Kenta and Nemelia (No. 2)

[2013] FamCA 486

FAMILY COURT OF AUSTRALIA

KENTA & NEMELIA (NO. 2) [2013] FamCA 486

FAMILY LAW – CHILDREN – Communicate with – Orders – Alleged contravention by the mother – Where father’s contravention application and amended contravention application were not in the correct form – Where the statement of alleged contravention is not precise enough to enable the contravention application to proceed – Where father’s contravention application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Kenta

RESPONDENT: Ms Nemelia

FILE NUMBER: SYC 5874 of 2011

DATE DELIVERED: 3 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 3 June 2013

REPRESENTATION

THE APPLICANT IN PERSON: Mr Kenta

THE RESPONDENT IN PERSON: Ms Nemelia

Orders

1. That the contravention application filed by the father on 22 January 2013 is hereby dismissed.   

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kenta & Nemelia (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC5874 OF 2011

Mr Kenta

Applicant

And

Ms Nemelia

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. Mr Kenta (“the applicant”) has brought a contravention application in relation to what he alleges is Ms Nemelia’s (“the respondent”) failure to comply with Justice Fowler’s Orders made on 29 October 2012 by not facilitating the children communicating with their father by Skype or by telephone.

3. In that contravention application the applicant’s statement of the alleged contravention refers to two periods of 29 October to 18 December 2012 and 16 January 2013 to 7 April 2013 that on many occasions the respondent, without reasonable excuse, prevented that communication from occurring.

4. That statement of alleged contravention is not precise enough to enable the contravention application to proceed.  There needs to be an allegation of specific conduct on a specific day even if that involves then a number of different allegations of contravention on different days.  The contravention application filed is not particularised sufficiently to enable a charge of contravention to be put to the respondent.

5. On 14 May 2013 the applicant filed an amended contravention application seeking to rely upon the original contravention as well as conduct that had occurred since the filing of the original application.  That subsequent conduct needs, itself, to be the subject of a fresh contravention application.

Conclusion

1. For these reasons the contravention application as filed cannot proceed.  That does not mean that any of the issues raised by that application have been determined and it is open to the applicant, if he sees fit, to bring a fresh application properly particularised and properly set out.

2. Having said that, there are obviously difficulties from both sides in the communication and it would be useful for the parties to try to work together to try and organise some communication that would work for the both of them and in the best interests of their children.

3. All I will do today is dismiss the contravention application filed 21 January 2013.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 3 June 2013.

Associate: 

Date:  7 June 2013