ALEXANDER & INGRAM

[2015] FCCA 2194

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALEXANDER & INGRAM [2015] FCCA 2194

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – summary dismissal – application for summary dismissal – no reasonable prospect of successfully prosecuting the proceedings.

COSTS – Application for costs.

Legislation:

Family Law Act 1975 (Cth), ss.70NAC, 117

Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001, rr.8.01, 13.10

Applicant: MR ALEXANDER

Respondent: MS INGRAM

File Number: BRC 8104 of 2008

Judgment of: Judge Scarlett

Hearing date: 7 April 2015

Date of Last Submission: 7 April 2015

Delivered at: Sydney

Delivered on: 17 August 2015

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Mr Donaldson (by telephone)

Solicitors for the Respondent: Burns Law

ORDERS

1. The Application – Contravention filed on 23 September 2014 is dismissed.

2. Within fourteen (14) days of the date of these Orders the Applicant is to file and serve a written submission setting out why he should not be required to pay the Respondent’s costs fixed in the sum of $5,676.61.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

BRC 8104 of 2008

MR ALEXANDER

Applicant

And

MS INGRAM

Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant father filed an Application – Contravention on 23^rd September 2014 claiming that on 2^nd December 2013 the Respondent, his former wife, contravened an Order made by consent on 4^th September 2008. The basis of his claim is that the Respondent contravened the Order by refusing to disclose the school attended by the children.

2. The Respondent opposes the Application and seeks summary dismissal.  

The Order Alleged to have been Contravened

1. The Applicant and the Respondent entered into Consent Orders on 4^th September 2008 by means of an Application for Consent Orders filed at the Brisbane Registry of the then Federal Magistrates Court of Australia.

2. Order 5 of those Orders provides:

   5. That each parent be entitled to attend all events involving the   children including, but not limited to:-

   a.  sporting fixtures;

   b. extra-curricular activities that allow for parental attendance or participation;

   c.  school/day-care functions and events that allow for parental attendance or participation and the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon by the parents.

3. In his Application, the Applicant claims that on 2^nd December 2013 at Brisbane the Respondent contravened the Order in this way:

   The Respondent has consistently refused me access to my children for about 18 Months now. Her excuse was that she has re-married and has found a new father for my children, despite the fact that I pay my child support regularly without a miss. My child support is taken from my salary before I get paid by the CSA. During my son’s graduation in December, she refused me access to attend my son’s graduation. She will not disclose the school they attended which is a clear violation of the Court Order as set out in Minutes of Consent No.5 on page 2.

4. Presumably the Applicant claims a contravention of Order 5(c).

5. The Respondent relies on the following:

   a)an Application in a Case;

   b)a Notice to Admit Facts;

   c)her affidavit of 17^th December 2014;

   d)her affidavit of 3^rd February 2015; and

   e)the affidavit of Ms J of 3^rd February 2015.

6. The Respondent, by her Application in a Case, seeks the following Orders:

   1. Pursuant to rule 8.01 of the Federal Circuit Court Rules 2001 (Cth)[1]the Application – Contravention filed on 23 September 2014 be heard in the Brisbane Registry of the Federal Circuit Court of Australia.

   2. The Application – Contravention filed on 23 September 2014 be summarily dismissed.

   3. The Application for summary dismissal of the Application – Contravention filed on 23 September 2014 be listed for hearing in the Brisbane Registry of the Federal Circuit Court of Australia.      

   [1] Sic – there are no State Federal Circuit Court Rules

Submissions

1. The Application for summary dismissal was heard on 7^th April 2015 in Sydney. The Applicant attended in person. The Respondent’s solicitor, Mr Donaldson, attended by telephone from Queensland.

2. The Applicant relied on a curious document entitled “Application – Contravention based on Violation of Existing Court Orders”. In that document[2], which is clearly not an Application as it is not in proper form, the Applicant makes a number of submissions ranging over a wide area, including making allegations of a number of contraventions of orders which are neither alleged in the Application nor supported by any evidence by way of affidavit. He states that he seeks the discharge of all existing orders and that a raft of fresh orders be made, including:

   a)that the children’s names be placed on the Family Law Watch List maintained by the Australian Federal Police;

   b)that no passport application for the children should be lodged and no passport issued to the children;

   c)that the children’s residence should not be relocated out of the Commonwealth of Australia in general or the State of Queensland in particular;

   d)That there should be a completely fresh set of parenting orders made, including fresh orders for the allocation of parental responsibility; and

   e)That the Respondent immediately disclose the location and residence of the children, although I note that the Respondent has given the same address on each of her affidavits.  

   [2] The document is dated 5 November 2013

3. Suffice it to say that this document is entirely misconceived. If the Applicant wishes to bring proceedings against the Respondent for other contraventions of the Orders or to reopen the parenting proceedings, he would be well advised to consult a solicitor with some experience in family law.

4. The Respondent relies on a Case Summary which includes an Application for Costs in the sum of $5,676.61. The Case Summary also contains a chronology of events.

5. The Case Outline contains some remarkable statements, some of which are not able to be verified by the Court. The Case Summary says at 1.5:

   The Father is self-represented. There are a number of glaring irregularities in the Father’s material, including but not limited to:

   1.5.1The application was signed approximately eleven (11) months before it was filed with the Court, there being no explanation for the delay in filing the application;

   1.5.2One of the alleged contraventions relates to the school graduation ceremony that took place on 10 December 2013. The application was signed approximately one month before those alleged events took place;

   1.5.3One of the alleged contraventions relates to “Order 15” of the Orders. There is no Order 15 in the parenting orders;

   1.5.4The Father complains of the children not spending time with him, but does not specify any order relating to the children spending time with him at Part D. Item 6 of the Application;

   1.5.5The mother was never personally served with the contravention application, the application being sent to her by post; and

   1.5.6The mother was provided with a contravention application that, whilst appeared[3] to bear the Court’s seal, differed in context from the contravention application on the Court’s file. The Father has also burdened the mother with multiple court documents that have not been filed with the Court.

   [3] sic

Conclusions

1. Whatever documents the Respondent has received, the fact is that there is only one Application – Contravention before the Court, which is the Application filed on 23^rd September 2014 complaining of a contravention of Order 5 on 2^nd December 2013.

2. This curious Application was quite obviously affirmed before a Justice of the Peace at (omitted) NSW on 5^th November 2013, almost a month before the alleged contravention is said to have taken place on 2^nd December 2013. It cannot be regarded as having any relevance to the matter that the Court is being asked to decide.

3. The Order itself, Order 5, creates a liberty, not an obligation, as the Respondent’s solicitor submitted. In any event, the Applicant’s affidavit of 20^th February 2014 contains no details of the Respondent’s refusal, merely an assertion that:

   The respondent has refused to allow me to attend my son’s graduation from primary school last December 2013 and would not disclose the location of the school or where the ceremony was taking place.[4]

   [4] Affidavit of Mr Alexander 20.2.2014 at paragraph [4]

4. Rule 13.10 provides that:

   The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceedings, if the Court is satisfied that:

   (a)the party prosecuting the proceeding the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.

5. There is no reasonable prospect of successfully prosecuting this claim and the Application will be dismissed.

The Affidavit of Ms J

1. Whilst it is clear that the Applicant’s case is without merit or any reasonable prospect of success, a perusal of the affidavit of Ms J dated 10^th December 2014 and filed on behalf of the Respondent adds to the view that the Applicant’s case is without foundation.

2. Ms J is the Principal of (omitted) State School in Queensland. She deposes that the parties’ children attended that school in 2013. The Application for Consent Orders made on 4^th September 2008 and filed at the Brisbane Registry of the Court shows at Item 27 that both children were attending (omitted) State School at that time. The Applicant knew that the children were attending that school in 2008. It is a reasonable inference that they were still attending that same school, applying the presumption of continuance.

3. As the Applicant has been wholly unsuccessful in his claim, he will be given fourteen days to show why he should not pay the Respondent’s costs.

Orders

1. The Application is otherwise dismissed.    

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  17 August 2015