SUITES & GAUDE

[2013] FamCA 115

FAMILY COURT OF AUSTRALIA

SUITES & GAUDE [2013] FamCA 115

FAMILY LAW - CONTEMPT - Contravention of Court order

Family Law Act 1975 (Cth)

APPLICANT: Mr Suites

RESPONDENT:	Ms Gaude
FILE NUMBER:	MLC	4122	of		2010

DATE DELIVERED: 7 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 7 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cronin

SOLICITOR FOR THE APPLICANT: Harwood Andrews Lawyers

COUNSEL FOR THE RESPONDENT: In person, assisted by Ms Murray

SOLICITOR FOR THE RESPONDENT: N/A

THE MOTHER, HAVING ADMITTED THAT SHE HAS, WITHOUT REASONABLE EXCUSE, INTENTIONALLY FAILED TO COMPLY WITH PARAGRAPH 9.3 OF THE ORDERS MADE 5 JULY 2010

IT IS ORDERED BY CONSENT THAT

1. Upon the father giving 14 days notice in writing to the mother the father spend 8 days make up time with the child L born … December 2004.

2. The mother forthwith enrol and as soon as practicable attend and complete the B Post-Separation Parenting Course at Suburb C.

IT IS FURTHER ORDERED THAT

1. The father’s application for contravention filed 23 December 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Suites & Gaude 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 MELBOURNE

FILE NUMBER: MLC 4122 of 2010

Mr Suites

Applicant

And

Ms Gaude

Respondent

REASONS FOR JUDGMENT

1. The matter listed before me this day in the Judicial Duty Lists is the father’s Application for Contravention filed 23 January 2013.  The mother appeared in person however, she sought advice from and was assisted by the Duty Lawyer, Ms Murray.  The father alleges that on 7 January 2013 the mother, without reasonable excuse, refused to allow the father to spend time with the child of their relationship for his week of school holidays, pursuant to paragraph 9.3 of the orders made by consent on 5 July 2010.  The mother admitted the allegation. 

2. The second of the two alleged contraventions was withdrawn by the father. I am satisfied on the basis of her admission that the mother has, without reasonable excuse, intentionally failed to comply with paragraph 9.3 of the orders made 5 July 2010. I am also satisfied that section 70NEA of the Family Law Act1975 (Cth) (“the Act”) applies in relation to this contravention in that there has been no sanction previously imposed nor have proceedings been adjourned with respect to a previous contravention. That being the case, the Court may order that the mother attend a post-separation parenting course, or make up time compensating the father for the time he was unable to spend with the child, adjourn the matter to allow either or both of the parties to apply for further parenting orders, place the mother on a bond, or, if the mother refuses, without reasonable excuse, to enter into a bond, as required, impose a fine.

3. In this case, the father and the mother have agreed that the father should have eight days make-up time with the child, and it is common ground that the mother has enrolled in B parenting course at Suburb C.  The father, due to his work commitments, has not specified the dates upon which he is to spend make-up time with the child, and the parties have agreed that he will give the mother 14 days notice in writing of his intention to do so.  The orders proposed by the parties are, in my view, in all of the circumstances of this case, appropriate orders for the Court to make, and in the child’s best interests.  I will make orders by consent in those terms. 

4. The Act also provides that I may, having found that the mother has, without reasonable excuse contravened the order, make orders that she pay some or all of the father’s costs. The father seeks payment of his costs. This is opposed by the mother. The general rule is that each party to proceedings, pursuant to the Act, should pay their own costs however, the Court may, if it is satisfied there are circumstances that would justify it doing so, make an order for costs in favour of a party. In doing so, the Court must have regard for the matters set out in section 117(2A) of the Act in determining whether it should make an order for costs and, if so, the quantum of that order.

5. In this case, the father says his costs are $3000, made up of $2000 for his solicitor’s costs and $1000 for briefing Counsel.  It is the father’s case that these proceedings were necessitated by the mother’s failure to comply with the orders.  He relies upon the letter forwarded to the mother on 8 January advising that, unless arrangements were made for him to collect the child that evening, that he would proceed with his application for contravention and that he would be seeking an order for costs on an indemnity basis.  Although the father now seeks an order that the mother pay his costs, he did not submit, correctly in my view, that those costs should be paid on an indemnity basis.  

6. For her part, the mother submits that on 31 January 2013, a letter was forwarded on her behalf by Victoria Legal Aid to the father’s solicitor, asking him to withdraw his application for contravention on the basis of her offer of make-up time and her enrolment and attendance at a post-separation parenting course.  Although the mother concedes that the father had already issued his application, it is also submitted by the mother that I should take into account the fact that the father proceeded with his application notwithstanding her offer. 

7. The father is employed on a full-time basis as a tradesman and says that he earns between $50,000 and $55,000 per annum after tax.  He owns the property in which he lives, subject to a mortgage, and has limited equity in that property.  After payment of his mortgage and his expenses, including child support, of approximately $300 per month, he is left with about $500 per week in his hand.  The mother is employed on a casual basis and she says she earns, on average, $350 per week gross.  She is in receipt of $150 per week Newstart, and $69 per week child support from the father.  She also has a mortgage and she says pays mortgage payments of $290 per week.  The child lives primarily in her care and spends four nights per fortnight with the father. 

8. Although I have had regard to the fact that these proceedings were necessitated by the mother’s failure to comply with the orders, I have also had regard to the fact that she admitted that she had contravened the order, that she offered make-up time, and that she voluntarily enrolled in a post-separation parenting course.  Whilst it is open to me to make an order for costs in favour of the father I do not, in this case, propose to do so.  The father is in a superior financial position to the mother and an order for costs would, in my view, not only impose a significant penalty upon the mother but would also be likely to indirectly penalise the child.  In those circumstances, I do not propose to make an order for costs in favour of the father.

9. Contravention proceedings are intended to ensure that the parties will comply with orders the Court has made.  In light of the mother having admitted that she has contravened the order, proposed the make-up time, and taken steps to enrol in a post-separation parenting course, I am satisfied and have some confidence that she will comply with the orders in the future.  I’m satisfied the orders agreed upon by the parties are appropriate and do not propose to make any further orders.  In those circumstances, I propose to otherwise dismiss the father’s application filed 23 January 2013. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 7 February 2013.

Associate: 

Date:  28 February 2013