MEADOWS & MEADOWS

[2019] FamCA 333

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS [2019] FamCA 333

FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision – Where the mother seeks a review of the decision to reject her Application in a Case and Contravention application for filing – Where the orders that the mother alleges were contravened are the subject of a reserved judgment – Where reserved judgment is due to be delivered shortly – Where there is a chance that the subject orders that the mother seeks to enforce through her applications will be varied upon delivery of judgment – Application dismissed.

Family Law Act 1975 (Cth) s 97
Family Law Rules 2004 (Cth) r 1.04

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

APPLICANT: Ms Meadows

RESPONDENT: Mr Meadows

INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

FILE NUMBER: PAC 3509 of 2013

DATE DELIVERED: 14 May 2019

PLACE DELIVERED: Sydney

PLACE HEARD: In Chambers - Sydney

JUDGMENT OF: Loughnan J

Orders

1. The Application in a Case filed by the mother on 3 May 2019 is dismissed.

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 Meadows & Meadows 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 SYDNEY

FILE NUMBER:  PAC3509 of 2013

Ms Meadows

Applicant

And

Mr Meadows

Respondent

And

Phillip A Wilkins & Associates

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The mother submitted two applications for filing being an Application Contravention dated 26 April 2019 and an Application in a Case dated 17 April 2019.  On 29 April 2019 those applications were rejected for filing by a registrar.

2. On 3 May 2019 the mother filed an Application in a Case seeking to review the decisions of 29 April 2019.

3. A review of a decision of a registrar proceeds by hearing de novo.  Therefore I am to consider afresh the filing of the mother’s applications.

4. The parties were advised that the mother’s review application would be dealt with in chambers and that she should lodge and serve any additional submissions she wished to make.  The mother sent those submissions to the Court and the other parties on 9 May 2019.

5. Proceedings for parenting and property settlement were heard by the Honourable Justice Baumann on 14 – 17 January 2019 inclusive.  On 17 January 2019 the following orders were made:

   1.That the mother file and serve written submissions as to both the property and parenting orders sought, by no later than 4.00pm on 8 February 2019.

   2.That thereafter the father file and serve written submissions as to both the property and parenting orders sought, within twenty one (21) days of receipt of the mother’s submissions.

   3.That the Independent Children’s Lawyer file and serve any submissions in reply seven (7) days after receipt of the father’s submissions.

   4.That judgment be otherwise reserved to a date to be advised.

6. On 13 March 2019, judgment was reserved.

7. As is set out in her review application, by the rejected applications, the mother sought orders to the following effect:

   ·that the father be found to have contravened orders made on 10 January 2017 as varied by 14 November 2017;

   ·that the mother’s time with B born in 2011 pursuant to the orders of 10 January 2017 (with the exception of order 5) be revived pending judgment in the proceedings reserved before Baumann J or failing that, that there be make up telephone time for the mother and child at a time of the mother’s choosing.

   ·that the father be notified of the meaning and the obligations of the orders he has contravened

   ·that should the court see fit, that the father be fined for his contravention

   ·that the father pay the mother’s costs

   ·that an order be made that all orders for the monitoring of the mother’s telephone conversations with the child, be dismissed.

8. On 10 January 2017 orders were made in the Federal Circuit Court of Australia including:

   (1)B, born … 2011, (“the child”) live with the father.

   (2)The child spend time with the mother, subject to these orders, from 6:30 PM on Friday until 6:30 PM on Sunday, each alternative week commencing the first Friday from the date of these orders.

   (3)Notwithstanding, any other order, the child shall spend time with the mother from 6:30 PM on the Saturday prior to Mother’s Day until 6:30 PM on Sunday, being Mother’s Day if the child was not already in the care of the mother.

   (4)Notwithstanding any order for the purpose of celebrating Christmas, the child shall spend time with the mother from 3 PM on Christmas Eve, 24 December, until 3 PM on Christmas Day, 25 December, in even-numbered years commencing in 2016 and from 3 PM on Christmas Day, 25 December until 10 AM on Boxing Day, 26 December, in odd-numbered years commencing in 2017.  The child spend time with the father from 3 PM on Christmas Day, 25 December, until 6 PM on Boxing Day, 26 December, in even-numbered years commencing in 2016 and from 3 PM on Christmas Eve, 24 December, until 3 PM on Christmas Day, 25 December, in odd-numbered years commencing in 2017.

   (5)The mother’s overnight time with the child shall occur at the maternal grandparents’ home at D Street, E Town with one or both of the maternal grandparents being present, pending a psychiatric assessment of the mother being carried out as recommended by Dr C, with the costs of such assessment to be shared equally, subject to any initial funding available from the Independent Children’s Lawyer.  The Independent Children’s Lawyer has leave to forward to Chambers a minute of order to implement such an assessment.

   (6)The mother have telephone time with the child as agreed between the parties but failing agreement on at least 3 occasions per week when the child is otherwise living with the father between the hours of 6.30 pm and 7.30pm on Monday, Wednesday and Friday.

   (7)All changeovers shall occur at McDonald’s, K Town, located on JJ Street, K Town, unless otherwise agreed to between the parties.

   (8)Neither party denigrate the other in the presence or hearing of the child or permit any other person to do so.

   (9)The parties do all acts and things to cause the child to be enrolled at and attend X School at K Town to commence kindergarten in January/February 2017.

   (10)The matter be adjourned to 15 June 2017 at 9:30 AM for mention.

9. On 14 July 2017 the proceedings were transferred to this Court.

10. On 14 November 2017 the following orders were made by this Court:

    1.The orders made 10 January 2017 providing for the child of the marriage [B] born … 2011 (“the child” or “[B]”) to spend time with the mother are suspended.

    2.All other orders providing for the child to either live with or spend time with the mother are suspended.

    3.The mother is to have time with [B] supervised at a supervised contact Centre at [V Town] on one occasion in each three week period at a time to be allocated by the personnel in charge of the centre and for a minimum of two hours.

    4.Each of the mother and father are to forthwith make contact with the [V Town] Contact Centre and make arrangements with the centre personnel to undertake all these centre’s requirements to become eligible to be able to use the contact Centre so that the mother may exercise time with [B] pursuant to these orders.

    5.Each of the mother and the father are to comply with all reasonable requests made by the [V Town] Contact Centre personnel to enable the mother’s time with [B] to commence as soon as possible and to thereafter continue until further order of the court.

    6.Leave is granted to the Independent Children’s Lawyer to withdraw from her role in this matter.  The court noted that the Independent Children’s Lawyer Ms Stidwell has volunteered to withdraw as the mother has sought to have her discharged, and Ms Stidwell has concluded it is very difficult to continue where one of the parties is so opposed to her continued role.

    7.The court requests that the Director of Legal Aid NSW arrange for the appointment of a replacement solicitor to act as Independent Children’s Lawyer for B.

    8.Order (6) made 10 January 2017 is to continue with the following further order.  The mother’s telephone conversations with [B], as provided for in order (6) of 10 January 2017 are to be supervised by the father, or his nominee, and are not to be lengthy.  The father may terminate the call at the conclusion of 15 minutes of time or at any time he concludes the mother’s conversation with [B] has become inappropriate.

    9.The Court notes the mother has informed the court that she will not participate in the preparation of an expert report by a psychiatrist as provided for in the orders made 11 October 2017.  The Court notes the mother refutes any suggestion that she has any mental ill health and asserts that the father suffers from mental ill health.

    10.At the mother’s request the court orders that the father, within 21 days, provide to the mother complete financial disclosure as required by the Family Law Rules 2004. All documents provided for inspection by way of disclosure are to be catalogued and that list provided to the mother within the said 21 day period.

    11.Within 14 days of receipt of the list of documents being provided to her for disclosure, pursuant to order 10 hereof, the mother is to make an appointment with the father’s solicitors to inspect the documents disclosed, if the documents have not been provided to her as photocopies of same thereby negating the necessity to attend upon the father’s solicitors office.

    12.On or before 30 January 201 the mother is to provide to the father a list of documents which she alleges are in his possession or control and which documents have not been provided to her by disclosure made pursuant to these orders, or at an earlier time in this proceeding.

    13.On or before the expiration of 21 days from the date hereof the mother is to provide to the father complete financial disclosure as required by the Family Law Rules 2004 all documents provided for inspection by way of disclosure are to be catalogued and that list provided to the father within the said 21 day period.

    14.Within 14 days of the mother providing the list of documents required by order 13 hereof she is to either:

    (a)nominate a solicitor or accountant to supervise the inspection of the document she has disclosed;

    (b)provide to the father’s solicitors photocopies of the document she has disclosed; or

    (c)produce the documents to this Court as if produced upon subpoena.

    15.Within 14 days of the mother notifying the father’s solicitors of the manner in which she will provide her documents pursuant to order 14 hereof, the father solicitors are to arrange inspection, should that be necessary, and by 30 January 2018 provide the mother with a list of documents which the father asserts have not been disclosed.  The mother is to make disclosure of any documents if the same either in her possession or control.

11. By the contravention application dated 26 April 2019 the mother sought to have the father dealt with for breaches of order 6 made on 10 January 2017 as varied by order 8 of 14 November 2017, because of his conduct at specified times on 3,  5, 17 & 24 April 2019.

12. The purpose of contravention proceedings is to compel compliance with Court orders.  In this case, the subject orders are themselves under active consideration in the proceedings heard by Baumann J in January 2019 and in respect of which judgment is reserved before his Honour.

13. As to one of the substantive orders now sought be the mother, it highly unlikely that an order would be made as a result of contravention proceedings heard while judgment remained outstanding in substantive parenting proceedings, to restore unsupervised face to face time between a parent and a child, that had been suspended.

14. Similarly, when an order was made in November 2017 for monitoring of the mother’s telephone calls with the child, it is highly unlikely that an order would be made as a result of contravention proceedings commenced while judgment remained outstanding in substantive parenting proceedings, to revoke the provision for monitoring those calls.

15. The affidavit submitted in support of the contravention application made no reference to the events of 3, 5 or 17 April 2019.  Without specific evidence the application could not succeed in relation to those dates.

16. Indeed the evidence in support was largely addressed to B’s involvement in soccer which has nothing to do with the orders that are said to have been contravened.

17. Section 97 of the Family Law Act 1975 (Cth) (“the Act”) provides:

    FAMILY LAW ACT 1975 - SECT 97

    Procedure

    (1)  Subject to this Act, to the regulations and to the applicable Rules of Court, all proceedings in the Family Court, in the Federal Circuit Court of Australia, or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act, shall be heard in open court.

    (1A)  The regulations and the applicable Rules of Court may authorise proceedings to be heard by a Judge, Judicial Registrar, Registrar or magistrate sitting in Chambers.

    (2)  In any proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, the court may, of its own motion or on the application of a party to the proceedings, make one or more of the following orders:

    (a)  an order that a specified person is not, or specified persons are not, to be present in court during the proceedings or during a specified part of the proceedings;

    (b)  an order that persons included in a specified class of persons are not to be present in court during the proceedings or during a specified part of the proceedings;

(c)  an order that only the parties to the proceedings, their legal representatives and such other persons (if any) as are specified by the court may be present in court during the proceedings or during a specified part of the proceedings.

(3)  In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.

1. Rule 1.04 of the Family Law Rules 2004 provides:

   RULE 1.04 Main purpose of Rules

   FAMILY LAW RULES 2004 - RULE 1.04

   Main purpose of Rules

   The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

   Note: Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.

2. The mother says in her submissions that she has been advised by the Court that judgment is likely to be delivered shortly in the substantive proceedings.  It is not reasonable that the parties and the taxpayer, not to mention the parties and affected families in other proceedings waiting for the Court’s attention (see Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175) be put to further contested proceedings in advance of the final parenting judgment. It may be that the provisions of the existing orders sought to be enforced in the contravention proceedings will be discharged or substantially amended in the impending judgment. In either event contravention proceedings of the nature proposed by the mother could not succeed. Of course it is also highly unlikely that the proposed applications could be heard prior to delivery of judgment in the substantive proceedings.

3. There is no indication that the mother has applied to re-open her case in the reserved proceedings.  It is difficult to imagine that there could be issues about interim changes to the 2017 orders that could be practically determined in advance of judgment in the final parenting proceedings but that were not relevant to the reserved proceedings.

4. In those circumstances, the applications will be rejected.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 14 May 2019.

Associate: 

Date:  24 May 2019