Lorreck and Watts
[2012] FMCAfam 977
•21 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LORRECK & WATTS | [2012] FMCAfam 977 |
| FAMILY LAW – Parenting – remitted matter following appeal – single issue of costs of travel following relocation. |
| Family Law Act 1975, s.60(3)(e) |
| Applicant: | MS LORRECK |
| Respondent: | MR WATTS |
| File Number: | CAC 23 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 21 June 2012 |
| Date of Last Submission: | 9 August 2012 |
| Delivered at: | Canberra |
| Delivered on: | 21 September 2012 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Joseph Tallarita, Barristers & Solicitors |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Jack C Herrald, Solicitors |
ORDERS
Until the end of July 2013 the Mother is to pay for one trip for the children to spend time with their Father.
After July 2013 the costs of travel are to be borne equally between the parties.
The parties are to provide relevant travel itineraries to each other a minimum of 60 days prior to the children’s scheduled travel.
IT IS NOTED that publication of this judgment under the pseudonym Lorreck & Watts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 23 of 2009
| MS LORRECK |
Applicant
And
| MR WATTS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7th June 2012 the Full Court of the Family Court of Australia made comprehensive orders in relation to parenting following a successful appeal by the Mother from a judgment of his Honour, Brewster FM. Those orders now permit her and the two children of the relationship to relocate to Cairns. That relocation is yet to occur.
The one matter not dealt with by the Full Court, however, and remitted to this Court for determination relates to the costs associated with the travel concerning the Father spending time with the children.
Following discussion with the parties’ lawyers, and having regard to the discrete issue to be determined, as well as having regard to the detailed history of the matter including the recent appeal, orders were made by consent on 21st June 2012 for the filing of brief affidavits by the parties, updated financial statements and brief written submissions. All those documents have now been filed with both sets of submissions having been filed early in August 2012. Of course, in dealing with the matter, essentially ‘on the papers’, there can arise difficulties where there is any conflict in factual matters between the parties.
Orders Sought
Orders sought by the Mother:
1.That for the purpose of paragraph 4a of the orders of the Full Court of the Family Court of Australia dated 7 June 2012:
a) Whilst the mother is not in full time employment, the mother will book and pay for the return airfare with Qantas for the children to travel from Cairns to Canberra and from Canberra to Cairns for the winter holidays each year commencing in 2013;
b) On the mother commencing full time employment, the mother will book and pay for the return airfare with Qantas for every second school holiday period for the children to travel from Cairns to Canberra and from Canberra to Cairns;
c) The mother will provide to the father a complete itinerary including flight details at least 90 days prior to the children’s departure from Cairns to Canberra;
d) The father will book and pay for all other return airfares with Qantas for the children to travel from Cairns to Canberra and from Canberra to Cairns;
e) The father will provide to the mother a complete itinerary including flight details at least 90 days prior to the children’s departure from Cairns to Canberra;
f) For each holiday period each parent will notify the other parent by SMS or email that the children have boarded the flight for the children to travel from Cairns to Canberra or from Canberra to Cairns as the case may be.
g) The mother may at her expense accompany the children on any of the air flights and if the mother does so she will notify the father of this and changeover will occur at the Canberra airport.
h) For the purposes of this paragraph, full time employment means earning a gross income of $1,300.00 per week.
Orders sought by the Father
1.That when the Applicant Mother relocates to Cairns with the children of the marriage, [X], born [in] 2002, and [Y] born [in] 2007, and to facilitate the children spending time with the Respondent Father at the times and in accordance with the orders made by the Full Family Court on 7 June 2012, the parties be responsible overall for the children's travel costs as to two thirds by the Mother and one third by the Father.
2.Subject to any agreement between the parties to the contrary, that each of the parties accept responsibility for and meet the whole of the travel costs for the two children to fly between Cairns and Canberra and return in respect to each journey in accordance with the schedule set out here under:
| Trip | Ms Lorreck | Mr Watts | |
| 2012 (0 trips) | - | - | - |
| 2013 (5 trips) | Second half of the summer holidays (January) | X | |
| Easter (March/April) | X | ||
| Winter holidays (June/July) | X | ||
| Spring holidays (September) | X | ||
| First half of summer holidays (December) | X | ||
| 2014 (2 trips) | Winter holidays (June/July) | X | |
| Spring holidays (September) | X | ||
| 2015 (5 trips) | Second half of summer holidays (January) | X | |
| Easter (March/April) | X | ||
| Winter holidays (June/July) | X | ||
| Spring holidays (September) | X | ||
| First half summer holidays (December) | X | ||
| 2016 (2 trips) | Winter holidays (June/July) | X | |
| Spring holidays (September) | X | ||
| 2017 (5 trips) | Second half summer holidays (January) | X | |
| Easter (March/April) | X | ||
| Winter holidays (June/July) | X | ||
| Spring holidays (September) | X | ||
| First half summer holidays (December) | X | ||
| 2018 (2 trips) | Winter holidays (June/July) | X | |
| Spring holidays (September) | X | ||
| 2019 (5 trips) | Second half summer holidays (January) | X | |
| Easter (March/April) | X | ||
| Winter holidays (June/July) | X | ||
| Spring holidays (September) | X | ||
| First half summer holidays (December) | X | ||
| 2020 (2 trips) note: [X] turns 18 on [date omitted] 2020. The orders would cease thereafter so far as they apply to [X]. This would have the effect of halving the travel costs. | Winter holidays (June/July) | X | |
| Spring holidays (September) | X | ||
| 2021 (5 trips) | Second half summer holidays (January) | X | |
| Easter (March/April) | X | ||
| Winter holidays (June/July) | X | ||
| Spring holidays (September) | X | ||
| First half summer holidays (December) | X | ||
| 2022 (2 trips) | Winter holidays (June/July) | X | |
| Spring holidays (September) | X | ||
| 2023 (5 trips) | Second half summer holidays (January) | X | |
| Easter (March/April) | X | ||
| Winter holidays (June/July) | X | ||
| Spring holidays (September) | X | ||
| First half summer holidays (December) | X | ||
| 2024 (2 trips) | Winter holidays (June/July) | X | |
| Spring holidays (September) | X | ||
| 2025 (2 trips) note: [Y] turns 18 on [date omitted] 2025. The orders would cease to have any application thereafter, so there would only be 2 trips. | Second half summer holidays (January) | X | |
| Easter (March/April) | X |
3.
a) Subject to any agreement between the parties to the contrary the party responsible to meet the travel costs in accordance with the schedule set out above in Order 2, the responsible party shall make such travel bookings for the children to fly with any of the recognised commercial airline's operating such routes from time to time between Cairns and Canberra, so the children fly on the days determined in accordance with Order 5 of the Orders of the Full Family Court made on the 7th June 2012 to be the first day and the last day of each of the periods when the children are to spend time with the Father.
b) The responsible party who makes the booking is to communicate with and provide a copy of the travel documents to the other party not less than 14 days prior to the proposed journey.
c) That the mother accepts full responsibility on all occasions to arrange and/or to provide for the ground transport in taking the children to and picking the children up from the Cairns Airport and the father and accepts full responsibility on all occasions to arrange and/or to provide for the ground transport in taking the children to and picking the children up from the Canberra Airport.
d) That each party will communicate by text message or phone to the other party any information that becomes available whilst at either the Cairns Airport or the Canberra Airport that relates to any delay of a relevant flight upon which the children are booked, which is reportedly likely to delay the flight’s scheduled arrival at its destination by more than one hour.
Outline of Evidence
The Father deposes to earning approximately $89,000 per year. He says he pays child support of approximately $240 per week. He expects it to be reassessed when the Mother relocates to Cairns.
The Father also deposes to being in a new relationship with a Ms P. As it turns out, his new partner is a lady with whom this Court has had significant experience from her own family law matter. Nothing turns on this fact or observation.
Ms P is employed by [omitted]. The Court may take judicial notice that the level of pay for such an employee is approximately in the order of $90,000 and perhaps even more.
The Father deposes that he pays one half of all bills from Ms P’s household including her mortgage. He said he moved in with her in approximately May 2012.
At paragraph 30 of his affidavit the Father sets out a detailed regime of travel he seeks.
Briefly stated in relation to the Wife’s evidence, she confirms the costs of airline travel for the children at paragraph 20 of her affidavit. I need not canvass the small range of contest in relation to the differences in airfares. Doubtless, they will vary from time to time depending on when they are purchased and with whom the children fly.
The Mother also confirms that she remains for the moment, and in my view, likely for some time, dependent on Centrelink benefits and child support.
She also outlines her plans for her financial future including study and business plans. Understandably, most of these plans must necessarily be somewhat speculative at this stage.
In relation to both the history of the financial management and allegations of mismanagement during the course of the relationship, and the Father’s considerable doubts about the Mother’s capacity to deal with financial matters prudently in the future, I cannot and will not comment on such matters. It is beyond the scope of the issue to be determined currently before the Court.
Submissions
The Mother’s proposal is that while she is not in full time employment she will pay for one return air trip for the children each calendar year commencing with the Winter holiday in 2013. She then says that once she commences full time employment she will pay for half of the airfares for the children.
On the other hand the Father seeks orders whereby the Mother pays for two thirds of the children’s travel costs. The Father contends that this is to ensure that “she will understand that she must seriously pursue employment and budget for the expense, and be in a position to meet that expense when it falls due, and not fall back to a position where she thinks that the Respondent will pay whatever it costs when he wants to see his children which she knows he will.”
Such a submission is made frequently in the course of the written submissions on behalf of the Father. For example at paragraph 17 the Father further submits: “[the Father] seeks an order that drives home the expectation that the Applicant will be responsible to meet at least two-thirds of the travel costs.”
I note that the Mother had submitted previously that she will pay half of the travel costs.
In my view there is no room to argue against the proposition, and factual reality, that the strongest financial position of the parties rests with the Father. While that is not the sole determining factor in relation to the current issue before the Court, it is nonetheless a consideration pursuant to s.60(3)(e) of the Family Law Act1975, which refers to the Court having proper regard to “the practical difficulty and expense of a child spending time with an communicating with a parent”.
In my view three things are central to the Court’s consideration of the issue of travel costs.
First, once the Mother moves to Cairns, which is anticipated to be in the next short while, in my view it is not unreasonable that she be given some time to [re] - establish herself and the children’s home before imposing too great a financial burden on her.
Secondly, the observation just made should not be taken to be effectively something of a carte-blanche for Ms Lorreck not to bear proper responsibility to facilitate the Father being able to spend time with the children.
Thirdly, the submissions of the Father to which I have made specific reference, in my view, seek to make costs in relation to travel some form of educative penalty on the Mother. Such a submission is not, in my view, appropriate.
In my view, the appropriate order of the Court is as follows:
Until the end of July 2013 the Mother is to pay for one trip for the children to spend time with their Father, with all other travel costs to be borne by the Father.
After July 2013 the costs of travel are to be borne equally between the parties.
The parties are to provide relevant travel itineraries to each other a minimum of 60 days prior to the children’s scheduled travel.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 21 September 2012
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