Ballard and Wadhurst

[2013] FCCA 1943

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALLARD & WADHURST [2013] FCCA 1943

Catchwords:
FAMILY LAW – Parenting – contravention – current parenting orders of July 2011 – children in primary care of Father – Mother resides in (omitted), some distance from children – Mother often unable to meet costs of travel for children to visit and as a result children are regularly unable to see Mother – Mother declared bankrupt and impecunious – both parties believe current orders unworkable and seek amendments.

Legislation:

Family Law Act 1975, ss.60CA, 66E, 70NAC, 70NAE, 70NDA

Childers & Leslie (2008) FLC 93-356

Applicant: MR BALLARD

Respondent: MS WADHURST

File Number: CAC 633 of 2011

Judgment of: Judge Neville

Hearing date: 12 August 2013

Date of Last Submission: 3 September 2013

Delivered at: Canberra

Delivered on: 22 November 2013

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: N/A

Solicitor/Advocate for the Respondent: Ms Johnston

Solicitors for the Respondent: Central Australian Women’s Legal Service Inc.

ORDERS

Contravention Application

1. The Contraventions set out in the Application filed on 4 July 2013 are found to be established primarily on the basis of the Mother’s admissions, but also found to be with reasonable excuse for the purposes of s.70NAE.

Parenting

1. The Father of X and Y be responsible for the full care and custody of both children;

2. The Mother provide written notice six weeks prior to any school holiday period advising of her availability for the purpose of access visits;

3. Upon the completion of Order 2, the children are to spend one week with their Mother during the term holidays, and three consecutive weeks during the Christmas holiday period;

4. Departure times from Sydney are not to be before 7am and arrival times at Sydney are to be before 7pm;

5. The children are not to be in contact or in the company of Mr W or Mr P;

6. The Order made by the Federal Magistrates Court (as it was then known) on 12 March 2013 be varied so as to discharge orders 3, 4, 5, 8 and Notation A and the following orders be substituted in their place:

   3. Unless otherwise agreed on occasions where the Mother is to spend time with the children in Sydney changeovers should occur at McDonald’s restaurant at (omitted) Railway Station if visiting Sydney and in Canberra changeovers should occur at (omitted) if visiting Canberra. Unless otherwise agreed in writing the time for all changeovers shall be 9:00am.

   4. For the purposes of Order 2:

   (a) where the children’s travel to spend time with their Mother includes air travel

   (i) the cost of the children’s travel is to be split between the parties so that the Mother pays two-thirds on each occasion and the Father pays one-third on each occasion for the first 12 months and thereafter the cost of travel shall be paid three-quarters by the Mother and one-quarter by the Father;

   (ii) At least 28 days prior to intended travel the Mother is to purchase the children’s return airline tickets and provide a copy of the ticket to the Father;

   (iii) Within 7 days of receipt of the children’s airline tickets the Father is to pay to the Mother his contribution of the cost of the airline tickets by direct deposit into the Mother’s designated bank account;

   (iv) For the purpose of sub-paragraph (ii) the Mother is permitted to purchase airline tickets for the children on the cheapest available airline carrier, provided that she is able to comply with the airline’s procedures for unaccompanied minors; and

   (v) The parent with whom the children are currently with is to ensure that the children are presented at the check in at the relevant airport in accordance with the requirements of the children’s airline tickets. 

   (b) The mother is to bear her own costs to facilitate the time she spends with the children in Sydney and/or Canberra.  

   8. The children be permitted to make contact with the parent they are not with at any reasonable time in accordance with their requests and such communication can be by telephone, Skype, email or Facebook.  Where the child/children request to communicate by telephone or Skype, the parent with whom the children are living or spending time with is to assist the child/children in contacting the other parent and where the other parent is not immediately available is to arrange for a mutually convenient time for the children to communicate with that parent.

7. That the order made by the Federal Circuit Court on 12 March 2013 be varied so as to include the following order after order 12:

   a)“Where the parents need to communicate with each other regarding the children, communication is to be made via email and responded to by the other parent in a timely manner.  Any urgent communication in relation to the children is to be made by text message.”

Financial matters

1. Each of the amounts claimed by each parent against the other regarding unpaid travel cost and unpaid educational expenses shall be discharged;

2. Order 5 of the orders of 12^th March 2013 shall be discharged;

3. Until the Child Support Agency deals with any relevant application by either of the parties regarding educational expenses, and having regard to the Mother’s lack of financial means, the following order should be made regarding “educational expenses”:

   (a)In lieu of the said discharged order 5, the Mother shall pay to the Father, the sum of $1000 each school term which shall be considered to be her contribution for both children’s educational, optical and dental expenses for each term.  In the absence of agreement in writing between the parties, that sum shall be paid by the last Friday of each school term.

IT IS NOTED that publication of this judgment under the pseudonym Ballard & Wadhurst is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 633 of 2011

MR BALLARD

Applicant

And

MS WADHURST

Respondent

REASONS FOR JUDGMENT

1. There are two applications before the Court, both of which involve the two children of the relationship, X, who is aged 13, and Y, who will turn 7 in March 2014.

2. The first application is a Contravention brought by the Father, filed on 4^th July 2013; the second is an Application in a Case filed by the Mother on 14^th August 2013.

3. Whatever the result of the Contravention Application, both parties seek to have the March 2013 parenting orders varied – unsurprisingly, in different respects.

4. Somewhat unusually perhaps, it was agreed between the parties that the matter would be dealt with by way of written submissions only. 

Procedural History

1. By way of very brief overview, I note the following.

2. In July 2011, parenting orders were made by consent, whereby the children were to live with their Father and spend time with their Mother as agreed. 

3. In December 2012, the Father sought and was granted a Recovery Order, because the Mother had kept the two children.

4. In May 2012, a Family Report was prepared which noted, among other things, that the Mother appeared to have some personality problems, the children were slightly distressed (for reasons spelt out in the report but which need not be canvassed here) and that the Mother had moved from (omitted) to (omitted), then to (omitted), and later still, to (omitted).  In more recent times, she has moved again (for reasons of employment) to (omitted) and then to (omitted).

5. The Family Consultant expressed concerns about the cost of travel for the children to see and spend time with their Mother interstate, and of the Mother’s capacity to manage the expense of such travel.  The Report writer also expressed concern about the children’s ability to cope with the travel involved to spend time with their Mother.

6. In August 2012, further consent orders were made in relation to parenting. 

7. In January 2013, the Mother’s former solicitors withdrew from acting for her.  

8. On 10^th February 2013, in general terms, the Mother sought orders for (a) telephone time with the children and for them to speak not only with her, but also with the maternal grandparents, (b) to speak with the children via Skype, and (c) defined “spend time with” the children during Christmas holidays.  

9. On 12^th March, further orders were made in relation to school holiday time, the sharing of travel costs, and the sharing of “educational costs”. 

10. The order in relation to the sharing of “educational costs”, as noted below, has resulted in a significant and ongoing dispute as to whether or not such an order necessarily requires the Mother to share the cost of school fees for the children, who attend a private school.  The Father insists that this is precisely what the order requires, and in consequence of which he has sought reimbursement of $5,067.00 from the Mother. 

11. The Mother and her new solicitor dispute that the current order, as drafted, requires the payment of school fees, particularly in circumstances where (the Mother says, among other things) there was no prior discussion with the Mother about the children attending a private school.

12. On 4^th July 2013, the Father filed a Contravention Application which relates to alleged breaches by the Mother not spending time with the children between 20-27 April 2013, and breaches of certain procedural orders relating to this school holiday time.  The Father also alleges certain failures in relation to the Mother’s non-contribution to the children’s education, optical and dental costs since 12^th March 2013. 

13. On 7^th August, the Mother filed an affidavit by way of response to the Contravention.

14. On 12^th August, orders were made for the filing of written submissions regarding the contravention.

15. On 14^th August, the Mother filed an Application in a Case in which she sought, in effect, the enforcement of an earlier order requiring the Father to pay to the Mother a portion of the children’s travel costs, as well as a variation of the orders that were made on 12^th March 2013.

16. I should mention here the significant and undisputed fact that the Mother was declared bankrupt in April 2012.

17. On 21^st August 2013, the Father filed his submissions to which were attached a range of documents in support of his contentions. 

18. I should also note that the orders of 12^th August provided for reply submissions of no more than 3 pages.  However on 30^th August, the Mother filed a further affidavit of 13 pages, rather than 3 pages of submissions.  Accordingly, in accordance with the 12^th August orders, this affidavit could or should be ignored, except for the first 3 pages.

19. For the sake of completeness, however, I note the following from the Mother’s affidavit:

    a)Paras.2-9 relate to parenting orders regarding children from an earlier relationship;

    b)Paras.10-16 relate to domestic violence allegations involving the parties between 1999-2006.  I have some difficulty seeing how these allegations relate directly to, or assist the Court in resolving, the matters currently before the Court.  If (as seems to be the case) the allegations are to support contentions about the difficult (and ongoing) parenting relationship between the parties, the history of the matter is more than sufficient in this regard;

    c)Paras.17-19 relate to the Mother’s transient lifestyle;

    d)Paras.20-22 concern the Mother’s trip to the (country omitted) in December 2012 (which was paid for by her sister, but which led to the Mother not being able to have the children with her over the Christmas school holidays, according to existing orders);

    e)Paras.23-26 relate to the Mother’s bankruptcy;

    f)Paras.27-30 concern travel arrangements;

    g)Para.31 deals with the most recent child support assessment;

    h)Paras.32-36 correct statements made by the Mother in earlier affidavits regarding earlier schooling arrangements;

    i)Paras.37-43 relate to the Mother’s proposal for changes to parenting orders.

Parenting Orders Sought

1. As earlier noted, both parties seek changes to the existing parenting orders.

2. The Father seeks the following orders:

   a)The Father of X and Y be responsible for the full care and custody of both children;

   b)The Mother provide written notice six weeks prior to any school holiday period advising of her availability for the purpose of access visits;

   c)Upon the completion of Order 2, the Father avails the children for one week’s access during the term holidays, and three consecutive weeks during the Christmas holiday period;

   d)The Mother to fund all travel costs and provide the Father with a full itinerary of travel arrangements 28 days prior to travel;

   e)Departure times from Sydney are not to be before 7am and arrival times at Sydney are to be before 7pm;

   f)All flight travel for the children is to be booked as “unaccompanied minors” and flight staff will only [sic] supervise the children;

   g)In the event of the Mother travelling to Sydney, handover will occur at (omitted) McDonalds between both parents at 9am on Saturdays of access periods;

   h)Children are not to be in contact or in the company of Mr W or Mr P.

3. The Mother seeks the following orders regarding enforcement of the order relating to the Father’s contribution to travel costs and the subsequent amendments to the current parenting orders.

   1. In accordance with order 4 of the orders made by the Federal Circuit Court on 12 March 2013 the Applicant father is to pay the Respondent mother five hundred and thirty nine dollars and seventy three cents ($539.73) being his share of the travel costs for the children to spend time with the Mother during the Terms holiday period of 6 July to 13 July 2013 within 7 days of the date of these orders.

   2. That the order made by the Federal Circuit Court on 12 March 2013 be varied so as to delete paragraphs 3, 4, 5, 7, 8 and notation A and the following paragraphs be substituted in their place:

   3.  Unless otherwise agreed on occasions where the Mother is to spend time with the children in Sydney changeovers should occur at McDonald’s restaurant at (omitted) Railway Station if visiting Sydney and in Canberra changeovers should occur at (omitted) Railway Station if visiting Canberra.

   4.  For the purpose of Order 2:

   (a) where the children’s travel to spend time with their mother includes air travel:

   (b) the cost of the children’s travel is to be spilt between the parties so that the Mother pays two-thirds on each occasion and the Father pays one-third on each occasion; 

   (c) At least 21 days prior to the intended travel the mother is to purchase the children’s return airline tickets and provide a copy of the ticket to the father;

   (d) Within 7 days of receipt of the children’s airline tickets the father is to pay to the mother his one third share of the cost of the airline tickets by direct deposit into the mother’s designated bank account;

   (e) For the purpose of sub-paragraph (ii) the mother is permitted to purchase airline tickets for the children on the cheapest available airline carrier, provided that she is able to comply with the airlines procedures for unaccompanied minors and/or the mother is able to arrange for the children to be accompanied by either of her sons, and/or other family member; and

   (f) The parent with whom the children are currently with is to ensure that the children are presented at the check in at the relevant airport in accordance with the requirements of the children’s airline tickets. 

   (g) The mother is to bear her own costs to facilitate the time she spends with the children in Sydney and/or Canberra.  

   7.  The parent who the children are living with or spending time with must:

   (a) Make the children available each Sunday at 6.00pm EST for telephone and/or Skype time with the other parent.  The other party is to make the call as close to 6.00pm EST as possible with contact alternating each week between Skype and telephone for a period not exceeding half an hour; and  

   (b) Make the children available at 6.00pm EST on special occasions including Mother’s Day, Father’s Day, the children’s birthdays, their sibling’s birthdays and their parent’s birthdays, for telephone or Skype time with the other parent; and

   (c) Must provide the children with privacy during all of the children’s telephone and/or Skype calls with the other parent.

   8.  The children be permitted to make contact with the parent they are not with at any reasonable time in accordance with their requests and such communication can be by telephone, Skype, email or Facebook.  Where the child/children request to communicate by telephone or Skype, the parent with whom the children are living with or spending  time with is to assist the child/children in contacting the other parent and where the other parent is not immediately available is to arrange for a mutually convenient time for the children to communicate with that parent.   

   9. That the order made by the Federal Circuit Court on 12 March 2013 be varied so as to include the following order after order 12:

   “Where the parents need to communicate with each other regarding the children, communication is to be made via email and responded to by the other parent in a timely manner.  Any urgent communication in relation to the children is to be made by text message.”

   10. That the order made by the Federal Circuit Court on 12 March 2013 be varied so as to delete paragraph 5. 

The Contravention Application

1. The specifics of the Contraventions are as follows:

   (a) 20^th April 2013 – 27^th April 2013: the Respondent without reasonable excuse or notice, failed to avail herself to spend time with the children X and Y as per condition 2 of the current Court order;

   (b) 12^th March 2013 – the present: without reasonable excuse, the Respondent has failed to be responsible for 50% of the costs relating to educational, optical and dental costs for the children [contrary to Order 5];

   (c) 31^st March 2013 – without reasonable excuse, the Respondent has failed to provide a full itinerary 21 days prior for the expected time the Respondent was to commence spending time with the children or provide notice of her intentions [contrary to Order 6].

2. In short, the Applicant alleges that the Respondent has contravened orders 2(a)(ii), 5 and 6 of the final parenting orders made on 12^th March 2013.

3. In her affidavit filed 7^th August 2013, the Mother admits that she did not comply with Orders 2(a) and 6 of the Orders dated 12^th March 2013 in relation to the children spending time with her during the second week of the April school holidays. 

4. Notwithstanding these admissions by the Mother in her affidavit, in otherwise detailed and helpful written submissions filed on 3^rd September by her solicitor from the Central Australian Women’s Legal Service, it was curiously submitted that the Respondent denied any contravention of the orders. 

5. In summary, the Respondent submitted that her actions did not meet the meaning of “contravened an order” under section 70NAC of the Family Law Act1975 (“the Act”), which requires the Respondent to have intentionally failed to comply with the orders, or to have made no reasonable attempt to comply with them.

6. The Mother contends that she was unable to have the children with her because the only relevantly available flights were at a cost which she could not afford.

7. Secondly, as already noted, she contends that the words “educational costs” in the Orders of 12^th March are usually used to refer to expenses incidental to a child’s schooling and do not embrace “private school fees”. It was also contended, amongst other things, that the Court did not have power to make an order in relation to school fees, and that Section 66E of the Act provides that an order relating to child maintenance cannot be made if an Application could or should properly be made under the Child Support (Assessment) Act1989.

8. In the alternative, the Respondent argues that, if found to have contravened the Orders, she is able to establish that on the balance of probabilities, a plea of reasonable excuse under Section 70NAE is available to her.[1]

   [1] See Childers & Leslie (2008) FLC 93-356.

1. The Respondent submits that the reason for not complying with the orders is because she was not financially able to afford the cost of the children’s airfares in April this year, and similarly, her financial situation is such that she has not had the money to contribute to the children’s private school fees and other expenses.

2. I simply observe that a parent’s bankruptcy (which is not disputed here in relation to the Mother) may be taken by the Court to confirm that there is a significant financial problem (or deficit) by that parent.

3. The Applicant husband submitted, among other things, that (a) the Mother’s contention that she pays child support is not accurate, at least in terms of its regularity (he attaches a bank statement which shows infrequent and variable amounts from the Child Support Agency); (b) the Mother’s claim that he insists on the children flying on Qantas, which flights are more expensive than other airline carriers is erroneous (he provides copies of correspondence with the Mother and or her lawyers that confirm he has arranged for flights with airlines other than Qantas); (c) claims made by the Mother in relation to the children not being able to speak with her because they do not have appropriate internet or related access are also erroneous in the light of the extensive IT and telephone services available to the children. 

4. The Applicant Father also contends that notwithstanding the Mother’s bankruptcy in April 2012, she now continues to earn approximately $50,000 per annum, but from which she (he says) has been unable properly to contribute to the care and welfare of the children.

Discussion & Resolution

1. In relation to the contraventions, I note the following.

2. First, in the light of the Mother’s sworn acknowledgment of breach of not spending time with the children, I accept her plea.

3. Secondly, I accept the submission on behalf of the Mother that that plea should be accepted in terms otherwise of having a reasonable excuse by virtue of her parlous financial position. Such a circumstance, in my view, readily comes within the terms s.70NAE of the Act and the definition there provided of “reasonable excuse.”

4. Accordingly, the formal order of the Court in relation to each of the contraventions alleged is that, pursuant to s.70NDA of the Act, the breaches alleged in the contravention filed 4^th July 2013, in relation to orders of this Court made on 12^th March 2013, are established but that the Respondent Mother had a reasonable excuse.

5. In relation to proposed changes to parenting orders, the evidence of both parents confirms that the existing orders are not working, or not working satisfactorily.

6. I should also note that in relation to “educational expenses”, I accept the submission on behalf of the Mother to the effect that the Court cannot make orders in circumstances where, such as here, an application can or should be brought before the Child Support Agency.  In my view, that is the most appropriate forum to deal with educational expense issues.

7. That said, there remain current claims by both parties: by the Mother against the Father for an unpaid amount in relation to part payment of travel costs; by the Father against the Mother in relation to a very significant amount of what he contends are unpaid educational costs.

8. Until the Child Support Agency deals with any relevant application by either of the parties regarding educational expenses, and having regard to the Mother’s lack of financial means, the following orders should be made regarding these on-going financial issues:

   (a) Each of the amounts claimed by each parent against the other regarding unpaid travel cost and unpaid educational expenses shall be discharged;

   (b) Order 5 of the orders of 12^th March 2013 shall be discharged;

   (c) In lieu of the said order 5, the Mother shall pay to the Father the sum of $1000 each school term which shall be considered to be her contribution for both children’s educational, optical and dental expenses for each term.  In the absence of agreement in writing between the parties, that sum shall be paid by the last Friday of each school term.

9. Otherwise, in relation to parenting orders, pursuant to s.60CA of the Act, the Court must have regard to the best interests of the children as the paramount consideration.

10. It is patently obvious in this matter, and has been the case for a long time, that (a) the children miss their Mother and enjoy spending time with her, (b) the logistics of very great distance between the children’s residence and that of the Mother, (c) the financial incapacity on the Mother’s part, as well as (d) the fractious parenting relationship between the parties, all militate against the children spending regular and consistent time with their Mother.

11. In such circumstances, and in addition to the orders I have already noted, I consider the orders set out at the commencement of these reasons to be in the children’s best interests.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:  22 November 2013