KHALID & KHALID

[2016] FamCA 551

FAMILY COURT OF AUSTRALIA

KHALID & KHALID [2016] FamCA 551

FAMILY LAW – CONTRAVENTION – VARIATION OF CURRENT ORDERS

APPLICANT: Ms Khalid

RESPONDENT: Mr Khalid

FILE NUMBER: CAC 128 of 2014

DATE DELIVERED: 4 July 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J Haughton

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

It is ordered by consent that:

1. I amend Order 5 of the orders made by Judge Neville on 15 June 2015 such that Order 5 will be:

   (a)From the commencement of Term 3 2016 D will spend time with the father from after school Friday to before school Monday (and continuing until before school Tuesday if the Monday is a public holiday) on alternate weekends commencing on the first Friday of each school term with change-overs to occur at D’s school. 

It is further ordered that:

1. I discharge Order 7 of the Orders made by Judge Neville on 15 June 2015 and make orders in terms of Orders 7 through 12, as set out in the Application in a Case filed in Court today by the mother dated 4 June 2016.

   7.That unless otherwise agreed between the parties in writing the child C shall spend time with the father in accordance with C’s wishes.

   8.That unless otherwise agreed between the parties in writing the child D shall spend time with the father for the first half of all school holidays in odd numbered years and for the second half in even numbered years.

   9.For the purposes of Order 8 school holidays are deemed to commence at the conclusion of school on the last day of the school term immediately preceding the relevant school holiday period and conclude at the commencement of the first day the child is required to attend school in the following school term so that pupil free days are deemed to be included in the relevant school holiday period.

   10.That the time the child D spends time with the father pursuant to Orders 4 and 5 of these Orders is suspended during the whole of each school holidays period as defined in Order 9.

   11.In the event that there are an odd number of days in any school holiday period as defined by Order 9, then the handover of the child D shall take place at noon on the day which is in the middle of such school holidays and in the event that there are an even number of days, the handover of the child shall take place at 4.00pm on the last day of the first half of such holidays.

   12.In the event that any handovers pursuant to these Orders are to occur on a day which is not a school day, then the handovers shall take place at the McDonald’s Restaurant at Suburb J.

It is further ordered by consent that:

1. Order 13 will be as follows:

   13.That D spend religious holy days with the parents as follows:

   a.In even years the father spends the first religious holy day with D from 6pm the evening before the holy day falls to 9am the morning following the day on which the holy day falls, the change-over to occur at the commencement of school or 9am at McDonald’s at Suburb J if not a school day.

   b.In even years the mother spends the other religious holy day with D from 6pm the evening before this holy day falls to 9am the morning following the day on which this holy day falls, the change-over to occur at the commencement of school or 9am at McDonald’s at Suburb J if not a school day.

   c.In odd years the mother spends the first religious holy day with D from 6pm the evening before this holy day falls to 9am the morning following the day on which this holy day falls, the change-over to occur at the commencement of school or 9am at McDonald’s at Suburb J if not a school day.

   d.In odd years the father spends the other religious holy day with D from 6pm the evening before this holy day falls to 9am the morning following the day on which this holy day falls, the change-over to occur at the commencement of school or 9am at McDonald’s at Suburb J if not a school day.

It is further ordered that:

1. There will be no order as to costs against the father in these proceedings.

2. The Application for Contravention is discharged.

3. I make the following directions in relation to the Application in a Case filed 20 June 2016 and the matter is listed before me for hearing on 25 August 2016 at 10am. 

   a.The applicant is to file any amended application and evidence on which she seeks to rely by close of business on 25 July 2016. 

   b.The father is to file any response and evidence that he seeks to rely upon by close of business on 15 August 2016. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalid & Khalid has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 128 of 2014

Ms Khalid

Applicant

And

Mr Khalid

Respondent

REASONS FOR JUDGMENT

The Application for Contravention dated 28 April 2016

1. An Application for Contravention has been filed, the effect of which pursuant to s 70NBA of the Family Law Act 1975 is that I have jurisdiction to vary the final orders previously made by Judge Neville on 15 June 2015.

2. Having heard from the parties, each agrees to a variation of the orders which will have the effect of clarifying the arrangements for school holidays, school holidays being the subject matter of the current contravention proceedings.  The parties have also taken the opportunity to come to an agreement in relation to arrangements for D to spend time with each of the parents during religious festivals. 

3. By consent, I amend Order 5 of the orders made by Judge Neville on 15 June 2015 such that Order 5 will be

   From the commencement of Term 3 2016 [D] will spend time with the father from after school Friday to before school Monday (and continuing until before school Tuesday if the Monday is a public holiday) on alternate weekends commencing on the first Friday of each school term with change-overs to occur at [D’s] school. 

4. I discharge Order 7 of the Orders made by Judge Neville on 15 June 2015 and make orders in terms of Orders 7 through 12, as set out in the Application in a Case filed in Court today by the mother dated 4 June 2016.

   7.That unless otherwise agreed between the parties in writing the child [C] shall spend time with the father in accordance with [C’s] wishes.

   8.That unless otherwise agreed between the parties in writing the child [D] shall spend time with the father for the first half of all school holidays in odd numbered years and for the second half in even numbered years.

   9.For the purposes of Order 8 school holidays are deemed to commence at the conclusion of school on the last day of the school term immediately preceding the relevant school holiday period and conclude at the commencement of the first day the child is required to attend school in the following school term so that pupil free days are deemed to be included in the relevant school holiday period.

   10.That the time the child [D] spends time with the father pursuant to Orders 4 and 5 of these Orders is suspended during the whole of each school holidays period as defined in Order 9.

   11.In the event that there are an odd number of days in any school holiday period as defined by Order 9, then the handover of the child [D] shall take place at noon on the day which is in the middle of such school holidays and in the event that there are an even number of days, the handover of the child shall take place at 4.00pm on the last day of the first half of such holidays.

   12.In the event that any handovers pursuant to these Orders are to occur on a day which is not a school day, then the handovers shall take place at the McDonald’s Restaurant at [Suburb J].

5. Order 13, by consent, will be as follows:

   13.That [D] spend [religious holy days] with the parents as follows:

   a.In even years the father spends the [first religious holy day] with [D] from 6pm the evening before [the holy day] falls to 9am the morning following the day on which [the holy day] falls, the change-over to occur at the commencement of school or 9am at McDonald’s at Suburb J if not a school day.

   b.In even years the mother spends [the other religious holy day] with [D] from 6pm the evening before [this holy day] falls to 9am the morning following the day on which [this holy day] falls, the change-over to occur at the commencement of school or 9am at McDonald’s at [Suburb J] if not a school day.

   c.In odd years the mother spends [the first religious holy day] with [D] from 6pm the evening before [this holy day] falls to 9am the morning following the day on which [this holy day] falls, the change-over to occur at the commencement of school or 9am at McDonald’s at [Suburb J] if not a school day.

   d.In odd years the father spends [the other religious holy day] with [D] from 6pm the evening before [this holy day] falls to 9am the morning following the day on which [this holy day] falls, the change-over to occur at the commencement of school or 9am at McDonald’s at [Suburb J] if not a school day.

6. An application has been made by the mother for the father to pay her costs of the contravention proceedings.  I am bound to consider any application made for the applicant to pay the respondent’s costs given that no contravention has been found.  The respondent is self-represented and has made no application for costs.

7. The mother’s application is governed by s 117 of the Family Law Act 1975. The factors that I am to take into account are set out in s 117(2A).

Section 117(2A)(a) - the financial circumstances of each of the parties to the proceedings

1. The parties have each pointed to the financial documents that they filed otherwise in these proceedings which reveal that the mother is in receipt of a pension and the father is receipt of an income of in excess of $190,000 per year. 

2. The father notes that he does not have disposable income and is the subject of Court proceedings in Victoria.  The previous proceedings between the parties indicated that these relate to liquidation proceedings against a company of which the father is a Director.  I am unable to ascertain the degree to which he has disposable income given the circumstances, notwithstanding the severe disparity in income earned as between the parties. 

Section 117(2A)(b) - whether any party to the proceedings is in receipt of assistance by way of legal aid

1. The father is self-represented.  The mother, through her counsel, asserts that she is not in receipt of legal assistance.

Section 117(2A)(c) - the conduct of the parties to the proceedings in relation to the proceedings

1. On the last occasion this matter was listed the father sought an adjournment of the contravention proceedings as he felt that he was unable to be ready for them on the last occasion.  That application has necessitated this further appearance in Court.

Section 117(2A)(d) - whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. These contravention proceedings dealt in large part with the operation of Order 7 of the Orders made by Judge Neville on 15 June 2015.  Those orders set up that the school holidays were to be split in half between the parents.  The application was made following the father calculating half of the school holidays commencing from the time that he spent with D on the first weekend of the holidays.  On the terms as set out in Order 7, as seen in context with the balance of the orders, the approach by the father was in contravention of the orders made by Judge Neville.  The father’s contravention of those orders necessitated or at least were highly causative of, the bringing of this action.

Section 117(2A)(e) - whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. The mother sought variation of the orders rather than some other orders dealing with the father for contravention.  The bulk of those orders sought by her have been made however, a number of variations that were sought by the father have also been made but it cannot be said that either of the parties has been wholly unsuccessful in the proceedings.

Section 117(2A)(f) - whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings

1. I have before me, marked as annexures in the mother’s affidavit sworn 4 July 2016, a chain of correspondence between the mother’s solicitors and the father setting out proposals for settlement on the part of the mother, and counter-proposal on the part of the father.  Neither party accepted the other’s full terms and each compromised their positions before me today. 

2. Given that s 117 provides that each party to proceedings under this Act should bear his or her own costs and an examination of the matters set out in s 117(2A) do not point, in their entirety, towards the obligation that one party ought to pay the costs, I decline to make a costs order against the father in these proceedings.

3. I otherwise discharge the Application for Contravention.

4. I make directions in relation to the Application in a Case filed 20 June 2016 and the matter is listed before me for hearing on 25 August 2016 at 10am. 

5. The applicant is to file any amended application and evidence on which she seeks to rely by close of business on 25 July 2016.  The father is to file any response and evidence that he seeks to rely upon by close of business on 15 August 2016. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 July 2016.

Associate: 

Date:  6 July 2016