Cheni and Stiller

[2016] FamCA 57

FAMILY COURT OF AUSTRALIA

CHENI & STILLER [2016] FamCA 57

FAMILY LAW – ORDERS – Contravention – where allegations not proved –where application dismissed.

Family Law Act 1975 (Cth) ss 70NEA, 70NEB

APPLICANT: Mr Cheni

RESPONDENT: Ms Stiller

INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

FILE NUMBER: PAC 2819 of 2013

DATE DELIVERED: 11 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 20 and 21 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rosic

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT: Saldaneri & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

Orders

1. The amended Application – Contravention filed 4 September 2015 is dismissed.        

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cheni & Stiller 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 PARRAMATTA

FILE NUMBER: PAC 2819  of 2013

Mr Cheni

Applicant

And

Ms Stiller

Respondent

REASONS FOR JUDGMENT

1. These are contravention proceedings commenced by the applicant father as subsequently amended by the filing of an amended contravention application on 4 September 2015.

2. These are proceedings under the provisions of s 70NEA of the Family Law Act 1975 (Cth) (“the Act”). In summary, the section applies if the Court is satisfied that a person has committed a contravention of a primary order and the person does not prove that he or she had a reasonable excuse for the current contravention and the Court has previously not made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order or otherwise adjourned proceedings in respect of a contravention by the person of the primary order.

3. Section 70NEB sets out the powers of the Court in circumstances where a contravention is found proved under the provisions of s 70NEA.

4. A “primary order” is defined in s 4 of the Act to mean “an order under this Act affecting children and includes such order as varied”.

Context

1. The father alleges that the mother without reasonable excuse has failed to comply with orders made on 17 February 2015 as amended by orders made on 13 July 2015.

2. The father’s allegations are as follows:

   (1)That on 31 July 2015 at 5:00pm at McDonald’s, Suburb B the respondent mother without reasonable excuse refused to allow the applicant father to spend unsupervised time with the children C and D for the period 31 July 2015 to 2 August 2015 as per orders made in the Federal Circuit Court dated 17 February 2015 and amended order dated 13 July 2015.

   (2)That on 2 August 2015 at 4:00pm at McDonald’s, Suburb B the respondent mother without reasonable excuse refused to allow the father to spend supervised time with the children C, D and E as per orders made in the Federal Circuit Court dated 17 February 2015 and amended order dated 13 July 2015.

   (3)That on…