Withers and Russell

[2018] FamCA 182

FAMILY COURT OF AUSTRALIA

WITHERS & RUSSELL [2018] FamCA 182

FAMILY LAW – CONTRAVENTION – whether Respondent has either intentionally failed to comply or made no reasonable attempt to comply

APPLICANT: Mr Withers

RESPONDENT: Ms Russell

FILE NUMBER: CAC 223 of 2015

DATE DELIVERED: 21 March 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 21 March 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Mr Harper

Orders

1. The contravention application filed by Mr Withers on 20 December 2017 is dismissed.

2. An application for costs is made on behalf of the wife, that application is adjourned for mention only to 9am on 6 April 2018 to be heard with the balance of the contravention matters in these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Withers & Russell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 223  of 2015

Mr Withers

Applicant

And

Ms Russell

Respondent

REASONS FOR JUDGMENT

1. In this case, it is alleged that Ms Russell has contravened Order 22 of the Orders made by Watts J on 20 September 2016.  Order 22 provides an obligation that 14 days in advance of travel, certain matters are to be complied with by the wife, including providing the husband with a copy of return tickets for the children, a copy of the confirmed flight itinerary and proof of payment, including return airfares for the children and contact details, including mobile and landline contact numbers, and telephone numbers where the children can be contacted by telephone for the duration of the time they are away from the husband.

2. There is no specific requirement for the provision of an address beyond the provision of those telephone numbers.  The focus of the applicant’s complaint that there had been a contravention is that these details were not provided until after the expiration of 14 days before the international travel.  It is important that Order 22 be complied with as, in this case, the children are required to undertake international travel.  Travel which usually requires a significant amount of forward planning and reasonable assurance that the mechanisms are in place for the travel for the children.  It is understandable why Order 22 was made and it is important that it is complied with.

3. The timing for what is required in Order 22 is predicated on the operation or Order 21, which is the substantive provision providing for the international travel.  It is necessary in this case for the applicant to demonstrate that firstly, Ms Russell is bound by the order, and there is no issue as to that, but secondly, that she has either intentionally failed to comply with the Order or made no reasonable attempt to comply with the Order.  That is the characterisation of what it means to have contravened an Order, which is the first step in showing a contravention in the proceedings. 

4. In this case, the substantive provision of the travel allows the parties to come to an agreement about the international travel, provided that agreement is in writing.  Absent coming to an agreement for such travel, then there are default provisions which determine what the travel will be.  In this case, in October in the lead-up to the travel, which was due to occur in December of 2017, the parties commenced their interchanges about what the arrangements would be for the travel.  Rather than rely upon the default provisions which would have seen the flights rendered more expensive, the husband reasonably agreed with the wife that travel would be able to take place outside of the default period so as to take advantage of cheaper airfares.

5. However, the correspondence between the parties did not resolve when the flights were to take place.  There was clear agreement on the part of the husband that the flight could take place on 11 December in advance of when it would otherwise have taken place, which was 15 December.  That agreement was given by the husband well in advance of the 14-day period.  However, there was no corresponding agreement communicated to the wife as to the return trip.  The wife had asserted that the return tickets should also be booked for 11 January.  Up until the point, the husband’s position had been that the return trip would have to take place on 8 January.

6. He did not give a response confirming that 11 January was a suitable time for travel until he responded on 4 December querying why it was that the wife was pursuing confirmation of what he said was already agreed.  That is, shortly before his confirmation of agreement on 4 December, the wife had sent him correspondence asking him to confirm whether or not the return on 11 January would also be acceptable.  It may well be that the husband formed the mistaken idea that he had already communicated sufficiently to the wife to demonstrate that the agreement was to both 11 December and 11 January.

7. However, he had not done so.  He had communicated 11 December, but not 11 January.  Under the circumstances of the case, it could not be taken that that silence to the wife’s proposal that the return trip be taken on 11 January could be construed to be an agreement on the part of the husband.  There is not a sufficiently warm relationship between the parties for that to be taken to be the case.  The agreement in writing between the parties did not crystallise until 4 December, which is within the 15-day period.  Given that the flight was to take place on 11 December, there was no ability for the wife to comply with the Order because of that particular fact.

8. That means I am unable to find that she has either intentionally failed to comply with the Order to give those details 14 days in advance or that she made no reasonable attempt to comply with that Order and the contravention proceedings are dismissed.  An application for costs is made on behalf of the wife.  That application is adjourned for mention only to 9am on 6 April 2018 to be heard with the balance of the contravention matters in these proceedings.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 March 2018.

Associate: 

Date:  21 March 2018