Duarte and Morse

[2016] FamCA 381

FAMILY COURT OF AUSTRALIA

DUARTE & MORSE [2016] FamCA 381

FAMILY LAW – PARENTING – Contravention – Contravention application made by the mother against the father alleging a breach with respect to parenting orders – Where the mother seeks an order that the father be restrained from expressing concern about the risk posed to the children by the mother – Where the purpose of contravention proceedings pursuant to Division 13A is examined – Where the mother’s application is for an ulterior purpose – Application dismissed.

Family Law Act 1975 (Cth) Division 13A, Part VII.

Hornsey & Hornsey (unreported, Full Court of the Family Court of Australia, 3 July 1992)
McClintock & Levier (2009) FLC 93-401

APPLICANT: Ms Duarte

RESPONDENT: Mr Morse

FILE NUMBER: SYC 737 of 2014

DATE DELIVERED: 28 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 28 April 2016

REPRESENTATION

APPLICANT IN PERSON Ms Duarte

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Slater & Gordon Lawyers

Ms Stevens, Counsel for the Intervener (Department of Family and Community Services) and Ms Shea solicitor advocate for Legal Aid NSW – Independent Children’s Lawyer were excused at the commencement of proceedings.

Orders

1. The mother’s Application filed 4 May 2015, being an application that the father be dealt with for contravening orders affecting a child, is dismissed.

1. The costs of and incidental to the proceedings today are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duarte & Morse 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 SYDNEY

FILE NUMBER:  SYC737 of 2014

Ms Duarte

Applicant

And

Mr Morse

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in the context of a parenting dispute between the parents for orders to be made because of an alleged contravention by the father of parenting orders.

2. The Application was filed on 4 May 2015.  Some time ago the Application was referred to the registry for allocation of a hearing date with an estimated hearing time of the order of a day.

3. Ultimately, the matter was listed before me today.  The parents both attended in person, as did a legal representative for the father, an advocate on behalf of the Independent Children's Lawyer (“ICL”), and a legal representative for the Department of Family and Community Services (“the Department”).

4. Those last two representatives asked for, and without objection, were granted leave to withdraw.  It is the normal course in contravention proceedings that an ICL would not be involved until the possibility arose of consequential orders affecting a child.  That can only happen after a finding has been made one way or another in respect of the alleged contravention. 

5. The Application relates, in general terms, to an asserted breach by the father in relation to a requirement that the mother’s time with the children be supervised.

6. The allegation related to 2 May 2015 and based on  the statement of…