Stein and Jacobova

[2009] FamCA 438

FAMILY COURT OF AUSTRALIA

STEIN & JACOBOVA [2009] FamCA 438

FAMILY LAW – PRACTICE AND PROCEDURE – Dismissal of contravention application

Family Law Act 1975 (Cth)

APPLICANT: Mr Stein

RESPONDENT: Ms Jacobova

FILE NUMBER: MLC 13605 of 2007

DATE DELIVERED: 18 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT: NA

COUNSEL FOR THE RESPONDENT: Mr I.N. Brewer

SOLICITOR FOR THE RESPONDENT: Lewenberg & Lewenberg

Orders

1. That the contravention application filed by the father on 14 April 2009 be struck out.

2. That the reasons for judgment be transcribed.

3. That there be no order for costs.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 136057 of 2007

MR STEIN

Applicant

And

MS JACOBOVA

Respondent

REASONS FOR JUDGMENT

1. This is a contravention application by Mr Stein, the father, filed on 14 April 2009 seeking that Ms Jacobova, the mother, be dealt with for contravening orders made by the court.

2. There are a number of problems with the application.  The first is that it does not set out with any precision, let alone particularity, just exactly what orders were breached or the circumstances of the allegations.  The application sets out no details of a specific order or the paragraph, but I have been able to remedy that by looking through the court file and I found an order made on 16 February 2009 by Burchardt FM.

3. I could overcome the problem of the inaccuracy because everyone would know what order is being spoken about.  The next problem, however, is that the statement of the alleged contravention sets out five dates and simply that the father did not speak to the child on those dates.

4. The material has to be supported by an affidavit.  There is an affidavit on the court file.  It certainly has been filed according to the registry, but according to Mr Brewer, who appears for the mother, it has not been served on his client.  More importantly, although no objection has been taken to this point, it has not been served personally upon the respondent, as is required under the rules, upon the respondent.  It was served upon her lawyers.

5. In the circumstances, rather than try and trawl through the document and find out what exactly is alleged - and that would take time, having regard to the state of the list - the appropriate order for me to make is to simply strike out the application.

6. Now, there is an application for costs arising out of my earlier orders striking out the application by the father seeking that the mother be dealt with for contravening parenting orders. The provisions of s 117 of the Family Law Act 1975 (Cth) apply in all cases. That provision provides that each party bears their own costs, except whether circumstances justify the departure from that rule.

7. The situation here is that the application by the father was, putting it bluntly, a mess and very difficult to follow but ultimately it was struck out on the basis that there had not been any affidavit material properly served.  That is a fact that I am content to make a finding about.

8. The difficulty, however, is that the rules provide that personal service must be effected upon the respondent and there was literally no reason for the mother to attend today, having regard to the fact - leaving aside the questions about the state of the documents - that they had not been properly served.  There is no reason in this circumstance for me to depart therefore from the normal rule that each party bears their own costs.

9. In the circumstances I propose not to make any order for costs in this case.

I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  26 May 2009