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Beeney & Jenner (No.2) [2017] FCCA 1107 (25 May 2017)

Last Updated: 6 June 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEENEY & JENNER (No.2)


Catchwords:
FAMILY LAW – Contravention – parenting orders – parental responsibility – orders for reimbursement for cost of travel.


Legislation:

Cases cited:
Hallows & Hallows [2015] FamCAFC 31
Brown v Dunn (1893) 6 R 67


Applicant:
MR BEENEY

Respondent:
MS JENNER

File Number:
SYC 4601 of 2013

Judgment of:
Judge Harland

Hearing dates:
3 & 4 November 2016

Date of Last Submission:
27 April 2017

Delivered at:
Melbourne

Delivered on:
25 May 2017


REPRESENTATION

The Applicant:
Self-represented

Counsel for the Respondent:
Ms Swart

ORDERS

(1) That Count 1 of the amended contravention application is proved with the respondent having contravened order 10 of the orders made on 18 September 2015 without reasonable excuse.
(2) That Count 2 of the amended contravention application is dismissed.
(3) That Count 3 of the amended contravention application is dismissed.
(4) That Counts 4 to 17, 20 and 22 are struck out.
(5) That Count 18 of the amended contravention application is dismissed.
(6) That Counts 19 and 21 are not proved as the respondent has a reasonable excuse.
(7) That order 4 of the orders made on 28 January 2015 is discharged.
(8) That order 5(b) of the orders made on 18 September 2015 is varied removing the references to “4.00pm” and replacing them with “6.00pm”.
(9) That order 10 of the orders of the orders made on 18 September 2015 is discharged.

IT IS NOTED that publication of this judgment under the pseudonym Beeney & Jenner (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYC 4601 of 2013

MR BEENEY

Applicant

And

MS JENNER

Respondent


REASONS FOR JUDGMENT

Background to the proceedings

  1. The parties engaged in a contested final hearing with respect to parenting, maintenance, and child support issues in 2015. The judgment in that matter was delivered on 18 September 2015. Judge Whelan made an interim order for child support as she found that the state of financial disclosure by both parties was so poor that it was not possible to determine that application on a final basis. She made an interim order requiring the father to pay child support in the sum of $650 a month.
  2. The hearing of the child support matter was delayed for several reasons, including the ill health of Judge Whelan. The child support matter was listed for hearing on 10 December 2015. On 9 October 2015 I made trial directions and listed the child support matter for hearing on 16 December 2015. It was not able to proceed because neither party complied with the trial directions and it was clear that further financial material needed to be placed before the Court. I made detailed directions as to what the parties needed to file and listed the matter for hearing on 7 September 2016.
  3. The father filed a contravention application on 22 June 2016. The father further filed an application in a case on 25 July 2016. One of the orders he sought in that application was that the contravention be listed at the same time as the child support hearing. I made an order for both matters to be heard at the scheduled final hearing.
  4. Through no fault of the parties it was necessary to vacate the hearing on 7 September 2016 and the matter was listed with priority on 3 November 2016.
  5. The issues before me were the applicant’s amended contravention application and child support application. The contravention application was heard first. The hearing commenced on 3 November 2016 and continued the next day. The evidence with respect to the contravention application was completed. Shortly after the start of the child support case at the parties’ request the matter was stood down and after some time the parties indicated that they had reached agreement on all issues. It was not possible to enter into consent orders straight away because they needed to liaise with the Child Support Agency. The parties outlined their agreement including with respect to the contravention application, which involved it being withdrawn, and the parenting orders being amended.
  6. I adjourned the case to enable the parties to attend to these matters and listed the matter for a telephone mention on 7 November 2016 to make the orders. The parties indicated they needed more time as they needed to speak with the Child Support Agency. I adjourned it for further telephone mention on 20 December 2016. When it was next mentioned the parties indicated they were have some difficulties with the Child Support Agency and needed more time. It was adjourned again at their request to 16 March 2017. The day before the mention the father filed a notice of discontinuance with respect to his application for child support departure. At the mention the parties indicated the contravention matter was no longer resolved and I made orders setting out a timetable for parties to file written submissions.

The Law

  1. The father’s contravention application commenced pursuant to Division 13A of Part VII of the Family Law Act 1975 (“the Act”). Section 70NAC of the Act sets out what it means to contravene an order:
  2. Section 70NAE of the Act discusses the meaning of reasonable excuse:
  3. The standard of proof in contravention proceedings is on the balance of probabilities: (s.70NAF(1) of the Act).
  4. In contravention proceedings, the general obligations created by parenting orders need to be considered. Thus, in the present case, s.65N of the Act may be relevant. It states:
  5. Division 13A of Part VII empowers the Court to do certain things depending on whether the contravention is alleged but not established (subdivision C), whether the contravention is established but a reasonable excuse for the contravention is found (subdivision D) and whether the contravention is found without reasonable excuse – or to be a less serious contravention (subdivision E) and finally where contravention is found without reasonable excuse but more serious contravention (subdivision F).
  6. There is no suggestion on the facts of this case that if the contravention is established, it is a more serious contravention as contemplated by subsection F.
  7. Section 70NBA of the Act empowers the Court to vary the primary parenting order irrespective of whether or not the court finds a person contravened the primary orders.
  8. The applicant bears the onus of establishing a prima facie case. Once this is established, the onus shifts to the respondent to establish that she has a reasonable excuse.

Contraventions

  1. The father relies on his amended contravention application dated 19 August 2016,[1] and his affidavit filed on 22 August 2016 in support of his amended application.
  2. I struck out counts 4 to 17, 20 and 22 of the contraventions as they were not capable of being made out. The hearing proceeded with six counts of alleged contraventions.
  3. Counts 1, 19 and 21 all relate to reimbursements for flights. As they relate to the same order, and the evidence with respect to those counts overlap, it is convenient to deal with those counts together. I will address the other counts first.

Alleged Contravention 2 [2]

  1. This count alleges that the mother contravened order three of the orders dated 18 September 2015 on 5 November 2015. The particulars given are as follows:
  2. Order 3 of the orders made 18 September 2015 is as follows:
  3. The father complains under this contravention that the mother did not notify him about X’s serious foot injury and did not consult with him about X seeing a foot specialist on 23 and/or 30 November 2015. He complains that she did not make a genuine effort to consult with him and had X attend appointments with the specialists without his consent. He also complains that he still has not been provided with the contact names and details of the doctors.
  4. The father addresses this at [4] to [7] of his affidavit. He says that that the first notice he received of the further appointments was when he read [85] and [86] of the mother’s affidavit filed 5 November 2015.
  5. The father was cross-examined about this. Exhibit A is a series of emails between the parties with respect to X’s foot. It included an attachment sent by the mother, being a medical record for X. These exchanges took place in early 2015. In these emails the father agrees that the mother had given him verbal updates.
  6. Exhibit B is an email from the mother to the father referring to X’s appointment at the Endocrinology clinic to which the father was to take him. The mother’s email refers to the documents the father would need to take, including x-rays and the reasons for the appointment. That email is dated 25 September 2015. She also refers to discussions she has had with the father about these issues.
  7. The father conceded that he saw three doctors with respect to X’s foot and had the opportunity to consult with the other doctors directly. He further conceded that they told him there was nothing wrong with X’s foot.
  8. The father’s complaint that he was not notified of serious injury to X’s foot simply cannot be made out. He agreed he was notified about X’s injury in 2014 and about ongoing concerns with respect to that injury.
  9. When cross-examined about this, the father said his concern is that the mother continues to make appointments to have X medically examined when there is nothing wrong with him and the three doctors had said that there was nothing wrong with his foot.
  10. He concedes that he was advised of the upcoming appointments that took place. His complaint is that he was not consulted about the making of the appointments and the need for the appointments. He says it is an ongoing contravention.
  11. The father says that Judge Whelan made comments about the mother unnecessarily taking the children to the doctors in her judgment.
  12. The series of emails the father annexes to his affidavit shows much discussion about taking the boys to doctors. On the one hand he complains about not being consulted but then he complains about her not taking the boys to doctors. As I mentioned at the hearing, the tone and frequency of these emails is concerning.
  13. The mother says that this serious injury to X’s foot occurred in November 2014 and that he has had ongoing care with regular check-ups and that this continues to date. She says the incident the father was referring to was a general check-up with paediatrician and an orthopaedic paediatrician. She said both appointments were just check-ups following on from the earlier appointments. The father took X to the endocrinology appointment at the (omitted) Hospital earlier in the year. There was no serious injury. She says they are monitoring him because he is too young for bone density tests.
  14. It is clear that the issues with respect to X’s foot predate the final orders and is a matter which the parties had been discussing. The evidence does not establish that the appointments were anything more than follow up appointments. The evidence does not establish that there were other major appointments that the father was not consulted about.
  15. The father has not made out a prima facie case with respect to this count. It is dismissed.

Alleged Contravention 3 [3]

  1. Count three is that the mother breached order 14 of the orders dated 18 September 2015 on 5 November 2015.
  2. The particulars of the alleged contravention is as follows:
  3. Order 14 of the orders made 18 September 2015 is as follows:
  4. The father says that on 5 November 2015 the mother did not inform him about various doctors including the foot specialist she took X too. This complaint really flows on from the previous one.
  5. The mother denies breaching this order. The mother says X has never been to an orthodontist and the only dentist he has seen is the one who visits daycare.
  6. The father has not made out a prima facie case with respect to this count. It is dismissed.

Alleged Contravention 18 [4]

  1. Count four alleges that the mother breached order 5(b)(i)(B) and 7(b) of the orders dated 18 September 2015 at 4 PM at Melbourne Tullamarine airport on 4 March 2016 . The particulars provided are as follows:
  2. Order 5 of the orders made on 18 September 2015 is as follows:

A. From 4.00pm on Friday until 5.00pm on Sunday on the weekend of 10 February or, if such date does not fall on a weekend, the weekend following;

B. From 4.00pm on Friday until 5.00pm on Sunday on the weekend of (omitted), being the Father’s birthday or, if such date does not fall on a weekend, the weekend following;

C. From 4.00pm on Friday until 5.00pm on Sunday on the weekend of 17 May or, if such date does not fall on a weekend, the weekend following;

D. From 4.00pm on Friday until 5.00pm on Sunday on the weekend preceding each child’s birthday; and

E. From 4.00pm on Friday until 5.00pm on Sunday on the Father’s Day weekend.

ii. During the school holiday periods in New South Wales as follows:

A. For four nights during the 2015/2016 Victorian Christmas/summer school holiday period, such time to occur in January 2016 as agreed between the parties and in default of agreement, from 12 noon on 11 January 2016 until 5.00pm on 15 January 2016;

B. For five nights during each of the 2016 Victorian March/April Term 1 and June/July Term 2 school holiday periods as agreed between the parties and in default of agreement, for five nights in the first week of each period commencing at 12.00 noon on the first day and concluding at 5.00pm on the last day;

  1. Order 7 of the orders made 18 September is as follows:
  2. The complaint here is that the mother did not deliver the children to Tullamarine Airport at 4.00pm on 4 March 2016 but delivered them at 6.20pm.
  3. The mother agrees that she was late. Her case is that she was stuck in heavy traffic and it was beyond her control.
  4. The father’s case is that the mother did not allow enough time when she had clear notice of when his flight was leaving. He seeks to be compensated for the extra flights he had to book.
  5. Again there is series of emails between the parties about this. In his affidavit the father relies on a lot of what he says Y, who is aged 6, told him. The father is guessing as to when the mother left (omitted) for the airport. He says as much when he says he thinks she did not leave until “after 4.30pm if not at approximately 5.00pm”.[5]
  6. The first email is an email from the father to the mother dated 13 February 2016 in which he restates his notice to the mother that she is to produce the children at Melbourne airport on Friday 4 March 2016 at 4.00pm. There is then a series of email exchanges on 4 March 2016. The father sent email saying he was landing at around 12.30pm so he would be there for a while. The father said his flight leaves at 6.05pm so he would like the boys delivered to him before 5.00pm. The mother said that they would not be leaving (omitted) before 4.00pm, that it takes over an hour on a good day and that Friday afternoon traffic is really bad but she would keep him informed. In a further text the mother refers to having another meeting which she says she told him about before he booked the flights. She says on that basis she will not contribute to any extra expense. There are further messages where she indicates she is stuck in traffic and gives him updates as to how far away she is.
  7. It was put to the father in cross-examination that the mother had previously told him that he should not book flights before 6.30pm on Friday night because the difficulties with traffic on Friday afternoons getting to the airport. The father replied “I don’t know she wrote that anywhere. I don’t recall. You may be correct.”
  8. The father’s complaint is that if the mother had left straight from picking up Y from school at 3.30pm she would have made it to the airport on time. He says he has made the trip on two occasions without difficulty.
  9. The mother says in her affidavit that on Friday she works until 3.30pm and picks up Y from school then they collect X from day-care. She says the traffic on Friday afternoon to the airport can take approximately 2 ½ to 3 hours. She speaks about the afternoon of 4 March and talks about X’s distress that afternoon. The mother sent the father an email at 7.39pm that night saying that she would not do that again, because of the distress it caused X in particular being stuck in traffic for that long. The father says he did not agree that they were distressed as they were happy see him. Again he refers to what he says Y told him, which is how he reaches the conclusion that the mother delayed leaving.
  10. The father then said in cross-examination that he believed the mother went out of her way to ensure that he missed the flight because she wanted to spend time in Melbourne with the children so she would not have to pay for flights. He did not accept that the mother made an effort to get to the airport on time.
  11. The father said he does not want the children to miss school on Friday afternoons. The orders state that she is to have children at the airport by 4.00pm. Clearly it is not possible to have the children there by 4.00pm if they are to be at school for the whole day on Friday.
  12. It is clear that the orders need to be amended in this respect as it is not practicable. The father said the orders work well and he does not want any changes to them but that simply is not the case. Both parties were on notice at the hearing that one of the options the court has in contravention proceedings, regardless of whether a contravention is found or not, is to vary the orders.
  13. The father says he has offered to pick the children up from school and take them to the airport. The mother says she has a three year intervention order against the father which prohibits him from going to the children’s schools.
  14. I raised it at this hearing and the previous time the matter was mentioned in Court that one option is to vary the orders to enable him to collect the children from school which then avoids the need for the mother to get the children to the airport. It also gives the father the opportunity to see the children’s school and talk to the children. It is a positive thing for children to see their parents collect them from school and to show them the classrooms etcetera.
  15. The mother sent an email to the father on 29 January 2016. She referred to the fact that [114] of the reasons for judgment of Judge Whelan stated the time outside of holidays should be split between Melbourne and Sydney equally. The mother also advised that she was not able to get to McDonald’s at (omitted) until 4.30pm on Fridays because of work. She says Y finishes school at 3.30pm and she then has to pick up X from day-care. She says the father would need to take into account the peak hour traffic and that she would expect to drop them off between 6.30pm to 7.30pm. She states she will not be responsible for any extra expense if she is stuck in traffic.
  16. The mother says the father was aware that she had work commitments that she could not change that day and she had informed him of that in January. She said she collected Y from school at 3.30pm and then collected X from the day care. She says she had everything packed in advance, including meals for X as he generally eats at 4.30 pm. She says the time they left directly for the airport was 3.50pm at the latest. The traffic was stationary for about 15 to 20 minutes as four lanes were blocked due to there being construction work on the side of the road. She said she had to pull over when X needed to go to the toilet and that was another delay. She said she did everything she could to get there on time.
  17. The orders require handovers take place at 4.00pm. The father’s contravention as pleaded is that the mother did not hand over the children at 4.00pm. The father’s own evidence is that he did not require the mother to deliver the children at 4.00pm. On this basis, the father cannot establish a prima facie case that the mother breached the order given that the parties agreed on a different arrangement for that day. I should note that I am satisfied that the mother made her best endeavours to get to the airport at the time agreed.
  18. The father has not established a prima facie case. This count is dismissed.

Alleged contraventions with respect to reimbursement for flights

Alleged Contravention 1 [6]

  1. The alleged contraventions under counts 1, 5 and 6 all deal with reimbursement for flights. As the same issues arise under all three counts I will address the issue of whether or not the mother has established a reasonable excuse for all or any of the counts together after setting out the details of the alleged contraventions.
  2. The first contravention the father proceeded with alleges that the mother breached order 10 of the orders dated 18 September 2015 on 2 November 2015. The particulars of that count are:
  3. Order 10 of the orders made 18 September 2015 is as follows:
  4. The father complains under this contravention that the mother did not reimburse him for her share of the costs of flights on 2 November 2015 for the flights he booked for the Christmas period from 24 to 26 December 2015.
  5. He annexes his email to the mother which attaches the flight itinerary and costs of flights with a request for reimbursement of $253.00.
  6. The orders do not provide for there to be a trade-off in costs of flights. With respect to this count I find that the father has established a prima facie case.

Alleged Contravention 19 [7]

  1. This count alleges that on 14 March 2016 the mother breached order 10 of the orders dated 18 September 2015. The particulars provided are as follows:
  2. Annexure ‘O’ of the father’s affidavit is a letter from him to the mother dated 14 March 2016 where he refers to the costs of the three sets of flights and refers to previous requests for reimbursement.
  3. I have set out order 10 above.
  4. With respect to the February flights, the father wrote to the mother on 29 January 2016. The mother responded referring to [114] of the reasons for judgment which stated that half the term visits should take place in Melbourne. The parties exchanged a series of emails.
  5. The mother conceded that she has not reimbursed the father for the flights directly. The father has established a prima facie case with respect to this count.

Alleged Contravention 21 [8]

  1. Count 6 alleges that the mother breached order 10 of the orders dated 18 September 2015 on 14 June 2016. The particulars of that account are:
The mother has not reimburse the father 30% of the cost of both the father’s and children’s return airfares in the sum of $142.47 incurred in bringing the children to Sydney on 25 June 2016 and returning to Melbourne on 30 June 2016 upon being provided with evidence of the cost of same.
  1. I have set out order 10 above.
  2. The father emailed the mother his request for reimbursement on 14 June 2016.
  3. The mother conceded that she has not reimbursed the father for the flights directly. The father has established a prima facie case with respect to this count.

Conclusions with respect to alleged contraventions 1, 19 and 21

  1. In order to understand the mother’s case with respect to these contraventions it is necessary to refer to the orders and reasons for judgment with respect to the father’s visits during school terms.
  2. Order 5(b) provides for the father to spend with the children during school terms on the following occasions:
    1. On the weekend of 10 February, or if does not fall on a weekend, the following weekend;
    2. On the weekend of 6 March, or if does not fall on a weekend, the following weekend;
    1. On the weekend of 17 May, or if does not fall on a weekend, the following weekend;
    1. On the weekend of Father’s Day, or if does not fall on a weekend, the following weekend;
    2. The weekend preceding X’s birthday (being (omitted));
    3. The weekend preceding Y’s birthday (being (omitted)).
  3. Whilst the father is correct that the orders do not specify that half the visits take place in Melbourne, that was clearly the intention of Judge Whelan. I am satisfied that the mother relied on this understanding when she refused to pay for the February flights. It is important to put this in context, not only with respect to [114] of Judge Whelan’s judgment, but also the context of the ongoing child support dispute between the parties where there were several months where the father did not pay child support and the mother’s case is that the father owes significant arrears. The father disputes that there are arrears owing. It is not possible to resolve this given that the child support departure has been discontinued but it is important to understand the mother’s actions.
  4. Paragraph 114 of Judge Whelan’s reasons for judgment reads as follows:
Time outside of school holidays should be divided between Sydney and Melbourne with the children travelling to Sydney on half the occasions and the time spent by the Father with the children in Melbourne on the other half. This would enable the Father to participate or observe the children in extracurricular activities which they will undoubtedly engage in as they become older. The parents should timetable the weekends when the children will spend time with the Father at the commencement of each year with the dates only to be changed with at least 14 days’ notice.
  1. It is clear from this paragraph that the orders do not reflect Her Honour’s intention. The mother raised her understanding of the intention of the orders well before the father booked the flights for February.
  2. In those circumstances I am not prepared to find that the mother should reimburse the father for the cost of the February 2016 flights. He was clearly on notice about the dispute and it is plain from the reasons that Judge Whelan’s clear intention was not reflected in the orders. This is a matter that is so plain it could have been fixed pursuant to the slip rule. The father is a (occupation omitted). The mother is not. This is something that should have been corrected.
  3. One of the problems with order 10 is the fact that its states “upon receipt” and does not set out a time frame for payment. During the course of the hearing the father submitted that is a reasonable time frame is not a few months later which was the evidence the mother gave but rather a much shorter period, say 14 days.
  4. Order 10 does not provide a timeframe for the reimbursement other than “upon being provided with evidence of cost of same”. The father’s email requesting reimbursement was sent on 2 November 2015. His evidence is that he has still not received payment for those flights.
  5. The mother says that she has reimbursed the father in kind by way of paying for other flights. She gave evidence about being in strained financial circumstances, losing her part-time job and in setting up her own business. She also referred to fact that the father did not pay child support for six months. The father cross-examined her about her financial circumstances and bank account statements both with respect to this count but also the other counts alleging a failure by the mother to reimburse him for flights.
  6. In answer to the request for reimbursement for the 4 and 6 March 2016 flights the mother says she reimbursed the father in kind by paying for other flights within a reasonable time frame. The father put to the mother that a few months later is not within a reasonable time frame. The mother disagreed.
  7. The mother gave the same answer with respect to the 25 to 30 March flights. These flights were for the first term school holidays.
  8. The father put various bank account statements to the mother in cross-examination and suggested to her that she had the capacity to reimburse the father at the time of his requests. The mother disputed this saying the bank account she was shown was the account she set aside for the payment of tax and BAS for her business.
  9. With respect to these flights the mother says she paid for these in lieu with other flights. She said she did this within a couple of months. She says she considers this to be a reasonable time frame.
  10. The father complains that she did not reimburse him for the flights 25 to 30 June 2016. These flights were for the mid-year school holidays. In respect of the flights she paid for in lieu the mother referred to Exhibit G.
  11. The mother said she thought she had already paid for other flights before that date. The effect of her evidence was that she did not believe she owed him for the June flights. She referred to exhibit G. That exhibit does not state when she paid for flights.
  12. The father was cross-examined about an email that the mother sent him on 19 June 2016 saying that she was not in a position to reimburse him at that point as she had just paid for school fees and new uniform for winter and had to buy school shoes.
  13. The mother says that the father agreed to the arrangement for the Christmas flights. She told him she planned to take the children to the (omitted) and offered to drop the children to him in Sydney. The father put to the mother that she did not seek his agreement but just made the arrangement. She says she sought his agreement earlier in the year and he agreed before she booked the flights.
  14. I prefer the mother’s evidence to the father’s with respect to the Christmas flights. It makes no sense that the mother would pay for those flights unless she understood that it would be marked against what she owed the father for other flights.
  15. Count 1 is straightforward. It is in relation to flights for the Christmas period. It does not relate to the term time trips and the request the father made for payment on 2 November 2015. The mother did not reimburse the father. The mother did not address this in a reasonable time frame. I find that she did contravene order 10 on this occasion without reasonable excuse.
  16. With respect to counts 19 and 21, I find the mother did have a reasonable excuse. With respect to the term time flights she was operating on the understanding that the intention of the orders was that only half of those visits take place in Melbourne. It does the father no credit, given he is a (occupation omitted) and the mother is not, that he ignored the clear intention of Judge Whelan. Whilst he is correct that the orders read as a whole, there is no ambiguity and do not provide for half the visits to take place in Melbourne, it is relevant to consider the reasons for judgment and Judge Whelan’s clear intention both when considering whether or not the mother has a reasonable excuse and whether or not the orders should be varied.

Varying the orders

  1. At the conclusion of the hearing, after the matter had been stood down for some time as the parties were having discussions, the parties indicated that the matters had been resolved on the following basis:
    1. The arrears of child support would be set at $10,000 with the father entering into a repayment plan;
    2. The child support rate of $650 a month be continued until 30 June 2017 and thereafter the child support agency will be requested to calculate the assessment;
    1. The father pay further flights going forward and will decide whether or not the mid-term visits should occur in Sydney or Melbourne;
    1. That the father collect the children from day-care or school on Fridays until the children are old enough to fly unaccompanied by an adult;
    2. That there be a notation that there not be an offset of the father’s child support obligations due to the costs of spending time with the children.
  2. Both parties were on notice that I intended to vary the orders. This was made clear when the contravention matter was listed for hearing. Variations to the orders were canvassed during the contravention hearing as well. It was also clear that both parties’ contemplated variations to the orders and that it was part of the agreement that they had reached that they informed me about at the end of hearing. I am satisfied that it is in the children’s best interests to vary the orders.
  3. The father now objects to the orders being varied. He relies on the decision of the Full Court of the Family Court of Australia (“Full Court”) in Hallows and Hallows [2015] FamCAFC 31.
  4. In that case the Full Court upheld the father’s appeal which complained that he was not given procedural fairness with respect to variations of the orders the judge made pursuant to the power under s.70NBA. In that case the Full Court found that the trial judge did not give any notice to the parties that she was contemplating making the order varying the previous orders that she did and that therefore neither party made any submissions with respect to the varied order. With respect to the father, the circumstances in this case are quite different.
  5. The possible variation to the orders canvassed by me during the hearing and the subject of the parties proposed agreement was that the father be able to collect the children directly from school which would give him the opportunity of speaking to teachers and having the children show him the classrooms. The parties proposed agreement is relevant, not because that is binding on them, but simply because it is an indication of the parties’ own contemplations of possible ways of varying the orders which is consistent with what was discussed during the course of the hearing. As neither party is seeking that variation in the written submissions, I do not propose to do so but will vary the time. I will vary order 5(b) of the orders made on 18 September 2015 so that the handover will take place at 6:00pm on Fridays.

Submissions

  1. The father submits that the hearing fee he incurred was solely for contravention hearing and not the child support hearing. That is incorrect, as the matter was listed for both matters to be dealt with. During the course of the father’s cross-examination of the mother, he referred to a series of bank statements which he foreshadowed tendering which were relevant to the contravention application as well as the child support case. As it turns out he did not tender the documents as after the end of the evidence of the contravention aspect of the matter, as the intention was no doubt to tender the bank statements as a bundle during the child support aspect of the proceedings. Before the hearing resumed the parties advised the court that the matter had settled in principle.
  2. This matter was delayed for some months while the parties continued to discuss the orders. It was only in March 2017 that the father filed a notice of discontinuance with respect to child support departure application and indicated that the contravention proceedings were no longer resolved.
  3. The father’s written submissions addressed the contraventions and penalties he sought, which includes reimbursement for flights plus interest as well as the hearing fee for 3 and 4 November 2016 totalling $1,195.00. He also sought an order that the mother attend a parenting course. As order 11 of the orders I made on 27 July 2016 makes it clear the contravention was listed to be heard the same time as the child support hearing which been listed for some months before. Notation A to the orders recorded that if the hearing did not finish in one day it would continue to the following day. Whilst most of the hearing time was spent on the contravention application, much of the second day was spent by the parties in negotiations after opening submissions had been made with respect to the child support issue. The father is not correct when he states in his submissions in reply that the child support issue was resolved by consent at the mention on 16 March 2017. The fact is the father filed a notice of discontinuance the day before. As the mother did not have a child support departure application on foot, the effect of the notice of discontinuance was to end the child support proceedings.
  4. The mother submitted that she does not owe the father any money for reimbursement, for she paid more than the 30% required under the orders when taking into account the other flights she paid for.
  5. She seeks that the orders with respect to the payments of flights be discharged given that the child support issue will now have to be re-determined by the agency as result of the father discontinuing his child support departure application. She says there are arrears of $15,000 and that his income is not reflected in his tax returns because of his business.
  6. She correctly points out that the contravention hearing ran alongside the child support hearing which had been before the court for a number of years, so that there was not an additional cost to the father with respect to the contravention hearing.
  7. The father filed further written submissions in reply. The father’s submissions are incorrect when he states that there was no evidence before the court with respect to the costs of the flights the mother paid for the children’s flight from Queensland to Sydney to spend time with the father in Sydney in January 2017. Exhibit F is the flight itinerary and payment receipts for the flights of 30 December 2016. In re-examination the mother identified the payments for both the flights on 30 December 2016 and the flight on 6 January 2017 from her bank account ending in the number (omitted), with both being paid on 22 August 2016.
  8. The father complains that it was not put to him when he was cross-examined that there was an agreement between him and the mother that she could reimburse him by way of the purchase of subsequent flights and he refers to the decision of Brown v Dunn (1893) 6 R 67 (“Brown v Dunn”). The father cross-examined the mother about this issue with respect to the flights for Christmas holidays. Brown v Dunn does not apply here.
  9. The father submits that the mother’s submissions with respect to child support are relevant and not before the court. The father says that Judge Whelan found that the mother unilaterally relocated twice and accordingly made orders that the parties share the cost of the children spending time with the father. Judge Whelan did make comment about the mother unilaterally relocating twice at [88] of her reasons for judgement. What the father does not refer to is [99] where she criticised both parents for relocating during the relationship and afterwards “with apparently little consideration for the impact of this on the capacity for the children to spend time with the father.”
  10. Judge Whelan was also critical of the state of the financial evidence before her. Due to the paucity of that evidence, she found she could not finally determine the child support departure application. She stated at the time of the hearing, the father was not paying any child support and the mother’s employment situation was uncertain. She said that the financial information from both parties was “grossly inadequate” and that she nevertheless was of the view that the father should be making some payments of child support until a proper assessment of the situation could be conducted. She ordered that he paid $650 a month. She also stated at [100] that the father admitted that between August 2014 and January 2015 he paid no child support, he maintained that the child support assessment was incorrect and had been for some time. She noted that while he was seeking to have the court to determine the issue, it was not appropriate for him to unilaterally cease making payments. At [102] of her judgment, she mentioned the costs associated with the children spending time with the father given the party’s geographical locations but does not say anything further with respect to order 10 of the orders with respect to the costs of flights.
  11. The issue of the ongoing costs of flights on the appropriate contributions could have been dealt with as part of the consideration of the father’s child support departure application. It is of concern that could be potentially grossly unfair to the mother and the children if the order with respect to the cost of flights remains in place whilst the father’s ongoing child support liability is unknown. Nor is it known whether or not the father will seek to have the costs of travel taken into account by the child support agency when it assesses his child support liability.
  12. Given that it will now be up to the child support agency to issue assessments determining the father’s child support obligations and I am concerned that leaving order 10 in place is likely to lead to further conflict in the possibility of litigation between the parties, it is appropriate that order 10 be discharged so that the child support agency can look at the costs associated with the father spending time with the children as well as the parties’ incomes in setting the periodic amount of child support the father should pay.
  13. For these reasons I will discharge order 10 of the orders made on 18 September 2015. As I am discharging order 10, I will not vary order 5(b) to require half of the term visits to take place in Melbourne as intended by Judge Whelan. This is because the issue of costs of the flights will be dealt with by the child support agency and is clear that the father was to spend time with the children in Melbourne and there would be costs to him of his flights and also accommodation expenses in either instance of father spending time with the children either in Sydney or Melbourne.
  14. I am satisfied that it is in the children’s best interests to discharge order 10, as the risk if it is left as is, when the child support departure is no longer going to be determined by a court, is that there may not be an excellent sharing of child support obligations between the parties. It is best that the child support agency address the issue of costs of the father spending time as well as his periodic child support obligations together.
  15. Order 5(b) needs to be varied in so far as it requires the handover to be at 4:00pm on Fridays during school terms. The 4:00pm handover is whether or not the father’s time is to take place in Melbourne with the handover being at (omitted) McDonalds’s or Melbourne Tullamarine Airport or Melbourne Avalon Airport. Whilst neither of the parties addressed this in their written submissions, it is clear from the evidence during the course of the hearing that the parties agreed that the boys should not be taken out of school early on a regular basis. This is what would be required if the handover was to take place at the airport.
  16. I will also discharge order 4 the interim orders made 28 January 2015 with respect to periodic child support given that the Child Support Agency will now be determining the child support issues.

Penalty

  1. The only count I have found established without reasonable excuse is count one where the mother did not reimburse the father for her share of the flights in the sum of $253.17.
  2. This is the first contravention the mother has found to have made without reasonable excuse. It falls into the category of less serious contravention.
  3. In terms of penalty, it is necessary to look at Exhibit G which sets out the costs of flights and the proportions the parties have paid for. They are as follows:
    1. Christmas visit 24 to 26 December 2015 – mother’s share $253.17.
    2. 4 to 6 March 2016 first school term visit – mother’s share $151.02. The father seeks reimbursement for the additional costs including the rescheduled flights. The father is not entitled to these as he did not establish count 4.
    1. 25 to 30 March 2016 first school term holiday visit – mother’s share $234.90.
    1. 25 to 30 June 2016 – second school term holiday visit – mother’s share $142.47.
    2. 2 to 4 September 2016 father’s day weekend school term visit – mother’s share $196.77. On 27 July 2016, I ordered the mother to pay for these flights in the first instance. However it appears from Exhibit G that the father paid for it. Neither of the parties raised this at the hearing or in their submissions.
    3. (omitted) 2016 X’s birthday term time visit – mother’s share $204.67.
  4. The mother paid for the following flights:
    1. 28 to 31 July 2016 school holiday visit in accordance with the order I made on 27 July 2016. The father’s share of that cost is $661.50.
    2. 30 December 2016 Christmas holiday flight – father’s share $572.25.
    1. 6 January 2017 Christmas school holiday flight $379.33.
  5. There is no suggestion by the father that he paid for the Christmas 2016/2017 flights. His complaint is that they did not agree to a variation of the orders allowing her to pay for this in kind against the costs of the other flights she owed him. As I have indicated above, I do not accept that. It would be unfair for the father to benefit from not paying for his share of these flights in all of the circumstances.
  6. The amounts payable by the mother referrable to [117] is $1,183.
  7. The amounts payable by the father referrable to [118] is $1,613.08.
  8. The result is that the father owes the mother $430.08. In the circumstances I find that it is appropriate to simply leave the financial arrangements for the flights as they are and not require the father to reimburse the mother $430.08 in light of my finding that she did contravene one of the orders without reasonable excuse.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 25 May 2017

[1] The father says the registry did not allow him to file the amended contravention application. He did serve the amended contravention application together with his affidavit and the hearing proceeded based on the amended contravention application.
[2] This count is set out at [8] and [9] of the amended contravention application.
[3] This count is set out at [10] and [11] of the amended contravention application.
[4] This count is set out at [40] and [41] of the amended contravention application.
[5] Paragraph 36 of the father’s affidavit sworn 19 August 2016.
[6] This count is set out at [6] and [7] of the amended contravention application.
[7] This count is set out at [42] and [43] of the amended contravention application.
[8] This count is set out at paragraphs 47 and 48 of the amended contravention application

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