LORRECK & WATTS - [2013] FamCAFC 66

FAMILY COURT OF AUSTRALIA

LORRECK & WATTS

[2013] FamCAFC 66

FAMILY LAW – APPEAL – CHILDREN – Where the mother appealed against an order which required the cost of travel for the children to spend time with the father should be borne equally between the parties – Where the mother had previously been permitted to relocate from Canberra to Cairns – Where it was held that, given the father’s much superior financial position, the Federal Magistrate should have provided a clear explanation in his reasons ordering that the cost of travel be borne equally – Appeal allowed – Matter re-determined.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act1981 (Cth).

Bennett v Bennett [1991] FLC 92-191

APPLICANT:

Ms Lorreck

RESPONDENT:

Mr Watts

APPEAL NUMBER:

139

2012

FILE NUMBER:

CAC

2009

DATE DELIVERED: 4 April 2013

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn J

HEARING DATE:

31 January 2013

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hassall

SOLICITOR FOR THE APPELLANT

Mr Tallarita

COUNSELF FOR THE RESPONDENT	Mr Herrald
SOLICITOR FOR THE RESPONDENT	Mr Herrald

Orders

The appeal be allowed.
Order 2 or the orders made by Federal Magistrate Neville (as he then was) on 21 September 2012 be varied to read as follows:
a) For each two year period beginning 1 January 2014, 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 in each year and for the first half of the summer holidays in the odd numbered year.
b) The father will book and pay for all other return airfares with Qantas for the children to travel from Cairns to Canberra and Canberra to Cairns.
c) 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.
d) 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 Canberra airport.
There be no order for costs in relation to the appeal.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by him in relation to the appeal.

IT IS NOTED that Orders 1 and 3 made by Federal Magistrate Neville (as he then was) on 21 September, 2012 remain in force and accordingly it is explained for the benefit of the parties that the orders in relation to the airfares for the children to spend time with the father are 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.
a) For each two year period beginning 1 January 2014, 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 in each year and for the first half of the summer holidays in the odd numbered year.
b) The father will book and pay for all other return airfares with Qantas for the children to travel from Cairns to Canberra and Canberra to Cairns.
c) 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.
d) 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 Canberra airport.
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 by this Court under the pseudonym Lorreck & Watts has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

APPEAL NUMBER: EA 139 of 2012

FILE NUMBER: CAC 23 of 2009

Ms Lorreck

Applicant

And

Mr Watts

Respondent

REASONS FOR JUDGMENT

This is an appeal by Ms Lorreck (“the mother”) against an order (Order 2) made on 21 September 2012 by Neville FM (as he then was) in proceedings between the mother and Mr Watts (“the father”). That order provided that as from the end of July 2013 the costs of travel for the two children of the parties’ marriage to spend time with the father should be borne equally by the parties.
There were two other orders made by Neville FM (as he then was) on 21 September 2012, which provided, respectively, that:
· until the end of July 2013, the mother is to pay for one return trip for the children to spend time with their father (Order 1); and
· the parties are to provide travel itineraries to each other a minimum of 60 days prior to the scheduled travel (Order 3).
Although the original notice of appeal and the amended notice of appeal stated that these two orders were also appealed, it became clear at the hearing of the appeal that they were not to be the subject of the appeal.
I mention at the outset that I am determining this appeal as a single judge pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).

Background to the making of the orders of 21 September 2012

On 7 June 2012, the Full Court of this Court made orders which permitted the mother and children to relocate to Cairns from Canberra; the parties had previously lived and the father continues to live in Canberra. The Full Court’s orders provided for the children to spend school holiday time with the father in Canberra on seven occasions in each two year period, with two of those occasions being in the even numbered year and with the remaining five occasions being in the uneven numbered year. However, the Full Court remitted the issue of the costs of the children’s travel to the Federal Magistrates Court for determination.
It was decided by Neville FM (as he then was) and the parties’ representatives that the issue of the costs of the children’s travel could be determined on the basis of affidavits, financial statements, and written submissions from each party and without an oral hearing.
The required documents were duly filed, with Neville FM (as he then was) subsequently delivering written reasons and making the order now appealed on 21 September 2012.

The Federal Magistrate’s reasons for judgment

His Honour began his reasons for judgment by setting out in full the orders sought by each party. In summary, the mother sought that until she obtained “full time” employment resulting in earnings of $1,300 per week (gross), she should pay only one return airfare per year for the children to travel from Cairns to Canberra commencing in the winter holidays of 2013, and that once she obtained full time employment at that particular salary, she should pay for every second set of airfares. The father’s position was, in summary, that the mother should pay two out of every three sets of return airfares.
His Honour then summarised the evidence in relation to the parties’ respective financial positions and then the content of their written submissions.
He then reached his conclusion in the following paragraphs:
18.I note that the Mother had submitted previously that she will pay half of the travel costs.
19.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) [sic-semble s 60CC(3)(e)] of the Family Law Act 1975, which refers to the Court having proper regard to “the practical difficulty and expense of a child spending time with an [sic] communicating with a parent”.
20.In my view three things are central to the Court’s consideration of the issue of travel costs.
21.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.
22.Secondly, the observation just made should not be taken to be effectively something of a carte-blanche for [the mother] not to bear proper responsibility to facilitate the Father being able to spend time with the children.
23.Thirdly, the submissions of the Father to which I have made some form of educative penalty on the Mother. Such a submission is not, in my view, appropriate.
His Honour then set out the three orders which he proposed to make and which I have earlier explained.

Discussion of the grounds of appeal

In the mother’s amended notice of appeal (filed 19 December 2012) there were six grounds of appeal, which counsel for the mother was able to classify into the following two categories or groups:
· an alleged failure to give adequate reasons, failure to attribute adequate weight to the mother’s financial position and not relying on evidence (Grounds 1 to 6); and
· an alleged failure to have regard to the best interests of the children (Ground 6).
In support of the first category or group of grounds, counsel relied on the submission originally made in paragraph [19] of the mother’s written submissions to the Federal Magistrate (as he then was), being that after deducting her total weekly expenses from her income (which was derived solely from child support and social security), and taking into account an expected increase in child support receipts, she has only a disposable income of $26.00 per week or $1,352.00 per annum. Counsel for the mother was able to demonstrate to my satisfaction that these figures had been calculated on the basis of the evidence which was before his Honour. As counsel for the father did not challenge this calculation, I need not refer to the passages in the evidence which support the submission contained in paragraph [19] of the mother’s written submissions at trial.
I observe in passing at this point that although his Honour did not say so expressly in his reasons, it seems that the mother’s position, whereby she only had disposable income in the region of $1,300 per year, may well have been the reason why he only required her (in Order 1 of his orders) to pay for one return airfare for the children in the period between the date of the orders and the end of July 2013 (and it is to be noted here that it was common ground before me that one set of airfares would be approximately $1,200), and in circumstances where as is clear from [21] of his reasons, he understood that the mother needed time to establish herself in Cairns.
However, on appeal the mother’s argument was, as I apprehended it, that if her disposable income was so low, why should she have to bear equally with the father the costs of travel as from July 2013, having regard to the father’s much stronger financial position as found by his Honour in [19] of his reasons?
Unfortunately, his Honour did not explain why against the background of the mother’s current poor financial position and the father’s much superior position, she should within approximately nine months of his orders, have to contribute equally to the children’s costs of travel.
At the commencement of his reasons his Honour had set out the orders sought by the mother, including an order which would provide that once she was earning a gross income of $1,300 per week, she should pay for every second set of airfares. Later in his reasons when he outlined the submissions of the parties, his Honour referred (in [15]) to the mother’s proposal to pay half the airfares once in full time employment. But, his Honour made no further mention in his reasons of this proposal by the mother, and importantly, he did not explain why he rejected it (as, it has to be assumed, he did.)
However, his Honour did in [18] of his reasons refer to the fact that the mother had previously submitted that she would pay half the travel costs; this was a proposal made, as I understand it, in the context of the mother’s application to be permitted to move with the children to Cairns, and this was the order that his Honour then made (albeit only to take effect in some nine months time.)
As I canvassed with counsel at the hearing of the appeal, it is possible to speculate as to the reason why his Honour might well not have accepted the mother’s proposal to contribute equally to the travel costs only after she was in receipt of a gross income of $1,300 per week. Put as fairly as possible to the mother, and against the background of his Honour’s earlier observation (in [13] of his reasons) that her plans for her financial future “must necessarily be somewhat speculative at this stage”, that reason might well have been that the mother might never earn the amount proposed by her, and thus would never be in a position to make a contribution to the travel costs in question.
Therefore, it might perhaps be understood why his Honour chose what can be termed as a “time” threshold for the mother to commence undertaking her responsibility to contribute to the children’s travel costs; that responsibility was a matter to which his Honour made specific reference in [22] of his reasons.
However, having regard to the need for a party to understand why his or her case has not been accepted, as is required by authorities concerning the adequacy of reasons for judgment (see for example Bennett v Bennett [1991] FLC 92-191 and the other authorities there cited), it was necessary for his Honour to provide a clear explanation of, and not leave for speculation, his reasons for rejecting the mother’s proposal that she contribute only equally to the costs of travel once she was earning $1,300 per week (gross). His Honour’s failure to provide such an explanation requires, in my opinion, that the appeal be allowed on the basis of the challenge to the adequacy of his reasons. Nothing put to me by counsel for the father in opposition to the appeal, has dissuaded me from this conclusion.
Given the conclusion which I have reached in relation to the first category of complaints, raised by the mother, it is unnecessary that I say very much about the second category, which allege that his Honour failed to have regard to the best interests of the children in ordering that the mother contribute equally to the travel costs as from the end of July 2013. The argument in this regard was to the effect that the financial strain which that order would place on the mother would adversely affect the children and their standard of living.
It was accepted before me that the order for the payment of the children’s travel costs was “a parenting order” within the meaning of s 64B(2) of the Act, and that therefore in the making of such an order, the best interests of the subject child must be the paramount consideration (s 60CA of the Act). A determination of the best interests of the child requires the court to consider the matters set out in s 60CC of the Act.
In the mother’s written submissions to his Honour, there was certainly reliance placed on those matters in s 60CC(3) which could possibly have relevance to the making of an order in relation to children’s travel costs. Notably there was particular reliance in the submissions on the matter in s 60CC(3)(e), being “the practical difficulty and expense of a child spending time with and communicating with a parent”. However, the issue of the impact on the children of the mother’s financial position was not mentioned in connection with that matter, but rather, and then only in passing, in connection with the

s 60CC(l) matter of “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.” Indeed I understood counsel for the mother to concede before me that the issue of the impact on the children was not pursued as strongly before his Honour as it might have been.
As will have been seen from [19] of his reasons, his Honour did have regard to the s 60CC(3)(e) matter in reaching his decision, at least in so far as it required a consideration of the father’s stronger financial position, which was the subject of extensive submissions on behalf of the mother. Thus, it cannot be said that his Honour did not have some regard to the best interests test, although he may not have done so in the way that the mother now claims on appeal that he should have done. Accordingly, I do not consider that there is merit in the ground directed to the best interests test.

Conclusion in relation to the grounds of appeal

For the reasons which I have earlier given, I have found substance in the grounds of appeal directed to the adequacy of the reasons provided for the order appealed, and the appeal must therefore be allowed.

Future course of the matter

It was the position of counsel for both parties that if one or more of the grounds of appeal were found to have merit, and in order to save the parties the costs of having a new trial, I should re-determine the issue of responsibility as between them for the costs of the children’s travel as from the end of July 2013, and that I should do so on the basis of the evidence which was before Neville FM (as he then was), and also of the submissions to him, although each party adopted a slightly different position before me in relation to the orders sought to that adopted at trial.
For her part, the mother’s primary position remained that she should only have to contribute equally to the travel costs once she was employed and earning $1,300 per week (gross). However, in the event that I was not prepared to accept her primary position, she put forward the alternative proposal that in each two year period beginning 1 January 2014, she would pay for three of the seven return trips in that period (being the winter holidays in each year and the first half of the summer holidays in odd numbered years.)
So far as the father was concerned, his counsel informed me that although before the Federal Magistrate he had sought that the mother pay two out of every three sets of airfares, he was now prepared to accept that the parties share the travel costs equally.

Re-determination of the payment arrangements beyond July 2013

In accepting that an order in relation to the costs of travel for a child to spend time with the parent with whom he or she does not live, is a parenting order, and that therefore in making such an order the best interests of the child are the paramount consideration, it has also to be accepted that the considerations contained in s 60CC(2) and (3) for the determination of best interests are not of great assistance in determining an application for such an order relating to the costs of travel.
In my opinion, justice would require in the circumstances of this case regard should be had, as it can be under s 60CC(3)(m), to the fact that it was the mother who chose, and was ultimately permitted, to move the children a very great distance from the father’s present residence, and thus she must bear a significant responsibility or obligation to ensure that they are able to spend time with their father. It is true that at the present time the father is, as the Federal Magistrate found in [19] of his reasons, in “the strongest financial position” of the parties, with an income of approximately $89,000 per year and being able to share some expenses with his new partner. However, he pays child support, presumably at the assessed level, and in my view, it could not be said that his financial position is such that he should have to pay all, or even the bulk of, the children’s travel costs. Clearly it could only be just in the circumstances of the case that the mother find a way to make a significant contribution to such costs.

To the extent that it can be agreed that to impose such an obligation on the mother in her present poor financial circumstances will impact adversely on the children in a material sense, it can, in my view be equally strongly argued that a failure by the mother to contribute to the travel costs will only increase any feelings of hostility and bitterness which the father may have towards the mother because of her having moved the children so far away from him, and this would also be likely to have an adverse impact on the children.
The mother’s primary proposal is that once her income reaches $1,300 per week, she would be prepared to pay half the children’s travel costs. However, as I suggested in my earlier discussion of the grounds of appeal, the difficulty with that proposal is that she may never earn that level of income, which is a relatively high level of income, and in any event and without intending to comment adversely on the mother, income levels can be contrived.
As discussed with counsel at the hearing of the appeal, the commencement of the mother’s obligation to contribute to the travel costs can only realistically be tied to an income amount or to a defined starting date. As I have just said, and again stressing that I do not intend to make any adverse comment about the mother, the simple fact is that income levels can be contrived. The only satisfactory approach therefore has to be a defined starting date.
Accordingly, I propose to adopt the mother’s alternative proposal being that in each two year period beginning 1 January 2014, she pay for three of the seven return trips (being the winter holidays in each year and the first summer holidays in odd-numbered years.)
I appreciate that this proposal will result in the father paying for one more return trip in each two year period. But I understood from both counsel that an arrangement whereby each party pays half of a particular return airfare may well have great practical difficulties and should not be adopted. In these circumstances, I consider it appropriate, having regard to the father’s greater financial capacity, that he pay for the additional return airfare.
In adopting the mother’s alternative proposal, I accept that her present financial position is poor. But it has to be remembered that she chose to move the children, and must be taken to have understood that in doing so there would be costs involved in ensuring that the children were able to spend time with their father. How she finds the necessary funds for her to contribute is a matter entirely for her.

Procedure for the making of new orders

It was put to me at the hearing of the appeal that if I was to allow the appeal and re-determine the matter myself, I should, in the making of the new orders, include certain of the machinery type orders which were contained in the Orders Sought section of the mother’s notice of appeal. I then indicated to counsel that when I delivered my judgment in relation to the appeal, it would contain only draft orders, and that I would deliver the judgment at a telephone hearing at which arrangements could be made for the final making of orders once counsel had had the opportunity to consider the draft orders. Accordingly, the orders which appear at the commencement of these reasons for judgment are in draft form only.

Costs of the Appeal

Having regard to the submissions made in relation to costs at the conclusion of the hearing of the appeal, I consider that the circumstances do not justify the making of any costs order, and accordingly, each party should bear his or her own costs of the appeal. In these circumstances, and given that the appeal can be said to have succeeded on a question of law, I propose to grant each party the appropriate certificate under the Federal Proceedings (Costs) Act1981 (Cth).

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn delivered on 4 April 2013.

Associate: M. Love

Date: 4 April 2013