DICKENS & DICKENS - [2017] FamCA 572

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS

[2017] FamCA 572

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the single expert to answer questions to clarify his report – Where answering those questions would involve the single expert in an unreasonable amount of work – Where the requirement for the single expert and the father’s treating psychologist to confer before giving evidence is dispensed with and an order is made for the single expert and the father’s treating psychologist to give evidence concurrently – Where the father’s application is dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the Independent Children’s Lawyer to pay any fees associated with the single expert answering additional questions posed by the father or in the alternative for the single expert not to be paid for that exercise – Application for the single expert to refund Legal Aid the full fee paid to him regarding his report –– Where there is no basis established for such orders.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the single expert report not to be relied upon – Where no basis is established for the single expert report to be wholly excluded from the evidence.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the discharge of the Independent Children’s Lawyer and for no replacement Independent Children’s Lawyer to be appointed – Where part of the foundation for that application relies on the father’s own action in commencing civil litigation against the Independent Children’s Lawyer – Where the mere existence of civil litigation forms no basis for the granting of the father’s application – Where there is no basis for the Independent Children’s lawyer to be removed for actual or perceived bias.

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

APPLICANT:

Mr Dickens

RESPONDENT:

Ms Dickens

INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan

FILE NUMBER:

SYC

739

2010

DATE DELIVERED:

3 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

26 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Father in person

SOLICITOR FOR THE RESPONDENT:

Mother in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Moylan Family Law

Orders

(Made 26 July 2017)

The Application in a Case filed by the father on 25 May 2017 is dismissed. I reserve my reasons for doing so

…..

….. any requirement that Dr U and Dr II confer before giving evidence is dispensed with and I reserve my reasons.

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…

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 [2017] FamCA 572
Case: [2017] FamCA 572
Decision Date: 3 August 2017

CaseChat Overview and Summary

In the matter of *Dickens & Dickens*, the father applied to the court seeking various orders concerning the evidence of a single expert, the Independent Children's Lawyer (ICL), and the expert's fees. The proceedings were before Watts J in the Family Court of Australia.

The primary legal issues before the court were whether the single expert should be required to answer additional questions posed by the father, which would involve a significant amount of work; whether the ICL should bear the costs of these additional questions or if the single expert should not be paid for that work; whether the single expert should refund fees paid by Legal Aid; whether the single expert's report should be excluded from evidence; and whether the ICL should be discharged and not replaced, particularly in light of civil litigation commenced by the father against the ICL.

Watts J dismissed the father's application. The court found no basis for requiring the single expert to answer the additional questions, noting the unreasonable amount of work involved. Similarly, there was no established basis for ordering the ICL to pay for these additional questions or for the single expert to refund fees to Legal Aid. The court also determined that the single expert's report could not be wholly excluded from evidence. Furthermore, the mere existence of civil litigation between the father and the ICL did not, in itself, provide a foundation for discharging the ICL or establishing actual or perceived bias. The court also dispensed with any requirement for the single expert and the father's treating psychologist to confer before giving evidence.

Orders

Orders of the court

(Made 26 July 2017)

The Application in a Case filed by the father on 25 May 2017 is dismissed. I reserve my reasons for doing so

…..

….. any requirement that Dr U and Dr II confer before giving evidence is dispensed with and I reserve my reasons.

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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