Adamson and Adamson

[2014] FCCA 541

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMSON & ADAMSON [2014] FCCA 541

Catchwords:
FAMILY LAW – Contravention of parenting orders.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:
Adamson & Adamson [2013] FCCA 1228

Applicant: MR ADAMSON

Respondent: MS ADAMSON

File Number: PAC 1461 of 2007

Judgment of: Judge Scarlett

Hearing date: 8 January 2014

Date of Last Submission: 8 January 2014

Delivered at: Sydney

Delivered on: 8 January 2014

REPRESENTATION

Counsel for the Applicant: Mr Ginges

Solicitors for the Applicant: Blackman Legal

Counsel for the Respondent: Mr Rosic

Solicitors for the Respondent: Fortis Law Group

Counsel for the Independent Children’s Lawyer: Mr Whelan

ORDERS

1. The contravention application filed on 17 October 2013 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

PAC 1461 of 2007

MR ADAMSON

Applicant

And

MS ADAMSON

Respondent

REASONS FOR JUDGMENT

1. The substantive application before the Court is an application - contravention brought by the Father against the Mother.  It alleges two breaches or contraventions of Orders made by this Court on 12^th August 2013.  Counsel for the Respondent has submitted that the application is defective in that the contravention alleged on the face of the application has not been and cannot be made out.  It is, in fact, a submission that there is no prima facie case. 

2. It is important to look at the Application itself.  It was filed on 17^th October 2013.  In Part D of the Application, under the heading Details of the Alleged Contravention the Application states at paragraph 6 the numbers “2” and “3”, representing paragraph numbers of orders said to have been contravened.  Paragraph 7 requires the Applicant to state precisely what the Respondent did or did not do, which the Applicant alleges amounts to a contravention, including the date, time and place, if applicable.  The date is given as 9^th October 2013. 

3. The statement of the alleged contravention says:

   On 9 October 2013 the Full Court of the Family Court dismissed the appeal by the respondent mother to have the orders 2 and 3 dismissed.  His Honour, Judge Scarlett’s stay of these orders ended at this time.  The respondent mother was required to return the children to the Sydney metropolitan area under order 3 at that time and has not complied with this order.  The respondent mother picked the children up after a weekend visit with the father on Sunday 13 October and took them out of the Sydney metropolitan area back to (omitted), in breach of order 2.

4. The submission by Mr Rosic of counsel for the Applicant is that no prima facie case has been made out.  He referred first of all to Order 2 which says:

   The respondent mother is restrained from removing the children, X born (omitted) 1999 and Y born (omitted) 2001 from outside of the Sydney metropolitan area.

   Order 3 says:

   The respondent mother must return the children, X and Y to an address within the Sydney metropolitan area within 14 days.

5. It is submitted that Order 2 contains an error on its face which should have been remedied under the slip rule but was not, so that as it stands the Mother’s actions do not constitute a contravention of it.  The submission also goes that Order 3 contains a period of time within which to comply with the order which has not expired.  Those submissions are opposed by counsel for the Applicant who submits that the submission in respect of the slip rule point is “a little cute” and in respect of the time limit in Order 3, the submission is that the time had well and truly expired.

6. It will be instructive to consider briefly the hearing or the history of the hearings of these proceedings.  There was an interim hearing which was held on 12^th August 2013 and a decision was delivered on that date.  It was then that the two orders to which I have referred were delivered (Adamson & Adamson[1]).   

   [1] [2013] FCCA 1228

7. As those orders were against the Respondent she chose to appeal.  A Notice of Appeal was lodged and an application was made for a stay of the orders pending the appeal.  The stay application was heard on two separate occasions, 3^rd and 11^th September.  The hearing went over from 3^rd to 11^th September because it had been put by counsel for the Respondent, who was the appellant, that an application had been made to the Full Court to expedite the hearing of the appeal. 

8. It was not known on 3^rd September whether that application for expedition would be successful and if so, when the appeal could be heard.  As that was a significant point, the matter was adjourned until 11^th September when the Court was informed by counsel for the appellant that the application for expedition had been granted and the appeal was due to be heard on Monday 16^th September.  On that occasion I said:

   However, the fact that the appeal is due to be heard on Monday 16 September is a very strong reason for a stay to be granted.  I’m mindful that the Court should consider the best interests of the children and the desirability of limiting the frequency of any change in children’s living arrangements pending an appeal but it is highly relevant that the period of time until the appeal is very short.

   (See Adamson & Adamson[2] at [10]).

   [2] supra

9. Accordingly, Order 1 was made until further order, saying:

   Orders 2 and 3 made on 12 August 2013 are stayed pending the hearing of the applicant’s appeal.

10. The Appeal was heard by the Full Court of the Family Court.  The Chief Justice delegated the powers of the Full Court to her Honour Justice Ainslie-Wallace who heard the appeal on 16^th September 2013 and handed down her judgment on 9^th October 2013.  The orders made by her Honour were:

    i)Appeal against the orders of Judge Scarlett of 12^th August 2013 be dismissed.

    ii)Appellant Mother pay the Respondent Father’s costs of and incidental to the appeal as agreed or assessed.

    What then happened, of course, on 17^th October was that the contravention application was brought alleging contravention on 9^th October. 

11. That brings the Court to the submissions by counsel for each party.  I would comment in passing that I found the submissions to be interesting, thoughtful and helpful.  Mr Rosic submitted, in respect of Order 2, that there was a problem because, as he pointed out, that on a strict reading of Order 2 it restrained the Mother from removing the children from outside of the Sydney metropolitan area.  Technically that would mean that if the children were situated outside the Sydney metropolitan area, removing them into the Sydney metropolitan area would constitute the contravention.

12. It was submitted that it was clear that the order needed to be dealt with under the slip rule either by deleting the word, “from” from the phrase, “from outside of” or by deleting the words, “outside of”, so as to make it clear on the face of the order that the restraint by injunction was to remove the children from the Sydney metropolitan area to a point outside it. 

13. I will deal with that point first.  Mr Ginges of counsel, as I have said, described that point as “a little cute” and even though it had been submitted by counsel for the Respondent that the slip rule cannot be applied retrospectively, the point that Mr Ginges made was that there was no doubt as to the meaning of the order, either at first instance, when the appeal was lodged, or when the appeal was heard.  As I indicated to counsel, I would re-read the appropriate decisions that I had made and also the appeal decision of her Honour Ainslie-Wallace J.  Indeed, as Mr Rosic pointed out, her Honour referred to Order 2 in its terms in the text of the judgment.  She did so, as I can see, at more than one time. 

14. There is a reference in paragraph 1 and, as Mr Rosic submitted, in paragraph 16 her Honour quoted the orders verbatim.  The short answer is that at no time, either at first instance or during the hearing of the appeal, were the parties or their legal advisers in any doubt as to the meaning of the orders.  In paragraph [9] of my original decision I said:

    What I propose to do therefore is to make an order dismissing the application for recovery order and I make orders (a) restraining the mother from removing the children from outside the Sydney metropolitan area and (b) requiring the mother to return the children to an address within the Sydney metropolitan area within 14 days. 

15. In fairness to Mr Rosic, he himself indicated to the Court that this slip or ambiguity, to put it mildly or “problem”, to use his term, did not come to his attention until he was re-reading the material yesterday.  In my view it is too late.  There was no doubt.  The matter has gone on appeal, the appeal was dismissed, the original decision and the original Order 2, whatever its faults may have been, has been given the imprimatur of the Full Court of the Family Court.  It is too late to apply a retrospective interpretation and consequently the slip rule point fails.  The second limb of the submission relates to Order 3.  That order made on 12^th August said:

    The respondent mother must return the children, X and Y, to an address within the Sydney metropolitan area within 14 days. 

16. Mr Rosic submits that whilst the Order was stayed and that stay came to an end when the decision was handed down on 9^th October that the 14 day period in which to comply with the order still remains.  Against this, Mr Ginges of counsel submitted that this is not the case because by the time the original stay order was made, which it will be recalled was on 11^th September, the 14 day period to comply with the Order had already expired. 

17. True it is that on 3^rd September an interim stay order had been made to cover the period between 3^rd and 11^th September, otherwise the Mother would have remained at least technically in breach but even if one looks at the earlier date of 3^rd September, 14 days from 12^th August would have come to an end on 26^th August.  Thus, it is submitted, that part of the order was spent and therefore when the appeal against the order was dismissed, all that remained was Order 3 saying that the Respondent Mother must return the children to an address within the Sydney metropolitan area. 

18. That order was enlivened by the dismissal of the appeal on 9^th October and that, of course, is relevant to the date (a) of the filing of the application on 17^th October and (b) more importantly, to the date of 9^th October that has already been referred to.  In my view the argument about the stay brought by counsel for the Respondent is persuasive.  I believe it is persuasive in fact for two reasons, one of which, in my view, was not argued but I will mention it in any event.  When the order was stayed on 11^th September, it was the order itself that was stayed. 

19. In my view the order was stayed in toto and it was stayed ab initio.  In other words, the entire order was stayed and the time limit within the order was stayed.  Thus, in my view, when her Honour handed down the decision on 9^th October dismissing the appeal against Order 3, Order 3 was revived with effect from 9^th October including the 14 day period within which the Respondent, the former appellant, was required to comply with the order.  That means that she was required to do so by 23^rd October. 

20. Consequently, it cannot be said that the respondent was in breach, was in contravention of Order 3 on 9^th October, because the 14 day period had not applied.  To use a colloquial phrase it would seem that the Applicant had “jumped the gun”.  The other point I would make is that there is a difficulty in alleging a contravention of an order made on 9^th October on 9^th October.  The law does not distinguish between parts of a day.  The order was made on 9^th October.  Until it was made the order was stayed. 

21. In my view, the Respondent could not be said to have contravened the Order until the date of the order had expired.  In other words, even if there was no 14 day compliance period she could not have been said to have failed to comply with the order until 10^th October but in any event, as I have held, she had a 14 day period in which to comply which would have taken her up to 23^rd October.  It would seem to me therefore that the proper date for the contravention of that order would be once the original time limit had expired and that it would have been open to the Applicant to have alleged a contravention of Order 3 on 24^th October, the day after the expiry of the time period. 

22. I have, as I said, been unpersuaded by the point relating to the slip rule in respect of Order 2.  But I look again at the contravention application.  The statement of the alleged contravention refers, as in the first sentence, to the fact that on 9^th October the Full Court of the Family Court dismissed the appeal to have the Orders 2 and 3 dismissed.  The final sentence states:-

    The respondent mother picked the children up after a weekend visit with the father on Sunday 13 October and took them out of the Sydney metropolitan area back to (omitted) in breach of order 2.

23. It is instructive to look at the form of the Application which is an Application approved by both the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court. There are precise instructions given in part D about the particularisation of the alleged contravention.  Immediately after part D the Applicant is enjoined to attach a copy of the order alleged to have been contravened.  That was done.  It goes on to point out that at item 6 and 7 you must:

    Set out the details of the act or omission which you allege contravened the order, bond, agreement, registered parenting plan, or undertaking or which prevented or hindered the action under the recovery order.  If you allege that there is more than one contravention, you must set out the details for each contravention separately on an additional sheet in accordance with items 8 and 9 of this form.

24. Then paragraph 6 requires the Applicant to state the paragraph number, paragraph 7 requires the Applicant to state precisely what the Respondent did or did not do which the Applicant alleged amounts to a contravention.  There was some discussion with counsel for the parties at the commencement of the proceedings about whether there was one count alleged or two.  Counsel for the Applicant informed the Court that there was one count alleged.  I raised some concerns about it then and I must say that my concerns have not dissipated.  To my mind the application, as set out in part D, is defective because it alleges a contravention of two different orders. 

25. It alleges ostensibly a contravention on 9^th October but it goes on to refer to a contravention on 13^th October.  It is a completely separate contravention of a different order. They should never have been included as part of the one count.  The instructions on the application set out by the Chief Justice and the Chief Judge are precise and, with respect, clear.  As I have found that part of the application is defective in that I have acceded to the submission of counsel for the Respondent that the allegation of the contravention of Order 3 on 9^th October is prima facie incorrect it is, in my view, inappropriate for the Court to find that part of the one count is correct but part of it is defective. 

26. The Court cannot conduct surgery on a count alleging contravention of Court orders and say “Well, that part may be wrong but this part is correct”.  If an application is defective or if a count is defective in part, the entire count must be defective.  That said, I am left, in my view, with no alternative but to dismiss the application. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  8 January 2014