BARRETT & ALDRIDGE

[2011] FamCA 809

FAMILY COURT OF AUSTRALIA

BARRETT & ALDRIDGE [2011] FamCA 809

FAMILY LAW – CONTRAVENTION – application by the father alleging two counts of contravention of previous parenting orders by the mother – where the father has failed to establish contravention by the mother on both accounts – applications dismissed.

FAMILY LAW – COSTS – oral application by the mother seeking costs of and incidental to the father’s application – where the father was wholly unsuccessful in his application – consideration of the financial circumstances of the parties – where the Court was not satisfied that a costs order should be made – application dismissed.

Family Law Act 1975 (Cth) s 117
APPLICANT:	Mr Barrett

RESPONDENT: Ms Aldridge

FILE NUMBER: ADC 5427 of 2007

DATE DELIVERED: 13 October 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Austin J

HEARING DATE: 13 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Not relevant
SOLICITOR FOR THE APPLICANT:	Applicant in person

COUNSEL FOR THE RESPONDENT:	Ms Milen
SOLICITOR FOR THE RESPONDENT:	Jo-Anne Milen & Assoc

Orders

1. The Application – Contravention filed by the father on 24 December 2010 is dismissed.

2. The mother’s oral application for costs of and incidental to the father’s aforesaid Application – Contravention is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5427  of 2007

Mr Barrett

Applicant

And

Ms Aldridge

Respondent

Ex tempore
REASONS FOR JUDGMENT

Introduction

1. Before the Court for determination is an Application – Contravention filed by the applicant father (“the father”) on 24 December 2010. 

2. In support of that Application the father relied upon his two affidavits filed on 24 December 2010 and 10 October 2011. 

3. The Application alleged against the respondent mother (“the mother”) two discrete breaches of existing parenting orders. 

4. Although the Application does not itself mention the date of those orders, they are in fact referred to in the father’s first affidavit. Annexed to the father’s first affidavit is a copy of the orders made by Justice Guest in this Court on Wednesday 10 May 2006.  An initial curiosity arose because in the body of his first affidavit the father made reference to final orders made by Justice Guest on Wednesday 10 March 2006.  That discrepancy was raised with the father and revealed a typographical error. In fact, the two contraventions alleged against the mother related to parenting orders made by this Court on 10 May 2006. 

The alleged contraventions

1. The first alleged contravention was particularised as a contravention of Orders 3(d) and 3(a) by the mother on 12 December 2010 at 6.00 pm at the Suburb A Police Station. It was alleged the mother “failed to return [the] child [to the father] at the conclusion of contact and continued to have access during [the] period not agreed upon”. 

2. When that allegation was put to the mother at the commencement of the hearing, learned counsel for the mother indicated the mother denied the allegation.

3. The second alleged contravention was a breach of Order 2, manifest in her “fail[ure] to share joint responsibility for [the] child’s school fees and uniform cost[s] between 2007 – 2010” consequent upon the child’s attendance at the B School. 

4. Similarly, when that allegation was put to the mother at the commencement of the hearing, her learned Counsel indicated the allegation was denied.

5. The father gave evidence, adopting the evidence within his two affidavits to which I have already adverted, and he was cross-examined by the mother’s counsel. 

6. In determining the Application it is preferential to deal individually with the contended contraventions.

First alleged contravention

1. As to the first contravention, it is instructive to observe the meaning of Orders 3(a) and (d) made on 10 May 2006. 

2. Order 3(a) provides that the child of the parties shall reside with the mother each alternate weekend from the conclusion of school on Friday until 6.00 pm on Sunday. 

3. It is apparent that order is intended to apply during school terms. 

4. Orders 3(c) and 3(d) make specific provision for the time the child is to live with the mother during school holiday periods, and those orders make a distinction between school holiday periods at Christmas and school holiday periods at times other than Christmas.  

5. Order 3(d) provides that the child shall reside with the mother for one-half of each Christmas school holiday period “at times to be agreed”. 

6. The evidence before the Court is that the 2010 academic year in South Australia concluded on Friday 10 December 2010.  

7. In accordance with the evidence of the father, Order 3(a) would have applied from the conclusion of school on Friday 10 December 2010, requiring the child to live with the mother from that time over the ensuing weekend, with the child to be returned to him by the mother at 6.00 pm on Sunday 12 December 2010. 

8. The father entertains a belief that the gazetted school holiday period for Christmas 2010/2011 did not in fact begin until Monday 13 December 2010, albeit that school concluded for the term on Friday 10 December 2010.  That indeed may be correct, although there is no evidence to confirm it.  However, even if the father is technically correct about the time at which the school holiday time was gazetted to commence, it does not of itself prove the contravention he alleges against the mother. 

9. The evidence is that the mother collected the child from school at or about 3.15 pm on Friday 10 December 2010 and retained the child with her for half of the 2010/2011 Christmas school holidays, other than for the time during which the child was returned to the father for Christmas, apparently pursuant to the provisions of Order 3(f).  The father concedes that the 2010/2011 Christmas school holiday period was shared equitably between the mother and himself with the child. 

10. The success of the contravention alleged by the father against the mother is dependent upon the terms of Order 3(d), from which it is apparent that the parties are required to agree upon the half of each Christmas school holiday period the child is to spend respectively with them. 

11. The evidence of the father is that about a week prior to the Christmas school holidays in December 2010 he sent a text message to the mother with his proposal for the manner in which they would divide the 2010/2011 Christmas school holiday period with their daughter.  The evidence does not disclose the actual nature of the proposal he made to the mother.

12. In any event, the unchallenged evidence of the father is that he did not receive a reply from the mother to his proposal at any time between when the proposal was made on 5 December 2010 and when the child was collected at the conclusion of school on 10 December 2010 by the mother.  It is the father’s position that he simply assumed the mother agreed to his proposal, on the basis that she had not replied to his text message.  In accordance with that assumption, he also assumed that Order 3(a) would apply over that weekend and the child would be returned to him by the mother at the Suburb A Police Station at 6.00 pm on Sunday 12 December 2010. 

13. I am not satisfied the contravention is sustained against the mother simply because the father assumed the parties had an agreement, as required by Order 3.  The mother’s failure to respond to the father’s proposal does not signify that the parties in fact had agreement.  The father’s evidence does not exclude alternative explanations, such as the mother not receiving his text proposal at all and being ignorant of the need to respond to him, or alternatively, the mother’s rejection of his proposal but rudely declining to advise him to the contrary. 

14. The simple terminology of Order 3(d) required there to be an agreement between the parties.  The evidence discloses there was no agreement between the parties.  The evidence only discloses the father’s assumption of agreement.  I am not satisfied in those circumstances that the father has proven a contravention of Order 3(a) or 3(d) against the mother. 

15. The father conceded in his evidence that for prior Christmas school holiday periods the mother had collected the child from school at the conclusion of school on the last day of term and the child then remained in the care of the mother for the first half of the holidays.  Against that background, the inference is clearly available that the mother regarded the weekend of Saturday 11 December and Sunday 12 December 2010 as part of the Christmas school holiday period. 

16. An inquiry was made of both the father and the mother as to whether they would join in an oral application to the Court to make an additional parenting order clarifying Order 3(d) as to both the commencement of the Christmas school holiday period and the conclusion of the Christmas school holiday period, but the father declined to join in such an application. Accordingly, the Court does not entertain any application and does not make any parenting order to supplement those made on 10 May 2006. 

17. Suffice to say, on the evidence adduced, the father has failed to prove the first contravention alleged against the mother.

Second alleged contravention

1. As to the second contravention, Order 2 made on 10 May 2006 provides that the “mother and the father shall have joint responsibility for the long term care, welfare and development of the child”. 

2. The father imputes that such an order casts upon the mother a legal responsibility to contribute towards the school fees incurred for the child’s attendance at school, and also towards the cost of providing her with uniforms so as to comply with the school’s uniform policy.  The father is simply mistaken, notwithstanding the apparent honesty of his belief. 

3. The father conceded in evidence that he is aware of the existence of the Child Support Agency, the purpose of which is to determine the responsibility of both parents to contribute equitably to the financial upkeep of their children. 

4. The father conceded that, since the parenting orders were made between himself and the mother on 10 May 2006, he made application to the Child Support Agency for an assessment of child support payable to him by the mother.  The father furthermore conceded that child support assessments have existed in the period between 2006 and the present, and that on occasions those assessments have fluctuated between nil and significant sums of money.  Presently the assessment is nil.  The father said in evidence that the assessment was altered to nil some time in the last few weeks and it is his intention to approach the Child Support Agency to review that determination. 

5. It is sufficient to observe that the mother’s liability to make financial payments to the father in respect of their child is regulated by the Child Support (Assessment) Act and, more particularly, by assessments undertaken by the Child Support Registrar in accordance with that statutory regime. 

6. Order 2, which casts responsibility jointly upon the parties to make decisions for the long term care, welfare and development of the child, does not encapsulate any obligation of the mother to make a financial contribution towards the father. 

7. For those reasons the evidence adduced by the father is insufficient to prove the mother’s contravention of Order 2 in the manner particularised.

Conclusion and costs 

1. For those reasons, the Application – Contravention filed by the father on 24 December 2010 is dismissed.

2. Consequent upon the dismissal of the father’s Application, counsel for the mother sought an order for costs against the father.  The mother seeks her costs of and incidental to her successful defence of the father’s failed Application.  

3. Counsel for the mother conceded that costs in this jurisdiction are governed primarily by Section 117 of the Family Law Act and that the orthodox rule is the parties bear their own costs of proceedings. 

4. The argument of the mother about her entitlement to costs for successfully defending the Application is primarily founded on the contention that the Application was wholly unsuccessful, and further, that the nature of the application was of a different ilk from usual proceedings, in that it was a quasi-prosecution of her rather than a civil proceeding for parenting orders.

5. I am cognisant of the mother’s concession that she is in receipt of a grant of Legal Aid. 

6. I also remain cognisant that the father brought his Application, particularly in relation to the first of the two alleged contraventions, in the potentially correct belief that the gazetted 2010/2011 Christmas school holidays in South Australia did not actually commence until Monday 13 December 2010.  That issue has not been clarified in the evidence adduced.  Nonetheless, the father’s assertion that the mother breached Order 3(a) by failing to return the child to him at 6.00 pm on Sunday 12 December 2010 foundered on the basis of his concession that in the past the mother understood the Christmas school holiday period commenced at the conclusion of school on Friday on the last day of the school term.  Although the father’s Application in respect of that alleged contravention failed, in my view it was an arguable point.

7. The other significant issue that affects my determination of the costs application is one of financial hardship.  Although there is no evidence about the father’s financial circumstances, I draw the inference that his financial circumstances are difficult, primarily from two facts.  Firstly, he has commenced, prepared and prosecuted these proceedings without legal assistance in circumstances where he would have preferred otherwise, and secondly, one of the contraventions alleged against the mother is her failure to contribute moneys towards the child’s school fees and school uniforms.  As the father ably pointed out, he would not have bothered to prosecute an alleged contravention of that nature unless the payment of those modest moneys to him was a matter of some moment.

8. Having regard to the competing considerations advocated by the father and counsel for the mother, I am not satisfied that an order for costs ought to be made. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Austin delivered on 13 October 2011.

Associate: 

Date: