Dickens and Dickens - [2018] FamCA 373

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS

[2018] FamCA 373

FAMILY LAW – PRACTICE AND PROCEDURE – Application to revise and republish reasons – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Bar-Mordecai v Rotman [2000] NSWCA 123
Spencer v Bamber [2012] NSWCA 274
Todorovic v Moussa (2001) 53 NSWLR 463

APPLICANT:

Mr Dickens

RESPONDENT:

Ms Dickens

INDEPENDENT CHILDREN’S LAWYER:

Moylan Family Lawyers

FILE NUMBER:

SYC

739

2010

DATE DELIVERED:

28 May 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

8 February 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Moylan Family Lawyers

Orders

Applications 2 and 3 of the father’s Application in a Case filed 11 September 2017 be dismissed.

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 Dickens & Dickens 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 SYDNEY

FILE NUMBER: SYC 739 of 2010

Mr Dickens

Applicant

And

Ms Dickens

Respondent

REASONS FOR JUDGMENT

In an Application in a Case filed by the father on 11 September 2017 the following order were sought:
2. That the reasons for judgment for the hearing dated 26 July 2017 be revised and republished to reflect the orders made and the evidence, submissions and applicable authorities invoked by the Father.
3. That the reasons for judgment delivered by Justice Johnston for the hearings dated 20/05/2014; 29/05/2014; 16/09/2014; 27/01/2015 and 17/02/2015 be revised and republished to reflect the evidence, submissions, applicable authorities invoked by the Father and the transcripts or extracts of transcript for these hearings included in the Father’s tender bundles filed 17 July 2017 in volume 2, item numbers 116 – 22.
On 25 September 2017 the following direction was made:
3. Applications for orders 2 and 3 made in the Application in a Case filed 11 September 2017 be adjourned to the next listing date. The father on that day should be prepared to indicate on what basis in law such orders could be made.
At the directions hearing before me on 8 February 2018, the father tendered written submissions (marked as Exhibit 62). Paragraph 1 of those submissions expanded the list of reasons for judgment that the father wished to have revised and reissued so that the new list was:
a. Reasons of Justice Watts for hearing dated 26 July 2017. I also add the reasons for the hearing held on 20 May 2015 delivered 1 March 2016…

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 Dickens and Dickens

Details

AGLC: Dickens and Dickens [2018] FamCA 373
Case: [2018] FamCA 373
Decision Date: 28 May 2018

CaseChat Overview and Summary

In *Dickens and Dickens*, the father sought to vary existing parenting orders concerning the parties' two children. The mother opposed these applications. The proceedings were heard by Watts J in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether there had been a significant change in the circumstances of the children since the making of the last final parenting orders, such that it would be in the children's best interests to reconsider the existing arrangements. The father also sought to introduce new evidence regarding the mother's alleged parenting capacity.

Watts J applied the principles established in *Rice and Aslan* and *Harris v Harris*, which require a party seeking to vary final parenting orders to demonstrate a material change in circumstances. His Honour found that the evidence presented by the father did not establish a significant or material change in circumstances that would warrant a departure from the existing orders. The court also considered the father's proposed new evidence, determining that it was not sufficiently compelling to justify a review of the current parenting arrangements.

Consequently, Watts J ordered that the father's applications to vary the parenting orders be dismissed.

Orders

Orders of the court

Applications 2 and 3 of the father’s Application in a Case filed 11 September 2017 be dismissed.

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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