King and King & Anor

[2017] FamCA 1117

FAMILY COURT OF AUSTRALIA

KING & KING AND ANOR [2017] FamCA 1117

FAMILY LAW – PRACTICE & PROCEDURE – Counsel and practitioner to withdraw

FAMILY LAW – ORDERS – Contravention

APPLICANT: Ms King

FIRST RESPONDENT: Mr M King

SEVENTH RESPONDENT: Ms C King

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr W Dunstan

FILE NUMBER: MLC 9554 of 2011

DATE DELIVERED: 12 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Staindl

SOLICITOR FOR THE APPLICANT: Clancy & Triado

COUNSEL FOR THE FIRST RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE SEVENTH RESPONDENT: In person

SOLICITOR FOR THE SEVENTH RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bonney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates

Orders

IT IS ORDERED THAT:

1.There be leave to the husband’s counsel and practitioner to withdraw.

2.The husband’s contravention application filed 4 October 2017 be and is hereby dismissed.

3.My reasons for decision be transcribed and when settled placed on the court file and a copy provided to the parties.

4.My reasons for decision in relation to the cross-examination of the wife this day be transcribed and when settled placed on the court file and a copy provided to the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym King & King and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9554 of 2011

Ms King

Applicant

And

Mr M King

First Respondent

And

Ms C King

Seventh Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. The husband filed a contravention application on 4 October 2017.  It is against the wife and seeks that she be dealt with for contravention of orders which are not particularised.  We are part-way through the parenting orders trial, but the husband reminds me – as indeed counsel for the wife indicated at the beginning of the case – that there is an outstanding contravention application. 

2. During the case, the husband has commenced to represent himself, again having discharged his solicitor and counsel this morning.

3. The contravention application should be dealt with as part of these sittings.  However, I find that it is incompetent for the reasons which follow. 

4. The first part of the contravention proceeding appears under paragraph 7 and says that on 31 October 2017 the respondent failed to provide school reports and medical status of children, E and D King.  Bank accounts were also not provided for terms of financial welfare of children. 

5. The husband does not specify the orders which are allegedly contravened or the paragraphs thereof.  I accept it is the final order made in 2013, but the wife is entitled to know precisely what order that is.  She is also entitled to know precisely the incidence of the alleged contraventions. 

6. This contravention application was first returnable on 20 October 2017 for some reason before a registrar who wouldn’t have had the jurisdiction to entertain the case. Nonetheless on that day Mr Staindl, representing the wife, made submissions as to the competency of the contravention application. He pointed to the fact that the father had failed to comply with rules 21.02(2) and (3) of the Family Law Rules, which require, amongst other things, that an affidavit must be filed in support of an application which contains all of the evidence in the application. In particular, “states the facts necessary to enable the court to make orders sought in the application”. And “has attached to it a copy of an order, bond, agreement or undertaking that the court is asked to enforce or that it is – it is alleged to have contravened or that it is alleged to have been contravened”. The husband has failed to cure that defect, even up until today.

7. Today in the witness box, when he commenced his evidence in his case, I asked him if he had any viva voce evidence to give and he asked if he could give some in respect of the contravention application. 

8. He tendered a page of correspondence from the wife’s previous solicitors, Mark Morgan, which is exhibit H2.  That correspondence refers to D having dislocated her shoulder and having been hospitalised.  The father could not remember when the child was hospitalised.  He could not remember (I dare say because he wasn’t advised), but he could not remember when she was hurt. 

9. He could not remember when he received the notification. 

10. The point that he takes is that the information was conveyed to him as an excuse for something else being late.  Nonetheless, it was information that was conveyed to him.  And by reading the correspondence, which he tendered, he would have known that the child had been injured and hospitalised. 

11. I am satisfied that the contravention application does not meet the requirements under the Rules.  I’m also satisfied that a contravention application is a serious matter, in which one party seeks that another party be punished for something not done.  In this case the husband makes clear that he was seeking to have the wife breached in relation to a bond previously given on another contravention. 

12. The wife is entitled to all of the procedural protection that a contravention application brings with it, and in this case I’m satisfied that this part of the application is incompetent and I dismiss it.  There was another part of the contravention of orders application and that appeared at the third page in the document. 

13. There are 12 closely typed paragraphs which are just unparticularised complaints against the wife.  They don’t, for instance, contain reference to particular orders, particular documents and they are not supported by an affidavit.  This was a blatantly incompetent attempt at a contravention application and I have dismissed it. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 December 2017.

Associate: 

Date:  5 January 2017