Belton and Braim

[2019] FamCA 815

FAMILY COURT OF AUSTRALIA

BELTON & BRAIM [2019] FamCA 815

FAMILY LAW – CONTEMPT – Where the father pressed an application that the mother be dealt with for contempt – Where the applicant cannot establish proper service – Where the Application is defective – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Sahari & Sahari (1976) FLC 90-086

APPLICANT: Mr Belton

RESPONDENT: Ms Braim

FILE NUMBER: BRC 3195 of 2017

DATE DELIVERED: 14 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 14 October 2019

REPRESENTATION

FOR THE APPLICANT: Self-represented

FOR THE RESPONDENT: Self-represented

Orders

1. The Application - Contempt filed by the applicant on 18 March 2019 be dismissed.

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 Belton & Braim 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 BRISBANE

FILE NUMBER: BRC 3195 of 2017

Mr Belton

Applicant

And

Ms Braim

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, Mr Belton, filed an Application – Contempt on 18 March 2019 and has established that, on 21 March 2019, he served a copy of that Application and a supporting affidavit by himself upon the respondent. The Application – Contempt does not itself have a copy of any order annexed to it despite Part C of the Application referring to this as a requirement. The annexures referred to in the supporting affidavit were not annexed to the affidavit, as accords with r 15.08 of the Family Law Rules 2004. Mr Belton says that the annexures were served at the same time as the Application and affidavit upon the respondent. The respondent disputes this and the affidavit of service does not mention the annexures.

2. Quite apart from those matters, there are some deficiencies, in my view, with the Application – Contempt on its face. Firstly, the Application does not make clear what particular section of the Family Law Act 1975 (Cth) is relied upon i.e. s 112AD or s 112AP.

3. Secondly, and perhaps more importantly, in relation to count one, the Application does not set out a date, a time, or a place of the alleged contempt. The particulars for the alleged contempt state only this:

   The respondent without reasonable excuse refused to file and serve a complete and executed copy of her documents.

4. While the respondent, when represented on the last occasion before me, made a general concession that she had not complied with various orders, I am not satisfied that is a sufficient concession for me to deal with and rule upon such a poorly particularised allegation against the respondent. The respondent is entitled to know exactly what is alleged against her. As long ago on Sahari & Sahari (1976) FLC 90-086 the Full Court has held that the “precise breach of an order must be proved”. This is because of the possible sanctions, (including prison) that might be imposed if a person is found to be in contempt.

5. I also note that the order allegedly served with the Application – Contempt does not even relate to the filing of documents.

6. Accordingly, I dismiss count one.

7. The second count is particularised as follows:

   The respondent without reasonable excuse refused to contact W Group and register for intake in order to enable supervised time to commence between the Father and the child X born in 2011.

8. As with count one, the applicant is unable to prove that the relevant order was provided to the respondent at the time of service and the Application itself does not identify any order, or particularise a date, time, and place at which the alleged contempt of that order occurred. Count two is dismissed on the same basis as count one.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 14 October 2019.

Associate: 

Date:  8 November 2019