Stevenson and Stevenson

[2008] FamCA 77

FAMILY COURT OF AUSTRALIA

STEVENSON & STEVENSON [2008] FamCA 77

FAMILY LAW – PROCEDURAL – Dismissal of contravention application – Non-compliance with Family Law Rules – Order not annexed – Improper service

Family Law Act 1975 (Cth)

APPLICANT: MR STEVENSON

RESPONDENT: MRS STEVENSON

FILE NUMBER: MLC 6138 of 2007

DATE DELIVERED: 17 JANUARY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 17 JANUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR CASH

SOLICITOR FOR THE APPLICANT: PRIOR & PRIOR

COUNSEL FOR THE RESPONDENT: MR SWEENEY

SOLICITOR FOR THE RESPONDENT: CE FAMILY LAWYERS

ORDERS

1. THAT the contravention application filed by the husband on 12 December 2007 be struck out.

2. THAT there be no order as to costs of this day.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS FURTHER ORDERED BY CONSENT

1. THAT the husband and the wife obtain a Single Expert Valuation of the real property situate at and known as the B property and for their purpose:

   (a)the wife contact two registered valuers to carry out the said valuation;

   (b)the husband within seven (7) days thereafter nominate the valuer from those proposed under sub-paragraph (a) hereof;

   (c)the cost of same be borne equally by the parties.

2. THAT within fourteen (14) days the:

   (a)wife produce to the husband all documents in her power possession or control referred to in the letter of 19/09/07 from the husband's solicitors to Rennick & Gaynor;

   (b)husband produce to the wife all documents in his power possession or control referred to and requested in the letter from CE Family Lawyers to Prior & Prior.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6138 of 2007

MR STEVENSON

Applicant

And

MRS STEVENSON

Respondent

REASONS FOR JUDGMENT

1. This matter is before me in the Judicial Duty List.  Mr Cash of counsel appears for the husband, Mr Sweeney of counsel for the wife.  Both parties are in court.  Instructing solicitors are not present in court.  The initial Form 1 application was filed by the husband on 30 May 2007 accompanied by a Form 13 financial statement.  Thereafter the wife caused to be filed a Form 1A response on 3 July 2007 together with her financial statement.

2. The matter first came before this court on 3 July 2007 when Registrar Russell made various orders in respect of the children and the time the husband would spend with them, and otherwise procedural property and case management orders.  Paragraph 7 of those orders in particular required an exchange of valuations prior to a financial conciliation conference whereby the wife's interest, if any, in the business known as C Pty Ltd was to be valued.  I observe that the name under which that business trades is A Company, but the accuracy of that order in respect of the business identity is somewhat irrelevant to the issues now before me.

3. That matter then came on for that conciliation conference on 5 September 2007 before Registrar Sikiotis.  Mr Cash appeared, and the wife was then represented by Mr Gillard.  The matter remained before the Family Court and did not resolve and, somewhat surprisingly, was identified as a complex case.  Orders were made by the court on that occasion.  Those orders are typed and are annexed to the documents that were provided to the parties.  In particular there is a typed page headed 5 September 2007 and procedural disclosure and other orders are made under the signature of the Registrar.  Those orders provided for a timetable on which disclosure and valuation orders were to be provided. 

4. The issue that comes before me today is a contravention application filed 12 December 2007 on behalf of the husband.  That application alleges numerous alleged breaches, but primarily that:

   (i)The wife has failed to provide the valuation of the business   run by her father and/or herself by October 2007,

   (ii)The wife failed to prepare the valuation of a single expert witness on the home,

   (iii)The wife failed to provide the husband with group certificates of income earned from the business.

5. There was no order annexed to the original of that contravention application as is now before me.

6. I pause there to record that the document on the court file (court index number 6) has annexed to it a notice advising the respondent to attend court and setting out possible penalties for breaches that may be proved.  Accompanying the contravention application was an affidavit of the husband (court index number 7) prepared by Mr Stephen Prior.  The affidavit makes reference to five exhibits, none of which have been filed.

7. I have shown that affidavit to both counsel and it is apparent that no documents have been removed from the staple holding the affidavit together and the document has not been re-stapled.  It is highly unlikely that there were ever documents annexed to the original of that affidavit.

8. Mr Cash in response to a question indicated that it may be the documents were separately filed as an exhibit book, but if so they were not so served on the wife in that manner.  I have carefully examined the court file and there are no exhibits filed.  Turning to the Family Law Rules, it is provided for in Chapter 21 the manner in which an order for contravention is to be applied for.  Rule 21.02(1) identifies the particular non-children contravention proceeding now before the court.  That is identified as item 3 in the Rules.

9. Rule 21.02(2) provides that a person filing an application, such as in this case, must file with it an affidavit that (a) states the facts necessary to enable the court to make the orders sought, and (b) has attached a copy of the order the court is asked to enforce or which it is alleged has been contravened.  The notation provided in the Rules gives examples which absolutely would make it clear to any practitioner that the affidavit must have annexed a copy of the order and additionally, and as it becomes relevant in this case, there is a notation to that Rule that such an application and affidavit must be served by hand on the respondent.

10. In this case it is apparent and I find that the affidavit does not have and has not at any time had annexed the relevant order, that is the order of Registrar Sikiotis of 5 September 2007.  Mr Cash has urged the court to exercise discretion and leniency and simply waive the failure to comply.  Generally, that is an approach that may often be taken, but not in contravention matters where the onus is absolutely intended to be strict.  The commonsense for that is apparent, that is, in matters involving quasi-criminal proceedings or any sanction, a person seeking the benefit of an alleged breach must prove their case and must do so properly and strictly. 

11. I cannot accept that the solicitor would not have known of the Rules or of the mandatory requirement of the Rules both to serve the order and to serve the order personally.  In any event, having read the affidavit I find, though this is not necessarily a strict component of my reasoning, that the affidavit fails subparagraph (a) in that the statement of facts is insufficient and not appropriately informative to enable the court to make the orders sought in any event.

12. The further issue raised by Mr Sweeney goes to service.  The solicitor for the husband must have been on notice because of the very clear indication provided as a notation to Rule 21.02.  In any event Rule 7.03 provides service of documents, and the only documents that are required to be served by hand are subpoenas and applications for contravention and contempt.  That is clearly identified within the table of documents contained in Rule 7.1 and I refer to items 5, 6 and 7 thereof.

13. The court does have a general discretion regarding service, and again that can be and is regularly exercised in appropriate cases, however, it is absolutely clear and unambiguous the three applications that must be served by hand include contravention applications.  There is abundant logic and commonsense to that course of action.  In this case the wife was served or endeavoured to be served through her solicitors by facsimile transmission.  That is clearly in breach of the Rules.  The Rules are mandatory, the introduction to Rule 7.03 says that:

    A person must serve a document...

14. In summary therefore the solicitors for the husband have wholly neglected the appropriate drafting of the document, the inclusion of the orders and service.  On that basis I dismiss the contravention application filed 12 December 2007. 

15. I will have those reasons transcribed, they will be put on the court file.  Both solicitors will be given a copy.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: