DICKENS & LEVINE; DICKENS & DICKENS - [2017] FamCAFC 24

FAMILY COURT OF AUSTRALIA

DICKENS & LEVINE; DICKENS & DICKENS

[2017] FamCAFC 24

FAMILY LAW – APPEAL – CONTRAVENTION – Where the appellant was ordered to pay costs relating to his contravention application – Where the appellant alleges the costs order was unreasonable – Where the appellant withdrew the application after the matter had been before the Court on three occasions – Where such an order was appropriate – Appeal dismissed.

FAMILY LAW – APPEAL – CONTEMPT – Where the trial judge dismissed the appellant’s application for contempt – Where the appellant challenges the weight which the trial judge gave to the evidence before him – No appealable error demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – DISAQUALIFICATION – Where the trial judge dismissed an application that he disqualify himself – Where none of the grounds of appeal raise any error in his Honour’s findings – Appeal dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant required leave to appeal against procedural orders in four appeals before the Court – Whether leave to appeal should be granted – Leave to appeal refused.

Family Law Act 1975 (Cth) s 117

CDJ v VAJ (1998) 197 CLR 172
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

APPELLANT:

Mr Dickens

RESPONDENT:

Mr Levine

(EA 19 of 2015; EA 29 of 2015)

RESPONDENT: Ms Dickens
(EA 82 of 2015; EA 43 of 2016; EA 60 of 2016)

INDEPENDENT CHILDREN’S LAWYER: Moylan Family Lawyers

(EA 82 of 2015; EA 43 of 2016; EA 60 of 2016)

FILE NUMBER:

SYC

739

2010

FIRST APPEAL NUMBER:

2015

SECOND APPEAL NUMBER:

2015

THIRD APPEAL NUMBER: EA 82 of 2015

FOURTH APPEAL NUMBER: EA 43 of 2016

FIFTH APPEAL NUMBER: EA 60 of 2016

DATE DELIVERED:

21 February 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ainslie-Wallace & Aldridge JJ

HEARING DATE:

29 September 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATES:

27 January 2015

17 February 2015
20 May 2015
1 March 2016
6 April 2016

LOWER COURT MNC:

[2015] FamCA 255
[2015] FamCA 256
[2016] FamCA 115

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

(EA 19 of 2015; EA 29 of 2015)

Mr Kertesz of Delaney Lawyers

THE RESPONDENT: In person
(EA 82 of 2015; EA 43 of 2016; EA 60 of 2016)

COUNSEL FOR THE INDEPENDENT Ms Messner
CHILDREN’S LAWYER:

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

Orders in Dickens & Levine (EA 19 and EA 29 of 2015)

Leave to appeal so much of appeal EA 19 of 2015 as relates to Order 4 made by Johnston J on 27 January 2015 be refused. The balance of appeal EA 19 of 2015 against the orders of Johnston J made on 27 January 2015 be dismissed.
Appeal EA 29 of 2015 against the orders of Johnston J of 17 February 2015 be dismissed.
The appellant father pay the costs of Mr Levine…

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 & LEVINE; DICKENS & DICKENS

Details

AGLC: DICKENS & LEVINE; DICKENS & DICKENS [2017] FamCAFC 24
Case: [2017] FamCAFC 24
Decision Date: 21 February 2017

CaseChat Overview and Summary

In this case, the appellants, Dickens and Levine, along with Dickens and Dickens, were involved in a family law dispute. The proceedings included multiple appeals against various orders made by the Family Court. The appellants challenged the costs order made against one of them for a contravention application, the dismissal of a contempt application, the denial of a disqualification application against the trial judge, and sought leave to appeal against procedural orders in four appeals. The court was tasked with determining the validity of the costs order, the weight given to evidence in the contempt application, the grounds for disqualifying the trial judge, and whether leave to appeal should be granted.

The primary legal issues before the court were whether the costs order was reasonable, whether there was an error in the weight given to evidence in the contempt application, whether the trial judge should have disqualified himself, and whether leave to appeal should be granted. The appellants argued that the costs order was unreasonable, the trial judge misapplied the weight of evidence, there were valid grounds for disqualification, and leave to appeal should be granted. The respondents maintained that the orders were appropriate and no errors were made.

The court found that the costs order was reasonable given the appellant’s withdrawal of the contravention application after it had been before the court on three occasions. The court also determined that no appealable error was demonstrated in the weight given to evidence by the trial judge in dismissing the contempt application. Furthermore, the court held that none of the grounds raised in the disqualification application against the trial judge constituted an error. Finally, the court found that no compelling reasons were presented to warrant granting leave to appeal against the procedural orders.

The appeal was dismissed, and leave to appeal against the procedural orders was refused. The court upheld the original decisions of the Family Court, affirming the appropriateness of the costs order, the dismissal of the contempt application, the denial of the disqualification application, and the refusal of leave to appeal.

Orders