TOLEMAN & DICKENS

[2015] FamCA 555

FAMILY COURT OF AUSTRALIA

TOLEMAN & DICKENS [2015] FamCA 555

FAMILY LAW – ORDERS – Contravention – Where the father alleges specific allegations of breaches of parenting orders made by the mother – Where the mother denies each allegation – Where the father’s affidavit evidence is insufficient to raise a prima facie case in relation to the allegations of contravention – application dismissed.

APPLICANT: Mr Toleman

RESPONDENT: Ms Dickens

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Penrith

FILE NUMBER: PAC 2686 of 2007

DATE DELIVERED: 19 June 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

Orders

1. The Application for Contravention filed on 21 May 2015 is dismissed.

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

FILE NUMBER: PAC 2686 of 2007

Mr Toleman

Applicant

And

Ms Dickens

Respondent

REASONS FOR JUDGMENT

1. These are proceedings commenced by the father by way of an application-contravention filed on 21 May 2015. 

2. The application of the father is supported by an affidavit sworn by him on 29 April 2015 and filed on 21 May 2015. 

3. The various allegations set out in the contravention application have been put to the mother individually and in respect of each and every allegation, she denies the allegation, as set out in the application for contravention.

4. Thereupon, it is incumbent upon the father to adduce evidence sufficient to require the mother to make a response in terms of her denial of the allegation. 

5. The father’s affidavit comprises, in essence, the following two paragraphs: 

   (1) [Ms Dickens] would refuse to bring [B] whenever she didn’t feel like it or when either [B] or [Ms Dickens] were sick.  I’m quite capable of looking after [B] when he is sick – refer 3(b) of orders, see annexure A. 

   (2) [Ms Dickens] would refuse to answer the phone at my call time – refer 3(f) of the orders.

6. Each of the allegations set out in the father’s contravention application are specific as to the date and approximate time of the individual breaches of orders alleged by him. 

7. Regrettably, the evidence of the father as it stands in terms of his affidavit filed on 21 May 2015 goes nowhere to even raising a prima facie case in relation to each of the specific allegations set out in the application. 

8. Accordingly, there is insufficient evidence upon which to require the wife to be called upon to answer the allegations and in those circumstances the application for contravention filed on 21 May 2015 is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 June 2015.

Associate: 

Date:  19 June 2015