Wallington & Wallington

Case [2021] FamCAFC 58

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 2014

APPEAL 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:

  1. 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”).

  2. Final parenting orders were made as between the parties in relation to the children on 25 January 2017 (“the 2017 orders”).

  3. 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…

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AGLC
Wallington & Wallington [2021] FamCAFC 58
Case
[2021] FamCAFC 58
Decision Date

CaseChat Overview and Summary

The father, Mr Wallington, appeals against the decision of the primary judge to refuse his application for an order for costs in contravention proceedings in the Family Court of Australia. The mother, Ms Wallington, had been found to have contravened parenting orders in relation to the parties' two daughters. The father argued that the primary judge had erred in law in declining his application for costs. The court's task was to determine whether the primary judge had made an error of law in declining the father’s application for costs.

In addressing the father’s contention, the court found that there was no error of law in the primary judge’s refusal to make an order for costs. The court held that the primary judge had exercised their discretion in accordance with the applicable legal principles and had not made an error of law. The court observed that the primary judge had carefully considered the factors relevant to the exercise of discretion, including the mother’s willingness to negotiate and the emotional state of the children. The court was satisfied that the primary judge had given proper consideration to the relevant factors and had not erred in declining the father’s application for costs.

The appeal was dismissed, and there was no order as to costs. The decision of the Family Court of Australia stands, and the father is not entitled to an order for costs in relation to the contravention proceedings.

Orders

Orders of the court

EAA 150 of 2020

NCC 1492 of 2014

APPEAL 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).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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