Keane and Keane (No. 2)

[2008] FamCA 649

FAMILY COURT OF AUSTRALIA

KEANE & KEANE (NO. 2) [2008] FamCA 649

FAMILY LAW – CONTRAVENTION – Adjournment

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Ms Keane

RESPONDENT: Mr Keane

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6543 of 2007

DATE DELIVERED: 30 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 30 June 2008

REPRESENTATION

THE APPLICANT: In person

Orders

1. That the application for contravention and the application in a case filed 5 June 2008 be adjourned before me on 25 August 2008 at 10.00am in a Judicial Duty List.

2. That the applicant have leave to amend the application for contravention filed 5 June 2008 and to serve that document personally upon the respondent by 4.00pm on 18 July 2008.

3. That the applicant have leave to file and serve on further affidavit by 18 July 2008.

4. That the respondent file and serve any application for orders or response that he may be so advised (noting that there is no requirement to so file having regard to the fact that he is the respondent to a contravention application) and such material be filed and served by 4.00pm on 8 August 2008.

5. That my reasons for judgment this day be transcribed and be made available to all parties including the Independent Children’s Lawyer.

6. That the letter dated 27 June 2008 from Dwyer Robinson Pty Ltd be marked as Exhibit “A” and it remain on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6543 of 2007

MS KEANE

Applicant

And

MR KEANE

Respondent

REASONS FOR JUDGMENT

1. I have before me today in the judicial duty list, two applications by the mother, Ms Keane.  The first is an application for contravention on a handwritten document.  The second is an application in a case.  It seems that both of those forms were provided to the mother by the court.  In addition she has relied upon three affidavits.  Two that she has sworn and one by Mr R.  There is no response to the call by the respondent who is shown on the documents as Mr Keane.

2. I understand that Mr Keane is the applicant's father.  It seems that he is represented by a Mr Robinson.  Mr Robinson is a solicitor in regional Victoria.  On 27 June 2008 Mr Robinson faxed a letter to my associate which was brought to my attention this morning.  It was inappropriate for that cause of action to be taken.  The letter should more appropriately have been sent to the registrar to be placed on the file.  Doing the best I can in reading Mr Robinson's letter, he refers to the fact that there is an acknowledgment that the proceedings are listed in the judicial duty list today, and he is most anxious for his client to avoid "wasting further money on unnecessary legal costs" in opposing the mother's application.

3. He refers to previous proceedings before Guest J and Dessau J and a reference to some advice that he apparently has received from Ms Smallwood of counsel in relation to some proceeding that presumably has now been concluded.  The letter goes on to debate questions about the existence of the orders.  That does not help me.  The letter then says that the mother's lack of understanding of the proceedings is illustrated in her comment in the affidavit sworn on 5 May 2008, in which she declares that Guest J was asked to step down, and was removed from this case.

4. I am not sure what that comment is about and I do not propose to go into the matter in any detail.  Mr Pitthouse is the Independent Children's Lawyer in this case, but according to Mr Robinson's letter, Mr Pitthouse is not here because he has no funding.  It probably also should be said that it is not usual for an Independent Children's Lawyer to participate in a contravention application because it is a matter between the parties. 

5. Mr Robinson's letter ends up by saying that given the history of the matter he does not propose to spend money on representation, and simply asks that the matter be dismissed.  He says that in the event the proceedings were to persist, then he asks for an adjournment for a month or so to allow time to respond, at which time Mr Keane would be seeking costs, as well as an order that the mother be declared a vexatious litigant and be precluded from issuing further proceedings without first having obtained the leave of the court to do so.

6. I have given the mother today about the best part of an hour to work through her documents, as I have to concede I have great difficulty understanding what it was that she was endeavouring to do.  It is fine for her to say that she is just trying to see her son, but that is not what the application is about.

7. If I am having difficulty understanding just exactly what the applications before the court are I am entitled to infer that the respondent would be having a similar problem.  I turn then to the documents themselves.  The first document is a contravention application.  It alleges that an order has been breached.  The document itself under the heading of what paragraphs of what order have been breached simply refers to pages 1 to 7.  There are no pages 1 to 7 attached to the application.  The mother told me that she is referring to the affidavit that she filed on 5 June.  That is the first problem.

8. A respondent to the proceedings is entitled to know exactly what it is that it is alleged is the breach so that that person can respond to it.  I shall come back to pages 1 to 7 of the affidavit in a moment.  Having set out in the application just what order is being breached, the applicant is then required to set out some particularity the time date and place of that which is alleged to have been the contravention.  The form that the court presumably provided the mother, even goes to the extent of providing an example of how to set out the document.  What the mother has done on two parts of the document is assert that on 4 June 2008 at 7 o'clock, which I presume could be read as 7 am or 7 pm, at G Street in H, the breach occurred.

9. The form then requires the applicant to set out a statement of the alleged contravention and the mother has simply said, "as attached to letter."  There is no letter attached to the application.  In discussion she means the affidavit.  On the following page there is an identical set out, so I have almost concluded that she has simply filled in the boxes.  In discussion it seems that her concerns are that she has not had time with her son M over the last few summer vacations, nor is she able to see him on alternate weekends nor is she having telephone contact with him on Wednesday evening.

10. Doing the best I could in relation to that application, I then turned to documents that were filed with it.  The first is an affidavit filed by the mother on 5 June.  It is handwritten.  It starts out by saying, "To whom it may concern".  It makes clear that she is applying to the Family Court for an urgent hearing of a contravention order.  Much of what follows is historical and does not go to the question of the breaches that I am trying to work out are put before the court.  On about the fourth page - which is numbered five - there is some typed paragraphs which have been pasted in to the document.  Leaving aside the question of the typing errors it seems that the mother is saying that she has not had her son since Christmas, albeit that that does not seem on her concession to be right because she saw him at Mother's Day, and then there are some other matters about which she complains all of which do not seem to me to go anywhere near identifying what the contravention is, let alone supporting it.

11. I have been through all of the other pages which are variously numbered, and most of them do not come anywhere near supporting an allegation of a breach of the orders which as best I can work out occurred in 1997.  That same affidavit as I said has a number of pages, and there does not appear to be a page three, so the whole position in respect of that affidavit is very confusing.  The mother then relied upon a second affidavit that she swore on 25 June 2008 and filed the same day. 

12. This document is typed.  It is a significant complaint that she says that she is currently prohibited by her father and other family members from having any communication with her son.  She then says:

    In a recent telephone communication with [the son] he told me he is also being restricted from contacting me, but confirms he wants to, and also that he wants to spend time with me but he is not allowed by my father [Mr Keane].

13. That seems to fly in the face of the assertion that the telephone contact order has been breached, but that problem arises because of the fact that the documents are not at all clear exactly what I am being asked to hear.  There is then a number of complaints about how she has tried to address her concerns through communicating with Mr Robinson and the independent children's lawyer, and to use her words she is "at her wits end."    

14. She also relies on an affidavit of Mr R who is her domestic partner.  That sets out a fairly lengthy history, in terms that I have already told the mother are emotive.  An affidavit is a document that sets out facts, not principles and not opinions.  It is not an opportunity to emotively set out historical detail other than facts.  That affidavit seems to me to go absolutely nowhere in supporting any application before the court.

15. In any application before the court the judge has to determine the matter on the evidence.  Evidence is as it is described in the Evidence Act1995 (Cth) in ss 55 and 56 as admissible if it is relevant. I am not sure what the affidavit of Mr R does other than support the mother, and I am not trying to be difficult but it is quite clearly unhelpful to put matters before the court that are not relevant to the application before the court.

16. As such it is probably not surprising that Mr Keane is not here today, because he might be entitled to presume that the application could not go very far.  I have on that basis given the mother an opportunity to take one of two courses.  The first course is to proceed with her application, but with the warning that it was almost inevitable that the applications would be unsuccessful because I could not decipher what the allegation was that was being sought.  In addition the application in a case which she has also filed seeks that Mr Keane provide medical reports in regard to his health. 

17. If there was a final hearing immediately pending, then that application would have some merit.  It is the sort of procedural order that I would normally make just prior to a hearing because it goes to the very core of a person's capacity to care for a child.  Recently I heard an application by the mother through her then lawyers to give this case priority.  I determined at that time not to give it a priority on the basis that the child who was the subject of the proceedings, a son, turns 18 years of age in November.  There are many other people who want their cases heard and that did not seem to me an appropriate exercise of the court's resources. 

18. Having given the mother an opportunity to consider her position as to either adjourn the proceedings, which is what Mr Robinson seemed to see as a possibility, she has chosen to take that course of action rather than have me determine the matter on the basis that it would almost inevitably have been dismissed.

19. What is important to note is that Mr Robinson in his letter sets out that if the matter proceeds further, then Mr Keane will be seeking an order that the mother be declared as a vexatious litigant.  It will be a question for the next return date as to which of those applications is heard first.  The matter is coming back before me in the judicial duty list and subject to the urgency that day, I will determine which order the cases are dealt with.  Accordingly the parties need to be conscious of the fact that this is a duty list, and there are usually many other cases that require hearing that have just as much if not more urgency.

20. It seems to me that the only course of action that I can take today is to adjourn the proceedings to allow the mother to get her house in order, and I propose that these reasons be transcribed and be made available to the parties.

21. I mark as exhibit A the letter from Dwyer Robinson of 27 June 2008.

I certify that the preceding Twenty One (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 July 2008