Costs Orders – Glassop & Glassop [2015] FCCA 3437 (21 December 2015)

Costs Orders – Glassop & Glassop [2015] FCCA 3437 (21 December 2015)

Last Updated: 14 January 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

Costs Orders

“What Orders should the Court make?

140. I have found that the Mother contravened the 2014 consent Orders on each count without reasonable excuse. Although the breaches were continuous for a one week period, there have been no previous contravention Orders made against the Mother and no further breaches since that period of time.
141. I am satisfied that in the circumstances s.70NEB of the Act applies. Section 70NEB of the Act provides:

(1) If this Subdivision applies, the court may do any or all of the following:

(a) make an order directing:

(i) the person who committed the current contravention; or

(ii) that person and another specified person;

to attend a post-separation parenting program;

(b) if the current contravention is a contravention of a parenting order in relation to a child–make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;

(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;

(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;

(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)–impose a fine not exceeding 10 penalty units on the person;

(e) if:

(i) the current contravention is a contravention of a parenting order in relation to a child; and

(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and

(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);

(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and

(g) if the court makes no other orders in relation to the current contravention–order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

142. I have considered the submissions on behalf of the Mother that the appropriate sanction would be to make an Order under sub-paragraph (a), requiring her to attend a postseparation parenting program. In my view, these proceedings have gone past that stage.
143. The Mother does not strike me as a parent who would benefit from a post-separation parenting course. The parties have been involved in litigation regarding their children for many years. I doubt, given my assessment of her evidence, the Mother would be open to absorb and apply the content of such courses.
144. I accept that the focus of a Court in dealing with a Contravention Application under Division 13A must be in making Orders which will enforce future compliance with its Orders.
145. The Father seeks an Order for costs under s.70NEB(1)(f) of the Act. The Mother seeks an Order for the imposition of a good behaviour bond under s.70NEB(1)(d) of the Act in the alternative. In circumstances where the Father has been wholly successful in his Application, I am satisfied that the appropriate Order to make, to enforce future compliance, is a costs Order pursuant to s.70NEB(1)(f) of the Act.
146. I do not accept the Mother’s submission that, in determining whether to make an Order and what Order to make under s.70NEB(1)(f) of the Act, a Court is constrained by the provisions of s.117 of the Act. If this submission were correct, s.70NEB(1)(f) of the Act would be rendered otiose. Section 70NEB(1)(f) of the Act stands on its own, permitting the making of costs Orders, without being constrained by the general rule that party’s in family law proceedings bear their own costs. Further, the purpose of the making of Orders under s.70NEB of the Act is different to the making of costs Orders as an exception to the general rule under s.117(2) of the Act. In the former case, it is to enforce future compliance. In the latter case, it is to compensate a party for costs incurred, where the Court finds it is just to do so in the circumstances. There is no reason, however, why a Court exercising its discretion under s.70NEB(1)(f) of the Act, should not have regard to the factors enumerated under s.117(2A) of the Act. Both parties made submissions regarding these factors.
147. In the circumstances, I am satisfied that an Order should be made pursuant to s.70NEB(1)(f) of the Act, that the Mother pay some of the Father’s costs in the amount of $2,300.00. In order to enable her to arrange her finances, I will allow her a period of 90 days to pay these costs.

Conclusion

148. For the reasons set out in my judgment, I make the declarations and Orders set out above.”

Full judgment: http://www.austlii.edu.au/au/cases/cth/FCCA/2015/3437.html