CURTIN & CURTIN

[2016] FamCA 1152

FAMILY COURT OF AUSTRALIA

CURTIN & CURTIN [2016] FamCA 1152

FAMILY LAW – CONTEMPT – Application by the father alleging that the mother has not complied with orders that the parties forthwith make application to a contact centre to be assessed for suitability for the provision of its services – where neither party complied strictly with the order – where the father failed to serve the application on the mother in accordance with r 7.03 – no flagrant challenge to the authority of the court –application dismissed

FAMILY LAW – COSTS – Application by the mother for costs arising out of and incidental to the contempt application – where the father was wholly unsuccessful in bringing his contempt application – where the father failed to effect service of the application on the mother in compliance with the Family Law Rules 2004 (Cth) – financial positions of the parties considered – interims orders made that the father pay the mother’s costs in a fixed sum

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Ibbotson & Wincen (1994) FLC 92-496

APPLICANT: Mr Curtin

RESPONDENT: Ms Curtin

FILE NUMBER: MLC 5730 of 2015

DATE DELIVERED: 1 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 1 March 2016

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Weerappah

SOLICITOR FOR THE RESPONDENT: Bayside Solicitors

Orders

1. That the Application – Contempt filed on behalf of the husband on 2 February 2016 be dismissed.

2. That the husband pay the wife’s costs of and incidental to this application fixed in the sum of $2,000 and that payment of that sum be stayed for 21 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Curtin & Curtin 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 MELBOURNE

FILE NUMBER: MLC 5730 of 2015

Mr Curtin

Applicant

And

Ms Curtin

Respondent

REASONS FOR JUDGMENT

1. The application that comes before me today in a Judicial Duty List is the application of contempt filed on behalf of the father, Mr Curtin, on 2 February 2016.  That application is supported by an affidavit filed by the applicant on the same date. 

2. The application alleges one contempt, although it is difficult to discern from Part C of the application precisely the conduct to which the alleged contempt relates. 

3. A consideration of that application together with the affidavit filed in support enables a better understanding of the application before the Court.  The issue relates to the mother’s alleged noncompliance with paragraph 3 of an order made by Senior Registrar Fitzgibbon on 15 December 2015.  That order states as follows:

   That the parties forthwith make application to Family Life Children’s Contact Service at Frankston to be assessed for suitability for the provision of their contact services.

4. The matters before the Court on 15 December 2015 related to parenting applications with respect to the parties’ children, B and C.  Currently, the children live with the respondent mother and the father is spending no time with the children.  Indeed, paragraph 2 of the orders of Senior Registrar Fitzgibbon provides as follows:

   That the issue of the children spending time and communicating with the respondent husband be reserved.

5. The thrust of the criticism levelled by the father against the mother is that she did not make application as required to the Family Life Children’s Contact Service forthwith. 

6. The chronology in terms of the parties’ compliance with that order is as follows.  The order was made on 15 December 2015.  The father filed his application with Family Life by a letter dated 16 January 2016.  Family Life acknowledged receipt of that application on 18 January 2016.  The mother’s application was received by Family Life on 10 February 2016.  On 29 February 2016, Family Life forwarded an email to both parties and to the Independent Children’s Lawyer confirming receipt of the parties’ applications and confirming that there would be an assessment as to the parties’ suitability for access to that service. 

7. It is evident from that chronology that neither party complied strictly with the terms of paragraph 3 of the orders made 15 December 2015; that is neither the father nor the mother made their application to Family Life forthwith.  It is noteworthy, in my view, that the orders made by Senior Registrar Fitzgibbon were made in the week or so prior to the Christmas holiday period.  It is likely that the offices of Family Life were closed, as were the offices of the mother’s solicitor, for at least a period of a few weeks over the December/January period. 

8. A contempt application is one of the most serious applications that can be made before this Court. It is an application made pursuant to s 112AP of the Family Law Act 1975 (Cth), which provides that the Court may punish a person for contempt which does not constitute a contravention of an order under this Act, or constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the Court.

9. The words “flagrant challenge” were considered by the Court in the decision of Ibbotson & Wincen (1994) FLC 92-496. There the Court said at page 81,162:

   The use of the term “flagrant challenge” to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s. 112AD. 

   … it is a question of fact and degree whether the stringent terms of the section are satisfied. 

10. There is no doubt there has been a breach of the orders.  There is no doubt that both parties breached the orders.  The breach has been rectified and, indeed, was rectified as and from 10 February 2016, when the mother’s application was filed with Family Life.  The application as filed does not strictly comply with the Rules of Court.  It does not set out with precision, as is required, the basis for the application.  Part C sets out in clear terms the requirements as to the information to be provided in the application.  The applicant has not complied with those requirements. 

11. Given that he is a litigant in person, I have not strictly applied those requirements and have given him the opportunity to make submissions and to give evidence in respect of his application.  I have also afforded him the opportunity to attend upon the duty lawyer this morning to obtain advice as to the requirements of the application.  He declined that invitation.  Further, it is evident from his evidence that he has not complied with the requirements as to service with respect to an application of this type. 

12. Rule 7.03 of the Family Law Rules Cth (2004) provides at Part 7 that an Application – Contempt must be served in accordance with the requirements of special service by hand. Rule 7.06 sets out the requirements for special service by hand. Rule 7.06(1) provides that:

    A document to be served by hand must be given to the person to be served (the receiver).

13. In this case, the person to be served by hand is the mother.  The Affidavit of Service filed on behalf of the father indicates that in fact an attempt to serve was made to the offices of the mother’s solicitor.  Rule 7.08 makes provision for the requirements for special service to be effected through a lawyer.  It states that:

    A document is taken to be served by special service on a person if:

    (a)  a lawyer representing the person agrees, in writing, to accept service of the document for the person; and

    (b)  the document is served on the lawyer in accordance with rule 7.06 or 7.07.

14. The evidence of the father confirms that he was informed at the time he attempted to serve the application upon the mother’s solicitor that that firm did not hold instructions to accept service on behalf of their client.  Accordingly, the father failed to adhere to the requirements for service with respect to the Application – Contempt. 

15. I am satisfied that the application must fail.  The contravention of order complained about is not a flagrant challenge to the authority of this Court.  It is not the type of matter which would fall into the category of exceptional or striking breaches of a Court order, as is considered in the decision of Ibbotson & Wincen.

16. Counsel for the Independent Children’s Lawyer indicated that paragraph 3 of the orders of 15 December was an order included at the request of the Independent Children’s Lawyer to ensure that if and when orders for the father to spend time with the children are made, there will be no delay in the commencement of that time.  There has been no damage to the father’s case by the delay of a few weeks in the filing of the applications.  There has been no prejudice to him.  There has been no interruption of his time with the children.  Accordingly, in the circumstances of the case, I will dismiss the Application – Contempt of the father filed 2 February 2016. 

17. An application is made in this matter on behalf of the mother that the father pay her costs of and incidental to the application before me today, fixed in the sum of $5,500.  The mother in support of that application relies on a letter forwarded by her solicitors to the father by email on 25 February 2016.  That email states in part:

    The purpose of this letter is to notify you of: 

    (1) we will be appearing at the hearing of your contempt application to have it dismissed; and

    (2) in so doing we will be seeking a costs order against you if we are successful in the sum of $5500 and you are invited by this letter to withdraw your purported contempt application with associated affidavit material, and if not, a copy of this letter will be provided to the Court on the question of costs.

18. That letter is marked as Exhibit R2.  The submission on behalf of the mother is that the father has been wholly unsuccessful in his application and on that basis an order for costs should follow the event. 

19. The question of costs and how they are to be determined is set out at s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides that ordinarily, each party to proceedings under the Act shall bear his or her own costs. Section 117(2A) sets out the matters that should be taken into account in considering what order, if any, should be made with respect to costs.

20. Having regard to those provisions, the relevant matters are firstly the financial circumstances of the parties to the proceedings.  Submissions were made on behalf of the mother that she is a single parent to the two children of the marriage.  Those children currently are not spending any time with the father.  The mother is a public servant, although due to her commitments as a parent, she is engaged in casual employment only.  She is not in receipt of Legal Aid. 

21. The father’s position is that he is engaged in employment as a tradesman.  He has an income of between $50-60,000 per annum.  For his part, he points to the fact that the mother received a settlement of approximately $240,000 by way of final property settlement. 

22. The mother also relies upon the conduct of the parties to the proceedings.  She points to the fact that both parties failed to comply with the orders the subject of complaint.  Both parties were late insofar as the filing of their application to Family Life.  She also relies upon the father’s failure to comply with the Rules of Court insofar as the filing of his Application – Contempt and service of that document. 

23. Having regard to the history of the matter, particularly to the fact that it was evident that there was compliance with the orders of the Court by 10 February 2016, I am satisfied that an order for costs is appropriate. There was no need for the application to proceed before me today. The application, as I have indicated in my earlier judgment, was ill-conceived. The matters complained about do not on any view constitute a flagrant challenge to the authority of the Court as is contemplated by s 112AP of the Act. In those circumstances, I am satisfied that an order for costs is warranted. However, the amount sought by the mother far exceeds what would ordinarily be provided by the scale set down in the Family Law Rules 2004 (Cth). The mother has not been required to file any material in response to the application. I am satisfied that an appearance was necessary. I am satisfied that there would be some research required in preparing for the hearing today. Having regard to those matters, I am satisfied that an appropriate allowance is $2,000.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 1 March 2016.

Associate: 

Date:  1 March 2016