Reay and Jones

[2008] FMCAfam 560

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REAY & JONES [2008] FMCAfam 560

FAMILY LAW – Contravention of parenting orders – reasonable excuse – mother unable to afford cost of travel – interim variation of orders.

Family Law Act1975 (Cth) s.70NAE

Applicant: MR REAY

Respondent: MS JONES

File number: DGC 188 of 2007

Judgment of: Phipps FM

Hearing date: 29 April 2008

Date of last submission: 29 April 2008

Delivered at: Dandenong

Delivered on: 29 April 2008

REPRESENTATION

Solicitor for the Applicant: Maria Barbayannis & Co

The Respondent appearing in person

ORDERS

1. Until further order, paragraph 3(a) of the orders made 19 February 2007 is suspended.

2. The contravention application filed 2 April 2008 is dismissed.

3. Paragraphs 2,3 & 4 of the order made 4 March 2008 are discharged.

4. Until further order paragraph 3(a) of the orders made 19 February 2007 is suspended.

5. That the time in paragraph 3(a) of the orders made 19 February 2007 the child [A] born in 2006 spends time with the father is to commence on
   9 May 2008 but with the times for changeover set out in paragraph 6.

6. That upon the father giving the mother 7 days notice in writing for each occasion, the child spend time with the father one weekend each month in Sydney commencing 23 May 2008.

7. That changeovers will take place at [X] at 10.00am on Friday and 7.30pm on Sunday.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGC 188 of 2007

MR REAY

Applicant

And

MS JONES

Respondent

REASONS FOR JUDGMENT

1. This is a contravention application.  The parties in this case, Mr Reay and Ms Jones, have one child, [A], who was born in 2006. 

2. On 19 February 2007 consent orders were made which provide for [A] to live with his mother.  The orders were made on the basis that the mother was moving to Sydney.  They provide for [A] to spend time with his father one weekend a month in Melbourne and one weekend a month in Sydney.  The cost of travel was to be shared.

3. I dealt with a contravention application issued in October 2007.  There was an amended contravention application filed on 13 February 2008.  It was issued in October 2007 alleging a contravention in March, July, August and October 2007.  The amended application which was filed on 13 February 2008 alleged the same ones and included an alleged contravention during January.  On 19 December 2007 I adjourned the contravention application to 4 March 2008 and varied the orders so that there was provision for the father to spend times with [A] which included the period 20 January to 28 January.  That time did not take place.  On 4 March 2008 I found that there had been a contravention of that order; that was paragraph 2(b) of the orders I made on

   
   19 December 2007

   .

4. On 4 March 2008 both parties were represented but Ms Jones was not present at court.  As well as finding the contravention I described,

   
   

   I again varied the orders to provide for [A] to spend time with his father each alternate weekend, 1.00pm Friday to 7.30pm Sunday, commencing 14 March 2008, made the provision for the mother to deliver [A] to the father at [Y] at the commencement of time and the father to deliver [A] back at the conclusion of time.

5. A problem with the earlier orders, given that there was contention between the parties, was that they specified one weekend each month but did not specify precise times.  The orders made on 4 March 2008 were made in the absence of any evidence from the mother. 

6. The contravention application I am dealing with now alleges three breaches.  The first two allege breaches of the orders I made on 4 March 2008 for [A] to spend time with his father each alternate weekend, as I have described.  These are breaches on 14 March 2008 and 28 March 2008.  I also made an order on 4 March 2008 for the mother to pay the father $492, being the father's costs of travel thrown away in January 2008.

7. The mother has appeared unrepresented by telephone and has given evidence.  She admits the breaches, in the sense that the time did not take place but she alleges a reasonable excuse which she says is that she could not afford to pay to come to Melbourne with [A] on 14 March and 28 March 2008.  In particular, she says that in relation to 14 March, she had very little notice.  She sent an email on 10 March where she said at such short notice she could not raise the funds to travel on 14 March.  She said she was hoping to raise the funds to travel on 28 March but she now says she was unable to do that.

8. She has sworn a financial statement which has not reached the file as a filed document but she has verified it in her evidence today.  Her position is that she has three children, teenagers who are 15 and 13, then a third child who is a bit younger, and then [A], who is some 20 months.  She is not working and her income consists of some rent she receives from a property she owns, a parenting payment, family assistance, child support she receives for the elder two children and child support for [A].  Including the $350 rent, it is a total weekly amount of $1121.

9. The rent comes from a property she owns in [S] in Sydney.  Her evidence is that it was purchased some 10 years ago when she reached a property settlement with her husband, who is the father of the third child.  There were no formal court orders.  That property was purchased for $300,000.  It is a three-bedroom villa.  She has since mortgaged it to a total of $300,000 and she has it rented at $350 a week.  She is not living in it because it was rented out while she was in Melbourne and the lease does not expire until February of next year.  The tenants do not want to move out before then, so it is rented for $350 a week.  She pays $400 a week on the mortgage.  She says the mortgage is, for the first $150,000, to do some renovations to the property.  She has borrowed another $150,000; $56,000 she has spent purchasing a 25 per cent interest in a mortgage broking business in Melbourne and the rest was paying off credit card bills and other bills.  She also had some money spent on expenses.  So although she has that income of $1,121, she has $400 a week that she is paying off the mortgage.  The value of that property she gives as $450,000, so she has an equity of over $100,000. 

10. Her funds in the bank are only a few hundred dollars.  She has a 2003 motor vehicle which in the statement she values at $10,000.  She is receiving no income from the mortgage broking business.  She pays $600 a week rent for accommodation for herself and the four children.  Her mother is paying $300, she is paying $300.  As to her other expenses, she gives a total of $500 but does not break them down.

11. She also says that so far as these two dates are concerned, on both occasions, she had not received child support payments.  There is some contention between the parties about when they were paid.  It seems clear enough that while Mr Reay might have had the money deducted from his salary by the Child Support Agency, it had not come through to Ms Jones.  So she puts as her reasonable excuse that she simply did not have the money to pay the air fares. 

12. Reasonable excuse is dealt with in s.70NAE of the Family Law Act 1975 (Cth).  The onus of proving reasonable excuse is on the respondent, in this case, Ms Jones, and the standard of proof is the balance of probabilities.  What is put against Ms Jones' argument about reasonable excuse is that she has not given a satisfactory explanation for the $300,000 mortgage that she has over the property in [S].  She may not have spelt out in detail precisely what $140,000 went on; $150,000 she says was renovations, $56,000 purchasing a share in a business.  She sees that as a long‑term investment in the hope that it might provide some income in the future.  That apparently happened when she was in Melbourne, before her relationship with Mr Reay came to an end and she moved back to Sydney.  But the fact remains that she does have that mortgage and she has that expense.

13. The background I have already given, that is, the consent orders in February last year provided for her to pay the money.  She says in her evidence that at that time, she hoped she would be able to obtain some employment, but she has a 20-month-old baby to care for and she says that the cost of child care, quite apart from any considerations about the care of the child and spending time with her, would outweigh any benefits she might earn from employment.

14. She travelled to Queensland to [C] at Easter.  She says that is a very longstanding arrangement when she and her sister and their children and her father, as they have all their lives, go and stay at [C] for Easter.  It is put against her that she could afford that travel but could not afford the travel to Melbourne.  I am satisfied that she has established on the balance of probabilities that she did not have the money to pay the air fares on the two dates in March, 14 March and 28 March 2008.

15. So far as the third contravention is concerned, she has not paid the sum of $492, but equally I am satisfied that she did not have that available either.  If she was to find the money for any of those three payments, it would have to have been taken out of the money she spends caring for the four children.  That is not a reasonable expectation.

16. I should add in, so far as her income is concerned, that her evidence is that she started receiving child support payments for the older two children from their father in January of this year.  The father of the third child pays school fees for all three children, the two older ones and the third one, and that is his financial contribution, he makes no other financial contribution.  So I accept that the way in which she is dealing with finances from the father of the three older children is reasonable. For that reason I am satisfied she had a reasonable excuse in respect of each of the contraventions.

17. Having made that determination that the mother has established to the necessary extent that she had a reasonable excuse, I do need to consider what should be done about the orders.  There is an application for variation which has a final hearing date listed in July 2008. 

    
    

    I acknowledge I am dealing with variations of the orders again and I am dealing with them on an interim basis with only a limited amount of evidence.  There seems to me, if the orders stay as they are, that there is a real risk that they will not be complied with again.  That has happened subsequent to 28 March 2008.  That would lead to further contravention applications with further argument about reasonable excuse because the mother says she cannot afford them. 

18. Looking at s.60CC and the best interests of the child, the consideration of orders least likely to lead to further court applications looms large.  In those circumstances, I see it as in the best interests of the children to leave in place orders which at least leave open the prospect of [A] seeing his father.  For the purpose of an interim application, I am satisfied that there is a real prospect that the mother will not be able to afford to pay air fares.  What I should do is leave in place orders which provide for Mr Reay to travel up to Sydney to see [A] but otherwise discharge and suspend as necessary.  That would mean that I would discharge paragraphs 2, 3 and 4 of the order made on 4 March 2008. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:  Jan Smith

Date:  3 June 2008