May and Longley and Anor

[2015] FCCA 2252

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAY & LONGLEY & ANOR [2015] FCCA 2252

Catchwords:
FAMILY LAW – Ex tempore ruling.

Legislation:

Family Law Act 1975, s.70NBA

Federal Circuit Court Rules 2001, r.13.10
Federal Circuit Court of Australia Act 1999, s.17A

Rice & Asplund (1979) FLC 90-725

Applicant: MS MAY

First Respondent: MR LONGLEY

Second Respondent: MS MANN

File Number: MLC 1151 of 2008

Judgment of: Judge Burchardt

Hearing date: 27 July 2015

Date of Last Submission: 27 July 2015

Delivered at: Melbourne

Delivered on: 27 July 2015

REPRESENTATION

Counsel for the Applicant: Mr J McConvill

Solicitors for the Applicant: James McConvill & Associates

Counsel for the Respondent: Ms Mansfield

Solicitors for the Respondent: Pearce Webster Dugdales

ORDERS

THE COURT ORDERS THAT:

1. Orders are made in accordance with orders 1-4 of the the attached Minutes of orders proposed by the Respondents and placed on the Court file.

2. The Respondents to file and serve written submissions in relation to costs on or before 4.00 pm on Thursday, 6 August 2015.

3. The Applicant to file and serve written submissions in relation to costs on or before 4.00 pm on Thursday, 13 August 2015.

4. Any costs application is to be determined on the papers.

THE COURT DIRECTS THAT:

1. The solicitors for the Respondents file a clean, certified, electronic copy of the Minute in Word Format to the chambers of Judge Burchardt by way of email to [email protected] within seven (7) days.

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

MINUTE OF PROPOSED ORDERS
OF THE FIRST & SECOND RESPONDENTS

27 JULY 2015

1. The following applications made by or on behalf of the Applicant be summarily dismissed:-

   (a)Initiating Application filed 18 May 2015;

   (b)Application – Contravention filed 18 May 2015; and

   (c)Application in a Case (made by James Andrew McConvill) filed 23 July 2015

2. The Orders made 13 August 2008 be discharged.

3. The Applicant Paternal Grandmother, her servants or agents be and are hereby restrained by way of injunction from contacting the child X born (omitted) 1998 (“X”) unless such contact is initiated by X.

4. That X spend time and/or communicate with the Applicant Paternal Grandmother as he so wishes from time to time.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1151 of 2008

MS MAY

Applicant

And

MR LONGLEY

First Respondent

MS MANN

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant grandmother has filed a Contravention Application in which she says that, in contravention of order 5 of the orders made in 2008, the child, (if one can so describe him, given his age), failed to spend time with her on 4 April 2015.  Order 5 provides that the paternal grandmother be at liberty to telephone the children between 6:00 to 7:00 pm on a number of special occasions including Easter Sunday.  Easter Sunday, in 2015, was 5 April. 

RECORDED  :  NOT TRANSCRIBED

1. The order, therefore, provided for time to take place on 5 April 2015.  Counsel for the mother properly concedes that the parties agreed to change that until 4 April 2015, namely, the Saturday.  But if you look at order 5, there is no provision for times to be otherwise as agreed.  Thus, although what the parties did was eminently fair and reasonable and although it is also entirely clear that the grandmother did not spend the time as had been agreed, it is equally clear that it is not in contravention of the order.  Accordingly, the Contravention Application is dismissed.

2. That brings into play the Court’s powers pursuant to s.70NBA of the Family Law Act 1975 (“the Act”).  I will bear that power in mind when I consider the other matters the parties propose to bring.  But for present purposes, it’s sufficient to say that the Court has power, where a contravention application is brought, whether it is made out or not, to vary extant parenting orders.  So that’s the Contravention Application done.

3. Given the circumstances, I do not consider it appropriate to make an order for the costs in relation to that application.  It’s clear that the mother, through oversight, admittedly, contravened the agreement between the parties.

4. So I think the other matters before the Court are the Initiating Application, the application in a case relating to subpoenas, the foreshadowed application to dismiss all extant applications and to vary and discharge all orders restraining the grandmother from having contact with the child.

RECORDED  :  NOT TRANSCRIBED

1. Both the Family Court Rules and Regulations and, for that matter, the comparable Rules of the Federal Court, either of which this Court may apply in case of deficiency, make it very clear that service out of subpoenas is not permitted under the Rules, save by leave of the Court.  There is a procedure in the Family Court Regulations for service out in Hague Convention countries – countries part of the Hague Convention on service – and also a procedure for countries which are not.  Unless I misunderstand the matter, those advising the applicant grandmother simply bypassed that regime and served subpoenas on the two doctors in (country omitted), with which those doctors, perhaps slightly surprisingly, have complied.  But I regard this as an abuse of process which comes close to being a contempt of court.

RECORDED  :  NOT TRANSCRIBED

1. In this matter, the applicant paternal grandmother filed an Initiating Application on 18 May 2015.  She seeks, both on an interim and final basis, that the child, X (“X”), born (omitted) 1998, live with her, that she have sole parental responsibility and that his natural parents visit the child, essentially when the grandmother says so.

2. An affidavit filed in support of that application deposes from paragraphs 1 to 17 about events, all of which predated the orders made in 2008 by consent by the Court.  They go to show a subsisting and, no doubt, genuine set of concerns on the grandmother’s part about each of the parents of X, both the father, who is her child, and the mother, who obviously is not.

3. Paragraphs 18 through to 36 go back a lot further in time, as far as 1955, but do not get any later than 2006.  They go to suggest a history of mental health problems on both sides of the family and concerns on the grandmother’s part about X’s welfare and mental state as a result. 

4. She then deposes that she attended X’s school on 30 April 2015 with her lawyer and she was told that X was not there.  And at paragraph 40, she deposes:

   “I informed the deputy of the many years of family abuse over the generations and how I was trying to break the cycle with X.  The deputy became sympathetic towards my predicament and I broke down in tears.  The deputy then agreed to give X my mobile number...”

   And it goes on from there.

5. I have not seen the family report that was produced for the hearing in 2008, but counsel for the mother has told me without contradiction – and I know that she is an officer of the court and would not mislead me – that, at that time, both the children, one of whom is now over 18, expressed a clear view that they did not wish to spend time with their grandmother.  They have not done so.

6. I note that the Contravention Application, which I dismissed because it was technically inadequate, nonetheless gave rise to this assertion on the part of the mother:

   “As to paragraph 29, X and I completely forgot about the call.  This would not have been an issue as we were both at home, but unfortunately I had problems with my phone charger at that time.  I apologised to the applicant and X spoke to her the next day.”

7. The grandmother has filed a responding affidavit and she does not plead, as she puts it, to that assertion, which I therefore take to be true. There can be no question that the paternal grandmother is very concerned about X’s health and the like, but there is equally no question that her application is doomed to fail within the meaning of both of r.13.10 and more particularly, the lower grade of test in s.17A of this Court’s Act.

8. If there were ever a case where the doctrine in Rice & Asplund had work to do, this must surely be it.  Effectively, all the things the grandmother now seeks to agitate were agitated in the proceedings leading up to 2008 orders.  No material change of circumstances has arisen since then, and whether this matter was dismissed pursuant to Rice & Asplund or r.13.10 or s.17A, there is simply no question that that is the outcome that is in X’s best interest.

9. The thesis that a change of residence should be contemplated at this stage in his life, when he hasn’t seen his grandmother since 2008, I’m afraid, really only has to be stated to be understood as being appropriate for rejection. 

10. That brings me to the Minutes of Orders proposed by the respondents. I referred earlier to s.70NBA of the Act. My power to make orders such as these in these circumstances is undoubted. The material as a whole makes it quite clear that they are appropriate orders and there will be orders in those terms.

11. That leaves the question of costs.  The only difficulty I have,

    
    

    Ms Mansfield, is there’s no evidence that immediately emerges for me as to the financial circumstances of the parties and those are matters I’m required to have regard to under subsection (2A).

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  24 August 2015