Wold and Kleppir

[2010] FamCA 478

FAMILY COURT OF AUSTRALIA

WOLD & KLEPPIR [2010] FamCA 478

FAMILY LAW – Contempt application against the father – Where incorrect orders were cited by the mother’s legal representatives in the application – Where the application should have been for serious contravention rather than contempt – Application dismissed

APPLICANT: Ms Wold

RESPONDENT: Mr Kleppir

FILE NUMBER: BRC 3211 of 2008

DATE DELIVERED: 4 June 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 4 June 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The Applicant Mother appearing in person

SOLICITOR FOR THE RESPONDENT: Mr Mould, Solicitor of John Paul Mould Solicitors appearing for the Respondent Father

Orders

IT IS ORDERED THAT:

1. Both parties given leave to inspect and copy the subpoenaed documentation of R School.

Mother’s Contempt Application Filed 11 March 2009

1. The Mother’s Contempt Application filed 11 March 2009 is dismissed.

Father’s Contravention Application Filed 11 February 2010

1. BY CONSENT count four (4) of the Father’s Contravention Application filed

   
   

   11 February 2010 is withdrawn.

2. The question of penalty is adjourned to 10.00 am on 27 August 2010 at the Brisbane Registry of the Family Court.

3. The issue of costs reserved with the Father’s legal representative to provide written submissions by 4.00 pm on 20 August 2010 with the Mother to file and serve any response by 4.00 pm on 25 August 2010.

IT IS FURTHER ORDERED THAT:

1. The Mother to provide written submissions and/or a certificate from her former solicitors, Neumann & Turnour Lawyers relating to the quantum of the Mother’s costs of and incidental to the application before Principal Registrar Filippello on 26 March 2010 by 4.00 pm on 20 August 2010.

2. The Father to file and serve by 4.00 pm on 25 August 2010 any response to the Mother’s application for costs pursuant to the terms of paragraph (6) hereof.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3211 of 2008

MS WOLD

Applicant

And

MR KLEPPIR

Respondent

REASONS FOR JUDGMENT

1. 156 counts of contempt were brought against the father covering a period from the time that particular orders were made on 11 December 2008 through to January 2009. The father had the right to phone his children pursuant to paragraph (11) of the orders made by Jarrett FM made on 19 May 2008. That order was in the terms the father should have telephone communication with the children each day between the hours of 8.00 am and 8.30 am and 6.00 pm to 6.30 pm. The matter was transferred to this Court on 11 December 2008.

2. I was making directions as to the further hearing of the matter and I was asked to make orders in terms of paragraph 10. An order in those terms was not opposed, as I recall, by Mr Madsen, and accordingly an order was made to preclude the father from contacting the mother effectively at any time in any way. When I reflect on the matter, the orders should never have been made;  they were far too widely drafted. For example, if his solicitor had contacted the mother he is in breach of the order because he has caused someone else to contact, either directly or indirectly by any means, the applicant mother.

3. Leaving aside the proper interpretation of the order, the mother comes to Court and in the 156 charges she proffers, her lawyers have nominated the incorrect date. As I have said, these are criminal charges. The onus of proof beyond a reasonable doubt rests on the prosecutor. The matter has been in the list for 15 months;  nobody picked up, seemingly, that it was the wrong date. I am not giving leave to amend. In any event, the orders are framed so that the respondent is said to have called outside specified calling times contrary to and in deliberate breach of the orders of 11 December, we will assume, 2008 not 2009.

4. There was no reference to times in the order of 11 December 2008;  he could not possibly have breached those orders. What it should have said, if you are complaining about the breach of the orders for times, if that was the complaint, plead a breach of the order of May 2008.  If you are complaining that he is phoning at all, plead paragraph 10 of the orders of December 2008. And it was not done. I do not want Mr Kleppir for one moment to think that he can be a law unto himself and blatantly defy orders of this Court but with contempt charges they have to be strictly interpreted and strictly proved.

5. The number of calls:  I assume, for present purposes that they are born out by phone company records. The number of calls and the timing of them and the nature of them would indicate there was a degree of harassment of the mother. As I have said many a time, she is a free person and a free country, as are you. Do not breach orders. Warning:  you are really getting off on two technical points, but also the fact that it should have been pleaded as a serious contravention rather than a contempt.

6. At some stage, I directed the mother to reduce the counts to six. I do not propose putting the contempt charges for the reasons I have given. I propose to dismiss the contempt applications. They could easily have been pleaded in the alternative by the mother’s legal representatives and they did not elect to do that.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  4 June 2010