CARLTON & KETHEL

[2015] FCCA 3561

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARLTON & KETHEL [2015] FCCA 3561

Catchwords:
FAMILY LAW – Contravention – summary dismissal.

Applicant: MR CARLTON

Respondent: MS KETHEL

File Number: SYC 196 of 2007

Judgment of: Judge Henderson

Hearing date: 29 September 2015

Date of Last Submission: 29 September 2015

Delivered at: Sydney

Delivered on: 29 September 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: No appearance

ORDERS

1. The father’s applications filed 2 June 2015 and 5 June 2015 are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 196 of 2007

MR CARLTON

Applicant

And

MS KETHEL

Respondent

REASONS FOR JUDGMENT

1. I propose to dismiss the father’s application for contravention. I read onto the record my reasons why I am making this decision.

2. The first is, when I read the decision of Judge Altobelli of 2013, paragraph 160, His Honour says this:

   The father trivialises the fear that the mother and children experience. The serious family violence perpetrated by the father in years gone by and dealt with in my first judgment continued to throw a shadow over subsequent events. There is a real sense in which the mother is re-victimised every time he brings her back to court.

3. At paragraph 162, His Honour says:

   Regrettably, the history of these proceedings indicates the father will bring contravention proceedings seeking to enforce his perceived rights.

4. Paragraph 164:

   The harsh lived existence for the mother and children is that litigation has been a part of their lives since 2007, and thus the court must do all it can to minimise the prospect of further litigation.

5. Paragraph 165:

   The mother seemed open to the possibility of some communication between the father and children and that the children could initiate this. The court is satisfied the mother would not get in the way of implementing such a proposal for the children.

6. The second reason is the contravention application filed on 2 June 2015 is defective in that I cannot ascertain from it the specific allegations or particulars of the breach. The annexures to the contravention do not appear to me to relate the asserted breaches of orders. The orders that were made by Judge Altobelli are as follows.

   The mother have sole parental responsibility for the children, X born (omitted) 1999 and Y born (omitted) 2002.

   The children live with their mother.

   There be no order for the father to spend time with the children.

   The father be at liberty to communicate with the children and the mother do all things necessary to facilitate such communication by way of letters, cards and gifts on their birthday and at Christmas by letters no more than once a month provided the father does not in the course of such communication discuss these orders or the separation and subsequent proceedings between the parents or any issue arising therefrom or denigrate the mother.

   The mother will regularly inform the father by mail, email or SMS and keep the father informed about all significant matters relating to the children’s health and education.

7. As I read the evidence, there is no evidence of any significant matters relating to the children’s education or health in the father’s material that the mother should have informed him of, no evidence that the father has communicated with the children by way of letter, gift or card on their birthday or letter once a month and the mother has hindered in them receiving those communications.

8. The evidence the father attached to his material is as follows: annexure 8. A complaint that the mother travelled overseas without the children, that the mother did not inform him about the children’s education and health during that period, that on 6 April 2015 his son did not attend at (omitted) High School for five days. He knows nothing about his daughter’s schooling. The school would not give him any information about the children.

9. In his affidavit of 22 September 2015 the father says a person unknown rang him on 12 July 2014 and said the mother has left the children in Australia and travelled to (country omitted); that the mother’s boyfriend and sister and her husband kept the children forcibly in their home; that every day of the week of 6 April 2014 he went to see his son at school and he did not attend; that the mother “has not advised me of the address of the high school where his daughter attends”, and the mother has changed address and has not told him; that her mother’s mental illness would be deteriorating and continuing to deteriorate; that if the mother allowed the children to see their father they would want to live with him, and it is the best interests of the children they live with their father.

10. There is no obligation under the orders for the mother to provide addresses or details of her home or the children’s home or their school. I accept it may well be that attending high school is a significant event in a child’s education, but the father’s evidence falls short, both in the way that it is prepared and presented in satisfying me that there is or has been any breach.

11. The boy, X, is 16 and a-half and will be 17 next year. Y is 13 and will be 14 next year. I am concerned that to permit the father to pursue this contravention which can only be done if he obtains from me a location order for the mother’s address in circumstances where Judge Altobelli found, at paragraph 158 of his judgment, that the husband prioritises his rights over the needs and interests of the children, denies any fear in his children of them having witnessed him perpetrate family violence on their mother may result in harm to the children.

12. The father has failed to adhere to orders of the Court in the past. He has behaved poorly towards his family in the past. The continuation of litigation re-victimises the mother every time the matter is brought back to Court. This together with the obligation of the Court to minimise further litigation in circumstances where the evidence filed is sorely lacking to support any positive finding or prima facie case of a contravention supports my decision not to exercise my discretion to hear these applications and the application for contravention is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 12 February 2016