Carter and Davis

[2013] FamCA 678

FAMILY COURT OF AUSTRALIA

CARTER & DAVIS [2013] FamCA 678

FAMILY LAW – Contravention application – Doubtful whether conditions attached to order are capable of being breached – No evidence in any event to require respondent to respond.

Family Law Act 1975 (Cth)

APPLICANT: Mr Carter

RESPONDENT: Ms Davis

FILE NUMBER: ADC 928 of 2007

DATE DELIVERED: 22 May 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 22 May 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the contravention application filed 16 April 2013 is dismissed.

2. That the reasons be transcribed.

AND THE COURT NOTES

A.For the benefit of the parties, the application was dismissed on the basis that there was no evidence to support the assertion of a breach of the order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Davis 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 ADELAIDE

FILE NUMBER: ADC 928 of 2007

Mr Carter

Applicant

And

Ms Davis

Respondent

REASONS FOR JUDGMENT

1. Mr Carter, whom I shall refer to in these reasons as the father, filed a contravention application on 16 April 2013.  The respondent is Ms Davis, who is the mother of a child, B.  The orders that are alleged to have been breached were made by O’Reilly J on 6 December 2010. 

2. Mr Carter did not attend the hearing before O’Reilly J, but her Honour on that occasion gave reasons for making a number of orders.  One of the orders provided that B live with the mother, but her Honour then decided to make some conditions about medical treatment.

3. Whilst conditions are clearly part of an order, it has always been understood that those sorts of conditions cannot form part of freestanding orders.  There is no power in the Act to make them.  The unusual feature of this case is that the orders were made conditional upon attendance on mental health services in South Australia.  It seems to me that rather than bring a contravention, the appropriate application is to seek a variation of the order on the basis that the conditions have not been met.

4. Be that as it may, that is not the main problem today.  The main problem is that there is no evidence that would support any of the contraventions.  Having regard to the serious nature of a contravention, I cannot allow this matter to simply wander.  The father’s evidence, as set out in his affidavit filed 16 April, simply makes assertions.  There is not one scintilla of factual evidence set out in the affidavit that would enable me to decide whether the mother as a litigant without representation, has a case to answer.  If she was represented by a lawyer, that might be a different situation, but that is not the case here.

5. In my view, there is no basis for me to put the mother to the election as to whether or not she admits or denies the allegations.  In legal parlance, the contravention applied filed 16 April 2013 is embarrassing.  For the reasons just articulated, the contravention application filed 16 April 2013 is dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 May 2013.

Associate: 

Date:  17 July 2013