Veitch and Dempsey - [2019] FamCA 187

FAMILY COURT OF AUSTRALIA

VEITCH & DEMPSEY

[2019] FamCA 187

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention – Where the children did not go into the mother’s care on two occasions – Where the father admits on one occasion but pleads reasonable excuse – Where the father does not admit the second occasion – Where the children have become involved in the inter-parental dispute

Family Law Act 1975 (Cth) div13A pt VII, ss 70NAC, 70NAE, 70NAF

Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Stevenson & Hughes (1993) FLC 92-363

APPLICANT:

Ms Veitch

RESPONDENT:

Mr Dempsey

FILE NUMBER:

ADC

508

2015

DATE DELIVERED:

29 March 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

19 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Ross

SOLICITOR FOR THE RESPONDENT:

Jacqui Ion Lawyers Pty Ltd

ORDERS

UPON NOTING that Count 2 of the Application for Contravention filed 1 February 2019 is proven

IT IS ORDERED:

That the Application for Contravention is set down for the sentencing of the father on 9 April 2019 at 9.00 am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Veitch & Dempsey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 508 of 2015

Ms Veitch

Applicant

And

Mr Dempsey

Respondent

REASONS FOR JUDGMENT

Introduction

On 1 February 2019 Ms Veitch (“the mother”) filed an Application for Contravention of orders made 17 August 2018 (“the application”).
Mr Dempsey (“the father”) is the respondent to the proceedings.
When filed, the application alleged four counts of breaches of the parenting orders pertaining to C born in 2002, and H born in 2008 (collectively “the children”).
The mother alleges that the father failed to comply with the parenting orders made 17 August 2018 and that he did so without reasonable excuse.
The application was supported by the mother’s Affidavit filed 1 February 2019. Whilst not obliged to do so the father elected to file an Affidavit on 15 March 2019.

Background

C and H currently reside with the father. B born in 2004 currently resides with the mother.
The parties are of European descent. Their relationship commenced in 1998, they were married in 2006 and separated in 2014.
Following separation the children remained in the mother’s care whereupon she took the children to Belgium. The parties are not able to…

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.

Continue reading Veitch and Dempsey

Details

AGLC: Veitch and Dempsey [2019] FamCA 187
Case: [2019] FamCA 187
Decision Date: 29 March 2019

CaseChat Overview and Summary

In the matter of *Veitch and Dempsey*, heard before Berman J, the proceedings concerned an application for contravention filed on 1 February 2019. The specific details of the parties and the precise nature of the contravention were not elaborated upon in the provided text, beyond the fact that the application was brought by one party against another, presumably in relation to family law or child-related matters.

The central legal issue before the court was the determination of whether the contravention alleged in Count 2 of the application was proven. This required the court to assess the evidence presented in relation to that specific count and decide if the conduct alleged constituted a breach of a prior order or obligation.

Berman J found that Count 2 of the Application for Contravention was proven. Following this determination, the court ordered that the application be set down for sentencing of the father on 9 April 2019 at 9:00 am. This indicates that the court had satisfied itself that a contravention had occurred and was now proceeding to the stage of determining appropriate consequences.

Orders

Orders of the court

UPON NOTING that Count 2 of the Application for Contravention filed 1 February 2019 is proven

IT IS ORDERED:

That the Application for Contravention is set down for the sentencing of the father on 9 April 2019 at 9.00 am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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