Dickens and Dickens and Anor (No 2) - [2015] FamCA 256

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS & ANOR (NO 2)

[2015] FamCA 256

FAMILY LAW – CONTEMPT – Contravention of Court order – Where the Court did not accept the father’s submission that the complaint amounted to a flagrant challenge to the authority of the Court – Where the Court gave leave to the father to have the complaint heard as a contravention application under Part VII of the Family Law Act 1975 (Cth) – Where the Court recorded a denial that, without reasonable excuse, the respondent had contravened an undertaking to the Court not to discipline or punish the child – Where evidence of video recordings and transcripts of police interviews were before the Court – Where the father relies almost entirely on the child’s allegations set out in that material – Where the evidence is hearsay and it cannot be tested by cross-examination – Where little weight can therefore be afforded to the hearsay material – Where the statements by the child must be regarded with caution and not supporting a finding on the balance of probabilities – Where the father failed to establish a prima facie case for a breach of the undertaking

Family Law Act 1975 (Cth) – s 69ZV(2), s 69ZV(3), s 112AP
Evidence Act 1995 (Cth) – s 59

S & R (1999) FLC 92-834

APPLICANT:

Mr Dickens

1^ST RESPONDENT:

Ms Dickens

2^ND RESPONDENT:

Mr D

FILE NUMBER:

SYC

739

2010

DATE DELIVERED:

17 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

27 January 2015 & 17 February 2015

REPRESENTATION

FOR THE APPLICANT:

Mr Dickens, father in person

SOLICITOR FOR THE 1^ST RESPONDENT:

Ms Kensell, solicitor of Hamish Cumming Family Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT:

Mr Kertesz, solicitor of Delaneys Lawyers

Orders

That the mother and her solicitor may be excused on the basis that if necessary Johnston J’s Associate will indicate to them that their presence at Court is required sometime later.
That all parties are given leave to inspect the documents produced on subpoena by the NSW Police identified as S41.
That Ms N may be excused.
That the father’s Amended Application Contempt filed on 12 May 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens and Anor 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 SYDNEY

FILE NUMBER: SYC 739 of 2010

Mr Dickens

Applicant

And

Ms Dickens

1^st Respondent

And

Mr D

2^ndRespondent

REASONS FOR JUDGMENT

These are contravention proceedings. Mr Dickens, to whom for convenience I shall refer as “the father”, filed an amended contempt application on 12 May 2014, In that application the father alleged that on 14 March 2014 Mr D, to whom I shall refer as “Mr D”, disciplined and punished the father’s son C who was born in 2003, in breach of clause…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FamCA 256
Decision Date: 17 February 2015

CaseChat Overview and Summary

In the matter of *Dickens and Dickens and Anor (No 2)*, Johnston J of the Family Court of Australia considered an application by the father seeking to dismiss the mother's amended application for contempt. The proceedings involved the parents and an unnamed second respondent.

The primary legal issue before the court was whether the father's amended application for contempt, filed on 12 May 2014, should be dismissed. The court also considered applications for parties to be excused from attending court and for leave to inspect documents produced by the NSW Police.

Johnston J dismissed the father's amended application for contempt. The court also made orders excusing the mother and Ms N from further attendance, and granted leave for all parties to inspect documents produced on subpoena by the NSW Police.

Orders

Orders of the court

That the mother and her solicitor may be excused on the basis that if necessary Johnston J’s Associate will indicate to them that their presence at Court is required sometime later.

That all parties are given leave to inspect the documents produced on subpoena by the NSW Police identified as S41.

That Ms N may be excused.

That the father’s Amended Application Contempt filed on 12 May 2014 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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