Shailer and Shailer

[2011] FamCA 355

FAMILY COURT OF AUSTRALIA

SHAILER & SHAILER [2011] FamCA 355

FAMILY LAW – Contravention application – Husband travelled from Country H for the hearing and to spend time with his daughter pursuant to court orders – Wife’s plea of not guilty – Evidence examined – Contravention proved – Limited contraventions only for court on this hearing with evidence no led on other alleged contraventions – Costs including reserved costs

APPLICANT: Mr Shailer

RESPONDENT: Ms Shailer

FILE NUMBER: MLC 4210 of 2007

DATE DELIVERED: 20 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 20 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Testart

SOLICITOR FOR THE APPLICANT: Robin Harrison & Associates

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED:

1. THAT the wife be convicted of one count (only) of contravening the orders of this Court pronounced 25 October 2010 (“the orders”)and specifically referrable to the 22^nd December 2010 as identified in grounds 14 and 15 of the husband’s contravention application filed 24 December 2010.

2. THAT the wife be acquitted of the contravention of grounds 8 and 9, which occurred on 16 December 2010, and as provided for in that contravention application.

3. THAT otherwise the husband’s contravention application filed 24 December 2010 be dismissed including as to all grounds not the subject of a hearing and evidence this day.

4. THAT the husband’s supplementary contravention application dated 5 February 2011 but filed (erroneously) on 24 December 2010 be otherwise dismissed.

5. THAT the final child and parenting orders pronounced 25 October 2010 be varied as follows:

   (a)by discharging paragraph 18 thereof and in its place providing that the husband provide for purposes of transporting B a VicRoads approved child booster seat with lap and sash restraint;

   (b)that paragraph 11 be discharged and forthwith all changeovers for time spent by the husband are to occur in the car park of McDonald’s Suburb C as close as practicable to the front entry doors, or hereafter such other venue or child contact centre as may be previously agreed to in writing by the parties and by the venue.

6. THAT on all future occasions when the husband travels to Australia to spend time with the child he is to comply with paragraph 5.1 of the orders in advance and as required.

7. THAT the husband take all reasonable steps to enrol and complete a parenting orders program at D Care Suburb E subject to it being available within the times that he is in Australia for the purposes of spending time with his daughter.

8. THAT on all occasions of time spent by the father with his daughter there are to be no pictures taken, videoing of or digital recording of changeover by the parents or any other person.

9. THAT the person identified as Ms G (as identified in paragraph 6 of the husband’s affidavit) is not to be present at or within the vicinity of any changeover.

10. THAT for the purposes of changeover as ordered both parents are to act to minimise any upset or discomfort to their daughter and the wife is walk the child from her car to the husband’s car and leave her with the husband at his car, he to properly seat her in the booster seat and ensure that she is secured therein.

11. THAT for the purposes of the husband’s time spent with the child during this current visit to Australia, and in variation of the times provided for in the orders the following dates and times are to apply:

    Good Friday  9.00 a.m. – 2.00 p.m.
    Easter Sunday  9.00 a.m. – 2.00 p.m.
    26 April  9.00 a.m. – 2.00 p.m.
    28 April  9.00 a.m. – 2.30 p.m.
    30 April  9.00 a.m. – 2.30 p.m.
    1 May  9.00 a.m. – 2.30 p.m.
    4 May  9.00 a.m. – 4.00 p.m.
    6 May  9.00 a.m. – 4.00 p.m.
    7 May  9.00 a.m. – 4.00 p.m.

12. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

13. THAT within fourteen (14) days the solicitors for the husband file his supplementary contravention application and affidavit in support and serve a true copy of both documents upon the wife at her now registered address for service.

14. THAT pursuant to s 117 of the Family Law Act 1975 there be no order in respect of the legal costs and disbursements incurred by the parties.

15. THAT the order of Cronin J pronounced 9 February 2011 wherein the wife’s costs of that day were reserved be discharged.

16. THAT the wife pay a sum of $2,000 towards the cost of travel, accommodation and transport incurred by the husband in visiting Australia in or about December 2010 for the purposes of spending time with the child BUT the payment of this sum of $2,000 be stayed for a period of twelve (12) months from this day.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the husband.

THE COURT NOTES:

A.THAT the Court has been advised that a return date for family violence intervention proceedings in the Suburb F Magistrates Court has been listed for 3 May 2011, which otherwise would have been a day upon which the husband spent time with his daughter.  That date has been discharged by these orders.

B.THAT it is respectfully requested that whatever orders have been or are continued to be pronounced by a Magistrate (such as the evidence may support) there should be no interference with the delivery, changeover and arrangements for time spent by the husband with his daughter as provided for in these orders.

C.THAT by way of explanation pursuant to paragraph 5.3 of the existing orders the husband will generally advise the wife of the plans that he has for the child throughout the day but they need be general and non-specific in nature.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4210 of 2007

Mr Shailer

Applicant

And

Ms Shailer

Respondent

REASONS FOR JUDGMENT

1. The matter of Shailer was referred for hearing in my Court by Cronin J by his orders of 17 February 2011.  In the matter today, the wife, Mrs Shailer, is respondent and appears in person having recently filed a notice of address for service and the solicitors who formerly acted for her have elected to discontinue their representation.  Mr Shailer is in Australia, and pursuant to the existing order to spend time with his daughter, B born in July 2006, he has travelled for Easter and other holiday times as provided for in the orders that were made by consent on 25 October 2010.  He is represented by Mr Testart of Counsel.  What is before the Court this day is primarily the contravention application filed 24 December 2010 by the husband.

2. That document alleges various contraventions of those consent orders which I observe were made at a time when both the husband and wife were in Court and were legally represented.  Additionally a supplementary contravention application has been presented to Court this day.  The wife has a copy of that document.  It strangely bears an incorrect filing date of 24 December of last year, but it was prepared by or on behalf of the husband in his homeland, Country H, in February of this year.  Thus the filing date must be an error.  At the commencement of the proceedings I discussed with Mr Testart and asked him to nominate two particular breaches which would first be heard and determined on all of the evidence, and in that regard, on behalf of his client he nominated the alleged breach on 16 December at I Playground and a second breach on 22 December at McDonald’s, Suburb C.

3. In the original contravention document, they are items 9 and 15 and evidence has been taken from both parties and an independent police officer on those occasions. I record that the other contravention matters in that initial application and in the supplementary application have not as yet been the subject of evidence given. At the outset of the case I carefully addressed the wife as respondent and received from her a plea of not guilty to both counts that were the subject of this immediate hearing. There was no plea taken on the other grounds of complaint which were not heard and determined at this time. I both explained to the wife and identified those particular sections of the Family Law Act contained within Part VII of the Act relevant to contravention applications and the consequences of failure to comply with orders and, in particular, section 70 and thereafter.

4. I raised with Ms Shailer the requirement for her to show a reasonable excuse for contravening the order and I record that Ms Shailer had already carefully read that part of the former consent orders, on page 9, where the penalties for failing to comply with a parenting order were clearly explained. A person contravenes an order if they know of the order and have either intentionally failed to comply or made no reasonable attempt to comply. That is provided for in section 70NAC of the Family Law Act 1975. I am wholly satisfied that the wife knew of the orders of 25 October 2010, knew of the provisions therein and, indeed, by her very defence she has an intimate knowledge of all aspects of that order and all orders accompanying the times that were provided for the husband to spend with his daughter. The meaning of a reasonable excuse for contravening an order is dealt with in section 70NAE and, in particular, subparagraph (5) thereof which deals with the applicable time spent scenario as is relevant here.

5. What is provided for therein is for the onus to be upon the respondent to establish reasonable grounds that reflected a health or safety issue.  The essence of the wife’s defence is that an inappropriate child restraint seat was provided by the husband for the daughter to transport her in the car or in respect of the first occasion of complaint, that is, 16 December 2010, the mobile telephone number that was required to be provided by the husband and which was to be a local number was not given.  That is cross-referenced to paragraph 5.3 of the orders.  The order dealing with the child restraint seat is paragraph 18 which provides:

   The husband provide a VicRoads approved, valid and age appropriate child restraint for the purposes of transporting the child whilst in his care.

6. So much the essence of this dispute relies upon the impassioned plea of the wife that the seat in the hire car was not child restraint without a H-harness but was more particularly described as a booster seat with a lap sash harness.  The orders highlight that the husband, when he hired a car on his arrival in Australia, was to have a VicRoads approved child restraint.  To better explain, the husband has annexed to his affidavit filed 24 December 2010 wherein he sets out his various complaints, documents and photographs from VicRoads evidencing what is appropriate for the State of Victoria and for age appropriate children.  I am told by the wife, and I accept, that her daughter is approximately 22 or 23 kilos and she is soon to turn five years of age with her birthday in June of this year.

7. The annexure documents as part of the affidavit were not the subject of any objection and there does remain some live issue between the parents as to what is a child restraint seat and what is otherwise a safe child seat or booster seat with appropriate harness or lap sash seatbelt.  Overwhelmingly, the purpose of the order was to provide safety for the child being transported.  Clearly, within Victoria, there are approved booster seats and lap sash seatbelts.  Interestingly, the weight recorded by VicRoads for a child to use such a seat as the father provided is 18 kilograms or above.  There seems to be no particular age limit and the reference is made in the document that children grow at different weight – at different rates and that is a matter that parents should have the commonsense to know and understand.  I have had evidence from both parties on the events on the changeover of 16 December and then again on the later occasion at McDonald’s.

8. There were clearly unsavoury actions.  There were other people present.  There was videoing or recording of the events as if people were intent to prove or to better provide ammunition for their own cause.  Those matters shouldn’t occur on changeover.  Simply put, this child should alight from one car to the other car and enjoy the time provided with both parents either wishing her a good time or promising her a good time as the respective positions require.  None of that occurs in this child’s life.  Changeovers historically have been conflictual.  It must change.  It must change in her best interests.  Whether these parents have the motivation to act in the best interests of their daughter or provide time as agreed to is doubtful but remains to be seen.  The starting point in my deliberations are that there are consent orders for this child to spend time with the father.  There are conditions to those consent orders.  Really, the dispute seems to be the fulfilment various conditions.

9. The wife has emphasised her belief that her daughter needs to know her father, needs to spend time with her father and should spend time with the father.  That stance is somewhat at odds with the reality of what has occurred in this case.  The wife elected to give evidence and did so on oath and I give due and proper regard to her evidence and her overwhelming concern for the safety and wellbeing of her daughter.  I must determine the proper outcome upon the balance of probabilities and no higher standard as is provided for in section 70NAF of the Act and I carefully have read the husband’s affidavit and listened to his evidence and I have very carefully assessed what the wife has said, her reasons and motives for not handing over the child and all of the circumstances.  I have also had evidence from Senior Constable Smith as to the second alleged breach and I have carefully balanced his evidence.

10. What I intend to do in this case is to convict the wife on one count only, that is, the second count, the McDonald’s store.  Having convicted, I will not impose a penalty.  There will be a conviction without penalty.  Let me further explain.  On the first occasion, that is, 16 December, I have no doubt whatsoever that the wife, accompanied by a friend, was of a view to ensure changeover would not occur.  I regard her response to the child seat as over-technical.  I do not in any way doubt her desire to protect, perhaps even overprotect her daughter, but the provision of the seat is not something that I accept the father failed in providing.  It is a technical issue, perhaps relevant to weight, age and height of the child, but the seat was a fully enclosed booster seat with lap sash affixed and as hired, in a seemingly not disputed, relatively new, safe hire car.

11. The issue on the first occasion was that the father should have provided the local contact number and paragraph 5 is mandatory in that he was required to do that and his time spent was subject to and conditional upon notifying both his time for visit and providing that number, and it is not unreasonable that the wife have a mobile telephone number where if an emergency occurs, one would hope it would not, she could ring the husband and/or speak to the child.  That is not to encourage the wife to have any view that she should be ringing during these limited periods.  There is no issue of the mobile phone on the second occasion, that is, 22 December.  That technicality does not arise.  I reject the defence of the wife of and upon the car seat.  I will, however, make it perfectly clear that I intend to vary the order, number 18, to provide ongoing and more appropriate structure of that order to encompass the car seat and lap sash belt that is now within the hire car.

12. I have a very strong understanding from all that I have read and seen in this case, from the evidence today and from its history, that there is some level of determination to restrict, limit or stop time spent and that cannot and will not be allowed to succeed.  This child needs to know her father.  The father lives in Country H.  The time spent provisions are somewhat minimal and if he is able at his own funds to come to Australia, then there does not need to be court hearings, contravention applications, upset, dispute and emotional scenes and have the child subject to such behaviour.  I said at the outset, and the transcript will show, that parents should be parents and should act with some level of respect.  That does not seem to have yet entered into the equation in this case and it must.  What I intend to do and what is proper in the circumstances of this case is to record a conviction on the second count, but I do so without imposing a fine or other more serious penalty.

13. I will not on this occasion require the wife to enter into a bond of good behaviour.  Perhaps I am very lenient to her but I do so on the expectation that this matter will not be back in Court on any contravention.  Clearly, if there is cause for another contravention application and if it is proved, then a more stringent approach would need to be taken to penalty than the lenient approach that I intentionally adopt today.  As I otherwise said, there are some limitations and defects in the current consent order.  I intend to make some changes.  I will, in the interest of harmony, exclude any video, pictures or digital recording of the child or the parties at handover.  I will exclude Ms G, however she is known, from being anywhere near to handover.  She will not be within a kilometre.  I will amend paragraph 18 to provide for a less arduous description of the car seat.

14. I will require the husband to use his best endeavours to enrol and undertake D Care Suburb E to learn better parental positioning and behaviour.  I do require the husband to absolutely give written notice as provided for in paragraph 1 of his travel to Australia and his accommodation in Australia.  I will more particularly spell out, as the father is here until 8 May, the dates and times where he will enjoy his daughter and spend time with her and they will vary somewhat from the precedent orders. 

15. I intend to be slightly more generous in times to the father in part to make up for past occasions where he has missed the time and to give him some chance of bonding and having a relationship with his daughter to form a foundation for future visits to Australia.  Finally, I will vary the changeover.  I will discharge paragraph 11. 

16. Whilst generally, I do not like to establish a precedent of any changeover at McDonald’s, it is far preferable to a police station.  I need a venue on short notice that is available at all times and the car park of McDonald’s directly in front of the main entrance doors will be the changeover and the wife need simply deliver the child, take her out of the car, walk her to the father’s car and hand her to the father.  If parents have any control over their near five-year-old daughter, that will be accomplished with dignity and respect and without undue commotion.  There is no reason for trouble and upset.  Both parents need to act as parents.  I will have these very brief extempore reasons transcribed and placed upon the court file.  I will have them forwarded by mail to both parties.

ORDERS DELIVERED

1. Arising out of the hearing throughout the day and having made orders on the contravention application and on matters arising therefrom, there remains the oral application of Mr Testart on behalf of his client for costs to be paid by the wife. The basis upon which costs were sought were twofold. First, within the parameter of section 117 of the Family Law Act, costs were sought for the legal expenses incurred in this hearing. In that regard, Mr Testart sought $2,200 on brief but no other sum for instructing solicitors either in the preparation or otherwise and they were not at court in this hearing.

1. The legal costs under section 117 are determined on the basis that the starting point is each party pay his or her own costs for proceeding. A costs order is made only if it is just and section 2A thereof sets out the matters which the Court is to have regard to in determining a just costs order. Those matters include the financial circumstances of the parties, the conduct of the parties within the proceedings, whether one party has been wholly unsuccessful, and other matters, such as the provision of legal aid, which is not here relevant.

2. The two further subsections which I have reflected upon are the failure of a party to comply with previous orders of the Court, that is subparagraph (d) thereof and the existence of any open offer to settle proceedings, that is subparagraph (f) thereof.  As to the latter point, that is subparagraph (f), curiously there was a letter written by the wife’s previous solicitors to the husband’s solicitors and dated 11 March 2011, which was produced by Mr Testart in part for reliance of the matters therein and in support of a costs application of his client.  I am not persuaded by the contents of that letter.  It does not assist me in determining the costs matters today.  I am generally aware of the financial circumstances of both parties, but it would seem fair comment that there is a measure of concern about accurate disclosure of income of work circumstances or in the case of the wife of when and if she will return to work and at what salary.

3. The other significant factor on assessing any order for payment of legal costs and disbursements is that the wife has in her favour an order on 9 February of this year pronounced by Cronin J.  Her costs were then reserved.  Dr Ingleby of counsel appeared for the wife and without proof, but accepting what the wife said, she transferred approximately $2,500 by way of further encumbering her mortgage account to pay that fee for counsel.  The husband did not appear and was in Country B.  Perhaps it never was contemplated by him that he would appear, but my scrutiny of the file seemingly shows that that was the return date made for the further contravention application issued at the request of the husband.  That is the document that curiously is incorrectly stamped 24 December 2010, but it is clear from the face of the document, and the husband would have known that there was a return date of 9 February on his own application. 

4. There is some uncertainty as to why the wife briefed experienced counsel on the day, but ultimately I need look no further than the fact that her costs were reserved. They were not fixed in quantum, but significantly the husband’s costs were not reserved. What I intend to do is to determine a costs order on counsel and legal issues that is just and equitable, and the only reasonable outcome in all of the circumstances as to legal costs is to make no order for costs under section 117 of the Act.

5. I now turn to the second limb of the costs application foreshadowed by Mr Testart.  I have heard today the primary application and on one ground thereof have convicted the wife of contravening the orders of 25 October 2010.  It is in the context of that conviction that I turn to deal with the issue of the actual compensation of moneys paid to the husband in his travel from Country H, his accommodation in Melbourne, both in apartments and in a Suburb C caravan park, in the hiring of a car from Thrifty hire car, petrol and all other expenses. 

6. Again, a difficulty that does arise is that the affidavit evidence in those amounts has not been properly served upon the wife.  As best I can reconstruct the events, the husband prepared the documents in Country H, faxed them to the associate of Cronin J who may then have had the Court file the documents, though that is unlikely.  How the wrong date stamp was affixed to the supplementary application, again, I have no knowledge.  However, I endeavour to deal with the real facts.  The husband did in December fly to Australia.  He did have airfares from Country H to Melbourne and Sydney and return.  He was accommodated.  He did hire a car.  He came here for a valid purpose.  That was under the orders to see his daughter.

7. On my reading of the affidavit, the expenses certainly exceed A$4,000.  His expenses were incurred part in US dollars and part in Australian dollars and the exchange rate as at December of last year is not in evidence before me but it was certainly then approaching parity or thereabouts.  What I intend to do for the purposes of this exercise and bearing in mind the husband is here for a short period, we are about to commence Easter, these parties have spent all of this day in court and I am trying to minimise any further court hearing and these reasons are being delivered extempore.  All matters considered, I will accept that the husband’s claim is for A$4,000.  That claim has been carefully structured by his counsel under section 70NEB which deals with the powers of the Court and include in subparagraph (f) thereof the following:

   Make an order that the person who committed the current contravention pay some or all of the costs of the other party to the proceedings –

   and then it goes on thereafter to effectively deal with the restitution of moneys paid in this case for travel, car and accommodation.

8. It is just that the wife pay some amount.  The whole visit and the expense of the visit was aborted, notwithstanding some minimal sightings or time spent thereafter.  The real essence of the time that was the subject of consent orders did not occur.  Again, I am of the opinion that I must be mindful of the financial circumstances of both parties.  The husband has a secure job but says he earns only US$68,000.  That may or may not be challenged by the wife and I have no regard to the Child Support Agency proceedings, where there is a reserved judgment outstanding and where these matters have been perhaps canvassed in more detail.  I am mindful of the fact that the wife is not in full-time employment.  She has skills as an accountant but does have a four, almost five-year-old child who is not yet at school. 

9. Within the parameters that I have outlined, but bearing in mind the necessity to do justice to both parties and on the basis of the conviction recorded, I have assessed costs $2,000.  They will be paid by the wife to the husband. 

10. I now deal with the stay of those costs.  I am generally satisfied that the payment of moneys from the Child Support Agency is infrequent and/or has been deferred pending continuing assessment and/or the outstanding court judgment.  I can only take a general approach to these matters and the wife perhaps will not be working for the balance of this year but will be working next year.  I am, without hearing counsel, going to fix a stay period of 12 months.  Again, that might be generous to the wife but it affords her the opportunity to save, to work and to pay those moneys, and the order I make will be for the payment of $2,000 stayed for 12 months. 

11. I will have those reasons transcribed together with the earlier reasons and consolidated within the one judgment which will, of course, be made available to the parties as soon as it is received and/or read and approved of by me.  I add only that because I will be in Full Court and interstate and elsewhere, that subject to the typing by the agency of the transcript, it may take some little time, indeed weeks, for that to be available, but when it is it will be mailed to the registered addresses of the wife personally and of the husband’s solicitor.

12. And I just want to say one other thing and I want make this abundantly clear.  These orders contain the dates and times or the spend time arrangements on this visit.  They are to be complied with.  I am balanced in saying that I have endeavoured to put something forward that is meaningful for the daughter, but I want no more excuses.  The husband has got to be on his best behaviour.  The wife has got to understand that at this age the daughter is capable of forming an understanding, views and impressions and taking in the events of the day.  She must go to her father.  The father must love and protect her and must return her punctually to the mother at the conclusion.

13. The return will be exactly the same spot in public view, the McDonald front door, not in the play yard, not in the restaurant, at the front door, however it is designated.  I do not have the luxury of having a picture of the McDonald shop and the front door in my mind, but there must be a main entrance.  I do not mean on the steps.  I mean in the car park close as possible to the front door.  Now, what I do not want, what I do not expect is for next Wednesday or Thursday to have an urgent application to re-deal with the matter.  If there is, I will, but it will be with the knowledge and understanding that I have fairly and equally warned both parents to grow up, to show some maturity, to respect their consent orders.  And indeed they were consent orders, and for this much kerfuffle to arise out of consent orders is both disappointing and bluntly wrong.

14. Now, I have said enough.  I say no more.  I do not want to see the parties again.  I want the daughter to have a very good life, a secure safe life, knowing her two parents who conceived her and brought her into the world for all their differences, distance, culture whatever.  

I certify that the preceding Thirty One
(31) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 20 April 2011.

Associate: ……………………………………………………………

Date:  …………………………………………………………………