Ragg and Ragg

[2007] FamCA 522

FAMILY COURT OF AUSTRALIA

RAGG & RAGG [2007] FamCA 522

FAMILY LAW - INJUNCTIONS - Against further proceedings or enforcement of proceedings in Local Court - Child support

APPLICANT: MRS RAGG

RESPONDENT: MR RAGG

FILE NUMBER: BRF 9306 of 1994

DATE DELIVERED: 9 March 2007

PLACE DELIVERED: Lismore

JUDGMENT OF: Barry J

HEARING DATE: 9 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr George of Counsel appeared for the Applicant Wife

SOLICITOR FOR THE APPLICANT: Turnbull & Company

SOLICITOR FOR THE RESPONDENT: Ms Crane, Solicitor of BL Crane & Associates appeared for the Respondent Husband

Orders

1. The Husband be restrained and an injunction be granted restraining him from further prosecuting or enforcing the proceedings instituted by him in the Local Court of New South Wales at L, Case Number … .

1. The Orders of the Honourable Justice Barry dated 8 December 2000 be varied by deleting Order 4 and that such variation take effect as and from 14 February 2004.

1. The Husband is to pay the Wife’s costs of and incidental to the Amended Application in Form 1 filed on 10 November 2006 as from 10 November 2006, such costs to be as agreed and failing agreement, to be taxed.

1. It is certified that it was reasonable this matter is one proper for the Wife to require the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT LISMORE

FILE NUMBER: BRF 9306 of 1994

MRS RAGG

Applicant

And

MR RAGG

Respondent

REASONS FOR JUDGMENT

1. The parties to this litigation first litigated in this jurisdiction at the time of separation at 1994.  Here we are in 2007, and they are still litigating.  I do not confine my remarks to one party; they apply equally to both, in my view.

2. Both need to take a long reality check.  There is a world out there.  There is a life to be led.  There is more to life than utilising the Court system for getting square.  I am sure the children would breathe a long sigh of relief if they could be informed that it was at last all over.

3. Having made those preliminary remarks, I turn to the matter at hand, and the relevant order for the present purposes was, coincidentally, made by myself over six years ago, back on 8 December 2000.  At that time, on the application of the father, I made an order that there be a departure from the child support assessment which had issued from the Child Support Agency.  I assessed that as and from 1 January 2001 the wife was to pay the husband the sum of $100 a week for each of the two children until such time as the children reached the age of 18 years, or the husband is no longer eligible for child support, whichever is the first to occur.

4. It was, with the benefit of hindsight, not the most elegant of orders.  However, with the benefit of hindsight, one could always improve a lot of things. The reality is the order was in those terms.  The two children involved were a daughter born in September 1988, and a son born two years later in September 1990. 

5. At the time the orders were made in December 2000 the children were in the care of the father, and as I understand the situation, the mother was seeing them on alternate weekends and half school holiday basis.  The mother, sometime earlier, had received about $800,000 by the way of a property settlement, and she had received a greater share of the property settlement than the father on the basis that at the time the orders were made she had the care of the children, and it was anticipated that that care would continue.

6. When the matter came before me in December 2000 the mother was paying a mere $5 a week for the children, and appeared content that that continue.  I formed the view that that position was totally unsatisfactory and called out for a departure order.  To her credit, the mother offered about $123 a week, based on various calculations that she had made.  As it transpired, for the reasons I gave at the time, I ordered that the mother pay $100 a week for each of the two children, subject to the conditions in paragraph 4.  The mother continued to pay that amount over the following years up until February 2004.  She paid for half of that month, and then ceased.

7. It is common ground that as from 1 January 2005 the Child Support Agency has taken the situation in hand and assessed the father as being liable to pay child support for the son, and as I understand it, there are no orders referable to the daughter.  In any event, she is now 18 years of age.

8. Therefore, the period in dispute before me is the period from mid-February 2004 through to 1 January 2005.  The amount involved is about $9,000.  The departure order was never registered with the Child Support Agency; thus the father is able to bring his own proceedings to endeavour to recover those funds as a debt due.  In the local Court an arbitration finding was handed down.  I assume it is not binding - and the matter was then set down for a final hearing, but those proceedings have been stayed pending the outcome of the mother's application to this Court, and that application, relevantly, is an amended application filed on 10 November last year. 

9. She seeks orders in these terms:

   (1) that until further order the husband be restrained and an injunction be granted restraining him from prosecuting or enforcing the proceedings instituted by him in the local Court of New South Wales in L, case number … of … pending determination of this application;

   (2) that the orders made by the Honourable Justice Barry on 8 December 2000 be varied by deleting them from the provisions of paragraph 4 and that such variation take effect as and from 1 February 2004, the husband to pay wife's costs until such further order.

10. In his response document the father simply seeks for the mother's application be dismissed and she should pay his costs.

11. The mother's case is that around early 2004 there was a significant change in arrangements.  She, around that time, relocated from the Gold Coast down to B.  The children were attending A High School, and both parents then were living in the same geographical area.  The mother proceeded, throughout 2004, to keep a calendar, and to make notations on that calendar as to where the children were staying at any particular time.  The father says he does not necessarily agree with the notations on the calendar, but he has no corroborative evidence to effectively challenge it.  I have to say that I found the mother to be straightforward on this issue; the calendar can only be as good as her evidence, and I have no reason to doubt the credibility of her evidence and the accuracy of the records she has kept.

12. In addition, annexed to her affidavit is not only the calendar that she kept for the 2004 year, but she has prepared a monthly summary.  Those times when a child was in each household was treated as a shared day and were excluded from her calculations.  I am not sure that that is an entirely appropriate methodology, but it is a methodology to adopt.  Even so, on the calculations that I have made, the number of shared days for the entire period we are talking about, is in the order of 20 per cent, so 80 per cent of the time the children were either in one household or another.  On the calculations that I have made, approximately two-thirds of the relevant period the children were with the mother; they spent about one-third with the father.  These figures, as I say, have not been challenged.

13. The original departure order was premised on the basis that the father would be paying the expenses for the children; the mother would have the cost of feeding the children and transporting them for contact periods, but by and large, new clothing and educational expenses, and all other sorts of expenses would be borne by the father.  The mother made her contribution by paying what was about $886 per month in the way of child support. 

14. Once the situation was reached where, for the relevant period, the children were with the mother about 66 per cent of the time, clearly, it was no longer a situation as envisaged by the orders of December 2000.  Those orders, under the new regime, were neither fair nor relevant. 

15. The father, in his case, points to consent orders that were made on 5 April 2004, and those orders were made by Registrar Pendergast, and they still provided for the children to reside with the father, but for the duration of the second term of the school year, the mother was to have contact with the children Wednesday afternoon through until Monday morning, extending through until Tuesday morning, and then for term 3 it was a week-about situation.

16. The reality is that those orders were a piece of paper.  I am much more persuaded by the reality of the situation; where did the children spend their time?  I can accept that predominantly, over the relevant period, they stayed with their mother.

17. The annexure to the mother's affidavit, which is JPR13, is an account from the A High School, which featured both in the affidavit evidence and in the oral evidence.  It is an account which is dated 31 May 2004, and appears to be a compilation account for various invoices issued, predominantly for the period of December 2003 - one is for March 2004, but they are for the two children and they cover contributions for textbooks and things of that nature.  The total bill is only for $246.  There is a note at the bottom of the bill from the father:

    "Hello, [the wife], I will pay this bill, your half being $123, of which $95 credit is due to you re: [the son’s] soccer.  If we pay half each I think it will work out best."  Signed [the husband].  "And also please return the passports." 

18. I am not quite sure precisely what was intended by this offsetting of various amounts, but it seems clear to me that at that point this is corroborative evidence of the mother's claim that the arrangement was they should share the expenses for the children.  It is to be remembered that this is early 2004.  It is obviously inherently unfair if the parties have to share the expenses for the children that in addition, the mother should be required to pay $866 per month over and above that.  It is not what the parties envisaged, it did not reflect the reality.

19. The mother seemed to challenge the account was her responsibility.  As it was invoiced in 2003 she believed it was relevant to the 2003 year.  She had paid child support over that period, and therefore she should not have to pay any part of the account as an expense.  I accept that it appears to be an invoice issued for prepayment, and it does appear to cover the 2004 year, but it is not all that relevant.  It is relevant in the sense that the son was in Year 8 in the 2004 year, but to my mind, the note corroborates the mother's evidence that there was an agreement that expenses should be shared, and if that was the agreement it had to override an earlier agreement when the father would pay the expenses but the mother would be contributing a calculated amount of an estimate of half their expenses of $866 a month.

20. The father, as I understood his evidence, really did not dispute that there was an arrangement, but he says the expenses were not shared, and he ended up paying all the expenses.  Sadly, for his case, he does not produce any proof of that.  There is no corroboration whatsoever other than his mere assertion.  He says he paid the private health care.  It was pointed out in re-examination he would have paid the same private health care regardless because of the relationship he was in at the time the children were members of that household.  He paid $246 for a school fee.  One is entitled to say so what?  Common sense indicates that if the children are with the mother for approximately two-thirds of the period, she would be paying substantial expenses by way of food and transport and clothing and all the other expenses associated with raising children.

21. The father says that he paid all the expenses, but the mother disputes that and there is simply no corroborative evidence from the father to back up his claims. 

22. The mother's evidence, to my mind, is supported by documents such as I have referred to, the calendar, the note from the father, and the other evidence annexed to her affidavit, but also from the affidavits of two witnesses who are friends of hers who support the trend of the increasing period of time the children spent with their mother.

23. The conclusion that I have reached, after the assessment of the evidence, having heard the submissions, being aware of the discretionary nature is that it is not fair for the mother to have the children for a greater period of time in the relevant period we are talking about, and for her to be assessed, as she was, in circumstances where she only had the children previously for alternate weekends and half holidays.  She was assessed to pay $866 a month, where she has now got the children for about two-thirds of the period it is just not fair that the same arrangements should apply.

24. I conclude with the observation, it is a great pity that the matter has come down to this.  The parties should not look towards each other but inwardly towards themselves, and make a commitment that this is the very last time there will be any Court proceedings.

25. For the reasons given, I propose to make orders in terms of paragraph 1.  I will delete the words "pending determination of this application" and simply make the restraint on the father.  I cannot restrain - the law of comity between Courts, I cannot actually direct my order to the local Court of L, but I can and do have jurisdiction over the father, and I can restrain him from further prosecuting that application, and I will, more importantly, make an order that the order of 8 December 2000 be varied as and from - by deleting paragraph 4, and that such variation take effect as and from 14 February 2004.

RECORDED   :   NOT TRANSCRIBED

1. The matters governed by s 117 - the section starts off by:

   "Subject to sub-s (2) each party to the proceedings shall bear his or her own costs", and

   sub-s (2) sets out:

   "In considering what order if any should be made under sub-s (2) the Court shall have regard to the following matters: the financial circumstances of each of the parties".

   I am satisfied, having regard to the nature of these proceedings, either party could meet an order for costs, certainly the husband could. 

2. Whether any parties to the proceedings is in receipt of assistance - there has none been related; the conduct of the parties - well, I have made my views known about that; whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders - that is not greatly relevant in the circumstances; whether any party to the proceedings has been wholly unsuccessful in the proceedings.  In that measure, I would find the respondent father wholly unsuccessful in these proceedings; and whether there was an offer in writing - the offer in writing was in somewhat unusual form, but to my mind, it was both gracious and generous, but the mother said, "Well, I don't owe you $7,500, but I am prepared to contribute towards our adult daughter's education".  I am not going to go into the merits of it; I do not need to rely on the offer of settlement, I base it on the fact that the circumstances screamed out for change; the mother was, from July 2006, seeking clarification, that must have been patently obvious that she had stopped paying the child support, she disputed it.  The husband, for his part, could have left it at that, but he went and litigated in the local Court. 

3. I am of the firm view the matter calls for an order for costs.

ORDER DELIVERED.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Ragg & Ragg