Deleon & Deleon (2023) FedCFamC2F 1366

“The procedural unfairness and erroneous application of legal principle which can be identified in the Reasons for Judgment both stem from disagreement over the proper construction of the June 2018 Orders and the manner in which those Orders blocked the mother’s applications.”

In the case of Deleon & Deleon [2023] FedCFamC2F 1366, the court was asked to make a Hadkinson’s Order.

The mother asked for parenting proceedings to be stayed because the father had not fully performed a property settlement order.

The father and the Independent Children’s Lawyer wanted the parenting proceedings concluded.

The case involves a short discussion of the legal principles espoused in the decision of Hadkinson & Hadkinson.

The court said, “At its heart, the rule is said to provide that a party in contempt will not be heard”.

The court has, over time, in subsequent decisions, confirmed that the rule is, firstly, a discretionary one and, secondly, is confined to proceedings in the same cause in which the alleged contempt has been committed. A lack of nexus between the proceedings in the same cause was said by the court to be fatal to any application to apply the rule.

Authority for that consideration is Fahmi & Fahmi [1995] FamCA 106; Watson & Watson [2013] FamCAFC 25; and Dautry & Wemple [2018] FamCAFC 237.

The father is in breach of proceedings under Part VIII of the Act. The relief sought by the mother is in proceedings for parenting under Part VII of the Act. The court determined they
were separate causes of action.

The court considered there was a failure of the necessary nexus.

The court then considered the best interests principle and said:

“The best interests principle alone would be sufficient in my view to decline to make orders as sought by the mother. The court will not countenance any situation which might see a relisting of the father’s application on a liberty to apply basis. In my view, that would be tantamount to adjourning the proceedings sine die and does not meet with modern litigation procedures designed to bring litigation to an end.”