PETERS & ORTONA

[2015] FamCA 717

FAMILY COURT OF AUSTRALIA

PETERS & ORTONA [2015] FamCA 717

FAMILY LAW – CONTRAVENTION – Where mother alleges breaches of parenting orders by the father – Where father denies allegations – Where the mother’s evidence is insufficient to establish a prima facie case in relation to the allegations of contravention – applications dismissed

Family Law Act 1975(Cth)

APPLICANT: Ms Peters

RESPONDENT: Mr Ortona

FILE NUMBER: MLC 8590 of 2012

DATE DELIVERED: 12 May 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Benjamin J

HEARING DATE: 12 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. The contravention application filed 25 March 2015 (document 111) is withdrawn and dismissed.

2. The contravention application filed 23 March 2015 (document 108) is withdrawn and dismissed.

3. The mother’s contravention applications filed 2 April 2015, 13 April 2015 and 22 April 2015 (as were not withdrawn) are dismissed as being abuses of process.

4. The mother’s contempt application filed 23 March 2015 is dismissed pursuant to s 118 of the Family Law Act 1975 (Cth).

5. All other applications in a case are dismissed.

   IT IS DIRECTED

6. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

7. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Ortona has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8590 of 2012

Ms Peters

Applicant

And

Mr Ortona

Respondent

REASONS FOR JUDGMENT

1. There are a series, quite a series, of applications; there are, in fact, a huge number of proceedings commenced by Ms Peters (‘the mother’) against Mr Ortona (‘the father’) since the orders were made by her Honour Justice Thornton on 26 February.  I asked the mother to go through those documents with me, and she tells me the following: one, that the contempt application filed 23 March 2015 relating to the independent children's lawyer has been dealt with and therefore cannot be dealt with by me; two, she does not pursue the applications for contraventions contained in the applications of 25 March 2015, (document 111) and 23 March 2015,(document 108). 

2. In the proceedings of Peters v Ortona the application for contravention filed the 25 March 2015 (document 111) is withdrawn and dismissed.  The contravention filed the 23 March 2015 is withdrawn and dismissed. 

3. The contempt application filed 23 March 2015 is in relation to the independent children's lawyer.  The Court notes the mother’s assertion that this has been dealt with at another time.  As to the following applications, in her application filed 22 April 2015 there are some eight alleged contraventions, of which contravention six, is withdrawn and dismissed.  As to contravention one the evidence is not such as would amount to a breach of order 12, given the material contained in the affidavit, the nature of the complaint, and the nature of the order.  It cannot be sustained on its own level, so it is dismissed.

4. Contravention two alleges a breach of some direction made by Justice Thornton on 30 December 2014 before the orders were made and could not fail and is an abuse of process and is dismissed under s 118 of the Family Law Act 1975 (Cth) (“the Act’)

5. In terms of contraventions three, four and five, contravention three cannot succeed, as the order provides for a mobile telephone, and the mother has no mobile telephone. Contravention four, even on the evidence, cannot succeed, given the short notice involved. Contravention five is a matter for the mother to make her inquiries of the school and, given the comments made earlier, it must fail. Contravention seven and eight just cannot be contraventions of the orders, given the nature of the orders. Accordingly, contraventions three, four, five, seven and eight filed the 22 April 2013 are dismissed as an abuse of process pursuant to s 118 of the Act.

6. Similarly, when one goes to the contraventions set out in the application filed 2 April 2015 (document 115) they seem to relate to the failure to provide written agreements, the failure to speak to the children, the failure to acknowledge written agreements, and the failure to provide a communication book.  On the material before me, they cannot succeed.  They amount to an abuse of process so accordingly the seven contraventions asserted in the application filed 2 April 2015 must be dismissed.

7. The final application which is on the file is that of 13 April 2015.  That application again talks about failure to comply with the directions of Justice Thornton: in contravention one, removing the mother from the child’s school bank account in contravention 2, failing to inform, which cannot, in the circumstance of this matter and given the evidence, constitute a breach of the order.  Similarly, contraventions five, six, seven and eight cannot succeed given the comments made earlier, and accordingly the eight contraventions made in the application file 13 April 2015 (document 124) amount to an abuse of process and are dismissed.

8. The final matter is the mother’s application for contempt filed 23 March 2015. That application asserts that the father lied in his evidence in the proceedings before her Honour Justice Thornton. It is in essence an endeavour, it would seem to me, by the mother to either re-litigate the proceedings that were heard by her Honour or to take some sort of quasi-criminal proceedings for alleged perjury by the father. Given the nature of the allegations and the nature of the application, again that cannot succeed by way of a contempt application. Accordingly, I summarily dismiss the contempt application of the mother filed 23 March 2015 pursuant to s 118 of the Act. I dismiss all other proceedings before the Court.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 May 2015.

Associate:     

Date:              12 May 2015