Chranley and Smart (No 5)

[2010] FamCA 714

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 5) [2010] FamCA 714

FAMILY LAW – PRACTICE & PROCEDURE – where there are a large number of contempt applications – where they have similar grounds and factual circumstances – orders that the contempt applications be heard together

Family Law Act 1975 (Cth)
Family Law Rules 2004 r 1.04, 1.06 & 1.12

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

FILE NUMBER: ADC 207 of 2008

DATE DELIVERED: 9 August 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 9 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: n/a

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. I propose to hear the applications in contempt together as a group.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 207 of 2008

MR CHRANLEY

Applicant

And

MS SMART

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me a large number of contempt applications, being the contempt applications which have been filed by the father since 12 October 2009 ranging up until 6 April 2010. 

2. Those contempt applications all relate to allegations made by the father that the mother has shown a disregard for the consent Court orders made on 4 December 2007 by not allowing the father his Court ordered time to be spent with his daughter S.  Very similar grounds relating to each alleged contempt are set out in supporting affidavits.

3. The first affidavit, the affidavit filed on 12 October 2009, refers to some 20 different dates in which it is alleged that the respondent mother did not comply with the consent orders made on 4 December 2007 by directing that S not spend the Court ordered time with her father. 

4. That assertion is repeated on 20 occasions in the affidavit in support of the first contempt application.  The subsequent affidavits setting out the evidence upon which the father relies are similar in most instances, save and except that there are occasional references in the affidavits to the interaction with the staff at the contact handover centre and with the receipt of or passage of presents or notes passing between the father and the child.  The significant material, however, the allegation by the father that on these occasions ranging across a long period of time, S did not attend, the father did not receive any notification of any illness, nor any medical certificate, and that the mother has failed to direct that S attend on the times referred to in the consent order.

5. The Court is obliged to follow the Rules of the Court, save and except where it should dispense with the Rules.  In particular, the Court is required to account the main purpose of the Rules which is set out in rule 1.04:

   “The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case”.

6. Rule 1.06 says that:

   “The Court must apply these Rules to promote the main purpose and actively manage each case by attending to certain matters”

   and that also includes -

   “setting realistic timetables, and monitoring and controlling the progress of each case”

   and considering -

   “the likely benefits of taking a step”

   that might -

   “justify the cost of that step”.

7. In relation to the Rules, there is also the provision of rule 1.12 which says that:

   “The Rules apply unless, on application or its own initiative, the Court orders otherwise”

   and refers, again, to the capacity:

   “The Court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises”.

8. The Court is required to take into account considering -

   “the main purpose of the Rules”

   and

   “the administration of justice”.

9. I take into account that a contempt application is a serious matter and that if the mother, as the respondent, sought to be protected by individual hearings in relation to each of the contempt applications, the Court would give careful consideration to that.  However, the submissions of the mother are that they should be heard together:  they are all similar and that the same facts apply, virtually, to each application.  The father’s submissions are that each of the occasions of alleged contempt occurred on different days and that each one should be heard as an individual case.

10. Having considered the evidence of the father which is contained in the affidavits in support of each application for contempt, I am not satisfied that he has made out that there is a basis for hearing the matters individually.  Rather, on assessing the affidavit material of the father and taking into account the need to attend to matters in a just, equitable and prompt manner, I am satisfied that it is justified, in these circumstances, to hear the applications in relation to the contempt proceedings together, giving the mother an opportunity to respond individually to any particular date should her defence in relation to any contempt which is established require that. 

11. I therefore propose to hear the applications in relation to contempt together as a group, hearing the evidence of the father by way of cross‑examination by the mother and then deciding whether a prima facie case has been made out which would require the mother to respond to the application.  I therefore propose to hear the applications in contempt together as a group.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  16 August 2010