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Children – contraventions found proved but costs order made against applicant

In Adam & Tan [2019] FamCA 964 (13 December 2019) Carew J heard an application by a father against a mother alleging contraventions of a parenting order.

The mother and their 11-year-old child lived overseas. The father (who lived in Australia and communicated with the child by app on Sundays) alleged that the mother contravened the order by failing to facilitate telephone contact with him without reasonable excuse and not giving him 60 days’ notice of the child’s proposed travel from Country B (where the child lived) to Country D for a weekend. The mother emailed notice two hours before departure, despite obtaining a travel visa two weeks earlier. Those contraventions were found proved, but other contravention applications were dismissed.

Carew J said (from [40]):

“I have found that the mother contravened… the…order without reasonable excuse by failing to provide the required notice prior to travel. However, I do not intend to impose any sanction…The application by the father was, in my view, petty and unwarranted.

[41] I have found that the mother contravened…the…order without reasonable excuse on 2 June 2019 by failing to ensure the child was made available for the father’s communication. However, I do not intend to impose any sanction. The mother was told by the child that the father had not called her (although she was mistaken) and, upon becoming aware of the father’s difficulties with contacting the child, the mother has taken steps…to remedy the situation. The child now calls the father on Sundays…In my view this application was also petty and unwarranted. (…)

[43] The father has been substantially unsuccessful. While two counts…have been found in his favour I have not imposed any sanction or made any order. (…)

[44] The father also opposed the mother giving her evidence by electronic means, which required a separate hearing and the father’s objection was dismissed. (…)

[47] I consider that an order for costs against the father is warranted in the circumstances of this case. …[T]he father has been at least substantially and arguably wholly unsuccessful in that not only were most of the alleged contraventions dismissed, the two that were established did not attract any sanction against the mother nor variation to the…order. I have found the father’s conduct in relation to the proceedings to have been petty and unwarranted.”

It was ordered that the father pay $2750 towards the mother’s costs.

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

This story was originally published in Proctor June 2020.

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