Grange and Grange

[2016] FamCA 75

FAMILY COURT OF AUSTRALIA

GRANGE & GRANGE [2016] FamCA 75

FAMILY LAW – PRACTICE AND PROCEDURE – Contravention Application filed by applicant – Grounds 1,5,6,10 and 11 adjourned for mention to a specific date – Remaining grounds dismissed – Orders and directions made that applicant file an amended application containing the complaints set out in the remaining grounds and supporting affidavit material

Family Law Act 1975 (Cth)

APPLICANT: Ms Grange

RESPONDENT: Mr Grange

FILE NUMBER: CSC 787 of 2008

DATE DELIVERED: 2 February 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 2 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. In relation to the contravention application filed by Ms Grange (‘the applicant’) on 10 November 2015, this court dismisses all of the grounds contained in that contravention application excluding grounds 1, 5, 6, 10 and 11 (‘the remaining grounds’).

2. As to the remaining grounds, such grounds be adjourned for mention at 2.15pm on 4 July 2016 at Hobart.

3. Leave be given to the parties to attend by videolink between Hobart and B Town.

IT IS DIRECTED

1. Within twenty one (21) days from the date of this order, the applicant file an amended application containing the complaints set out in the remaining grounds (1, 5, 6, 10 & 11).

2. Within a further period of twenty eight (28) days from filing such amended application as set out in order 4 above, the applicant have served personally on the respondent:-

   (a)a sealed copy of this order;

   (b)the amended application showing the return date at B Town as being 2.15pm on 4 July 2016, containing the complaints set out in the remaining grounds; and

   (c)any affidavits upon which she relies in relation to the remaining grounds.

IT IS NOTED

1. In the event that the amended application and further material is not filed on or before the time set out in orders 4 & 5 above, it is likely that the remainder of the application will be dismissed.

IT IS FURTHER ORDERED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grange & Grange has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: CSC 787 of 2008

Ms Grange

Applicant

And

Mr Grange

Respondent

REASONS FOR JUDGMENT

1. On 10 November 2005, Ms Grange (‘the applicant,) commenced contravention proceedings against Mr Grange (‘the respondent) in relation to alleged breaches of orders made by this Court on 21 May 2012 as amended.  The reason the applicant said “as amended” was that the original orders were made on that date, and some months later, in February 2013, that order was amended.  There is evidence before me that the original contravention application was served personally upon the respondent, and there is evidence before me that at least one or other of the parenting orders has been served upon the respondent.

2. There will need to be proof as to which of the orders of 12 May 2012 were served upon the respondent: whether it was the original order or the amended order.  When the matter first came before me in December 2015, there was no appearance by the respondent.  He was called at that time.  When the matter came before me today, he was called, and he did not attend.  The applicant asserted from the bar table that the respondent is in some sort of difficulties with the police and is no longer in the State of Queensland.  The applicant wants these proceedings stood over for a lengthy period of time with a hope that when he returns to Queensland, she can pursue the proceedings in what she says is the likely event of there being further contraventions.

3. When the matter was before me on 8 December 2015, I directed that the applicant file further affidavit material in support of her contravention application.  That has not been done.  I also asked her if she would go through the contraventions, many of which, on the face of them, cannot succeed, and indicate to which ones she intends to proceed.  She was unable to do that.  I directed that she file an amended application returnable today.  She did not do that.  The respondent was required to attend court today.  He did not attend, although there was no evidence that he was served with the amended date.

4. I have, today, prior to the commencement of the hearing, gone through the material upon which the applicant relies, which is primarily the affidavits of service to which I have generally alluded earlier, her application for contravention and her detailed affidavit filed on the same date, that is, 10 November 2015.  Part of the applicant’s material shows that on 24 July 2015 to 3 September 2015, there was in place a child protection order under the Queensland state child protection regime.

5. The effect of s 69ZK of the Family Law Act 1975 (Cth), in my view, excludes the jurisdiction of the court from dealing with any contravention of the orders over that period of time, bearing in mind there were those child protection orders. I have also gone through the application for contravention filed 10 November and numbered the alleged contraventions to which the applicant alludes, and there are some 21 of them, of which I have numbered consecutively, number 1 being the alleged contravention on 22 May 2015 and number 21 being the alleged contravention on 15 October 2015.

6. It seems to me that of those alleged contraventions, only six can, on the face of them, be dealt with, and I will go through them each in order.  The first one is the alleged contravention on 22 May 2015, which has, perhaps, the capacity of being dealt with as a contravention.  Provided the words “he let our daughter lie to me within the message and then drove past the front of our family home in his truck” are deleted, the first part of that asserted contravention will be able to go ahead.

7. The second alleged contravention, that is, of 5 September 2015, is in a form which cannot succeed and must fail.  Accordingly, the applicant cannot succeed with that.  The third, fourth, eighth, 16^th and 17^th grounds cannot succeed as they occurred during the period of time when the state care and protection order was in place.  The fifth allegation may, if the evidence sustains it, be able to proceed further, provided the words “the children’s father did not stop [J] from wagging school” are deleted.  Similarly, the sixth can continue, provided the words “then [J] lied to me about where he had been” are deleted.

8. The seventh, on the face of it, cannot succeed.  The ninth is just too wide and could not be adequately responded to.  The 10^th has a capacity to succeed, provided the words “which is something I cannot afford to do as he withholds child support of $26 per day from the children and I” is deleted.  The 11^th can succeed, although it will be a matter for evidence.  The 12^th can succeed.  The 13^th, 14^th, 18^th, 19^th, 20^th and 21^st cannot succeed as they are just far too wide, and it would be not possible to respond to them.  The 15^th cannot succeed on the face of it.

9. Therefore, the only five grounds that have the possibility of succeeding are those contained in 1, 5, 6, 10 and 11, with the first four being amended as I indicated.  Accordingly, I make the following orders.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 February 2016.

Associate:

Date:              2 February 2016