Dickens & Dickens (No 4)
[2019] FamCAFC 203
•7 November 2019
FAMILY COURT OF AUSTRALIA
| DICKENS & DICKENS (NO. 4) | [2019] FamCAFC 203 |
| FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders that the mother have sole parental responsibility and that the children live with her – Where the children are presently aged 16 and 17 – Where the children have not seen the father since 2014 – Where none of the grounds of appeal identify any proper challenge to the orders of the primary judge – Where the father uses his grounds of appeal to assert his correctness and beliefs that were not accepted by the primary judge – No appealable error – Appeal dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Where an order was made pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) prohibiting the father from instituting further proceedings without the leave of the Court – Where the father seeks to appeal all orders of the primary judge – Where no ground of appeal or submission was made in relation to this order – Appeal dismissed. |
| Family Law Act 1975 (Cth) s 102QB(2)(b) |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 |
| APPELLANT: | Mr Dickens |
| RESPONDENT: | Ms Dickens |
| INDEPENDENT CHILDREN’S LAWYER: | Moylan Family Lawyers |
| FILE NUMBER: | SYC | 739 | of | 2010 |
| APPEAL NUMBER: | EAA | 10 | of | 2019 |
| DATE DELIVERED: | 7 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Tree JJ |
| 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 |
Orders
The Application in an Appeal filed on 17 September 2019 be dismissed.
The appeal 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 4) 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 20 December 2018 Watts J made parenting orders in proceedings between Mr Dickens (“the father”) and Ms Dickens (“the mother”) in relation to the children of the parties’ relationship, B, born in 2001 (presently aged 17 years) and C born in 2003 (presently aged 16 years) (“the children”). His Honour also made an order pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) by which the father was prohibited from instituting further proceedings under the Act without the leave of the Court.
While the father’s Amended Notice of Appeal filed on 10 July 2019 indicated that all of the primary judge’s orders were being appealed, no ground of appeal or subsequent submission was addressed to the s 102QB(2) order and we thus proceed on the basis that there is no challenge to it. That order does not, however, stand in the way of the father’s present appeal because his Honour’s order specifically exempted any appeal against the orders made on 20 December 2018 from its operation.
The parenting orders provided that the mother have sole parental responsibility for the children and that they live with her. His Honour made no orders about the time that the children spend with the father but instead left it entirely up to the children as to when and in what manner they see and communicate with the father. He noted that the Independent Children's Lawyer would explain the orders to the children and attend to any queries they may have.
In order to understand the appeal and the issues raised by the father in it, it is necessary to refer to the background, both legal and factual, to the parties’ relationship.
The parties married in November 1995, separated in October 2008 and divorced in 2010. The litigation between them over parenting issues concerning the children first commenced in 2010 and has involved countless applications in the Family Court and other reviews and appeals.
In 2011 parenting orders were made which provided that the mother have sole parental responsibility for the children and that the father spend time with the children on alternate weekends and at other times. The orders also directed the father to attend counselling.
In April 2013 both children ran away from school in order to avoid being collected by the father to spend school holiday time with him. They were both returned to the father for the school holiday time. The older child, B then ran away from the father, making his way to the local police station where he insisted that he not be made to go back. He has not seen his father since.
In June 2013, the 2011 orders were suspended and interim orders were made for C to spend time with the father. C continued to spend time with his father up until 18 March 2014 when the father did not return him to the mother for four nights at the conclusion of the child’s time with the father. The mother then obtained a recovery order. The police attended the father’s house where there ensued a distressing scene in which C became greatly upset. C has not seen his father since then.
The father’s application before the primary judge was that the children spend week about time with each parent.
The primary judge’s conclusion at [224] aptly and succinctly sums up the father’s quest through litigation:
The father’s personality has lead him to choose convoluted and uncompromising litigation over any sensible approach to attempt to re-establish a relationship with his children. The father chose not to go to interviews with the children with Dr [U] and chose not to engage in family therapy with Dr [F]. The father chose to pursue extreme and failed legal strategies that had the effect of delaying the final hearing and meant that he ceased to function as a person who had hitherto had professional and marketable skills. The father confirmed that currently, most of the time, he was living out of his car.
The Events of March 2014
Both before the primary judge and permeating the grounds of appeal are the father’s contentions that the mother’s partner, Mr Levine has abused the children, both physically and verbally.
In particular, the father asserted that on 14 March 2014, Mr Levine physically assaulted C. Police were involved, the child was interviewed and the father took photos of the child purportedly showing a considerable area of bruising on the child’s back said to be the result of the assault. The genesis of the allegations was what seemed to be an unfortunate altercation between the mother, Mr Levine and the children, but in relation to which the mother and Mr Levine denied there had been any assault. The primary judge carefully and at length canvassed the evidence on this point noting at [147] that he accepted the mother’s and Mr Levine’s version of events but even if, contrary to his conclusion, it did occur, given that some four years had passed since the event and there was no evidence that if it did occur there has been any negative, ongoing impact on the children or on their positive relationship with Mr Levine.
It is to be recalled that on 18 March 2014 after an urgent recovery order was made on an ex parte basis C was returned to his mother through the intervention of police. His Honour sets out in detail the evidence of the father about this event and of the police records of what occurred. His Honour concluded:
164. I have got no doubt that [C] was significantly affected by the events of 18 March 2014. The fact that police arrived at his father’s home to pick him up at 8 pm is, in itself, a totally unfortunate experience for a ten year old boy to have. However, I find that the father’s actions prior to and during the execution of the recovery order made the situation significantly worse for [C].
His Honour’s subsequent conclusion is in our opinion correct:
165. I accept the mother’s submission that the father is stuck in March 2014 and that he has not been able to move forward and get past what he perceives is injustice done to him at that time.
The Single Expert
Dr U is regarded by the father as the author of the situation in which the father now finds himself (at [174]). The father alleges that he made errors and cannot be trusted as a single expert. He further argued that because Dr U provided the mother with some names of appropriate therapists, he had acted improperly. His Honour dismissed the father’s complaints of improper conduct in this regard (at [221]). His Honour accepted the evidence of the expert which he took into account with the balance of the evidence in coming to his findings and ultimate conclusions.
The Independent Children's Lawyer
During the hearing before the primary judge, the father sought leave to make an application that the Independent Children's Lawyer be dismissed because, he contended, that the lawyer had acted improperly and inconsistently with his role. Leave was refused.
In concluding the case, his Honour said:
297. The father’s legal strategy has led to the lamentable circumstances in which the father and the children find themselves. This is the second final parenting hearing the parties have had. For a number of reasons, and for which the father is significantly responsible, the hearing has taken a lot longer than it should have to complete…
298. The father takes little, if any responsibility for anything that has happened in this tragic history of circumstances which has persisted for at least the last four years. He complains about the behaviour of many of the professionals who have been associated with this case including at least three judges, a senior registrar, various police officers, Dr [U], the mother’s former lawyer, the Independent Children's Lawyer, and most recently at the final hearing, the father claimed that the counsel for the Independent Children's Lawyer was “dishonest and not a fit and proper person to practice (sic) law”. He is steadfast in his view that his grievance against each of them is relevant and justifiable. He has been unsuccessful in the High Court on three occasions and in the Full Court on seven occasions. He has unsuccessfully attempted to claim damages for intentional tortious injury from the mother’s former lawyer and the Independent Children's Lawyer in the Supreme Court.
299. Whatever label is put on the father’s mental status, he behaves in a way which concentrates on perceived and usually false grievances which are minor in the overall scheme of things, allowing him to ignore the bigger picture or to dismiss it out of hand.
Application in an Appeal
The father sought by Application in an Appeal filed 17 September 2019 to adduce further evidence.
Much of the evidence sought to be adduced was not before the primary judge, in the sense that it was not tendered and received as exhibits, rather the father seeks to adduce this material because it was “relied upon, mentioned, referred or alluded to” during the hearing before the primary judge (Father’s affidavit filed 17 September 2019, paragraph 4).
Further, the evidence includes material referring to an incident that occurred as far back as 18 September 2010 between the mother and the father. As a result of the altercation that took place the father was charged and convicted of assault on the mother and of malicious damage to property and sentenced to a good behaviour bond for two years, with an Apprehended Violence Order put in place for the protection of the mother for two years (at [106]-[107]). Other documents relate to an incident which again involved the police and which occurred in May 2012. The primary judge referred to it at [110] and describes the incident as involving the father and the child B. Although the father was charged with assault of the child, the charge was ultimately dismissed. The father subsequently sued the NSW Police for unlawful arrest, false imprisonment and malicious prosecution. The suit was settled and the father received compensation.
The father also seeks to adduce on the appeal “[t]he subpoenaed material produced by the NSW Police on 25 January 2016 pursuant to subpoena dated 10 December 2015…which was relied upon during the hearings and is stored in the Exhibits Room” (Father’s affidavit filed 17 September 2019, paragraph 3 k). Similarly referred to are documents produced by the children’s schools said by the father to be in the exhibits room. These documents were not tendered in the hearing.
It is unnecessary to set out the documents or categories of them in further detail because none of it was before the primary judge despite being available at the time of the hearing.
The ability of this Court to receive evidence in an appeal is constrained. Ordinarily, evidence that was available or reasonably could have been obtained at the time of the hearing will not be received (CDJ v VAJ (1998) 197 CLR 172 at [55] (“CDJ”)). Further, if it is argued that the admission of evidence would justify a new trial, “justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial” (CDJ at [111]).
The father seeks by this application to re-agitate issues that were before the primary judge and to now introduce documents which were apparently available during the hearing but which were not tendered.
In no instance does any document or class of documents sought to be adduced in this appeal fall within the category of documents which are liable to be admitted pursuant to the principles in CDJ, and the application to adduce further evidence will be dismissed.
The Appeal
The father’s Amended Notice of Appeal comprises 17 grounds of appeal supported by particulars running to some 249 paragraphs. In addition, the father filed a Summary of Argument somewhat modestly only amounting to 10 pages.
The grounds of appeal are almost impossible to comprehend; in nearly every case they make sweeping assertions so general as to defy understanding. None of the grounds identify any proper challenge to his Honour’s orders.
The father is no ingénue to legal proceedings. Since he and the mother separated, some 17 judgments, including the one now appealed, have been delivered; the father has made five unsuccessful applications for leave to appeal to the Full Court; two appeals brought by him have been dismissed and three applications to the High Court for Special Leave to appeal have been dismissed.
The particulars to the grounds of appeal whilst voluminous, rather than illuminate the asserted grounds, further obscure their meaning.
By way of example, Ground 1 is as follows:
Ground 1
Errors of fact by way of manipulation of the reasons for judgment and/or bias or apprehended bias.
Particulars
1.At [2] of his judgment Watts J omits that:
a.I did not accept Dr [U]'s findings in his 10 August 2010 report that I had attachment issues to the mother;
b.The order mentioned at [2] of his judgment was made by consent, and
c.I only consented to this order so I can spend an extra day per fortnight with my children.
2.At [3] of his judgment Watts J omits the true reasons my contact with my children was severed in 2013 and 2014 which are documented in my affidavit filed 17 July 2017 and in the material I relied upon during the 23-27 July 2018 hearing including:
a.the false evidence wilfully fabricated and used by the mother Ms [Dickens], her solicitor Ms [JJ], the police officers involved, and the so called Independent Children's Lawyer, Mr Paddy Moylan, to mislead the court and obtain orders through fraud on the court, for examples see my affidavit filed 17 July 2017 at [207]-[220], exhibit D-1 items 108, 119-120, 129, 134-135 and exhibits 81 and 86;
b.the mother and her partner, Mr [Levine], coaching and coercing my children to go to police stations to say that they don't want to spend time with me.
c.the non-compliant and partisan expert report of Dr [F] dated 1 June 2013 which should not have been admitted in evidence or given any weight, see extract of transcript of hearing dated 24 July 2019 pages 63-68 and exhibit 72;
d.a biased and conflicted judge, Rees J, closely associated with Ms [JJ] of …, who did not disclosed her conflict and who on 7 June 2013 changed the final parenting orders based on Dr [F]'s non-compliant and partisan expert report and then refused to give reasons for judgment, see my affidavit filed 17 July 2017 at [24] [27], exhibit 70 and the transcript of Dr [U] cross-examination dated 24 July 2018 page 2 to page 8 line 15;
e.three judges, Rees, Johnston and Watts JJ, minimising, trivialising, ignoring and condoning the abuse of my children by Mr [Levine] and by the mother and in so doing making orders against the weight of evidence available and the relevant and applicable legal principles for examples see my affidavit filed 17 July 2017 at [44]-[153] [201]-[206] [221]-[244], the transcripts in my tender bundle filed 17 July 2017 and the transcript of Mr [Levine]'s cross-examination dated 26 July 2018; and
f.a family law system that fails the children, favours the mothers and is biased and prejudicial against fathers, see exhibits 75-76 and the transcript of Dr [U] cross-examination dated 24 July 2018 page 17 from line 43 to page 22.
3.The particulars to this ground indicate that Watts J made errors of fact, and that, a fair minded reasonable person in my particular circumstances would apprehend that Watts J was biased against me.
(As per the original) (Emphasis removed)
The grounds of appeal and the written submissions do not expose appealable error, but rather provide a vehicle by which the father continues to assert the correctness of his position and his beliefs which were not accepted by the primary judge but which became a prism through which the primary judge’s reasons are attacked in the appeal.
For example, Ground 8 asserts error in the primary judge not finding the facts as asserted by the father. The particulars repeat the father’s contentions made during the trial.
In Bahonko v Sterjov (2008) 166 FCR 415, the Full Court of the Federal Court of Australia said:
3. Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable (sic) error.
(Citations omitted)
We do not propose to rummage around in the appeal documents filed by the father in the hope of distilling some semblance of a genuine challenge to his Honour’s orders.
Regrettably, the oral submissions did nothing to aid understanding of the challenges although the father used the opportunity to make serious slurs on the professionalism of the lawyers who acted for the Independent Children's Lawyer in the proceedings and to give voice to his fixed views about the evidence, heedless of the findings of the primary judge.
We thus will deal with this appeal shortly. Nothing in the submissions either oral or written support appealable error nor demonstrate any basis for challenge of his Honour’s orders.
For that reason the appeal will be dismissed.
Costs
No costs orders were sought.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Tree JJ) delivered on 7 November 2019.
Associate:
Date: 7 November 2019
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