VENTURE & VENTURE (No.4)

[2016] FCCA 870

FEDERAL CIRCUIT COURT OF AUSTRALIA

VENTURE & VENTURE (No.4) [2016] FCCA 870

Catchwords:
FAMILY LAW – Children – contravention – contravention of parenting orders – consequential orders – less serious contravention – where no previous contravention of primary order – whether respondent behaved in a way that showed a serious disregard for her obligations under the primary order – where Subdivision E of Division 13A of Family Law Act 1975 (Cth) applied – imposition of bond.

COSTS – Whether an order for costs should be made against the Respondent – where neither party in receipt of legal aid – financial circumstances of the parties considered – conduct of the proceedings by the parties considered – where proceedings necessitated by failure of the Respondent to comply with previous orders.

PRACTICE AND PROCEDURE – Slip Rule – where quantum of costs incorrectly calculated on the day the decision was handed – Slip Rule applied to provide for correct figure.

PRACTICE AND PROCEDURE – Transfer to Family Court – where substantive proceedings between the parties for property and parenting orders estimated to require five hearing days – Protocol between Family Court of Australia and Federal Circuit Court of Australia considered.

Legislation cited:

Family Law Act 1975 (Cth), ss.70NEA, 70NEB, 70NEC, 70NFA, 70NFB

Federal Circuit Court of Australia Act 1999 (Cth), s.39
Federal Circuit Court Rules 2001, r.8.02

Cases cited:
Venture & Venture (No.3) [2015] FCCA 3344

Applicant: MR VENTURE

Respondent: MS VENTURE

File Number: SYC 433 of 2013

Judgment of: Judge Scarlett

Hearing date: 5 April 2016

Date of Last Submission: 5 April 2016

Delivered at: Sydney

Delivered on: 5 April 2016

REPRESENTATION

Counsel for the Applicant: Mr Richards

Solicitors for the Applicant: Doolan Callaghan Family Lawyers

Counsel for the Respondent: Ms Spain

Solicitors for the Respondent: Byrnes Lawyers

ORDERS

1. The Respondent did on 7 June 2015 contravene Order 15.4 made on 19 December 2014 in that she did make a disparaging or derogatory remark about the Applicant in the presence or hearing of the child X.

2. The Respondent did on 12 June 2015 contravene Order 15.1 made on 19 December 2014 in that she discussed the proceedings with the child X and passed a message to the Applicant through the child X.

3. In respect of the contraventions found in Orders (1) and (2) above the Respondent is required to enter into a bond in accordance with section 70NEC of the Family Law Act 1975 for a period of twelve (12) months upon the following conditions:

   (a)to be of good behaviour; and

   (b)to comply with the requirements of the Orders made on 19 December 2014.

4. The Respondent is to pay some of the costs of the Applicant fixed in the amount of $12,701.00, such amount to be paid out of the Respondent’s entitlement to a sum arising from the final orders made in respect of the proceedings between the parties for settlement of property.

5. In accordance with Section 39 of the Federal Circuit Court of Australia Act 1999 the substantive proceedings for property and parenting orders are transferred to the Family Court of Australia at Sydney to be listed before a Registrar.

IT IS NOTED that publication of this judgment under the pseudonym Venture & Venture (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 433 of 2013

MR VENTURE

Applicant

And

MS VENTURE

Respondent

REASONS FOR JUDGMENT

Application

1. These are contravention proceedings.  The application was brought by the Father against the Mother, originally asserting that the Mother had contravened orders made on 19^th December 2014 on three occasions.  The proceedings came on for hearing on 8^th December 2015.  The Mother admitted one allegation but not the other two.

2. In the course of the hearing on 8^th December, I dismissed the second count of the application but found that the Applicant had established a prima facie case in respect of the third count, which was a claim that the Respondent had, on 12^th June 2015, contravened order 15.1 made on 19^th December 2014.

3. The proceedings came back to Court today.  The Respondent did not seek to cross-examine the Applicant about the matters in his affidavit but was required for cross-examination and was duly cross-examined by Counsel for the Applicant.  At the conclusion of the evidence I heard submissions and was satisfied, on the balance of probabilities, that the Respondent had, in fact, committed a contravention of the orders as set out in Count 3 of the Application.  The Applicant had already admitted the contravention as set out in Count 1. No reasonable excuse has been established.

4. What now falls to be decided is what orders should be made as a result of the contraventions that have been found. It has been put to me by Counsel for the Applicant that even though it is conceded that the Respondent has not previously been found to have contravened the primary order, the Court should be satisfied that the Respondent has behaved in a way that showed a serious disregard for her obligations under the primary Order. That is referred to at subsection (4) of section 70NEA of the Family Law Act 1975 (Cth).

5. If the Court were to find that the Respondent had shown a serious disregard for her obligations under the primary Order then, instead of the matter being dealt with under Subdivision E of Division 13A, it should be dealt with under subdivision F, which provides for orders that can be made in respect of what are described as “more serious contraventions”. Those orders are set out in section 70NFB of the Act.

6. It was submitted that not only should the Court find that the Respondent had shown a serious disregard for her obligations under the primary Order but that the appropriate orders to be made should be, first, to require the Respondent to enter into a good behaviour bond and second, that there should be an order that the Respondent should pay the Applicant’s costs. Both of those matters are provided under subsection (2) of section 70NFB.

7. Counsel for both the Applicant and the Respondent referred me to the Court Expert’s Report of Dr C.  The report is a substantial document running to some 264 paragraphs over 76 pages.  I have been referred to various paragraphs of the report and I indicated that I would read through the report, or at least the relevant parts of the report, prior to making a decision as to whether I am satisfied that the Respondent had shown a serious disregard for her obligations under the primary order which would lead to the matter being dealt with under Subdivision F rather than Subdivision E.

8. Counsel for the Applicant referred the Court to paragraph 253 and paragraphs 101 to 106, inclusive.  Counsel for the Respondent initially asked that I should read the Report in its entirety but contented herself with the submission that paragraphs upon which I should concentrate are paragraphs 84 to 100, and it is those to which I’ve given particular attention.

9. Paragraphs 84 through to 92 of the report deal with an interview between Dr C and the parties’ daughter, Y.  In those paragraphs Y set out some rather serious views indicating that whether or not she could be described as being alienated from her father she certainly made it clear that, at this stage, at least, she did not want any contact with him and, as she set out in paragraph 85, she said she did not want any contact with her father because of the way he treated her and that he was not a nice person.

10. She then went on to describe some reasons why she said that she did not want to spend time with the Father and referred to certain incidents where she alleged that her father had been violent towards her.  Paragraphs 93 through to 100 of the report deal with an interview between Dr C and the parties’ second daughter, Z.  Z, too, expressed some negative views towards her father and made some allegations of violent behaviour towards her and, indeed, towards everyone in the family except the youngest child, the parties’ son X.

11. Counsel for the Father, Mr Richards, expressed the concern that these matters, which he did not consider were relevant to the task which I have to undertake, could, in some way, cloud the Court’s perceptions of what was necessary to be done.  I am not of a view that my perceptions are clouded.  It is clear from those sections of the report that the two girls are expressing some antipathy towards their father and they wish that they should not see him.

12. Those statements are all hearsay.  They have been made to the Court Expert, Dr C.  They are certainly not evidence that has, in any way, been tested and whilst the children themselves will not be giving evidence, I have no doubt that Dr C may well be required to give evidence at the final hearing of the substantive parenting proceedings.  It is difficult at this stage, without having taken evidence, to form a definitive view as to why the girls appear to be alienated from their father, whether they are in fact alienated and, if so, whether that is as a result of their father’s behaviour or of behaviour by their mother or for some other cause.

13. Counsel for the Applicant asked the Court to read paragraphs 101 to 106.  Those paragraphs deal with Dr C’ interview with the youngest child, X.  X’s account of his relationship with the Father stands out in stark contrast to the views expressed by his two older sisters.  Dr C reported that X told him that his father was caring and good and set out a variety of activities in which he and his father involve themselves, including motorbike riding, playing on a buggy, playing on Xbox and going on the trampoline.

    X also expressed positive views about his mother, saying she was fun, great, good and funny.  I note in subsequent paragraphs of the report where Dr C not only interviewed the Father but observed him with the child, X, he came out with some positive comments.  Dr C noted on viewing father and son together:

    It is clear that a warm, loving and gentle relationship exists between the father and X, one which is marked by a lot of physical affection and proximity-seeking on the part of X, and a strong focus between the father and X such that it is clear that both parties have a strong desire to be in each other’s lives.

14. I was also asked to read paragraph 253 of Dr C’s report.  Dr C expressed the view that X would like to have substantial time with both parents.  Dr C expressed the view it would be difficult to disturb the sibling relationship between X and his sisters, and whilst he suggested the most likely outcome would be that X would continue living with the mother, a situation might arise where the Court decides that the Mother had been abusive and the Father had not.

15. In that case, which creates enormous difficulties, Dr C expressed the view that, should be the circumstances, then Z and X should transition into the care of their father.  They are matters really to be decided at a final hearing.  I go back to the circumstances contained in the evidence.  The Father’s affidavit evidence relates to these two issues, in each case regarding interaction, on the Father’s evidence, between X and his mother whilst X was in the Mother’s residence.  Do the matters which form the subject of the two contraventions which have been found suffice to satisfy the Court that the Respondent Mother has acted with a serious disregard for her obligations under the order?  Certainly, it is the Father’s view, as articulated by his counsel, that the Mother’s behaviour has been manipulative towards the child, which has been denied by the Mother in her evidence.

16. Taking the Father’s case at its highest, I am not satisfied that the contraventions that have been found are sufficient for the Court to find that the Respondent has acted with a serious disregard for her obligations under the primary orders. In my view, it is appropriate, therefore, for the matters to be dealt with under the provisions of subsection E of Division 13A.

Powers of the Court

1. The Court has power to impose a number of orders, which are set out in section 70NEB of the Act. Interestingly enough, the orders suggested by counsel for the Applicant, which he submits should be imposed under section 70NFB, are also available to the Court under section 70NEB, although, of course, a finding that the Respondent had acted with a serious disregard for obligations would be a telling matter if there were any further contravention.

2. I note that the Mother has not been the subject of a finding by this or any other court that she has previously contravened the primary orders and a court has previously made an order imposing a sanction or taking an action in respect of a contravention by the Mother of the primary order. 

3. The powers of the Court under section 70NEB are set out in subsection (1) and include the requirement for a party to attend a post-separation parenting program or the making of a further parenting order that compensates a person for time the person did not spend with the child or adjourning the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order or an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC.

4. It is also open to the Court to make an order for costs under paragraph F of subsection 70NEB(1). 

5. I have considered the sanctions that are available.  It would be of little value to require the respondent to attend another post-separation parenting program because there is evidence before the Court that the Respondent has already entered and attended a post-separation parenting program that was ordered by the Court.  Ms Spain of counsel has told the Court this afternoon that a certificate of completion of that post-separation parenting program has now been obtained and will be provided to the Independent Children’s Lawyer tomorrow.

6. That is helpful information.  This is not a case where the Father has claimed that he has lost a substantial amount of time with his son.  Rather, he is concerned that the child lives in a household where it is not uncommon for negative comments to be made about the Father or the Father’s role in these proceedings.  If that is the case then the Father has some good reason to be concerned.  Clearly, there must not be a repetition of these contraventions.

Transfer to the Family Court

1. There are parenting and property proceedings still to come and Counsel for the Applicant has told the Court that he estimates that they could take a good five days. If that is the case then I think the matter will need to go to the Family Court under the provisions of the protocol between this Court and the Family Court.  However, there are interim parenting orders in existence at the moment.  They must be complied with.  The Mother gave evidence that she had regretted not complying with the orders and expressed the view that she should have attempted to communicate with the Father through her solicitors.  That was probably a very wise idea.  Parties should realise that even though their relationship with their former partner or former spouse might be tense and difficult and hostile, their lawyers certainly have an obligation to deal with the lawyers representing the other party in a courteous and professional manner.

2. Most lawyers do and I would be surprised if the Mother’s legal advisors did not behave with the dignity and show the professional courtesy to their colleagues that the Court would expect of them.  So the Mother, in hindsight, should have attempted to deal with these matters through her solicitor. 

3. As I said, there has got to be no repetition of this. I have considered the question of a bond, which can be imposed under section 70NEC and I am satisfied that that is an appropriate sanction.

Costs

1. There is also a question of costs and the Court has the power to make an order that a respondent pay some or all of the other side’s costs.  Certainly, I have heard evidence about the amount of money alleged to have been spent on legal expenses to date and it has been put to me that the Respondent is not in a good financial position as far as income is concerned.  It has been submitted that the Father is not paying child support and the Mother is making some income and because she has to work during the day it was the Mother’s evidence that she could not take time off to attend another course that she was required to do because they only run them during the day.

2. Against this, Mr Richards of Counsel has told the Court that rather than making an order for costs, which would be paid within the normal 28 days, the Father would be content for the Court to make an order that such costs as would be awarded, if I decide to make an order for costs, should come from the Respondent’s share of property proceedings when the property matters are resolved. 

3. I have considered the question of costs. The Court has found that there are two contraventions of court orders. One of the matters the Court considers under section 117 of the Family Law Act is whether there has been a failure by a party to comply with previous orders of the Court.  Certainly, the submissions that have been put to me indicate that the Respondent would have difficulty paying a substantial costs order quickly but the solution may well be for that amount to come out of the proceeds of the property proceedings. 

4. In my view, there should be an order for costs. It should be on a party and party basis and not on an indemnity basis. I should have regard to matters set out in subsection 117(2A) of the Family Law Act. They include the conduct of the parties to the proceedings and I note that one of the allegations was admitted by the Mother on the first day.  I also note that one of the matters alleged was dismissed by the Court on the first day. 

5. The cost of these proceedings can be very expensive.  I have calculated costs on a fairly tight basis, going from the Court scale, and I have arrived at a figure of $14,739.  I accept that that could well be very difficult for the Mother to pay in the next 28 days or even in the near future.

6. I am informed by her counsel that the Mother’s legal costs for her representation are currently outstanding.  The suggestion, through Counsel for the Father, that such amount could come off the Mother’s share of property orders, in my view, has a lot of merit.  There will be the imposition of a good behaviour bond.  I have given that some thought and I propose to make an order that the bond should be for a period of 12 months.  Apart from being of good behaviour, there would be a requirement to comply with the requirements of the orders.

Amendment under the Slip Rule

1. On editing the transcript of the reasons for this decision, I have come to the view that I have made an error in calculating the proper amount of costs that should be awarded against the Respondent under Part 1 of Schedule 1 to the Rules. It appears that the figure of $14,739.00 is excessive and cannot be justified by reference to the various Items of Part 1.

2. I have calculated the costs on this basis:

   a)20^th October 2015 – Item 10 lump sum $867.00 plus daily hearing fee $278.00

   b)Item 7 – preparation for two day hearing $5,412.00

   c)8^th December 2015 – Item 13 daily hearing fee $2,048 plus Item 12 advocacy loading $1,024.00

   d)5^th April 2016.00 – Item 13 daily hearing fee $2,048.00 plus advocacy loading $1,024.00.

3. It can be seen that the revised total is $12,701.00, which is significantly less than $14,739.00, by an amount of $2,038.00. I am satisfied that the figure of $14,739.00 was incorrectly calculated.

4. Accordingly, I propose to amend the previous figure of $14,739.00 to what I am satisfied is the correct figure of $12,701.00 under Slip Rule. As Counsel did not address the Court as to the quantum of costs to be awarded on the previous occasion, there is no utility in seeking further submissions on the quantum of costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 15 April 2016