Kaly and Kaly (No. 2)

[2007] FamCA 803

FAMILY COURT OF AUSTRALIA

KALY & KALY (NO. 2) [2007] FamCA 803

FAMILY LAW – PRACTICE AND PROCEDURE – Contravention of orders

Family Law Act 1975 (Cth)

APPLICANT: MR KALY

RESPONDENT: MRS KALY

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 44 of 2006

DATE DELIVERED: 2 AUGUST 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 2 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MR GRIGG

SOLICITOR FOR THE RESPONDENT: LE SOUEF PRESTON & ASSOCIATES

INDEPENDENT CHILDREN’S LAWYER COUNSEL: NO APPEARANCE

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: GORMAN & HANNAN

ORDERS

1. THAT the husband’s application for contravention of orders, filed 18 July 2007 be adjourned for hearing before Watt J. as part of the Children’s Cases Program on Monday 13 August 2007 at 10.00 a.m.

2. THAT otherwise this contravention application be part of the mention of proceedings before His Honour at 9.30 a.m. Monday 6 August 2007.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 44 of 2006

MR KALY

Applicant

And

MRS KALY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Kaly has been listed before me in the judicial duty list this day.  A contravention application was filed by the husband on 18 July 2007.  He said that he advised the client services staff of this court that the matter was listed in the Children's Cases Program before his Honour Watt, but nevertheless they determined to make the first return date in this duty list.  That is not the correct procedure.

2. The husband appears in person, Mr Grigg of counsel appears on behalf of the wife.  There is no appearance by or on behalf of the Independent Children's Lawyer and by letter, I am advised through the wife's solicitors of the fact that they have no funding for this contravention matter but that they will be attending at the final defended hearing now fixed for three days, commencing on 13 August 2007 before his Honour.

3. The matter comes before me in a very active judicial duty list where there are other matters of urgency to be heard.  I have received submissions from both the husband and Mr Grigg.  At the outset, Mr Grigg advised that the wife seeks an adjournment and primarily a consolidation of all matters, as his Honour is part-heard and well versed with all of the issues in this case. 

4. A technical objection has been identified in respect of the contravention application as it is alleged that the orders said to have been breached are not annexed thereto.  I would certainly not have upheld that objection.  Otherwise, there are further objections about the lack of particularity and specificity accompanying the alleged contraventions upon which I have not ruled. 

5. From an initial reading of the document it is clear that some of the statements are imprecise and matters of generality.  There are, however, some specific matters that may sufficiently, in my opinion, identify the particular issues before the court by way of that contravention application.

6. I do not have time to hear and determine the matter.  The Children's Cases Program list is meant to deal with any and all matters of and related to a particular file and that includes any enforcement, contravention or other issues and disputes.  This matter will and must be referred to his Honour for determination.  It should not be a lengthy or difficult matter and indeed the particular issues are simply intertwined with determining orders in the best interests of the children that will be made for the future. 

7. The husband acknowledged that what is sought are final orders that are proper and workable and what has occurred in the past will no doubt be understood and form the basis of ongoing orders.  I am also told that a family report is in the final process of production and that will be an important document of evidence in the proceedings.

8. I should clearly emphasise that Mr Grigg's ultimate submission would be that his client is not guilty of any of the alleged contravention charges and that at all times, she had a reasonable excuse.  I have not progressed this matter so far as to have the wife plead to any charges, nor put her defence before the court. 

9. I leave the hearing of this contravention matter to his Honour.  It could either be done as a preliminary issue, where the application is heard and disposed of prior to the hearing or when, all of the issues in this case will become apparent to the court through the conduct of the proceedings.  It should not in any way prejudice the final hearing and determination of the matter. 

10. I am advised from the bar table that there is a mention of this matter before Watt J. next Monday by telephone at 9.30 a.m.  Clearly, this current application should then be raised.  It might be prudent for the husband to take a commonsense approach and consider withdrawing the contravention application.  The husband says he will not withdraw his application.  That is not the main issue in this case, the main issue is proper, ongoing and workable children's orders.  The atmosphere in the case would clearly be enhanced if attention was devoted to the big picture issue and looking to the present and future and not the past.  However, they are merely words of advice that I will not enforce.  Otherwise, subpoenas are required to be filed with the documents produced to the court on or before 9 August 2007 and that process presumably is well under way.

11. For those reasons but primarily the busy duty list that I am in and fundamentally that all matters are properly before the court and before Watt J who is the specified judge to hear and determine all matters, I will stand these matters over to that day.  I do not propose to consolidate the matters with the children and parenting issues before the court.  How and when his Honour hears and determines this contravention application if it remains alive is a matter exclusively for his determination.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:
Date: 9 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KALY & KALY