Finch and Harris (No.4)

[2017] FCCA 3416

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINCH & HARRIS (No.4) [2017] FCCA 3416

Catchwords:
FAMILY LAW – Parenting – contravention of orders –inter-state travel.

Legislation:

Family Law Act 1975

Applicant: MR FINCH

Respondent: MS HARRIS

File Number: SYC7893 of 2011

Judgment of: Judge Henderson

Hearing date: 13 December 2017

Date of Last Submission: 13 December 2017

Delivered at: Sydney

Delivered on: 13 December 2017

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: By telephone

ORDERS

1. The matter is listed for hearing on 23 May 2018 at 10:00am to hear any application to vary the orders made by His Honour Judge Scarlett on 17 June 2016.

2. The father is to file his application in a case and affidavit setting out his application to vary the current orders by 2 March 2018

3. The mother is to respond to the father’s material by 6 April 2018.

4. The respondent mother had a reasonable excuse to contravene Order 7(b) of the Orders made on 17 June 2016 by the Federal Circuit Court of Australia in that she did not have the financial capacity to pay for the child’s flights to Adelaide.

THE COURT ORDERS PENDING FURTHER ORDER:

1. The operation of Order 5(b) of the orders made by His Honour Judge Scarlett on 17 June 2016 is suspended insofar as it relates to the mother sharing the costs of the flights.

2. The operation of Order 6(a) of the orders made by His Honour Judge Scarlett on 17 June 2016 is suspended so far as it relates to 6pm Friday to 8pm Sunday to now be times as the father is able to accommodate by way of flights from Adelaide to Sydney and Sydney to Adelaide.

IT IS NOTED that publication of this judgment under the pseudonym Finch & Harris (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7893 of 2011

MR FINCH

Applicant

And

MS HARRIS

Respondent

REASONS FOR JUDGMENT

1. In this matter the mother has admitted that she has contravened orders made by Judge Scarlett on 17 June 2016 as set out in the father’s application for contravention filed 22 February 2017 in that she has not paid one half of her costs of the child, [X], travelling to South Australia to spend time with his father. Those costs are amounting to around $4000 over a two-year period, and that is about $2000 per annum. The mother’s case is supported by an affidavit she has filed with a financial statement filed on 30 August 2017. The mother says that her reason for not complying with his Honour’s orders is she, simply, has no financial capacity so to do.

2. The father was at a disadvantage, because he is in South Australia, and this matter was heard with him on the telephone.

3. The mother tended two exhibits

   a)Exhibit 1, being the current child-support assessment between her and her

   b)Exhibit 2 was the child-support assessment for the father of her younger two children, [A] and [B]. The father of her younger children pays the princely sum of $9.50 a week. [X]’s father, fortunately for him has paid child of some $300 a week. The latest assessment is about $250 a week. The mother makes no complaint about the father as he has always paid his child support for his son. Fortunately for [X], his father can and has done that.

4. However the facts are fairly clear to me. Whether the father’s income is $142,000 or – as the child-support agency asserts it is in the mother’s exhibit 1 $122,000 per annum, as he tells me it is in his affidavit, at paragraph 26 of his affidavit of February 2017 – he earns twice the income of the mother, whose income for child-support purposes ranges between $62 to $70 thousand dollars per annum. I accept the father pays some $250-$300 per week child support for his son. That is about $15,000 per annum, which comes out of his income, and he of course has to pay tax.

5. Looking at the mother’s financial statement there was, as there always is, significant errors. Going to part G, her personal expenditure. The mother does not pay superannuation, but like most people and as this form is so difficult to read thought she needed to put it in. So her income is increased by $121 dollars per week.

6. The mother says she is paying off a loan from her Mum which will be repaid in about seven months, perhaps, at a hundred dollars per week, this will reduce her expenses when paid but is not proven.

7. When I added up the mother’s expenses she made a mathematical error. Her expenses are not $1048 per week. They are $1412 per week. If I deduct $121 for superannuation, she does not pay that, and disregard the loan to her mother, her reasonable expenses are $1300 per week. These are expenses for three children and the mother herself.

8. She disclosed an income at $1639 per week. However, that included $284 by way of Centrelink payments and $220 child support the father was paying at that time. Deduct those amounts from her income, and she is earning $1155 per week. If you add back the child support for [X]’s she receives some $1355 per week with expenses of $1412 per week.

9. On her own financial statement she is unable to meet her own necessary expenditure. Her expenses are exceedingly modest. The discretionary expenses for her and her three children amount to $485 per week. The rent she pays, because she has been required to stay in an area by the orders of Judge Scarlett, is a huge expense for her. It is $580 per week. The mother requires reasonable accommodation as she has three children to accommodate.

10. I am satisfied on the wife’s affidavit and her financial statement she has no capacity to meet any other expenses for her children and in particular airfares for her son to spend time with his father in Adelaide, which will amount to $2000 per year at minimum. The father and the mother were here in Sydney and the father went to Adelaide, entirely a matter for him, which was the situation at the time Judge Scarlett made his orders.

11. The mother having to have the child enrolled in a particular school has made life difficult for her, and she had to remain in a particular area of Sydney, which is, as anybody would attest, an expensive city to live in, particularly if you are paying rent. There are some significant difficulties with the operation of these orders for these parents, who do not communicate well and have been in litigation for some time.

12. The other difficulty with Order 7 is that the father was responsible for booking the flights, and the mother had no control over this  This working is doomed to failure in any event. The other issue is there was specific times the father was to book for return flights. That order working was doomed to failure. There must be flexibility in arrangements for airflights and travel time.

13. I find the mother has made out clearly on any reading of the evidence a reasonable excuse for her failure to comply with Judge Scarlett’s order, which was Order 7.

14. Therefore having found that the mother had a reasonable excuse, I will stand the matter over to a date in May/June in relation to variation orders as I intend to stay the operation of Order 7B pending that determination.

    a)This matter is listed for trial on an application to vary orders of Judge Scarlett’s that each party seek.

    b)I will request that the father file his application in a case and affidavit in support seeking to amend the orders by 2 March.

    c)The mother to respond by 6 April.

    d)Pending further order and to ensure no further contraventions occur due to what I found, the mother’s inability to comply order 7B, I suspend the operation of order 7B pending further order. This will of necessity mean that the father is to pay the child’s airfares for his time in Adelaide.

    e)I will vary the orders for the child to be delivered to and collect a flight in Sydney and return to and collect a flight in Adelaide on his return from 6pm to 8 pm. He is old enough now to have a bit of a lengthier time for a flight. So I will suspend the operation of order 7B and order 6A insofar as it relates to 6 pm, Friday and vary to 8 pm, Sunday, to be at times as the father is able to accommodate by way of airflights to and from Adelaide and Sydney.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  14 June 2018