Harshani and Darnith

[2014] FamCA 1042

FAMILY COURT OF AUSTRALIA

HARSHANI & DARNITH [2014] FamCA 1042

FAMILY LAW – PRACTICE AND PROCEDURE – Father’s contravention applications with respect to final parenting orders – where the father concedes that the mother did not understand her obligations under the orders at the relevant time – applications withdrawn.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harshani

RESPONDENT: Ms Darnith

FILE NUMBER: MLC 1556 of 2010

DATE DELIVERED: 30 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 30 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bolton

SOLICITOR FOR THE APPLICANT: TAI Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Leave be granted to the father to withdraw his contravention applications filed
   9 October 2013 and 2 September 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harshani & Darnith 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 MELBOURNE

FILE NUMBER: MLC 1556 of 2010

Mr Harshani

Applicant

And

Ms Darnith

Respondent

REASONS

1. In this matter, there was a final hearing before Federal Magistrate Hughes, as she was then, during 2011 and she pronounced orders and delivered her reasons on 30 April 2012.  As a consequence of that judgment, the father filed a notice of appeal and the mother made an oral application seeking to stay the orders of 30 April 2012 pending that appeal. 

2. On 25 October 2012 Federal Magistrate Hughes made, inter alia, the following orders:

   (1)By consent, the respondent mother has leave to make an oral application for a stay of the orders of 30 April 2012 or part thereof, pending appeal.

   (2)The orders of 30 April 2012 are hereby stayed.

   It is noted that, as a result of the stay, the parenting arrangements remain as ordered on 9 February 2011, namely:

   ·   the child G born in 2008 will spend from 9.00 am until 5.00 pm each Sunday with his father (or such other times as can be accommodated by the Contact Centre);

   ·   handover is to occur at the Berry Street Children’s Contact Centre; and

   ·   the time is only to occur if at least one of the father’s adult daughters is present for the whole of the period.

3. The appeal was dismissed by Strickland J on 18 September 2013.  It follows, therefore, that the orders made by Federal Magistrate Hughes on 30 April 2012 are the orders that are in force with respect to the child of this relationship.  It also is clear, however, from previous hearings before me and the affidavits filed by the father in support of his two applications for contravention, the first filed on 9 October 2013 and the second of those applications filed on 2 September 2014, that there has been ongoing uncertainty with respect to which of the various orders that were made is now in force.

4. In all of those circumstances, as is conceded by counsel for the father, the contravention applications are bound to fail because it could not be established that the mother, at the time of the contravention, understood the obligations imposed upon her by the order it is asserted she has contravened. 

5. I have some sympathy for the mother’s position to the extent that when the matter was listed for hearing before me on 6 August 2014 it appeared that there was an ongoing debate, which included counsel for the mother, as to whether the order of 25 October 2012 or the order of 30 April 2012 was the parenting order in force with respect to the child.  Although I am not here to give advice to the mother, it should be clear to her now that the order governing the parenting arrangements is the order of 30 April 2012.

6. The father seeks to withdraw his contravention applications filed 9 October 2013 and 2 September 2014 and I propose to grant him leave to do so.  It may well be given the time that elapsed between the orders being made on 30 April 2012 and the dismissal of the appeal that the implementation of the orders made on 30 April 2012 needs to be reconsidered having regard to the child’s best interests. 

7. However, I do not have any applications before me with respect to that matter and although I stood the matter down to give the parties the opportunity to see if they could reach some agreement, unfortunately, the mother left the Court, as, it would appear, did the interpreter who was engaged on her behalf by the Court for the hearing today. There was therefore no opportunity to have those discussions.  The matter otherwise awaits a hearing in the pool of cases. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 30 October 2014.

Associate: 

Date:  24 November 2014