Raglan and Valance

[2007] FamCA 1505

FAMILY COURT OF AUSTRALIA

RAGLAN & VALANCE [2007] FamCA 1505

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment of contravention application refused

Family Law Act 1975 (Cth)

APPLICANT: Mr Raglan

RESPONDENT: Ms Valance

FILE NUMBER: MLC 12465 of 2007

DATE DELIVERED: 5 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 December 2007

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr D.E. Whitchurch

SOLICITOR FOR THE RESPONDENT: Macgregor Solicitors

Orders

1. That the respondent mother have leave to make an oral application for counselling pursuant to section 65(f)(ii) and to make an oral application for an adjournment and I dismiss both applications. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12465 of 2007

MR RAGLAN  

Applicant

And

MS VALANCE  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This contravention application filed on 16 November 2007 comes before me for the second time this week.  It was before me on 3 December 2007.  On that date the respondent mother, Ms Valance, attended court but did not appear before me until after 11 am.  She had, prior to that, received some attention by the duty lawyer.  On 3 December 2007 the mother asked for an adjournment so that she could obtain legal advice.  She informed me that she had organised to do so that afternoon. 

2. The contravention application concerns the children: K, born in July 2003 and S born in November 2005.  It is alleged that on 14 November 2007 at 10 am the mother failed to produce the children to live or spend time with the applicant husband and did so without reasonable excuse. 

3. Today Mr Whitchurch appears on her behalf.  The father represents himself. 

4. The matter was adjourned to 9 am this morning so that it could be dealt with as the first matter today.  The mother did not attend court until approximately 9:50am and it is now 11:40am. 

5. Mr Whitchurch has made two applications.  The first application was that prior to proceeding with the contravention application I ought to order counselling pursuant to section 65F(2) of the Act, that is counselling which the court can and is required to order before making parenting orders. 

6. This is not an application for a parenting order.  This is not an application where I examine whether the orders are in the best interests of the children.  It is a contravention application.  In applications of this nature the court assumes that the orders that were recently made are in the best interests of the children. 

7. I decline the application for counselling.  It appears to me that this may be a family which would benefit from counselling, but what it will benefit from first and foremost today is a clarification of the existing rights under the orders and

   
   

   I will proceed to deal with the contravention accordingly.

8. Mr Whitchurch then made a second application. He referred to it as an application for an adjournment.  The gist of the application appeared to be that during the adjournment his client could prepare material in response to an affidavit sworn by the husband on 16 November 2007. However, he characterised the father’s affidavit as being irrelevant and imprecise.  I would have to say that I agree with him.  I do not accept that he requires time to answer material which is not admissible. 

9. On 3 December 2007 the father put on a further affidavit sworn by him on that day.  It is 18 paragraphs long.  I have not read it in detail.  I can see from its format, however, that it relates to dates other than 14 November 2007.  What relates to the apparent breach is paragraph 12 and it reads as follows:

   On Wednesday, 14 November 2007 and Thursday, 15 November 2007 the respondent failed to make the children available to spend time with me.

10. Mr Whitchurch says that not only does his client want to respond to that statement, but she wants to make an application with supporting affidavit material for, I infer, a variation of the existing orders.  No orders that I make today will prevent her from making such an application.  The respondent was served with this contravention application on 22 November 2007.  I query what Mr Whitchurch refers to as "the mother proceeding in an expeditious manner" as she has failed to make any application before today. 

11. I decline the application for an adjournment.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  20 December 2007