DICKENS & DICKENS - [2018] FamCA 1109

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS

[2018] FamCA 1109

FAMILY LAW – CHILDREN – Parenting – Final – Where the children are aged 15 and 17 years old – Where they have not spent time with the father for over four and five years, respectively – Where the children express clear and strong views that they do not want to spend time or speak with their father – Where there is a history of family violence and protracted litigation – Where orders are made in accordance with the children’s wishes – Where the children are to live with their mother and she have sole parental responsibility.

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings – Where the mother seeks an order pursuant to s 102QB(2)(b) of the Family Law Act 1975 (“Cth”) prohibiting the father from instituting further proceedings without the leave of the court – Where the father frequently instituted and pursued proceedings without reasonable grounds – Where an order is made in the terms sought by the mother.

Family Law Act 1975 (Cth)

Rice and Asplund (1979) FLC 90-725

APPLICANT:

Ms Dickens

RESPONDENT:

Mr Dickens

INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan

FILE NUMBER:

SYC

739

2010

DATE DELIVERED:

20 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 - 27 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Paddy Moylan Family Lawyers

Orders and Notation

All previous parenting orders are discharged.
The mother have sole parental responsibility for the children, B, born … 2001 and C, born … 2003 (“the children”).
The children live with the mother.
To avoid doubt:
(a)The mother is at liberty to solely arrange, procure and hold passports for the children and the father’s consent to the issue of passports for the children shall not be required;
(b)In the event that the children’s names are on the Airport Watchlist, the names of the children be removed from the Airport Watchlist; and
(c)The mother be at liberty to travel outside of the Commonwealth of Australia with the children.
There be no defined order for the father to spend time with the children, noting that the children are at liberty to spend time or communicate with the father as they see fit.
I note that, the Independent Children’s Lawyer will telephone the children upon the making of these orders to explain the orders and attend to any queries the children may have in relation to the orders.
The Independent Children’s Lawyer’s application for costs be dismissed.
I dispense with any rule not complied with in respect of the application by the mother and the Independent Children’s Lawyer for a vexatious proceedings order against the father.
Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), the father is prohibited from instituting proceedings for orders under…

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

AGLC: DICKENS & DICKENS [2018] FamCA 1109
Case: [2018] FamCA 1109
Decision Date: 20 December 2018

CaseChat Overview and Summary

In *Dickens & Dickens*, the Federal Circuit and Family Court of Australia considered parenting orders for two children, aged 15 and 17, who had not spent time with their father for over four and five years respectively. The children had expressed clear and strong views that they did not wish to spend time or speak with their father. The court also addressed an application by the mother for an order under section 102QB(2)(b) of the *Family Law Act 1975* (Cth) to prohibit the father from instituting further proceedings without leave, given his history of frequently initiating proceedings without reasonable grounds.

The primary legal issues before the court were whether final parenting orders should be made in accordance with the children's expressed wishes, and whether the father should be restrained from commencing further proceedings without judicial leave due to vexatious conduct. The court was required to balance the children's autonomy and well-being, particularly given their ages and expressed views, against any potential parental rights or obligations, and to consider the impact of the father's litigation history on the family law process.

Watts J reasoned that in circumstances involving older children with mature and clearly articulated views, their wishes are a significant factor in determining parenting arrangements. Given the substantial period of no contact, the history of family violence, and the protracted litigation, the court found it appropriate to make final orders reflecting the children's expressed wishes. The court also determined that the father's pattern of instituting proceedings without reasonable grounds constituted vexatious litigation, warranting the imposition of a leave requirement for any future applications.

Consequently, the court made final orders that the children were to live with their mother and that she was to have sole parental responsibility. Furthermore, an order was made pursuant to section 102QB(2)(b) of the *Family Law Act 1975* (Cth) prohibiting the father from instituting further proceedings in relation to the children without the leave of the court.

Orders