Dickens & Dickens (No 4) - [2019] FamCAFC 203

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

2010

APPEAL NUMBER:

EAA

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…

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 4)

Details

AGLC: Dickens & Dickens (No 4) [2019] FamCAFC 203
Case: [2019] FamCAFC 203
Decision Date: 7 November 2019

CaseChat Overview and Summary

The case of Dickens & Dickens (No 4) involved an appeal by the father against final parenting orders made in favour of the mother. The primary dispute centred around the allocation of parental responsibility and the living arrangements for the two children, aged 16 and 17 at the time of the appeal. The father contested the primary judge's orders, which granted the mother sole parental responsibility and required the children to live with her. The father had not seen the children since 2014, and the legal battle was framed around whether the orders made were in the best interests of the children. The appeal was heard and determined by the Family Court of Australia.

The primary legal issues the court had to decide were whether the father's grounds for appeal were valid and whether the primary judge's orders were justified. The court examined whether the father had identified any proper challenge to the primary judge's orders. The father's grounds of appeal appeared to be an attempt to assert his correctness and beliefs rather than identifying any appealable errors. The court also considered whether there was an appealable error in the primary judge's orders, and whether the father had sought leave to appeal a particular order made under section 102QB(2)(b) of the Family Law Act 1975 (Cth).

The court found that none of the grounds of appeal properly challenged the primary judge's orders, as they were more about the father's beliefs and correctness rather than any legal error. The court determined that there was no appealable error in the orders made by the primary judge. Furthermore, the father did not challenge or seek leave to appeal the order prohibiting him from instituting further proceedings without leave of the court. Consequently, the appeal was dismissed, and the final parenting orders made by the primary judge were upheld.

The court dismissed the appeal and made orders accordingly. The application in an appeal filed on 17 September 2019 was dismissed, and the appeal itself was also dismissed. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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