Gottlieb & Ors and Bauman

Case [2019] FamCA 422


FAMILY COURT OF AUSTRALIA

GOTTLIEB AND ORS & BAUMAN [2019] FamCA 422

FAMILY LAW – CHILDREN – Contravention Application – where the father was incarcerated –consent orders were made for the child to live with the mother and for the mother to have sole parental responsibility – where consent orders required the mother to forward gifts sent by the father to the child for a period of two years – where consent orders were made between the parents and the paternal grandparents – where the mother was to encourage a relationship between the child and the paternal grandparents – where the mother relocated to Country E – contravention of orders by the mother – where there were issues serving the Contravention Application upon the mother – where the Contravention Application was heard almost four years after it was filed – delay in the Contravention Application being listed – where the child is almost eighteen – Court determines there is a case to be answered – whether “serious disregard” of primary orders – where there are no viable orders pursuant to Subdivision E of Division 13A of the Family Law Act 1975 (Cth) – Applications dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Service of an initiating process outside Australia – consideration of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965 – consideration of Part IIAB of the Family Law Regulations1984 (Cth) – Court determines mother was properly served – failure of mother to file Notice of Address for Service pursuant to Rule 8.05 of the Family Law Rules 2004 (Cth) – proceeding ex parte –  definition of “default judgment” under the Family Law Rules 2004 (Cth) and Family Law Regulations 1984 (Cth).

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matter 1965 art 2, 5, 6.
Family Law Act 1975 (Cth) ss 60CA, 64B, 65X, 65Y, 70NAA, 70NAC, 70NAF, 70NEA, 70NEB, 70NFA, 70NFB, 70NFG, 112AD
Evidence Act 1995 (Cth) ss 3, 140
Family Law Regulations 1984 (Cth) regs 21AC, 21AF, 21AG, 21AH, 21AJ, 21AK, 21AL, 21AM
Family Law Rules 2004 (Cth) rr 1.03, 1.04, 1.05, 8.05, 8.06, 21.02, 21.07 21.08
Federal Court Rules 2011 (Cth) r 10.61
Uniform Civil Procedure Rules 2005 (NSW) rr 11.A1, 16.2
Uniform Civil Procedure Rules 1999 (Qld) rr 130A

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Bande & Cade [2011] 45 Fam LR 376

Briginshaw v Briginshaw (1938) 60 CLR 336

Cachia v Hanes (1994) 179 CLR 403

Chin & S Law Firm (No. 2) [2011] FamCAFC 154
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Gravis & Major [2010] FamCAFC 239
Hugh & Sawer [2010] FamCA 290

Malcher & Malcher (No. 2) [2017] FamCA 989

Marriage of Lindsay (1995) FLC 92-638

McClintock & Levier (2009) FLC 93-401
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Oscar & Traynor [2008] FamCAFC…

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AGLC
Gottlieb & Ors and Bauman [2019] FamCA 422
Case
[2019] FamCA 422
Decision Date

CaseChat Overview and Summary

In the matter of Gottlieb & Ors and Bauman, Harper J of the Family Court of Australia considered a contravention application brought by the father and paternal grandparents against the mother. The dispute arose from consent orders made in 2012, which stipulated that the child live with the mother, the mother have sole parental responsibility, and the mother forward gifts from the father to the child for two years. The consent orders also required the mother to encourage a relationship between the child and the paternal grandparents. The mother subsequently relocated to Country E, and the contravention application was filed almost four years later, with significant delays in service and listing.

The court was required to determine whether the mother had seriously disregarded the primary orders, particularly in light of her relocation and the practical difficulties in enforcing the orders. Additionally, the court had to consider the proper service of the contravention application upon the mother, who was residing overseas, and whether the proceedings could continue ex parte due to the mother’s failure to file a Notice of Address for Service. The court also had to assess the availability of viable orders under Subdivision E of Division 13A of the *Family Law Act 1975* (Cth).

Harper J found that the mother had been properly served in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and relevant Australian regulations. However, despite determining that a case to be answered existed regarding the contravention, the court concluded that there were no viable orders that could be made under Subdivision E of Division 13A of the *Family Law Act 1975* (Cth), particularly given the child was nearing adulthood and the significant delay in the proceedings.

Consequently, the court dismissed the contravention application filed by the father and the contravention application filed by the paternal grandparents.

Orders

Orders of the court

1.

The Contravention Application filed by the Applicant Father on 15 November 2015 hereby be dismissed.

2.

The Contravention Application filed by the Second and Third Applicants, being the Paternal Grandparents, filed on 16 November 2015 hereby be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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