Darley

[2023] FedCFamC1A 111

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Darley [2023] FedCFamC1A 111

Appeal from:		Darley & Darley (No 4) [2023] FedCFamC1F 162
Appeal number(s):		NAA 74 of 2023
File number(s):	BRC 2317 of 2013
Judgment of:	TREE, HARPER & RIETHMULLER JJ
Date of judgment:	29 June 2023
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – Leave to appeal – Vexatious proceedings – Where the applicant seeks leave to appeal against the dismissal of an application to review the decision of a Senior Judicial Registrar – Where the applicant failed to comply, or substantially comply, with s 102QE(3)(b) of the Family Law Act 1975 (Cth) – Application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 102Q, 102QB, 102QE
Cases cited:	Darley & Darley (No. 4) [2019] FamCA 595
Number of paragraphs:	12
Date of hearing:	29 June 2023
Place:	Brisbane
The Applicant:	Litigant in person

ORDERS

NAA 74 of 2023
BRC 2317 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DARLEY

Applicant

order made by:	TREE, HARPER & RIETHMULLER JJ
DATE OF ORDER:	29 JUNE 2023

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 24 March 2023 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Darley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

RIETHMULLER J:

1. On 24 March 2023, the applicant mother filed an application seeking leave to institute an appeal from orders made by the primary judge on 17 March 2023 wherein the primary judge dismissed her application for a recovery order and refused her leave to amend or commence further applications. The primary judges’ orders were:

   1. The mother’s Application for Review filed 18 November 2022 be dismissed, and insofar as is necessary, her Application in a Proceeding filed 4 November 2022 be dismissed.

   2. The purported filing of the Amended Application for Review on 11 December 2022 be voided, and in so far as if necessary, the Amended Application for Review be dismissed.

   3. The Amended Application in a Proceeding filed at 5.57 pm on 11 December 2022 be dismissed.

   4. The Amended Application in a Proceeding filed at 6.34 pm on 11 December 2022 be dismissed.

   (Orders made 17 March 2023)

2. The applicant is subject to an order made on 23 August 2019 pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”), prohibiting her from instituting proceedings against the father or the Independent Children’s Lawyer under the Act without first obtaining leave pursuant to s 102QE. Accordingly, leave of the Court is required prior to the applicant instituting proceedings, which includes appeals: see s 102QE(1) of the Act and the definition of “institute” in s 102Q of the Act.

3. In order to seek leave to institute proceedings, s 102QE(3) of the Act requires the applicant to file an affidavit that addresses various matters:

   Application for leave to institute proceedings

   …

   (3)      …

   (a) lists all the occasions on which the applicant has applied for leave under this section; and

   (b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

   (c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

4. The application before us appears to be supported by two affidavits: the first affidavit (2096 pages including annexures) was filed on 24 March 2023, and the second affidavit (71 pages including annexures) was filed on 21 June 2023.

5. The affidavit of 24 March 2023 addresses the applicant’s obligation pursuant to s 102QE(3) of the Act in the following terms:

   6. I state in relation to s 102QE(3) that:

   (a) this Application, Appeal NO 83/2019 and my Application for a Recovery Order filed 4 November 2022 are the only occasions I have sought leave in this regard;

   (b) Application for Protection Orders in the Magistrates Court and District Court, current Protection Order in place protecting myself and the children dated [...] November 2022;

   (c)       Applications to the High Court which were not successful;

   (d)       To the best of my knowledge I have disclosed all relevant facts.

6. Paragraph 49 of the applicant’s second affidavit filed in June 2023 is in substantially the same terms as paragraph 6 of her earlier affidavit filed in March 2023.

7. The reasons for judgment for the order prohibiting the mother from commencing proceedings without first obtaining leave pursuant to s 102QE of the Act identifies five contravention applications, ten Applications in a Case and six appeals that the mother had instituted prior to the date the reasons were delivered on 23 August 2019: see Darley & Darley (No. 4) [2019] FamCA 595. It is apparent that the applicant has not complied with s 102QE(3)(b) of the Act, nor could it be said that she has substantially complied.

8. Section 102QF(1) of the Act provides:

   Dismissing application for leave

   (1)The Court may make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QE(3).

9. The applicant has not identified any reasonable explanation for failing to comply with s 102QE (or at least substantially comply with the provision), nor demonstrated any circumstances that would make it appropriate to allow the application to proceed despite non-compliance with the legislatively mandated requirements of s 102QE(3) of the Act.

10. In the circumstances, I would dismiss the Application in an Appeal filed 24 March 2023 seeking leave to file an appeal.

    HARPER J:

11. I agree.

    TREE J:

12. I also agree. The Application in an Appeal filed 24 March 2023 is dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justices Tree, Harper & Riethmuller.

Associate:

Dated:       6 July 2023