Singleton and Simon

[2009] FamCA 99

FAMILY COURT OF AUSTRALIA

SINGLETON & SIMON [2009] FamCA 99

FAMILY LAW – PRACTICE AND PROCEDURE – Dismissal of contravention application

APPLICANT: Mr Singleton

RESPONDENT: Ms Simon

FILE NUMBER: MLC 744 of 2008

DATE DELIVERED: 28 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 28 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the father's Contravention Application filed 12 January 2009 shall be and is hereby dismissed. 

2. That my reasons for judgment given this day shall be transcribed and retained on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 744 of 2008

MR SINGLETON

Applicant

And

MS SIMON

Respondent

REASONS FOR JUDGMENT

1. The father's contravention application filed on 12 January 2009 is before me today.  Earlier this morning both parents told me that they were asking for the application to be adjourned on the basis that it had been incorrectly served, in that the father Mr Singleton had himself served it on the mother Ms Simon.

2. They agreed that course had to be adopted, but then they told me that nevertheless they would much prefer the contravention application be dealt with today.  As the mother was strongly of the view that even though she was the respondent to the application, she had ample notice and she would much prefer the application be dealt with so that she did not need another trip to court for it, I decided that I would hear the application.

3. Having looked at the application, it is patently clear that it is technically incorrect and must be dismissed. 

4. First, the application refers to a Drug Squad raid on the mother’s home.  That in no way discloses a breach of any existing orders. 

5. Next, it mentions in passing that:

   Also in May 08 admitting smoking dope whilst [the child] was in her care, which she admitted to DHS.

6. Paragraph 3 of the orders of 25 February 2008 in relation to the child’s interim care, provides:

   That the mother be restrained from using any illicit or non‑prescription drugs for a period of 24 hours prior to the commencement of any time spent with [the child] or during any time spent with him.

7. The matter referred to by the father in the application is one that could potentially be found a contravention. However, his very brief affidavit in support of the contravention application discloses absolutely no evidence about it.  It makes no reference to it at all.  In those circumstances, I am not satisfied that the application is in a form that supports any contravention whatsoever.  Accordingly, I shall dismiss the application.

8. I turned my mind then to whether I could do anything useful to assist the parties today, because one way or another there has certainly been a hurdle when it comes to the ongoing arrangements in relation to the child. 

9. The mother complains that the father has not been permitting her to see the child in accordance with the existing orders.  The father says that he is permitting the mother to spend the time with the child, but simply not overnight, because he has these protective concerns.

10. The case is in the Magellan list.  The parties tell me that it is due back in court on 17 March 2009.  Unfortunately for both of them, they have not been legally‑represented in relation to the contravention application, but each one is otherwise legally‑represented and there is an ICL in the on-going case.

11. I have made it clear to both parents that they must now seek legal advice: the father as to the appropriate approach if he is wishing to vary the existing orders, and the mother as to the appropriate approach if the existing orders are not being complied with.  The ICL can be properly involved.  Today, without the parties’ lawyers and the ICL, I certainly could not buy into a very small corner of this complex case. 

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

Associate: 

Date:  28 January 2009