T & R

[2006] FamCA 405

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT CANBERRA Appeal Nos. EA 90 of 2005

and EA 116 of 2005
File No. CAM 812 of 2005

BETWEEN:

Appellant Father

-and-

Applicant/Respondent Mother

REASONS FOR JUDGMENT OF THE COURT

CORAM:  Finn J
DATE OF HEARING:        6 December 2005
DATE OF JUDGMENT:     17 May 2006

APPEARANCES:

The appellant father appeared on his own behalf.
Mr H, solicitor (Farrar Gesini & Dunn, DX 5700, Canberra ACT) appeared on behalf of the applicant/respondent mother.

APPEAL SUMMARY

MATTER:  T and R
APPEAL NUMBERS:  EA 90 of 2005
  EA 116 of 2005
  (CAM 812 of 2005)
CORAM:  Finn J
DATE OF HEARING:  6 December 2005
DATE OF JUDGMENT:                 17 May 2006

CATCHWORDS: FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE - SECURITY FOR COSTS – Application by the mother for security for costs in relation to the father’s appeals against the orders of Brewster FM made 4 July and 16 October 2005 – Assessment of whether either appeal had any prospect of success – Appeal against costs order of 4 July 2005 determined to have some prospect of success and, given father’s impecuniosity, security not ordered in relation to appeal against other orders of 4 July 2005 to allow father to pursue appeal without impediment – Appeal against the Orders of 16 September 2005 determined to have virtually no prospect of success, and security ordered in relation that appeal – Respondent mother argued security required to enable her to obtain legal representation – Court emphasised limited purpose of security for costs, being to provide a fund out of which respondents' costs will be paid if and only if a costs order in made in favour of the respondent once appeal is heard and determined.

Caselaw cited:

Adult Guardian and Mother’s Parents and B and Child’s Representative (2002) FLC 93-116.)
Fookes v Clark (2004) FLC93-183
H v K (2004) FMCA Fam 140
Ibbotson v Wincen (1994) FLC 92-496
Jones and Jones (2001) FLC 93-080;
Luadaka v Luadaka (1998) FLC 92-830;

Legislation cited:

Family Law Act 1975 (Cth): S 117(2)

Application for security in respect of the appeal by the father against the orders of 4 July 2005 dismissed.

Father ordered to provide security in the sum of $3,000 for the costs of the mother in relation to the appeal against the orders of 16 September 2005.

Introduction

This is an application by the mother (contained in a Form 2A response document and supporting affidavit, both filed on 18 October 2005) for an order which would require the father to lodge with the Court a sum by way of security (in the sum of $8,325) for any costs which he may be ordered to pay to the mother in relation to the appeals (numbered EA 90/2005 and EA 116/2005) which he has filed against orders made by Brewster FM on 4 July 2005 and 16 September 2005. The orders which are the subject of the appeals were made in proceedings which, at least in broad terms, related to the contact arrangements between the father and the two children of the parties’ relationship.
I heard this application for security on 6 December 2005. However, before I was in a position to deliver my judgment in relation to the application, Henderson FM heard proceedings between the father and the mother for final parenting orders between the parties. On 14 February 2006 her Honour made orders which included the following (emphasis added):
33.The father to have 6 additional days of make-up contact asserted to be missed by him in 2005 conditional upon his withdrawal of Appeals presently outstanding in this Registry, being appeal number EA116/2005 and EA90/2005. Forthwith upon the father forwarding to the mother a notice of discontinuance signed, sealed and filed at the Registry in relation to both appeals, the father to have one additional night of contact per month in the weeks where his first residence period with the children is from Thursday after school to Friday morning, by extending his residence to commence Wednesday after school to the commencement of school Friday morning. Such extension of residence to occur for a period of 6 occasions only and once per calendar month.
Given this order, I considered that it would not be appropriate to deliver a decision in relation to the mother’s security application, given that such a decision would require me to express views on the likely outcome of appeals which, it appeared, were to be withdrawn.
However, when the father had not filed any notice of withdrawal of the appeals by 31 March 2006, the matter was re-listed before me on that date. On that date I made an order requiring the father to advise the Eastern Regional Appeals Registrar in writing by 4.00pm on 13 April 2006 as to whether or not he was pursuing the appeals.
I have now been provided by the Eastern Regional Appeals Registrar with a letter from the father dated 12 April 2006 which indicates that he wishes appeals EA 90/2005 and EA116/2005 to proceed to a hearing and to be listed for hearing with the appeal (EA 39 of 2006) which he filed on 13 April 2006 against the orders of Henderson FM of 14 February 2006 (- the time for filing that appeal having been extended by me on 31 March 2006).
In these circumstances it is necessary that I deliver this judgment in relation to the mother’s application for security for any costs which she may be awarded in relation to the appeals.
I mention at this introductory stage that pursuant to provisions of s 94AAA(3) of the Family Law Act 1975 (“the Act”) the Chief Justice has directed that the jurisdiction of the Family Court in relation to all these appeals (EA 90 of 2005; EA 116 of 2005; and EA 39 of 2006) be exercised by a single Judge.

The principles governing an application for security for the costs of an appeal

The power in this Court to make an order for security for costs is found in s 117(2) of the Act, which is in the following terms (emphasis added):
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
The matters to which a Court must have regard in determining whether to make an order for security are set out in s 117(2A), which is in the following terms:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The principles which govern the exercise of the power to order security for costs are to be found in the decisions of the Full Court of this Court in Luadaka v Luadaka (1998) FLC 92-830 and Jones and Jones (2001) FLC 93-080. (See also Adult Guardian and Mother’s Parents and B and Child’s Representative (2002) FLC 93-116.)
In Luadaka the Full Court, whilst noting the unfettered nature of the Court’s discretion to order security for costs, referred to the matters which may be relevant in determining such an application for security at first instance, saying:
61. In our opinion, when dealing with an application for security for costs the general rule provided for in s 117(1) applies, namely that subject to s 117(2) each party to proceedings shall bear his or her own costs. However, if the court is satisfied that there are circumstances that would justify an order then the court may, subject to s 117(2A), make such order for security for costs as the court considers just. It is not necessary to establish that there are special circumstances. However, it is necessary to establish that there are justifying circumstances. …
62. The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other. In considering whether or not to make an order, apart from those referred to in s 117(2A), matters which may be relevant include the following:
62.1 It may be relevant to take into account the means of an applicant to satisfy an order for costs if he or she is unsuccessful. Ordinarily the means of the applicant is not alone sufficient to justify an order for costs because of the rule that poverty should be no bar to justice. This is reinforced by s 117(1). However, the financial circumstances of the applicant do not prevent an order being made if there are other grounds which justify an order. Financial weakness may be relevant, for example, if the applicant is a company. In relation to the means of the respondent, who is the applicant for security, it was held by Goldstein J in Alexander and Alexander (supra) and Gee J in B and B (supra) that the question is whether or not the respondent is able to pay his or her costs. Section 117(2A)(a) requires consideration of the financial circumstances of both parties. However, we do not accept that it will only be in cases where the applicant for security does not have the means to meet his or her costs that an order would be made. In appropriate circumstances an order may be made even if the applicant for security has the means to pay his or her costs.
62.2 The prospects of success is a relevant matter to take into consideration… However, ordinarily the court will not undertake a detailed assessment of the likelihood of the applicant's success unless it can be demonstrated that there is a high probability of success or failure… This is because of the lack of material at the time the application is dealt with. However, such an assessment may be possible in circumstances where, as in this case, affidavits have been filed in which the case sought to be made out is set out.
62.3 It is a relevant consideration whether the applicant's claim is made bona fide, whether it is genuine and not trivial, vexatious or a sham…
62.4 It may be relevant to consider whether or not an order for costs would be oppressive or stifle the litigation. …
62.5 It may be relevant to consider whether or not the litigation may involve a matter of public importance…
62.6 It may be relevant to consider whether or not there has been delay in bringing the application. An application may be refused if there is delay in making the application and prejudice is caused to the respondent to the application…
62.7 Other relevant matters may include any difficulties of enforcing an order for costs and the amount of costs to be incurred.
63. We do not suggest that the above matters are exhaustive of what may be taken into account. …
In Jones the Full Court went on to say, specifically with regard to applications for security in relation to appeals:
20. There is no doubt that the wife is impecunious, that she may well be unable to proceed with the appeal if she is ordered to provide security and will be unable to meet an adverse order for costs in the appeal. The prospect, however, of the husband being left without a remedy in respect of a costs order if the appeal is dismissed is significant.
21. It has long been recognised that, as a general rule and in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is a natural person, will not of itself be a basis for ordering that person to provide security. There is, however, an exception to that general rule, namely in the case of appeals. See Cowell v Taylor (1885) 31 Ch D 34 at 38, J & M O'Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 at 264, Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Paton v Campbell Capital Ltd (unreported, Federal Court of Australia, 1 July 1993).
22. The fact that the wife would be unable to pay the costs awarded against her, if her appeal was dismissed, is, in our view, a significant factor to take into account in considering whether to exercise the discretion to order security in favour of the husband, but it is not the only or deciding factor.
23. If an appeal appears to have little merit, a court may be more disposed to make an order for security for costs. Whilst we have not had the benefit of submissions on behalf of the wife, the appeal does not appear to raise matters of principle.

The matters relied on by the parties in the present case

In support of the mother’s application for security in the present case, and against the background of the principles set out in Luadaka and Jones, the mother’s solicitor placed particular emphasis on the father’s poor financial position and the likelihood that he would not be able to meet any costs order made against him in relation to his appeals, and also on the lack of prospects of success of the appeal (at least as the mother viewed those prospects).
For his part, the father emphasised the stifling effect that an order for security would have on his appeals, which he endeavoured to demonstrate in comprehensive written submissions (which addressed the matters referred to in Jones) had significant prospects of success.

The financial positions of the parties

Together with his written submissions, the father had filed an affidavit of financial circumstances (sworn 17 November 2005). That affidavit revealed that his only income is from government pensions and allowances and that his liabilities exceed his assets. I do not need to set out the figures provided by the father. It is sufficient to observe that in his financial statements, the father stated “I have no assets and no means to pay at all. I... attended a bankruptcy meeting with the financial counsellor... at... Wagga.”
It can therefore be concluded that the father is unlikely to be able to meet any costs order made against him if one or both of his appeals was to be unsuccessful. It must also of course be concluded that the father would be unlikely to be able to meet any order that he lodge security in respect of his appeals, with the result that if such an order is made, the father may well not be able to proceed with his appeals.
I turn then to consider the question of whether or not the appeals are likely to have sufficient chance of success such that they should be permitted to proceed without being impeded by an order for security and with the consequent risk that the mother may find that she cannot recover her costs should a costs order be made in her favour.
Before doing so, however, I mention here that it can be inferred that the mother is not a person of means, given her unchallenged affidavit evidence that she could not afford legal representation for the appeals if her application for security is not granted.
The mother must understand, however, that the purpose of an order for security for costs in relation to the appeals is not to enable her to obtain legal representation for the appeals. The purpose of such a security order is simply to provide a fund out of which her costs would be paid if and only if an order was made in her favour in relation to the costs of the appeals.
The general rule that each party pays his or her own costs in proceedings under the Act applies in relation to appeals. Whether or not the mother would receive an order that the father pay her costs incurred in the appeals would only be known after the appeals are heard and determined. If the appeal court decided that there should not be a costs order in favour of the mother, she would not receive any of the funds that may have been lodged by way of security. If no costs order was made, those funds would be returned to the father.

The prospects of success of the appeal against the orders of 4 July 2005

By way of background to the orders made on 4 July 2005, it needs to be explained that on 22 May 2002, consent orders were made between the father and the mother by the Local Court at Wagga which provided as follows:
1.That both parties share in the long-term care, welfare and development of the children...
2.That the children reside with the mother.
3.That the father had contact with the children as follows:
(a)Each weekend, with the exception of the first weekend of the month, from Friday p.m. to Sunday p.m.;
(b)On the Monday and Tuesday night of the first week in every month:
(c)From 9.00am on 24 December 2002 to 2.00pm on 25 December 2002 and each alternate year thereafter;
(d)From 2.00pm 25 December 2003 to 5.00pm 26 December 2003 and each alternate year thereafter;
(e)For half of each school holidays as agreed and in absence of agreement for the first half in 2002 and each alternate year thereafter and the second half in 2003 and each alternate year thereafter;
(f)For not less than 4 hours on each of the children’s birthday and if on a school night for not less than 2 hours, and should the birthday fall on a weekend of the father’s contact the mother had contact as provided in this Order;
(g)At such other times as arranged and agreed between the parties.
On 16 March 2005 in the Local Court at Wagga, the father filed an application headed “Application – Contempt” against the mother. In the section of the application where the “Details of the alleged contempt” are to be provided, the father inserted the following:
The respondent notified the defendant by registered mail that she was setting aside paragraph 3[(a)] of registered concent (sic) orders:- weekend access.
Despite protest by the applicant the defendant proceeds to continue with her modified plans reducing the fathers (sic) 4 year contact schedule with his daughters.
The defendant threatens that failure to reach her “amicable agreement” will result in her “filing proceedings” against the applicant. The applicant contends that the defendant does not have the authority to “suspend” the orders of the Family Court of Australia and is being contemptious (sic) in doing so.
Also on 16 March 2005 the father filed in the Local Court an application headed “Application – Contravention” against the mother. In the section of the application where the “Details of the alleged contravention” are to be provided to the father inserted the following:
The defendant produced a letter & calendar of contact for child custody & stated that failure to agree would result in legal action.
The defendant clearly states her future “suspension” of clause 3[(a)] of the concent (sic) orders of the Family Court of Australia on her own authority.
It would seem that the father filed these applications after he had received from the mother a letter which the father describes in his written submissions as “the letter of 10 March 2005” and in which the mother apparently said that for the future the contact provided for in Order 3(a) of the existing orders (the weekend contact) would be suspended during school holidays (which were the subject of Order 3(e)).
It appears that the father’s applications came before the Local Court on a number of occasions in early April 2005 and at some point were transferred to the Family Court.

On or about 12 April 2005 the mother filed in the Local Court applications seeking on an interim and on a final basis revised contact orders which would not provide for weekend contact during school holiday periods. Those applications were also apparently transferred to the Family Court.
On or about 24 May 2005 the applications which had been transferred from the Local Court to the Family Court were transferred to the Federal Magistrate’s Court.
On 29 June 2005 the father filed an application (together with a supporting affidavit) seeking orders, apparently on an interim basis, for a shared care arrangement involving an alternate week and weekend arrangement.
On 4 July 2005 the father and the mother’s solicitors appeared before Brewster FM. His Honour asked at the outset what the matter was “all about”, and he referred to the applications for residence or interim shared residence. The mother’s solicitor informed him that such applications were not pressed that day, but rather the mother was seeking the striking out or dismissal (on a summary basis) of the contempt application and also, it seems, the contravention application, filed by the father.
After some brief discussion, his Honour said that he would hear the summary dismissal application later in the day and he also indicated that he would arrange for a family conference (presumably in relation to the residence dispute). There was also some discussion about costs which I will refer to later in this judgment (Transcript: pages 1 – 9).
When the matter came back before his Honour very late on that day (4.19pm according to the Transcript), his Honour made it very clear that what was before him was an application to summarily dismiss the father’s contravention and contempt applications (Transcript: page 10, lines 16-17). His Honour then enquired of the father whether the order or orders which he alleged in his applications had been breached by the mother, were Orders 3(a) and (e) of the orders of 22 May 2002 (which provided for weekend and school holiday contact).
After some discussion his Honour concluded that the father also alleged, at least for purposes of the contempt application, a breach by the mother of Order 1 of the orders of 22 May 2002 (which provided that both parents share the long-term case, welfare and development of the children), apparently because she had taken the children to counselling (see in particular Transcript, page 14, line 45, and page 16, lines 41- 45). However, his Honour pointed out that there was no reference to Order 1 in the application document (Transcript: page 18, line 46-50) and that it was necessary for there to be such a reference in the application document (Transcript: page 20, line 12).
The discussion then moved to the alleged breaches of Orders 3(a) and (e) and to the question of whether a threat to breach an order (as contained in the mother’s letter, which had led to the father filing his applications) will be regarded as a breach of the order. In this context, the father referred his Honour to the case of Ibbotson v Wincen (1994) FLC 92-496, but his Honour ultimately ruled that “a threat to breach an order is not a breach” (Transcript, page 28, line 33-34).
A little later his Honour referred to the case of Fookes v Clark (2004) FLC93-183 where it was said, according to his Honour, that “by implication where orders give a non-resident parent half school holidays, weekend contact is suspended during those holidays”. His Honour then expressed his view that even if in the mother had carried out her threat to suspend weekend contact during the school holidays, she would not (given the decision in Fooks v Clark) have breached the relevant orders (Transcript: page 30-31).
It was then necessary for his Honour to stand the matter down while he dealt with other matters in his list. After an adjournment of about 30 minutes, his Honour delivered the following short judgment:
1.In this matter [the solicitor for the mother] seeks to have the father’s applications for contempt and for breaching Orders made by the Local Court at Wagga Wagga on, it appears 22 May 2002, summarily dismissed. [The solicitor’s] contention is the only breach alleged in the material filed by the father is - he would not call it this but I will to put it at its highest - a threat by his client that she would not permit weekend contact to occur during school holidays. For whatever reason that threat did not materialise and she did not carry it out.
2.It was submitted on behalf of the father that the threat alone was sufficient to constitute a breach of the Court orders. It was submitted by the father that the case of Ibbotson v Wincen is authority for that proposition. For the reasons that I have indicated in interchange with the father I do not believe that that case is authority for that proposition. It was further submitted that the case of Mulcahy is also authority for the proposition advanced by the father. That case concerned contempt in the face of the Court. It was in a quite different context. I do not accept that it is authority for the principle contended for by the father. I do not accept the proposition that a mere threat to breach court orders can constitute a breach of those orders.
3.I interpolate that even if the mother had carried out her threat the case of Fookes v Clarke (unreported Full Court of the Family Court 29 March 2004) would indicate that she would not have been in breach of the orders, it being implied in the orders that weekend contact is suspended during school holidays. However I need not dilate on that case as I need not rely on it.
4.I dismiss the father's applications for the reasons I have indicated.
5.[The father] also relied on a breach of order 1 of the Local Court orders. No reference to order 1 is contained in his application for contravention or his application for contempt. In my view, if a breach of that order was alleged, it should have been alleged explicitly in either of those applications. It was not so I do not consider order 1. I invited him, if he wishes, to file a further application or applications dealing with order 1.
Then, after the hearing both the father and the mother’s solicitor in relation to the costs, his Honour ordered the father to pay the mother’s costs in relation to the father’s applications in the sum of $1,000.
The formal orders then made by Brewster FM which are relevant for present purposes are as follows:
1.THAT the father’s contravention and contempt application (sic) be dismissed.
2.THAT the father pay the mother’s costs in relation to these applications in the sum of $1,000.
His Honour also made orders for a family conference and other procedural orders for a hearing of the residence applications on 9 and 10 February 2006.
On 1 August 2005 the father filed a notice of appeal against all orders made by his Honour on 4 July 2005. The grounds of appeal contained in that notice of appeal are as follows:
1.I was not given the opportunity to respond to the Magistrate (sic) use of Fooks v Clark as he applied it to this case.
2.He did not read 1 page of my 4 page argument considered, or my 16 page affidavit, or my 46 pages of supporting attachments of my weekend and holiday contact since 2001.
3.Magistrate Bruister (sic) used intimidation as part of his language such as “Council (sic) wants to give you a bloody nose” [in relation to costs].
4.Magistrate Bruister (sic) was not alocating (sic) sufficient time.
5.Magistrate Bruister (sic) twice “lead” opposing Council (sic) for costs and objections.
See attached documentation.
I understand the “attached documentation” to be some six typed paragraphs numbered (2) to (7), a copy of which is annexed to this judgment as Annexure A. (It would seem to be the same material as is contained in an affidavit filed by the father also on 1 August 2005 in support of an application to extend time for the father to appeal the orders of 4 July 2005. It was ultimately unnecessary for the father to pursue that application to extend time).
In considering what prospects of success the father may have in an appeal against the Federal Magistrate’s order dismissing the contempt and contravention applications and the order for costs, it has to be recognised that the father’s grounds of appeal are not drafted in conventional form and indeed his notice of appeal might well be said not to disclose any proper grounds of appeal.
However, bearing in mind the father’s status as a self-represented litigant, I consider it necessary to try to extract the essence of the father’s complaints from his notice of appeal and attached “documentation” and from his written submissions (prepared in response to the security application), and to consider whether, if such complaints were embodied in recognisable grounds of appeal, they could have merit.
I will consider first the father’s complaints directed to the dismissal of his contempt and contravention applications, and then consider his complaints in relation to the costs order.
In relation to the dismissal of the contravention and contempt applications, it needs to be said at the outset that because of the serious consequences for the respondent to a successful contravention or contempt application, it is essential that the details of the contempt or contravention and the respondent’s act or omission (which is alleged to constitute the contempt or contravention) be clearly set out in the application (as is made clear in Part C of the contempt application filed in this case, and Part D of the contravention application). If the details of the act or omission could not constitute a contempt or a contravention of the orders, and thus the application could not possibly succeed, then the Court is entitled to dismiss the application on a summary basis, that is, without embarking on a hearing of the application on its merits, and thus without considering the evidence which allegedly supports the application.
This is what happened in the present case. As is clear from his reasons which I earlier set out, Brewster FM formed the view that a threat by the mother to suspend weekend contact during school holidays could not amount to a breach of Orders 3 (a) or (e) of the orders of 22 May 2002. He further concluded that even if the mother had carried out her threat to suspend weekend contact during the school holidays, that would not have amounted to a breach of the contact orders given the decision of the Full Court in Fooks v Clark. In my view an appeal court would be unlikely to conclude that his Honour was wrong in law in reaching these conclusions.
However, in relation to the question of whether a threat to breach an order can amount to a breach of the order, the father relies heavily in his written material on the decision of Bryant CFM (as she then was) in H v K (2004) FMCA Fam 140. In that case, her Honour held that a letter written by a mother advising of a decision by her to change the children’s school had hindered or prevented the father from carrying out his joint parental responsibilities to share in the decisions regarding the children’s education. Thus, the mother was held to be in breach of the order providing for joint parental responsibility in both parents.
In my view H v K is clearly distinguishable from the present case and would be of no assistance to the father in his attempts to establish error on the part of Brewster FM for the following reasons. First, H v K was concerned with the breach of a joint parental responsibility order which, because it carries with it the obligation to consult, is very different in nature from a contact order. Secondly, as I read her Honour’s decision, not only had the mother in that case written to the father informing him of the school change, but the mother had already made the school change. In other words, not only was there a letter from the mother to the father, but the action referred to in the letter had been carried out. In the present case the action foreshadowed or threatened by the mother had not been carried out. (It cannot be seriously argued that by threatening legal proceedings to change the existing contact orders, or by instituting such proceedings, the mother could be said to have breached those existing orders).
Further, his Honour was, in my view, correct in his application of Fooks v Clark. In that case, the Full Court said:
20.…Where there is an existing order for parents to equally share all school term and Christmas holiday periods it must be that, as a matter of common sense and practicability, as well as being in the best interests of a child, the order is read as a whole and that daily and alternate weekend contact be suspended during all such school holiday periods. If parents wish to make other specific arrangements then they must ensure that they are properly identified and provided for in the order.
In my view, this statement by the Full Court would apply to the orders in this case which the father claims were breached.
In his grounds of appeal, attached documentation, and written and oral submissions, the father raises various other complaints, notably that his Honour did not give him an opportunity to consider and make submissions on Fooks v Clark, that his Honour did not read the father’s affidavit or written submissions, or follow the prescribed procedure for hearing contempt of contravention applications, and that the father was denied a fair hearing. Because of the view which I ultimately take about this matter, it is not necessary that I consider these complaints in any detail. I would only say that having regard to the nature of an application for summary dismissal of a contempt and/ or contravention application, and also to the grounds for that summary dismissal application, I consider the these other complaints would be held by an appeal court to have little merit.
There is, however, one apparent complaint by the father which I consider requires some explanation. It will be recalled that the transcript of the hearing of 4 July 2005 reveals that before his Honour the father had claimed that the mother was also in breach of Order 1 of the orders of 22 May 2002, and that his Honour had pointed out that the father’s applications contained no reference to such a breach.
Before me, I understood the father to claim that prior to the hearing on 4 July 2005 he had endeavoured by sending further documentation to the Court to amend his application or applications to allege a breach of Order 1. I understood that further documentation to be the following paragraphs which appear as paragraphs 85 to 88 of the affidavit filed by the father on 29 June 2005:
85.I ask the court to make a finding that [the mother] has breached/ shown contempt for the shared parenting orders by
85.1Unilaterally deciding to refuse to pass of the girls (sic) school reports to the father
85.2Unilaterally deciding to refuse the father involvement in the dental care of the children
85.3Unilaterally deciding to exclude the father in the welfare – specifically counselling of the children
85.4Unilaterally deciding to reinterpret the orders of the court in the signed and dated letter of 10 march putting aside the historical custody arrangements in favour of a personal interpretation increasing her own custody
in violation of the specific orders of ‘shared long therm (sic) welfare and development of the children’ in clause 1 of the orders.
86.I request a finding that [the mother] has breached clause 1 of the orders.
87.I request a finding that [the mother] has shown contempt for the orders.
88.I request that should the breach/ contempt finding be made that the court require of [the mother] that she attend a course to improve her understanding of her responsibilities in giving effect to the orders.
It will be seen that the above material by its numbering forms part of the affidavit. It cannot be seen as part of the application which it should have been if it was to be relied on in opposition to the summary dismissal application. In view of things said by the father when he was before me, I cannot discount that he may have intended that an officer of the court attach a copy of paragraphs 85 to 88 of the affidavit to one (or both) of his applications. But this apparently did not happen. In my view the uncertain circumstances surrounding the father’s material alleging a breach of Order 1 could not now be relied upon by the father to establish appealable error on the part of Brewster FM.
It will thus be seen that if the father’s appeal was only against the summary dismissal of his contempt and contravention applications, it would, at least in my opinion, have little prospect of success. However, as is clear from Grounds 3 and 4, the father also appeals the costs order made against him on 4 July 2005.
The first reference to the matter of costs occurs at page 3 of the transcript and is as follows:
FEDERAL MAGISTRATE: I'm sorry, Mr [T] [the father]. I'm not using this to threaten at all. But if you were to persuade me to make that order, you would be the first person to have ever done so. If you fail, there is no rule that says that a person who fails an application in children's matters, does not have to pay the other sides costs. It is quite possible that you might. I don't say that as a threat, but you - but I do not want people coming, as has happened, saying when they've had an order for costs made against them, they didn't know that that was a possible outcome. It is. Now, the children are going on 11 and 8, is this a matter - I'll request this to [the mother’s solicitor], for a family conference may be of any value?
His Honour is clearly here referring to the possibility of a costs order being made in residence or contact proceedings which were not the proceedings which his Honour determined later that day. Thus, this statement has no relevance to the costs orders ultimately made against the father in relation to the dismissed contravention and contempt applications.
The next reference to costs, and one which is the subject of Ground 3, occurred in the following context at page 7 of the Transcript:
MR [H] [the mother’s solicitor]: - I'd request that the contempt application be determined today.
FEDERAL MAGISTRATE: Why?
MR [H]: Because, your Honour, this is a - contempt proceedings are serious proceedings, he - the [father] has not - - -
FEDERAL MAGISTRATE: The chance that - - -
MR [H]: - - - not, in fact properly pleaded it but in any event, what he alleges, is not a breach and it's certainly not a flagrant challenge to the authority of the Court.
FEDERAL MAGISTRATE: Well, from what I've been told, I would have thought it would inevitably fail but I can't see that this is - - -
MR [H]: No, your Honour - - -
FEDERAL MAGISTRATE: This is an arid exercise. Are you pressing your contempt application?
MR [T]: Yes, yes, your Honour, he is.
FEDERAL MAGISTRATE: Are you?
MR [T]: Yes, well, I believe so.
FEDERAL MAGISTRATE: Have you got any legal advice about this?
MR [T]: I've - well - - -
FEDERAL MAGISTRATE: Mr [H], wants it determined, I suspect he wants it determined to give you a bloody nose in relation to costs. Because that's what would inevitably would happen if your application were to fail. Now, are you pressing that application?
MR [T]: Your Honour, I believe I am.
FEDERAL MAGISTRATE: All right. Well, 3.15.
It was entirely appropriate for his Honour to warn the father (although perhaps desirably in less graphic terms) that if his contempt application failed, he would be faced with a costs order. I do not consider that an appeal court would find that his Honour was endeavouring to intimidate the father. He was merely warning the father of the common consequence of a failed contempt application.

However, the discussion then continued at page 8 of the Transcript (emphasis added):
FEDERAL MAGISTRATE: So that's on the contempt only, that's a matter of whether it be summarily dismissed.
MR [H]: Yes, your Honour.
FEDERAL MAGISTRATE: Whether it fails, at the outset.
MR [T]: And the breach, your Honour.
FEDERAL MAGISTRATE: No, I'm not hearing that today, but Mr [T] has a point, if it's simply an issue of costs that you want to - - -
MR [H]: No, it's not, your Honour. In fact - - -
FEDERAL MAGISTRATE: You won't be pressing costs this afternoon? Otherwise I will - otherwise I will adjourn both of them, if Mr [T] presses them, I'll adjourn both of them to another date to - - -
MR [T]: Your Honour, what has gone on is just not acceptable, I - - -
FEDERAL MAGISTRATE: I'll incorporate that in the date for final hearing, but he's got a point, he doesn't have to consent to the contempt and the contravention being split off together.
MR [H]: Except, he's saying contravention, your Honour.
MR [T]: Excepting that they allege the same thing basically.
FEDERAL MAGISTRATE: Well - - -
MR [T]: Well, why split them?
FEDERAL MAGISTRATE: Well, then - I could - if it can be done on the papers, in other words, your application for a summary of dismissal, I could hear it this afternoon.
MR [H]: It can, your Honour, - - -
FEDERAL MAGISTRATE: On both, on both.
MR [H]: Yes, your Honour.
FEDERAL MAGISTRATE: All right. Then we will determine them today, not before 3.15.
It has to be said at this point that while it is difficult to understand the significance of his Honour’s question or statement “You won’t be pressing costs this afternoon”, it can well be read as suggesting that if his Honour was prepared to assist the mother by determining the summary dismissal application later that day, there should be no application for costs.
Later in the day at the conclusion of the hearing of the summary dismissal application, and after his Honour had ruled at page 28, lines 33 to 34 that “a threat to breach an order is not a breach” and at page 31, lines 31 to 32 that the decision in Fooks v Clark would indicate that the mother would not in any event be guilty of a breach, but before he had delivered his formal reasons for judgment and, importantly, before the solicitor for the mother had made any application for costs, his Honour said (at pages 31 to 32 of the Transcript):
I will stand this matter down until I have completed my list. I'm sorry Mr [H], but as at the moment you won't be financially - your client won't be financially put out by that as at this stage. I'll hear Mr [T] in relation to costs in due course but at the moment I can't see any reason why an order for costs should not be made against him. Stand the matter down until the conclusion of the list. I think I have one more matter to go.
When the matter resumed some 30 minutes later, the following exchange occurred:
FEDERAL MAGISTRATE: Now, where are we up to?
MR [H]: Your Honour, my application for costs for this afternoon.
FEDERAL MAGISTRATE: Well is this - I can't remember if - - -
MR [H]: I understood that your Honour had made the decision to dismiss the - - -
FEDERAL MAGISTRATE: I will just recapitulate so that - in the form of a judgment.
Having delivered his judgment (as set out in paragraph 35 above), his Honour then addressed the father asking if there was anything he wished to say about costs. The following exchange then occurred at pages 32 to 33:
MR [T]: Yes, your Honour, I believe that this matter has not been heard appropriately. I refer to rule 107, achieving the main purposes of Family Law rules and, your Honour, I believe that in the light of the fact that order 1 was not heard and the fact - and the breach of order 1 was not heard, and I also - and the fact that this has been previously been brought to the attention of the opposing counsel on numerous occasions, both in written and
- - -
5
FEDERAL MAGISTRATE: Mr [T], you are canvassing my rulings.
MR [T]: I - canvassing - - -
FEDERAL MAGISTRATE: You may appeal those rulings and any - - -
MR [T]: I don't understand what you mean by canvassing, your Honour.
FEDERAL MAGISTRATE: Well, you are opposing an order for costs on the basis by saying I was wrong. If I was wrong that would be corrected on appeal and any costs order that I make will automatically be discharged, or will inevitably be discharged by the Appeal Court. Is there anything else you wish to say about the issue of costs.
MR [T]: I don't believe that costs should be awarded against me under the circumstances, your Honour.
FEDERAL MAGISTRATE: Well, in this matter Mr [H] asks for - well, I suppose I should be fair. Do you want to put in issue your financial circumstances opposed to those of Ms [R] [the mother] as a relevant factor?
MR [T]: Absolutely, your Honour. The circumstances are this: there was never any property settlement; all of the assets belong to my ex-wife, both enjoyed by Mrs [R] and [her husband] Mr [R]. Your Honour - - -
FEDERAL MAGISTRATE: What do you earn?
MR [T]: I own - - -
FEDERAL MAGISTRATE: What do you earn? What is your income?
MR [T]: My current status is unemployed and, your Honour, I do believe that my assets are under the - and I am not being facetious when I say this, that they are under the benchmark requirements for bankruptcy. Should a finding be made against me, I will be filing for - I find myself in a position where I am unable to pay I will be filing for bankruptcy.
FEDERAL MAGISTRATE: Yes. Mr [H], is your client on Legal Aid?
MR [H]: No, your Honour.
FEDERAL MAGISTRATE: I think under these circumstances, the dominant consideration is paragraph (e) of section 117(2)(a). This was an application that should never have been brought. It is unnecessary and my recollection of this morning is that Mr [T] was not responsive to suggestions that he might prefer not to pursue - correct me if I get any of this wrong, Mr [H], I have been dealing with so many cases today and was not disposed to not pursue these applications. I invited him - it is my recollection, in my view the application was fundamentally flawed. I do not propose to make an order for costs in the full amount that is referred to in the rules. I will make an order for costs of the sum of $1000.
In my view an appeal court may well have considerable concerns as to why his Honour appeared to indicate to the mother’s solicitor when the matter was first before him that he should not press for costs, and yet then went on to make an order for costs. An appeal court might also well be concerned as to why then at the conclusion of the day, his Honour appeared to assume that an application for costs had been made, before it had in fact been made (if indeed it was ever formally made), and indeed before judgment had been delivered on the summary dismissal application. His Honour could well be seen as having invited the application for costs.

Conclusion in relation to security in relation to the appeal against the orders of 4 July 2005

Given the concerns which an appeal court may well have regarding the making of the costs order, and given the significance of such an order for an impecunious litigant such as the father, I consider that it would be unjust to order him to lodge security in respect of his appeal against the costs order since an order for security may well stifle his appeal against the costs order.
I have earlier indicated that I would regard an appeal against the summary dismissal of the contravention and contempt applications as having little chance of success. However, given that an appeal court would need in order to satisfactorily determine the appeal against the costs order, to acquaint itself with the nature and outcome of the summary dismissal proceedings, I consider that it would be somewhat artificial to require that security be lodged in relation to the appeal against the summary dismissal order when it is not required in relation to the appeal against the costs order.
Accordingly, in the exercise of my discretion, I do not propose to order the father to lodge security in respect of this aspect of any appeal against his orders of 4 July 2005. In reaching this decision, I do not overlook the financial position of the mother, but I consider that overall the interests of justice weigh in favour of permitting the father who is an impecunious person, to pursue his appeal against the costs order without impediment.

The prospects of success of the appeal against the orders of 16 September 2005

On 16 September 2005 both the father and the mother’s solicitor again appeared before Brewster FM apparently following a request from the mother’s solicitor for a re-listing of the matter to determine the issue as to whether the father’s weekend contact should occur during the then forthcoming September/ October school holidays. In the course of the hearing that day, it was also decided that his Honour should define the Christmas school holiday arrangements because the hearing of the parties’ applications for final orders was not until February 2006.
It is fair to say that the hearing took the form of a discussion between his Honour, the father and the mother’s solicitor. The hearing concluded with the following exchange:
FEDERAL MAGISTRATE: That’s done. I had better recapitulate all the orders. (1) The mother’s period of time with the children in the September/October school holidays will be from 9 am on Saturday, 24 September to 5 pm Saturday, 1 October. Notwithstanding the Local Court orders, the father will then have the children from 5 o’clock on Saturday, 1 October to the commencement of school on Tuesday, 3 October. That’s for those holidays. Christmas Day, the mother will have the children from 9 am on 24 December to 2 pm on 25 December. But weekend contact for both parties is suspended during the Christmas school holidays and whilst this won’t be in the orders, a decision will be made at the final hearing as to what, if any, make-up contact should be ordered as a consequence of the father losing his weekend.
MR [H]: Your Honour, could your Honour also suspend paragraph 3(b) of the orders during the school holidays because the Monday and Tuesday of the first week of January I’m not certain whether they would fall in the mother’s period or not.
FEDERAL MAGISTRATE: Yes, quite.
MR [T]: Your Honour has already indicated that it’s suspended.
The formal orders then issued by his Honour were in the following terms (emphasis added):
1.THAT the Orders made at the Local Court at Wagga Wagga on 22 May 2002 are varied as follows:
(a)That the mother is to have the children … in the September/ October school holidays this year from 9.00am on Saturday 24 September 2005 until 5.00pm on Saturday 1 October. The children will then be with the father until the commencement of school on Tuesday 4 October.
(b)In Christmas 2005 the children will be with the mother from 9.00am on 24 December until 2.00pm on 25 December.
(c)That the father’s weekend contact and Monday and Tuesday contact is suspended during the 2005/2006 school holidays. The father’s contact is to be in the first half of these holidays.
Subsequently a further order was issued by his Honour, stated to be “Amended Under the Slip Rule”, and in the following terms (emphasis added):
1.THAT the Orders made at the Local Court at Wagga on 22 May 2002 are varied as follows:
(a)That the mother is to have the children … in the September/ October school holidays this year from 9.00am on Saturday 24 September 2005 until 5.00pm on Saturday 1 October. The children will then be with the father until the commencement of school on Monday 10 October.
(b)In Christmas 2005 the children will be with the mother from 9.00am on 24 December until 2.00pm on 25 December.
(c)That the father’s weekend contact and Monday and Tuesday contact is suspended during the 2005/2006 school holidays. The father’s contact is to be in the first half of these holidays.
On 30 September 2005 the father filed a notice of appeal stated to be against all the orders of 16 September 2005. A copy of the grounds of appeal, which take the form essentially of a lengthy narrative, are attached as Attachment B to this judgment.
The orders sought by the father in his notice of appeal against the orders of 16 September 2005 were as follows:
1.I seek that the weekend contact I have had for the past 5 years, continue in line with the original undertakings before the court that existed until Magistrate Brewsters (sic) intervention under the ‘slip rule’ making new orders and removing my 5 year history of contact in the absence of hearing any argument, and against the material evidence of the court appointed counselors (sic) recomendations (sic).
2.I request that my custody matter be listed before an alternate judge as I have no confidence in Magistrate Brewster.
3.I request that my custody matter be postponed until after the breach and contempt matters are resolved in the Appeals Court.
4.I request that my 6 days of weekend contact be restored during the Christmass (sic) holidays.
5.I request that my seventh day of ‘make up contact’ for Tuesday 11 October be restored before 11/10/05.
In his written outline of argument in support if the mother’s application for security, the solicitor for the mother submitted as follows:
The Respondent admits that there was some irregularity in the way in which the slip rule was applied in this case. The difficulty for the Appellant is that it is a moot point. This is because the Orders have been exhausted. They finished on 10 October 2005 and have no further operation. The only issue for a Court would be whether or not the Father should have a “make up day” to compensate him for the fact that the orders as amended provided for him to have one less day than had been intended. This is not a matter for an appeal court but for the Federal Magistrate.
I agree with that submission. An appeal court could do nothing to restore the day that has apparently been lost by the father in the October 2005 school holidays, regardless of what irregularity may have occurred in the making of the relevant order.
It would appear from the orders sought by the father in his notice of appeal that he was also dissatisfied with the order concerning the 2005-06 Christmas school holidays. I understand that his complaint against this order would be that his weekend contact would be removed from that half of the holiday period that the children were with their mother. In my view that complaint by the father would also have no prospect of success because of the decision of the Full Court in Fooks v Clark, to which I previously referred. Furthermore, a consideration of the transcript of the hearing on 16 September 2005 indicates that the father raised no objection to the course proposed by his Honour in relation to the Christmas holidays.
I also mention that Order 2 as sought in the father’s notice of appeal would be unlikely to be made by an appeal court unless it allowed an appeal against Brewster FM. Order 3 would be a listing decision for the Federal Magistrate’s Court.
For these reasons I conclude that the father’s appeal against the orders of 16 September 2005 has virtually no prospect of success. In these circumstances it would not be unjust to the father if the effect of an order for security was to stifle this particular appeal. Given the father’s poor financial position and the lack of prospects of success, I propose to order that the father lodge security in respect of that appeal.
The mother has sought security in the sum of $8,325.00 for both appeals. Given that I propose to order security in respect of one appeal only, I consider the appropriate figure to be $3,000 (see the observations of the Full Court in Adult Guardian v B (2002) FLC 93-116, paragraph 76).
I will give the father sixty days to provide such security. Should he fail to do so, the appeal against the orders of 16 September 2005 will stand dismissed.

Future course of the father’s appeals

I understand that the father wished all his appeals to be heard together. I propose to so order.
Given the views which I have expressed regarding the prospects of success of the appeals against the orders of 4 July and 16 September 2005, those appeals will be listed for hearing before another Judge of the Appeal Division of this Court as soon as possible after 60 days from the date of these orders. Because of the present extreme pressures on the time and availability of Judges of the Appeal Division and also the fact that neither party lives in a capital city, I will when I deliver this judgment, also make procedural orders in respect of all three appeals in an endeavour to avoid the Judge who hears the appeals having to conduct and the parties to attend a further procedural hearing.

Orders

That the application by the mother for security in respect of the appeal by the father against the orders of 4 July 2005 (EA 90 of 2005) be dismissed.
(a) That unless within sixty (60) days of the date of these orders the father provides security in the sum of $3,000 for the costs of the mother in relation to the appeal (EA 116 of 2005) by the father against the orders of 16 September 2005, then that appeal shall stand dismissed.
(b)That the father shall comply with this order for the provision of security in the sum of $3,000 by paying that sum to the Collector of Public Moneys, Sydney Registry of the Family Court of Australia.
(c)That the Collector of Public Moneys at the Sydney Registry of this Court shall thereupon arrange for deposit of the said sum into the account styled “Support Office Trust” to the end that interest be earned on the said sum while it remains so deposited.
(d)That any issue about how interest earned on the said sum be apportioned between the parties is adjourned for determination upon the hearing of the appeal.
That the appeal against the orders of 4 July 2005 (EA 90 of 2005), and subject to Order 2 of these orders, the appeal against the orders of 16 September 2005 (EA 116 of 2005), be listed for hearing together with the appeal by the father against the orders of 14 February 2005 (EA 39 of 2006), before a Judge of the Appeal Division of the Family Court of Australia (other than the Honourable Justice Finn) as soon as practicable after the expiration of sixty (60) days from the date of these orders, and the Eastern Regional Appeals Registrar will advise the parties in writing of such listing.

[Various procedural orders made in relation to appeals EA 90 of 2005, EA 116 of 2005 and EA 39 of 2006]

That there be liberty to both parties to apply to the Honourable Justice Finn on short notice should any difficulty arise in relation to the implementation of the above orders.

I certify that the preceding 82 paragraphs are a true copy of the reasons for judgment of this Honourable Court

Associate

[2006] FamCA 405

17 May 2006

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