DICKENS & DICKENS - [2019] FamCAFC 150

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS

[2019] FamCAFC 150

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR REVIEW OF REGISTRAR'S DECISION – Where the Registrar rejected an Application in an Appeal for filing as an abuse of process – Application in an appeal allowed in part.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PRACTICE AND PROCEDURE – Subpoenas – Where the applicant seeks leave to issue subpoenas in preparation of an appeal – Where documents previously produced to the Court were mistakenly destroyed – Where the applicant seeks to reconstruct exhibits and subpoena parties to reproduce those documents to the Court – Court directed to notify the recipients who previously produced documents to reproduce those documents - Appellant granted leave to inspect those documents. Appellant denied leave to copy documents.

Family Law Act 1975 (Cth) s 68LA

Family Law Rules 2004 (Cth) rr 15.30(2), 24.10, 22.40

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

APPELLANT:

Mr Dickens

RESPONDENT:

Ms Dickens

INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan

FILE NUMBER:

SYC

739

2010

APPEAL NUMBER:

2019

DATE DELIVERED:

5 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

3 September 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

20 December 2018

LOWER COURT MNC:

[2018] FamCA 1109

REPRESENTATION

THE APPELLANT:

In Person

THE RESPONDENT:

In person by telephone

THE INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan by telephone

Orders

NOTATIONS:

The court notes that documents produced pursuant to subpoenas and the trial exhibits in this matter have inadvertently been destroyed notwithstanding the filing of an appeal against the orders of Watts J made on 20 December 2018.
The court will request that the Department of Community Services and the children’s primary school again produce the subpoenaed documents and the court will request that the NSW Police Department produce the following documents previously produced to the court:
(a)COPS entry E… dated 15 November 2013;
(b)transcript of the recorded interview with Mr Levine and the accompanying DVD; and
(c) transcript of the recorded interview with the child C and the accompanying DVD.

IT IS ORDERED:

The applicant have leave to inspect documents produced by the NSW Department of Community Services, the children’s school and the New South Wales Police Department.
Leave to photocopy all documents and DVDs is refused.
Having inspected the documents produced by the NSW Department of Community Services and the NSW Police Department, the applicant shall identify to the Appeals Registrar, the Respondent and the Independent Children’s Lawyer those of the documents which he intends to seek leave to adduce on the appeal…

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.

Continue reading DICKENS & DICKENS

Details

AGLC: DICKENS & DICKENS [2019] FamCAFC 150
Case: [2019] FamCAFC 150
Decision Date: 5 September 2019

CaseChat Overview and Summary

In the Family Court of Australia, the case of Dickens & Dickens involved an appeal against a decision made by Watts J on 20 December 2018. The appellant sought various procedural orders in preparation for the appeal, including the issuance of subpoenas to reconstruct exhibits and subpoena parties to reproduce certain documents to the Court. The appeal arose after documents previously produced to the Court were mistakenly destroyed, necessitating their reconstruction.

The legal issues before the court included whether the appellant should be granted leave to issue subpoenas to reconstruct the destroyed documents and subpoena the relevant parties to reproduce those documents to the Court. The court had to consider the necessity of these subpoenas in light of the destroyed documents and whether the appellant should be granted leave to inspect and potentially copy the documents.

In its decision, the court allowed the application in an appeal in part. It directed the Department of Community Services, the children’s primary school, and the New South Wales Police Department to reproduce the subpoenaed documents and ordered that these documents be available for the Full Court at the appeal hearing. The court granted the appellant leave to inspect the documents produced by these departments but refused leave to copy the documents. The court also specified that any document the appellant intended to adduce on the appeal must be identified in an affidavit filed no later than 4pm on Tuesday 17 September 2019.

The final orders of the court included granting the appellant leave to inspect the documents produced by the NSW Department of Community Services, the children’s school, and the New South Wales Police Department. It denied leave to photocopy all documents and DVDs. The Appeals Registrar was directed to have specific copies of the documents available for the Full Court at the appeal hearing. The application in an appeal filed on 23 July 2019 was otherwise dismissed.

Orders

Orders of the court

NOTATIONS:

The court notes that documents produced pursuant to subpoenas and the trial exhibits in this matter have inadvertently been destroyed notwithstanding the filing of an appeal against the orders of Watts J made on 20 December 2018.

The court will request that the Department of Community Services and the children’s primary school again produce the subpoenaed documents and the court will request that the NSW Police Department produce the following documents previously produced to the court:

(a) COPS entry E… dated 15 November 2013;

(b) transcript of the recorded interview with Mr Levine and the accompanying DVD; and

IT IS ORDERED:

The applicant have leave to inspect documents produced by the NSW Department of Community Services, the children’s school and the New South Wales Police Department.

Leave to photocopy all documents and DVDs is refused.

Having inspected the documents produced by the NSW Department of Community Services and the NSW Police Department, the applicant shall identify to the Appeals Registrar, the Respondent and the Independent Children’s Lawyer those of the documents which he intends to seek leave to adduce on the appeal and the Appeals Registrar will have copies of those documents available for the Full Court at the appeal hearing.

The Appeals Registrar to have copies of the documents comprising Exhibits 82, 83 and 84 available for the Full Court for the appeal hearing.

Any document produced in relation to which the applicant intends to seek leave to adduce on the appeal other than that to which order (5) relates must be identified by him in the affidavit in support of the application and filed and served on the respondent and the Independent Children’s Lawyer no later than 4pm on Tuesday 17 September 2019.

The application in an appeal filed 23 July 2019 is otherwise dismissed.

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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