Larvin and Larvin

[2007] FamCA 727

FAMILY COURT OF AUSTRALIA

LARVIN & LARVIN [2007] FamCA 727

FAMILY LAW - ORDERS - Contravention - Lack of particularity

Family Law Act 1975 (Cth)

APPLICANT: MRS LARVIN

RESPONDENT: MR LARVIN

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2557 of 2005

DATE DELIVERED: 11 JULY 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 11 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MS DOWLER

SOLICITOR FOR THE RESPONDENT: HOGG & REID

INDEPENDENT CHILDREN’S LAWYER COUNSEL: MS BRENNAN

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: VICTORIA LEGAL AID

ORDERS

1. THAT the Form 18 contravention application filed by the wife on 21 June 2007 be dismissed.

2. THAT paragraph 3 of the Orders made by consent on 13 June 2006 be varied on the basis that it is exclusively the personal responsibility of the husband to ensure that the mobile telephone (number …) is in his possession, charged and fully operational as at 8.00 p.m. each Monday and 7.00 p.m. each Saturday and that otherwise all children are present and available to receive their mother’s telephone call.

3. THAT until further order each of the husband and wife be and are hereby personally restrained, or by their servants or agents, from discussing the facts of this case or communicating any matter or fact of or incidental to this case other than to those professional persons or other individuals involved in the preparation of the matter for hearing or otherwise where the welfare of the children necessitates such a discussion or level of disclosure.

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

5. THAT the application of the husband for costs is wholly dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2557 of 2005

MRS LARVIN

Applicant

And

MR LARVIN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of Larvin, the wife is applicant and appears in person.  Ms Dowler appears for the husband.  Ms Brennan of counsel appears instructed by the Independent Children's Lawyer.  The primary application before the court is the Form 18 contravention application filed by the wife herself on 21 June 2007.  That application is seemingly supported by two affidavits, both of which were filed on 21 June 2007.

2. There is a live issue as to which of those affidavits were properly served upon the husband, as it seems that they were each served by post on separate days.  One of those affidavits is of little use and benefit to the wife or to the court, as it merely records five very brief paragraphs dealing, with no particularity, with the alleged contravention, but highlighting the wife's frustration and distress at the husband's behaviour.  That is an affidavit that is practically worthless. 

3. The other affidavit is of more substance and there are 25 paragraphs dealing with various issues by way of complaint of the husband's disregard for court orders, or of his dealing or treatment with the wife or of other financial or children's issues.  In particular in that affidavit paragraph 17 is applicable to the contravention application.  I am satisfied that the husband is in a position to generally understand the complaint that the wife brings in relation to the second contravention issue.

4. Simply put, there is an order of this court, paragraph 3 of the Order of 13 June 2006, setting up telephone contact between the wife and each of the three children of the marriage.  Those three children are now of the approximate ages 12, 10 and 6.  The order facilitates each Monday telephone contact at 8.00 p.m. and each Saturday telephone contact at 7.00 p.m., both for a period of 30 minutes. 

5. The husband is required personally or by his servants and agents to ensure that the children are present, the mobile phone is connected, switched on and fully charged, and not to unreasonably interfere with telephone contact.  I observe that these orders were by consent.  Whatever has occurred, it is perfectly clear that there have been great difficulties in either the wife making the telephone calls or the telephone calls being received and thereafter there being discussion with one or all of the children at the appointed dates and times.  I propose to make an additional order emphasising the obligation on the husband pursuant to that order. 

6. Returning to the contravention application, the first ground alleged, that is, the discussion of the case by others who had knowledge of the case, is seemingly not supported by any current order.  On the basis that the wife cannot show an order and does not identify an order in the document and from counsel generally in the case being assured that there is no such order, it does automatically follow that that ground is not and cannot be made out, as contravention depends upon a breach of an existing order of the court.

7. The second ground is of more concern in that it alleges that since September 2006, that is, three months after the making of the telephone order for the mother to communicate with her children, that she has been rarely able to speak to the children on the phone.  In particular the mother says that she always rings at the court-ordered time but that often the phone does not ring or is disabled.  On one view there could be said to be sufficient particularity in that statement of the alleged contravention.  True it is that the affidavit does not spell out dates, times and places, and Ms Dowler's primary complaint on this particular issue is as to that lack of particularity along with other complaints as to appropriate service.

8. I have generally endeavoured to understand in the limited time available the overview of circumstances leading up to the Orders of 13 June 2006 and the events thereafter.  On a technical approach to the requirements of the contravention application, there does need to be details set out and indeed that is clear from the face of the document.  Whilst I have little doubt that the husband is and would be aware of the lack of telephone contact and/or particular circumstances from various dates and times, I generally do reach the conclusion that the contravention application suffers from a lack of particularity.  I have therefore indicated to the wife, without ever wishing to encourage any other contravention application to be filed, that on any future occasion it must deal with the particularity of the particular occasion; that is, the date and time, whether a call was made and whether the phone was able to receive her telephone call.

9. I am delivering these brief extempore reasons, largely factually based, to make it perfectly clear that it is with some level of reluctance that I will be dismissing both contravention applications.  The wife has a particular medical and psychiatric background that is touched upon in the material.  She is receiving treatment and medication.  It may be that she has very real difficulties handling the emotional issues with the children and her inability to have any meaningful time spent with or level of communication with each of them.  I do understand from what Ms Brennan has outlined that there are particular ongoing issues including reports to be prepared by an experienced psychologist that may raise or better explain many of the issues.

10. My reluctance is and remains that the husband needs to have an understanding that there are certain rights of the children which include an ability to talk to their mother on some agreed court-ordered basis and he well and truly should be acting in such a way as to not just encourage but to ensure that it occurs.  I have a distinct impression that with his position of control and influence with the children, it could occur if he wanted to make it occur.  However, that is going somewhat outside the bounds of the existing contravention application which I have indicated for technical reasons I will dismiss.

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

………………………………………………………..
Associate: 
Date: 24 July 2007

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