Debrossard and Carey and Ors

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEBROSSARD & CAREY & ORS [2014] FCCA 2915

Catchwords:
FAMILY LAW – Contravention – where Applicant seeks to deal with respondents for an alleged breach of Family Law Act 1975 (Cth), s.121 – where application incompetent – where no jurisdiction to make the orders sought.

PRACTICE AND PROCEDURE – Summary judgment – summary dismissal – where applicant has no reasonable prospect of successfully prosecuting the application.

PRACTICE AND PROCEDURE – Prosecution – consent of the Director of Public Prosecutions required for proceedings for breach of Family Law Act 1975, s.121 – Federal Circuit Court has no prosecutorial power.

Legislation:

Bankruptcy Act 1966 (Cth), ss.58, 116

Family Law Act 1975 (Cth), ss.112AA, 121

Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001, r.13.10

Cases cited:
Debrossard & Official Trustee in Bankruptcy [2011] FamCA 648
Prentice & Bellas [2012] FamCA 108; (2012) 47 Fam LR 262 – followed

Applicant: MS DEBROSSARD

First Respondents: MS CAREY & MR MERRIL

Second Respondent: MS NORMAN

File Number: WOC 799 of 2007

Judgment of: Judge Scarlett

Hearing date: 1 December 2014

Date of Last Submission: 1 December 2014

Delivered at: Sydney

Delivered on: 1 December 2014

REPRESENTATION

Applicant: In person

Solicitor for the First Respondent: Mr Metlej

Solicitors for the First Respondent: Craddock Murray Neumann Lawyers

Solicitor for the Second Respondent: [name omitted]

Solicitors for the Second Respondent: Ms Norman & Co

ORDERS

1. The Application – contravention filed on 8 September 2014 is dismissed as incompetent.

2. The Respondents must file and serve affidavits setting out the amount of costs which they seek and the basis upon which those costs are claimed within twenty-one (21) days.

3. The Applicant is to file and serve any affidavit in reply within a further period of twenty-one (21) days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 799 of 2007

MS DEBROSSARD

Applicant

And

MS CAREY & MR MERRIL

First Respondents

MS NORMAN

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application to deal with the Respondents for a Contravention of Section 121 of the Family Law Act 1975 (Cth). The Application is entirely misconceived and will be summarily dismissed as incompetent.

2. The First Respondents, Ms Carey and Mr Merril, have filed an Application in a Case seeking orders that:

   a)the Application be dismissed for want of jurisdiction;

   b)the Application be dismissed as having no reasonable likelihood of success and must fail;

   c)the Application be declared to be frivolous and vexatious; and

   d)that the Applicant should pay their costs.

3. Their Application in a Case is supported by an affidavit of their solicitor, Khaled Metlej, sworn on 28^th November 2014. 

4. The Second Respondent, Ms Norman, has filed an Application in a Case seeking orders that:

   a)the proceedings be summarily dismissed as having no reasonable prospects of success;

   b)the proceedings be summarily…