WINCH & JACKSON
[2015] FamCAFC 75
•17 March 2015
FAMILY COURT OF AUSTRALIA
| WINCH & JACKSON | [2015] FamCAFC 75 |
| FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Contravention of parenting orders application – Where the mother admitted contravening parenting orders – Where parties agree bond was appropriate - Where two year bond imposed - Where the court was able to depart from the procedure in the Federal Circuit Court Rules 2001 (Cth) – Where trial judge obliged to design a fair procedure – Where there was no agreement as to the duration of any bond and no submissions were invited on that point – Where it is for the court alone to determine penalty and parties themselves cannot consent to a penalty – Where failure to determine whether the contraventions fell into the less serious or the more serious category as to determine which statutory provision gave the court power to impose a bond – Section 70NEC(5) discussed - Where failure to comply with statutory requirement to explain to the bond and what would happen if the mother failed to comply with the bond – Where belated explanation was inadequate – Where there was a denial of procedural fairness – Appeal allowed. FAMILY LAW – APPEAL – SENTENCING – Sanctions – Whether the imposition of a two year bond was excessive – Proper approach to imposition of penalties and sanctions in Division 13A of Part VII of the Family Law Act discussed – Where general sentencing principles should be applied – Where the sanction imposed was at the upper end of power – Where the mother had no previous sanctions approved against her and where she provided an affidavit which detailed the difficulties she had with understanding the orders and with communicating with the father – Where no reasons were provided for the imposition of a two year bond – Where the sanction was excessive – Appeal allowed – Orders set aside - Mother released from the bond. FAMILY LAW – APPEAL – COSTS – Where it is impermissible to use costs power solely to deter future contraventions – Appeal allowed – Costs order set aside. |
| Family Law Act 1975 (Cth): ss 60I, 70NEB, 70NEC, 70NECA, 70NFA, 70NFB, 70NFE, 112AP, 117 Federal Circuit Court Rules 2001 (Cth): r 25B.04 |
| Caballes & Tallant (2014) FLC 93-596 Dinsdale v R (2000) 202 CLR 321 Greer & Bedelia [2009] FamCAFC 136 Kendling v Kendling (2008) FLC 93-384 McClintock & Levier (2009) FLC 93-401 Penfold v Penfold (1980) 144 CLR 311 Tak Fat Wong v The Queen (2001) 207 CLR 584 |
| APPELLANT: | Ms Winch |
| RESPONDENT: | Mr Jackson |
| FILE NUMBER: | WOC | 123 | of | 2013 |
| APPEAL NUMBER: | EA | 66 | of | 2014 |
| DATE DELIVERED: | 17 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Le Poer Trench JJ |
| HEARING DATE: | 17 March 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 May 2014 |
| LOWER COURT MNC: | [2014] FCCA 1314 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr S Schonell |
| SOLICITOR FOR THE APPELLANT: | Legal Aid NSW, Wollongong |
| FOR THE RESPONDENT: | Mr Jackson in Person |
Orders
The appeal be allowed.
Orders 1, 2 and 3 of the orders dated 12 May 2014 be set aside.
To the extent that it may be required, release the mother from the bond executed by her on 12 May 2014.
Remit the proceedings for rehearing by a judge other than Judge Altobelli.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Winch & Jackson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 66 of 2014
File Number: WOC 123 of 2013
| Ms Winch |
Appellant
And
| Mr Jackson |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ryan j
Introduction
By Notice of Appeal filed on 6 June 2014, Ms Winch (“the mother”) appeals against orders made by Judge Altobelli on 12 May 2014 in contravention proceedings brought against the mother by Mr Jackson (“the father”) alleging she breached parenting orders.
The contravention application engaged Div 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) – Consequences of failure to comply with orders, and other obligations, that affect children. Central to this appeal are those provisions concerned with the imposition of a penalty when a party is found to have contravened a parenting order without reasonable excuse.
The orders made by his Honour on 12 May 2014 are:
1.By consent the Court finds that, without reasonable excuse, on 23 October 2013 the Mother contravened orders 4(f) on 18 October and 4(a)(i) of the orders made 6 May 2013.
2.By consent the court orders that the Mother enter into a bond without financial penalty to comply with Court orders for a period of 2 years.
3.The Respondent Mother is to pay costs of the Applicant Father, assessed at $750, within 2 months.
I should indicate at the outset that, although the mother consented to entering into a bond, she did not agree it should operate for two years.
The father seeks to uphold the orders of the primary judge.
Some seemingly uncontentious background facts are necessary to give context to the appeal.
Background
The parties are parents of a child L (“the child”), who was born in
2010. They commenced a relationship in February 2009 and separated in February 2012.
On 6 May 2013 parenting orders were made by consent in the Federal Circuit Court. In essence, the orders provided for them to have equal shared parental responsibility, for the child to live with the mother and to regularly spend time with the father. In relation to the child’s time with the father, the orders prescribe a different regime which operates during school term up until the child commences primary school to that which operates thereafter. As might be anticipated, once the child commences primary school the amount of time he would spend with his father during school term was increased. Specific provision was made for special occasions which would ensure, for example, the child would see each of his parents on his birthday and always spend time with a parent on his or her birthday.
Order 4 of the consent orders is relevantly as follows:
4.That the child spend time and communicate with the father as follows:
(a)Until the child commences primary school:
(i)Commencing 20 May 2013, each Monday from 4.30 pm until 8.00 pm
……
(f)On the child’s and the Father’s birthday for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non school day as agreed and failing agreement from 5.00 pm on a school day and from 9.00 am on a non school day.
The parties fell into disagreement in relation to the child and in about September 2013 the mother approached a Family Relationships Centre to arrange a mediation conference. In the event the father did not agree to participate in the mediation and, on 14 November 2013, the Family Relationships Centre issued a certificate pursuant to s 60I of the Act.
The father filed his first contravention application on 22 November 2013. In that application, he alleged the mother contravened various of the parenting orders made by consent and asked that she “…be dealt with under Division 13A of the Part VII” of the Act. By that application he asserted the mother breached various orders on a total of six occasions.
The father’s first contravention application was listed before his Honour on 4 March 2014. On that occasion, the father appeared with his solicitor and the mother appeared for herself. At the outset, the father’s solicitor asserted that since the filing of the first contravention application there had been further instances of non-compliance by the mother with the orders and indicated that the father wished to file an amended application to assert two further breaches of the orders. The matter was then stood in the list to enable the mother to speak to the duty solicitor, which she did.
When the hearing resumed, the duty solicitor appeared with the mother and she applied for an adjournment to enable the mother to file an affidavit in response to the father’s allegations.
His Honour adjourned the proceedings for mention on 12 May 2014 and made various directions. It was noted that in the meantime the parties would attend a parenting orders program.
The father filed an amended contravention application on 13 March 2014, the effect of which was to add the two additional counts to which reference has already been made. This is the application which his Honour determined on 12 May 2014 and is the subject of this appeal.
When the matter resumed on 12 May 2014 the father was again represented and the mother appeared for herself.
When the proceedings commenced the solicitor for the father informed
his Honour that the parties were in agreement that, by way of compromise:
·a finding be made that on two identified occasions the mother contravened a specific parenting order without reasonable excuse;
·by implication the father would not proceed with the remaining six counts; and
·the mother would enter into a bond “without financial penalty” “not to breach the orders”.
The first agreed breach concerned the mother’s failure to make the child available to spend time with the father for a few hours on the Monday before Christmas in accordance with Order 4(a)(i) of the consent orders. This was on 23 December 2013 and not 23 October 2013 as stated in his Honour’s order. The second agreed breach concerned the mother’s failure to make the child available to spend time with the father for a few hours on 18 October 2013 in accordance with Order 4(f) of those orders.
There was no agreement about the duration of the bond and the parties were otherwise at issue in relation to the father’s application that the mother pays his costs.
His Honour then made the “orders” set out earlier and after hearing submissions from the solicitor for the father and from the mother in relation to costs, he made the order for costs. It is apparent that although styled as an order, Order 1 could be no more than a finding based on an admission and which the parties agreed his Honour could make.
However, it needs to be understood that there was no allegation that the mother breached any order on 23 October 2013. Rather, it was alleged and conceded that she contravened an order on 23 December 2013. In relation to the remaining breach it is uncontroversial that as at 18 October 2013 the child had not yet started school. In my view, the effect of Order 4(f) was that the mother was required to make the child available to spend time with the father at 9.00 am on 18 October 2013 and not, as he alleged, at 5.00 pm. Although this point was made by the mother in her affidavit, she went on to say she was nonetheless “prepared to agree that I contravened Order 4(f) on that occasion”. Notwithstanding the mother’s concession, as presently advised I do not accept that it was open to his Honour to make a finding that she contravened an order when the terms of the order and the uncontroverted facts indicate that there was no breach.
The primary judge’s reasons for judgment
His Honour’s reasons are brief and it is useful if I set them out in full.
His Honour said:
1.In relation to the Amended Contravention Application filed 13 March 2014, by consent the Court finds that, without reasonable excuse, the mother contravened Order 4(f) on 18 October and Order 4(a)(i) on 23 October of Orders made 6 May 2013.
2.Again, by consent the Court orders that the mother enters into a bond without financial penalty to comply with Court Orders for a period of two years.
3.I am asked to make an Order for costs following the Orders that I have just made. I am informed that the applicant’s actual costs are over $5000. I prefer to make an Order for costs based on Schedule 1 to the Federal Circuit Court Rules 2001. Using that, the costs would more likely be in the vicinity of about $2,250. I need to take into account, however, the financial circumstances of the respondent. I also take into account that, as a result of the settlement today, the actual costs have been greatly reduced. I think the costs Order is necessary, because it acts as a deterrent to future breaches of the Orders, but I think the costs Order needs to reflect the financial circumstances of the mother.
4.In these circumstances, even though an application of the schedule would probably result in a minimum order of $2250, I’m going to order:
…
Grounds of appeal
Two grounds of appeal are propounded by the mother. They succinctly assert error by his Honour in:
1.Failing to provide procedural fairness to the mother, in particular, by ensuring that:
(a)she understood what it was she was consenting to; and
(b)understood the consequences of the order.
2.Imposing a penalty which was, in the circumstances, excessive.
It will be immediately apparent that although the mother appeals against the order for costs, none of the grounds of appeal goes directly to that issue. However, as was explained in oral addresses, those appearing for the mother present this appeal on the basis that if Order 2 is set aside, then Order 3 must be as well.
Be that as it may, I propose to address that part of the appeal concerned with the imposition of a bond on the mother first and then the appeal against the order for costs.
The Contravention appeal
It must first be observed that in no sense could the mother or indeed the father consent to the penalty to be imposed as a consequence of the concession that the mother had contravened the orders. Although they could inform
his Honour that they were in agreement as to how he might approach that issue, what penalty (if any) is imposed consequent on that agreement was a matter for his Honour. Just as parenting proceedings are not proceedings inter partes in the strict sense, the imposition of a penalty is quintessentially a decision for the court. As can be seen from the transcript in relation to the bond, his Honour treated the parties’ “consent” as an invitation to make an order by consent and with that matter resolved he did no more than determine the duration of the bond. He did so without determining whether the admitted contraventions fell into the less serious category (s 70NEA) and thus sub-div E of Div 13A applied or was a more serious contravention (s 70NFA) and thus fell to be determined in accordance with sub-div F of Div 13A.
Because it was essential that we know whether the bond the mother entered into was pursuant to sub-div E or sub-div F a copy of the bond was received as further evidence in the appeal. The bond is wrongly dated 30 January 2014 and stated to be issued in different proceedings and between parties who bear no relationship to these parties. Notwithstanding these troubling deficiencies it is apparent the mother executed a bond made pursuant to s 70NEB(1)(d) of the Act on 12 May 2014.
Procedural fairness and the failure to explain the order
Turning then to grounds 1(a) and 1(b), it will be recalled that it is asserted that the procedures which his Honour adopted were sufficiently unfair to the mother that they amounted to a denial of justice. The challenges encompass
his Honour’s finding encapsulated by Order 1 as well as the other orders.
It needs to be understood that the father’s amended contravention application was listed for mention and, when the matter was called on, the solicitor for the father informed his Honour the matter had largely resolved. He said:
MR ROBERTSON: The father is prepared to proceed on the contravention on the two occasions where he did not spend time with the child, that being the one just before Christmas and his birthday on the basis that – and I understand that the mother advises that she would agree to that as being a contravention without reasonable excuse. In regard to penalty, we propose that the mother – and she’s – again I understand she’s agreeable to this – enter into a bond not to breach the orders in future. I would leave the term of that bond to your Honour to decide. And then your Honour, I would make some submissions and let the court decide on an issue of cost.
HIS HONOUR: Okay. And you’re saying that is agreed; is that right?
MR ROBERTSON: Sorry, your Honour?
HIS HONOUR: That – you’re saying that is by consent in effect.
MR ROBERTSON: That’s right. Yes, by consent, your Honour.
(Transcript, 12 May 2014, p 2)
His Honour then spoke to the mother who confirmed his understanding that she had taken advice from a duty solicitor on each occasion the matter was before the court. His Honour’s attention was then drawn to the mother’s affidavit filed on 23 April 2014 in answer to the father’s contravention application. I observe that that affidavit was prepared with the assistance of the same solicitor who gave the mother advice.
The following exchange then took place between his Honour and the mother:
HIS HONOUR: Okay. Okay. [Ms Winch], have you had the opportunity to talk with anybody about what is proposed this morning?
[MS WINCH]: Yes, I had Clare O’Donnell.
HIS HONOUR: Okay. And she understood the proposal about conceding that there was a contravention and that there would be a bond for you to comply with the orders in future?
[MS WINCH]: Yes, your Honour.
HIS HONOUR: All right. So you’re okay for me to do all of those things then?
[MS WINCH]: Yes.
HIS HONOUR: And once I do that, Mr Robertson is going to ask me to make an order for costs. Now, of course, I’m going to hear from you about that. I will hear your side about that. But you understand once I’ve done that, I’m then free to order costs in his favour as well.
[MS WINCH]: Yes, your Honour.
HIS HONOUR: Okay. And you’re happy for me to proceed on that basis?
[MS WINCH]: Yes.
HIS HONOUR: All right. Okay. So that means, Mr Robertson, we’re talking about contraventions without reasonable excuse on 18 October 2013 and 23 December 2013; is that right?
MR ROBERTSON: That’s correct, your Honour.
(Transcript, 12 May 2015, pp 3-4)
His Honour then delivered his reasons for judgment. Having done so, he said:
HIS HONOUR: The Court orders that the mother enter into a bond without financial penalty to comply with Court orders for a period of two years. Okay. Now, [Ms Winch], what this means is that if there’s going – if there’s another breach of the orders in the next two years, in fact, really any time in the future, it means that the court can be asked to take into account the orders that I’ve made today in future. That means it just makes it more serious. So that’s why it’s absolutely critical that you comply with the orders. Listen, don’t forget that if you’re not happy with the orders, if you think the orders aren’t working, you’ve got the right to bring it back to court provided you can show that something has changed. But if that’s not the case, you’ve got to comply with the orders. Okay. Right. All right. Well, Mr Robertson, let me hear from you then in relations to costs.
(Transcript, 12 May 2015, p 4)
It is self-evident that the approach adopted by each of the parties was to invite his Honour to depart from r 25B.04 of the Federal Circuit Court Rules 2001 (Cth) (“FCCR”) and to deal with their matter in a truncated fashion. The combined effect of the mother’s detailed affidavit in reply, her having received legal advice in relation to the contravention application and her affidavit, as well as the exchanges, persuades me that the mother understood the nature of the application brought against her. It was, in those circumstances, reasonable for his Honour to depart from the procedure contained in the FCCR. However, having done so, it was incumbent upon him to design a fair procedure for the determination of the matters which remained in dispute and to explain the altered procedure to the parties (Caballes & Tallant (2014) FLC 93-596).
As a matter of fairness, this meant that his Honour was required to give each of the parties the opportunity to make submissions and call evidence in relation to the duration of the bond, and to clarify whether the bond under discussion was pursuant to s 70NEB(1)(d) (less serious contravention) or s 70NFB(2)(b) (more serious contravention).
Although in his Honour’s discussion with the mother she indicated she was agreeable to a bond to comply with the orders in the future, she did not agree about its duration nor did she agree that his Honour could determine its duration (and I observe its nature) without hearing from her. Nor can the mother’s consent to such an approach be inferred. For concessions of that type to have any value, whether the concession is explicit or inferred, I would need to be satisfied it was informed and considered. In other words, that the mother understood she was giving up a right to be heard which, absent her agreement, could not properly be taken from her. The transcript indicates that this was not the case and to the extent that the ground challenges the process by which
his Honour determined the duration of the bond, it is made out.
As I have already mentioned, one of the problems with his Honour’s orders is that Order 2 failed to identify the statutory provision pursuant to which the bond was ordered. Indeed as the transcript reveals at no stage did his Honour identify the provision under which he proposed to order the bond. This is important because as I said earlier there are two possibilities, namely either s 70NEB(1)(d) or s 70NFB(2)(b). Had I not been provided with a copy of the bond in the appeal, because his Honour did not make a finding that one or other of the breaches involved a serious disregard of the primary order (s 70NFA(2)(b)), I would have inferred that the application was dealt with as a less serious contravention. In any event and irrespective of which section, s 70NEC(5) (which operates in conjunction with s 70NEB(1)(d)) and s 70NFE(5) (which operates in conjunction with s 70NFB(2)(b)), required
his Honour to provide an explanation to the mother in accordance with the relevant sub-section 5, before requiring she enters into the bond. In this respect, the sections are in identical terms and provide:
If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond—fails to act in accordance with the bond.
In Greer & Bedelia [2009] FamCAFC 136, the Full Court considered the application of s 70NEC(5). Their Honours said:
65.In the instant case her Honour directed the Mother’s solicitors to write to their client explaining the purpose and effect of the bond.
66.Subsection (5) is quite specific in requiring that the explanation must be given prior to the imposition of a bond. That clearly could not have occurred in this case given the course of action the learned Federal Magistrate took.
67.Although it was not the subject of argument before us we think it important to note, in case it is a practice, that the terms of s. 70NFE(5) do not appear to be terms that can be delegated to a legal practitioner acting for one of the parties and should be carried out by the Court. This appears from the following:
(5)If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person… (my emphasis)
(footnote omitted)
I agree and am satisfied s 70NFE(5) operates in the same manner.
Because the bond was apparently made pursuant to s 70NEB(1)(d), his Honour needed to explain the effect of s 70NECA (Procedure for enforcing bonds). Stated broadly, his Honour needed to explain to the mother that if it was established she had, without reasonable excuse, failed to comply with the bond, without prejudice to the continuance of the bond the court could:
·impose a fine not exceeding 10 penalty points (s 70NECA(3)(a));
·revoke the bond and deal with her in relation to the contravention application in respect of which the bond was entered in any manner which she could have been dealt with for the contravention (s 70NECA(3)(b)); and
·take into account on the reconsideration of the contravention application, the fact that the bond was entered into, as well as the other matters referred to in s 70NECA(4).
I cannot accept the father’s submission that his Honour’s explanation to the mother was adequate. In my view it is beyond dispute that his Honour erred in not providing an explanation before he imposed the bond and that the belated explanation in its terms was deficient.
This ground is made out.
Whether the sanction was manifestly excessive?
By ground 2 it is argued that the penalty which his Honour imposed was excessive. At the outset, I must emphasise that the imposition of a sentence involves the exercise of judgment and bears close similarities to the making of a discretionary decision. If properly imposed, a sentence will not be disturbed on appeal merely because an appellate court would have reached a different result (Dinsdale v R (2000) 202 CLR 321). These principles apply to proceedings conducted under s 112AP of the Act (Kendling v Kendling (2008) FLC 93-384) and pursuant to Div 13A of Pt VII (McClintock v Levier (2009) FLC 93-401).
It needs to be understood that the two breaches resulted in the child being deprived of the opportunity to spend a total of five and a half hours with his father. To put this in context, the consent orders provided that each fortnight the child would spend time with the father on:
·Monday evenings;
·Wednesday overnight; and
·each alternate weekend from Friday evening to Sunday night.
It further needs to be understood that the mother provided a detailed affidavit in which she set out the circumstances in which the breaches occurred, difficulties she had understanding the orders and their application, difficulties caused by the father’s reputed refusal to speak to her, her attempts to persuade him to attend family dispute resolution and that she had offered make-up time which the father refused. It was also common ground that no court had previously imposed on the mother a sanction or taken action against her in respect of a contravention.
Although the father sought to uphold his Honour’s orders, he made no submission contrary to those propositions.
Against this background, it is submitted for the mother that the imposition of a bond without financial penalty for a two year period was neither appropriate nor just.
Much has been written about the approach to be adopted in what might be described as “the sanction” or “penalty” phase of proved contraventions. Regrettably, none of the authorities were referred to in the summary of argument presented by those who represent the mother; nor by the father, but given that he appeared on his own behalf, that is perhaps understandable.
Be that as it may, most, if not everything that needs to be considered to answer the questions posed by ground 2, is addressed by McClintock. For present purposes, the salient principles that emerge from McClintock are:
·The focus of a court in dealing with a contravention application under Div 13A of Pt VII is in making orders which will enforce future compliance with its orders.
·The court’s focus is on the individual party.
·A penalty imposed to deter other likeminded persons would constitute an error of law.
·The court can have regard to criminal sentencing principles.
·If there are multiple contraventions in relation to which the court determines to impose a “global” sanction, particular care is required to ensure the total sanction is not manifestly excessive.
·Reasons must be provided for the imposition of a particular sanction.
If his Honour was satisfied that the agreed finding meant the matter should be dealt with pursuant to sub-div E, the sanction which he imposed was at the upper end of the powers available to him. So that it is clear, because the maximum duration of a bond which he could order was two years, the only penalty more severe than that which was imposed was to attach conditions to the bond requiring surety and security.
It needs to be understood that the imposition of a bond is no trivial thing; a fact plainly recognised by the other less draconian powers and remedies referred to in s 70NEB. In my view, although his Honour was undoubtedly entitled to take into account and place weight on the parties’ agreement that a bond was the appropriate penalty, it was incumbent on him to consider whether, in the court’s view that, as opposed to some other disposition, was appropriate. For how else is proportionality to be achieved and a coherent system for the disposition of cases of this type to be achieved?
Of course here his Honour gave no reasons for the imposition of a bond, its nature or duration. That in itself is an error of principle and law. As the High Court said at [57] in Tak FatWong v The Queen (2001) 207 CLR 584:
The actual sentence which a court imposes on an offender reveals very little about the reasons which the court had for fixing that sentence…
On the facts of this case as set out earlier, it is not apparent why it was that
his Honour imposed a sentence at the upper end of the powers available to him. There is nothing in the facts which I have seen which could explain what it was that placed this contravention in the upper range of less serious contraventions. On the facts as I have earlier recorded, it could not be.
Nor were reasons advanced by his Honour to indicate why s 70NEB(4) was not addressed. I can only assume his Honour understood because of the parties’ “consent” to the imposition of a bond he did not need to consider s 70NEB(4). In the circumstances of this case, I do not agree.
It follows that ground 2 must succeed.
The costs appeal
As his Honour’s reasons for judgment demonstrate, the only reason he made an order for costs against the mother was to act “…as a deterrent to future breaches of the orders…” Notwithstanding the caution which must be adopted in an appeal against an order for costs (Penfold v Penfold (1980) 144 CLR 311), in circumstances where the mother appeared before his Honour without representation and his Honour did not invite her to address him on the controversial use of “deterrence” as a basis for making an order for costs, I am satisfied that the order for costs which his Honour made cannot stand. Put simply, absent a statutory provision to the contrary it would be an impermissible use of a costs power to make an order for costs solely on the basis of deterrence. Section 117 of the Act provides no such statutory imprimatur.
It follows that the appeal against the order for costs should also be allowed.
The consequences of allowing the appeal
The parties were invited to address us on the consequences of allowing the appeal.
Although counsel for the mother invited us to re-exercise his Honour’s discretion, there was no agreement about the facts upon which we might do so. In my view, there is so much doubt that attends the concessions which the mother made to his Honour and the process which culminated in his Honour’s orders was so flawed, that it would not be possible to re-exercise. Unfortunately I consider that the proceedings must of necessity be remitted for rehearing before a different judge.
Costs of the appeal and rehearing
In the event the mother was successful, she did not seek an order for costs of the appeal.
The mother, who is represented by Legal Aid NSW, does not seek and would not be entitled to a certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth) in relation to the appeal or any rehearing.
I would not, in any event, recommend that a certificate issue to either party whether it be in relation to the appeal or rehearing. In my view, each of the parties contributed at least in some small way to the difficulties which beset the ultimate orders.
Proposed orders
The orders I would therefore propose are:
(1)The appeal be allowed.
(2)Orders 1, 2 and 3 of the orders dated 12 May 2014 be set aside.
(3)To the extent that it may be required, release the mother from the bond executed by her on 12 May 2014.
(4)Remit the proceedings for rehearing by a judge other than Judge Altobelli.
(5) There be no order as to costs.
Le poer trench j
I agree with the reasons given by Justice Ryan and the proposed orders. I have nothing further to add.
Ainslie wallace j
I too agree with Justice Ryan’s reasons and the orders she proposes and they will be the orders of the court.
I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Le Poer Trench JJ) delivered on 17 March 2015.
Associate:
Date: 20 March 2015
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