PICKERING & PICKERING

[2011] FamCA 209

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING [2011] FamCA 209

FAMILY LAW - PRACTICE AND PROCEDURE – adjournment – where there are numerous contravention applications pending against the mother – where the mother is seeking legal advice – whether it is appropriate for the matter be adjourned – orders that the contravention proceedings be adjourned to a future date

Family Law Act 1975 (Cth)
Family Law Rules 2004

APPLICANT: Mr Pickering

RESPONDENT: Ms Pickering

FILE NUMBER: ADF 1919 of 2005

DATE DELIVERED: 15 March 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The hearing of the contravention applications are adjourned to 19 and 20 April 2011 (allowing 2 days) before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1919 of 2005

Mr Pickering

Applicant

And

Ms Pickering

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application by the mother for an adjournment in relation to the contravention applications listed before the Court.  The contravention applications are numerous contravention applications filed by the father on 29 November 2010.  There is an expectation on the part of the father that the contravention hearing today was also to include a contravention application filed on 15 February 2011 relating to similar matters;  however, the listing of that matter is apparently now before the Court on 10 May 2011.  It is unlikely, therefore, that the Court anticipated that that matter would also be heard, although there would be some wisdom in having that matter heard at the same time if the parties consented to that arrangement.

2. The applications filed by the father all relate to contraventions of orders made in relation to children’s matters and, in particular, contraventions of the orders made in October 2008 and, more recently, the contravention in relation to the orders of 28 October 2010. 

3. Both parties appear this morning unrepresented.  The mother seeks an adjournment of the applications on the basis that that the father had not paid her the $1000 which was ordered to be paid by 28 February.  The father informs the Court from the bar table that he has paid the money to the mother’s former lawyers.

4. The other basis upon which the mother seeks an adjournment is that she has not been able to obtain her papers (referring to her file) from her previous lawyer, as she has not been able to pay them all of the money requested to be paid on account of fees to the former lawyer.  The mother also informs the Court today from the bar table that on Friday, she was informed that she has been approved for legal aid in relation to a matter described as “family other”.  The mother was not able to ascertain by this morning whether that meant that she might be able to be represented in relation to the contravention proceedings as well as the proceedings for final orders which are outstanding and listed before Justice Burr for mention on 25 March 2011.

5. It is unusual for legal aid to be granted in relation to applications for contravention proceedings;  however, I am unable to comment on that until such time as the mother has taken further advice and sought further information. 

6. The contravention applications are, to a large extent, intrinsically linked to the applications for final orders concerning the child H.  It may be that a lawyer representing the mother would be able to provide her with advice, if not actual representation, in relation to the contravention proceedings.

7. When taking into account the application for the adjournment, as a procedural matter, the best interests of the children are not the paramount consideration, but as the authorities indicate, they are a matter of some significance. 

8. In relation to the best interests of the children, there is a significant issue in relation to the child H’s alleged failure to attend school and the basis upon which any defence to the contravention allegations made by the father will be maintained by the mother.  That is a significant factor.  The delay in the contravention proceedings should not be a significant factor in determining whether the child should attend school.  Indeed, there is already an order in place in relation to the child H’s attendance at school and the provision of appropriate medical certificates.

9. The other factor which is significant in this matter is the ability of the mother to be represented and obtain appropriate legal advice in relation to the contravention applications brought by the father. 

10. In this matter, the parties have been litigating for years and coming to the Court a significant number of times, interfering, no doubt, with their ability to carry on a normal life.  However, the consequences of being found to have contravened orders without reasonable excuse on a large number of occasions, as asserted by the father, could be significant.  Contravention applications and penalties which can be imposed have, on occasions, been described as quasi-criminal.

11. It is therefore a serious matter for the mother to consider, both by way of obtaining legal advice and being represented, because of the nature of the serious consequences which could arise if the orders are found to have been contravened without reasonable excuse.

12. Weighing all of the factors up, therefore, I consider that it is appropriate, just and equitable for the matters to be adjourned. I have taken into account the directions in the Family Law Rules in relation to the adjournment. I am able to list the matter back before me on 19 and 20 April, which will not interfere with his Honour’s listing of the matters for final conclusion, as it is unlikely that such conclusion will be able to be listed before then.

13. I therefore adjourn the contravention applications filed on 29 November 2010 for final hearing before myself on 19 and 20 April 2011.  The mother is on notice that the Court would consider it appropriate for the contravention application filed on 15 February 2011 to also be listed for conclusion on that day, subject to any advice that she may obtain from her legal representatives.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 15 March 2011.

Associate: 

Date:  23 March 2011