Klein & Seward (No 3)

[2021] FCCA 2168

FEDERAL CIRCUIT COURT OF AUSTRALIA

Klein & Seward (No 3) [2021] FCCA 2168

File number:	ASC 2 of 2018
Judgment of:	JUDGE YOUNG
Date of judgment:	20 August 2021
Catchwords:	FAMILY LAW – contravention application – where the father alleges the mother has failed to reimburse him with the cost of the children’s airfares pursuant to Court orders – where the mother admits the contravention but alleges she had a reasonable excuse – where the mother alleges the father has failed to pay her pursuant to Court orders – where the mother alleges the amount owed by her to the father only marginally exceeds the amount owed by the father to the mother – where the mother agreed she was liable to pay the difference between the amounts owed by the parties – contravention proved – no penalty imposed in the circumstances.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	17
Date of hearing:	20 August 2021
Place:	Darwin
The Applicant:	Appearing on his own behalf
The Respondent:	Appearing on her own behalf

ORDERS

ASC 2 of 2018

BETWEEN:

MR KLEIN

Applicant

AND:

NS SEWARD

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	20 AUGUST 2021

UPON NOTING THAT:

A.The Court is unable to find that the mother has contravened order 6(b) of 22 February 2019 in respect of the amount of $2,445.39 but does find that the amount of $373.23 is owed to the father and the mother has contravened the order to that extent.

B.That order 18 of the orders made on 22 February 2019 be amended to delete “Federal Magistrates Court” and replace with the “Federal Circuit Court.”

THE COURT ORDERS THAT:

1.The Contravention Application filed by the father on 7 May 2021 do stand dismissed.

2.The Court is satisfied that the mother contravened the order made on 22 February 2019 to the extent of $373.23 alleged in the amended application for contravention filed by the father on 25 March 2021.

3.There be no further penalty imposed.

4.That all outstanding applications be dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. These are two applications brought by the husband/father alleging the wife/mother contravened Court orders.  For the purpose of delivering these reasons I will refer to the applicant husband/father as the father and the respondent wife/mother as the mother.

   Father’s application filed on 7 May 2021

2. The husband's application filed on 7 May 2021 alleges that the mother has not complied with an order that she do all things necessary to provide documents to remove her from the parties' self-managed superannuation fund. 

3. The order made on 22 February 2019 dealing with the property issues of the parties included an order (order 18) that the Registrar of the Court be authorised to sign any documents that a party refused to sign.  For some reason the husband did not seek to proceed under that order, rather he brought a contravention application against the mother. 

4. At the hearing today the husband conceded that the mother had provided the necessary documents very recently. That being the case, the mother has complied with the order and the application will be dismissed.  Neither party is represented so no question of costs arises.

   Father’s application filed on 25 March 2021

5. The more challenging application was the amended application filed by the father on 25 March 2021 which alleges that the mother has refused to comply with a parenting order, namely order 6(b) of the orders dated 22 February 2019. This order provides, effectively, that on the father booking and paying for the children's airfares the mother reimburse the father at the completion of that school holiday period. 

6. The mother conceded that she has not complied with order 6(b), however, she alleges that she has a reasonable excuse for not doing so because she alleges that the father failed to comply with orders made on 31 August 2018. Order 4 of the orders dated 31 August 2018 provided that if the father was unable to obtain a discharge of the home loan and mortgage in order to pay the mother the sum of $180,000 then under order 6 of those same orders the father was to pay the mother’s expenses, including airfares and accommodation in Alice Springs for the trial due to commence on 13 November 2018.

7. The mother said that the father never paid that amount.  She says in her affidavit that the amount remaining unpaid was $2,445.39.  I note that the amount alleged by the father to be owed in his application was $2,358.54, though orally in evidence the father asserted that the amount did not include the July airfares which meant that the amount had increased to $2,818.62. 

8. The mother agreed that that was correct and that even if the $2,445.39 she claimed she was owed to her was set off that would still result in there being a shortfall against the total figure of $2,818.62 claimed by the father.  She acknowledged that on that basis she would owe the father $373.23 pursuant to the orders. It follows that I find that there is some degree of contravention by the mother of that order, at least in the sum of $373.23. 

9. The more difficult task, however, is to work out whether the allegation the mother makes of the father owing her $2,445.39 is correct.  When the father was questioned about that, he gave ambivalent answers.  He first of all told me that he had complied with order 6 of 31 August 2018 orders because there had been a payment prior to, or during, the trial of $15,000 to the mother's lawyers.  I asked him whether it was the case that the $15,000 was intended to encompass the $2,445.39 which the mother claimed and the father said it was. The father was not able to provide any evidence that that was the case.  The mother simply asserted that that amount was repaid to the father's lawyers at a later date. Those were matters relating to events nearly three years ago.  I do not have any recollection of the matters and the parties who are unrepresented have been unable to provide me with any orderly or credible evidence about those issues. 

10. When I stated to Mr Klein that his evidence did not satisfy me that he had complied with the relevant order, he said, "Well, I did not have to comply with the order [order 6] because of order 4". Order 4 is a reference to the orders dated 31 August 2018. The father conceded he was unable to pay within the time.  He said, however, that the default was the result of the mother's failure to comply with other orders for some other reason.  There was no evidence of that and, again, while the matter was in my docket some three years ago, I have no recollection of any of these events. 

11. Mr Klein's ambivalent response was unsatisfactory. I am satisfied that the mother genuinely believes that she was owed $2,445.39. She points to an order which, on the face of it, supports that point of view.  In the absence of evidence and given the fact that the parties are unrepresented and incapable of marshalling evidence in an orderly way, the resolution of that issue would be difficult. I imagine it would likely require evidence from the solicitors who were representing the parties at the time.  None of that is before me and it would take a very considerable amount of time to marshal that evidence. 

12. Mr Klein makes the complaint that the mother's affidavit raising these issues was filed very late. The father said he had not had the opportunity to properly deal with it.  He said he would want to have the matter adjourned to deal with it.  I think there is no real doubt that the mother has been saying for a considerable period of time that the order was never complied with and, as such, that she does not owe him money.  I do not accept that that comes as a surprise to the father. I am satisfied that his failure to address the complaint is essentially unexplained.

13. For the reasons I have given, I do not consider that an adjournment is likely to shed much more light on the issue unless there is an extensive trial involving witnesses.  Having regard to the issues at stake and the other pressing business of the Court I do not consider that such an adjournment is merited. I do not propose to grant it.

14. At this stage, I am satisfied that there has been a contravention by the mother of the order to the extent of $373.23.  As to the extent of any other contravention, I am not satisfied to the requisite standard that there has been a contravention.  The evidence is simply too confused.

15. I explained to Mr Klein that it would always be open to him to apply to the Court for a departure order, however, he would need to be able to establish with some clarity the matters that I have referred to.  The mother has said that she would agree to a departure order in respect of the amount that accrues against her and will continue to accrue for airfares.  It follows from the mother's position outlined today that whilst she will not pay $2,445.39 to the father because on her view that amount has been liquidated she now has to start paying for future airfares.

16. It is very difficult to see a resolution for these parties in the absence of my ability to make the requisite factual findings.  The option that I suggested to Mr Klein – a departure order application – was one that he told me he had considered but had deliberately chosen not pursue due to his experience last year where his income dramatically decreased because of the COVID-19 pandemic and consequently, the father was not able to afford to pay the airfares in advance.  Whether or not that is the case, I believe he needs to reconsider the departure application. In the first instance, he can also apply to the Child Support Registrar to have those matters taken into account.  Given that the mother has indicated to me that she would agree to that course, I would hope that there would be a consideration by the Registrar, if both parties agree, to amending the assessment accordingly.

17. I propose to note that I am unable to find whether or not the mother has contravened the order in respect of $2,445.39. However, I do find that the mother owes the father the amount of $373.23 which has accrued since July 2021 pursuant to the order. I find the contravention proved in that regard, but given all the circumstances, I do not propose to impose any penalty.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       29 September 2021