DICKENS & DICKENS - [2015] FamCA 294

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS

[2015] FamCA 294

FAMILY LAW – ENFORCEMENT OF ORDERS – Contravention of orders – Sanctions – Where the mother was found to have contravened court orders without reasonable excuse – Where the father asked the Court to deal with sanctions under Subdivision F of Division 13A of Part VII of the Family Law Act 1975 – where it was appropriate to deal with the sanctions under Subdivision E of Division 13A of Part VII of the Family Law Act 1975 – Where the mother was ordered to enter into a bond with conditions.

Family Law Act 1975 (Cth) – Subdivision E, Division 13A, Part VII; Subdivision F, Division 13A, Part VII; s 70NAB(1) s 70NEB(1)

McClintock & Levier (2009) FLC 93-401

APPLICANT:

Mr Dickens

RESPONDENT:

Ms Dickens

FILE NUMBER:

SYC

739

2010

DATE DELIVERED:

10 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

10 April 2015

REPRESENTATION

FOR THE APPLICANT:

Mr Dickens in person

SOLICITOR FOR THE RESPONDENT:

Ms Kensell, solicitor of Hamish Cumming Family Lawyers

Orders

That in relation to the father’s Application in a Case filed on 5 March 2015 in the Court’s view there is no scope for a stay of orders in relation to paragraphs 1 and 3 and such applications are dismissed.
That by consent order 5 of the orders made on 27 January 2015 is stayed pending completion of the father’s appeal.
That the father is given leave to withdraw the applications at paragraphs 4 and 5 of the said Application in a Case.
That in relation to the Court’s finding that the mother has contravened orders under the Family Law Act 1975 made by the Federal Magistrates Court on 20 December 2011 the mother forthwith enter into a bond for a period of twelve (12) months to be of good behaviour and to comply with all Court orders and to promise to owe to the Commonwealth of Australia the sum of $3,000.00 to be levied on her goods and chattels, land and tenements in the event that she should fail in the compliance with the conditions of the bond.

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 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

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.
This is what I might describe as the second stage in contravention proceedings, which I heard on 20 May 2014, between Mr Dickens, to whom for convenience I shall refer to as “the father”, and Ms Dickens, to whom for convenience I shall refer as “the mother”.
The father filed a contravention application on 3 October 2013, alleging various breaches by the mother of parenting orders in relation to the parties’ children B, born in 2001 and C,…

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

AGLC: DICKENS & DICKENS [2015] FamCA 294
Case: [2015] FamCA 294
Decision Date: 10 April 2015

CaseChat Overview and Summary

In the matter of *Dickens & Dickens*, Johnston J considered applications by the father concerning orders made by the Federal Magistrates Court on 20 December 2011 and subsequent orders of the Court made on 27 January 2015. The dispute involved the father seeking a stay of certain orders and the mother's alleged contravention of existing court orders.

The primary legal issues before the Court were whether to grant a stay of specific orders made on 27 January 2015 pending the father's appeal, whether to permit the father to withdraw other applications, and the appropriate response to the Court's finding that the mother had contravened previous Family Law Act 1975 orders.

Johnston J determined that there was no basis to stay the orders referred to in paragraphs 1 and 3 of the father's application, dismissing those aspects of the application. However, by consent, the Court ordered a stay of order 5 made on 27 January 2015, contingent upon the completion of the father's appeal. Leave was granted for the father to withdraw applications at paragraphs 4 and 5 of his application. Regarding the mother's contravention of the 20 December 2011 orders, the Court ordered that she enter into a bond for twelve months, requiring her to be of good behaviour and comply with all court orders, with a sum of $3,000.00 payable to the Commonwealth should she breach the conditions of the bond.

Orders

Orders of the court

That in relation to the father’s Application in a Case filed on 5 March 2015 in the Court’s view there is no scope for a stay of orders in relation to paragraphs 1 and 3 and such applications are dismissed.

That by consent order 5 of the orders made on 27 January 2015 is stayed pending completion of the father’s appeal.

That the father is given leave to withdraw the applications at paragraphs 4 and 5 of the said Application in a Case.

That in relation to the Court’s finding that the mother has contravened orders under the Family Law Act 1975 made by the Federal Magistrates Court on 20 December 2011 the mother forthwith enter into a bond for a period of twelve (12) months to be of good behaviour and to comply with all Court orders and to promise to owe to the Commonwealth of Australia the sum of $3,000.00 to be levied on her goods and chattels, land and tenements in the event that she should fail in the compliance with the conditions of the bond.

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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