DICKENS & DICKENS
[2019] FamCAFC 150
•5 September 2019
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 | of | 2010 |
| APPEAL NUMBER: | EA | 10 | of | 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 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.
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 r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 10 of 2019
File Number: SYC 739 of 2010
| Mr Dickens |
Appellant
And
| Ms Dickens |
Respondent
and
| The Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 20 December 2018 Watts J made final parenting orders between Mr Dickens (“the applicant”) and Ms Dickens (“the respondent”) in relation to the parties’ two children aged 17 and 15 which, inter alia, discharged all previous parenting orders and ordered that the children live with the mother and that she have sole parental responsibility for them. His Honour made no 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 wish.
By an Amended Notice of Appeal (EA 10 of 2019) filed on 10 June 2019 the applicant appeals his Honour’s orders.
The applicant attempted to file an Application in an Appeal dated 27 June 2019 which was rejected for filing by the Appeals Registrar on 9 July 2019 on the grounds that it was an abuse of process. The orders sought in that application were as follows:
1.An order that the ICL be removed from appeal number EA10/2019 and this appeal proceeds without an ICL.
2.Pursuant to rule 22.34 of the Family Law Rules 2004 (FLR), the Appellant be granted leave to file subpoenas to produce to the persons named below and leave to inspect and copy the subpoenaed material produced:
a.The NSW Police Force;
b.The Department of Family and Community Services (DoFACS);
c.The children’s high school;
d.The children’s primary school;
e.The children’s secondary college; and
f.Dr [Q].
3.The appellant be granted leave to copy any subpoenaed material in case number SYC739/2010 currently stored by the Family Court.
4.If leave is required, an order that the Appellant be granted leave to issue upon the Respondent a Notice to Produce pursuant to rule 15.76 of the FLR.
5.Pursuant to rule 20.20(3)(j) of the FLR that the Appellant be granted leave to rely upon the extracts of transcripts filed electronically together with the Appeal Book on 7 June 2019.
6.Pursuant to section 69ZQ(l)(e) of the Family Law Act 1975 (FLA), electronic equipment be available in the appeal courtroom to listen the audio files and to view the DVDs and the digital photos tendered in evidence in the first instance proceedings.
7.Pursuant to rules 22.39, 1.03, 1.04, 1.07 and 1.12 of the FLR the Appellant be granted leave to adduce further evidence on appeal, and that, such further evidence be filed and served by electronic means.
8.An order that none of the judicial officers who adjudicated issues in dispute in case number SYC739/2010, or in prior appeals regarding this case, hear this application or appeal number EA10/2019.
9.An order that the Appellant be granted leave to inspect and copy the correspondence contained in court file SYC739/2010.
10. That this application be listed at short notice to avoid delays in hearing the appeal and be heard in open court.
11. An order that, in the event that appeal number EA10/2019 is not completed during the one day allocated by the procedural orders made l May 2019, the hearing of this appeal be completed the following day.
(As per the original)
Pursuant to rule 22.40 of the Family Law Rules 2004 (Cth) (“the rules”) the applicant seeks to review the Appeal Registrar’s refusal to accept the Application in an Appeal for filing. The review is a hearing de novo and it is thus unnecessary for the applicant to demonstrate error in the Appeal Registrar’s decision.
Before turning to the application to review the Appeal Registrar’s decision, it is of assistance to consider r 24.10 of the rules, the basis on which the applicant’s application was rejected for filing, namely that it was an abuse of process. This provides:
Rejection of documents
(1)A Registrar or judicial officer may reject a document filed or received for filing if the document:
…
(e) on its face, appears to the Registrar to be an abuse of process, frivolous, scandalous or vexatious;
…
The words “frivolous” and “vexatious” are not defined in the Family Law Act 1975 (Cth) (“the Act”). However, as the Full Court noted in Marsden & Winch (2013) FLC 93-560 (“Marsden & Winch”) at [79], the explanatory guide to the rules provides the following explanation of those words:
frivolous — not worthy of serious consideration, insupportable in law, disclosing no cause of action or groundless (see also vexatious).
vexatious, in relation to an application — having no reasonable prospect of success (see Section 118 of the Act for the court’s powers in relation to a vexatious case; see also frivolous).
At [148] the Full Court in Marsden & Winch noted that it appeared to be well settled that the term “‘abuse of process’ includes proceedings brought for an improper purpose or which are ‘frivolous, vexatious or oppressive’”.
Against that legal context, in my view, the application sought to be filed does not amount to an abuse of process. That is not to say that it will therefore succeed.
The Application in an Appeal
Order 8: Application for recusal
The applicant seeks an order that “none of the judicial officers who adjudicated issues in dispute in case number SYC739/2010 [the first instance hearing], or in prior appeals regarding this case, hear this application or appeal number EA 10/2019”.
Nothing in the affidavit in support of the application speaks to this ground. An application that a judge recuse her or himself from hearing a matter is serious and the applicant must set out the basis on which such an order is sought. A blanket application such as this will not be entertained.
The applicant made an oral application that I recuse myself from hearing his review of the Registrar’s decision. The basis for that application was that I had on 14 April 2015 dismissed his application for an extension of time in which to appeal orders made by Rees J and Johnston J and on 21 February 2017 was a member of a Full Court bench which dismissed an appeal brought by the applicant against orders of Johnston J.
The applicant argued that having dismissed the application and the appeal, a fair minded observer may apprehend that I would not bring an open mind to the determination of this present application.
Further, the applicant asserted that in the reasons I, in the sense that the Full Court said, that his allegations against the Independent Children's Lawyer were “ludicrous” and thus had taken a view adverse his case.
In fact, the paragraph to which the applicant refers is at [71]:[1]
… The father’s complaint about the Independent Children’s Lawyer was that he accepted the mother’s assertion and did not independently verify the correctness of the statement. In oral argument on this point, the father developed the theme to the point that he contended that it was the duty of the Independent Children’s Lawyer to check the correctness of every statement “of significance” made by either party in the proceedings. The ludicrous nature of the submission need only be set out to be demonstrated.
[1] Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24.
Clearly then the comment was about the applicant’s submission rather than his grievance with the Independent Children's Lawyer, however, even if it were, I am of the view that it is insufficient to ground a successful application for recusal.
The applicant further contended that in these two decisions I had not dealt with the evidence then before the trial court nor had I quelled the dispute but, rather my decision had perpetuated the dispute between the parties.
The law in relation to disqualification on account of apprehended bias is well settled. To found a recusal it must be established that a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question”[2] to be decided.[3] To satisfy that test, the applicant must first identify the matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue and,[4] secondly the applicant must demonstrate a logical connection between the identified matter and the possibility that the judge might depart from impartial decision making.[5]
[2]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (“Ebner”).
[3] In Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 (“Royal Guardian”) at [232] the New South Wales Court of Appeal said “that the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally”.
[4]Ebner, [8].
[5]Ebner, [8].
In Johnson v Johnson (2000) 201 CLR 488, the plurality of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492-493:
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. …
(Footnotes omitted)
Judges are called on every day to hear and determine applications, often in the same suit. That is the case here. I observe that in one of the matters which the father said had given rise to his concern, I was but one member of a bench of three who came to a unanimous decision on the application. While neither the application nor the appeal to which the father referred as foundation for his action was successful, I am comfortably satisfied that the fair minded reasonable observer understanding the context of the applications decided by me and the Full Court would not apprehend that I would fail to bring an impartial mind to the issue to be determined in the present appeal.
Thus I rejected the application to recuse myself.
Order 1: Application for removal of the Independent Children’s Lawyer
The applicant complains that the Independent Children’s Lawyer has failed to discharge his duties and obligations pursuant to s 68LA of the Act.
During the hearing before the primary judge the applicant sought leave to make an application that the Independent Children's Lawyer be discharged. That leave was refused. The applicant has appealed his Honour’s refusal. The application for this order then seeks to pre-empt the argument of this ground of appeal.
The application seeking the removal of an Independent Children's Lawyer is one which must be conducted so as to allow the evidence in support of it to be properly ventilated and in a manner which affords procedural fairness both to the Independent Children's Lawyer and the respondent mother who would, no doubt wish to be heard in relation to the application. None of those things is possible in the context of a procedural application.
Thus I refuse to entertain that order.
Orders 2, 3, and 9: Application for leave to issue subpoenas and a notice to produce together with leave to inspect and copy the correspondence contained in court file SYC 739 of 2010 and Order 7: Application to adduce further evidence
By a number of orders, the applicant seeks the production of various documents with the intention of seeking leave to adduce some of those documents as further evidence on the appeal.
It is necessary to understand that the basis on which further evidence will be received on appeal is constrained and while, ultimately it will be for the Full Court hearing the matter to determine it, the nature and identification of the documents sought in this application need to be considered in that light. In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ considered the power of this Court to admit further evidence. At page 201 their Honours observed that the exercise of the power is remedial in nature, to give the Full Court discretion to receive further evidence where “that evidence, if accepted, would demonstrate that the order under appeal is erroneous”.
However, the discretion to admit further evidence should not be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction.
Leave to issue Subpoenas:
It seems that following delivery of the primary judge’s orders and reasons and after the applicant filed his appeal, some of the documents produced to the Court pursuant to subpoenas and the trial exhibits were mistakenly and most regrettably destroyed.
I understand that the point of orders 2, 3 and 9 is to enable the applicant to reconstruct both the destroyed exhibits and to have the subpoenaed documents produced to the Court again.
The applicant’s draft Appeal Index lists a number of the trial exhibits which he proposes to bring to the Full Court’s attention on the appeal hearing. It seems that of that list save for three exhibits, the applicant has copies of the relevant documents. However, three exhibits are missing, they are:
a.COPS entry E… dated 15 November 2013 (Exhibit 82);
b.Transcript of the recorded interview with Mr Levine (Exhibit 83); and
c.Transcript of the recorded interview with the child C (Exhibit 84).
The interviews to which Exhibits 83 and 84 refer were recorded on DVDs and a transcript produced of each interview. The DVD recordings were retained but the transcripts were destroyed.
If those documents are produced again by the Police Department, the exhibits can be available to the applicant for the purpose of the appeal.
Turning then to the question of the subpoenas, the applicant seeks leave to issue subpoenas to five nominated bodies and to the court appointed expert who gave evidence in the trial. Associated with the issue of subpoenas, the applicant sought leave to inspect and copy documents produced.
Of those six nominated recipients of subpoenas, three, namely NSW Police Department, NSW Department of Family and Community Services and the children’s primary school had produced documents for the trial but those documents have been destroyed.
Given that it was the Court’s mistake that led to some of the documents produced under subpoena being destroyed, the Court will notify those three bodies and request that they produce the documents again.
However, in argument it became clear that in relation to the documents originally produced by the NSW Police Department, there was an objection to the production of some of them and documents were extracted, sealed and provided only to the primary judge. In that case, and taking into account the objection of the respondent mother and the Independent Children's Lawyer, I will limit the applicant’s access to those documents comprising the exhibits and will request the Court to seek the production by the NSW Police Department of the three identified documents which became exhibits in the trial.
Once such documents as can be produced by those three bodies are in the Court’s control, the Court will notify the applicant who can then inspect those documents.
Although the applicant sought an order that he be given leave to make copies of documents produced to the Court, I do not propose to make that order. First,
r 15.30(2) of the rules provide that parties may not make copies of documents that are child welfare records, criminal records, medical records or police records. That being the case, the applicant’s leave in relation to the documents to be produced by the NSW Department of Family Community Services and the NSW Police Department will be limited to inspection of them. Secondly, the applicant was not given leave in the trial proceedings to make copies of the documents produced under subpoena and I will therefore refuse leave to copy any documents produced.
Similarly, I do not propose to grant leave to the applicant to copy Exhibits 82, 83 and 84 which comprise documents taken from the records produced by the NSW Police Department, I will however order that on receipt of those documents, the Appeals Registrar make copies of them to be provided to the Full Court for the Appeal hearing.
Equally, those of the documents to be produced by the NSW Department of Family and Community Services in relation to which the applicant will seek leave to adduce as further evidence in the Appeal hearing, should be identified to the Appeals Registrar, the respondent and the Independent Children's Lawyer and the Appeals Registrar will make copies of those documents for the Full Court bench.
The applicant sought to issue subpoenas to two schools at which the children attended, namely TT School, Suburb J and VV School, Suburb T. No subpoenas had been issued to those schools before. The applicant contended that he wished to see what the school records said and to see whether they accord with the respondent mother’s evidence given in the trial. I decline to grant leave to issue those subpoenas because the application amounts to no more than fishing, the applicant being unable to point to any document held by the schools which would be germane to the challenges to be argued on appeal.
The applicant further seeks to issue a subpoena to the single expert, Dr Q. No subpoena had earlier been issued to the expert. The applicant said that in particular, he sought a document referred to by the expert during his cross examination, a copy of which was directed to be given to him but was not. In these circumstances I will grant leave to the applicant to issue a subpoena to the expert seeking that document only provided that the requested document is identified with precision by reference to the transcript of the proceedings.
The applicant further sought to subpoena the expert’s telephone records to check against the evidence of the mother and the expert to see whether they were giving accurate evidence as to whether the mother sought a referral from the expert to another professional. This document can have no relevance to the appeal and to seek it amounts to fishing and I decline to extend the subpoena to include that document.
The applicant sought leave to serve a Notice to Produce to the respondent mother in relation to various documents. These documents were not apparently produced during the trial but were said to be documents “referred to, mentioned or alluded to” by various witnesses during the hearing. I am unpersuaded that they are relevant to an issue to be argued in the appeal and I decline to make that order.
The applicant sought an order that he be permitted to inspect and copy any subpoenaed document held by the Court in relation to any of the hearings as between him and the respondent mother. The width and apparent lack of relevance of this application dictates that it be refused.
Finally, the applicant sought to inspect and copy correspondence on the Court file. His reason for seeking that order was that he did not know what was in the documents. No connection with the appeal was advanced and this order will not be made.
Order 5: Application for leave to rely upon the extracts of transcript filed electronically together with the Appeal Book on 7 June 2019.
On 1 May 2019 procedural orders were made which provide for the filing of the appeal books together with the relevant transcript. It is my understanding that the applicant has complied with those orders. No further order is required
Order 6: provision of electronic equipment to listen to and view evidence tendered in the first instance proceedings
Some of the exhibits sought to be relied on by the applicant in the appeal are available electronically. Those exhibits, to the extent that they are germane to a ground of appeal may be viewed by the Court. No particular order is necessary although it should not be assumed that the Court will necessarily view those exhibits during the appeal hearing.
Order 11: conduct of the appeal
The applicant seeks an order that if the appeal is not completed in the time allocated for it, it be continued on the following day.
It is not for the applicant to dictate how the Court conducts appeals. One day has been allocated for the hearing of this appeal. The applicant is required to conduct his arguments in the most efficient way possible so as to finish the matter in the time allocated.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 5 September 2019.
Associate:
Date: 5 September 2019
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