Bain and Stewart (No. 3)

[2008] FamCA 457

FAMILY COURT OF AUSTRALIA

BAIN & STEWART (NO. 3) [2008] FamCA 457

FAMILY LAW – CONTRAVENTION – Adjourned

APPLICANT: Ms Stewart

RESPONDENT: Mr Bain

FILE NUMBER: DGF 766 of 2005

DATE DELIVERED: 2 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 2 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the mother’s Amended Contravention application filed 23 May 2008 shall be adjourned to 26 June 2008 to be dealt with together with the other outstanding applications before the Honourable Justice Cronin on that day.

2. That all costs of this day shall be reserved.

3. That any application the father seeks to make to vary existing telephone contact orders shall be filed and served by 4.00pm on 12 June 2008 and any response shall be filed and served by the mother by 4.00pm on 24 June 2008.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGF 766 of 2005

MS STEWART

Applicant

And

MR BAIN

Respondent

REASONS FOR JUDGMENT

1. This case has a long history in the court.  Guest J made final orders in relation to the parties’ 10 year old son, providing that he should go to live with his father.  That was about 18 months ago.  Sadly, since then there has been further extensive litigation.  The child’s mother is keenly seeking that the child come to live with her. 

2. Cronin J is managing this case.  It is apparent from the court file that the matter is returning to his Honour on 26 June.  The mother (who is unrepresented) tells me today that the application on that date relates to whether or not there are new facts and circumstances to warrant a reopening of the residence issue. 

3. Today the mother has before me an Amended Application for Contravention, filed on 23 May 2008.  The father (who is also unrepresented) would prefer that everything be dealt with by his Honour at the same time. The mother agrees that would be best, but she does have the concern that she has come here from Tasmania today for this hearing. 

4. There are some 38 different charges of contravention.  Perhaps I should not be overly daunted by that because they fall into various categories.  They all relate to telephone contact between the mother and the child. 

5. I would be very concerned about deferring this Contravention Application if the child were not having telephone contact with his mother.  He is.  What is in dispute is whether or not he is having it strictly in accordance with the orders made by Cronin J.

6. The mother has indicated a concern that the child is not being given the independent mobile telephone as ordered, and that telephone calls after about 20 minutes are being terminated on the mobile telephone and being resumed on a landline.  She says she notices a marked difference in the child's attitude once on the landline, and she is concerned that the father and/or his partner are listening in on the call. 

7. The father for his part says that the telephone contact is being properly provided, save that he has been completely overburdened by the expense that he had not anticipated.  He quotes it at $180 per week, but when pressed by me a little further, he said that a “plan” means that it is $120 per week.  The mother says that her inquiries reveal that plans are available for very considerably cheaper, down around $30 per week. 

8. The appropriate course in my view is to adjourn this application to be dealt with along with other matters by his Honour. The father should, if he seeks to vary his Honour's orders, file an interim application and affidavit setting out why the present orders are untenable.  The mother can respond in relation to her inquiries about a telephone plan. 

9. It is sad, and I do not blame either parent because I do not know enough about the case, that these issues have assumed such magnitude that this little boy cannot just smoothly and happily get on with telephone contact in the terms that have been provided.  But I will leave the "why's and wherefores" of that to his Honour on 26 June 2008.

10. I should add one thing so that his Honour is aware of this when the matter is next before him.  The mother has complained today that the father has not yet attended Dr J for the psychiatric assessment previously ordered.  I note that the father has said that he is seeing Dr J on 6 June and that there is absolutely no impediment to that appointment proceeding.

11. So the formal orders that I shall make are as follows:

    1.That the mother’s Amended Contravention application filed 23 May 2008 shall be adjourned to 26 June 2008 to be dealt with together with the other outstanding applications before the Honourable Justice Cronin on that day.

    2.That all costs of this day shall be reserved.

    3.That any application the father seeks to make to vary existing telephone contact orders shall be filed and served by 4.00pm on 12 June 2008 and any response shall be filed and served by the mother by 4.00pm on 24 June 2008.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  2 June 2008