Stokes and Stokes (No 2)

[2011] FamCA 839

FAMILY COURT OF AUSTRALIA

STOKES & STOKES (NO 2) [2011] FamCA 839

FAMILY LAW  – CHILDREN – Contravention  –  Special service by hand required but not effected – In any event no substantive case established  –  Mother not to use contravention process for the purpose of achieving variation of final parenting orders  –  Abuse of process

Family Law Rules 2004 Rule 7.03, Rule 7.06

Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 98-383
Rice and Asplund (1979) FLC 90-725

APPLICANT: Ms Stokes

RESPONDENT: Mr Stokes

FILE NUMBER: BRC 9391 of 2007

DATE DELIVERED: 31 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 31 October 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. The mother’s contravention application filed 2 September 2011 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Stokes & Stokes (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9391 of 2007

Ms Stokes

Applicant

And

Mr Stokes

Respondent

REASONS FOR JUDGMENT

Application

1. The mother has a contravention application filed on 2 September 2011 supported by an affidavit filed on the same date. 

Service issues

1. There is no affidavit of service on the father. The mother said earlier that if I were to give her leave to adduce oral evidence as to service she would say that she has sent the application and affidavit to the father by registered post. However, the Family Law Rules 2004, by Rule 7.03 and Table 7.1, require that contravention applications be served by way of special service by hand, that is, in accordance with Rule 7.06:

   7.06 Special service by hand

   (1)    A document to be served by hand must be given to the person to be served (the receiver ).

   (2)    If the receiver refuses to take the document, service occurs if the person serving the document:

   (a)places it down in the presence of the receiver; and

   (b)tells the receiver what it is.

   (3)    A party must not serve another party by hand but may be present when service by hand occurs.

2. Although judges have the power to waive compliance with the Rules in certain circumstances, judges traditionally do not waive the necessity for strict compliance relating to service by hand or personal service in contravention and contempt applications, for good reason, because of the sanctions which attach. 

3. The case co-ordinator has provided a copy of an email to the Court from the father 27 October 2011, last Thursday, which provides:

   I refer to the Order made on 22 September (attached).  In this Order it refers to an Application for Contravention against me filed on 02 September and listed for hearing on 31 October.  I have not received anything or heard anything about this contravention. Therefore this application is to be dismissed. (attachment omitted)

4. The order 22 September 2011 was a directions hearing order made by Registrar Coutts at which the Registrar listed the mother’s contravention application filed 2 September 2011 for hearing today, the father being present at that directions hearing. 

5. In response to the father's email the case co-ordinator wrote to the father last Friday 28 October 2011 saying:

   I refer to your email received 27 October 2011.

   In relation to the hearing of the Contravention on 31 October 2011, whilst the Court cannot give legal advice, it may be prudent for you to be present at the hearing and properly raise any complaint in relation to the lack of service with the Judicial Officer.

6. The father has not appeared today.

7. Now, the mother has said to me that she cannot effect service by hand on the father because there is an order in place, being one of the orders being made by Bell J on 8 April 2011, that she and the father only communicate with each other by registered post. I pointed out to her however that court process does not require any attendance by her on the father (indeed, see Rule 7.06(3) prohibiting service by hand by a party) and that if she cannot afford to use a process server to serve her contravention applications on the father, there seeming to be a string of such applications, then she should use another adult person. The mother responded to this that she does not know anyone who would effect service on the father because he is very violent, to which I responded that if he is so violent then her 10 year old daughter B should not be with him, to which she responded that that is the purpose of her string of contravention applications, that is, ultimately to obtain contravention sanctions so that she can achieve a variation of Bell J’s orders with the result that there be no contact between B and the father.

Abuse of process

1. I pointed out to the mother that if that is what she is trying to achieve, that is, that the purpose of her string of contravention applications is ultimately to obtain contravention sanctions so that she can achieve a variation of Bell J’s orders with the result that there be no contact between B and the father, that is not the way to do it and that she needs potentially to file an initiating application if she can show a significant change of circumstances since Bell J’s final orders 8 April 2011, supported by reasons for judgment 8 April 2011.  The mother said she has been advised by a barrister not to do it that way but to do it this way by bringing a string of contravention applications before the Court.  I think I have made clear this morning my disapproval of that.  Such in my view is an abuse of process. If a parent wishes to bring a genuine contravention or contempt application, that is one thing, but it is an abuse of process of this Court to file a string of contravention applications with the ultimate objective of having a variation of a final order of the Court with the end result of there being no contact between a child and her father.  It’s just not the way to do it.

Application has no substantive basis in any event

1. Apart from the deficient service in this case, the application is hopelessly incompetent.  The application at Part D "Details of the alleged contravention" contains the allegation that on 22 August 2011 at 9am at H School the father, without reasonable excuse, did not pay half of B’s school and all of her after school care fees.  There is no such order made by Bell J on 8 April 2011.  The only order made by his Honour touching upon such matters is order 15, as follows:

   15.    The parents share the child’s education and medical expenses (including dental and orthodontic treatment).

2. Relevantly, the extent of the order is that the parents "share" the child’s education expenses.  In order to found a competent contravention or contempt application an order must require the performance of an act on or by a specified time and date.  The order thus is not capable of supporting the alleged contravention.  Further, in relation to contravention and contempt applications, implication cannot be made. The orders must be clear, concise and require performance by a specified time and date, as I have mentioned.

3. The other aspect of the alleged contravention is that the father, without reasonable excuse, did not pay "all" of B’s after school care fees.  That is not required by the order.  The effect of his Honour’s order is that the parents "share", which in context can only mean share equally, B’s education expenses, meaning all expenses fitting that description. 

4. It is true that the poor child has suffered extreme embarrassment to the point of crying by being on a list of two children identified as children whose school fees were unpaid, requiring the mother, to avoid further embarrassment for the child, paying the father’s half of the school fees. It is reprehensible conduct by the father not to pay half of the child's school fees as and when they are due. However, a more specific order would be required, as to when the payments were to be made, to enable a contravention or contempt application.

5. This matter might need to be addressed in some sort of Legal Aid Conference or some sort of dispute resolution conference which might be able to be convened by Legal Aid. 

6. I leave that, however, to the parties and their resources for another day.  I note the presence in Court, with gratitude, of the duty solicitor at my request.  Some of the remarks I have made and the reasons for judgment might be useful to that end. 

7. I will add that the mother has said that B is 10 years old and there have been Court proceedings concerning B for 7 years, including the process of interview for 5 family reports.  This must stop.

8. Whether the mother has or has not grounds for a fresh initiating application and fresh proceedings on the basis of Rice & Asplund (1979) FLC 90-725 (see also Miller & Harrington (2008) FLC 98-383 at [72] and Marsden & Winch [2009] FamCAFC 152 at [41] – [47], first sentence) is not a matter for me to guess, but is a matter which plainly with some legal assistance it would be prudent for the mother to consider.

9. It remains, therefore, for me to dismiss the application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate: 

Date:              1 November 2011