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 of 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

1. 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.

2. 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

1. The father has two Applications in a Case that are listed before me today.

2. 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. 

3. 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.

4. The second application filed on 14 April 2016 seeks an order that a decision made on 12 April 2016 by Registrar Campbell refusing the father’s request to issue a subpoena lodged on 12 April 2016, be set aside.  A copy of that subpoena is annexed to the application.  There is no other supporting evidence and there need not be in relation to the review application.

5. The mother and the Independent Children's Lawyer oppose all the orders that the father is seeking today, although as I will mention, the Independent Children's Lawyer suggested there might be a practical reason for the delay in the preparation of the Chapter 15 report.

6. The Family Law Rules 2004 (Cth) (“the Rules”) as they apply to applications in a case provide in rule 5.02 that:

   5.02(1) A party who applies for an interim ... order in ... an Application in a Case, must at the same time file an affidavit stating the facts relied on in support of the orders sought.

7. That rule, as I have said during submissions, does not apply to an application in a case which seeks a review of a Registrar’s decision. 

8. Pursuant to rule 5.09(a) of the Rules, in interim hearings, evidence of the party is confined to one affidavit, and rule 15.06 provides that an affidavit filed with an application may be relied upon in evidence only for the purpose of the application for which it is filed.

9. To the extent the father has made reference to any other material, affidavits or documents, unless they have been properly attached or exhibited to the one affidavit that is in support of the current application in a case, and properly served on the mother and the Independent Children's Lawyer , the father may not rely upon them at this hearing. 

10. Dealing with the application filed on 11 April 2016, the father firstly seeks a stay of the order that I made on 20 May 2015, which dismissed his application that I disqualify myself.  The supporting affidavit does not attach any copy of the notice of appeal in relation to that order.  My reasons for making that order are set out in paragraphs 9 to 18 of the reasons published on 1 March 2016. 

11. The father’s affidavit from about paragraphs 4 to 39, which are primarily in the nature of submissions rather than evidence, seems to mainly deal with complaints and concerns the father has about things that may have happened or not happened after the order was made dismissing the father’s application that I disqualify myself.  Paragraph 8 of the father’s affidavit makes reference to something that happened at the hearing on 22 April 2015, which I assume forms the basis of the father’s appeal, but I’m unable to say for sure.

12. There is nothing in paragraph 8 that would indicate to me that the appeal was arguable.  The onus of establishing a proper basis for a stay is on the father, and the mother is entitled to presume the judgment is correct.  The mere filing of an appeal is insufficient to grant a stay.  Additionally, it’s unclear to me as to how granting a stay of an order dismissing the husband’s application that I disqualify myself would change anything.  The proceedings would remain in my docket.  I would remain the trial judge.  Consequently, not granting the husband’s stay would not render the father’s appeal nugatory.  For those reasons, the application for a stay of order 1 made 20 May 2015 is dismissed. 

13. Next, the father seeks to stay order 2 made 20 May 2015.  That was an order refusing an application on 20 May 2015 by the father for an adjournment.  The father, in effect, wanted the proceedings put on hold until all extant appeals to the Full Court and to the High Court had been dealt with.  I reached the view that there was no reason why an extended adjournment would be appropriate and in the best interests of the children.  The mother and Independent Children's Lawyer urged me to try and move the matter forward towards final resolution and they asked me to do that by ordering an expert report and determining the issue as to who should prepare it. They have done that again today.

14. Apparently, the father has appealed my decision not to adjourn the proceedings generally until all appeals against interim orders are finalised, but, again, I do not have a copy of the appeal.  The father sets out in his submissions from paragraph 40 to 44 of his 11 April 2016 affidavit and has made further oral submissions today.  I’m unable to make any preliminary assessment of the strength of any proposed appeal against an order refusing a general adjournment of the case based on what is in the father’s affidavit of 11 April 2016, excluding any reference to prior affidavit material.

15. Whilst the father might argue that a refusal of stay would render his appeal against the order dismissing his application for an extended adjournment nugatory, that’s not a decisive factor in the context of this application.  I am told that the appeal might possibly be dealt with by way of hearing by the Full Court in August 2016.  That doesn’t necessarily mean that the Court will deliver themselves of their judgment at that time, although, hopefully, they might.  I’m unaware of what the situation is in relation to the High Court appeals. I haven’t been told anything about them today, so I don’t know one way or the other where they’re up to.

16. Application 2 of the application filed by the father on 11 April 2016 will be dismissed based upon me weighing the interests of the children and the wish of the mother and the Independent Children's Lawyer to attempt to move the matter forward and not adjourn it generally. 

17. The father next seeks a stay of the orders I made on 1 March 2016.  Order 1 and 2 requested Dr U to prepare a Chapter 15 expert report and made a consequential order that the Independent Children's Lawyer provide the expert with a brief of all relevant documents.  Order 3 dismissed the father’s application that I discharge the Independent Children's Lawyer.

18. Again, I haven’t been provided with a notice of appeal, but the father in paragraphs 45 to 70 of his affidavit of 11 April seems to set out the arguments which he wishes to put to the Full Court in relation to the decision.  Without seeing the notice of appeal, I’m unable to make any preliminary assessment of the strength of the father’s appeal.

19. The Independent Children's Lawyer informed me that it may well be that Dr U’s appointment for interviews wouldn’t be until some time after August 2016. If that is so, if I stay the order and we wait for the Full Court to determine the appeal, then any appointments for interviews for the report in the second half of this year after August would be moved backwards in all probability by quite a number of months.

20. Not granting the stay doesn’t necessarily, in my view, render the father’s appeal nugatory.  The interview and report process can still take place.  If the father is successful in the Full Court, then it would probably mean that Dr U’s evidence wouldn’t be available at a final hearing and that another report process may or may not have to be considered at that time.  But given that the order that I have made is presumed to be correct until it is otherwise held not to be correct by the Full Court, and given the fact that the mother and the Independent Children's Lawyer both urge me to get on with this case, I’m not of the view that it’s in the best interests of the children to stay this order and, accordingly, I will dismiss the father’s application in orders 1 and 2 sought in his application of 11 April 2016.

21. The father makes an application for a stay of order 3 of 1 March 2016.  That is an application for a stay of an order dismissing the father’s application for a discharge of the order appointing the Independent Children's Lawyer. Again, I don’t have a copy of the notice of appeal.  Paragraphs 71 to 108 give some indication as to what submissions the father wishes to make to the Full Court.  The father also relies on additional material in his affidavit of 28 April 2016.  Upon a reading of all that material, I’m unable to discern any arguable case that would lead the Full Court to interfere with the order that I made.

22. In any event, granting a stay of the order dismissing the application for removal of the Independent Children's Lawyer does not remove the Independent Children's Lawyer. The Independent Children's Lawyer remains. The father indicated during submissions that he understood that that was the case.  He didn’t, however, tell me why it was that he was continuing to pursue the application.  Consequently, refusing to make the order sought by the father does not render the father’s appeal nugatory.  The mother and the Independent Children's Lawyer are entitled to presume the judgment is correct. Accordingly, I dismiss the father’s application to stay order 3 made on 1 March 2016.

23. On 14 April 2016, the father filed an application that a decision made by the docket registrar, Registrar Campbell, on 12 April 2016 refusing the father’s request to issue the subpoena or a subpoena be set aside.  The father wishes to issue subpoenas against Detective Senior Constable DD and Inspector EE.  The subpoenas are not for production of documents, but rather for those two serving police officers - I assume they’re still serving police officers – to attend a courtroom to be cross-examined by the father.  The father seems to assert that he has got a right to use such a process to gather evidence for possible use at an interim hearing, or to actually do this during an interim hearing.

24. So far as this evidence is concerned, I infer that the Registrar has concluded that in the process of him conducting an interim hearing, which except in exceptional circumstances are normally conducted on the papers, that he wouldn’t be assisted by hearing cross-examination of the police officers in the context of that confined application.  In the context of the final hearing, there is no cogent reason in the circumstances of this case to depart from the normal procedures adopted in a parenting hearing pursuant to Division 12A, Part VII of the Family Law Act1975 (Cth) (“the Act”).

25. There has been a first day of the hearing.  The Chapter 15 expert report has been ordered.  After that report is prepared, the matter will come back to me for consideration of what issues or events need findings or determinations.  Once those issues and events are identified, there will be a consideration about what evidence is required to put to the court for the court to be in a position to make relevant findings and determinations.  Necessary witnesses will be identified and the manner in which they will give their evidence will also be determined by the Court. 

26. It’s a duty of the Court to give directions and make orders about matters in relation to the manner in which the parties are to present evidence and to give directions and make orders about who is to give evidence in relation to each of the remaining issues, and to give directions and make orders about how particular evidence is to be given (see s 69ZX(1)(a), (b) and (c) of the Act). At a future court event there will be consideration given as to whether or not the two police officers would be called to give evidence during the final stage of the hearing.

27. I do not accept the father’s submissions that it’s appropriate at this point in the case to allow him to cross-examine those witnesses outside the process of the final hearing that I have described.  Accordingly, I dismiss the father’s application to set aside Registrar Campbell’s decision made on 12 April 2016 to refuse the father’s request to issue subpoenas.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 4 May 2016.

Associate: 

Date:  16.5.2016