Gilday and Nugent
[2008] FMCAfam 1163
•2 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GILDAY & NUGENT | [2008] FMCAfam 1163 |
| FAMILY LAW – Contravention application. |
| Family Law Act 1975, s.112AB |
| Applicant: | MR GILDAY |
| Respondent: | MS NUGENT |
| File Number: | PAC 3896 of 2008 |
| Judgment of: | Walker FM |
| Hearing date: | 2 October 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 2 October 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Heazlewood |
ORDERS
The Contravention Application filed 14 August 2008 is dismissed and the proceedings are removed from the list of matters awaiting finalisation.
The Applicant to pay the Respondent’s costs in the sum of $500 within 6 months of today’s date.
IT IS NOTED that publication of this judgment under the pseudonym Gilday & Nugent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3896 of 2008
| MR GILDAY |
Applicant
And
| MS NUGENT |
Respondent
REASONS FOR JUDGMENT
In this matter Mr Gilday has filed a contravention application on
14 August 2008in which he alleges that the respondent Ms Gilday has contravened Order 7 of orders made in the Family Court of Australia by Her Honour Justice Stevenson, following a hearing of a property settlement matter. Those orders are dated 7 June 2004.
The relevant order of those identified by Mr Gilday in his contravention application is Order 7 that says in its terms:
That the husband remove all motor vehicle parts, components and accessories referred to in Order 4 hereof from the [D] property within eight weeks of the date of these orders or such further period as the parties may agree in writing.
The relevant part of Order 4 is Order 4 sub-s.3 which refers to all motor vehicle parts, components and accessories located at the [D] property, not being the 1976 Ford or any motor vehicle which is the property of a child of the parties.
Contravention proceedings are serious matters in this Court because they have potentially very serious consequences for a person found in breach of Court orders. The onus is on the applicant to establish that a contravention of Court orders has occurred and in doing this the applicant must be able to specify the alleged breaches with particularity so that they can be put to the respondent. Section 112AB of the Family Law Act1975 provides in sub-s.(1):
A person shall be taken for the purpose of this part to have contravened an order under this Act if, and only if:
(a) where the person is bound by the order he or she has intentionally failed to comply with the orders or made no reasonable attempt to comply with the order.
So therefore we have to have a look at the orders and see the extent to which a person is bound given the terms of the orders. In the hearing of this matter Mr Gilday was given an opportunity to consider the terms of relevant Order 7, the matters referred to in his contravention application and also to consider further the material in the
two affidavits filed by him, the first on 14 August 2008 and the second on 11 September 2008. I drew these matters to Mr Gilday's attention because I wanted him to have the opportunity to indicate whether he could further particularise the nature of the contraventions and the specific details of those contraventions he alleged in the terms of
Order 7.
It was agreed by the parties that the eight weeks referred to in the order expired on 2 August 2004. The order as noted specified that the husband is to remove all motor vehicle parts, components and accessories within eight weeks of the date of these orders, the alternative being such further period as the parties may agree in writing. It is quite true that there is no specific time limit on that and the wording is "may agree". It is hard to see the wording of that particular Court order following the eight weeks, as imposing an obligation on Ms Gilday. It simply provides that the parties may do something. Mr Gilday's affidavits refer to negotiation between the solicitors for the parties about the removal of material from the [D] premises. I might first look at Mr Gilday's affidavit filed 14 August 2008. Annexed to that affidavit is a letter dated 16 August 2004. That letter from Mr Gilday's then solicitors, Messrs Bell & Partners, to the respondent's solicitors at the time includes the following:
We refer to our telephone discussions on 13 August 2004. We note you indicated your client consents to an extension of time for the removal of the car parts with the following conditions attached:
(1)Payment by the husband for damage allegedly undertaken at the premises.
(2)In order to retrieve the car parts under the house such removal can only be undertaken by an agent.
(3)The husband be prohibited from having access to the kitchen and other areas of the home.
Letter dated 7 September 2004 to the applicant from his solicitors notes:
We have requested an extension of time until 15 September and we have received no further indication this has not been granted
and then refers to the conditions of access. Also annexed is a letter dated 20 July 2004 from the respondent’s solicitors to Mr Gilday’s solicitors. From the terms of that letter clearly it is a letter drafted in August as the first paragraph begins:
We refer to our telephone conversation on 13 August 2004 and your letters dated 13, 16 and 19 August 2004.
So quite clearly that is a letter drafted in August.
Then going to the second affidavit, the first letter there annexed is
15 September 2004which says:
We refer to our letter dated 20 August, inadvertently dated
20 July 2004.
There is further correspondence attached to Mr Gilday's affidavit filed on 11 September 2008 and emails also. These documents relate to a period quite a long time removed from the orders and have no connection with the particular period specified in the orders. I cannot find material in the affidavit that specifies the period up to 2 August 2004. Material in the affidavit certainly indicates that there were negotiations in terms of the provisions in the order which provided that the parties may agree. Again, in the context of this contravention application, the order does not cast any obligation on the parties in relation to any such agreement.
In a contravention application I am bound to look at the orders and to consider whether the applicant has made out specific breaches in terms of the orders, and the applicant has the onus of doing that. The evidence before me does not indicate that the applicant can satisfy that onus and I therefore have no option other than to dismiss the application before me today.
I am minded that costs decisions are discretionary and are not usually part of family law matters unless there is some justice in the case in terms of ordering costs. I am minded of Mr Gilday's financial circumstances as put before me and confirmation that Mr Gilday is on a disability pension. While he may own a property I think it would be very difficult for him to be able to raise any security on funds on that property given the income that he has. Also I am minded that there is an outstanding taxing of costs process from prior proceedings that has not yet been dealt with.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Walker FM
Associate: Joanna Orton
Date: 4 November 2008
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