Humphrey & Humphrey (No 4)
[2024] FedCFamC1F 845
•26 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Humphrey & Humphrey (No 4) [2024] FedCFamC1F 845
File number(s): BRC 4211 of 2019 Judgment of: HOWARD J Date of judgment: 26 November 2024 Catchwords: FAMILY LAW – CONTRAVENTION – personal service – overarching purpose of the rules – power to dispense with the rules Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Cases: Doyle v Commonwealth (1985) 156 CLR 510 Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 26 November 2024 Place: Brisbane Counsel for the applicant: Mr Matthews of Kings Counsel Solicitor for the applicant: Evans Brandon Family Lawyers Counsel for the respondent: Mr Christie Solicitor for the respondent: Murdoch Lawyers ORDERS
BRC 4211 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HUMPHREY
ApplicantAND: MR HUMPHREY
Respondent
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
26 NOVEMBER 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the Final Contravention Hearing be adjourned to a Case Management Hearing at 10.00am on 5 December 2024 with the parties and their representatives having leave to appear by telephone.
Subpoena Orders
2.That the parties have leave (and the Court make the necessary arrangements for the parties to be able) to rely upon and to seek to tender documents produced under Subpoena within the concurrent parenting proceedings between Mr Humphrey (the Father) and Ms Humphrey (the Mother) under BRC1951/2024 at the Final Contravention Hearing listed before the Honourable Justice Howard (under BRC4211/2019).
3.That the Court make the necessary arrangements to facilitate the playing of CCTV footage produced under subpoena at the Final Contravention Hearing.
4.That the parties’ legal representatives have leave to inspect and copy the documents produced in response to Subpoena No. 7 under BRC1951/1024 (being the Subpoena to Department of Child Safety, Seniors and Disability Services dated 15 October 2024).
5.That the parties be and are hereby restrained from using, or disseminating the documents produced under the subpoenas in any way other than the purpose outlined in the preceding Order.
Transcript
6.That the Mother have leave to provide a hard copy of the Transcript of the Interim Hearing before the Honourable Justice Jarrett on 25 July 2024 under BRC4211/2019 to the Father and his legal representatives.
Costs
7.That each parties’ costs be reserved.
THE COURT NOTES:
A.That the Court is considering listing the Final Contravention Hearing for 3 days commencing Tuesday 10 December 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J
These reasons were delivered ex tempore on 26 November 2024 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court is a parenting case. In these particular proceedings, the applicant is the mother, Ms Humphrey, and the respondent is the father, Mr Humphrey. These are contravention proceedings. The mother and the father have been before Justice Baumann of this Court on numerous occasions, and his Honour made an earlier final parenting Order on 31 August 2022. There is currently before the Court an Application brought by the father to vary those earlier final parenting orders, but Baumann J has indicated, quite correctly, that he will not deal with that application to vary the earlier final parenting orders until this contravention application has been dealt with.
The matter was listed for final hearing today. Mr Matthews of King's Counsel appears for the applicant mother, Mr Christie of counsel appears for the respondent father. Mr Christie raised a valid point at the outset. Rule 2.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, in conjunction with rule 2.28 and table 2.2 (which is contained in that latter rule) make it clear that an application for contravention requires personal service. It seems to be accepted between the parties that no such personal service occurred. Mr Christie argues there is very little scope for the Court to dispense with the rule, and he referred me to a High Court decision of Doyle v Commonwealth (1985) 156 CLR 510. At page 518 of Doyle the High Court said (inter alia):
“However, with the greatest respect, a judge cannot dispense with the requirements of the Rules of Court unless the Rules give him power to do so, and when a power is expressly conferred on the Court subject to a condition, a judge cannot, by relying on inherent powers, escape from the necessity of ensuring that the condition has been fulfilled.”
Well, in this instance, of course, there is a Rule of Court that does grant to the Judge hearing the matter the power to dispense with the Rules. I am reminded that these new rules (which are only three years old) have been specifically drafted to attempt to assist the courts exercising jurisdiction in Family Law to deal with the heavy workload, and I note in particular rule 1.04:
“The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.”
With that overarching purpose in mind, I turn to those rules that Mr Matthews KC has referred: rule 1.31, which grants to the Court the power to dispense with compliance, or full compliance, with any of the Rules at any time. In this type of case, there is an additional power in rule 2.33. The application for contravention should have been personally served on Mr Humphrey. It was not. But I note that there were appearances by Mr Humphrey in person before Baumann J (after the application for contravention was filed) and the mother was represented at the time, and those appearances seem to have taken place, on 9 October and 17 October. And on 18 October, Baumann J issued an order from Chambers, and that order noted that the mother sought to have this contravention application dealt with urgently, and his Honour noted that the competing applications for variation of the final parenting orders - should be dealt with after the contravention application has been determined. Then his Honour issued an order allocating the matter to my docket, with a case management hearing to be listed on a date to be fixed.
Noting the urgency of it, I did not feel it was the sort of case that needed future case management. Considering the close monitoring Baumann J has given to this matter - on that same day, 18 October, once I was notified, I issued an order from Chambers, setting it down for today for final hearing, 26 November. Further, I note that on 5 November, the father had emailed Baumann J’s Chambers (and the mother’s lawyers) seeking leave to issue subpoenas to the police and one other party and stating that those documents would be relevant to the contravention application and specifically noted that the contravention proceedings would take place on 26 November.
On 11 November, my own Chambers emailed to the parties, as is the usual practice, with a so‑called “compliance email”, and the father replied and complied with the direction and his communication made it clear he was referring to the contravention hearing. In most instances, when a contravention application has been filed, I would insist on personal service. In this particular instance, I note the overarching purpose of the Rules and the power to dispense with the strict compliance of the Rules, and I notice the very close monitoring of the proceedings and case management of the proceedings by Baumann J to such an extent that it can be beyond any shadow of a doubt that the father and the mother were both well aware that the contravention proceedings were to go ahead by way of a final hearing today.
Mr Christie makes the point that notice of the proceedings is not the same thing as personal service. He is quite right about that, but when I consider all of the background to this matter, when I see that his Honour has noted that the matter was to be dealt with urgently, and when I take into account the lengthy history of the dispute between these parents which now involves teenage children, both of whom, no doubt, have very strong views of their own – when I take all those matters into account, I consider that this is the sort of case where I ought to dispense with the strict requirements of rules 2.27 and 2.28. That is, I will dispense with the requirement for personal service of the application for contravention and permit the matter to proceed today. This will, it seems to me, enable the Court, in this instance, to take steps to facilitate the just resolution of the dispute according to law and as quickly, inexpensively and efficiently as possible.
That deals with the first preliminary point raised by Mr Christie. I apprehend Mr Christie may have some other applications to make – perhaps relating to the state of the material.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Howard . Associate:
Dated: 16 January 2025
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