DIANI & DIANI

[2010] FamCA 376

FAMILY COURT OF AUSTRALIA

DIANI & DIANI [2010] FamCA 376

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer to Federal Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT: Mr Diani

RESPONDENT: Ms Diani

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5627 of 2007

DATE DELIVERED: 21 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 April 2010

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Moloney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O’Connell

Orders

1. All outstanding parenting applications be transferred to the Federal Magistrates Court.

2. I find, by the concession of the respondent wife, that she breached an order made under Part VII, Family Law Act, and that she had no reasonable excuse for so doing.

3. For the purposes of section 70NEB(1)(b), I make orders by consent of the parties in the terms of the minutes which the court will engross.

4. I will dismiss the contravention application filed on 11 January 2010.   

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5627 of 2007

MR DIANI

Applicant

And

MS DIANI

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. There are two applications before me today.  The first is a contravention application filed by the father on 11 January 2010.  The second relates to a variation to parenting matters. 

2. This case is coming into its fourth year in the court system.  The file is already in four volumes.  Importantly, throughout the life of the file, up until January 2010, all of the proceedings were in the Federal Magistrates Court of Australia.  It is appropriate, in my view, for the matter to be transferred there again predominantly for two reasons. 

3. First, although everyone would say that their case is complicated, that is distinguishable from complex.  I have not been able to discern any issue of complexity that would justify this court taking this matter.

4. The second is that the nub of the complaint by the father seems to revolve around the ambiguities in orders that were made in the Federal Magistrates Court of Australia.  Under those circumstances, it seems more sensible for that court to deal with the substantive issue of whether or not the orders were ambiguous.

5. The father is also seeking some extra time in relation to the children, and there does not seem to be any issue raised by any party today that gives rise to the definition of complexity.  On that basis, this case should be in the Federal Magistrates Court, and I propose to order it be so transferred.

6. The application that I otherwise had to deal with was the contravention application to which I have referred.  It alleged two contraventions.  One related to the child J’s birthday, and the other related to Christmas Day 2009.  The birthday of J was disputed, but counsel for the wife conceded that there had been a breach of the order relating to Christmas Day, and that there could not be an argument that justified a finding of reasonable excuse. 

7. The father told me that, really, what he was troubled about was the fact that he wanted a conviction, and I have explained to him that the jargon is not quite right, but I understand what he was really after was a finding of contravention.  He really only needed the one contravention.  So, at my suggestion, and certainly with some reticence on his part, he has withdrawn the complaint in relation to J’s birthday, and is content that there has been a finding of the breach of the Act in relation to Christmas Day.

8. I have had an enormous benefit today from having an Independent Children’s Lawyer, and Mr O’Connell has effectively enabled the brokering of a deal to solve the compensatory time, as well as clarifying some of the orders until the matter can be heard by the Federal Magistrates Court. 

9. Upon finding that there is a breach of the order, the powers set out in s 70NEB have to be examined.  I find this is a contravention in the terms referred to in subdivision E of Division 13A of the Act.  The powers of the court are somewhat limited in those circumstances, but, as Mr O’Connell correctly points out, the parties have actually agreed on compensatory time, and, to that extent, I am content with the minutes being based on the power in s 70NEB(1)(b) as being the appropriate outcome.  I will record in the orders that this is a finding, and, as such, in the event of a future breach, the mother puts herself in a position where she may fall within subdivision F which carries very serious sanctions if a court was satisfied that she was not complying with the orders.

10. I otherwise propose to make orders by consent of the parties, dismiss the application for the contravention filed 11 January 2010.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin  

Associate: 

Date:  14 May 2010