Orwin and Hansonn (No 2)

[2009] FamCA 1033

FAMILY COURT OF AUSTRALIA

ORWIN & HANSONN (NO. 2) [2009] FamCA 1033

FAMILY LAW – CHILDREN – application by the mother seeking that the father contribute towards her costs of travel for the purpose of spending time with the children – whether the order sought is a “parenting order” within the meaning of s 64B(2) of the Family Law Act 1975 (Cth) – best interests of the children – no order for the father to contribute further towards transport costs

FAMILY LAW – COSTS – where the father seeks an order for costs against the mother – where the father was not represented – where the mother was wholly unsuccessful – where the parties’ financial circumstances indicate it is just for each party to bear their own costs – no order made as to costs

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 66E & 117

APPLICANT: Ms Orwin

RESPONDENT: Mr Hansonn

FILE NUMBER: ADC 14 of 2007

DATE DELIVERED: 20 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 October 2009

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. The mother’s application for final orders filed on 30 April 2009 is dismissed.

2. No order in relation to costs are made.

3. It is directed that both parties attend a form of counselling at Relationships Australia to endeavour to resolve all of the outstanding issues in relation to the children L born on … April 1993, R born on … September 1994 and J born on … July 1996 before bringing any further proceedings in this Court in relation to the three children.

4. All matters are removed from the pending list.

IT IS NOTED that publication of this judgment under the pseudonym Orwin & Hansonn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 14 of 2007

MS ORWIN

Applicant

And

MR HANSONN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT  

1. This is a matter which is before me today for final conclusion of the orders sought by the parties. Litigation has been ongoing in the family law jurisdiction in relation to this family since 2003. 

2. On 23 September 2005 FM Lindsay made orders which provided for the children, L, R and J, to reside with the father and made specific orders in relation to other matters, including that the father give, and the mother have, contact to the children during school terms each alternate weekend from the conclusion of school on Friday to 6.30 pm on Sunday and for half the school holidays, telephone contact and other special arrangements.  That order is dated 23 September 2005 as amended on 18 October 2005. 

3. In general terms, the order in relation to the time spent for R and J has continued.  The child L, who was born in April 1993, is now residing with the mother. 

4. The matter that is before the Court today relates to the mother's application that the father contribute $25 towards her cost of travelling for the purposes of spending time with the two younger children, R and J, who reside with the father. 

5. The specific matters before me today have been dealt with by referring to each of the documents that the parties rely upon and hearing their evidence and submissions. Both the mother and father appear before me today unrepresented. 

6. The mother says that she needs the money from the father to enable her to take regular time with the children;  that she cannot afford the cost of petrol which would allow her to spend that regular time with the children and that the father can afford it and should pay it. 

7. The father opposes the orders sought saying that the fair thing is that they are already both sharing the cost of transport, as they do the same amount of travelling or almost the same amount of travelling for each period of time spent and that the mother can afford the cost of transport on those occasions. 

8. The affidavit material I have received from the mother is that filed on 12 October 2009 and a financial statement filed on that day, together with exhibit 1, which was the short affidavit sworn by the mother in the witness box and her response to the affidavit of the father, which is an affidavit filed on 14 October 2009. 

9. In relation to the father's case, I have his affidavit and financial statement both filed on 6 October 2009. 

10. I have raised with the parties the question of the law which should be applied in relation to determining this matter and how the order that has been sought should be categorised. 

11. The mother maintains that it is a parenting order falling within the provisions of section 64B(2). Section 64B(2) is the section in Part VII of the Family Law Act 1975 (Cth) which begins:

    “A parenting order may deal with one or more of the following:

    (a)     the person or persons with whom a child is to live;

    (b)the time a child is to spend with another person or other persons;

    (c)     the allocation of parental responsibility for a child;

    (d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

    (e)the communication a child is to have with another person or other persons;

    (f)     maintenance of a child;

    (g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

    (i)   a child to whom the order relates; or

    (ii)  the parties to the proceedings in which the order is made;

    (h)the process to be used for resolving disputes about the terms or operation of the order;

    (i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.”

12. Section 64B(5) says:

    “To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order .”

13. The specific provisions of section 66E(1) indicate:

    “A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant ) against, or in favour of, a person (the respondent ) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.”

14. The proceedings before me are, therefore, not capable of being categorised or could not proceed if they fell within the category of a child maintenance order because of the provisions of section 66E and the fact that there is currently an assessment in place in relation to the provision of child support between the father and mother in these proceedings.

15. If this matter is to be categorised as a parenting order which I can make it needs to fall within one of the definitions in section 64B(2) other than the definition in (f), being the maintenance of a child.

16. The mother asserts that it is an order that relates to the time the child is to spend with another person or other persons;  namely, it deals with the time the children are to spend with the mother. 

17. It may well relate to the costs the mother may incur in making arrangements to spend time with the children.  The question may need to be determined as to whether that in itself is an order that deals with the time the children are to spend with the mother. 

18. The other question which needs to be considered is whether the proceedings fall within the definition of section 64B(2)(i); namely, whether the order is a matter which deals with any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

19. It is possible, in the wide wording of subsection 64B(2)(i), for consideration of orders in relation to the cost of transport to come within the wording of “any other aspect of the care” of these children. 

20. If the matter is considered to be a parenting order, then the objects of Part VII would apply because if it is a parenting order, then the Court is obliged to consider the best interests of the children as the paramount consideration. 

21. The objects of section 60B include:

    “(1)   The objects of this Part are to ensure that the best interests of children are met by:

    (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;”

22. Section 60B(1)(d) provides:

    “(d)   ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. ”

23. Section 60B(2) says that:

    “(2)   The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

    (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)  parents should agree about the future parenting of their children; and

    (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

24. This emphasises that parents jointly share duties and responsibilities concerning the care, welfare and development of their children and that parents should agree about the future parenting of their children.  It was obvious in this case that the parents have been unable to agree about most aspects concerning the future parenting of their children. 

25. The significant sections of that part are set out in section 60CA, indicating that:

    “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

26. Section 60CC sets out what the Court must consider when determining what is in the best interests of the children. Again, the primary considerations are the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

27. There are also significant matters set out in the additional considerations but the most relevant of that section in relation to these proceedings would be the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense would substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.  Also relevant is the capacity of each of the child's parents to provide for the needs of the child, including the emotional and intellectual needs. 

28. The Court may also consider that the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents may be relevant in the determination of this particular matter before the Court. 

29. The Court is also required to consider 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, and under subsection (3)(m), any other fact or circumstance that the Court thinks is relevant. 

30. I therefore turn to consideration of the matters that are particularly relevant if section 60CC applies to the orders that the mother seeks.

31. I turn to the question of the practical difficulty and expense of a child spending time with, and communicating with, a parent and the capacity of each of the child's parents to provide for their needs, including their emotional and intellectual needs, which would be provided for by ongoing time spent with the mother. 

32. In the mother's affidavit she maintains (exhibit 1) that her total income is now $643.10 per week.  When one adds to that the income of other members of her household, the weekly amount received by the household is $1,142.

33. She maintains in the Statement of Financial Circumstances and in her affidavit that she is unable to afford her cost of travel to spend time with the children on a regular fortnightly basis because of the other expenses of her family.  Her family includes her partner, who is in receipt of a disability pension; her stepson, who is also in receipt of Social Security payment; and her daughter L, who is now receiving a youth allowance.  She discloses an income for herself based upon a carer payment allowance and a family tax benefit, together with a small amount of child support assessed as payable by the father to the mother in relation to L at $17 per week. 

34. The father raised issues in relation to the business which the mother operates but which the mother says is not providing her with an income.  She has, however, disclosed expenses in relation to the business. One of those expenses includes her oral evidence which related to a business telephone, being a telephone she uses separately from a personal mobile telephone.  The business mobile telephone cost her $10 a week. 

35. Included in part of her personal expenses is a loan repayment of $35 a week to her parents (item 29) which relates to the loan described in her liabilities (item 50) being a loan of $5,000.  Both the mother and her current partner Mr P borrowed from her parents for the purposes of the business which involves an event which is being set up, operated and run by the mother and her current partner.  The mother does not however, disclose her income from the operation of this business but however, includes the $35 per week repayment as an outgoing and expense. 

36. In her oral evidence during questioning by the father, the mother agreed that she and her current partner have put $2,000 of their own money towards this event, which is planned for mid November.  The father takes issue with the amount which was provided by the mother and her current partner towards this activity but the interpretation of exhibit 2 leaves open the possibility that the mother's version is correct, namely, that she and her current partner have put $2,000 towards this event. 

37. In relation to the mother's expenses, taking into account the Statement of Financial Circumstances and exhibit 1, the mother calculates that her expenses now total $1,140 a week for the household. 

38. The father challenged the mother in relation to certain items and in particular the provision of child‑minding of $35 per week which relates to her two young children, who attend child‑minding, one for two days a week and one for three days a week, notwithstanding, the mother is not employed outside the home.  The mother's evidence in relation to this was that she was studying and attending to her carer duties and other family responsibilities, such as shopping and medical appointments, which, therefore, explained the child‑minding expenses. 

39. In relation to the expenses in exhibit 1, the mother asserts that she is now paying Optus $15 per week which related to a change in telephone arrangements.  She was also cross‑examined at length about the cost of entertainment/hobbies at $15 per week which she said related to Foxtel, which she said was the only expense for the family by way of entertainment. 

40. I also asked the mother questions about the increase in her electricity account, which she says in exhibit 1 went from $55 to $75 per week.  In her oral evidence the mother said that this was a winter account that she had received recently and it was over and above the cost of heating fuel of $25 per week in the Statement of Financial Circumstances. 

41. The parties were not agreed about the actual cost of the travelling involved in transporting the children for the purposes of the mother spending time with them.  The mother asserted that she travelled slightly further than the father because of her need to attend at another school on occasion of spending time, which involved her travelling a small distance further than the father on each occasion.  There was no agreement generally about the cost of petrol per kilometre to assess the overall cost. 

42. In summary the mother's evidence, in particular the new evidence supplied by way of exhibit 1, shows the total household income to be in excess of $1,140 per week.  That includes an education supplement of $30, which is likely to cease in December this year.  Her expenses, however, also include $75 per week for TAFE fees, which is also likely to conclude in or about late this year or February 2010. 

43. I also take into account the telephone accounts of $80 per week (some of which relates to a business for which there is no disclosed income), the moneys claimed in relation to the high electricity and heating accounts and the specific amount borrowed being repaid at $35 per week to the mother's parents for the purposes of this event.  I am not satisfied that the mother has established on the balance of probabilities that she is unable to afford the costs of transport involved in making arrangements to spend time regularly with the two children in the father's care. 

44. The father has provided the Court with his affidavit and Statement of Financial Circumstances which indicate that he has borrowed a large sum of money to purchase a motor vehicle.  He has other outstanding debts and responsibilities.  There is also a query concerning the disclosure of the exact amount his current partner receives by way of child support, the interaction of that income and the allocation of the responsibilities to provide for the family as a whole. 

45. Whilst it may be possible to consider that the father's evidence indicates that he may be able to find the extra sum of $25 per occasion of the younger children spending time with the mother, I am not satisfied that that is necessarily the determining factor in deciding whether, simply because the father could afford to make the payment. This is reinforced when considering all of the factors necessary, in particular those in relation to section 60CC, which include the attitude to the responsibilities of parenthood demonstrated by each of the child's parents, and the practical difficulty and expense of a child spending time with a parent.

46. Based on evidence of the mother I find the mother can afford to pay for her share of the expense of travelling to collect and return the children on the occasions that they spend time with her.  The father is also spending his funds in relation to his costs of transporting the children on the occasions that they spend time with the mother. 

47. Section 60CC(3)(m) refers to “any other fact or circumstance that the Court thinks is relevant”.  The fact and circumstances which are relevant in this matter are the findings I have made in relation to the financial circumstances of each of the parties and the households in which they reside.  A significant factor is that the father is also contributing to the travel costs connected with the mother spending time with the two younger children. 

48. Another relevant circumstance is that the Child Support Agency has already carried out an assessment in relation to the contributions that the mother and father should make in relation to financial aspects concerning the children.  There is nothing before me in relation to the financial circumstances which make it necessary in the children's best interests to make an order as sought by the mother. 

49. The mother should put aside her concerns about the father contributing all of the costs of transport (or contributing a further $25 to the cost of transport) and make arrangements in relation to her business and/or other costs which would permit her to spend the time with the children in accordance with the orders which have been made by consent.  The financial arrangements which have been disclosed in relation to the likely end of some of the costs when the event concludes in the middle of next month and when the costs in relation to her study conclude early in the New Year indicate the mother will have sufficient funds.

1. Taking all of those factors into account it is therefore in the best interests of the children and just in all the circumstances of this case that there be no order made requiring the father to contribute any further moneys towards the cost of transport. 

2. I therefore dismiss the mother's application in relation to the contribution towards transport. 

3. I will direct you both to attend counselling with Relationships Australia to discuss any issues concerning the welfare of the three children before bringing any further proceedings in this Court in relation to the children. 

4. At the conclusion of the matter the father seeks an order that the mother pay the costs of these proceedings in relation to contributing funds towards the costs of the time spent between the mother and the children.  This is not an application for legal costs in relation to solicitors' or barristers' fees but an application for moneys foregone by way of lost income for the father in having to spend time attending Court in this matter and the actual costs by way of travelling to the Court for the purposes of the hearings in the matter. 

5. From time to time orders have included recompense for the loss of income and actual expenses involved in travelling to Court and being absent from a business or employment. However, the provisions of section 117 of the Family Law Act provide that subject to subsection (2) (and other sections of the Act which are not relevant in these proceedings) each party to the proceedings under this Act shall bear his or her own costs. 

6. Under section 117(2), the Court is able to make an order for costs if, in the opinion of the Court, there are circumstances that justify it in doing so. The Court can therefore make such order as the Court considers just. The Court is required to consider matters in section 117(2A) of the Act when determining if any order should be made.

7. One of the matters which is relevant is the financial circumstances of each of the parties to the proceedings.  I have significant information before me in relation to the financial circumstances of each of the parties to the proceedings which indicates that both families have significant financial commitments to maintain their families. 

8. Another relevant matter in this case is whether any party to the proceedings has been wholly unsuccessful.  The mother in this case has been wholly unsuccessful in her proceedings seeking a contribution towards the costs of transport by the father. 

9. I am not aware of any offers being made in writing or any other significant matters such as the conduct of the parties to the proceedings in relation to the preparation of pleadings or documents. 

10. Subsection (g) of section 117(2A) says:

    “Such other matters as the Court considers relevant.”

11. Taking into account all of those factors and in particular taking into account that the mother has been wholly unsuccessful, I conclude that the financial circumstances of each of the parties to the proceedings indicate that it is just in the circumstances of these particular proceedings for each party of the proceedings to bear his or her own costs.  I therefore make no order in relation to costs. 

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  2 November 2009