SCVG and KLD

[2019] FamCA 165

FAMILY COURT OF AUSTRALIA

SCVG & KLD [2019] FamCA 165

FAMILY LAW – PRACTICE AND PROCEDURE – Filing of Contravention Application – Struck out.

APPLICANT: Mr SCVG

RESPONDENT: Ms KLD

FILE NUMBER: SYC 4380 of 2008

DATE DELIVERED: 19 March 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 March 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

COUNSEL FOR THE RESPONDENT: Mr A Stenhouse

SOLICITOR FOR THE RESPONDENT: Macphillamy’s Lawyers

Orders

1. It is ordered that the application in respect of contravention filed by Mr SCVG in March 2019 is struck out. 

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 SCVG & KLD 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 CANBERRA

FILE NUMBER: SYC 4380 of 2008

Mr SCVG

Applicant

And

Ms KLD

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Mr SCVG has filed an Application in relation to an alleged contravention or contraventions of the child related orders made by Justice Cronin on 27 February 2015. 

2. By operation of Order 7 of those orders, which states as follows

   Pursuant to s 118 of the Family Law Act 1975, the father is restrained from bringing any application under the Family Law Act relating to the two children named in these orders without leave of a Judge of the Family Court of Australia.

3. Mr SCVG is prohibited from filing an Application in relation to the children without first obtaining the leave of the Court. 

4. The Application filed by Mr SCVG is a Contravention Application in respect of the operation of the children's orders and by virtue of that characterisation falls within the ambit of Order 7 of the orders made by Justice Cronin. 

5. Accordingly, the effect of those orders is to prohibit him from taking the course that he has taken. 

6. I am told by Mr SCVG that a return date has been allocated in respect of that Application for Contravention, being a return date late in May 2019.  Mr SCVG has sought leave to make an oral application to obtain the leave required under Order 7 of Justice Cronin’s orders and has done so without the assistance of supporting evidence but in reliance upon two particular matters, being the content of Justice Cronin’s judgment as it dealt with the provision for him to have future contact with his children and by virtue of a uncontested fact in these proceedings, which is that, sadly, the Respondent in these proceedings Ms KLD is suffering from a terminal illness.  These matters, he says, should be sufficient as to allow an oral application for leave to be obtained. 

7. However, the requirement for leave marks as a condition precedent, by the operation of an order of this Court, that the leave be obtained prior to the filing of an Application rather than dealt with as an ex post facto event.  Accordingly, it is appropriate to strike out the Application for Contravention filed by Mr SCVG. 

8. It will be a matter for him whether he files an Application for Leave.  He has identified a particular urgency in relation to the matters that he seeks to agitate which may impact both on the question of whether or not leave is granted and as to the timing of the return of any such Application.  It is premature to comment on whether it will have such an effect.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 19 March 2019.

Associate: 

Date:  22 March 2019