Dickens and Dickens and Anor (No 2) - [2014] FamCA 1227

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS & ANOR (NO 2)

[2014] FamCA 1227

FAMILY LAW – CHILDREN – Contravention – Where the father’s application alleges three counts of contravention by the mother – Where it was found the mother breached parenting orders without reasonable excuse on two occasions – Where the third alleged contravention was dismissed – Where proceedings were adjourned for submissions in relation to sanctions.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Dickens

1^ST RESPONDENT:

Ms Dickens

2^ND RESPONDENT:

Mr D

INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan

FILE NUMBER:

SYC

739

2010

DATE DELIVERED:

20 May 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

20 May 2014

REPRESENTATION

FOR THE APPLICANT:

Mr Dickens, in person

SOLICITOR FOR THE 1^ST RESPONDENT:

Ms Adams, solicitor of Hamish Cumming Family Lawyers

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Cook

SOLICITOR FOR THE 2^ND RESPONDENT:

Delaneys Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan of Moylan Family Lawyers

Orders

That the Court notes that the mother admits that on 5 April 2012 without reasonable excuse she contravened order 4 of the orders made by the Federal Magistrates Court on 20 December 2011.
That Mr Moylan may be excused noting that the father has been extremely slow in his cross-examination of the mother and Mr Moylan has been excused in order to endeavour to save the public purse some funds.
That the proceedings for alleged contempt against Mr D as identified at items 7, 9 and 15 of the father’s Application filed on 15 October 2013 is listed for hearing at 10:00 am on 4 September 2014.
That the Court notes that Mr D, his counsel and instructing solicitor have waited the whole of today for the father to complete his contravention proceedings against the mother.
That the Court notes that the proceedings against the mother have been unduly protracted by the father who is self-represented failing to confine his cross-examination to relevant matters.
That within 7 days the father inform Mr D’s solicitor in writing about which paragraphs of which affidavits he will be seeking the Court’s leave to rely on in his allegations of contempt proceedings.
That the Court notes that the mother conceded at the earliest opportunity today that on 5 April 2012 without reasonable excuse she contravened paragraph 4 of the orders made on 20 December 2011.
That the Court notes that the Court is satisfied that without reasonable excuse the mother contravened order 8 of the orders of the Federal Magistrates Court of 20 December 2011 on 3 May 2013.
That the father’s application for contravention in respect of the alleged breach of the said orders on 1 June 2012 is dismissed.
That these proceedings are adjourned to 10:00 am on 4 September 2014 for submissions in relation to sanctions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens has been approved by the Chief Justice pursuant to s…

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: [2014] FamCA 1227
Decision Date: 20 May 2014

CaseChat Overview and Summary

In *Dickens and Dickens and Anor (No 2)*, Johnston J of the Federal Circuit Court of Australia considered allegations of contravention of court orders made on 20 December 2011. The proceedings involved the father alleging contraventions by the mother, and also alleged contraventions by Mr D.

The court was required to determine whether the mother had contravened specific orders of the Federal Magistrates Court on 5 April 2012 and 3 May 2013, and whether the father's application for contravention concerning an alleged breach on 1 June 2012 should be dismissed. Additionally, the court addressed the progress of contempt proceedings against Mr D, including the father's obligations regarding the affidavits he intended to rely upon.

Johnston J found that the mother had contravened orders 4 and 8 of the Federal Magistrates Court's orders of 20 December 2011 on the specified dates, admitting this without reasonable excuse. However, the father's application for contravention regarding the alleged breach on 1 June 2012 was dismissed. The court also noted that the proceedings against the mother had been unduly protracted by the father's self-represented cross-examination, and that contempt proceedings against Mr D were adjourned for further hearing. The father was ordered to provide written notification of the specific paragraphs of affidavits he intended to rely on for the contempt allegations.

Orders

Orders of the court

That the Court notes that the mother admits that on 5 April 2012 without reasonable excuse she contravened order 4 of the orders made by the Federal Magistrates Court on 20 December 2011.

That Mr Moylan may be excused noting that the father has been extremely slow in his cross-examination of the mother and Mr Moylan has been excused in order to endeavour to save the public purse some funds.

That the proceedings for alleged contempt against Mr D as identified at items 7, 9 and 15 of the father’s Application filed on 15 October 2013 is listed for hearing at 10:00 am on 4 September 2014.

That the Court notes that Mr D, his counsel and instructing solicitor have waited the whole of today for the father to complete his contravention proceedings against the mother.

That the Court notes that the proceedings against the mother have been unduly protracted by the father who is self-represented failing to confine his cross-examination to relevant matters.

That within 7 days the father inform Mr D’s solicitor in writing about which paragraphs of which affidavits he will be seeking the Court’s leave to rely on in his allegations of contempt proceedings.

That the Court notes that the mother conceded at the earliest opportunity today that on 5 April 2012 without reasonable excuse she contravened paragraph 4 of the orders made on 20 December 2011.

That the Court notes that the Court is satisfied that without reasonable excuse the mother contravened order 8 of the orders of the Federal Magistrates Court of 20 December 2011 on 3 May 2013.

That the father’s application for contravention in respect of the alleged breach of the said orders on 1 June 2012 is dismissed.

10.

That these proceedings are adjourned to 10:00 am on 4 September 2014 for submissions in relation to sanctions.

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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