Melounis & Melounis
[2023] FedCFamC1F 664
•31 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Melounis & Melounis [2023] FedCFamC1F 664
File number(s): SYC 7199 of 2019 Judgment of: KARI J Date of judgment: 31 May 2023 Catchwords: FAMILY LAW – EX TEMPORE REASONS – Contravention Application – Where there is ambiguity in the interpretation of the final orders - Application dismissed Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 31 May 2023 Place: Adelaide Applicant: Litigant in person Respondent: Litigant in person ORDERS
SYC 7199 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MELOUNIS
Applicant
AND: MS MELOUNIS
Respondent
order made by:
KARI J
DATE OF ORDER:
31 MAY 2023
THE COURT ORDERS THAT:
1.That the Contravention Application filed on 17 March 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
KARI J
The matter comes before me today in relation to a Contravention Application filed by the father on 17 March 2023. That Contravention Application pleads twelve counts. The Contravention Application was filed with respect to final orders made by Judge Morley on 24 May 2022 (Melounis & Melounis [2022] FedCFamC2F 250).
The Contravention Application, while there are several counts pleaded, has at its heart a dispute over when the week-about time spending regime, as provided for in Order 4 of the final orders, is to resume after the term 4 school holidays in each year; namely, the resumption of time in January of the following year after the Christmas school holidays.
The matter came before me for a mention in relation to the contravention application on 27 April 2023, having been managed by a registrar prior to that hearing. At the hearing on 27 April 2023, as recorded in the notations to the orders that day, it became clear to me that the parties did not agree the interpretation of the orders made by Judge Morley on 24 May 2022. To that end, I set out with some detail in the notations of the orders of 27 April 2023 each of the parties’ respective interpretations as to when the week-about regime should have resumed after the Christmas school holiday period in the 2023 year.
The issue for the parties, however, is not only is there a dispute as to when the week-about regime should have resumed in the 2023 year, but it has a prospective and ongoing nature about it because, of course, the week-about regime will resume every year after the school holidays, and the parties have the potential for dispute each and every year as to when the week-about regime is to resume after the Christmas school holidays.
The difficulty from the Court’s perspective is that Order 6 of the final orders made on 24 May 2022 talks about the first occasion of equal time that is to occur. The orders do not address or focus whether and/or how the week-about regime is to either be suspended over the school holidays and/or where it is to resume in each school year after the Christmas school holiday period.
Having identified that difficulty with the final orders made on 24 May 2022, at the hearing on 27 April 2023 the parties indicated to the Court that they were scheduled to have a mediation with respect to the substantive proceedings before the Court. The substantive proceedings before the Court, at this stage, relate to both property proceedings but also, now, parenting proceedings in circumstances where on 16 February 2023 when the respondent father filed a response to the mother’s application for final orders with respect to property proceedings, the father also sought final orders with respect to the parenting arrangements for the children.
The orders sought in that document seek a variation to Order 4 of the final orders, that variation being something other than the week-about arrangement that had been ordered on 24 May 2022.
At this juncture, neither of the parties have sought in the substantive proceedings to clarify the orders made by Judge Morley on 24 May 2022. The only application that I am seized of is the contravention application filed by the father on 17 March 2023.
While the Court has power, pursuant to section 70NBA, to vary parenting orders, I do not consider that this forum is the appropriate forum for that to occur in circumstances where there are substantive parenting proceedings before the Court that will make their way through the system.
It strikes me that one or both of the parties will need to seek a variation of the final orders that are presently in place in relation to the children to deal with the problem that has arisen on this occasion. If they fail to do so, then it is foreseeable from my perspective that these problems will continue to arise each and every January when the school year resumes and the week-about time spending provided for in Order 4 of the final orders resumes.
In all of those circumstances and particularly because, from my perspective, there is nothing in the final orders made on 24 May 2022 that deals with the resumption of the week-about time spending regime in each year nor the cessation of the week-about time spending regime, it is my view that where there is ambiguity in the interpretation of the final orders, the contravention application must, as a consequence, fail.
For those reasons, I plan to dismiss the contravention application that has been filed. That brings an end to the contravention proceedings.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 11 August 2023