Wallington & Wallington
[2021] FamCAFC 58
•28 April 2021
FAMILY COURT OF AUSTRALIA
Wallington & Wallington [2021] FamCAFC 58
Appeal from: Wallington & Wallington (No. 5) [2020] FCCA 2660 Appeal number(s): EAA 150 of 2020 File number(s): NCC 1492 of 2014 Judgment of: AINSLIE-WALLACE J Date of judgment: 28 April 2021 Catchwords: FAMILY LAW – APPEAL – CONTRAVENTION – COSTS – Contravention of parenting orders – Appeal against the primary judge’s refusal to make an order for costs – No error of law – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Subdivisions B, E, F of Div 13A, ss 60CC, 70NFA, 70NFB, 70NFE, 70NFG
Family Law Rules 2004 (Cth) r 19.34
Cases cited: Bebbington & Bebbington (Costs) [2017] FamCAFC 72
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Wallington & Wallington (No. 5) [2020] FCCA 2660
Division: Appeal Division Number of paragraphs: 50 Date of hearing: 25 February 2021 Place: Sydney Counsel for the Appellant: Mr Horowitz (direct brief) Counsel for the Respondent: Ms Hamilton Solicitor for the Respondent: Michael Jokovic & Associates ORDERS
EAA 150 of 2020
NCC 1492 of 2014APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR WALLINGTON
Applicant
AND: MS WALLINGTON
Respondent
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
28 APRIL 2021
THE COURT ORDERS THAT:
1.The appeal against the refusal of a judge of the Federal Circuit Court on 23 September 2020 to make an order for costs is dismissed.
2.There be no order as to 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallington & Wallington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
Mr Wallington (“the father”) appeals against orders made by a judge of the Federal Circuit Court on 23 September 2020. The orders concluded contravention proceedings brought by the father against Ms Wallington (“the mother”) in relation to the parties’ children X born in 2010 and Y born in 2012 (“the children”).
Final parenting orders were made as between the parties in relation to the children on 25 January 2017 (“the 2017 orders”).
On 14 November 2019 the father filed an Amended Contravention Application alleging that the mother contravened the 2017 orders 13 times from August 2019 to November 2019. The contraventions alleged that the mother had not facilitated time between the children and the father without a reasonable excuse and that the mother had not consulted the father prior to making medical appointments for the children, which the father contended, “denied [him] the liberty to attend the appointment”.[1]
[1] Father’s Amended Application for Contravention filed 14 November 2019, paragraph 25.
Following a hearing on 3 February 2020, on 7 August 2020, the primary judge found four counts of the 13 alleged instances of contravention of the 2017 orders proved (Counts 5, 7, 9 and 11), one of those involved a less serious contravention[2] (Count 9). The three other counts were more serious contraventions[3] (Counts 5, 7 and 11). The mother admitted three of the four counts found proved (Counts 5, 9 and 11).
[2] Subdivision E of Div 13A of the Family Law Act 1975 (Cth) (“the Act”).
[3] Subdivision F of Div 13A of the Act.
On 23 September 2020 the primary judge imposed penalties in relation to the proved contraventions.[4] With respect to the less serious contravention, the primary judge placed the mother on a good behaviour bond without surety for a period of 12 months from the date of the order and further ordered her, within 12 months of the order, to attend five sessions with a family counsellor.
[4] Wallington & Wallington (No.5) [2020] FCCA 2660.
As to the three more serious contraventions his Honour placed the mother on a good behaviour bond for a period of 18 months with a surety in each case of $333.
The primary judge ordered that the terms of the bonds for the less and more serious contraventions be served concurrently. His Honour also ordered that the father have compensatory time with the parties’ younger child during the school holidays (Order 5). Finally, the primary judge suspended further time between the father and the older child, pending further order.
The primary judge declined to make an order that the mother pay the father’s costs of the contravention applications, and it is this that the father appeals.
BACKGROUND
It is helpful to provide some background to the matter along with some legislative context to illuminate the issues raised by the father in the appeal.
The parties commenced a relationship in 1998 and separated in 2012 before the birth of their first daughter. The children have, it seems, lived with the mother since separation.
The parties have been engaged in parenting proceedings since 2014. On 25 January 2017, the Court made final, consent, parenting orders which provided for the parties to have equal shared parental responsibility for the two children, that the children live with the mother and spend time with the father each alternate weekend during the school term, for half of the school holidays and on special occasions. Orders were also made requiring the parties to advise the other of “the name, address, telephone number and appointments with doctors, dentists, optometrists, psychologists, psychiatrists, counsellors and therapists for the children” (Order 11).
On 23 May 2019, the 2017 orders were amended to provide for slightly less time between the father and the children and a change in the location of changeovers.
Given the nature of the proceedings before the primary judge, it is hardly surprising that the parties’ interactions about the time the children spend with the father was fraught. Earlier proceedings had resulted in the mother being found to have contravened parenting orders, first in February 2015 and again on 5 September 2019.
In the instant matter, when imposing penalties on the mother, on 23 September 2020 the primary judge said:
18. [The mother] had sought to negotiate with [the father] prior to the contravention about the dates on which he was to spend time with the children, so as to enable one of the children to attend a school friend’s birthday party. She was “open” to a variation of the order to enable substantive compliance. This demonstrates she was not wilful in her contravention of orders.
19. [The father] was inflexible and insistent on complete compliance, as he was entitled to.
As part of the “[s]ubjective [c]onsiderations” to which his Honour referred in determining the appropriate penalty, was a reference to the older child’s emotional state and to a hospital admission because of an incidence of self-harm. The primary judge also referred to the child’s comment to her psychologist that she did not want to see her father.
The primary judge at [23] further referred to a Family Report which, it seems, was obtained for the purposes of the yet, unheard final parenting proceedings between the parties in which the author of the report, while acknowledging the mother’s view that the children’s distress was because of a reluctance to see the father, and while considering that the father’s behaviour might have contributed to the difficulties, raised the possibility that the children may be finding it difficult to manage their parents’ acrimonious relationship.
Turning then to the penalties to be imposed, and whether additional “make-up” time should be ordered, the primary judge considered it appropriate only for the younger of the two children and declined to make an order in relation to the older child by reason of mental health concerns. His Honour further suspended the older child’s time with the father pending further order (Order 8). Additionally, the primary judge required the mother to ensure the older child attends weekly sessions with her psychologist initially for two months and then as advised by the psychologist (Order 7(a)), to seek the psychologist’s advice as to whether the child should be referred to the local child and adolescent mental health team (at [55]) and that a comprehensive treatment report be obtained from the psychologist after eight sessions (Order 7(b)).
After noting that the mother had contravened orders in the past, the primary judge referred to the imposition of the good behaviour bonds both with and without surety. He further said that because some of the contraventions were “more serious” the mother would be obliged to attend a post-separation parenting course of not less than five sessions (Order 6; at [47]).
His Honour concluded that he would not make an order that the mother pay the father’s costs and expenses. It is this that the father appeals.
The relevant law
Section 70NFA of the Family Law Act 1975 (Cth) (“the Act”) concerns more serious contraventions where the court is satisfied that a person has contravened orders without a reasonable excuse.
Section 70NFB sets out the orders available to the court where a more serious contravention without reasonable excuse has been found.
Where such a contravention is found, s 70NFB(1) provides that the court must make an order pursuant to s 70NFB(2)(g) that the person who contravened the order is to “pay all of the costs” of the other party to the proceedings unless “the court is satisfied that it would not be in the best interests of the child concerned to make that order”.[5]
[5] In determining the best interests of the child in s 70NFB of the Act, the Court is to have regard to the principles set out in s 60CC.
In the event that the court does not make an order pursuant to s 70NFB(2)(g) then the court must make at least one order under s 70NFB(2) that the court considers to be the most appropriate order to make.[6] Those orders include, among other orders:
·a community service order;
·the contravening party enter into a good behaviour bond for a period of up to two years with or without surety. The bond may also be subject to conditions including that the contravening party is to attend appointments with a family consultant, family counselling or family dispute resolution[7];
·make a further parenting order to compensate the party who did not spend time with the child as a result of the contravention;
·to fine the contravening party not more than 60 penalty units;
·impose a sentence of imprisonment on the contravening party for a specified period of not more than 12 months[8];
·the contravening party to pay “some or all of the” reasonably incurred expenses of the other party as a result of the contravention, or pay “some of the costs” of the other party; and
·the court can vary the primary parenting orders under Subdivision B of Div 13A.
[6] Section 70NFB(1)(c) of the Act.
[7] Section 70NFE of the Act.
[8] Section 70NFG of the Act.
THE APPEAL
The Notice of Appeal filed on 21 October 2020 raises four grounds of challenge to his Honour’s order, each ground comprising a number of sub grounds. The thrust of the complaints is that the primary judge erred in not ordering the mother to pay all of the father’s costs in the contravention proceedings and failed to provide sufficient reasons to demonstrate why he refused to make that order.
Before turning to the challenges to his Honour’s order, it is useful to consider the evidence that was before the primary judge on which the father sought the payment of all his costs.
The father’s costs
It is first to be observed that no itemised schedule of costs incurred by the father in relation to the contravention proceedings was before the primary judge to enable him to understand what work was properly incurred in prosecuting the contraventions and the reasonableness of the charges incurred.
The evidence of the father’s costs was opaque.
In his affidavit in support of the contraventions, the father contended that the mother’s refusal to comply with the orders had caused him financial loss in respect of matters such as car hire, accommodation and travel and he referred to the cost of bringing the applications for contravention. The father included in his affidavit a table in which he set out the asserted expenses and provided no particulars or invoice by which the amount was calculated.
In a further affidavit filed on 25 August 2020 in support of an application for costs and expenses incurred as a result of the mother’s contraventions, the father complained at paragraph 4 that had the mother admitted Count 7 of the asserted contraventions, a count which apparently the father considered to be particularly important, he would not have engaged counsel. Counsel appeared on the second day of the hearing of the contravention applications before the primary judge, the father having represented himself on the earlier day.
In support of his claim for costs, the father annexed his counsel’s costs agreement and the tax invoices rendered to him by his counsel.[9]
[9] Annexures “B” and “C” to the father’s affidavit filed 25 August 2020.
It seems that these invoices are referrable both to the prosecution of the contraventions and also to other work pertaining to an interim parenting hearing. Certainly there is nothing on the face of the invoice which would necessarily indicate which consultations and which work was referrable to the contraventions and which to other work.
In order to differentiate the fees charged in relation to the prosecution of the contraventions from other work done by him, the father’s counsel marked numbers 1 to 10 against individual items on the invoices which he said represented the fees charged for the contravention application.
The descriptions of the work for which charges are made are so broad that it is difficult to discern whether the costs charged for the described event was reasonably incurred or of a reasonable amount.[10]
[10] See generally r 19.34 of the Family Law Rules 2004 (Cth); Bebbington & Bebbington (Costs) [2017] FamCAFC 72 at [16].
There follows in the father’s affidavit a table which sets out the costs claimed referrable to the contravention applications, the total of which amounted to $8,043.75 (at paragraph 6). However in a tax invoice sent to the father by his counsel on 6 July 2020, in respect of which three items are said to relate to the contraventions, the total amount of the invoice is $7,975 (plus GST) but the document then notes; “[d]iscount (incl. GST) -$5,513.75” leaving an amount of $3,258.75 owing to the father’s counsel.[11]
[11] Annexure “C” to the father’s affidavit filed 25 August 2020.
What then were the actual costs sought by the father in prosecuting the contraventions?
In submissions before the primary judge, counsel for the father agreed that his bill had been discounted to the father and then said, referring to entries in the invoices which do not relate to the contraventions:[12]
[COUNSEL FOR THE FATHER]: Now, ultimately the invoices were paid in full and – ask the court to have regard to the time entries as asked and the amount that has been paid in full as per [the father’s] affidavit.
[12] Transcript 27 August 2020, p.15 lines 28–30.
Quite what the primary judge was supposed to make of the last submission is unclear. It is tolerably clear on the documents that a significant discount was afforded to the father by his counsel. In that event, it would have been difficult for the primary judge to know quite what costs were actually expended in relation to the contraventions. It must be remembered that an order for costs is compensatory in that it must reflect costs actually incurred.[13]
[13] See Latoudis v Casey (1990) 170 CLR 534 at 542–543 and 567.
In addition to the legal costs, the father also sought his expenses in obtaining the transcript of the proceedings below in the sum of $228.50. There is nothing in the father’s affidavit to indicate which day of hearing a transcript was required nor why it was necessary to obtain one.
Next, the father listed expenses said to have been incurred and wasted as a result of the mother not complying with the orders, including car rental costs from 28 September 2019 to 6 October 2019; fuel on 6 September 2019, 28 September 2019 and 1 November 2019 and fuel and accommodation costs for 3 February 2020 and 3 July 2020. No invoice or receipt was provided to support the claimed expenses.
All in all the father claimed $9,473.90 in costs and expenses.
I return then to the primary judge’s reasons. His Honour made orders regarding the imposition of good behaviour bonds with and without surety, the mother to attend five sessions with a family counsellor and complete a post-separation parenting course and for the provision of additional time to compensate the father for the time foregone with the younger child. He did not make an order that the mother pay some or all of the father’s costs nor pay his reasonable expenses. Rather the primary judge said:
49.In combination, make-up time relevant only to [the younger child] and bonds, is an appropriate and sufficient penalty.
50.No payment of costs or expenses will be ordered, as this would then cause the penalty to be excessive.
In essence the father argues that the primary judge erred in failing to make an order that the mother pay all of his costs associated with the contravention proceedings and relies on s 70NFB(1)(a) of the Act.
True it is that the court must make an order that the person who committed the contraventions pay all the costs of the other party to the proceedings pursuant to s 70NFB(2)(g) unless it is not in the children’s best interests that such an order be made, however the party seeking the benefit of that order is obliged to put before the court clear and unequivocal evidence as to the costs incurred and, further that the evidence is sufficiently detailed to enable the court to determine whether the costs claimed are both fair and reasonable.
Here, no attempt was made to provide the court with an itemised and particularised costs schedule clearly referencing the work done in relation to the contraventions. Rather, the primary judge was left with confused and confusing evidence about the father’s claimed costs which indicates a complete failure of the father to grapple with the requirements of the section from which he sought to benefit. There was, in my view, no proper evidence before him on which his Honour could safely rely to make an order under s 70NFB(1)(a) and s 70NFB(2)(g).
In those circumstances, there was no need for the primary judge to consider whether or not to make such a costs order would not be in the children’s best interests.
Thus the challenge to his Honour’s failure to make a costs order is not made out.
Equally too, the father’s claim to expenses suffers from the same fate – not the slightest attempt was made to provide his Honour with an objective basis on which to consider whether they would be reasonable or not. The claim for fuel for example, makes the identical claim for each trip, and clearly does not relate to the actual charges incurred.
So too here, his Honour had no safe or detailed evidence on which to consider the claim that the mother pay the father’s reasonable expenses and he was entirely correct on that evidence to decline to do so.
The appeal will thus fail.
While the mother sought that the father pay her costs of and incidental to the appeal, no costs schedule was filed on behalf of the mother and thus no costs will be ordered.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace.
Associate:
Dated: 28 April 2021
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