Best and Best (No 2)

[2012] FamCA 828

FAMILY COURT OF AUSTRALIA

BEST & BEST (NO. 2) [2012] FamCA 828

FAMILY LAW – CONTRAVENTION – where the father alleged the mother had not facilitated contact - where the contact service suspended supervised contact – where it was intended the father spend supervised time with the children before any unsupervised time – where the father’s time with the children was subject to conditions – where the father had not met those conditions - contravention not established

APPLICANT: Mr Best

RESPONDENT: Ms Best

FILE NUMBER: WOC 91 of 2010

DATE DELIVERED: 28 September 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 27 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

Orders

IT IS ORDERED

1. That the application for contravention filed 24 September 2012 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 91 of 2010

Mr Best

Applicant

And

Ms Best

Respondent

REASONS FOR JUDGMENT

introduction

1. Before the court is an amended application filed on 24 September 2012, by the father, Mr Best (“the father”), that the mother Ms Best (“the mother”) be dealt with for the alleged contravention of orders made in relation to the children, C, born in June 1999, L, born in December 2000, V born in April 2005 and O born in February 2007.

2. The orders, which are relevant in the proceedings, were made by Ryan J on 3 February 2012 following a defended hearing. Those orders are the subject of an appeal lodged by the father which has not yet been heard.

3. The application also seeks to have the independent children’s lawyer (“ICL”) dealt with for alleged contravention. I was informed by the father that the ICL had been served with the application and affidavit and had acknowledged service. I declined to deal with the application insofar as it sought orders against the ICL for reasons which I will explain here.

4. The ICL indicated in correspondence that his appointment did not continue. 

5. The allegation against the ICL is the same as the allegation against the mother in Charge 3. That is, that the ICL hindered or prevented the children from spending time with the father or, in the alternate, that the ICL interfered with the father and the children benefitting from spending time together. The evidence upon which the father relies in relation to the ICL is set out in those passages of his affidavit upon which he relies in relation to the same charge against the mother. For the same reasons which I set out in relation to that charge in relation to the mother, the charge cannot be made out against the ICL.

6. At the commencement of the hearing the procedure was explained to the parties who both appeared without legal representation. Although…