Dickens & Dickens (No. 3) - [2019] FamCAFC 202

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS (NO. 3)

[2019] FamCAFC 202

FAMILY LAW – APPEAL – RECUSAL – Where the appellant made an oral application that her Honour recuse herself from hearing this appeal on the basis of apprehended bias – Where the appellant relies on her Honour hearing previous appeals and applications in this matter and contends that her Honour did not consider complaints made by the father –Where the test for apprehended bias is not made out – Application dismissed.

Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24
Dickens & Dickens [2019] FamCAFC 150
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
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:

Moylan Family Lawyers

FILE NUMBER:

SYC

739

2010

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

7 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace 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 Ainslie-Wallace 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. 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).

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

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 3 September 2019 in the course of hearing an application to review a decision of the Appeal Registrar (“Registrar”), the appellant 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 I was a member of a Full Court bench which dismissed an appeal brought by the appellant against orders of Johnston J.
The appellant argued that having dismissed the application and the…

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. 3)

Details

AGLC: Dickens & Dickens (No. 3) [2019] FamCAFC 202
Case: [2019] FamCAFC 202
Decision Date: 7 November 2019

CaseChat Overview and Summary

The case of Dickens & Dickens (No. 3) involved an appeal by the appellant, Mr Dickens, against a decision of the Family Court of Australia. The appellant sought the recusal of Justice Ainslie-Wallace, arguing that the judge had previously dismissed his applications and appeals, and had shown bias by dismissing his allegations against the Independent Children's Lawyer as "ludicrous." The appellant further claimed that the judge had not considered evidence and had made decisions that were not in the best interests of the children. The legal issues in this case centred on whether the judge's previous decisions and comments were sufficient to establish a reasonable apprehension of bias on the part of the judge.

The court considered the well-established test for apprehended bias, which requires that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. The court found that the appellant's claims did not meet the threshold for recusal. The court observed that the judge had been a member of a Full Court bench that unanimously dismissed the appellant's previous appeals, and that the comments made in relation to the Independent Children's Lawyer related to the submission made by the appellant, not the individual or their conduct. The court concluded that a fair-minded reasonable observer, understanding the context of the applications decided by the judge and the Full Court, would not apprehend that the judge would fail to bring an impartial mind to the issue to be determined in the present appeal.

In light of the above, the court dismissed the appellant's application for the recusal of Justice Ainslie-Wallace. The court certified that the reasons for judgment accurately reflected its decision. The final orders were that the appellant's oral application made on 23 September 2019 for the recusal of Justice Ainslie-Wallace be dismissed.

Orders