Pearce and Cole (No 4)

FAMILY COURT OF AUSTRALIA

PEARCE & COLE (NO. 4) [2009] FamCA 1221

FAMILY LAW – CONTRAVENTION – Reasonable excuse – Consent orders but mother then finds out about material that had not been brought to her attention by her lawyers
FAMILY LAW – COSTS – Costs against the mother for failing to communicate details of her concerns to the father and at an appropriate time

Family Law Act 1975 (Cth)

APPLICANT: Mr Pearce

RESPONDENT: Ms Cole

FILE NUMBER: MLC 13158 of 2007

DATE DELIVERED: 9 DECEMBER 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 7 DECEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR TESORIERO

SOLICITOR FOR THE APPLICANT: STELLA STHTHRIDGE & ASSOCIATES

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the contravention application filed 26 October 2009 is dismissed.

2. That the mother pay the father’s costs fixed in the sum of $1157.40.

3. That the second Sunday after these orders shall be the next Sunday for the purposes of paragraph 4(a) of the orders made 7 September 2009.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13158  of 2007

MR PEARCE

Applicant

And

MS COLE

Respondent

REASONS FOR JUDGMENT

1. On 7 September 2009, Dessau J made final parenting orders relating to the parties’ daughter who was born in December 2002.  The significance of those orders was that they were made by consent.

2. The mother has appealed against those orders.  The appeal is pending and I am told is likely to be heard in March 2010.

3. As at the time of writing these reasons, no application has been made by the mother for a stay of the orders of 7 September 2009 although I was told by her that such an application is foreshadowed.

4. The proceedings before me were listed on 20 November 2009 in the Judicial Duty List.  On that day, I was asked to hear an application filed by the father on 26 October 2009 alleging a number of contraventions of the orders made on 7 September 2009.  The mother did not attend on 20 November 2009 and I adjourned the proceedings to 7 December 2009.

5. On 7 December 2009, the applicant father attended represented by his solicitor and the mother appeared unrepresented.  However, the mother did file an affidavit on 4 December 2009 which I note was drawn with the assistance of a pro bono lawyer.

6. What will be evident from the documents is that the period of time that the father was to spend with the child pursuant to the orders of 7 September 2009 did not occur. 

7. The contravention application sought that the mother be dealt with for each of the breaches relating to the failure to provide the child to the father on consecutive Sundays and also in relation to her failure to provide the child for…