Sladin and Scabel

[2007] FamCA 1069

FAMILY COURT OF AUSTRALIA

SLADIN & SCABEL [2007] FamCA 1069

FAMILY LAW – CHILDREN – Contravention

APPLICANT: MS SLADIN

RESPONDENT: MR SCABEL

INDEPENDENT CHILDREN’S LAWYER: MR M.E. MULVANY

FILE NUMBER: DGF 1196 of 2005

DATE DELIVERED: 13 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 13 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G.R. Atkinson

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. That the wife shall have leave to withdraw the sixth allegation in her application for contravention filed 27 July 2007.

2. That I find proven the five remaining allegations of contravention in her said application so that I find that the husband has contravened the orders of Carter J of 11 July 2007 without reasonable excuse.

3. That there shall be no specific penalty imposed on the husband but he shall pay the wife's reasonable legal costs of this application, such sum to be agreed between the parties within 21 days of this date and failing agreement, to be taxed.

4. That I direct that a transcript of my reasons for judgment given this day shall be prepared with priority and placed on the court file in a sealed envelope until after Carter J has delivered her reasons for judgment in this case, at which time they can be placed on the court file in the usual manner.

5. That the wife’s solicitor shall ensure service on the husband of a sealed copy of this order as soon as practicable and the reasons for judgment given this day as soon as they are transcribed and available.

6. That the preparation of these orders shall be expedited.

7. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

8. That the wife’s Form 18 application filed 27 July 2007 shall otherwise be dismissed and removed from the list.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as SLADIN and SCABEL

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 1196 of 2005

MS SLADIN

Applicant

And

MR SCABEL

Respondent

REASONS FOR JUDGMENT

1. Carter J heard a defended case in relation to parenting orders for this family.  The trial finished on 11 July 2007.  Her Honour made various orders, and her reasons for judgment are pending.  On 27 July 2007 the mother filed an application alleging various contraventions of her Honour's orders and she supported that application with an affidavit filed the same day. 

2. I am satisfied that the application and affidavit were properly served on the children’s father.  The court received a letter from him dated 13 August 2007.  Acknowledging that he was due in court this morning, he wrote:

   To the best of my knowledge and ability, all orders have been complied with and I deny being in any breach.  The allegations made are not true and are erroneous.  I am not aware of any matter raised by the ex‑wife or of any concern she may have had prior to her bringing this application to court and reject the idea that this course of action was necessary or required.

   The court will have to proceed in my absence today as I cannot attend.

   I request that I be compensated for the aggravation this most vexatious and needless application has caused.

3. Earlier this morning the husband was called.  He did not appear.  I asked that the independent children's lawyer, who has helpfully attended although he is not a party to the contravention proceedings, arrange for contact to be made with the husband to explain that if he failed to appear, I could proceed to hear the matter in his absence, without the benefit of hearing his point of view, or a warrant could be issued to have him brought to court.  The Independent Children’s Lawyer’s articled clerk contacted the husband and took careful notes of the conversation. 

4. The articled clerk gave sworn evidence before me as to the tenor of the conversation with the husband, who made it clear that he hoped the matter would proceed in his absence; he had better things to do; the application was nonsense; and, he wasn't going to attend court. 

5. Against the background of the affidavit of service, the husband's letter, and the sworn evidence of the article clerk, I proposed dealing with the matter in the husband's absence. 

6. I need to look at each charge.  The application included six different charges.  The sixth has been withdrawn.  The other five relate either to a breach of her Honour's orders restraining the husband from discussing the legal proceedings at all with the children, or from discussing changes in their living arrangements.  The children are an older daughter aged 15, and a younger daughter aged 12, and a son aged 10.

7. I have carefully read the affidavit in support sworn by the mother in relation to each one of those charges. 

8. The first charge relates to a phone call made to the older daughter by her father on 11 July, and the support for that charge can be found particularly in paragraphs 6 and 7 of the supporting affidavit. 

9. In relation to the second charge, that on 11 July the husband telephoned the son, the material in support of that allegation can also be found in the same paragraphs to which I have just referred.

10. The next charge relates to 14 July and a telephone call in which it is alleged the husband discussed the proceedings with both the older daughter and the younger daughter, and the support for that allegation can be found primarily in paragraph 10 of the mother's affidavit.

11. The next charge relates to 16 July and the husband’s attempt to speak to the son by telephone, and the supporting material is set out in paragraphs 11, 12, 13 and 14 of the mother's affidavit. 

12. Finally, the last charge relates to an allegation that the husband discussed the details of the trial with the older daughter and the younger daughter between 19 and 23 July, and the material in support of that appears to be mainly in paragraphs 15 to 17 of the mother's affidavit. 

13. Given that all of that material is uncontested, I accept the mother’s evidence on oath, supporting the allegations, and I find each one of the five breaches, as alleged, proven.  The husband has contravened the orders of Carter J without reasonable excuse.

14. In terms of the penalty, Mr Atkinson for the wife has asked me to proceed on the basis of not imposing a specific penalty but ordering costs in his client's favour.  That is a course that is open to me under the Act and the Rules.  In my view, it is entirely appropriate in this case. 

15. Mr Mulvany, as the Independent Children’s Lawyer, has straddled the difficult role that he has in the course of contravention proceedings by not participating, certainly not expressing any view as to whether or not the allegations should have been found to be proven or whether or not the husband had any reasonable excuse, but, helpfully, he has told me that his understanding is that there is no suggestion of an ongoing problem.  That information is helpful to me in the sense that it makes me comfortable to adopt the course suggested by Mr Atkinson. 

16. I will not impose a specific penalty on this occasion. But a costs order against the husband is entirely reasonable. The wife has been put to the expense of bringing this application. It has been unopposed. I have found her material sufficient to support the allegations. Applying the principles in s 117 of the Family Law Act, I propose making an order for costs.

17. I shall give the opportunity for there to be an agreement about costs.  Otherwise costs will be taxed. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau 

Associate: 

Date:  13 August 2007