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 of 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

1. 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

1. 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.

2. 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.

3. 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 and the reasons of the Full Court delivered 21 February 2017 referred at [28] in the reasons for the 26 July 2017 hearing.

   b.     Reasons of Justice Johnston for hearing dated 20 May 2014; 29 May 2014; 4 Sept 2017; 16 Sept 2014; 27 Jan 2015 and 17 Feb 2015. I also add the reasons for the hearing dated 18 March 2014.

4. On 8 February 2018, I made the following orders:

   2.      The written submissions the father has handed to me from the bar table today be marked as Exhibit 62. I note those submissions have not yet been forwarded to the mother or the Independent Children's Lawyer. The father is to forward a copy of those submissions to the mother and the Independent Children's Lawyer as soon as is practicable

   3.      In the event the mother or the Independent Children's Lawyer wish to make written submissions in response on the issue of whether or not either myself or Justice Johnston should be required to revise and republish previous reasons for judgment that have been delivered, they can do so within a further 14 days. I reserve my decision in relation to that application

5. On 12 February 2018, the Independent Children's Lawyer indicated that he did not propose to make any submissions but opposed the orders sought by the father. The mother did not make any written submissions.

6. The father’s written submissions generally contain assertions of deliberate fabrication of evidence; extortion; conflict of interest; bias; failure to comply with legal and professional obligations; blatantly false submissions; collusion between the mother’s lawyer, the police and the Independent Children's Lawyer; ignoring or not giving weight to evidence; and inconsistent reasoning process. If established on appeal brought within time, some of those matters may have provided possible grounds to have various orders set aside.

7. Indeed, the father has appealed to the Full Court in relation to a number of the judgments that he now wishes to have revised and republished. All of those appeals have been unsuccessful. On 14 April 2015, the Full Court dismissed an application by the father for leave to appeal out of time against the orders made by Johnston J on 16 September 2014. On 21 February 2017, the Full Court dismissed appeals lodged by the father against orders made by myself on 20 May 2015,and 1 March 2016 and by Johnston J on 27 January 2015 and 17 February 2015. For completeness, I record that the Full Court on 14 April 2015 also dismissed an application by the father for leave to appeal out of time against orders made by Rees J on 7 June 2013 and dismissed an appeal on orders made by myself on 6 April 2016.

8. In relation to the balance of the reasons for judgment the father seeks to have revised and republished, I have no evidence that he filed any notice of appeal in relation to those judgments and is now significantly out of time to do so.

9. The father’s written submissions do not disclose (as order 3 made 25 September 2017 required him to do) on what basis, in law, the orders that he is now seeking could be made.

10. This court has power to correct an order. Rule 17.02(1) Family Law Rules provide:

    The court may at any time vary ….an order, if:

    (e) it does not reflect the intention of the court;

    (g) there is a clerical mistake in the order;

    (h) there is an error arising in the order from an accidental slip or omission.

11. Here, the father’s application is not to vary the orders (although, inferentially, if the reasons are rewritten differently presumably that is the father’s ultimate aim), but rather he is actually seeking that the reasons for judgment be revised and republished.

12. The father’s submissions make clear that he is seeking that Justice Johnston and myself revise and republish the substance of various reasons for judgment to accord with the father’s view about how those reasons should have been written in the first place.

13. In relation to ex tempore reasons, it is permissible to edit judgments by reviewing the transcript of the reasons and modifying them if there was some infelicity of expression. Grammar and style may be edited. A fuller explanation could be given. What is impermissible, however, are changes of substance (see Beazley JA in Todorovic v Moussa (2001) 53 NSWLR 463 at [41] – [47]; Spencer v Bamber [2012] NSWCA 274 at [139] – [141] and Bar-Mordecai v Rotman [2000] NSWCA 123 at [193]).

14. In some unusual circumstances, ex tempore reasons can be altered “where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say” (see [142] Spencer v Bamber [2012] NSWCA 274). There is no bright line between when an alteration to reasons is simply a matter of improving the manner of expression and explanation, and one which is of substance and is adding material that could not objectively be thought to have been in the judge’s mind but not expressed at the time the ex tempore reasons were being delivered.

15. There is a significantly reduced ability to alter reasons for judgment which have been delivered in writing after the judgment has been reserved at the end of the hearing. The reasons that I delivered on 1 March 2016 were reserved. Usually upon the delivery of written reasons, the court is functus officio in respect of that application. I am unaware as to whether or not any or all of the reasons of Johnston J, which the father seeks to have him revise and republish, were reserved or ex tempore.

16. The father does not particularise which paragraphs of particular judgments he suggests be reworded or what that rewording should be.

17. No submission of the father asserts that either Johnston J or I said something in reasons that we did not mean to say, or did not say something in our reasons which we meant to say.

18. The father has either unsuccessfully appealed or not appealed the relevant orders, some of which go back more than four years.

19. Accordingly, applications 2 and 3 of the father’s Application in a Case filed 11 September 2017 shall be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 28 May 2018

Associate: 

Date:  28.5.18