Mendicino & Mendicino (Contravention)

[2015] FamCA 1179

FAMILY COURT OF AUSTRALIA

MENDICINO & MENDICINO (CONTRAVENTION) [2015] FamCA 1179

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal – Where the father makes an oral application to have the mother’s contravention application summarily dismissed – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Mendicino

RESPONDENT: Mr Mendicino

FILE NUMBER: BRC 875 of 2013

DATE DELIVERED: 22 December 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 December 2015

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Hopgood Ganim

Orders

1. That the respondent father’s oral application for summary dismissal of the applicant mother’s Contravention Application is dismissed.

2. That the said Contravention Application and the Amended Application in a Case filed 7 December 2015 be adjourned for further hearing at 10.00 am on Friday, 16 March 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mendicino & Mendicino 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 BRISBANE

FILE NUMBER: BRC 875 of 2013

Ms Mendicino

Applicant

And

Ms Mendicino

Respondent

REASONS FOR JUDGMENT

1. On 20 July 2015, just before a trial listed for ten days commenced in this Court, property adjustment and parenting orders were made by Kent J with the consent of the mother and father. Now, just five months later, the mother and the father are parties to contravention proceedings commenced by an application filed on 23 October 2015 by the mother.

2. The mother’s contravention application, in which she asserts contravention by the father of the primary parenting order made 20 July 2015, was listed for hearing by me on 15 December 2015. At the same time as the mother filed the contravention application, she filed an Application in a Case in which she set out orders she was seeking in respect of parenting matters. On 7 December 2015, the mother filed an Amended Application in a Case in which she amended the orders she sought in her earlier Application in a Case in respect of the parenting matters.

3. When the matter was called on for hearing at 10:00 am on 15 December 2015, the mother appeared without legal representation and the father was represented by Mr Grahame Richardson SC instructed by Hopgood Ganim Lawyers. The father was not present in Court, but rather was said to be in the air in transit from overseas to Brisbane, returning from a business trip the Court was told was booked on 30 July this year, well before the mother’s contravention application was filed.

4. At the outset of the hearing, Mr Richardson informed the Court that he wished to make submissions in support of an oral application that the mother’s contravention application be summarily dismissed. Firstly though, he asked if the mother could clarify whether the orders she seeks as set out in her Amended Application in a Case filed 7 December 2015 are actually the orders she seeks from the Court in the event that the father is found to have contravened the primary parenting order without reasonable excuse as alleged or whether that is a separate stand-alone application. Mr Richardson informed the Court that the mother’s answer would have some bearing on the position he took on behalf of the father in respect of the Amended Application in a Case.

5. The mother, when asked by the Court, confirmed that the orders she seeks in the Amended Application in a Case are the orders she asks the Court to make in the event that the father is found to have contravened the primary order without reasonable excuse as she alleges he has done. Apparently satisfied by that answer, Mr Richardson informed the Court that he would simply be making submissions that the mother’s contravention application should be summarily dismissed.

6. I heard those submissions and those of the mother. After hearing the submissions, I informed the mother and the father’s legal representatives that my preliminary thoughts were that I did not accept Mr Richardson’s submissions and that I would be likely to proceed to hear the contravention application. I informed them that because I had another contravention application waiting to be heard that day and also because I would not be able to proceed with the mother’s contravention application in the absence of the father being in the Court in person, I would reserve my judgment and deliver it at a later time. I then ascertained a date in March next year that would suit the mother, the father and Mr Richardson for the matter to be adjourned to for hearing if that was to be the outcome, as I told them I expected it would likely be, and I reserved my decision on the summary dismissal application.

7. Having considered the matter further, I have determined to dismiss the father’s summary dismissal application and to adjourn the matter for hearing on 16 March 2016. These are my reasons.

The relevant parts of the primary parenting order

1. By her contravention application, the mother asserts that the father contravened paragraphs 15 and 17 of the primary parenting order when at 5:31 pm on Monday 5 October 2015, he, without reasonable excuse, did not allow the mother to collect the four children of the marriage from his residence.

2. Relevantly, paragraphs 15 to 18 of the primary parenting order of 20 July 2015, made with the consent of the parties, provide as follows:

   Time with children

   15.The children shall live with the mother and father in a week about equal shared care arrangement, with changeovers to be effected each Monday.

   16.For the purposes of handover, the parent who shall commence spending time with the children shall collect them from their respective schools during school days or from the (sic) otherwise from the other parent’s residence.

   17.The parenting time detailed in paragraph 15 is suspended during gazetted school holidays but shall recommence as if the holiday period had not taken place, save that for the resumption of school in January each year, the parent who did not have the children in their care at the conclusion of the December / January school holidays shall commence their time with the children in the first week of the first school term (such that if the children are to be with the father for the first week, their time with him will commence on the first Monday pursuant to paragraph 15).

   18.      Unless otherwise agreed, for the purposes of school holiday periods:

   (a)For the Term 1 / Easter Holidays (including Good Friday and Easter Monday) in each odd year, the children will spend time with the mother and in each even year, the children spend time with the father;

   (b)For the Term 2 / June/July holidays in each year, the children will spend time with the father in each odd year and with the mother in each even year;

   (c)For the September/October school holidays, the children will spend time with the parents as follows:

   (1)The first half with the father in even numbered years and the second half in odd numbered years; and

   (2)The second half with the mother in even numbered years and the first half in odd numbered years.

   (d)      For the December / January holiday period:

   (1)The first half with the Father in even numbered years and the second half with the Father in odd numbered years;

   (2)The second half with the Mother in even numbered years and the first half with the Mother in odd numbered years;

   (e)Subject to paragraph 18(f) the school holiday period is deemed to commence at 3.00 pm on the last day of school and end at 5.00 pm on the day immediately prior to school recommencing.

   (f)For the purposes of calculating the school holidays, the school holidays shall start only when all of the children have commenced school holidays and will end on the day before whichever child starts school first in the next school term.

   (g)For the purpose of changeovers during school holiday periods, the father will collect the children from the Mother’s residence at the start of his time with the children and the Mother shall collect the children from the Father’s residence at the start of her time with the children.

Relevant factual matters

1. There is no dispute that the 2015 Queensland September/October school holidays commenced when school finished on Friday, 18 September 2015 and that school recommenced on the morning of Tuesday, 6 October 2015.

2. There was no argument made that the school holidays were to be “calculated” other than pursuant to paragraph 18 (e) of the primary order. Accordingly, they were, in this case, “deemed to commence” at 3:00 pm on Friday 18 September 2015 and to “end” at 5:00 pm on Monday, 5 October 2015 (which was a Public Holiday in Queensland).

3. It was also common ground that the father had all four children in his care pursuant to paragraph 15 of the primary order for the last week of school term 3, from the afternoon of Monday, 14 September and that the mother collected them on the afternoon of Friday, 18 September for them to spend the first half of the school holidays with her in accordance with paragraph 18 (c) (2) of the primary order.

4. The mother’s birthday is in late September. That day fell in the second half of the September/October school holidays, when the four children were in the father’s care in accordance with paragraph 18 (c) (1) of the primary order.

5. In her affidavit, the mother deposed to receiving an email from the father on 24 August 2015, well before the September/October school holidays. She exhibited to her affidavit what she said is a copy of that email. In that, the father said:

   How about I keep the kids for the first week back to you on Friday the 25^th of September. I then start my school week on Tuesday the 6^th (5^th public holiday) of October after school.

   Happy to do this every year so they will spend your birthday with you.

6. The mother said she replied by email on 31 August 2015 and a copy of the email she said she sent was also exhibited to her affidavit. Relevantly, it said:

   Let’s keep it as per court orders please and as we have been doing.

7. The mother exhibited a copy of another email she said she sent shortly after that one. In it, she said:

   Thanks for the thought though.

8. The mother said that she received another email from the father later on 31 August 2015. She exhibited what she said was a copy of that email. Relevantly, in that email, the father said:

   Can they go back to you on the 12^th October and start the week about then.

   I have international trips planned around those dates and will not be here for some of my weeks if not. This was organized before any knowledge of court orders.

9. The mother deposed to not replying to that email request as she had made her “position clear earlier”.

10. The mother said that she received another email from the father on 14 September 2015. She exhibited what she said is a copy of that email. Relevantly, it said:

    I will not have [child 1] this year for her birthday weekend. I am in Sydney that weekend and [child 1] would really like to join me with a few selected friends. I would like to pick her up from school on Friday the the (sic) 13^th Nov please.

11. Child 1’s birthday is 14 November. If the children’s week about time with each parent was to start in term 4 by them spending the first week of term with the mother, then they would be due to spend the weekend of 14 and 15 November with the father.

12. The mother said she responded to the father by email sent to him on 16 September. She exhibited what she said is a copy of that email. Relevantly, in that, she said:

    I am a little confused.

    You will have the children that weekend.

    Please refer to Consent Orders, point 17 (Time with Children).

    I have the children first week back of school Term 4.

    Therefore you may do as you wish that weekend.

13. In that email, the mother also pointed out that another paragraph of the primary order provides for the children to spend a few hours with the parent they are not living with on each of their birthdays and she asked the father if she could “have [child 1] for a few hours on [the morning of her birthday]”. She said she did not receive a reply from the father.

14. The mother exhibited what she said is a copy of a letter that was written by Hopgood Ganim Lawyers to the solicitors who had previously acted for the mother bearing the date 29 September 2015. It was forwarded to the mother by those solicitors that same day. Relevantly, that letter included the following:

    We understand that there may be some confusion with regard to the operation of the order in relation to school holiday time.

    For the sake of clarity we confirm that pursuant to order 17 of the orders the operation of order 15, being the time that the parents spend during term time with the children, is suspended during gazetted school holidays.

    We note that the operation of order 15 is to recommence as if the holiday period has not taken place. This order is subject only to arrangements in relation to the December/January school holiday period, following which the children shall commence the school term with the parent that they did not spend the last half of the school holiday period with.

    Accordingly the children shall remain in the care of their father until Monday 12 October 2015. 

15. The mother exhibited what she said is a copy of her reply to that letter, which is dated 1 October 2015. It appears to have been sent by e-mail. Relevantly, it said:

    Noting that the operation of order 15 is to recommence as if the holiday period has not taken place, and noting that the children were in the care of your client the last week of Term 3, it is my understanding that the children commence the first week of Term 4 (Monday 6 October) with me. In this instance, the children will return to your client’s care on Monday 12^th October and not returning to me as your client suggests.

    I would also like to confirm with your client that as Monday 6^th October is a holiday for school, I will collect the children at 5pm from his residence.

    Could you please confirm with me that your client agrees with both?

    I look forward to your urgent response.

16. The mother said that she then went to collect the children from the father’s residence at 5:00 pm on Monday, 5 October 2015 and, whilst on the way, sent the father a telephone text message that she was on her way to collect the children. She exhibits what she said is a copy of the telephone text exchange between them that day, after her initial message to the father. The father’s reply to her says:

    As discussed children can be picked up after school on Monday the 12^th.

17. The mother’s response to that was:

    As discussed???? There was no discussion. This is Per court orders.

18. A little later she texted:

    I am outside waiting to collect the children. Thanks.

19. In response, the father texted:

    12^th [mother’s first name]. Will send more detailed email tomorrow

20. The mother sent a response saying:

    Ok [father’s first name]. Please know I responded to your legal firm on Wednesday and you are in breach of the Court orders.

21. She said in her affidavit that she “had no choice but to leave [the father’s] residence without [the] children” that day.

22. The mother also exhibited what she said was a copy of Hopgood Ganim Lawyers’ response to her e-mailed letter of 1 October. It was dated 6 October and also appears to have been e-mailed to her. It is noted that is the day after the day on which the mother had made it clear that she was expecting to collect the children and five days after she had written asking for an urgent response. Relevantly, that letter said:

    We disagree with your interpretation of the Order and the children will be returned to you under the order on Monday 12 October 2015 where after the week about arrangements under paragraph 15 of the order will continue.

Mr Richardson’s submissions

1. In support of the oral application for a summary dismissal of the mother’s contravention application, Mr Richardson submitted that paragraph 17 of the primary order is to be interpreted in the same way that was asserted by Hopgood Ganim Lawyers in the letter to the mother of 29 September 2015. He submitted that the plain effect of paragraph 17 is that when the school holidays ended at 5:00 pm on Monday, 5 October 2015 the children’s time with their parents was to recommence as if the holiday period had not occurred and, as such, given they were with their father at the time the holidays had started and his week with them had been interrupted before it concluded, they were then to stay with him from 5:00 pm on Monday 5 October through to Monday afternoon 12 October before going to the mother for the week with her pursuant to paragraph 15.

The interpretation of the orders

1. As the mother pointed out in oral submissions opposing the summary dismissal application, it appears, like her, the father clearly thought, at least initially, as evidenced by the content of his e-mails to the mother of 24 and 31 August, 2015, that the orders required the children to be with the mother for the first week of school term 4 from Monday, 5 October to Monday, 12 October. 

2. However, it is not what the parties both think an order means that determines what it means. It is the plain words used, construed in the context of all the words, sentences and paragraphs contained within the same primary order that determines the meaning of the order: In the Marriage of Langford and Coleman (1993) FLC 92-346 at 79,670-671 per Nygh J; Yunghanns & Ors v Yunghanns & Ors; Yunghanns (1999) FLC 92-836; and Fooks and Clark (2004) FLC 93-183.

3. Read in its entirety, along with paragraphs 15, 16 and 18 of the primary order, I interpret paragraph 17 to plainly provide that, save in respect of the first week of the school year after the December/January school holidays, the children are to spend the first week of school terms with the parent who they did not spend the last week of the previous school term with, regardless of how the school holidays in between have been spent by them. 

4. As the children spent the last week of term 3 with the father, they were, on that interpretation of the primary order, to spend the first week of term 4 with the mother, to be collected by her from the father’s place at the end of those holidays at 5:00 pm on Monday, 5 October 2015. That one parent, this time the father, might have lost a weekend that the children would otherwise have spent with him but for the holidays interrupting his scheduled week at the end of school term 3 is, in my view, but a consequence of the fortuitous “swings and roundabouts” of the operation of the order that has the meaning that I consider it has. The random nature of that precise impact on the time the children spend with each parent is likely, in my view, to ultimately balance itself out, particularly given the manner in which paragraph 18 of the order provides for the children’s time with each parent during school holiday periods to be alternated from year to year.

5. Accordingly, on the interpretation I give to the primary order, the father was obliged to have facilitated a transition of the children from his care to the mother’s care at 5:00 pm on Monday, 5 October and he did not, despite being asked to. 

6. It follows that I consider, prima facie, he has a case to answer in respect of the mother’s contravention application. The matter will be listed for further hearing at 10:00 am on Friday, 16 March 2016. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 December 2015.

Associate: 

Date:  22 December 2015