FAMILY COURT OF AUSTRALIA
| DICKENS & DICKENS | [2016] FamCA 115 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application for disqualification – Where no apprehended bias established – Where there is no connection between the complaint and the matter to be determined – Application for disqualification dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment – Where the father asserts that the substantive proceedings should be adjourned until after finalisation of appeals that have been filed in this matter – Where it is found to be in the best interests of the children for the matter to proceed. FAMILY LAW – PRACTICE AND PROCEDURE – Application for discharge of order appointing the Independent Children’s Lawyer – Where the father submits the Independent Children's Lawyer is not impartial or independent and is an advocate for the mother – Where there is no evidence the Independent Children's Lawyer has acted contrary to the children’s best interests – Where the father has not demonstrated that the Independent Children's Lawyer is incompetent or lacks professional objectivity – Where there is no basis for discharging the Independent Children's Lawyer on the basis of actual or perceived bias – Father’s application is dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Where the Independent Children’s Lawyer seeks an updated Chapter 15 expert report be prepared – Where the father objects to the preparation of that report by the expert previously involved in the matter – Where the father asserts that expert is not impartial and has failed to undertake his duties to the court under part 15.5 of the Family Law Rules – Where the court is satisfied that expert should prepare the report and orders are made in accordance with the Independent Children's Lawyer’s application. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Winter and French [2013] FamCAFC 75 |
| APPLICANT: | Mr Dickens |
| RESPONDENT: | Ms Dickens |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Moylan |
| FILE NUMBER: | SYC | 739 | of | 2010 |
| DATE DELIVERED: | 1 March 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 20 May 2015 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Hamish Cumming Family Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Moylan Family Lawyers |
Orders
Orders made 20 May 2015
Order 6 (an application by the father that I disqualify myself) as sought in the father’s Application in a Case filed 8 May 2015 be dismissed. I reserve my reasons for this order.
Orders 1, 2 and 3 (an application for an adjournment/stay of today’s proceedings) as sought in the father’s Application in a Case filed 8 May 2015 be dismissed. I reserve my reasons for this order.
By consent, leave is…
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- AGLC
- Dickens & Dickens [2016] FamCA 115
- Case
- [2016] FamCA 115
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether there was apprehended bias justifying the judge's disqualification, whether the substantive proceedings should be adjourned pending appeals, and whether the ICL was acting impartially and in the children's best interests. Further, the court had to consider the father's objection to the impartiality of a previously involved expert and whether that expert should prepare an updated report.
Watts J dismissed the application for disqualification, finding no apprehended bias and no connection between the complaint and the matter to be determined. The application for adjournment was also dismissed, as the court found it to be in the best interests of the children for the matter to proceed. The father’s application to discharge the ICL was dismissed due to a lack of evidence demonstrating actual or perceived bias, incompetence, or a failure to act in the children's best interests. The court was satisfied that the expert previously involved should prepare the updated report, ordering the ICL to provide the expert with relevant documents.
Orders
Orders of the court
Orders made 20 May 2015
1.
Order 6 (an application by the father that I disqualify myself) as sought in the father’s Application in a Case filed 8 May 2015 be dismissed. I reserve my reasons for this order.
2.
Orders 1, 2 and 3 (an application for an adjournment/stay of today’s proceedings) as sought in the father’s Application in a Case filed 8 May 2015 be dismissed. I reserve my reasons for this order.
3.
By consent, leave is granted for the father to make an oral application for Dr AA to be appointed as the single expert in these proceedings.
4.
I note that the father no longer presses his application for Registrar Campbell to be removed as the Docket Registrar and I accordingly dismiss order 3 as sought in the father’s Application in a Case filed 27 November 2014 and I otherwise dismiss the Application in a Case filed by the father on 27 November 2014.
5.
By consent, the words “out of time” be deleted from notation 6 of the orders made 22 April 2015.
6.
In respect of the application by the Independent Children's Lawyer and the mother for the appointment of Dr U to provide an further report in these proceedings and the father’s alternate proposal for the appointment of Dr AA, I reserve my decision.
7.
By consent, leave is given to the father to make an oral application that the order appointing the current Independent Children's Lawyer be discharged. I reserve my decision in respect of this application.
Orders
1.
Dr U is requested to prepare a report pursuant to Chapter 15 Family Law Rules 2004 (Cth) in relation to the competing parenting proposals in respect of C born … and B born … 2001 (‘the children”) and in particular to:
1.1. Update his opinion in respect of the mental status of each of the parents; and
1.2. Deal with any matter he considers relevant pursuant to s 60CC(2) and (3) of the Family Law Act 1975 (Cth).
2.
The Independent Children's Lawyer is to provide Dr U with a brief of all relevant documents.
3.
The father’s application to discharge the order appointing the Independent Children's Lawyer is dismissed.
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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