Last Updated: 8 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
Catchwords:
FAMILY LAW – Practice and procedure – matter listed for final hearing for 3 days with priority – father filed a contravention application the day before the final hearing – as a result the hearing could not proceed.
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REPRESENTATION
Solicitor Advocate for the Applicant: |
Mr Knight
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Solicitors for the Applicant: |
Knight Family Lawyers
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Solicitor Advocate for the Respondent: |
Ms Rothschild
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Solicitors for the Respondent: |
 Elisa Rothschild  Lawyer |
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Counsel for the Independent Children’s Lawyer:
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Solicitors for the Independent Children’s Lawyer: |
Macgregor Solicitors
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ORDERS
(1) That this matter be listed for final hearing on a date to be fixed, with an estimated hearing time of 3 days.
(2) That the contravention application filed on 17 November 2015 be heard at the same time as the final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Keogh & Kenyon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE
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MLC 4104 of 2011
Applicant
And
Respondent
REASONS FOR JUDGMENT
- These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
- This is a matter that was listed for final hearing today, with priority. The father filed a contravention application the day before the final hearing. The father wants that contravention application to proceed. In the circumstances, the hearing cannot proceed this week. It is not a simple issue of technicality and it is not simply an issue of saying the mother is generally on notice of the issues in dispute. Contravention proceedings are quasi-criminal. That is a very serious proceeding and therefore it is important that the respondent to such an application has proper notice of it and be accorded procedural fairness.
- In my view, whilst it may well be true that she is aware of the allegations generally, that she has not complied with the orders is a different matter for her lawyer to be in a position to advise her as to the consequences if she is found to have contravened the orders. In those circumstances, I think it would be totally unfair to the respondent to proceed with the contravention application this week.
- As a consequence of the father wanting to proceed with the contravention, that means that the hearing must be adjourned. The next issue is whether or not the contravention should be heard separately from the final hearing. In this regard, I refer to a decision of Kettle & Baker [2014] FamCAFC 85. In that case, the Full Court held that it was within the trial judge’s discretion to adjourn a contravention application to the final hearing. The trial judge did so in that case because the contraventions were clearly connected with all the parenting issues that were in dispute to be determined at the final hearing.
- In another decision of Kovacs & Grahame [2015] FamCAFC 98, Kent J also found that it was not possible or in the children’s best interests for there to be a hearing of a contravention application separate from substantive proceedings. I also refer to the Full Court decision of Caballes & Tallant [2014] FamCAFC 112; (2014) FLC 93-596, which deals with issues of procedural fairness with respect to contravention proceedings. Of course, these issues often turn on their own facts, but in this case, it is apparent to me, having read the material, that the issues with respect to the contravention are directly relevant to the issues for determination in final hearing.
- Furthermore, there are witnesses that the mother’s lawyer would seek to call, being the Berry Street Contact Centre supervisor and two psychologists. These are also people who are witnesses in the final hearing. Therefore, there would be potential for these witnesses, who are professional witnesses, being called twice. That would involve some additional expense to the parties. In my view, it would be much more effective in terms of costs and case management, for the contravention to be heard at the same time as the final hearing and so that is what I will order.
- I am going to relist the matter for a three day final hearing on a date to be fixed. Currently, because of the shortage of judicial appointments to this Court, I do not have any dates available until 2017. This is not a matter that can wait that long. Therefore it will be necessary to confer with others to see if it is possible to list this matter earlier. That, however, will not be until after Christmas.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 2 December 2015
