Father Appeals Primary Judge's Dismissal of Application to Vary Parenting Orders

Defrey & Radnor [2021] FedCFamC1A 18 (23 September 2021)

The parties made competing applications for cost orders.  No offer made by either party to settle the proceedings was relevant to the issue of costs.  The Court, in ruling on whether or not it is just to make an order in the mother’s favour, considered the grounds of the father's appeal to the primary judge's previous orders. 

Facts:

By Notice of Appeal filed 7 May 2020, the father appealed orders made by a judge of the Federal Circuit Court on 9 April 2020 dismissing his application for variation of parenting orders.  By Ground 1, the father complained that the primary judge had ordered that the parties attend arbitration to resolve any continuing disputes in relation to passports and information sharing about the children’s participation in non-school activities.  By Ground 2, the father asserted that the primary judge’s exercise of discretion in dismissing his application miscarried because of 13 errors the primary judge had made either individually or cumulatively which infected the exercise of discretion.

Grounds 2(a) and (b) of the father’s appeal complained that the primary judge’s application of the test in Rice and Asplund when dismissing the father’s application for changes in usual time, school excursions, international travel and passports, extra-curricular activities and changeovers was infected by the assertion the primary judge made that such disputes should be resolved by counselling, mediation and arbitration.  Ground 2(m) asserted that the primary judge misinterpreted Order 23 of the final parenting orders made in 2015 for it to mean that it provided a machinery provision for the alternative resolution of further disputes between the parties.

As a result of the father’s challenges in Grounds 2(a), (b) and (m), part of the father’s application were required to be reheard. Grounds 3–5 challenged the costs order that the primary judge had made in the mother’s favour.  The mother sought that the Court re-exercise discretion since the appeal was unsuccessful.  The father likewise indicated he agreed that this Court should re-exercise discretion. The father continued to argue that there was a sufficient change of circumstances to vary the final orders. 

The father seeks an order that the mother pay the costs of the appeal in the amount of $14,645.80 or in the alternative, the father be granted a certificate in respect of the appeal and in respect of the re-exercise of discretion.  The father resists any costs order being made against him.  The mother seeks an order that the father pay her costs on a party/party basis fixed in an amount of $29,106.78 and in the alternative, be granted a costs certificate for the costs of and incidental to the appeal.  The mother also seeks an order that the father pay her costs on a party/party basis in relation to the re-exercise of discretion fixed in the amount of $14,169.65 or alternatively, a costs certificate of and incidental to the re-exercise of discretion.

The mother further seeks that the Court order the father pay her cost in relation to the primary proceedings on a party/party basis fixed in the sum of $5,509.74.  The parties are asking the Court to resolve all issues as to costs arising from the proceedings overall.

Issue:

I. Whether  or not any party to the proceedings has been wholly unsuccessful in the proceedings and such other matters as the court considers relevant.

II. Whether or not either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer.

Applicable law:

Analysis:

The mother asserts that, taken as a whole, the father has been wholly unsuccessful.  The mother’s case, both at first instance and before this Court, was always that there had been no relevant change in circumstances and that the father’s application should be dismissed. 

The primary judge assumed that any future difficulties between the parties could be resolved by an order that they attend compulsory arbitration or alternatively, resolved by other means of alternate dispute resolution.  The father submitted that the mother has conflated the “first instance” proceedings with “the appeal” and the “re-exercise proceedings”, whereas they should be considered separate and distinct proceedings.

Although the father properly concedes that the re-exercise proceedings are an extension of the first instance proceedings, he argues that it could at least properly be considered had it not been for the result of the re-exercise it could not be argued he was not “wholly unsuccessful”.  The father accepts that on the re-exercise, he was wholly unsuccessful, however argues that needs to be considered in the extenuating circumstance that the father’s concern regarding international travel which was current at the time of the filing of his Initiating Application, had been overtaken by the difficulties in international travel occasioned by the COVID-19 pandemic.  However, he did not demonstrate the requisite prima facie change in circumstances. 

As to the costs, the father’s initial submissions do not set out the complete set of correspondence which make up the various written offers of compromise which were exchanged between the parties during the proceedings.  There were aspects of offers made by the mother which could have been accepted by the father and he would be in a better position than the result from the proceedings. However, because of the multiplicity of issues it is difficult for the mother to make the case that the father should have accepted an offer that she made in the form in which it was made at the time it was made. No offer was made by either party to settle the proceedings. 

The father failed in relation to Grounds 2(c)–(l) (10 out of the 13 asserted errors). There was merit in Grounds 2(a) and (b) of the father’s appeal where the father argued that whatever processes for alternate dispute resolution may be available, they are largely irrelevant to the determination which the primary judge was required to make.  The parties' correspondence consists of a number of letters which evidence a genuine attempt by the mother to resolve the conflict by attempting to address some of the father’s concerns, whilst maintaining her core position that she would not agree to significant changes to the 2015 final parenting orders.  

Conclusion:

Following this Court’s re-exercise of discretion, there is no doubt that the father has ultimately been wholly unsuccessful.  Although the father succeeded on certain grounds, his appeal was substantially unsuccessful.  Having considered the relevant matters pursuant to s 117(2A) as discussed above, the Court concluded that it is just to make a costs order in the mother’s favour.  The Court granted leave to the father to rely on submissions filed 25 August 2021. The father is to pay the mother’s costs of these proceedings fixed in the sum of $35,510 within 28 days.