Dickens & Dickens (No 3)

[2016] FamCA 771

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS (NO 3) [2016] FamCA 771

FAMILY LAW – INTERIM

APPLICANT: Mr Dickens

RESPONDENT: Ms Dickens

INDEPENDENT CHILDREN’S LAWYER: Mr Moylan

FILE NUMBER: SYC 739 of 2010

DATE DELIVERED: 5 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 5 September 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Father in person

SOLICITOR FOR THE RESPONDENT: Mother in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Moylan Family Law

Orders

1. The Application in a Case filed by the father on 9 May 2016 be dismissed.

2. Liberty granted to the Independent Children's Lawyer to relist the matter before me on 7 days’ notice should he need any further direction in relation to the preparation of the expert report.

3. The listing of any further application filed in these proceedings be referred to my chambers for the consideration of a listing before myself if I am reasonably available.

4. Today’s costs of the Independent Children's Lawyer be reserved.

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 3) 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)

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. On 9 May, the father filed an application in a case.  It was initially listed in July but then referred to me for consideration given that this matter is in my docket for the completion of a final hearing.  The application seeks the following orders:

   (1)That orders 1 and 2 made on 20 May 2015 by Watts J be made redundant;

   (2)That orders 1, 2 and 3 made on 1 March 2016 by Watts J be made redundant;

   (3)Dr U be excluded from having any involvement in this case;

   (4)The family consultant, Ms HH, be appointed to prepare a family report;

   (5)that the independent children’s lawyer, Mr Paddy Moylan, be discharged from this case;

   (6)that the matter proceed and be finalised without an independent children’s lawyer;

   (7)that this application be listed at short notice;

   (8)that reasons for judgment be provided.

2. The father, in support of that application, filed an affidavit on 9 May 2016. Rule 5.09(a) of the Family Law Rules provides that, in any interim or procedural application, the parties are allowed to file one affidavit. Rule 15.12 provides that any document to be used in connection with the proceedings should be attached to the affidavit up to a certain thickness and, if it cannot be attached, the material is to be exhibited. The application proceeds on the basis of the evidence that was filed in support of the application.

3. Orders 1, 2, 3 and 4 as sought in the application relate to orders which are the subject of an appeal to the Full Court by the father.  The father has indicated to me today that that hearing is listed on the 29^th of this month.  Given that there is no new relevant material that has been filed in support of those applications, it is vexatious and an abuse of process for the father to have filed applications for these orders and it is on that basis that I would dismiss the applications.  There is also the additional basis that there is no evidence to support the applications.

4. In relation to orders 5 and 6, the applications relate to the discharge of the order appointing the independent children’s lawyer.  That is an identical application to an application which the father has previously made before me unsuccessfully and which was dealt with by an order dismissing the father’s application to discharge the Independent Children's Lawyer. This order is also the subject of an appeal to the Full Court which will be heard on 29 September 2016. 

5. The new material on the father’s affidavit, that is, the material that post-dates 20 May 2015, relates to what on its face would be inappropriate behaviour if proven to be true by the mother’s partner and by the children themselves. That evidence may be relevant in the final hearing.  It is not, however, apparent to me how it could be relevant to the applications that are before me today.  None of the material in those paragraphs is relevant to the application to discharge the independent children’s lawyer or relevant to having Dr U excluded from involvement in the case. Again, applications for orders 5 and 6 are vexatious and an abuse of process.

6. Accordingly, I dismiss the father’s application filed on 9 May 2016.

I certify that the preceding six (6) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 5 September 2016.

Associate: 

Date:  8.9.16