Family Law Practice Note

Because of their quasi-criminal nature, contravention applications are stricti juris.  The formalities count; many an otherwise ‘good’ contravention has been defeated because of a failure to comply with the necessary formalities.

I refer to a recent experience of my own in the Family Court. 

I was briefed to appear for an applicant mother in a contravention application.  Unfortunately, the affidavit filed in support of the contravention application relied upon purely hearsay evidence to support one of the breaches (“I was told by friends…etc”).  That aspect of the affidavit was thus inadmissible as to form.

When I read the affidavit, I had my solicitors urgently file and serve a further affidavit by the mother which dealt with that breach in an admissible way.

At the hearing, my opponent submitted that the further affidavit could not be relied upon.

The argument revolved around the interpretation of rule 21.02(2) of the Family Law Rules, which is (relevantly) in the following terms:

“A person filing an application [for contravention of parenting orders] must file with it an affidavit that:

(a) states the facts necessary to enable the court to make the orders sought in the application…”

My opponent’s argument was that the original affidavit in support was objectionable as to form, thus it did not state the necessary facts as required by the rule.  It was beside the point that we had filed a further affidavit “fixing” the problem — because this further affidavit was not the affidavit filed “with” the application.

In response I submitted that the further affidavit was part of the supporting material on the contravention and in that sense was filed “with” the application; that the use of the word “with” in rule 21.02(a) should not be confined to meaning “contemporaneously with”.

In the alternative I relied upon the general discretion contained in rule 1.12 to dispense with the rules in the interests of justice.

His Honour upheld my opponent’s objection; the count was thus struck out on the basis that the affidavit filed “with” the application did not comply with rule 21.02(a).

The case was later resolved by consent — so His Honour’s reasons will remain buried in a transcript somewhere.  This is part of the practical problem with contraventions — many that are dismissed on technical grounds are unreported.

Conclusion