Elton and Batey-Elton

[2008] FamCA 442

FAMILY COURT OF AUSTRALIA

ELTON & BATEY-ELTON [2008] FamCA 442

FAMILY LAW – CONTRAVENTION – no case - costs

APPLICANT: MR ELTON

FIRST RESPONDENT: MS BATEY-ELTON

SECOND RESPONDENT: C PTY LTD

INTERVENER:

THE OFFICIAL TRUSTEE

IN BANKRUPTCY

FILE NUMBER: TVF 2250 of 2004

DATE DELIVERED: 15 April 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 15 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page SC

SOLICITOR FOR THE APPLICANT: Rod Madsen, Solicitor

THE RESPONDENT: Appeared in person

SOLICITOR FOR THE 2^ND RESPONDENT: Rod Madsen, Solicitor

SOLICITOR FOR THE INTERVENER: Mr Muller, Rodgers Barnes & Green

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Hawdon, Forest Glen Lawyers

Orders

IT IS ORDERED

1. That the final hearing of the matter be listed for ten (10) days commencing 10 November 2008 before the Honourable Justice Jordan.

1. That the matter be adjourned to a directions hearing before the Registrar assigned to this matter at a date to be advised.

IT IS REQUESTED

1. That the Registrar assigned to this matter set aside sufficient time to ensure that all necessary trial directions are made to ensure the matter is ready to proceed on the allocated dates.

IT IS FURTHER ORDERED

1. That the parties have liberty to apply in relation to directions generally.

1. That the Contravention Applications of the Mother in relation to the alleged contravention of the Orders of 4 September 2007, filed between 21 December 2007 and 3 March 2008, be dismissed.

1. That the further Contravention Application of the Mother in relation to the alleged contravention of the Orders of 13 December 2006, filed on 5 March 2008, be dismissed.

1. That the Respondent Father’s costs of and incidental to the applications dealt with today be reserved.

1. That the Mother have leave to have two persons accompanying her when inspecting subpoenaed documents, save that her partner Mr B be prohibited from inspecting the subpoenaed documents until further or other order.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE  

FILE NUMBER: TVF2250/2004

MR ELTON

Applicant

And

MS BATEY-ELTON

First Respondent

And

C PTY LTD

Second Respondent

And

THE OFFICIAL TRUSTEE IN BANKRUPTCY

Intervener

REASONS FOR JUDGMENT

EX TEMPORE

1. Counsel for the father takes a preliminary point.  I do not propose to rule on the service ground and whether or not there is any residual discretion to dispense with personal service, but I focus rather upon the second limb of his argument and that is, he contends that there is no case to answer on the face of the applicant mother's applications because the contraventions particularised in the applications are not a reflection of any obligations in fact created by the orders under review, being the orders of the 4 September 2007.

2. If I direct my attention to the relevant clauses under review, the essence of the mother's contravention applications is an assertion that the father has failed to provide her with contact to her children, a daughter and a son, and, as appears in her own application, she asserts that he has failed to do those things "as ordered".

3. If for the purposes of this preliminary point I then turn to the order, the relevant clauses appear to be as follows:

   Para.7: “That the Father cause the children [a daughter and a son], to attend on [Ms P] for counselling for one-and-a-half hour sessions …” (on dates specified).

   Para.10: “That the Mother spend time with the children for outings on such terms and conditions on the dates of the counselling as may be recommended by [Ms P] in writing."

   Para.12: “That the Father attend any intake counselling with [Ms P] prior to the Mother spending time with the children".

4. The particulars of contravention alleged by the mother in a series of applications are as follows:

   Para.7: “Without reasonable excuse, refused to allow [the children] for contact with mother, [Ms Batey-Elton], on Monday, 17th December, 2007”, for example, “as Ordered"; and

   "Without reasonable excuse, did not attend counselling with children on 17th December, 2007,” for example.

5. As I understand the thrust of the mother's case, she relies upon an assertion that the father wrote a letter indicating that he would not be making the children available to Ms P.  However, the terms of the mother's application relate to providing the children for contact with her.

6. There is no order requiring the father to facilitate contact between the children and their mother.  There is no evidence of Ms P making a recommendation in terms of para 10 of the orders which might potentially enliven that provision had the father failed to make the children available to spend time with the mother in accordance with a specific recommendation to that effect.

7. The difficulty for the applicant mother, amongst other things, is that these cases are quasi criminal in nature, they potentially carry very serious penalties, and strict compliance with the Act, rules and procedure is required.

8. In this case, the particulars of contravention do not, in fact, coincide with obligations created by the orders of 4 September 2007.  Those orders were by consent and, although the applicant now complains about the quality of her representation, the fact of the matter is that, on the face of the orders, she was represented by counsel on that day and the orders were made by consent.  Until and unless otherwise proven, I must therefore necessarily assume that each of the parties was aware of the orders to which they consented through their legal representatives.

9. In this case, it appears inherent in the series of orders made, that it was anticipated that there may be some difficulties in this process and therein, I suspect, lies the philosophy behind what is admittedly an unusual order, usually only made in those most difficult cases where the effect of the order may be to at least temporarily assign to a third party, usually an expert, the responsibility to make recommendations for contact between children and their parents. 

10. Be that as it may, I am satisfied that the preliminary submissions made by counsel for the father are made out and that the contravention applications in relation to the children are flawed and do not disclose a case to answer.

    RECORDED : NOT TRANSCRIBED

11. In relation to the application filed on 5 March 2008 dealing with the obligations of the company, C Pty Ltd, to file and serve a notice of address for service, this is, with respect, a very clear-cut proposition. That is, this contravention application has been brought against the wrong entity, the wrong individual.  The other difficulties are not matters that it is appropriate or necessary that I address.  That application is ill-conceived, in that the first limb of it is not open to the wife because her Honour joined the company, and the second is not open to the wife because there was no obligation created upon the husband to file a notice of address for service for the company.

    RECORDED : NOT TRANSCRIBED

12. I have determined the preliminary application in favour of the father on these matters.

    RECORDED : NOT TRANSCRIBED

13. In the circumstances, consistent with my ruling, I order that the applications in relation to the alleged contravention of the orders of 4 September 2007 filed between 21 December 2007 and 3 March 2008 be dismissed and that the further application alleging contravention of the orders of 13 December 2006 filed on 5 March 2008 be dismissed.

    RECORDED : NOT TRANSCRIBED

14. Mr Page proposes that I order costs and that payment of such costs be delayed.  My view is that I should not order costs, nor deal with issues of payment.  I intend to reserve the respondent husband's costs on this application to the trial because I am satisfied that, firstly, the merits of the application for costs is a fairly narrow issue and, secondly, that the question of quantum and payment is one properly considered in the context of determinations I make in the property trial, so that by adding costs to the trial list, I am satisfied I am not complicating matters. 

15. I accept that, prima facie, the wife is in a poor position to meet any order for costs between now and the trial, so in that sense the husband is not being prejudiced or disadvantaged if I put that whole question over to the trial.  I reserve the respondent husband's costs of and incidental to the applications dealt with today.

    RECORDED : NOT TRANSCRIBED

16. I have earlier indicated that Mr B would be an inappropriate person to represent the wife, in the sense that I was advised that he is or may be a witness in the proceedings and has or may assert some interest or some entitlement in relation to some of the property under consideration.  Ordinarily, a Court would not permit potential witnesses to be involved in inspection of subpoenaed documents.  Unless I am advised that there is something else I need to take into account, it seems to me appropriate that I give the wife leave to have two persons accompany her when inspecting subpoenaed documents, save that Mr B be prohibited from inspecting the subpoenaed documents until further or other order.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: