GULL & GULL

[2010] FamCA 164

FAMILY COURT OF AUSTRALIA

GULL & GULL [2010] FamCA 164

FAMILY LAW – ORDERS – Contravention – summarily dismissed – abuse of process

Family Law Act 1975 (Cth)

APPLICANT: Ms Gull

RESPONDENT: Mr Gull

INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

FILE NUMBER: MLC 10581 of 2008

DATE DELIVERED: 25 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 25 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Mr Da Gama

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Lampe Family Lawyers

IT IS ORDERED THAT

1. The wife’s application for contravention filed on 15 February 2010 be summarily dismissed as an abuse of process of the Court.

IT IS NOTED that publication of this judgment under the pseudonym Gull & Gull is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10581 of 2008

MS GULL

Applicant

And

MR GULL

Respondent

REASONS FOR JUDGMENT

1. The application which is the subject of these reasons for judgment was filed by the wife in person on 15 February 2010. It seeks orders pursuant to the contravention provisions of Division 13A Part 7 of the Family Law Act 1975, to which I refer as “the Act”, alleging a number of breaches by the husband in having contact with the child of the parties, …, known as …, born in October 1994 and presently aged 15 years and 4 months.

2. This matter has a very long history with which I am intimately familiar.  Approximately two years ago as a result of extensive defended proceedings, I delivered judgment and made orders in matters of alteration of property interests between the parties.  Those orders were the subject of an appeal by the wife to the Full Court of this Court, as a result of which certain amendments were made to my orders, but the appeal was otherwise dismissed.  An application by the wife to the High Court of Australia for special leave to appeal was refused.

3. Throughout the property proceedings there have been regular references to the child and, in particular, the breakdown of the relationship between the child and the husband.  One of the issues before the Court, which I will hear and determine in due course, is an application by the wife for the lifting of a watch list order to enable her to travel to India with the child for a holiday. 

4. The present application alleges breaches of the order in that the husband did not attend in accordance with the order for contact at McDonald’s between the hours of 11.00 am and 1.00 pm on five dates between 4 February 2006 and 8 July 2006.  The application further alleges that on 16 occasions between 27 April 2005 and 2 August 2006 the respondent failed, without reasonable excuse, to contact the child via telephone in accordance with the orders.

5. It is an unusual application that a primary parent of a child applies for orders by way of contravention alleging that the other parent has not availed, in this case himself, of the orders to spend time with the child.  It is particularly unusual for such an application to be made in circumstances where the child is over 15 years of age and is asserted by the applicant for contravention, in this case the wife, not to want to have anything to do with his father.

6. It is common ground that there has been no communication between the child and his father since the parties’ separation.  That was an issue before me in the proceedings to which I have referred and I made findings in respect of it.  It is of no relevance here.  On any view, the child has not had anything to do with his father for somewhere between five and six years.  That may be up to nine years.  Further, in respect of the first alleged contraventions, the last date is July 2006.  In respect of the telephone allegations, the last date is August 2006.

7. I have no explanation for why the applicant wife has seen fit to delay bringing this proceeding for so long.  I have my suspicions, but I am unable to make any finding in view of the lack of facts. In my view, this application is a fundamental abuse of process of the Court.  I say that for two reasons.  The first of those is the obviously correct assertion by the wife that the child’s relationship with his father has broken down and there has been no communication between them for many years.  The second is that the wife has waited some three and a half years after the last alleged brief to bring this proceeding.

8. Contravention proceedings, as has been often said, are primarily to bring about compliance with orders rather than to punish.  The Act clearly provides that sanctions for breach may be imposed in appropriate circumstances as detailed in the Act.  On the wife’s own admission, I find that there is no realistic prospect of the order being complied with, not as a result of any action or default by the husband, but as a result of the wishes of the child.  Accordingly, the consideration of this application would be a fruitless exercise and it will be accordingly dismissed as an abuse of process. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  6 April 2010