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 Briginshaw v Briginshaw (1938) 60 CLR 336 Cachia v Hanes (1994) 179 CLR 403 Chin & S Law Firm (No. 2) [2011] FamCAFC 154 Malcher & Malcher (No. 2) [2017] FamCA 989 Marriage of Lindsay (1995) FLC 92-638 McClintock & Levier (2009) FLC 93-401 |
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- AGLC
- Gottlieb & Ors and Bauman [2019] FamCA 422
- Case
- [2019] FamCA 422
- Decision Date
CaseChat Overview and Summary
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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