MTI v SUL [No 3]
[2008] WASCA 19
•5 February 2008
MTI -v- SUL [No 3] [2008] WASCA 19
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 19 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:161/2006 | 14 DECEMBER 2007 | |
| Coram: | STEYTLER P WHEELER JA | 4/02/08 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | MTI SUL |
Catchwords: | Appeal Family law Whether reasonable prospect of success Costs Meaning of "suspended" Turns on own facts |
Legislation: | Family Court Act 1997 (WA), s 66, s 66A, s 66B, s 66C, s 70A, s 89AA Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f), (g) |
Case References: | MTI v SUL [No 2] [2007] WASCA 240 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MTI -v- SUL [No 3] [2008] WASCA 19 CORAM : STEYTLER P
- WHEELER JA
- Appellant
AND
SUL
Respondent
- CACV 133 of 2007
- Appellant
AND
SUL
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : PULLIN JA
Citation : MTI -v- SUL [No 2] [2007] WASCA 240
File No : CACV 161 of 2006
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : MARTIN J
Citation : MTI and SUL [2006] FCWA 141
File No : PT 1025 of 2004
Catchwords:
Appeal - Family law - Whether reasonable prospect of success - Costs - Meaning of "suspended" - Turns on own facts
Legislation:
Family Court Act 1997 (WA), s 66, s 66A, s 66B, s 66C, s 70A, s 89AA
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f), (g)
Result:
Appeals dismissed
Category: B
(Page 3)
Representation:
CACV 161 of 2006
Counsel:
Appellant : In person
Respondent : Ms M M Wadsworth
Solicitors:
Appellant : In person
Respondent : Kott Gunning
CACV 76 of 2007
CACV 133 of 2007
Counsel:
Appellant : In person
Respondent : Ms M M Wadsworth
Solicitors:
Appellant : In person
Respondent : Kott Gunning
Case(s) referred to in judgment(s):
MTI v SUL [No 2] [2007] WASCA 240
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
(Page 4)
- JUDGMENT OF THE COURT:
CACV 161 of 2006
1 Application 161 of 2006 is an application to review a decision of Pullin JA made on 28 August 2007. His Honour concluded that none of the appellant's proposed grounds of appeal from a decision of a judge of the Family Court of Western Australia had a reasonable prospect of succeeding. His Honour therefore refused leave in relation to all grounds and dismissed the appeal.
2 There are three grounds of appeal. One can be disposed of at once. It is that "[t]he appeal was heard by a single judge instead of three judges". Rule 43(2)(f) and (g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that a single judge may strike out any ground which does not have reasonable prospects of succeeding and may dismiss an appeal if none of the grounds has a reasonable prospect of succeeding. His Honour therefore had jurisdiction to deal with the matter and to make the orders which he did. "Reasonable prospects of succeeding" are explained by the decision of this court in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. His Honour applied that test. There is therefore no substance in ground 1.
3 The remaining two grounds effectively assert that Pullin JA should not have formed the view which he did about the proposed grounds. We therefore consider the course of proceedings below and the appellant's proposed grounds of appeal before Pullin JA.
Background to the application
4 The appellant and the respondent commenced a relationship in about November of 2002 and began living together in February of 2003. They married in an Islamic ceremony in August of 2003 and separated in February of 2004. The child of the relationship was born on 26 March 2004. The first application filed by the appellant was in February or March of 2004, and appears to have been concerned with his desire to be present at the birth of the child. Thereafter, he had apparently filed three applications for final orders and 14 applications, or amended applications, of an interlocutory nature, by November 2006. Some amendments were minor, while others were not. That is plainly a significant number of applications relating to a child who was not yet 3 years of age.
5 The application filed on 10 November 2006 by the appellant sought shared responsibility for the care of his daughter, and a variety of other
(Page 5)
- conditions. The respondent mother sought that the child live with her and that she have sole responsibility for her day-to-day and long-term care, welfare and development, but made also detailed provision for significant contact between the child and the appellant, which contact would increase once the child had commenced formal schooling. She also sought orders that the appellant keep her informed at all times of his current residential address and telephone number, an order restraining him from removing the child from the State without her prior written consent and that he be declared a frivolous and vexatious litigant so that he could not, without the leave of the Family Court of Western Australia, institute any further child welfare proceedings.
6 Both the appellant and the respondent were born overseas, the appellant in Egypt and the respondent in Korea, and both had significant family connections in those places. The appellant and the respondent had travelled together to Egypt at one stage and had spent some time with the appellant's family. In the light of those facts, the learned trial judge made orders that both parties should be restrained by injunction from removing the child from the Commonwealth of Australia without prior written consent of the other party, or leave of the court. We note also that there was a religious issue, in that the appellant was Muslim and the respondent Catholic, so that it was necessary that the orders make special provision for the child to spend particular festivals and feast days of religious significance with each parent. The respondent's proposed orders had made some provision in that regard.
7 In very broad terms, the appellant's concerns were that he considered that the respondent did not care properly for the child. His affidavits descended into considerable detail about clothes the child had been wearing at the time when she came to visit him, which he alleged were unsuitable, minor illnesses from which she had suffered, scratches and bruises which he had observed upon her, and matters of that kind. He considered that the respondent's brother, who lived with her, was an unsuitable person for the child to associate with because of views which the appellant had about the brother's character, and because the brother smoked and the appellant alleged that the child, on occasions, smelt of smoke and must therefore have been exposed to passive smoking. He also objected to what he regarded as interference by the respondent's mother, and had views about the inability of the respondent's mother to be able to care for the child, even on a very temporary basis, if the child were to be left with her. He was concerned that the respondent had suffered from depression and had, at a prior time, had suicidal thoughts.
(Page 6)
8 The respondent, on the other hand, acknowledged that she had had some issues involving mental health and depression, but her evidence was that, in part, they stemmed from the appellant's controlling and violent disposition when she was with him, and her concern about his controlling behaviour towards her after they had separated. Her evidence was also that she had sought counselling assistance, had made progress in that respect, and would seek assistance again as necessary. An affidavit from a clinical psychologist supported these assertions. There was annexed to the respondent's affidavit a letter addressed to the appellant, from a child health nurse, indicating that the child's development appeared to be normal and that healthy toddlers would have minor scratches and bumps from time to time, and a letter from a general practitioner to the effect that the respondent had not unduly delayed in seeking medical attention for the child when she was ill.
9 The respondent's position appeared to be that she accepted that it would promote her daughter's welfare if her daughter were to have contact with the appellant, but that she had certain concerns which should be taken into account in determining the type of contact orders made. Those concerns were that the appellant, in his obsessive monitoring of the way that she cared for the child, was showing a lack of understanding of normal child development and behaviour, and a focus on controlling the respondent rather than on promoting the welfare of the child; and having regard to his past behaviour towards her, she had some concerns that his behaviour might, in the future, be emotionally unsettling for the child, if, for example, he became angry. A further concern was that the appellant's repeated applications were emotionally and financially draining, so that she sought orders that would ensure, so far as possible, finality.
Proceedings in the Family Court of Western Australia
10 It was against that background that the matter came before the learned trial judge. The respondent was legally represented. The appellant represented himself.
11 At the hearing of the application on 20 November 2006, the appellant applied for an adjournment of the hearing. That application was made on the basis that an affidavit of the respondent had only arrived in the post some 14 days prior to the hearing, so that he needed further time to investigate some matters which it contained. It was not in dispute that, had he chosen to do so, the respondent could have had access to the affidavit at an earlier time. Her Honour said to the appellant, "But you could have had it because ... they offered it to you". The appellant
(Page 7)
- responded, "It is not my duty to serve the respondent affidavit on myself. It is her responsibility to send it to me" (green AB 172). There was then some discussion involving the learned trial judge, the appellant, and the respondent's counsel. The position appears to have been that the greater part of the material in the "late" affidavit merely replicated material available in earlier affidavits, much of it being the product of "cut and paste" from those earlier affidavits.
12 The appellant said that two new things which emerged from the affidavit were that it contradicted some material in earlier affidavits of the respondent, and that he wanted to get some evidence from Korea about the respondent's brother. It is not clear how the second matter arises from the affidavit, since it appears that the appellant was always aware of the respondent's brother. As to the inconsistency, her Honour pointed out that the appellant would be able to cross-examine the respondent.
13 Her Honour determined that she was not prepared to "adjourn the case entirely" (green AB 180). She explained to the appellant that she would propose to start hearing the application. She noted, more than once, that she would be prepared to reconsider that position if the point was reached where she had concerns that relevant material was not before her, or if she considered that he should have been given further opportunity to consider the evidence, or to produce material.
14 Her Honour asked the appellant a variety of questions designed to clarify the relief which he sought. She then invited the appellant to enter the witness box, and asked him a number of broad and open-ended questions directed to the relevant issues in the case. For example, she said, "One of the things that [the respondent] has raised about your involvement with the child is that she says that you don't really understand a child this young. What do you want to say about that?" (green AB 189)
15 When it appeared to her Honour that all relevant issues had been canvassed, counsel for the respondent began to cross-examine the appellant. He asked her Honour what was going on and said, "I thought I am going to give my talks first" (green AB 230). Her Honour explained that the affidavit material was already before her and that it was not necessary for him to go through everything that was in the affidavits. When he said that there were a lot of things that were not in his affidavits, she advised him that those matters should have been mentioned in the affidavits. She explained that if there was anything else that he thought he should be able to say in response to the respondent's affidavits, her Honour would allow that. She explained that, in addition, after
(Page 8)
- cross-examination, he would have an opportunity to say anything he wished in response to questions asked.
16 The appellant then indicated that he wished not to continue with the trial any longer. He said that her Honour could "make up [her] decisions and [he would] appeal" (green AB 231). Her Honour invited him to tell her what the problem was, and he responded by asking for her to make an order so that he could go downstairs. Her Honour said, on more than one occasion, that if the appellant felt that he had not had an opportunity to make an opening statement, if that was what he was talking about, then he could do so (green AB 232). However, the appellant flatly refused to have anything further to do with the proceedings and left the court. Her Honour then heard evidence from the respondent, and closing submissions. The orders which her Honour made were essentially those which had been sought by the respondent.
The appellant's grounds of appeal from Martin J
17 The appellant's proposed grounds of appeal, which Pullin JA concluded did not have a reasonable prospect of succeeding, fell into a number of categories. Grounds 1 and 2 are concerned with her Honour's failure to allow the appellant an adjournment. Grounds 3 and 6 appear to be concerned with an alleged denial of natural justice to the appellant, it being asserted that her Honour refused to let him present his case during the trial, and with an error in her Honour's reasons about how the appellant had behaved during the course of the trial. Grounds 4 and 5 submit that her Honour made an error of fact in coming to the conclusion that the appellant "was violent". Ground 7 complains that her Honour failed to identify the applications which she found to have been vexatious. Grounds 8, 9, 11 and 14 relate to allegations of error in particular respects. Ground 10, in essence, complains that her Honour was biased towards the respondent and "dismissed lots of facts and evidence". Ground 12 deals with the effect of the trial orders and their alleged lack of precision. It is convenient to deal with that matter when we deal with CACV 76 of 2007. Ground 13 is unintelligible. We do not propose to mention it further. We propose now to deal with each of the categories of error which the appellant identifies, rather than dealing with the grounds individually.
The adjournment
18 During the course of the argument before us, the appellant conceded that the orders which had, in fact, been made about the affidavits provided for their filing and "exchange". He did not exchange his affidavit with the
(Page 9)
- respondent's solicitors. Rather, the solicitors, having become aware that it had been filed, obtained a copy from the court file at some stage.
19 The appellant's complaint is apparently that once the respondent's solicitors came into possession of a copy of his affidavit, he asserts that they were under a duty to post the respondent's affidavit to him, notwithstanding that he had not attempted to comply with the order for exchange. He did not dispute receiving correspondence from the respondent's solicitors in which they sought to exchange affidavits.
20 It appears that her Honour was therefore correct in forming the view that the appellant had had an opportunity, at an earlier time, to obtain a copy of the respondent's affidavit, but had not availed himself of it. She was also right in her view that it did not appear that the matters which the appellant told her he wished to investigate were of such significance as to require an adjournment. Further, she indicated a willingness to reconsider her decision and to adjourn if necessary as the trial progressed. By his later conduct, the appellant himself put it out of his hands to make the further application which her Honour contemplated might have been open to him. These grounds lack any substance.
The natural justice point
21 It is plain from the portion of the transcript to which we have referred, that, whatever the misunderstanding which may have arisen about the appellant's right to make an opening statement, her Honour would have afforded him an opportunity to speak had he not withdrawn from the court. The appellant's inability to cross-examine the respondent and to present his case further was due to his own decision, not to any failure on the part of her Honour to accord natural justice.
22 Before us, the appellant said, in effect, that from the moment her Honour entered the courtroom, he understood her to be biased against him. He based this view upon her expression. No such bias appears from what was said at the trial. Nor does any bias appear to emerge from her Honour's reasons. Nor is there any material error in her Honour's observations concerning the appellant's conduct in the course of leaving the courtroom. These grounds cannot succeed.
The finding of "violence"
23 We have noted that allegations of violence were made by the respondent. Her Honour took the view that the presumption of equal shared parental responsibility had been rebutted in this case "because of
(Page 10)
- the father's attitude to the mother, which has, in the past, resulted in some family violence" [89]. It was therefore the appellant's attitude, rather than the violence, which led directly to her Honour's decision. As to that, it does appear from her Honour's reasons, that the appellant is hyper-vigilant concerning, and disproportionately critical of, the respondent's parenting. Her Honour's view in that respect stemmed largely, it appears, from a consideration of the nature of the criticisms made by the appellant, together with the evidence of the respondent (which was supported by reports of health professionals), that the child had not suffered more than the usual minor injuries and illnesses. The view reached by her Honour was open to her.
24 So far as any family violence is concerned, that seems to have been, at most, a secondary part of her Honour's reasoning. What her Honour said about family violence was the following:
As to any family violence involving the child, or a member of the child's family, the mother asserts that the father was violent to her, especially prior to the birth of the child and this included limiting her freedom of movement and causing physical injury by hitting her. She has reported incidents to the police, but not until October 2004, long after she alleges they occurred. Having had an opportunity to observe the way the father responds if crossed, I have little doubt that he has been responsible for family violence as defined in the Family Court Act, being:
"conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety."
However, I am satisfied that there has not been any specific instances of violence since the child's birth. There is no family violence order in force. [79]-[80]
25 Her Honour also said, at [58] and [59]:
It was not in dispute that it was to the benefit of the child to have a meaningful relationship with both her parents.
As to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence, the mother strongly asserts that the father has been violent to her. I accept that the father, at the very least, has been very controlling in his actions towards the mother. However, I do not accept the child is at any risk of harm from him.
(Page 11)
26 It is plain that her Honour was not making a finding that there had been any specific instances of violence, at least since the child's birth. Although it would have been preferable for her Honour to have expressed herself more clearly, the flavour of her findings suggests that she found, in effect, conduct which caused an apprehension on the part of the respondent about her personal wellbeing or safety, rather than any actual physical violence. It appears from the transcript of the hearing before her Honour that the appellant was argumentative and forceful, and his conduct in leaving the courtroom in retaliation for her Honour's failure to allow him to speak suggests that he is unused to calm negotiation and compromise. Having read those materials, and having ourselves observed the appellant during the course of the appeal, it seems to us that it was well open to her Honour to have reached the view that, even without any conscious intention on the appellant's part to do so, his conduct may have resulted in the respondent feeling intimidated.
The restraint of vexatious proceedings
27 Pullin JA dealt with this ground in the following way (MTI v SUL [No 2] [2007] WASCA 240):
Ground 7 seems to be a complaint about the order that was made by the trial judge pursuant to s 242 of the Family Court Act. The appellant complains that the trial Judge failed to identify what vexatious applications were made by him. It is true that the trial judge did not identify particular applications, but it may be seen from [48] that the appellant filed an application for leave to appeal from an order which was struck from the list when the father did not attend and there is a reference to another application not attended by the father. There is no challenge to those findings, although the appellant now seeks to argue that he did attend on one of those occasions. I will accept the judge's findings in the absence of any proper challenge to her Honour's findings. The trial judge also accepted the respondent's evidence that the appellant had admitted 'trying on' applications in the Court. That finding is not the subject of a challenge in any of the grounds of appeal. In my opinion ground 7 has no reasonable prospects of success. [21]
28 There should be added to his Honour's remarks only the observation that the orders sought by the appellant have been largely unsuccessful and that, looking at the applications, it appears that they attempt to "micro-manage", in a way which is either not capable of any sensible enforcement, or unnecessary, or both, many details of the respondent's conduct. For example, by an application amended 17 March 2006, he sought orders that the respondent provide, during the appellant's visits with the child, that "the child be fully clothed, including shoes", a spare
(Page 12)
- set of clothes, and a variety of other items; and an order that the respondent "try to minimise the number of injuries and insect bites the child is exposed to by close supervision".
Particular issues - grounds 8, 9, 11 and 14
29 Ground 8 complains that her Honour erred in failing to order that the appellant have contact with the child for half of the summer school holidays. It is plain from the transcript of the hearing before her Honour that this was an order intended to limit disruption in the life of the child, who is still very young, and that her Honour contemplated that, at some time in the future, an order for contact for half of that holiday should be made. It was open to her to reach that conclusion.
30 Ground 9 concerns alleged discrimination on religious grounds. Because the appellant was not present at the conclusion of the trial, having absented himself, he was not able to put to her Honour the detail of the religious feasts for which he sought contact with the child. However, at a subsequent application, her Honour amended her orders in order to increase his contact with the child at his religious feasts. He also complains that the mother's contact with the child includes Boxing Day and Easter Saturday, neither of which is a religious feast. There is no evidence of religious discrimination. Rather, this ground demonstrates the appellant's approach, which is one of calculating to the minute the "fairness" of his contact, as opposed to the contact of the respondent, with the child.
31 Ground 11 contends that the orders made reduced contact between the appellant and the child. The orders were based upon the trial judge's view of the best interests of the child, having regard to her age and the various factors set out in s 66 to s 66C, s 70A and s 89AA of the Family Court Act 1997 (WA), to which her Honour specifically referred. The orders provided for an increase in the contact between the appellant and the child once her formal schooling commenced. Nothing has been put before us to suggest that it was not open to the trial judge to make those orders.
32 Ground 14 asserts that her Honour failed to examine certain issues relating to the respondent's brother and the respondent's mental health. However, her Honour had before her evidence from the respondent about these matters. Had the appellant remained at the hearing, he might have cross-examined the respondent about these questions. Her Honour acted appropriately on the evidence before her.
(Page 13)
"Bias"
33 No particulars are given of her Honour's bias, save that she is said to have "found incentive to praise [the respondent] in every point of her judgment and dismissed lots of facts and evidence before her". There is no specific challenge, under this ground, to any of the individual findings, other than by repeating other grounds. We are satisfied that it was open to the trial judge to make the findings complained of.
Ground 12
34 This ground relates to an issue with which we will deal shortly. However, as Pullin JA noted, if any confusion arises from the orders of the Family Court, it is open to the parties to approach that court to have them clarified.
Conclusion - CACV 161 of 2006
35 For the reasons given, in addition to those expressed by Pullin JA in his reasons dated 28 August 2007, we are satisfied that Pullin JA was correct in reaching that view that none of these grounds has a reasonable prospect of success. The application for review is therefore dismissed.
CACV 161 of 2006 - application for leave to issue subpoena
36 The appellant made an application in addition to this application for review, seeking leave to issue subpoenas requiring the production of certain medical and other records. The documents the subject of the proposed subpoenas do not relate to any issues in the appeal. They may potentially have been relevant at trial, or if the appeal had been successful, they may potentially have been relevant at a retrial. However, as they are not relevant to the appeal, the application is dismissed.
CACV 133 of 2007
37 This matter was listed before us for the appellant to show cause why the appeal should not be dismissed by reason of the appellant having failed to file the appellant's case in time and having failed to commence the appeal in accordance with the rules. The appellant told us he had some personal circumstances, unrelated to his conflict with the respondent concerning his daughter, which was of such a personal nature that he did not wish it to be mentioned in the presence of the respondent's solicitors. We are prepared to accept, for the purposes of this appeal, that there may have been some personal reason preventing the appellant from complying with the rules.
(Page 14)
38 We invited the appellant, so that we could consider this matter properly, to explain to us what it was that he would say in his appellant's case if it were filed. He gave us some indication in oral argument of his concerns, and subsequently on 17 December filed an appellant's case.
39 The substance of the appellant's appeal in this matter relates to a sum of $350 which he was ordered by a Family Court magistrate to pay by way of a contribution towards the respondent's costs. The magistrate made that order on the basis that the appellant had been unsuccessful in the majority of the matters which he sought.
40 He appealed the award of costs. Hearing that appeal, Martin J, in the Family Court, expressed the view that while neither party to the proceedings had been wholly unsuccessful, the appellant had pursued a number of applications which were unsuccessful and unnecessary, and had substantially increased the costs incurred by the respondent. Neither party was in a good financial position, but the mother was legally aided. It was her Honour's view that the award of $350 was not only just, but modest in the circumstances.
41 The appellant submitted to us that he had attempted to "resolve" a number of matters the subject of his applications with the respondent prior to making the application, so that he should not have to bear the costs of the unsuccessful application. However, it is plain that many of the matters should never have been the subject of an application at all. It is not apparent, for example, why the appellant should not purchase a spare set of clothes for the child to wear, if he is concerned that she has no spare clothes when she comes to stay with him. His attempt at "resolution" appears, from the materials before us, to have consisted of making a series of demands of the respondent, with which she did not comply.
42 Further, the appellant submits that, as some of the delays and adjournments in having his application heard were not his fault, he should not bear the cost of them. It appears that certain of the delays and adjournments were the fault of neither party, but resulted from the court not having time to deal with the matter on the date on which it was listed. Costs are not, of course, ordered to punish the unsuccessful party, but to compensate the successful party for the expense. There is no reason therefore why the respondent should not be compensated for the expense of the delay, whether it was the appellant's fault or not.
43 Finally, the appellant submitted that there was no evidence of how much the respondent had incurred by way of costs. However, Family
(Page 15)
- Court magistrates and judges are, no doubt, broadly familiar with the costs likely to be incurred in particular types of applications. There is nothing to suggest that the amount awarded was unreasonable. By the standard of litigation costs in this court the amount was very modest.
Conclusion - CACV 133 of 2007
44 We would therefore dismiss the appeal, on the basis that the appellant has failed to comply with the rules. There is no point in affording the appellant an extension of time, since there is nothing to suggest that he would be able to bring an appeal which had any prospect of success.
CACV 76 of 2007
45 This appeal concerns a refusal of a Family Court judge to make an order awarding the appellant an additional day of contact with the child in substitution for contact which was said to have been missed on 14 and 15 April 2007.
46 Before us, the appellant accepted that the respondent's solicitors had invited him to negotiate with the respondent about a "make-up" day, notwithstanding that it was not conceded that he was entitled to such a day. He had preferred not to accept that offer, since there was an issue of interpretation of the orders made by Martin J, which he wished to have clarified. The relevant orders read as follows:
3. The applicant father spend time with the child as follows:
(a) until the child commences formal full-time time schooling in 2009:
(i) commencing Wednesday 27 December 2006, each Wednesday from 9:00 am to 5:00 pm, but on the father's written nomination by 1 January 2007, on each Tuesday or Thursday from 9:00 am to 5:00 pm,
(ii) from 5:00 pm Saturday until 5:00 pm Sunday;
(iii) where the child's birthday does not occur during the times specified in paragraphs (i) and (ii) above, for up to four hours on the child's birthday;
(b) once the child has commenced formal full-time schooling in 2009;
- (i) each Wednesday from the conclusion of school until 7:00 pm;
(ii) each alternate. weekend from 9:00 am Saturday until 5:00 pm Sunday;
(iii) where the child's birthday does not occur during the times specified in paragraphs (i) and (ii) above but does occur on a weekend, for up to four hours on the child's birthday;
(iv) by telephone two afternoons per week;
(v) for the second half of each of the mid year school term holidays;
(vi) for two periods of one week during the end of year school holidays, with the applicant to notify the respondent in writing not less than 14 days prior to the proposed commencement of the week;
- (c) on Father's Day from 10:00 am to 4:00 pm;
(d) on the applicant's birthday for a maximum of four hours;
(e) from 10:00 am to 4:00 pm on the feast day following Ramadan and on the feast of sacrifice, provided it is not a school day after the child has commenced formal full-time schooling, with the applicant to provide the respondent with notification from the applicant's Mosque at least one month prior to the feast being due to commence in relation to Ramadan, and 10 days in relation to the feast of sacrifice, and with the applicant confirming the specific day of the feast by text message not less than 24 hours before the feast is due to commence
- 4. Where the applicant is due to be spending time with the child, that contact be suspended:
(a) in the second half of the mid year school holidays;
(b) on Mother's Day;
(c) from 3:00 pm on Christmas Eve until 3:00 pm on Boxing Day;
(d) from the Thursday before Easter until Easter Monday;
(e) on the Mother's birthday;
- (f) on Chinese New Year, with the Respondent to advise the Applicant not less than 10 days prior to Chinese New Year occurring of the precise date of the festivities
47 The relevant issue is the meaning of the word "suspended". The appellant asserts that if his contact is suspended, then the contact date to which he would otherwise have been "entitled" is merely deferred, and is to be made up at some other agreed time.
48 Reading the orders as a whole, however, it appears to us that a proper construction is that what is suspended is not the contact but the order for contact. For example, in relation to Mother's Day, when Mother's Day occurs, the order in order 3 that the father have contact until 5 pm Sunday is suspended from the evening before Mother's Day until the conclusion of Mother's Day. The order for contact ceases its operation, albeit only for that period. That is an ordinary English understanding of the word "suspended". As the order is not in operation for that period, there is no requirement for the appellant to have contact on that day, and nothing to "make-up".
49 There are three reasons for preferring that meaning of the word "suspended". One is that the orders do not provide any mechanism for making up days where there is a suspension. The second is that such a reading means that the orders will apply in the same way to both the appellant and the respondent. For example, where the father's birthday fell on a day which was not a day nominated in order 3(a)(i) and (ii), the appellant would, nevertheless, have the child for the stated period on the appellant's birthday and the mother would not be entitled to any "make-up" time. In precisely the same way, where the mother's birthday would fall on one of the days set out in order 3(a)(i) and (ii), then the mother would, nevertheless, have the child for that day and there would be no "make-up" contact. The final reason for understanding order 4 in that way, relates not so much to the natural meaning of the orders, read as a whole, as to the background against which the orders were made. It would not be likely, where detailed orders of this kind were made, in an effort to achieve as much finality as possible, that they would, nevertheless, leave the very substantial room for negotiation and conflict which would arise if there were to be "make-up" days in lieu of all of the days set out in order 4.
Conclusion - CACV 76 of 2007
50 We would therefore dismiss this appeal.
4
2
2