Kelly and Simpson

[2007] FMCAfam 1083

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KELLY & SIMPSON [2007] FMCAfam 1083

FAMILY LAW – Contravention application.

Applicant: MR KELLY

Respondent: MS SIMPSON

File number: MLC 10911 of 2007

Judgment of: McInnis FM

Hearing date: 10 December 2007

Delivered at: Melbourne

Delivered on: 10 December 2007

REPRESENTATION

Counsel for the Applicant: Mr I.C. Duffy

Solicitor for the Applicant: Portelli & Co

Respondent: No appearance

ORDERS

1. The Respondent Mother deliver the child C born in August 2003 to the Child Minding Service situated on the 5^th floor, 305 William Street, Melbourne no later than 9.15 am on Friday 14 December 2007.

2. In the event that the Respondent Mother fails to comply with Order 1 hereof then a recovery order may issue forthwith.

3. The application be otherwise adjourned to 9.30 am on 14 December 2007.

4. The Applicant Father shall serve a sealed copy of this order upon the mother by 4 pm on 12 December 2007.

5. The Applicant Father’s costs be reserved.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 10911 of 2007

MR KELLY

Applicant

And

MS SIMPSON

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application, the Applicant Father who is present in court has given oral evidence supporting the application, which is a contravention application.  The Respondent Mother did not appear.  The Applicant Father has identified in the affidavit of service the Respondent Mother's signature on the acknowledgment of service. 

   
   

   I am satisfied that the Respondent Mother has been duly served with the contravention application.

2. The affidavit material in support of the application, whilst referring to what might be described as a contravention of the orders as varied between the parties, nevertheless establishes, to my satisfaction, that a contravention has occurred of those orders made by consent on 4 August 2005.

3. For reasons which will become apparent, it seems to me more appropriate that the application be adjourned to 9.30 am on Friday, 14 December 2007 and that an order be made that the child, who is the subject of the current application, be delivered by the Respondent Mother to the Child Minding Service on the 5th floor of this building by 9.15 am on 14 December 2007.

4. I shall deal with the substantive issues presently.  However, at the outset, it should be noted that when the application was called there was no appearance for the Respondent Mother.  It was brought to the Court's attention that there is a notation from a court officer, Mr John Green, who had noted that at 9.15 am this day a telephone conversation occurred between Mr Green and a person purporting to be the Respondent Mother.  It appears that during that telephone conversation the following is recorded, and I quote, "She is ill.  May not be able to see a doctor.  Wants adjournment."

5. I indicated at the outset that, in my view, that information provided by the Respondent Mother in response to an application for contravention, which I am satisfied has been properly served, is indeed hopelessly inadequate.  It does not provide any details of the nature of the illness.  It does not provide any details of current medication or medical treatment received, save that it suggests, and I quote again, "May not be able to see a doctor."

6. In my view, that approach to an application for an adjournment on a serious matter of this kind, which I regard as quasi criminal, is insufficient and inadequate.  To the extent that therefore that application is indeed a genuine application for adjournment by the Respondent Mother, for the reasons given and having regard to the inadequacy of the material, the application is refused.

7. Having heard the evidence of the Applicant Father, it is appropriate in my view to make an interim order in relation to the contravention application.  I am concerned about the variation of the orders which have been made by consent and am concerned about what might be described as the hearsay nature of the evidence of the Applicant Father.  Both those matters can be addressed on an adjourned hearing date.

8. However, there is sufficient material before me to satisfy me to the requisite standard of proof that, in this instance, there has been a contravention of both the intent and spirit of the orders made by consent on 4 August 2007, and I accept the evidence from the Applicant Father that he last saw the child, C born in August 2003 on 7 September 2007.  In my view that clearly indicates a contravention of the orders made by consent as recently as 4 August 2007.

9. I am also satisfied on the evidence this day that as a result of a conversation between the Applicant Father and Respondent Mother which occurred at approximately 10.30 am on 9 December 2007, that the Respondent Mother has, in the course of that conversation, evinced an intention not to comply with the orders made by the court by consent on 4 August 2007.  From a practical point of view it seems to me the appropriate course to follow is for the court to make interim orders.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  10 December 2007