Court Finds That Costs Order Against Mother In Contravention of Orders not in

Keywords: Family Law Act, sections 60CC(3)(f).  70NFB, 70NFE, section 117; contravention; parenting orders; withholding child.

Introduction
The case of Roffe & Huie [2016] FamFAFC 166 (19 August 2016), was heard in front of her Honour Judge May (“the appellate judge”).  This was an appeal brought by Mr Roffe (“the father”) against the decision of the trial judge, Her Honour Judge Demack (“the trial judge”) in a contravention of order application made against Mrs Huie (“the mother”).

In the father’s contravention application, he sought that the mother pay his legal costs on an indemnity basis as the mother contravened final parenting orders of the Court requiring the father to return to court to enforce the orders.

The trial judge found that the mother’s conduct was a contravention of the parenting orders but refused to make a cost order against the mother as this would not be in the best interest of the child.
Background
During the parties’ relationship they had one child together in 2012.  In December 2012 they separated.  Interim parenting orders were made on 28 September 2013 and final parenting orders were made by consent on 3 June 2014 providing for equal shared parental responsibility of the child.

Thereafter, the child was to live with the mother and have contact with the father on an increasing basis over time.  However, after August 2014 the mother stopped allowing the father to have contact with the child.

As the mother was withholding care of the child from the father despite the court orders requiring such contact, the father filed a contravention application in January 2015.  The father alleged that the mother was withholding the child from the father without reasonable excuse.  On 25 March 2015, the contravention application was heard before the trial judge.  However, the trial judge adjourned the hearing after the mother filed an affidavit on 20 March 2015 alleging that the father had sexually abused the child.

The father responded by making an application for costs which was to be heard at the contravention hearing scheduled before the Court in May 2016.  On 21 and 22 May 2015, the contravention application was heard before the trial judge.

During the trial, the mother was cross-examined with regard to her sexual abuse allegations made against the father.  The trial judge made the following observation:

The mother’s evidence was concerning, in that she seemed to be having difficulty in remembering any of the sequences of events; who had told who anything at any point in time; who had made notifications to the Department of Child Safety; why she had done anything at any point in time; including why she had persisted in sending the child to spend unsupervised time with the father notwithstanding having had concerns apparently since April 2014 that the child was at risk of sexual harm in the father’s care; why she then entered into final parenting Orders in June 2014 notwithstanding these apparent concerns…

On the next day of the trail, the mother collapsed in the Courtroom and the matter was adjourned.  The matter was heard later in 2015.

In the hearing the mother’s legal representatives told the court that the mother admitted she had no legal excuse for contravened the parenting orders.  On that basis, the father orally applied to have the parenting orders varied so the child could live with him and asked for costs.  The trial judge refused to vary the parenting orders.

The Trial Judge’s Decision

The trial judge decided that the mother had “behaved in a way that showed a serious disregard of her obligations under the primary order”.  The trial judge found that the mother had contravened section 70NFA(2)(b) of the Act.  As a result of the contravention, the trial judge ordered that:

1. The mother was to enter into a bond with the Court pursuant to section 70NEB of the Family Law Act 1975 (Cth) (“the Act”).
2. The mother was to attend upon family consultant pursuant to section 70NFB(2)(b) of the Act.

Trial Judge’s Consideration of Costs

As to the question of costs, Her Honour had regard to section 70NFB.  The relevant parts of that section state:

(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; and…

(2) The orders that are available to be made by the court are:…

(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…

The trial judge emphasised that her decision as to whether she should award costs for the contravention under section 70NFB had to have regard as to whether that would not be in the best interests of the child.  In her decision, the trial judge said:

“It seems to me that in the event that I form the view that the child must live with the father and spend limited supervised time with the mother, it will be more difficult for the mother to mount the argument that a costs Order would be directly and obviously linked to something which is contrary to the best interests of the child.”

The trial judge decided that the child would remain living with the mother.  In her decision, the trial judge was not prepared to make an order for costs on an indemnity basis as it would not be in the best interests of the child.

Consideration of Cost Order and What is not in the Best Interests of the Child

In the trial judge’s consideration of what was not in the best interests of the child under section 70NFB, the trial judge considered that:

1. The mother had little or no money;
2. She was receiving Centrelink benefits;
3. She was effectively unemployable;
4. Her English proficiency was limited; and
5. The mother was the primary carer of the child.

Based on these factors, the trial judge could not see how it would be in the child’s best interests to make an order for costs against the mother.  Such as order, the trial judge reasoned, was likely to require the mother to sell her primary home and cause considerable financial hardship which was not in the best interest of the child.

The trial judge noted, however, that there was a lack of evidence generally about the mother’s full financial resources.  This included the mother apparently owing her home in Australia and owning another property in South East Asia.  The father estimated the value of the South East Asia property at $120,000.

Appeal Hearing and the Child’s Best Interests

The father appealed the trial judge’s decision based on two grounds, being that the Trial Judge:

1. Erred by giving inadequate reasons as to why an order for costs was not in the child’s best interests under section 70NFB(1)(a) of the Act; and
2. Erred by failing to consider section 60CC(3)(f) of the Act and how an order for costs would affect the capacity of the mother to provide for the needs of the child.

The appellate judge noted that the purpose of section 70NFA of the Act was to “ensure future compliance with court orders” and that section 70NFB requires the court to consider what is in child’s best interests when making a cost order.

In considering the first ground of appeal, the appellate judge considered the father’s Counsel’s submission:

…It was incumbent upon the primary judge to explain how that risk manifested, or why it was neither appropriate or available to the mother to have recourse to the real property in [South East Asia] to satisfy the costs order.

The appellate judge considered the trial judge’s finding:

“In all of the circumstances, I am not prepared to make an Order that would render her financial circumstances even more difficult than they presently are. I cannot see how it would be in the best interests of [the child] for the mother to have to dispose of potentially her principal place of residence here in Australia to satisfy a costs Order on the evidence that I have before me.”

The question that was raised by the appellate judge was whether the trial judge gave reasons for the best interest exception.   Counsel for the mother argued with reference to the case of Penfold v Penfold (1980) 144 CLR 311, that the absence of a reason does not indicate an error in the cost judgement.

The appellate judge took note of the fact that the father did not provide evidence before the trial judge about whether it would be possible for the mother to sell the property in South East Asia and how long that process would take.  Also, it was noted that the mother’s position was not clear, making it difficult for the trial judge to make a decision.  On these grounds the appellate judge found the ground of appeal not met.

The appellate judge considered the reasoning in the case of Short & Trevilian (Contempt and Contraventions) [2008] FamCA 866 (“Short”), where costs orders were made in a contravention of orders hearing.  The appellate judge found that in Short, that the court considered that what was in the child’s best interests of the child could be taken into account having reference to section 60CC(3)(f) regarding the capacity of the parent to care for the child.

Further Ground of Appeal – Consideration of section 117 of the Act

Counsel for the father raised a further ground of appeal being that even if the trial judge found as per section 70NFB(1)(a) of the Act that it was not in the best interests of the child to make an order for costs, the trial judge still had to consider section 117 of the Act with regard to the father’s offer to settle the matter.

The trial judge found that section 117 operates subject to section 70NFB(1) of the Act and therefore, the trial judge was entitled to make the order made.

The appellate judge dismissed the proceedings and declined to make a further cost order against either party for bringing the appeal.