Hood and Curry

[2016] FCCA 3405

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOOD & CURRY [2016] FCCA 3405

Catchwords:
FAMILY LAW – Applications for Contravention and Contempt – applications dismissed.

Legislation:

Family Law Act 1975

Applicant: MR HOOD

Respondent: MS CURRY

File Number: ASC 23 of 2013

Judgment of: Judge Young

Hearing date: 16 December 2016

Date of Last Submission: 16 December 2016

Delivered at: Darwin

Delivered on: 16 December 2016

REPRESENTATION

The Applicant: Mr Hood

Solicitors for the Respondent: Ms N Collier of Collier Lawyers

Solicitors for the Independent Children’s Lawyer: Ms M Romeo of Margaret Orwin Barrister & Solicitor

ORDERS

1. That the outstanding Applications for Contravention and Contempt filed by the applicant on 20 July 2015 are dismissed and these proceedings are removed from the Active Pending Cases List.

2. That the applicant’s oral application to have these proceedings transferred to the Family Court of Australia is hereby dismissed.

3. That the applicant is excused from further compliance with order 4 of the orders made on 29 August 2016 in respect to filing submissions.

4. That judgment in respect to the Initiating Application filed on 27 June 2013 is otherwise reserved to a date to be advised to the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ASC 23 of 2013

MR HOOD

Applicant

And

MS CURRY

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. I have listed this matter today because the applicant, Mr Hood (so he has styled himself in the latter part of these proceedings) has, in substance, complained to my chambers that two applications, one for contempt and one for contravention against the mother in the proceedings, have been ignored.  Those applications were both filed on 20 July 2015.

2. The application for contravention and the application for contempt are, as far as I can see, identical terms.

3. The alleged contraventions are of an interim consent order made on 23 October 2013.  In other words, almost two years before the applications. The order allegedly contravened is that the mother and father have equal shared parental responsibility for the child and the statement of the alleged contravention is as follows:

   “The mother and I have shared responsibility for”,

   and I won’t mention the child’s name,

   “the child.  The reality is that I’m completely shut out of any decision required for the child.  It is a specific area outlined in detail.  The mother has taken measures to prevent me taking the child to see a doctor and to see a child psychologist.  I am unable to communicate with the mother in regard to education or extracurricular activities.  I am unable to enrol the child for (omitted) lessons due to continual denial of access.  In over 70 occasions I have been denied access to the child since the inception of the orders in October 2013.  For example, I have not seen the child since 13 May 2015 – a total of .....”,

   and the statement is incomplete.

4. Precisely the same statement is made in the application for contempt.  In both cases there is a further statement which is not said to be a statement of a breach of an order but is included at the end of the document. It is said that the mother has contravened the set of family law orders by:

   “i)preventing access to care;

   ii)preventing medical needs;

   iii)preventing educational decisions;

   iv)preventing social inclusions;

   v)preventing shared responsibility,

   of the child, etcetera.”

5. I am satisfied that the stated breach does not, in its terms, amount to a contravention of an order for equal shared responsibility.  It is, possible, that a denial of time would amount to a contravention of a time spent order but that is not what is alleged and, indeed, I am not satisfied that the statement amounts to a contravention of any such order.

6. As noted, the application for contempt is in the same terms.  To some extent the alleged contraventions are fleshed out in an affidavit which is full of objectionable, embarrassing and irrelevant material.  I would have no hesitation in striking out both applications and disallowing the affidavit on the grounds that neither application discloses a contravention and that the affidavit in support is embarrassing, prolix and irrelevant.  However, that is not the end of the matter.

7. Those applications were listed for hearing on 22 March 2016 when the parenting application of the father was also listed for trial.  A trial took place over seven days in March in Alice Springs. It was initially set down for three days and then, when it was apparent that the matter could not be completed in that time, was adjourned for another three days. Finally, there was a seventh day of trial when we adjourned to accommodate Mr Hood calling a psychiatrist.

8. The transcript reveals that at the outset of the trial Ms Romeo, the independent children’s lawyer, said this to me:

   “There are some other issues, your Honour and that is that there is a contempt application and a contravention application Mr Hood filed in July.  We need to know what he intends to do about those and also if he has witnesses because he hasn’t filed any affidavits of witnesses.”

9. Now, it is apparent that Ms Romeo was raising two issues: first, whether the father wished to continue with his contravention and contempt applications and, secondly, the separate matter of his failure to comply with trial orders for the filing of affidavits.

10. Once Ms Romeo raised this, I then went on to deal with the question of affidavits and asked Mr Hood what he proposed to do about complying with the trial order.  It was apparent that he had taken no steps whatsoever to comply with the trial order and had no excuse for failing to do so.

11. I was satisfied from the enquiry I made of Mr Hood at length on the morning that he had no excuse and I made comments to that effect on the transcript.  However, bearing in mind that he was self-represented, I thought it was appropriate to take steps to permit him to give some evidence subject to him providing a witness statement or statements of each of his witnesses. I directed that he prepare a witness statement of each of the witnesses he proposed to call and provide that to the mother and the independent children’s lawyer before 2.00 pm that afternoon when I intended to resume the trial.

12. Beyond that mention by Ms Romeo, over the ensuing seven days of trial, over three separate sessions of evidence, there was no mention whatsoever by the father of this issue. At no point did Mr Hood raise with me the issue of his contravention and contempt applications.

13. He has not offered any reasonable excuse for failing to do so.  It was incumbent upon him to answer Ms Romeo’s question and he failed to do so.  He says that he was unaware that the trial would end when it did.  He said in submissions that he thought there was going to be another day.  I do not see how he can have genuinely believed that as it is clear from the transcript that the final day was taken up with evidence from Dr T, the psychiatrist and some submissions about what was going to happen pending my reserved decision.

14. The orders were clear at the end of the trial which was that, until further order, the mother and the child were to be permitted to relocate from (omitted) and that until further order, any time orders with the father were to be suspended.  There can be no doubt that the matter was adjourned indefinitely for me to prepare a reserved decision.

15. So I reject the explanation offered by Mr Hood.  His failure to raise these matters again is therefore unexplained and, in my view, it was quite wrong of him to stand by over seven days and leave this matter hanging.  I think it is fair to conclude that he did not wish to proceed with them.

16. Ms Romeo and Ms Collier have told me in submissions that they had a joint conversation with Mr Hood before the commencement of the trial where they asked him what he proposed to do about those applications.  He said, according to them in submissions from the bar table, that he did not wish to proceed and Ms Romeo and Ms Collier say that is the reason why they did not return to the issue.

17. There is, as far as I can see, no reference to that conversation in the transcript and I do not rely on it as having any particular significance.  Mr Hood, perhaps not surprisingly, denies that it ever happened and referred to his complaints against one of the lawyers to the Law Society.  As I say, I do not propose to take into account any submission about that alleged conversation.  In my view it is unnecessary.

18. I am satisfied that the applications in both cases should be dismissed because they do not disclose, first, a contravention or a contempt and, secondly, I am satisfied that Mr Hood, knowing that these matters were listed for trial, stood by and did not respond to the independent children’s lawyer about whether or not he wished to proceed with them.  It was clear or it ought to have been clear, and perhaps it was clear to everyone except me, that I had overlooked these matters and had overlooked that they needed to be dealt with.  I was clearly taken up by the fact that Mr Hood had completely failed to comply with trial directions and my efforts to ensure that he be given the opportunity to be heard.

19. Anyway, that is neither here nor there.  He did not press the applications on the morning of the trial or at any time during the trial notwithstanding the opportunity to do so and that is the end of the matter. I dismiss the applications.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:       9 January 2017