Bradley and Van Veen

[2011] FamCA 188

FAMILY COURT OF AUSTRALIA

BRADLEY & VAN VEEN [2011] FamCA 188

FAMILY LAW - PRACTICE AND PROCEDURE – where the father has not attended contravention proceedings initiated by him – where attempts to contact the father have been unsuccessful – where the Court is satisfied that the father was aware of the listing – where it is in the best interests of the child that the matter be progressed – orders that the contravention proceedings be dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Bradley

RESPONDENT: Ms Van Veen

FILE NUMBER: ADC 4961 of 2007

DATE DELIVERED: 11 March 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mrs Read

SOLICITOR FOR THE RESPONDENT: Hemsley Gilbert & Mattner

Orders

1. The father’s contravention application filed on 23 November 2010 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4961 of 2007

Mr Bradley

Applicant

And

Ms Van Veen

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter that was listed before the Court this morning is the contravention application filed by the father on 23 November 2010.  The contravention application brought by the father alleges numerous contraventions by the mother of the orders in relation to the child of the parties. 

2. The matter was brought before the Court and on the directions of Justice Burr on 28 February 2011, when the father was in attendance in person, the matter was referred to the list to await allocation of a hearing date and time for the special sittings listed for this week and next week.  The evidence before the Court is that the Case Coordinator informed the father by telephone on 10 March 2011 that the matter was being listed for two days commencing at 10.00 am this morning.

3. Subsequently, at the request of counsel for the mother, the commencement of the final hearing in the contravention application was postponed until 11.00 am this morning.  I am told by counsel for the mother that attempts were made to telephone the mobile telephone number for the father and advise him of the delayed start, but those attempts were unsuccessful with the phone call going to message.  I have also been informed by the Court Officer this morning that attempts were made by the Court Officer to telephone the father on the mobile telephone number available for him on the Court file, but on two separate occasions, the mobile phone went to message.  The father has been called numerous times this morning by name and there is no appearance.

4. I am also told from the bar table that it is not unusual for the father to fail to appear even though he has proceedings before a Court.  This matter is listed in the special sittings so that the contravention matter could be concluded in order that the outstanding initiating application for final orders could be dealt with (currently listed for Wednesday, 6 April 2011).  This is a significant factor to bear in mind which would have an impact upon the best interests of the child. 

5. Whilst this is a procedural matter, the best interests of the child may not be considered as the primary consideration, however it is a significant factor.  The failure of the father to attend without explanation coupled with the need to bring about the situation where the substantive matters concerning the child, S, can be decided as quickly as possible indicates that dismissing the contravention proceedings would not only be in the best interests of the child but would also be just and equitable.

6. I have now been informed by the Court Officer that the National Enquiry Centre has received no inquiry from Mr Bradley and that the Case Coordinator spoke to Mr Bradley yesterday and told him it was a Friday and Tuesday listing and he expressed surprise that two days were to be now allocated. 

7. I am satisfied therefore that Mr Bradley was aware of the proceedings listed today and that there being no explanation for his failure to attend in the contravention proceedings that were listed before me today (being his contravention proceedings).  I dismiss the contravention proceedings brought by the father on 23 November 2010.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 March 2011.

Associate: 

Date:  18 March 2011