Kipling and Netis

Case •

[2019] FamCA 432

•

5 July 2019

FAMILY COURT OF AUSTRALIA

KIPLING & NETIS [2019] FamCA 432
FAMILY LAW – CONTRAVENTION – Where the father brings an Application for Contravention – Where the Application for Contravention is brought due to the parties’ dispute over the proper construction of the final children’s orders made – Where the parties agree that the Application for Contravention should be dismissed if the final orders were properly construed in written reasons – Where the final orders provided that the parties are to attend mediation in the event of a dispute about the interpretation of the orders – Where the Court properly construed the intention of the orders to prevent ongoing conflict – Application dismissed.
Family Law Act 1975 (Cth) s 70NBA
Netis & Kipling [2018] FamCA 703
APPLICANT: Mr Kipling
RESPONDENT: Ms Netis
FILE NUMBER: TVC 809 of 2015
DATE DELIVERED: 5 July 2019
PLACE DELIVERED: Cairns
PLACE HEARD: Townsville by telephone
JUDGMENT OF: Tree J
HEARING DATE: By written submission last filed 25 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Raeburn (by direct brief)
THE RESPONDENT: In person

Orders

  1. The father’s Contravention Application filed 29 April 2019 is dismissed.

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 Kipling & Netis 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 TOWNSVILLE

FILE NUMBER: TVC809/2015

Mr Kipling

Applicant

And

Ms Netis

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

  1. On 12 September 2018 I delivered final judgment in these parties’ parenting proceedings.  In my reasons,[1] I commented upon the parties’ history of unremitting conflict, and worse, the fact that it had, and likely would continue to, blight the one child born to their relationship.  Yet despite that, albeit consistent with my pessimistic predictions in the judgment, they have continued on with their passionate conflict.

    [1]Netis & Kipling [2018] FamCA 703.

  2. Their present dispute is over the proper construction of my 12 September 2018 orders, with the vehicle for that conflict being the father’s Application – Contravention filed 29 April 2019.  On 18 June 2019 I mentioned that application, during which, once the construction issue was identified, the father’s counsel agreed that, if I was prepared to assist the parties by construing my orders in written reasons, he would consent to his contravention application being dismissed.  I then ordered a timetable for the filing of written submissions, at the conclusion of which, on 25 June 2019, my decision would stand reserved.

  3. This is that decision and the reasons for it.

THE PROBLEM

  1. Orders 8 and 9 of my 12 September 2018 orders (as amended on 7 March 2019, in consequence of an earlier contravention application by the father) provide as follows:

    Live with arrangements

    8. Unless otherwise agreed, and the child lives in B Town on the following basis:

    (a)With the father from the commencement of school or 8:30am on each alternate Friday to the commencement of school or 8:30am on the next Thursday;

    (b)Otherwise with the mother.

    Holidays

    9.That the living arrangements prescribed in order 8 be suspended during school holidays and that the child spend the school holidays (applicable to the school that the child is attending) with each parent agreed or in default of agreement, as follows:

    (c)With the mother for all of the Easter school holidays in even numbered years;

    (d)With the father for all of the Easter school holiday period in odd numbered years;

    (e)With the mother for the July school holidays in even numbered years;

    (f)With the father for the July school holidays in odd numbered years;

    (g)With the mother for the September school holidays in odd numbered years;

    (h)With the father for the September school holidays in even numbered years.

    NOTING THAT:

    A.The intention of these orders is that the child should always be in the mother’s care in the first week of each school term; and

    B.In the event that:

    (i)the child has not spent time with the father in the last week of a school term; and

    (ii)the child is to spend the school holidays with the mother;

    Then the mother will use her best endeavours to accommodate any wish by the child to spend time with the father in the last week of the school term to the extent that it is reasonably practicable.

    (i)Commencing 2018 and in each even numbered year thereafter that the child spend time with the mother for the entire Christmas school holidays.

    Noting that if the mother does not travel away from the B Town region for the entire Christmas holidays, she will use her best endeavours to accommodate any wish by the child to spend time with the father to the extent that it is reasonably practicable, but in any event not exceeding a total of 14 nights.

    (j)Commencing 2019 and in each odd numbered year thereafter that the child spend time with the father for the first half of the Christmas school holidays and with the mother for the second half unless the father intends to travel overseas, in which case such travel is subject to the provisions of order 17 and the length of the travel shall not exceed the length of the school holiday period.

    (k)All school holidays will be deemed to commence at the conclusion of school on the last day of term and conclude at the commencement of school on the first day of the following term.   

  2. The parties are in dispute as to whether, after a school holiday, the child should go into the father’s care on the first Friday, or the second one.  The father says it is the former; the mother says it is the latter.  Consistent with her construction, after the 2019 Easter school holidays (which the child spent with the father) she did not make the child available to the father on the first Friday of term.  That is the alleged contravention.

THE SOLUTION

  1. Order 29 of the 12 September 2018 orders provided as follows:

    Dispute resolution

    29.That in the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall:

    (a)Either attend counselling or mediation with an organization recognized under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney-General; or

    (b)Participate in family dispute resolution with a Family Relationship Centre or a person authorized under s 10G of the Family Law Act (as amended).

  2. Given that this contravention application relates to the parties’ disputed interpretation of those orders, they ought to have conformed with order 29 prior to bringing this application.  Although in her submissions the mother made no point in relation to that, if in the future there is a further difficulty in relation to the matters covered by order 29, then plainly it should be complied with.

  3. However given the way in which the matter has now progressed, it is nonetheless convenient if I undertake the process sought by the parties.

  4. Regrettably, the orders of 12 September 2018 are indeed unclear.

  5. Although one solution – and probably the better one – would be to amend the order under s 70NBA, unfortunately I did not raise that with the parties on 18 June 2019, and to afford them natural justice before making such a variation, would only see yet another opportunity for their conflict to perpetuate.

  6. I turn then to the construction of the orders.

  7. The intention of order 8 was to effect a 6/8 split of the child’s time during school terms between the father and mother.  The mother’s argument would see, on most occasions, the child spend an initial post-holiday period of as many as eleven nights in her care; the father’s argument would see that period shortened, ordinarily, to four nights (albeit after Easter, three nights).  Accepting that paragraph 151 of my first reasons I identified that the minimisation of the number of changeovers was an important matter supporting the reasoning behind the orders which I ultimately made, a changeover after only three or four nights is most undesirable.

  8. I am therefore satisfied that, properly construed, or at least construed consistently with the reasons which underpin it, order 8 should operate so that the child does not go into the father’s care until the second Friday after school resumes.  It follows that, in my view, the construction contended for by the mother, more properly aligns with the overall scheme of my orders. 

CONCLUSION

  1. The father’s application is dismissed. 

  2. I should reiterate that, in the event there are ongoing disputes about the interpretation, implementation or enforcement of the 12 September 2018 orders, the parties must in the future comply with order 29.    

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 5 July 2019.

Associate: 

Date: 5 July 2019


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Netis & Kipling [2018] FamCA 703