GARCIA & VIBBARD (NO.2)
[2012] FMCAfam 1430
•20 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARCIA & VIBBARD (NO.2) | [2012] FMCAfam 1430 |
| FAMILY LAW – Children – parenting orders – contravention – where contravention without reasonable excuse established – consequential orders – variation of parenting orders – best interests of the child. COSTS – Application for costs. |
| Family Law Act 1975, ss.60CA, 65Y, 70NBA, 70NEA, 70NEB, 117 |
| Garcia & Vibbard [2012] FMCAfam 1413 |
| Applicant: | MR GARCIA |
| Respondent: | MS VIBBARD |
| File Number: | SYC 4350 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 December 2012 |
| Date of Last Submission: | 20 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor |
| Counsel for the Respondent: | Mr Cook |
| Solicitors for the Respondent: | KDB Holmes Solicitors |
ORDERS
The Respondent is to attend a Parenting After Separation course with Relationships Australia within three (3) months of the date of this Order.
As provided by subsection 65Y(2) of the Family Law Act 1975 the Applicant Father is permitted to remove the child [X] born [in] 2001 from Australia for the purpose of a holiday in Argentina from 22 December 2012 until 27 January 2013.
The Applicant is to do all things necessary to ensure that the said child returns to Australia in time to commence school on Tuesday 29 January 2013 and for this purpose is to return the child to the care of the Respondent Mother forthwith upon his return to Australia.
The Applicant is permitted to uplift the Passport of the child [X] born [in] 2001 from the Sydney Registry of the Court forthwith for the purpose of giving effect to Order (2) above.
The Registrar of the Court is directed to deliver the said Passport to the Applicant immediately on request by him and production of suitable photo identification.
Within forty-eight (48) hours of his return to Australia with the child the Applicant is to deliver the Passport of the child [X] to the Sydney Registry of the Court where it is to be retained until further Order or the written direction signed by both parties.
Orders 9 and 11 made on 6 August 2012 are discharged.
The Applicant is to permit the child [X] to communicate with the Respondent by telephone, Skype or email at all reasonable times during the holiday and the Applicant is to facilitate such communication by permitting the child [X] to use his mobile telephone service or other communication media that is accessible to the Applicant.
The parties are to pay their own costs.
IT IS NOTED that publication of this judgment under the pseudonym Garcia & Vibbard (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4350 of 2012
| MR GARCIA |
Applicant
And
| MS VIBBARD |
Respondent
REASONS FOR JUDGMENT
Application
This is a matter where the Court has found that the Respondent Mother contravened a parenting Order made by consent on 6th August 2012 without reasonable excuse. It is common ground between the parties that no court has previously made an order imposing a sanction or taking an action in respect of an earlier contravention of the primary order (see s.70NEA(2)).
This is not a matter where the Court is satisfied that the Respondent has behaved in a way that showed a serious disregard of her obligations under the primary order (see s.70NEA(4)).
Consequently, the matter should be dealt with under the provisions of Subdivision E of Division 13A of Part VII of the Family Law Act.
Submissions
Mr Cook of counsel has submitted for the Respondent that the Court should regard the contravention as a less serious contravention arising from an oversight by the Respondent’s former solicitor. The transgression was in the low order of contraventions as the Respondent was misled. Therefore, he submitted, the Court should impose no penalty.
It was submitted that the matter has now resolved and the Applicant is not inconvenienced. He is still taking the child overseas and will be back about 4th February 2013.
However, his client was concerned that the Respondent was not planning to return the child to Australia until after the start of the school term. The Respondent sought that the parenting orders should be varied to provide that the Applicant should only take the child away for five weeks, to ensure that he did not miss any school.
The Applicant Father asked the Court to make an order permitting the child to travel to Argentina with him on 22nd December and return on 2nd February 2013. As the child’s passport was now being held at the Court Registry, he told the Court that he consented to returning the passport to the Registry on his return to Australia.
When asked about the length of time that he was planning to take the child out of Australia, the Applicant said that the timing “just worked out” to six weeks. He was not concerned about the child not starting school until early February. He said that he had made inquiries at [M] School and was told that the school was not expecting children in Year 7 to start the term until Friday 31st January 2013, so it would not be detrimental to the child not to start at the school until early February.
The Applicant Father went on to submit that the Court should vary the principal parenting orders that were made by consent on 24th April 2002 so as to provide that the child should spend equal time with each of his parents. He also sought an order that the Respondent a parenting after separation course.
The Applicant Father also sought an order for costs in his favour in the sum of $4,429.00, which he described as including:
a)reimbursement for having to take unpaid leave from work in order to attend Court;
b)reimbursement of the additional expense of having to change the flight arrangements for the child and himself;
c)disbursements such as photocopying, parking and bus fares; and
d)the costs of obtaining legal advice.
In reply, Mr Cook told the Court that the child was not enrolled to attend [M] School in 2013, but the Montessori High School at [T]. The child had been attending primary school there. Mr Cook said that the Montessori School required children to attend on 29th January 2013 for the start of Term 1.
The Respondent opposed the order for costs that was sought and submitted that the parties should pay their own costs.
The Applicant rejoined that he wished the Court to order that the child should attend [M] School.
The Relevant Law
Where a matter is being dealt with under Subdivision E of Division 13A of Part VII of the Act, the powers of the Court are governed by subsection 70NEB(1). The court may do any or all of the following:
a)direct one or both of the parties to attend a post-separation program;
b)make a further parenting order that compensates a person for time the person did not spend with the child as a result of the contravention;
c)adjourn the proceedings to allow either or both parties to apply for a further parenting order that discharges, varies or suspends the primary order;
d)require the person who committed the contravention to enter into a bond in accordance with section 70NEC (or, in default, pay a fine);
e)make an order for compensation; and
f)make an order for costs.
Conclusions
I have considered these submissions. A parenting after separation course would be of benefit, especially as the parties’ son is only eleven years old and will be a child for another seven years. The parties have now been to Court on two separate occasions this year and it would be in the child’s best interests if there were not to be further litigation between his parents.
Although I do not propose to adjourn these proceedings further, as the parties have been before the Court in these protracted proceedings on a number of days this month, there appears to be a need to reconsider the usefulness of the Orders of the consent orders that were made on 24th April 2002, when the child was only a year old. They appear to be no longer adequate to deal with the situation of a child aged eleven just about to start High School.
The parties lost a valuable opportunity to review the parenting orders when the mother’s Application was before the Court on 6th August 2012. The solution chosen was to prepare a separate set of consent orders that only dealt with immediate issues of travelling and passports, orders that were intended to run parallel with the earlier orders. This was an inefficient way to deal with the situation and led to further litigation within a very short time.
The Applicant seeks a lump sum figure for compensation and legal costs, which is not particularised. No documentary proof was tendered in support of the claim.
The Applicant seeks an order for costs. Costs are governed by s.117 of the Family Law Act, and, in considering an application for costs, the Court must have regard to the matters set out in subsection 117(2A). It is relevant that the proceedings were necessitated by the failure of the Respondent to comply with a previous order of the Court (paragraph 117(2A)(d)).
The Court must consider whether any party to the proceedings was wholly unsuccessful (paragraph 117(2A)(e)). The Applicant proceeded with three counts alleging two contraventions of the Orders of 6th August 2012 and one count alleging a contravention of the Orders of 24th April 2002. Only one of those three alleged contraventions was found by the Court; the other two were dismissed.
It is also relevant that the Applicant made a claim for an unspecified sum for legal advice. His solicitor may well have provided advice but did not appear on his behalf or go on the Court record.
In my discretion, I decline to make an order for costs in favour of the Applicant. The parties will pay their own costs.
The Applicant seeks a variation to the original parenting orders providing that:
a)The child should spend equal time with each parent; and
b)The child should attend [M] School rather than the mother’s choice of Montessori at [T].
These orders sought represent major changes to the current parenting orders and the Court would be most reluctant to make changes to the existing arrangements of such magnitude without evidence that assists the Court in determining what orders would be in the child’s best interests. When the Court is deciding whether to make a particular parenting order, it is required by section 60CA of the Act to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of section 60CC.
In the absence of such evidence, the Court would not be satisfied that it is in the child’s best interests to make major changes to parenting orders “on the run”.
However, there is one aspect of the Applicant’s planned arrangements that is problematic, and that is his proposal to take the child out of Australia from 22nd December 2012 and not return him until 2nd February 2013, on the Saturday after school starts. The Applicant seemed unconcerned that his son would miss his first four days of high school, but it is a matter of general knowledge, in my view, that the transition from primary school to high school is a significant step in a child’s education.
I am not prepared to put the Court’s imprimatur on an arrangement that would see this child start Year 7 a week later than his peers at the same school. I am not satisfied that this would be in his best interests. The Applicant Father will have to adjust the child’s travel arrangements to return the child to Australia by 27th January 2013.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 21 December 2012
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