously assigned to this case and, somewhat unusually I understand, Legal Aid Commission of Tasmania had refused to appoint another independent children's lawyer. 

8. At that final hearing both parties were represented, as they are now: the father by Mr Fitzgerald and the mother by Mr Trezise. 

9. The orders are long and detailed, which is often the case when parties who share a poor relationship.  One hopes when making orders of this nature that the detail negotiated through the extensive efforts of the representatives of parties will go a long way to avoiding conflict between the parties in the future.  Often that is a misplaced hope.  In this case paragraph 10 may have been more happily worded to include some form of certification or means by which Dr S's opinion could be ascertained.  It does not as it currently stands.  Nonetheless, I consider it to be a workable provision. 

10. High-functioning autism in this case is relevant to the younger son who will be

    
    

    10 years old on Wednesday of this week.  He has been diagnosed with high-functioning autism but the mother contends that the father does not accept that diagnosis.  That may or may not be the case but what the operative order requires is that Dr S be satisfied that:-

    a)the father has a good understanding of high-functioning autism;

    b)the father will comply with the recommendations consistent with his child having that condition and do so consistently;

    c)the father will ensure that anyone else who cares for the child will do likewise.

11. I do note there is another order, compliance with which is not an issue, and that was paragraph 2 of the orders which reads as follows:

    That within three months the father attend personally on [Dr G], paediatrician at [M Hospital] in Victoria for the purpose of consulting with [Dr G] as to the import and meaning of the assessment of [Dr G] set down in his report dated 6 January 2005, together with the assessment or data provided by [Ms H], senior psychologist at [M Hospital], such attendance to be at a mutually convenient time for the father and [Dr G] within the stated period of three months and be at the sole expense of the father.

12. The father resides at B in Tasmania.  He was required to travel to Melbourne to confer with Dr G and the material upon which the parties rely indicates that he did so within about a fortnight, seeing Dr G on 9 October 2006. 

13. On 15 November 2006, the father's solicitors wrote to the wife's solicitors as part of a chain of correspondence all of which is not before me.  The father’s solicitor wrote:

    I understand that my client has complied with order 2 of the court orders about seeing [Dr G].  My client understands that [Dr G] has undertaken to notify the court of this fact.  My client expects that this will mean that order 10 is complied with and therefore the boys' time with my client under order 9(d), being school holiday contact, can take place.

14. There was no response of which I am aware from the mother's practitioners to that communication from the father's practitioners.

15. On 27 November 2006, the father saw Dr S personally.  The children's time with the father was due to commence on 30 December 2006.  As I have said, it did not take place.  The father was due to collect the children from McDonald's family restaurant in U at 5pm but received a text message from the wife at 4:34pm on that day which said:

    Due to paragraph 10 of the orders not completed, boys will remain with me at my lawyer's suggestion.

16. The father deposes to the following interchange between himself and the wife which I accept occurred. 

    10. This was the first piece of correspondence that I had received from the Respondent Mother advising that she would not be facilitating [the children’s] time with me in accordance with the Orders.

    11. At 4:42 pm on 30 December 2006, I responded to the Respondent Mother by sending the following text message:

    “dear [Mother], The court orders were met and your lawyer was advised, by my lawyer.  In every ones best interest I ask you to comply.  I will B there 2 pickup [the children].  Best Regards, [The father].”

    12. I arrived at McDonald’s Family Restaurant at 4:55pm on 30 December 2006 to collect [the children] at 5:00pm.

    13. The Respondent Mother (…) and I (…) then had the following text message exchange:

    5:15pm GS: “Dear [Mother], I’m waiting at Macdonalds [sic], the change over point, for you to delivery [the children].  If you don’t then it will B considered a serious breach of the court orders.  It is also against [the children’s] best interest and their expressed wishes, as U R ware.  Your action is in no ones best interest and U know that.  Your action could lead 2 U loosing your current roll and costs.  Again I ask you 2 deliver [the children] to me now.  Best Regards, [The father].”

    5:19pm RM: “No”

    5:20pm RM: “No. Regards [Mother]”

    5:24pm GS: “Dear [Mother], Your Lawyer was advised by my lawyer that I had complied with the orders.  You are aware of this, especially because I have told you now, even if your lawyer didn’t.  More importantly you aren’t acting in [the children’s] best interests.  Again I’m asking U 2 deliver [the children] 2 me now.  Best Regards, [The father].”

    5:30pm RM: “My lawyer agrees with this decision”

    5:35pm GS: “Dear [Mother], your lawyer [sic] will always agree with you, he works for you.  It is your decision not his.  You will be the one held responsible not him.  Please deliver [the children] now.  Best Regards, [The father].”

    5:46pm RM: “No turning phone off now regards [The mother]”

    5:55pm GS: “Dear [Mother], Please inform me when and where U intend to deliver [the children] to me? Best regards, [The father].”

17. A letter was then written by Dr S on 5 January 2007.  It was addressed to the Registrar of the court and it was copied to the mother and to the father.  The copy that I have is annexed to the affidavit of the father.  In that letter Dr S makes the point that the insertion of him as being someone whose opinion ought be satisfied prior to holiday contact commencing was not a matter of previous consultation, much less consent by him.  Well that is obviously something to be avoided in the future. 

18. Relevantly, Dr S says at page 2 of the letter:

    It is my understanding that although [the father] disputes [the younger son’s] diagnosis of high-functioning autism, I do not believe that his opinion should influence the obligation of court orders 6, 8 and 9, and in particular the access outlined in (d)(1), (2) and (3).

    Dr S was referring to time provided between the children and their father over holidays.

19. Whilst the purport of Dr S's letter dated 5 January 2007 is fairly clear,

    
    

    I find that he has not expressed himself to be of an opinion which, as I construe it, meets the requirements of paragraph 10 of the orders of 27 September 2006.

20. The applicant relied on that letter as satisfying paragraph 10 for the purpose of the time which was due to commence on 30 December 2006.  I do not accept that it does so.  Count 1 of the alleged contravention necessarily fails.  I agree with counsel for the wife that paragraph 10 was not complied with. 

21. The next period of time, to which Counts 2 and 3 relate, was due to commence on 13 January 2007. 

22. On 8 January 2007, the mother's solicitors wrote to the solicitors for the husband saying the following, omitting formal and irrelevant parts:

    Your client's time with the children during school holiday periods is expressed to be subject to paragraph 10 of the order.  Paragraph 10 of the order has not been satisfied. 

23. On 12 January 2007, Dr S wrote the following letter addressed to the practitioners for the father and copied to the Registrar of the Family Court.  In evidence the mother concedes having received the letter and in it Dr S says as follows:

    I, [Dr S], am of the opinion that the father, […], has a good understanding of high-functioning autism and the father has agreed to comply with my recommendations and advice in relation to interaction with and management of the [younger son] on a consistent basis, and that the father will ensure that the recommendations and advice are fully communicated to any person or persons that provide substantial care for [the younger son] during any period of holiday time with the father.

24. The practitioners for the mother received that, if not before then certainly from the practitioners for the father by fax dated 15 January 2007.  They responded as follows:

    Quite apart from what follows below, the notification to [the mother] of your client's request that she deliver the children to him by 5.00pm today is unreasonably short.  She and the children are currently staying with one of her sisters and there are logistical difficulties with returning home, preparing the children for a block period of time with your client (both materially and emotionally) before 5.00pm.  It follows that your client will not be collecting the children from McDonalds in [U] at 5.00pm today.

    To address the substantive issue, [Dr S’s] rooms contacted

    
    

    [the mother] last week and scheduled an appointment for her to meet with [Dr S] and with your client this Wednesday 17 January 2007.  She understands that the purpose of this meeting is to discuss your client’s holiday time with the children and she proposes to reserve her position on this until she has had the opportunity to meet and speak with [Dr S] first hand on Wednesday.

    Her position on [Dr S’s] letter dated 12 January 2007, and whether it meets the requirements of Paragraph 10 of the Order, is similarly reserved.

    Finally, the suggestion that the children should in any event spend a period of up to ten (10) consecutive days with your client is refuted.  There is currently what remains of the seven (7) day period which commenced on 13 January 2007 and the seven (7) day period which is due to commence on 22 January 2007.  Please confirm that your client acknowledges this.

25. It was not raised at the hearing before me but I should make clear now that I do not consider that the time provided between Dr S's letter of 12 January and the commencement of the time which was to be 13 January, to have been unreasonably short in the circumstances of this case.  I would not have considered the short notice to be the basis of any reasonable excuse.  This is a case where it was clear that time should occur if Dr S held certain opinions and the mother should have been ready and willing to hand the children over in the event that it was apparent that Dr S held the requisite views.  The reason that she did not hand the children over and the basis of her case before me today is the distinction between Dr S's letter of 12 January 2007 and the wording of the order. 

26. It was submitted that the letter from Dr S of 12 January 2007 and extracted above refers to the fact that the father has agreed to comply with Dr S's recommendation, when in fact the order requires that Dr S be of the opinion that the father “will comply with his recommendations”. 

27. It is true that the letter does use different wording.  In a ruling which I delivered earlier and which I intend to restate here, I find that Dr S's letter of 12 January 2007 meets the requirements of paragraph 10.  Dr S's opinion had necessarily to be formed prior to the commencement of any school holiday period.  It seems to me that he could do no more than make an assessment of the father's attitude to compliance with recommendations and advice in relation to the interaction and management of the younger son on a consistent basis.  Accepting that the father agreed to adopt a certain course means that Dr S has assessed the father's demeanour, his willingness, his openness to comply with recommendation and advice, and that Dr S has accepted that the father has in fact agreed.  It would have been open to Dr S to say that he thought that the father's agreement was offered in a disingenuous manner.  There is no distinction drawn by Dr S to that effect. 

1. As I mentioned earlier, there is no provision in these orders for there to be any particular form by which evidence of Dr S's opinion is to be exchanged between the parties or placed before the court. 

2. I am satisfied that paragraph 10 of the orders of 27 September 2007 has been complied with.  I consider it to be a once and for all event, inasmuch as it does not have to be complied with at the commencement of each and every period of school holiday time that the children are to spend with the father. 

3. The mother did not mount a case in relation to reasonable excuse.  She did, however, give some evidence which her counsel referred to as evidence in mitigation. 

4. It is clear from the mother's evidence that she does not, and perhaps cannot, accept that the father will care for the younger son in an acceptable and necessary way regardless of whether or not the father sincerely believes or accepts that his son has high-functioning autism.  That is probably an insolvable problem in this case.  It is a problem that the orders made on 27 September 2006 do not address and it is quite likely that no orders will ever be made which address the mother's state of mind in that regard. 

5. I find the remaining two counts to be proved and will order accordingly. 

6. Turning to penalty, whilst the mother was in the witness box I asked her whether she proposed to comply with orders for the children to spend time with the father in the future, including school holiday periods which in May-June 2007 would see the children spending seven consecutive days with the father.  The mother said she would comply.  I accept that evidence.  I also accept that the mother genuinely holds the view that the children are barely coping with the alternate weekend time that they have spent with their father from October to December 2006 so that, she believes, a week's time with the father is too much for them.  That is her personal view.  Notwithstanding those views, she has said that she will comply with the orders in the future. 

7. I am satisfied that the orders of 27 September 2006 settled satisfactorily the parenting issues and set out times which were appropriate for the children.  What the father has to do, however, is to interact and manage and treat and care for the younger son as if he has high-functioning autism.  That is his job when he is spending time with the younger son.  The father needs to do that so that meaningful time can be spent between the father and elder son as well as between the younger son and the father.  If the elder son perceives that the father is not treating the younger son appropriately, then the elder son will become a carer. 

8. In the event that the mother sought to re-agitate matters in relation to the father's care of the children during school holiday times, she would have to make an application to vary or discharge the existing orders. 

9. I have considered the various sentencing options open to me.  In fact I discussed them with the mother in the witness box, seeking from her a response in practical terms to the various alternatives. 

10. I may have misinterpreted it, but I think she agreed with me that a parenting course may not do much to assist this case.  Nonetheless I will require that she attend one and I will also require that the father attend one as well.  They need not attend the course at the same time. 

11. In the event that there is no post-separation parenting course available to the parties within their local area of the north-west coast of Tasmania, then I will discharge this order upon my chambers receiving correspondence from both solicitors to that effect. 

12. The breach of the orders in relation to 13 January 2007 is a breach which falls within subdivision (e) of the parenting compliance regime set out in the Act.

13. I have not heard that the mother has previously been found to have contravened a parenting order.  I was not addressed as to whether any previous penalty has been imposed upon her for offences of this nature.  It is therefore a matter within the operation of s.70NEA(1) and 70NEA(2) of subdivision (3). 

14. I note that in this respect I could, pursuant to s.70NEA(4), regard this as a serious disregard for the mother's obligations under the order of 27 November 2006.  I must say that there are a number of features of this case which could have made that course attractive.  However, in the absence of submissions on behalf of the father that I do so, I will not do so of my own volition. 

15. The powers of the court include a post-separation parenting program; an order for compensatory time; an order adjourning the proceedings to allow the parties to vary it - well, neither party seeks that - or an order requiring a person to enter into a bond. 

16. There is also provision in s.70NEB(1)(f) to make an order that the person who committed the contravention pay costs. 

17. In this case in relation to the first offence I will order that each party attend a post-separation parenting course, but as I have said, I will discharge that order in the event that there is none available within their region. 

18. In relation to the second offence, that falls within subdivision (f) of div.13A,

    
    

    I am satisfied that the mother has contravened the order of 27 September 2006.  She does not prove that she had a reasonable excuse for the current contravention and I have found previously that she has failed to comply with an order and imposed a sanction in that respect. 

19. The sentencing alternatives available to me are set out in s.70NFB and include a community service order.  I do not think that is an option for this state.  As

    
    

    I understand it they have not signed the necessary agreement with the Commonwealth. 

20. I can make an order requiring her to enter into a bond.  I can fine her not more than 60 penalty units.  I can make compensatory time with the children.  I can order terms of imprisonment.  I can order that costs be paid by her to the husband. 

21. Having considered the matter, I conclude that a bond is the most effective penalty in this case.  I have heard evidence under oath from the mother as to her financial situation.  She gets 75 per cent of a family allowance, which is $320 or $340 per week.  She gets no child support from the father.  She pays rent of $150 per week.  She has savings of something less than $2000 after she has made allowance for legal costs of the trial which concluded in September last year.  I do not know whether that includes legal costs to date.  The wife has a car and she has two children, and one of the children, I am satisfied, has special needs.  I doubt very much that those special needs or other various child-related expenses to do with their school and entertaining them and generally bringing them up fall with any regularity that allows her to budget.  Even if she can budget very efficiently she has got very little with which to meet her needs and the needs of the children.  She is also home schooling the younger son. 

22. A fine is not an appropriate penalty because it is more likely to result in the children being deprived financially and economically; not because that is how the mother would have it, but simply because she has very little money. 

23. The two alternatives seem to be a bond or consideration of a term of imprisonment.  I made it clear to the mother that I do not consider the latter to be an option at this point, although if the matter comes back to me for resentencing consequent on further non-compliance which must be sanctioned, incarceration would have to figure large at that stage.  

24. I am satisfied that the mother understands the gravity of the bond.  I have said it twice in court and her lawyer has said it to her as well.  That is, if she is again found to have contravened a parenting order without reasonable excuse, she will stand to be punished for that contravention as well as the contraventions in relation to the case that I find proved.  It will be a very serious predicament indeed. 

25. The bond will be for a period of two years.  It will be without security so that the mother does not have to pay any money at the moment.  However if she breaks the conditions of the bond, which will be to comply with parenting orders of the children to spend time with the father, she will have to pay, to forfeit $1000. 

26. Turning to compensatory time in respect of both counts. 

27. The father sought an extension of time over the Easter period from the three nights that he has to six nights, and he sought an extension of three days for the one week that he would otherwise have during the May-June school holidays and the September school holidays.  He sought an extension by four days for two periods during the school holidays so that he would have them for 11 days rather than seven, and he sought an extension of three days for the final period during the forthcoming Christmas holidays so he would have the boys for

    
    

    13 days instead of 10. 

28. When I deal with compensatory time, I rarely do so from the perspective of the child.  I take into account what is just between parents but I cannot say that is a particularly significant concern when looking at the extent to which time needs to be made up. 

29. The welfare of the child and children is a relevant consideration inasmuch as

    
    

    I am directed by the legislation not to make orders which I am satisfied are otherwise than in the best interests of the children. 

30. I do not consider that extensions sought by the father for the duration that he seeks is in the best interests of either child.  I think that they must be shorter than he seeks but still represent some making up of time. 

31. I would hope that somehow the father can work into the new holiday regime which I am about to impose some of the activities that he planned for the children in the school holiday periods just gone, including the holiday that was planned with his brother and his children.  

32. It is appropriate to me to extend the Easter time by three days, which would bring it up to a week; the May-June holiday and September holidays will be increased by two days, and the Christmas holidays will now comprise two period of eight days and then the existing one of 10 days and I will order accordingly. 

33. The father also seeks a discharge of paragraph 10 of the orders made on 27 September.  My preliminary response was that that ought not be needed.  It is a once and for all provision that I am satisfied has been complied with and therefore it has no future operation; there is no need to discharge it; it is spent.  Mr Fitzgerald's submission was somewhat more persuasive when framed in terms of the understanding of the parties and, I extrapolate, the understanding of third parties such as Dr S, perhaps Dr G. 

34. Counsel for the husband submits that paragraph 10 ought to be discharged for the avoidance of doubt.  So that it is clear that any change of opinion of

    
    

    Dr S, or any other similar reason that the mother may seek to avoid the operation of the school holiday orders, must be supported by appropriate evidence and not merely be on communication by Dr S to the parties that his opinion has changed.  I accept that is correct.  I will discharge paragraph 10 with effect from today so there is no confusion that compliance with it was necessary before the last Christmas school vacation period.

35. In relation to costs, the husband seeks costs of the successful parts of his application.  He says that the costs are in the sum of $3000 and that appears to be an entirely appropriate charge for the work that is undertaken in this case, particularly having regard to the fact that there have been two court appearances to date.

36. I take into account the matters set out in s.117(2)(a) in the context of whether I am satisfied that there are circumstances in this case which justify me from me ordering that each party otherwise bear their own costs.

37. In this case I am not satisfied that there are matters, but I must say that is after a balancing act of the various factors and so for the benefit of the parties I will deal with them as I have considered them.

38. I take into account the financial circumstances of each of the parties to the proceedings.  The husband is in receipt of a disability payment.  I understand that he is in a relationship with someone else and they have a small child.  I do not know about the income-earning capacity or the income of the father's partner, but his payments are $410 per fortnight, a little more than $200 per week. He has in the recent past sold his home to his father and repaid family debts and the mortgage and credit cards and he has put $5000 in his solicitor's trust account and that is all the money he has.  There is no surplus out of the sale of his house. The father has no savings. As I understand it, and he is going to have to negotiate rent with his father for the occupation of the house in which he, his partner and young child reside, and which the two children visit during periods of time they spend with him.

39. The mother's circumstances are equally difficult.  She has the care of two children.  She receives no child support.  She rents.  I previously set out her income and her rental expenditure earlier in this judgment.  She has a very modest amount of savings.  In fact they are $4000 with about $2000 legal costs owing.

40. I find that the parties are of roughly equivalent financial circumstances inasmuch as whilst the mother has some very modest savings, she has no-one with which to share the financial burden of the children.  The father has the mother of his small child with whom to share responsibilities. My consideration of the parties’ financial circumstances weighs against making an order for costs.

41. Neither party, as I understand it, is in receipt of legal assistance.  The conduct of the parties to the proceedings in relation to pleadings, particulars, discovery and inspection is not a relevant matter in this case.  Both parties have conducted their cases through their representatives as expediently as they could have been conducted and I commend both of the representatives for the parties for doing so.

42. Clearly this is a proceeding which was necessitated by the failure of the mother to comply with previous orders of the court.  They have significant noncompliances.  This is a factor which weighs heavily in favour of ordering costs but it is not the only factor.

43. I do not see in the facts of this case that there is any money that I can reasonably extract from the mother's household by way of costs to pay those of the father's and whereas the factor in s.1172A(d) is clearly in favour of the father, I do not see that in balancing the other factors I can give operation to it by making an order for costs in his favour.

44. Likewise I take into account that whilst the mother has not been wholly unsuccessful in defending the application, because one count was dismissed, still the father has been substantially successful and that is a factor that weighs in favour of the father.  But I am still bound by the fact that neither of these parties have any significant money and I simply do not see that there are circumstances in which I can justify and make an order for costs in favour of the father.

45. Having said that, I have heard that he has prudently put his solicitor in funds so that he is not going to face a deficit after today as far as legal costs are concerned.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  24 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SHEFFIELD & OAKS