Dickens & Dickens (No 2) - [2016] FamCA 361

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS (NO 2)

[2016] FamCA 361

FAMILY LAW – CHILDREN – Interim – Where the father seeks a stay of the operation and enforcement of orders until the appeals are dealt with – Where the father seeks an order that a decision to refuse his request for a subpoena be set aside – Where the mother and the Independent Children’s Lawyer oppose the orders sought by the father – Where not granting the stay does not render nugatory the appeals against refusal to disqualify and refusal to remove the Independent Children's Lawyer – Where it is not in the best interests of the children to grant a stay of the order for the expert’s report– Where it is not appropriate for the father to cross-examine witnesses outside the process of the final hearing – Where the father’s two applications in a case are dismissed.

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:

4 May 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

4 May 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

SOLICITOR FOR INDEPENDENT CHILDREN'S LAWYER

Moylan Family Lawyers

Orders

That the application for orders in the father’s Application in a Case filed on 11 April 2016 for a stay of the orders made 20 May 2015 and 1 March 2016 be dismissed.
The application in a case filed by the father on 14 April 2016 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 739 of 2010

Mr Dickens

Applicant

And

Ms Dickens

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The father has two Applications in a Case that are listed before me today.
The first was filed on 11 April 2016. The applicant seeks an order that the operation and enforcement of orders 1 and 2 of the orders which I made on 20 May 2015 be stayed until the appeals and the appeal process are fully dealt with. It also seeks an order that the operation and enforcement of all orders made on 1 March 2016 be stayed until the appeal and the appeal is process is fully dealt with.
The first application is supported by an affidavit that the father filed on 11 April 2016, together with paragraphs 7 to 9 and 11 of an affidavit filed by the father on 28 April 2016, which I allowed him to rely upon on the basis that he wished to refer to matters that had happened after he had filed the affidavit in support of his application on 11 April 2016.
The second application filed on 14 April…

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 (No 2)

Details

AGLC: Dickens & Dickens (No 2) [2016] FamCA 361
Case: [2016] FamCA 361
Decision Date: 4 May 2016

CaseChat Overview and Summary

In the matter of *Dickens & Dickens (No 2)*, the father sought a stay of the operation and enforcement of certain orders made on 20 May 2015 and 1 March 2016, and also sought to set aside a decision refusing his request for a subpoena. The mother and the Independent Children’s Lawyer opposed these applications. The proceedings were heard by Watts J.

The primary legal issues before the court were whether to grant a stay of the existing orders, thereby preventing their enforcement pending the determination of appeals, and whether to set aside the refusal of the father's request for a subpoena. The court also considered whether granting a stay would render the appeals nugatory, whether it was in the best interests of the children to stay an order for an expert's report, and whether it was appropriate for the father to cross-examine witnesses outside the framework of the final hearing.

Watts J reasoned that a stay of the orders would not render the appeals nugatory, nor was it in the best interests of the children to grant a stay of the order for the expert's report. His Honour also determined that it was not appropriate for the father to pursue cross-examination of witnesses outside the established process of the final hearing. Consequently, the father's applications were dismissed.

The court ordered that the father's application for a stay of the orders made on 20 May 2015 and 1 March 2016 be dismissed. Further, the father's application filed on 14 April 2016 was also dismissed.

Orders

Orders of the court

That the application for orders in the father’s Application in a Case filed on 11 April 2016 for a stay of the orders made 20 May 2015 and 1 March 2016 be dismissed.

The application in a case filed by the father on 14 April 2016 be 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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