Pickering and Pickering (No 2)

[2013] FamCA 850

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING (NO 2) [2013] FamCA 850

FAMILY LAW – ORDERS – contravention – where the father was found to have contravened an order requiring him to pay a sum of money to the mother by a specified date – order that the father pay a fine if he does not pay the remainder of the money owed to the mother under the order within six months.

Family Law Act 1975 (Cth) s 112AD

APPLICANT: Ms Pickering

RESPONDENT: Mr Pickering

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 1919 of 2005

DATE DELIVERED: 18 October 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 18 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms Cocks
SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER	Legal Services Commission Of South Australia

Orders

UPON NOTING

1. these orders do not affect the mother’s right to enforce payment of monies due pursuant to the orders of 29 October 2010 and 23 June 2011:

2. the final application remains listed before the Honourable Justice Berman for trial on 23 and 24 December 2013;

3. the Court refuses to grant the adjournment sought by the mother;

4. the Court declines to make any further orders in relation to the contraventions concerning the children’s issues.

IT IS ORDERED THAT

1. On or before 18 April 2014 the father Mr Pickering pays to the Registry Manager of the Family Court of Australia a fine in the amount of FIVE THOUSAND DOLLARS [$5,000.00].

2. If by the 18 April 2014 the father has complied with the orders of the Court dated 29 October 2010 and 23 June 2011 being payment to the mother of costs orders totalling TWENTY-NINE THOUSAND TWO HUNDRED DOLLARS [$29,200.00] the order of the fine will be discharged.

3. The mother is to inform the Registry Manager of the Family Court of Australia in writing within seven [7] days of receipt of any payment pursuant to these orders.

4. The mother’s contravention applications filed on 28 March 2012 are removed from the active pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pickering & Pickering (No 2) 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

FILE NUMBER:

Ms Pickering

Applicant

And

Mr Pickering
Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am being asked to grant an adjournment in relation to the financial matters.  The contraventions in that regard have been outstanding for a considerable period of time.  The orders that were contravened were orders which were made on 29 October 2010 and 23 June 2011 for the father to pay the mother substantial sums totalling around $23,000.  I have made findings in relation to the contraventions in the judgment which was published on 27 March this year.  I will not repeat those. 

2. I do not consider that an adjournment would be appropriate.  A subpoena to Centrelink would probably just be rejected due to the Centrelink legislation.  Material from the husband’s accountant is, on the face of it, not likely to assist the Court to any significant degree at this stage.  I am also mindful of the fact that the significant proceedings in relation to the child, S, are listed to be heard by Justice Berman and orders have been made for the preparation of that matter for final hearing.  I consider the best interests of the child to be that the matter be resolved in the appropriate way as soon as possible.  I am therefore refusing to grant the adjournment sought by the mother. 

3. I turn to consider the orders that should be made to conclude the contravention proceedings. 

4. The contravention concerning the father attending within 100 metres of the mother’s residence, I have already made orders, but it appears from the material that the operators of the program did not consider it appropriate for the father to attend. 

5. In relation to the other contravention concerning children’s matters, one was dismissed.  For the other I placed the father on a bond of good behaviour and to comply with the Court orders for a period of 12 months.  Those orders were made on 23 May 2013. 

6. I am now being asked to consider making further orders in relation to the contravention of the children’s orders by extending the bond until S is aged 18 and to grant the mother “make-up time” to commence in the New Year. 

7. One of the significant matters I need to consider is what is in the best interests of the child if I were to make an order for what is described as “make-up time”. 

8. I accept that in the history of this matter there was a considerable period of time where the child did not spend time with the mother and I have dealt with the basis of those matters in my earlier judgment. 

9. I am satisfied that the material concerning the orders which should be made in the best interests of S will be dealt with by Justice Berman when the matter proceeds to trial before him. 

10. I take into account in particular S’s age and the ongoing litigation which has formed part of her life for many years.  I do not consider it to be in the best interests of the child for there to be an order for “make-up time”. 

11. I consider it is in the best interests of the child that the orders which are currently in place for the child to have progressive arrangements for her to renew her relationship with her mother are the appropriate orders.  I therefore decline to make any further orders in relation to the contraventions concerning the children’s orders. 

12. In relation to the contravention of the orders for the payment of sums of money, there were those two orders made in October 2010 and June 2011 which required the father to pay the mother in total $29,200. 

13. The question of the assets and liabilities, income and expenses, of the husband remains in dispute and the question of the disposal of assets and his current financial circumstances are not accepted by the mother. 

14. What is significant is that the orders were made by this Court taking into account, as they were required to do at the time, the financial circumstances of the parties.  It is not appropriate to seek to discharge those orders by simply ignoring them when they were made. 

15. I consider it important for the orders of the Court to be obeyed and for significant steps to be taken to ensure that the monies are paid in accordance with those orders. 

16. Taking into account the provisions of section 112AD of the Family Law Act 1975 (Cth), I propose to indicate that the father will suffer a significant fine if he does not pay the mother the amounts due pursuant to those orders within six months from today. This will require him to make arrangements to borrow the funds or earn the funds or take steps to sell assets so that the orders of the Court are obeyed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 18 October 2013.

Associate: 

Date:  29 October 2013