Vilner & Vilner (No 4)
[2022] FedCFamC1F 1060
Federal Circuit and Family Court of Australia
(DIVISION 1)
Vilner & Vilner (No 4) [2022] FedCFamC1F 1060
File numbers: SYC 5017 of 2020 Judgment of: BRASCH J Date of judgment: 5 December 2022 Catchwords: FAMILY LAW – COSTS – Where the mother conceded a contravention without reasonable excuse – Where the mother conceded breaching her bond to be of good behaviour nine days after entering into it - Where the mother found to have contravened five Orders without reasonable excuses earlier this year -– Where the mother conceded the contraventions were more serious – Where a fine and bond were imposed – Where the father also sought costs pursuant to s 70NFB(1) – Meaning of all costs and some costs Legislation: Family Law Act 1975 (Cth) ss 60CC(2)(a), 60CC(3)(ca), 60CC(3)(f), 70NBA, 70NECA(3)(a), 70NFB(1)(a)-(c), 70NFB(2)(b), 70NFB(2)(g)-(h), 70NFE(3)(a) 70NFF(3)(a), 117 Cases cited: Dobbs & Brayson [2007] FamCA 1261
Kalant & Jordain (No 5) [2020] FamCA 812
McClintock & Levier(2009) FLC 93-401; [2009] FamCAFC 62; (2009) FLC 93-401
Roffe & Huie [2016] FamCAFC 166
Schwarzkopff & Schwarzkopff (1992) FLC 92–303
Vilner & Vilner (No 3) [2022] FedCFamC1F 857
Wallington & Wallington [2021] FamCAFC 58
Division: Division 1 First Instance Number of paragraphs: 51 Date of last submissions: 22 November 2022 Date of hearing: 24 October 2022 Place: Sydney Counsel for the Applicant: Ms Gillies SC Solicitor for the Applicant: Matthews Folbigg Pty Ltd Counsel for the Respondent: Ms Spain Solicitor for the Respondent: O’Sullivan Legal ORDERS
SYC 5017 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VILNER
Applicant
AND: MS VILNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
5 DECEMBER 2022
THE COURT ORDERS THAT:
1.The mother will pay the father’s costs of an incidental to the father’s Contravention Application filed 15 July 2022 and breach of bond application filed 8 July 2022 on an indemnity basis.
2.The mother is not to pay the father’s costs of and incidental to:
(a)the ADVO / criminal law proceedings;
(b)dealings with Crown Law; or
(c)the parenting proceedings arising from the father’s Application in a Proceeding filed 14 June 2022.
3.In the event the parties cannot agree on those costs, they will be as assessed.
4.The mother is to pay the father’s costs as agreed or as assessed within three months from the date of assessment or agreement.
5.For the purposes of this costs order, I certify for Senior Counsel for half a day, being calculated by reference to the negotiated amount for Senior Counsel as set out in the father’s Table of Costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vilner & Vilner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
BACKGROUND
This is a continuation of my consideration of the consequences of the following findings:
(1)The mother without reasonable excuse failed to facilitate the children, X, born 2013, and Y, born 2016, spending time with their father on 26 June 2022 in breach of order 7(b) and 9 of the orders made 8 October 2021.
(2)The mother has without reasonable excuse failed to comply with the bond she entered into with the Court pursuant to Order 1 of the orders of 15 June 2022.
These are my ex tempore reasons. I will correct the transcript for grammatical error only and to make my spoken words more conducive to reading. These reasons are to be read in conjunction with my earlier reasons which I gave on 1 November 2022 (Vilner & Vilner (No 3) [2022] FedCFamC1F 857).
As the parties are well aware, on Monday 24 October 2022 I heard various Applications in a Proceeding all relating to parenting and all filed by the father. The parties provided me with their respective Minutes of Order on Wednesday 26 October 2022. Two of the applications concerned Contravention Applications. One concerned a time with order and the second concerned the mother’s [earlier given] bond to be of good behaviour. That was actually filed as an Application in a Proceeding, but all parties proceeded on the basis that it was an application with respect to the breach of that bond.
In circumstances where the mother was found to have contravened parenting orders as recently as 29 April 2022 (which was heard by a Senior Judicial Registrar) it was agitated by the father and conceded by the mother that my consideration of these contraventions fell within the more serious category of contraventions. For reasons already given, I agree.
In terms of sanction, the father’s minute of order (Exhibit 2) proposed:
Penalty/costs
1.That the Respondent Mother be fined 10 penalty units ($1,100 [one penalty unit is $110]) for breaching her Bond pursuant to the Orders of 15 June 2022.
2.That the Respondent Mother’s bond as entered on 15 June 2022 pursuant to Subdivision E of Division 13A of the Family Law Act be discharged.
3.Pursuant to Subdivision F of Division 13A of the Family Law Act, the Respondent Mother shall enter into a bond with surety of $50,000 (fifty thousand dollars) to be lodged with the Sydney Registry of the Federal Circuit and Family Court of Australia in the next 28 days (twenty-eight days).
4.In the event the Respondent Mother fails to lodge the surety outlined in Order 3 herein, the Respondent Mother shall be restrained by injunction from selling, transferring, further encumbering or otherwise dealing with her interest in the property situated at [D Street, Suburb E] (folio identifier …) (“the [D Street] Property”) for a period of twenty four (24) months.
5.The terms of the bond entered into pursuant to Order 3 herein shall include the following conditions:-
5.1 That the Respondent Mother be of good behaviour.
5.2That the Respondent Mother shall comply with the Orders of this Court AND any subsequent Order made by this Honourable Court.
6.The Respondent Mother shall pay the Applicant Father’s costs on an indemnity basis or, in the alternative, costs in accordance with Schedule 3 of the Family Law Rules 2021. For the purposes of costs, the Applicant Father will provide a Table of costs incurred to Chambers as a matter of urgency.
His minute then went on to a separate heading, Parenting Arrangements, and sought parenting orders thereunder.
The mother’s minute of order (Exhibit 3) proposed:
In respect of the Bond/Contravention:
1.Pursuant to s70NECA(3)(a) the Mother be fined 10 penalty units noting each unit is $110.
2.Within 7 days from the date of these Orders, the following shall occur simultaneously:
a.The bond the mother entered into on 21 June 2022 be discharged; and
b.The mother attend the Sydney Registry and enter into a bond without surety and without security for a period of twenty four (24) months on the following conditions:
i. The mother be of good behaviour.
3. That the children shall spend make up time with the father as follows:
a.From 4.00pm Friday, 4 November 2022 to before school or 9.00am on Monday, 7 November 2022.
b.For the purpose of the above Order, changeover on the Friday shall occur at McDonald's [Suburb O].
The mother then sought parenting orders under a separate heading related to the father’s Application in a Proceeding for parenting orders filed 14 June 2022.
Unfortunately, the father did not provide me with the Table of Costs referred to in his proposed order 6. That meant I could not turn my mind at the time to the issue of costs and nor could the mother address the quantum sought in that document.
This was not a matter I could simply dismiss for lack of evidence. Section 70NFB(1) of the Family Law Act1975 (Cth) (“the Act”) mandates I must make a costs order under subsection 70NFB(2)(g), for the mother to pay all of the father’s costs unless I am satisfied it would not be in the best interests of the children to do so.
70NFB Powers of court
(1) If this Subdivision applies, the court must, in relation to the person who committed the current contravention:
(a) make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order;
I pause there to observe that that best interests inclusion provides some discretion in an otherwise mandatory subsection.
However, I also observe that a consideration of the best interests of a child is only relevant to subsection (2)(g), being if I were to order the mother pay all of the father’s costs to the proceedings under this Division. If I concluded it was not in the best interests that the mother pay all of the father’s costs, I could nevertheless make an order under subsection (2)(h) that the mother pay some of the father’s costs of the proceedings under this Division, and then the best interests consideration does not explicitly arise. In my earlier reasons, if I can call them Part One, I referred to Division 13A as a labyrinth of drafting complexity. I have just given another good example.
Section 70NFB continues:
70NFB Powers of court
(1) …
(a) …
(b) if the court makes an order under paragraph (2)(g)—consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and
(c) if the court does not make an order under paragraph (2)(g)—make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.
(2) The orders that are available to be made by the court are:
(a)if the court is empowered under section 70NFC to make a community service order—to make such an order; or
(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c)…
(d) to fine the person not more than 60 penalty units; or
(e)subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f)…
(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division;
(h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
(3) …
(4) …
(5) …
(6) An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.
(7) When a court makes an order under this section, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened.
Putting aside the best interests caveat to subsection (2)(g) for one moment, the only way I can understand all and some in subsection (2)(g) and (2)(h) is all must be indemnity costs, some must be something less, for example, costs per Schedule 3 to the Act, as that will not cover all of the father’s costs. So much is plain when I look at the father’s Table of Costs, which has indemnity costs as one item, being what he has actually been charged, and then Schedule 3 costs, which is a lesser amount.
I am fortified in reaching the conclusion that all must mean indemnity costs by reference to the Full Court decision of Roffe & Huie [2016] FamCAFC 166 (“Roffe”) at [18]. There it was said:
In addition, it is notable that section 70NFB(2)(g) appears to require that the costs order be on an indemnity basis by the use of the words “pay all of the costs.”
I note s 117(1) of the Act that each party bears their own is subject to s 70NFB(1).
Given the seriousness of the matters before me, which on the parenting application in a proceeding proposed a change of residence for the children from the mother to the father, I determined it was important for the parties and the children that I deliver Reasons and orders for all that I could, as expeditiously as I could. As part of those orders, I made directions for the husband to provide his Table of Costs and for the making of submissions. No one cavilled with that approach.
As I said at the time of giving Part One of my Reasons, that when I consider the outstanding issue of costs that I will not consider the costs aspect in isolation, but consider costs alongside the consequences of the contravention application already ordered. I must look at the entire package of consequences with an eye to proportionality and on the basis of encouraging future compliance. This is not about some general policy of deterrence, see for example McClintock & Levier(2009) FLC 93-401 per Cronin J at [233]-[235] and Coleman J at [156], [158]-[159].
Relevant history of matter and principles engaged
I will not repeat the history of this matter nor the principles relevant to contraventions and the consequences of a finding that parties contravened an order. As said, these reasons are to be read in conjunction with my reasons given on 1 November 2022 (Vilner & Vilner (No 3) [2022] FedCFamC1F 857). Suffice to say, the mother finds herself in the legal framework of a more serious contravention, that is subdivision F of Division 13A in Part VII of the Act.
Material
I have already set out in my earlier judgment, or Part one of my judgment, the material upon which the parties relied. For the issue of costs:
·The father relied on his affidavit filed 19 October 2022 and the mother’s costs notice of 31 October 2022;
·The father filed submissions on 8 November 2022;
·The mother filed submissions on 15 November 2022;
·The mother filed a Financial Statement on the same date, being 15 November 2022; and
·The father filed a reply on 22 November 2022.
I had not made provision for a reply, but have taken it into account because the mother filed the updated financial statement after the father filed his initial submissions. Procedural fairness required the father had the opportunity to be heard about it.
Penalties
Penalties are provided within the Division 13A, which provides an exclusive code for the dealing with breaches of orders under the Act; Schwarzkopff & Schwarzkopff (1992) FLC 92–303.
Consistent with authorities such as Dobbs & Brayson [2007] FamCA 1261 at [31], I have already determined:
(i)that the alleged contraventions did occur
(ii)that reasonable excuses for the contraventions did not exist
(iii)that the contraventions without reasonable excuse were more serious.
That then leads me to:
(iv)what orders should be made, including whether an order should be made under s 70NFB(2)(a), (d) or (e) or section 70NFF(3)(a).
I have already held that in terms of sentencing or consequences, I agree with what Gill J said in Kalant & Jordain (No 5) [2020] FamCA 812 at [26]. I have already extracted that paragraph in Part one of my reasons, but it is worth repeating:
It is necessary to recognise that where the contraventions are established the Court is called upon to exercise discretion in relation to each of the proven allegations. However, in doing so the Court is required, where there are multiple contraventions, to, as a final step, examine the total outcome imposed by the individual consideration of the contraventions and to adjust the overall outcome to ensure that it is not disproportionate to the totality of the contraventions and is not disproportionate to the objective of securing future compliance with the orders.
(Emphasis added)
Turning to this matter, I have already ordered:
3.Pursuant to s 70NECA(3)(a) of the Family Law Act 1975 (Cth), the mother be fined 10 penalty units for breaching the bond she entered into pursuant to Order 1 of the Orders of 15 June 2022.
4.The mother’s bond as entered on 15 June 2022 pursuant to Subdivision E of Division 13A of the Family Law Act 1975 (Cth) be discharged.
5.Pursuant to s 70NFB(2)(b) and s 70NFE(3)(a) of Subdivision F of Division 13A of the Family Law Act 1975 (Cth), the mother shall enter into a bond with surety of $50,000 (fifty thousand dollars) to be lodged with the Sydney Registry of the Federal Circuit and Family Court of Australia in the next 28 days (twenty-eight days).
6.In the event the mother fails to lodge the surety outlined in Order 5, the mother shall be restrained by injunction from selling, transferring, further encumbering or otherwise dealing with her interest in the property situated at [D Street, Suburb E] (folio identifier […]) (“the [D Street] Property”) for a period of twenty-four (24) months.
7.The terms of the bond entered into pursuant to Order 5 herein shall include the following conditions: that the mother be of good behaviour.
I also ordered:
9. The father’s proposed Order 6 of his Minute being, “The Respondent Mother shall pay the Applicant Father’s costs on an indemnity basis or, in the alternative, costs in accordance with Schedule 3 of the Family Law Rules 2021. For the purposes of costs, the Applicant Father will provide a Table of costs incurred to Chambers as a matter of urgency.” be adjourned to a date to be fixed, pending compliance with Order 15 below.
…
15. With respect to the father’s application for costs of the contravention proceedings (Order 6 of his Minute):
(a) Within 7 days, the father provide the Table of Costs referred to in Order 6 of his Minute of Order and concise submissions (if any) to accompany same;
(b) Within 7 days thereafter the mother provide concise submissions (if any) in response; and
(c) The ICL is excused from providing any submissions.
The children’s best interests and section 70NFB(1)(a)
The mother submitted she ought not pay the father’s legal fees and submitted it was not in the children’s best interests for an order to be made. In the alternative, she submitted costs ought be fixed at $6,000. I have no idea how she arrived at that figure.
Looking at s 70NFB(1)(a) it is incumbent upon the Court to make an order for costs under subsection (2)(g) subject to the best interests exception. That said, and as I have already alluded to, even if I found it was not in the children’s best interests to make an order the mother paid all of the father’s costs, I can without regard to those best interests still make an order she pay some of those costs pursuant to subsection (2)(h).
First, I will consider the best interests exception. May J for the Full Court said in Roffe, at [29] and [30]:
Contravention proceedings are different to parenting proceedings. The orders flowing from the finding of a contravention are not parenting orders as defined by s 64B of the Act. The question then arises as to whether it is permissible to refer to s 60CC to decide whether a costs order is not in the best interests of the child. Reference was made to the decision of Dawe J in Short & Trevilian (Contempt and Contraventions) [2008] FamCA 866 (“Short”), where an order for costs was made.
In Short, Dawe J found that s 60CC is “not directly binding upon the Court” in contravention matters, but by reference to s 4 of the Act, which defines “interests”, her Honour concluded that some consideration could be given to s 60CC(3)(f) which is the capacity of each of the parents to provide for the needs of the child. The definition of “interests” in s 4 refers to Part VIII of the Act, which includes contraventions. While the consideration of best interests in the context of a costs order in contravention proceedings is not the same as parenting proceedings where the best interests of the child is the paramount consideration (per s 60CA), it must be correct that reference may be made to s 60CC to deal with the best interests question in a contravention costs order.
In addition to s 60CC(3)(f), which is referred to in those paragraphs ((3)(f) being a capacity to provide), it seems to me that ss 60CC(2)(a) and (3)(ca) would also be relevant.
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(3) Additional considerations are:
…
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
If a Court has ordered time and has thus been satisfied of the harm factors in s60CC(2)(b) then it has been determined there is a benefit to the child in having a meaningful relationship with the relevant parent. Contravening such an order or orders without reasonable excuse is antithesis of the benefits of that meaningful relationship.
I referred to what I knew of the mother’s financial circumstances in Part one of my reasons. Now I have an updated financial statement. The following submissions were made for the mother:
9.The Mother is not employed and has no income. The Mother is reliant on her husband to pay her expenses and outgoings. The Mother outlines in her Financial Statement at Part F that her husband pays the deficit of expenses for her and the children’s benefit.
10. The Father pays the Mother child support of $93 per week. As demonstrated in the Mother’s Financial Statement, the children’s expenses are E$710 per week. The Mother is reliant on her husband to meet the shortfall in the children’s expenses.
11. The Mother has had to rely on family members for loans to meet costs order and to meet the surety in relation to the bond that she has been ordered to pay of $50,000.
12. In circumstances where the Father pays minimal child support and the Mother is reliant on her husband to financially support her children, it is not in the best interests of the children for an order to be made that the Mother pay the Father’s costs as to do so would reduce the amount that the Mother’s husband has to meet the day to day costs of the children.
I am not persuaded by those submissions. I am not, because I also see the mother has just over $462,000 equity in two properties and that is only for her 50 per cent interest in the properties and liabilities. I am thus not satisfied that an indemnity costs order will negatively impact on the mother’s ability to maintain the children, nor her capacity to provide for the needs of the children, including their emotional and intellectual needs.
I also accept the father’s submission it is in the children’s best interests for the mother to be encouraged to obey all Court orders, which really is founded on s 60CC(2)(a). This means I must make an order under s 70NFB(2)(g) that the mother pay all of the father’s costs of “the proceedings under this Division”. However, I do not accept the quantum of those costs sought by the father.
The father’s proposed costs
The father submitted he ought receive an order for all of his costs, that is on an indemnity basis of $38,140, or in the alternate per Schedule 3 of the costs of scale $31,713.35. It seems to me the Schedule 3 costs would fall into the category of some costs in subsection (2)(h) of s 70NFB, being an amount less than all. So much is plain from the father’s Table of Costs, as I said, which has a column for indemnity costs and then a lesser amount for Schedule 3 costs; however, because of my findings with respects to the best interests of the children, this matter falls within the mandatory consideration that the mother pay all of the father’s costs pursuant to s 70NFB(2)(g).
The father put into evidence his costs agreement with his solicitor and Senior Counsel. He also had an itemised schedule of costs incurred by him, which constituted the Table of Costs to which I have previously referred. The problem though with the father’s Table of Costs is that it includes a number of line items that are not with respect to “proceedings under this Division”, being Division 13A. For example:
·Items 1 to 8 seem to relate to the father’s parenting application filed 14 June 2022; items 45 and 46 seem to be in relation to the first return of that application; items 57 and 58 seem to relate to the mother’s Response on parenting issues and item 128 and 129 also seem to relate to informing the parenting proceedings of the outcome of the ADVO;
·I cannot ascertain whether the following items relate to the Division 13A proceedings, being items 18, 32, 48 to 52, 55, 56, 62, 64, 65, 66, 69 to 73, 75, 92, 94, 106 to 107, 110 to 114, 123 to 124, 132 and then the disbursements at (a), (b) and (e);
·Items 27 to 31, 44, 54, 59, 101 to 105, 127 and 131 seem to relate to the ADVO/criminal law proceedings. Items 67, 68, 76 to 77, 82 to 85 appear to be dealings with Crown Law.
·Items 115, 116, 121 and 122 concern an affidavit of a Ms CC which was not read in the hearing before me.
It was the father’s submission in reply that his Application in a Proceeding for parenting orders was so intertwined with the Contravention proceedings that I ought consider them all together. I do not accept that submission. First, s 70NFB(2)(g) and, for that matter, (2)(h), refers to the costs of, “Proceedings under this Division”. That is Division 13A of Part VII. Division 13A concerns consequences of failing to comply with orders or obligations affecting children. It is not costs at large. It is not costs of ADVO proceedings or dealings with Crown Law. It is not costs of “normal” parenting proceedings. The statutory provision is clear: it is costs under Division 13A. I note that was how the Full Court considered costs in Wallington & Wallington [2021] FamCAFC 58, for example at [31] and [35], that is costs were in relation to the contravention proceedings, not to other matters.
Second, on the day of hearing both the mother and the father were most particular to ensure that any submissions that were made on the contraventions were not seen to cut across what might be subsequently submitted on the parenting application.
Third, the father’s Application in a Proceeding for parenting orders was filed 14 June 2022 one month before the Contravention Application which was filed on 15 July 2022. They were not filed hand in glove as if one packet, that is, the contravention and orders sought, whether or not the contravention was made out or whether or not there was a reasonable excuse; variations to parenting orders being permissible on all contravention outcomes, see, for example, s 70NBA. Similarly, the application about the breach of bond was filed on 8 July 2022.
Fourth, in the father’s Application in a Proceeding filed 14 June 2022 with respect to parenting, he did not specifically seek the mother pay his costs of that application.
Fifth, the father’s updated minute of order (Exhibit 2), comprises order 1 to 6 under the heading Penalties and Costs and includes order 6 with respect to costs. Then under the separate heading of Parenting, the father sought orders numbered 7 to 13. He did not seek costs.
For these reasons, the father’s costs will be limited to his costs of and incidental to his Contravention Application filed 15 July 2022 and his Application of 8 July 2022 with respect to the breach of bond. As said, the parties dealt with the two matters as falling within Division 13A. Plainly, the Contravention Application of 5 July 2022 falls within that Division, but then when it came to the bond, both parties agreed the breach of bond be dealt with via a fine pursuant to s 70NECA(3)(a), which falls within Division 13.
It was submitted that I ought fix the sum because assessment would otherwise cost the parties more, prolong the matter and be a source of potential delay. Bringing this suite of litigation to an end was pressed.
A fixed sum would have been desirable for all of the reasons submitted by the father; however, whilst I could certainly rule out line items that specifically related to, for example, Crown Law or the ADVO, as said, there are many line items where I cannot ascertain whether they related to the Division 13A proceedings or not. However, it may be that now the parties have the benefit of these reasons they will be able to agree the amount. If not, the father’s costs of and incidental to the Contravention Application filed 15 July 2022 and his Application for the breach of bond filed 8 July 2022 will have to be assessed.
I will certify for Senior Counsel, but for only half a day. The hearing was roughly divided into half of the time devoted to the contraventions and half the parenting. The mother did not cavil with Senior Counsel appearing, and nor do I. Rather she questioned whether she ought meet the full day fee or some lesser amount. Given how the day was run, and given my findings about costs only being in relation to the Division 13A proceedings, I agree with the mother’s submissions that a full day would not apply. The half day fee is to also be calculated by reference to the negotiated sum for Senior Counsel as appeared in the Table of Costs.
Concerning quantum of costs, and now looking at proportionality, what I can safely say is that given many of the line items do not concern the Division 13A proceedings, the quantum of costs will be less than the $38,140 which the father sought.
When looking at the proportionality of my sanctions, I consider the fine for breaching the bond, which was agreed, and then the bond with surety of $50,000 and a condition to be of good behaviour, along with payment of all of the father’s costs, but relevant to the Division 13A proceedings (which will be agreed or assessed to be a sum lesser than the $38,140 claimed by the father), is proportionate to the totality of the contraventions and is not disproportionate to the objective of securing future compliance with orders.
I consider this outcome to be the most appropriate orders under s 70NFB in the circumstances of this case.
Finally, neither party proposed a timeframe for payment. However, I am not prepared to leave it open-ended. In the circumstances of this case, that will probably just lead to a further dispute. I will require the mother to meet the costs order within three months of either the quantum of the costs being agreed or the assessment being made. There is no magic in that timeframe. It simply gives the mother the opportunity to cash flow or otherwise meet the costs over a period of time, but is not so long as to be meaningless to compensating the father for the costs actually incurred in the Division 13A proceedings (Wallington, supra, at [37]).
It is for those reasons I make the orders said at the beginning of these Reasons.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 5 December 2022
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