Family Court of Australia

Mayne & Escandon	[2015] FamCAFC 88	

FAMILY LAW – APPEAL – ENFORCEMENT OF ORDERS – Appeal against an order requiring the father to pay travel costs pursuant to a previous order – The father was denied procedural fairness because he was not given an opportunity to respond to the mother’s application – Appeal allowed – Matter remitted for rehearing.   	

Appellant:	Mr Mayne	

Respondent:	Ms Escandon	

File Number:	PTW	2052	of	2011	

Appeal Number:	WA	3	of	2015	

Date Delivered:	22 April 2015	

Place Delivered:	Perth	

Place Heard:	Perth	

Judgment of:	Thackray J	

Hearing date:	22 April 2015	

Lower court jurisdiction:	Magistrates Court of Western Australia	

lower court judgment date:	22 December 2014	

LOWER COURT MNC:	[2014] FCWAM 98	

REPRESENTATION

THE Appellant:	In person	

THE RESPONDENT:	In person	

Orders
(1)	The appeal be allowed. 
(2)	The orders made on 22 December 2014 be set aside. 
(3)	The matter be remitted for hearing, if practicable before Magistrate Moroni, on a date to be fixed. 
(4)	Not later than 21 days prior to the hearing before the Magistrate, the father shall file and serve a Form 2A response and an affidavit setting out the evidence on which he intends to rely. 

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

in the appellate jurisdiction OF THE Family Court of Australia 
at perth	

Appeal Number: WA 3 of 2015
File Number: PTW 2052 of 2011

Mr Mayne	
Appellant

And

Ms Escandon	
Respondent

EX TEMPORE REASONS FOR JUDGMENT
1.	By Notice of Appeal filed on 16 January 2015, Mr Mayne (“the father”) challenges an order made by Magistrate Moroni on 22 December 2014.  Ms Escandon (“the mother”) was initially intending to oppose the appeal, which concerns a very small amount of money, namely $1,093.68.  
2.	The appeal was listed for directions today, but after some preliminary discussions with the parties, I decided to call on the appeal for hearing.  
3.	These are my reasons for deciding the appeal should be allowed.
4.	Some years ago, there was a dispute between the parties as to whether the mother should be permitted to relocate to South America with the child of the marriage.  On 27 September 2012, Moncrieff J made an order restraining the mother from changing the child’s place of residence.  His Honour also made an order allowing the mother to take the child to South America for a six-week holiday prior to 2 February 2013, and at other times “as may be agreed”.  The orders went on to require the father to pay half of the mother’s return airfare for the holiday, and the child’s full return airfare.  The orders did not place a cap on the amount to be paid, and there has been much disagreement between the parties in relation to this issue.   
5.	A trial relating to parenting issues then took place before Magistrate Moroni on 19 November 2013, and his Honour made orders and delivered reasons on 2 December 2013.  The father had sought an order from his Honour excusing him from contributing to the cost of the mother and child travelling to South America.  In his reasons, the Magistrate noted that Moncrieff J’s order only referred to one specific period of travel.  The Magistrate then said at [97] that “it was clear from the evidence that what the parties agreed at the time” was for the mother to take the trip each year, with the father to contribute to the travel costs of each trip.  His Honour stated at [200] that “on present indications, the [father] would need to budget about $3,300 … annually”, before concluding at [201] that “a final order should be made requiring the [father] to make the contribution … that he agreed”.  His Honour therefore changed the orders to allow the mother to take the child to South America “each summer”, with the father to “meet one half of the reasonable cost of the [mother’s] return airfare and the full reasonable cost of the child’s return airfare necessary to facilitate [that] travel”.   
6.	The matter came back before Magistrate Moroni on 11 June 2014 for a trial of the financial proceedings and consideration of other applications seeking to vary the parenting orders.  In a judgment delivered on 24 June 2014, his Honour dismissed a further application by the father to reduce or discharge his liability for contributing to the travel costs.  The Magistrate again noted at [112] that the father “would need to budget about $3,300 annually”, and went on to emphasise the importance of the child being able to maintain a relationship with his family in South America.  His Honour made an order, “by way of implementation” of the orders made on 2 December 2013, for the father to pay the necessary costs “in a lump sum to the [mother] at the same time as the [mother] meets her share of the cost”.  Again, there was no cap on the amount the father was obliged to pay.
7.	On 2 December 2014, the mother filed an enforcement application, claiming that the father “refused to pay more than $3000” but that “the tickets cost $5500”.  The application was listed before Magistrate Moroni on Monday, 22 December 2014.  Regrettably, there was a long delay in the return of the service copies to the mother, and she was only able to serve the application on the Saturday immediately prior to the hearing.    
8.	Having only just served the documents, the mother properly informed the Magistrate that she was aware the father had travelled interstate the day before the hearing and would be away until 3 January 2015.  Notwithstanding that advice, the Magistrate elected to proceed for reasons which appear in the transcript.  Significantly, his Honour said (transcript, 22 December 2014, p 3):
Notwithstanding the fact that notification of the application was made relatively late – and that is not due to any fault on the part of the respondent – the court is satisfied that the application should proceed to resolution today.  This is because the applicant is likely to have anticipated that the respondent would take action to enforce the court order.  The issue has been agitated more than once, and the applicant should be aware that the court has taken the view that he should honour the order which he appears to have agreed to, made back in 2012.  
9.	His Honour went on to discuss the amount that the mother was seeking, prior to making the order which is the subject of the appeal for the father to pay the mother $1,093.68.  This amount was based on the total cost of the trip being $5,458.24 – i.e. significantly more than the $3,000 the father had already paid.
10.	The first ground in the father’s Notice of Appeal complains that the Magistrate advised him “to budget for a maximum of $3300 annually”.  I have already said that the earlier orders placed no cap on the amount that the father is obliged to pay.  
11.	The second ground of appeal asserts that the father had been denied procedural fairness “as I could not be present at the hearing on 22 December 2014 as I was given insufficient notice”.  The third ground particularises this complaint by stating: 
I was served the affidavit filed 2 December 2014 by the applicant herself, (not by a third party) on Saturday, 20 December 2014. Therefore served against correct protocol and given no business days to consult a lawyer for the hearing scheduled on Monday 22 December 2014. I find this extremely unreasonable. 
12.	There would seem to be merit in the Magistrate’s view that the father should comply with the order by paying whatever amount was necessary for the mother and child to travel to South America.  However, the enforcement of any court order is discretionary.  It follows, in my view, that the respondent to an enforcement application is entitled to adequate notice of a hearing, and an opportunity to participate in the hearing, in order to put before the court any matters that might be relevant to the exercise of the court’s discretion.  
13.	In the present matter, the father presumably wanted to argue that it would be inappropriate for the court to enforce its order by requiring him to pay $4,093.68, when previous evidence had indicated that the cost to him would be somewhat less.  I do not pass any comment on whether that is a good argument.  However, with respect to the Magistrate, I consider that his Honour erred in not adjourning the proceedings to allow the father be heard in response.  
14.	In making these observations, I am not critical of the Magistrate.  His Honour adopted what might be seen as an entirely pragmatic approach.  It was a matter with which the Magistrate was very familiar, and his Honour was no doubt mindful of the significant drain on the court’s resources of having to deal with applications involving a very small amount of money, in the context of a case which has already occupied an inordinate amount of public resources.  However, our system of law operates on the basis of certain fundamental principles, and on this occasion, one of them appears to have been infringed.    
15.	In her submissions before me today, the mother recognised the strength of the father’s appeal.  She accepted that it would be pragmatic for the matter to be remitted for rehearing, to allow the father to file a response and put his argument.  
16.	On that basis, I will allow the appeal and remit the matter for rehearing.  I note that the parties do not object to the matter being reheard by Magistrate Moroni. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 22 April 2014, edited to correct grammatical errors and some infelicity of expression.

Associate:  	

Date:  		19 May 2015