Dickens & Dickens (No 2) - [2019] FamCAFC 201

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS (NO. 2)

[2019] FamCAFC 201

FAMILY LAW – APPEAL – DISQUALIFICATION – Where the appellant seeks that a member of the Full Court be disqualified from further hearing this appeal on the basis of apprehended bias – Where the test for apprehended bias is not satisfied – Where the appellant has not provided any evidence which demonstrates apprehended bias – Application dismissed.

Family Law Act 1975 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342; [1986] HCA 39

APPELLANT:

Mr Dickens

RESPONDENT:

Ms Dickens

INDEPENDENT CHILDREN’S LAWYER:

Moylan Family Lawyers

FILE NUMBER:

SYC

739

2010

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

6 November 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland J

HEARING DATE:

23 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

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Messner

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Moylan Family Lawyers

Order made 23 September 2019

The appellant father’s oral application made on 23 September 2019 for the recusal of Justice Strickland be 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 (No 2) 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 10 of 2019
File Number: SYC 739 of 2010

Mr Dickens

Appellant

And

Ms Dickens

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 23 September 2019, whilst the Full Court was hearing an Amended Notice of Appeal filed by Mr Dickens (“the father”) on 10 July 2019 seeking that final parenting orders be set aside, the father made an oral application that I disqualify myself from further hearing the appeal, along with one of the other judges on the bench, namely Ainslie-Wallace J.
After hearing submissions from the father, I dismissed the application, and indicated that I would provide my reasons at a later date. I now provide those reasons as follows.
The father initially submitted that I should disqualify myself for the same reasons he submitted as to why Ainslie-Wallace J should be disqualified. However, the submissions in relation to Ainslie-Wallace J primarily went to her Honour’s reasons for judgment delivered in this matter on 5…

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) [2019] FamCAFC 201
Case: [2019] FamCAFC 201
Decision Date: 6 November 2019

CaseChat Overview and Summary

In the Family Court of Australia, the case of Dickens & Dickens (No 2) involved an appeal by the father, who sought the recusal of Justice Strickland from further involvement in the appeal on the grounds of apprehended bias. The case pertains to ongoing family law disputes between the parties. The father argued that Justice Strickland should be disqualified from hearing the appeal because of an apprehension of bias due to previous interactions and decisions made by Justice Strickland in the matter.

The primary legal issue before the court was whether the appellant had demonstrated a sufficient basis to justify the disqualification of Justice Strickland on the grounds of apprehended bias. The court examined the evidence and arguments presented by the appellant to determine if there was any material that substantiated the claim of bias. The test for apprehended bias requires a showing that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions the judge needed to decide.

The court found that the appellant had not provided any evidence that met the requisite standard for establishing apprehended bias. The arguments presented by the appellant were considered insufficient to demonstrate that Justice Strickland might not be impartial. The court concluded that there was no basis upon which to disqualify Justice Strickland from further hearing the appeal. The application for recusal was therefore dismissed.

In conclusion, the court dismissed the father's application for Justice Strickland's recusal and ruled that no grounds for disqualifying the judge from the appeal had been established. The order was made on 23 September 2019, formally dismissing the father's application for the recusal of Justice Strickland.

Orders

Orders of the court

Order made 23 September 2019

The appellant father’s oral application made on 23 September 2019 for the recusal of Justice Strickland be 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 (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.