Mawson and Mawson

[2009] FamCA 1098

FAMILY COURT OF AUSTRALIA

MAWSON & MAWSON [2009] FamCA 1098

FAMILY LAW – ORDERS – contravention – interim ruling

Family Law Act 1975 (Cth)

APPLICANT: Mr Mawson

RESPONDENT: Ms Mawson

FILE NUMBER: MLC 11763 of 2007

DATE DELIVERED: 4 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stewart

SOLICITOR FOR THE APPLICANT: Kennedy Wisewoulds

COUNSEL FOR THE RESPONDENT: Mr McFarlane

SOLICITOR FOR THE RESPONDENT: Harwood Andrews Lawyers

ORDERS:

1. That the further hearing of this matter be adjourned to a date to be fixed.

2. That judgment is reserved.

3. That the matter be fixed as the first day of a less adversarial trial as soon as practicable.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11763 of 2009

Mr Mawson

Applicant

And

Ms Mawson

Respondent

REASONS FOR JUDGMENT

1. This is an interim ruling and I propose to give some comprehensive written reasons in the foreseeable future because of the novelty of the issue.  I propose to indicate today following effectively the submissions of Mr McFarlane, each of the issues that he raises. 

2. The first point raised was the question of the rules requiring the order to be annexed and I disagree with that view.  Rule 21.02(1) has a table.  The case that I am hearing is defined as a contravention application and therefore item 2 applies.  Rule 21.02(2)(a) applies and the facts must be stated in the affidavit.  The affidavit in this case does provide those facts.

3. The second issue is that there is no reference to any prior finding of any court.  The purpose of this particular rule was to assist courts in determining which category the case fell into; that is, is it a serious or less serious contravention.  In my view, for the purposes of actually determining whether or not a breach has occurred, that is not a significant issue but in any event rule 21.02(3) only applies where there is a breach which needs to be disclosed.  In this case I am told there is not one.

4. Even if I was wrong about either or both of those two matters and notwithstanding the mandatory nature of rule 21, rule 1.09(b) and rule 1.12 rectify the problem.  In addition to, and more importantly, division 12A applies to all proceedings under Part VII of the Act.  Section 69ZN sets out that a court must apply the various five principles that are set out in section 69ZN in respect of all proceedings under Part VII.  The principles are set out in section 69ZN itself and in respect of principle 5 the court must, in Part VII proceedings, proceed with undue delay and with as little formal technicality and form as possible.  So in respect of this particular matter the absence of the compliance with the rule does not necessarily become fatal.

5. More importantly, the mother says that the orders have not been breached because there is no evidence of sufficient details that would enable the court to conclude that there has been a breach.  The mother says that there is no case to answer.  I disagree with that approach.

6. Once the father shows at least his understanding of the orders, and on the evidence that view is open and practicable, then he has established on the balance of probabilities that the mother has a case to answer.  That does not mean that the finding of a breach is proved.  What it simply means is that there is sufficient evidence to at least call upon the mother to answer whether or not there has been a breach and, more importantly, that may then lead on to the questions of whether she has a defence in any event, which is a separate issue.

7. On that basis, in my view, notwithstanding the rather poor drafting of the orders back earlier in the year, it seems to me that the father has established, on the evidence, and in respect of the evidence I include in that the fact that the child who is older than G went, it seems to me, that there is at least a case to answer.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of His Honour Justice Cronin

Associate: 

Date:  19 November 2009