Hodges and Xiu

[2014] FamCA 139

FAMILY COURT OF AUSTRALIA

HODGES & XIU [2014] FamCA 139

FAMILY LAW – PRACTICE AND PROCEDURE – s 118 leave application granted.

Family Law Act 1975 (Cth)

APPLICANT: Mr Hodges

RESPONDENT: Ms Xiu

FILE NUMBER: MLC 6222 of 2008

DATE DELIVERED: 4 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baume

THE RESPONDENT: No appearance

Orders

1. That pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act”), leave is granted to the applicant to commence proceedings naming Ms Xiu as a respondent for the purposes of seeking parenting orders and orders arising out of what is asserted by the applicant to be a contravention of court orders.

2. That the matter be listed in the Senior Registrar’s list of cases (notwithstanding the potential contravention application) on a date to be determined by the Registry.

3. That service of this order be undertaken by the practitioner for the applicant.

4. That the reasons this day be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hodges & Xiu 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 6222 of 2008

Mr Hodges

Applicant

And

Ms Xiu

Respondent

REASONS FOR JUDGMENT

1. This is a most unusual application.  On 14 February 2013 Dessau J made orders which, on their face, looked like they were mostly consensual arrangements between the parties concerning a child, K, who was born in 2002, (“the child”).  I think it seems common ground that the child has a number of problems of a disability nature.  The difficulty arises because for reasons which I am unable to discern her Honour made orders which were not by consent that each of the parties be restrained from bringing any further proceedings without leave of a judge. 

2. Usually when a court makes an order of that nature comprehensive reasons are given so that any judge hearing the case thereafter has some understanding of what it was that was concerning the judge. Section 118 of the Family Law Act is a provision which is a very large infringement on a citizen’s right to access to justice. I have, in the past, said that it is not a major problem, because the litigant has still got a right to bring the application for leave. But even if I am wrong about that it is still an infringement on that person’s liberty.

3. In this particular case the problem seems to stem from the wording of what the parties agreed upon.  One of the fundamental things for the child’s welfare was that each year the parties were to arrange and attend a very significant welfare meeting, which was said to involve a lot of professionals.  According to the applicant’s affidavit, the respondent has refused to fulfil her obligations and he, therefore, wants to bring an application that she be dealt with by the Court for breaching that order, and in regard to the fact that that was a consensual arrangement, and it seems to me to underpin the very welfare issues around the child, it would be unusual for a court to decline to give the leave in these circumstances. 

4. If, as Mr Baume for the applicant, has indicated, the purpose behind the section 118 order was to bring all of this litigation to an end, it was certainly a forlorn hope. The parties are clearly going to be back in court again, and it is now suggested that there are even further problems associated with the schooling of this child. Under those circumstances, the appropriate order is to grant leave for the applicant to file an amended application seeking precise orders, which can then be served upon the respondent, rather than the matter come back into the judicial duty list before a judge, notwithstanding there is a contravention application, I think this should go to the Senior Registrar’s list so that immediate interim issues can be dealt with, and I will otherwise have these reasons published.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 February 2014.

Associate: 

Date:  14 March 2014