Derwen and Ling

[2009] FamCA 15

FAMILY COURT OF AUSTRALIA

DERWEN & LING [2009] FamCA 15

FAMILY LAW – CONTEMPT – Contravention of Court Order – Respondent’s explanation for conduct – Excuse at law or mitigation only – Finding of contravention against respondent – No penalty

APPLICANT: Mr Derwen

RESPONDENT: Ms Ling

FILE NUMBER: MLF 2806 of 2006

DATE DELIVERED: 20 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Jordan J

HEARING DATE: 20 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms J.L. Stewart

SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyers, Melbourne, Vic

Orders

IT IS ORDERED

1. That the solicitor on the record for the Applicant Father have leave to withdraw.

2. That the Respondent Mother have leave to withdraw her Application for Contravention filed on 23 June 2008.

3. That the Applicant Father have leave to withdraw the contraventions particularised on pages 2, 4 and 5 of his Application for Contravention filed on 8 July 2008.

THE COURT FINDS that the Mother, MS LING, has contravened the Orders of this Court made on 5 June 2008 and in particular paragraph 2 thereof

AND THE COURT ORDERS

1. That there be no sanction imposed upon the Mother.

2. That the Father’s Application for Contravention filed on 8 July 2008 be removed from the list of cases awaiting finalisation.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF2806 of 2006

MR DERWEN

Applicant

And

MS LING

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. As I said in some earlier opening remarks, it is my wish to limit the damage in this case.  I do not propose to even revisit the circumstances which have led to the orders made in June 2008 and to these applications, neither do I intend to deliver a detailed judgment in this matter.

2. The circumstances speak for themselves.  The case and the issues are entirely unique in my experience of 18 years and I do not wish to exacerbate the continuing problems in this matter.  I trust that I am not compromising the process by choosing to avoid descending to detail in this judgment.

3. For the purposes of dealing with the husband's application, I simply record that I find that, whatever may have been the intentions, deliberations, reservations of the parties, in the end, the terms of paragraph 2 of the orders made on 5 June 2008 are quite clear.  That paragraph reads as follows:

   “That the husband and wife do all such acts and things necessary to cause [the child C’s] ashes to be released by the Altona Crematorium to the husband on 6 June 2008.”

4. It was required of each of the parties and, in this context, of the wife in particular, to do such things as would be necessary to secure the release by the Altona Crematorium of the child’s ashes directly to the husband.

5. It is conceded that, on 6 June, the mother attended at the Altona Crematorium and took such steps as was necessary to secure the release of the child C’s ashes to herself and not to the husband.  It is established that later on that day the wife released the ashes to the husband.

6. As has been correctly conceded by counsel for the wife, that represents - at least in a technical sense - a breach of the orders. 

7. I cannot be satisfied that there was or could be any misunderstanding of the terms or effect of the orders, or that there can be any confusion as to the obligations created by those orders.  Indeed, I am satisfied on the remainder of the evidence that the parties individually and through their legal representatives, negotiated ancillary matters designed to provide even greater certainty in relation to the execution of the obligations created.  A designated meeting at 4 pm at the Altona Crematorium was negotiated for the purposes of giving effect to the obligations created.

8. In my view, counsel for the wife has raised a number of telling matters in relation to her client's conduct.  However, in my view, those matters go to the question of mitigation, rather than to responsibility.  I have no doubt that the emotions and judgment of all involved were necessarily affected by the events of the 5th and the 6th and, of course, by the events of 12 months earlier.  Those matters may or may not have contributed to the wife's decision to proceed other than in accordance with her obligations.  I do not accept that they go to the question of an excuse at law.

9. I therefore conclude that the husband has, to the required standard, established that the mother did contravene the orders made by this court on 5 June 2008 and, in particular, paragraph 2 thereof.  It is my intention to record that finding in orders.

10. In the course of his submissions, the husband has indicated to me he does not wish to press for any punishment.  I have indicated at the commencement of these proceedings that I am, in the circumstances, opposed to that notion, in any event. 

11. I do not for one moment underestimate the extent of the husband's grievance as a result of the breach of the order, nor do I underestimate for one moment the nature and extent of the burdens being borne by the wife which may have affected her judgment on that day. 

12. Unless anyone wishes to make any further submissions, it is not my intention to impose any sanction upon the wife.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan 

Associate: 

Date:  23 January 2009