Harvey and Harvey and Anor

[2018] FamCA 73

FAMILY COURT OF AUSTRALIA

HARVEY & HARVEY AND ANOR [2018] FamCA 73

FAMILY LAW – CHILDREN – Parenting Orders – contempt and contravention applications – self-represented litigations – applications incompetent – struck out.

Family Law Act 1975 (Cth)

APPLICANT: Ms Harvey

RESPONDENT: Mr Harvey

INTERVENOR: Commission of Taxation for the Commonwealth of Australia

FILE NUMBER: MLC 2362 of 2014

DATE DELIVERED: 15 February 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 February 2018

REPRESENTATION

THE APPLICANT:	In Person
THE RESPONDENT:	In Person

COUNSEL FOR THE INTERVENOR: Ms Jacobson

SOLICITOR FOR THE INTERVENOR: Australian Government Solicitor

Orders

1. The application in a case filed by the wife on 10 January 2018 is struck out.

2. The response to the application in a case filed 12 February 2018 is struck out.

3. The application in a case filed 2 January 2018 by the wife is struck out.

4. The second response to the application in a case filed 12 February 2018 is struck out.

5. The contravention application filed 2 January 2018 is struck out.

6. The application in a case filed by the husband on 16 January 2018 is struck out.

7. The contempt application filed by the wife on 18 January 2018 is struck out.

8. BY CONSENT, paragraph 5(a) of the orders made on 30 November 2015 is varied specifically so that the wife have the children for the first half of the

   
   

   Term 1 school holidays in 2018.

9. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2362  of 2014

Ms Harvey

Applicant

And

Mr Harvey

Respondent

And

Commissioner for Taxation for the Commonwealth of Australia
Intervener

REASONS FOR JUDGMENT

1. On 15 February 2018 in the Judicial Duty List, approximately six applications of an interlocutory nature were listed.  Each of the parties Mr Harvey (“the husband”) and Ms Harvey (“the wife”) appeared before the court without legal representation. 

2. The court was assisted by Ms Jacobson of counsel who appeared on behalf of the Australian Taxation Commissioner. 

3. It is trite to say that the parenting dispute between the parties over their three children is ongoing and appears to have no sign of abating.  There is a limit to what the court can do to ameliorate that position for the sake of the children, a problem made more difficult by the lack of objectivity normally expected where legal representation is involved.  To make matters a little more complicated here, at various times, the parties explained their approach indicating that they had been advised to take the course that they did.  Because of that, along with the prospect that there will be further litigation, not to mention the potential confusion that came out of this hearing, the reasons that follow explain why the court adopted the position that it did.

4. To make abundantly clear, whilst the court does the best it can with the evidence that it has been given, it cannot give advice to either party and there comes a point in time where those parties have to take responsibility for the mess that they have created.  In this case, there is certainly evidence of parties adopting a view about their position being correct and taking steps without the objectivity one would normally expect of sensible legal advice.

5. To complicate matters, there is an unresolved property issue between the parties which has been adjourned part-heard by Johns J and which involves the Australian Taxation Commissioner.  It seems common ground that there is a pending application for special leave to appeal against orders of the Full Court of this court which has direct effect upon the approach taken by the parties in this case.

6. I do not intend to set out the precise details of each application because the orders on 15 February 2018 will speak for themselves.  Suffice to say that the wife brought a contravention application arising out of what I described as appalling conduct by the husband in thwarting an overseas trip upon which the wife and the children had embarked at Christmas to Country H.  She was prohibited entry to that country by virtue of some actions of the husband.  However, her application was misguided because there was no such order to preclude the husband from doing what he did even though I consider his behaviour appalling.  Absent some breach of the order to which the wife could point, and here she could not, it had to be struck out.

7. A further application for contempt was brought by the wife against the husband which contained a number of allegations including that the husband had paid some accounting fees out of what appears to be a self-managed superannuation fund.  Leaving aside the right of the husband to do that at law, no injunctive order had been made against the husband to which the wife could point.  She asserted, and it would not seem unreasonable to assume to be correct, the husband was told by Johns J in some discussion in court that he was not allowed to do it.  No breach of any order arises.

8. The husband asserted by an application that he wanted either a recovery order or enforcement of parenting orders but in discussion, conceded that time was back on track again.  The rest of his application related to costs and in reality, compensation for lost income.  A court cannot make those orders.

9. Specifically, the wife had a contravention application against the husband.  If a trial judge cannot understand what the allegation is and see is an arguable case, it is inappropriate to ask the respondent to “plead” to the allegation.  This was such a case here.  The wife was unable to convince me that there was a breach of any order that would give rise to a contravention application and accordingly, her application was incompetent.

10. All of these matters led to all of the applications being struck out.

11. The only light on the horizon was that the wife raised (as distinct from filed an application) seeking an alteration to the Term 1 school holidays because for the last few years, she had not had the opportunity to have the Easter period with the children.  Although the husband initially opposed any orders being made which would alter the status quo, because he wanted to consult his roster, he ultimately agreed that this time in 2018, there could be an alteration of the shared holiday arrangement.  He would not agree to any alteration beyond the forthcoming holiday period.  Having said that, the wife indicated that she had rostered herself to work over that period although somehow or other, she intends to alter that arrangement.

12. It is a fact of life that the court must deal with these sorts of cases but its ultimate focus must still be on the best interests of the children even if the parents’ interests are also seen as important.  Here, I have no doubt there were problems in all of the matters argued but this still remains a court of law exercising the judicial power of the Commonwealth.  It is not a mediation service and the parties need to seek assistance from the social science profession and obtain proper advice from the lawyers as to what can occur so that precious resources are not wasted.  In my view, having now seen what has occurred in this case and without making any determination as to which of the two parents is responsible for the problems, this is not a case which justifies significant resources in the foreseeable future.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 February 2018.

Associate: 

Date:  15 February 2018