Dickens and Dickens and Anor - [2015] FamCA 255

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS & ANOR

[2015] FamCA 255

FAMILY LAW – COSTS – Where the applicant withdrew his contravention application – Where the respondent incurred significant costs in relation to the bringing of the contravention application – Where the respondent seeks indemnity costs – Where the applicant seeks that the costs of the proceedings are reserved – Consideration of s 117 of the Family Law Act 1975 (Cth) – Where the applicant was wholly unsuccessful in the proceedings – Where the Court was of the opinion that the circumstances justified making an order for costs in favour of the respondent – Where the circumstances of the case did not justify making an indemnity costs order – Applicant ordered to pay the respondent’s costs in relation to his withdrawn contravention application on a party and party basis.

Family Law Act 1975 (Cth) – s 117(1), (2) and (2A)

Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

APPLICANT:

Mr Dickens

1^STRESPONDENT:

Ms Dickens

2^ND RESPONDENT:

Mr D

INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan

FILE NUMBER:

SYC

739

2010

DATE DELIVERED:

27 January 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

27 January 2015

REPRESENTATION

FOR THE APPLICANT:

Mr Dickens, father in person

SOLICITOR FOR THE 1^ST RESPONDENT:

Ms Kensell, solicitor of Hamish Cumming Family Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT:

Mr Kertesz, solicitor Delaneys Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan, solicitor of Moylan Family Lawyers

Orders

That it is noted that in relation to the subpoena served on the Commissioner of the New South Wales Police that the father has indicated that he is satisfied with the production of documents offered by the Police in Court today.
That all parties are given leave to inspect the documents produced by the New South Wales Police today.
That all parties are given leave to inspect all bundles of documents produced during 2014 by the New South Wales Police.
That the father is given leave to withdraw his Contravention Application filed on 15 October 2013 and such application stands withdrawn and dismissed and removed from the Court’s list of active cases.
That the father pay the costs of Mr D in relation to his withdrawn Contravention Application filed by the father on 15 October 2013 other than in relation to the actual hearing on 28 January 2014 as agreed or assessed on a party/party basis.
That it is noted that the children have been seeing Mr Q and the mother has also attended on Mr Q.
That the father’s Application in a Case filed on 27 November 2014 is adjourned to a date to be advised by arrangement with Johnston J’s Associate.
That the question of any sanctions against Ms Dickens stand over to await the outcome of the outstanding application against Mr D.
That it is noted that the Court records a denial by Mr D that he has contravened an order under the

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

Case: [2015] FamCA 255
Decision Date: 27 January 2015

CaseChat Overview and Summary

In the matter of *Dickens and Dickens and Anor*, Johnston J considered applications and a subpoena in proceedings involving the father, the mother (Ms Dickens), and Mr D. The dispute concerned a contravention application filed by the father against Mr D, as well as other applications and a subpoena issued to the Commissioner of the New South Wales Police.

The court was required to determine the disposition of the father's contravention application against Mr D, the production and inspection of documents by the New South Wales Police, and the future conduct of other outstanding applications and potential sanctions against Ms Dickens. The court also noted Mr D's denial of contravening a Family Law Act 1975 order concerning the discipline of a child.

Johnston J noted that the father was satisfied with the documents produced by the New South Wales Police, granting all parties leave to inspect these and prior bundles of documents. The father was granted leave to withdraw his contravention application against Mr D, which was subsequently dismissed. The father was ordered to pay Mr D's costs in relation to this withdrawn application, excluding the hearing on 28 January 2014. The court also noted that the children had been seeing Mr Q, and the mother had attended sessions with Mr Q. The father's application filed on 27 November 2014 was adjourned, and the question of sanctions against Ms Dickens was deferred pending the outcome of the outstanding application against Mr D. Mr D provided an undertaking through his solicitor to appear at court on the next occasion. The proceedings were adjourned part heard to 17 February 2015.

Orders

Orders of the court

That it is noted that in relation to the subpoena served on the Commissioner of the New South Wales Police that the father has indicated that he is satisfied with the production of documents offered by the Police in Court today.

That all parties are given leave to inspect the documents produced by the New South Wales Police today.

That all parties are given leave to inspect all bundles of documents produced during 2014 by the New South Wales Police.

That the father is given leave to withdraw his Contravention Application filed on 15 October 2013 and such application stands withdrawn and dismissed and removed from the Court’s list of active cases.

That the father pay the costs of Mr D in relation to his withdrawn Contravention Application filed by the father on 15 October 2013 other than in relation to the actual hearing on 28 January 2014 as agreed or assessed on a party/party basis.

That it is noted that the children have been seeing Mr Q and the mother has also attended on Mr Q.

That the father’s Application in a Case filed on 27 November 2014 is adjourned to a date to be advised by arrangement with Johnston J’s Associate.

That the question of any sanctions against Ms Dickens stand over to await the outcome of the outstanding application against Mr D.

That it is noted that the Court records a denial by Mr D that he has contravened an order under the Family Law Act 1975 without reasonable excuse in that on 14 March 2014 he disciplined and punished the child C in breach of paragraph 3 of his undertaking to the Court on 8 October 2012.

10.

That the Court notes Mr D’s undertaking through his solicitor to appear at Court on the next occasion.

11.

That these proceedings are adjourned part heard to 10.00 am on 17 February 2015.

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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