W and E

[2006] FamCA 854

FAMILY COURT OF AUSTRALIA

W AND E [2006] FamCA 854

FAMILY LAW – APPEALS – COSTS - Appeal from Federal Magistrate – appeal against costs order – appeal dismissed

Family Law Act 1975 (Cth)

Gronow & Gronow 1979 FLC 90-716

Greedy (1982) FLC 91-250

Fitzgerald & Fish (2005) 33 Fam LR 123

APPELLANT:  W

RESPONDENT:  E

FILE NUMBER:  BRM4542 of 2004

APPEAL NUMBER:  NA 32 of 2006
DATE DELIVERED:  4 September 2006
HEARING DATE:  4 September 2006
JUDGMENT OF:  May J

LOWER COURT JURISDICTION:  Federal Magistrates Court  

LOWER COURT JUDGMENT DATE:                4 April 2006

SOLICITOR FOR THE APPELLANT: Appellant appeared in person

SOLICITOR FOR THE RESPONDENT: No appearance by the respondent

ORDERS

1. The appeal against the order for costs being Order 2 made on 4 April 2006 be dismissed.

2. There be no order as to costs of the appeal.

FAMILY COURT OF AUSTRALIA  AT BRISBANE

APPEAL NUMBER:          NA 32 of 2006

FILE NUMBER:                  BRM 4542 of 2004

W
Appellant Father

And

E
Respondent Mother

REASONS FOR JUDGMENT

Introduction

1. In the appeal filed on 2 May 2006 from orders made by Federal Magistrate Baumann on 4 April 2006 the appellant asked for orders should the appeal be successful that: -

   1.In the event of death or incapacity of either of the parents, the children are to reside with the other parent.

   2.Order 1, of order 4 April 2006 be set aside, and the applicant be granted leave to file an amended application (subject to the outcome of the current contravention proceedings).

   3.Order 2 of 4 April 2006 be set aside (an order for costs).

2. In the orders made on 4 April 2006 the Federal Magistrate dismissed the application of the father filed 5 January 2006 and ordered that the father pay the mother’s costs of the application in the sum of $1,800 payable within three months. The application filed by the appellant father on 5 January 2006 asked for the following orders: -

   1.The children, the child S, born 2 July 1995 and the child O, born 30 July 1999, reside primarily with their father Mr W. In the alternative, a minimum of a week about residence arrangement is sought.

   2.Both parents share equal responsibility for decisions relating to long term care, welfare and development of the children, and each parent be responsible for day to day care, welfare and development of the children, whilst in their care.

   3.The mother to have contact with the children as a minimum, every second weekend, each day after school on alternate weeks, half of all school holidays, half of all “special days” such as birthdays etc and any other times as may be agreed.

   4.In the event of the death or incapacity of either parent, the children shall reside with the other parent.

3. The response filed by the mother on 23 January 2006 asked that: -

   1.That the father’s application filed 5 January 2006 be dismissed.

   2.That the appellant father be restrained from making any further applications regarding the children without leave of this Honourable Court.

4. At the hearing on 11 July 2006 directions were made for the hearing of the appeal and orders were made by consent so that the only remaining issue in the appeal is the costs order.

5. It is noted that the father has filed a further amended application on 27 July 2006 where he asks for various child related orders including in paragraph 14 ‘In the event of the death or incapacity of either parent the children shall reside with the other parent’. Directions were made on 27 August 2006 by Federal Magistrate Slack and the matter has been set down for final hearing on 19 February 2007 in the Federal Magistrates Court.

Grounds

1. The grounds as they relate to the costs appeal and as explained by Mr W are in several categories. The first is that there was a denial of natural justice and improper management of the case, secondly that the Federal Magistrate prejudged the matter deciding that it had no merit exhibiting prejudice and bias, and finally that the Federal Magistrate did not take into account the relevant factors in making a costs order.

2. The appellant explained in his oral submissions that in his view he had not had a proper hearing of his residence application. In his affidavit filed on 5 January 2006 which the Federal Magistrate had for the hearing he said that the arrangements in place from the order made on 6 May 2005 were not ‘working out to be in the best interests of the children. The situation is not likely to improve and will in fact deteriorate further without a change of residence.’ The father in that affidavit complained that the mother and her parents ‘substantially hindered contact between the children and myself” and made various complaints that the mother persistently contravened all the current orders without reasonable excuse. A particular concern was that the mother was residing with the children at her parent’s house. The father discovered in late January 2006 that this was no longer the case and it seems that the mother has continued to live away from her parents.

3. The affidavit listed numerous difficulties the father believed he was having with the mother under the heading ‘Contravention of current orders’ and then gave examples of those at some length.

4. It was the contention of the appellant father that there had been a substantial change including problems with contact since the final orders were made. In his oral submissions the appellant said that it was apparent from the transcripts of the first hearing on 6 March 2006 and the subsequent hearing on 4 April 2006 that the trial Judge did not examine the evidence and did not understand the issues and address them.

5. In addition it is submitted that the order for costs ought not to have been made because the application was not just for residence but also related to other issues. A question in relation to this appeal is whether the order for costs was only about the residence application, ignoring properly or otherwise the other applications of the father.

6. Finally a submission was made by the father that the Federal Magistrate could not have had proper regard to the provisions of section 117(2) because he made no reference to them and secondly, because there was no evidence before him about the parties financial circumstances. It is submitted by the father that had he appreciated the father’s financial circumstances he would not have made such an order.

The Judgment

1. The hearing leading to the costs order took place on 4 April 2006 and in the course of the argument the Federal Magistrate dealt with the application. There are no separate reasons. The transcript reveals that there were particular aspects of concern to the father apart from his application for residence. These were in relation to existing contact orders, in essence contact with the children on Wednesdays after school and by telephone. On page 12 of the transcript the father said to His Honour ‘Your Honour, I would not be here today if I could effect that telephone conversation.’ and on page 13 ‘I’ve said very clearly my concerns have eased a lot in relation to the residence.’

2. The decision of His Honour in relation to the residence application is contained on page 13 of the transcript as follows: -

   FEDERAL MAGISTRATE: You’ve brought the application for change of residence. So your application for change of residence ought be dismissed. It does not bring up a new matter of a substantial and material change to cause this Court to consider you becoming the predominant residential parent of those children. It didn’t then. The fact that the mother is now living out of her family home is a different circumstance, but no different it seems, to you when in your affidavit filed on 3 February you say even then you are still seeking that the children reside predominantly with you. Your application is dismissed. I don’t propose to deal with any other application today other than an application for costs. Have a seat.

   …I am satisfied there is not a material and substantial change of circumstances that warrants the Court revisiting the issue of residence or substantially the issue of contact.

3. The difficulty about the statement of His Honour in the second last sentence of the first quotation is that there were other applications, in particular that contained in paragraph 4. The consent orders of the parties leading to a further hearing of those issues in the Federal Magistrates Court deals with that complaint.

4. The solicitor for the respondent mother asked for costs.

5. The Federal Magistrate reminded the father (transcript page 16) that ‘I put you on notice last time that if you proceeded on I would have to consider costs’.

6. The transcript of the hearing on 6 March 2006 provided by the father reveals that the Federal Magistrate did explain to him the principles relating to a further hearing of a residence application and that a costs order may follow (Transcript p 2 & 5). There were some arguments put by the father about costs on 9 April 2006 but ultimately the Federal Magistrate said: -

   FEDERAL MAGISTRATE: Now that’s why you’re going to be required to pay an order for costs because as far as I am concerned this application of 5 January never had any merits. For the reasons I’ve given and after consideration of the factors set out in section 117(2)(a) of the Family Law Act being that the mother is legally aided, the public purse has had to meet the costs associated with the mother having her solicitor appeal [sic] today to prepare material in response to the father’s application. It was an application which on the transcript of our discussions today I’ve identified there was no merit in an argument that there had been a substantial or material change of circumstances. The father has been wholly unsuccessful.

   I gave notice to the father on the last occasion that he ran the risk of meeting – having to pay a cost order if he proceeded with his application. He today says that certain changes have given him less concern in the mother’s household, namely that she’s moved out of the home with her parents, but he has not in any way withdrawn, discontinued or otherwise changed his application which was still before the Court today.

Conclusions

1. The Federal Magistrate correctly relied on the history of this matter which relevantly is as follows, there are two children, the child S, born 2 July 1995 and the child O, born 30 July 1999. The parties finally separated in 2003. There was a trial before Federal Magistrate Baumann. The orders of Federal Magistrate Baumann on 6 May 2005 had the effect that the children reside with the mother and have contact with the father. The father appealed against the orders relating to residence and the appeal was dismissed on 16 September 2005. The application dealt with by Federal Magistrate Baumann was filed on 5 January 2006.

2. For an appeal to succeed an appellable error made by the trial Judge must be found. Where a factual or legal error is not found to have been made a decision at first instance should not be easily overturned. This well known principle was encapsulated by Stephen J is Gronow & Gronow 1979 FLC 90-716 at 78,849:

   ‘The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.’

3. Specifically in relation to costs such orders are entirely the discretion of a trial Judge and interference should be only when the result is plainly unjust or if the discretion was exercised on wrong grounds.

4. The general rule, section 117(1) of the Family Law Act1975 (Cth) (the Act) provides that each party to proceedings shall bear his or her own costs. This principle however, is subject to subsection (2) which enables the Court to consider whether circumstances are present that justify the making of a costs order and to do so, providing it would be just. The matters a Judge shall have regard to in considering what order (if any) should be made under subsection (2) are:

   (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.

5. While section 117(2) provides that the Court must be of the opinion that there are circumstances justifying an order for costs the Court does not necessarily need to provide detailed reasons for its decision. An exercise of discretion to order costs will not be disturbed if it appears that there are reasons on which the Judge could rely (Greedy (1982) FLC 91-250).

6. The basis for finding such justifying circumstances may be upon any one factor alone (see Fitzgerald & Fish (2005) 33 Fam LR 123). With those principles in mind, it can be immediately seen that the reason for His Honour’s orders was that the father had brought a further application to alter the residence arrangements for the children on 5 January 2006 having had a trial in May 2005 in which he was unsuccessful and an appeal which was dismissed on 16 September 2005. This was aggravated, in His Honour’s opinion by the fact that he had given the father notice that should he proceed with the residence application an order for costs could follow.

7. Although the father did say to the Federal Magistrate that his concerns were primarily other than residence the fact remains as His Honour correctly noted that the application still asked for those orders. It cannot be said that the discretion of the Federal Magistrate miscarried.

8. The appeal is dismissed.

I certify that the 25 preceding
 Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd:  ………………
Associate