Gallo and Gallo

[2007] FamCA 466

FAMILY COURT OF AUSTRALIA

GALLO & GALLO [2007] FamCA 466

FAMILY LAW - ORDERS - CONTRAVENTION - Why an application alleging contravention of parenting orders could not be dealt with on the first return date

Family Law Act 1975

APPLICANT: Mr Gallo

RESPONDENT: Mrs Gallo

INDEPENDENT CHILDREN’S LAWYER: Maria Barbayannis & Co

FILE NUMBER: MLF 3162 of 2006

DATE DELIVERED: 14 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M.L. Mandalert

SOLICITOR FOR THE APPLICANT: Schembri & Co Lawyers

COUNSEL FOR THE RESPONDENT: Mr T.J. Puckey

SOLICITOR FOR THE RESPONDENT: Mahloko-Boardmans Solicitors

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr I.N. Brewer

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Maria Barbayannis & Co

Orders

1. That the further hearing of this father’s contravention application filed on

   
   

   19 April 2007 be adjourned for hearing in the interim judicial defended list on 15 June 2007 at 10am (estimated to take up to one half a day).

2. That the further hearing of the father’s amended application in a case filed

   
   

   28 December 2006 and the mother’s amended response filed 26 February 2007 be adjourned to the Judicial Officer presiding on 15 June 2007 for directions and otherwise be adjourned for hearing before the Senior Registrar in his duty list on 6 July 2007 at 9:45am.

3. That within 7 days the father produce to the independent children’s lawyer and to the practitioners for the mother on CD ROM a copy of any further tape recording relevant to and relied upon by him for the contravention proceedings.

4. That within 14 days the independent children’s lawyer file with the Court a CD ROM containing the tape referred to in paragraph 54 of the report of Ms C [document 23 on the Court file] together with a copy on CD ROM of any further tape which the father has provided pursuant to the preceding paragraph of this Order.

5. That the independent children’s lawyer participate in the contravention proceedings, the Court being satisfied that this is matter of some complexity and the best interests of the child a daughter born in July 1997 require that participation.

6. I DIRECT that the independent children’s lawyer arrange a conference between the expert witnesses, Ms C, who is the author of the report dated 3 May 2007 [document 23 on the Court file] and Mr J, who is the author of the report dated 23 October 2006 [which is on the Federal Magistrates Court file having been released on 25 October 2006].

7. That all issues of costs of this day be reserved.

8. That documents produced to the court this day in compliance with subpoenae be released to the parties and practitioners for inspection and photocopying.

9. That my brief reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the Court file.

AND THE COURT NOTES that in response to the contravention application the respondent mother proposes to rely on the affidavits of Ms A sworn
7 January 2007, Ms S sworn 7 January 2007, Ms B sworn 12 February 2007 and Ms P sworn 24 February 2007 as well as her own two affidavits sworn or affirmed on 15 February 2007 [documents 15 and 14 on the Court file] and the applicant father has given notice this day that all of those deponents are required for cross examination.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3162 of 2006

Mr Gallo

Applicant

And

Mrs Gallo

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the judicial duty list.  It is the first return date of the father's contravention application filed on 19 April 2007 in which he alleges that on six counts the respondent mother has contravened orders of the court. 

2. If at all possible, a contravention application will be determined on the first return date.  However, I am satisfied that cannot be achieved today and these are my reasons for adjourning the contravention application to the half-day judicial defended duty list on 15 June 2007.  The balance of the interim parenting applications will be adjourned to 6 July 2007 before the Senior Registrar subject to any directions which may be made by the court on 15 June 2007.

3. Ms Mandalert of counsel appears on behalf of the father, Mr Puckey of counsel on behalf of the respondent mother and Mr Brewer of counsel on behalf of the independent children's lawyer, who is Ms Pandeli, solicitor. 

4. I have had some preliminary discussions with counsel.  I understand:-

   a)The first count of the contravention application is alleged to have occurred on Sunday, 6 November 2005.  The mother proposes to plead not guilty on the basis there was, at that time, no enforceable order.

   b)The second count is alleged to have occurred on Friday, 7 July 2006.  The mother says that the father spent time with the child the following day, rather than the day specified in the order and that there is a reasonable excuse for her failure to abide the orders specifically. 

   c)The third count is alleged to have occurred on Sunday, 29 October 2006.  It is admitted that the mother did collect the child from a sleepover at, or prior to, 10 am on 29 October 2006 that this was during a period of specified time the child was to spend with the father pursuant to the orders.  The mother will contend that she had a reasonable excuse for doing so.

   d)

   The fourth count is alleged to have occurred on 10 November 2006.  The mother concedes that there was no time spent by the father with the child on that day but will assert that she has a reasonable excuse for

   
   

   non-compliance.

   e)

   The fifth count is alleged to have occurred on 9 December 2006.  The mother concedes that there was no time spent by the father with the child on that day but will assert that she has a reasonable excuse for

   
   

   non-compliance.

   f)The sixth and final next count is alleged to have occurred on 9 February 2007.  The mother concedes that there was no time between the child and the father but there is a reasonable excuse for that non-compliance.

5. The indications through the mother's counsel, of course, do not bind her on the return date of 15 June 2006.  The indications merely provide the context in which I was satisfied that the matter could not proceed today.

6. In defending the contravention application, the mother relies upon a raft of material filed by her on 26 February 2007, including two affidavits by herself and affidavits of four supportive deponents.  The matter was stood down whilst Ms Mandalert obtained specific instructions about cross examination of the mother's other witnesses.  Upon recommencing I was advised that the mother and her 4 witnesses are required for cross examination.  Those witnesses are not at court today and, even if they were, the other business before the court today leaves me with insufficient time to take all of their evidence. 

7. Also, there is the fact that the mother says she is losing her voice and, even if she could commence giving evidence and get to cross examination with some audibility, she would be reduced to a whisper before too long. 

8. The independent children's lawyer has described this as a matter of complexity.  Counsel for independent children's lawyer has said that it would be in the best interests of the child if the independent children's lawyer were to be involved in the contravention proceedings and I accept that is the case.  

9. The balance of the orders which I have pronounced relate to two tapes which the father wishes to rely upon to prove the contravention.  The independent children’s lawyer already has a copy of one of them and the father is going to produce the other tape within seven days.  I am advised that the tapes should be heard in order to be appreciated.  They cannot be transcribed.  I have ordered that a copy on CD-ROM to be filed with the court.  That is to be achieved by the CD-ROMs being put in plastic sleeves and filed with a cover sheet which refers to the order I make.  The tapes or discs (or whatever they are) will then be available to be listened to by the judicial officer(s) before whom this matter is listed in the future. 

10. There are 2 expert witnesses in the role of private family consultants.  The independent children's lawyer does not foreshadow calling evidence from either Ms C or Mr J in relation to the contravention or consequential applications.  Counsel for the independent children's lawyer does accept, however, that the two experts should confer.  I am informed that the experts have conflicting views but do report on different periods.  It may be that the conflict in views is more apparent than real but I do not know.  No one proposes that the experts’ evidence be tested on the next return date so, unless there is a conference between the experts, no-one may know.  I have made an order that a conference occur. 

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

Associate: 

Date:  23 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GALLO & GALLO