DARLEY & DARLEY - [2019] FamCA 206

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY

[2019] FamCA 206

FAMILY LAW – ORDERS – Contravention - Where the applicant alleges that the respondent has contravened Orders on ten occasions without reasonable excuse – Where the evidence fails to establish a prima facie case in relation to four of the alleged contraventions – Where one contravention is found to be proved but no sanction is imposed – Where the other five alleged contraventions are dismissed – Where the mother has filed three Applications - Contravention alleging 67 separate contraventions and only two have been proved – Where the applicant is required to show cause as to why a vexatious proceeding order should not be made against her.

FAMILY LAW – COSTS – Where the applicant shall pay the costs of the independent children’s lawyer in the sum of $1,528 within 30 days.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

Ms Darley

RESPONDENT:

Mr Darley

INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston

FILE NUMBER:

BRC

2317

2013

DATE DELIVERED:

5 April 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

2 April 2019

REPRESENTATION

FOR THE APPLICANT:

Self-represented

FOR THE RESPONDENT:

Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston

Order

The alleged contravention of paragraph 4 of the Order made 26 May 2017 by the Honourable Justice Forrest particularised in paragraph 11 of the Application – Contravention filed 10 January 2018 is dismissed (count 1).
The alleged contravention of paragraph 5 of the Order made 26 May 2017 by the Honourable Justice Forrest particularised in paragraph 13 of the Application – Contravention filed 10 January 2018 is dismissed (count 2).
The alleged contravention of paragraph 6 of the Order made 26 May 2017 by the Honourable Justice Forrest particularised in paragraph 15 of the Application – Contravention filed 10 January 2018 is dismissed (count 3).
The alleged contravention of paragraph 15 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 17 of the Application – Contravention filed 10 January 2018 is dismissed (count 4).
The alleged contravention of paragraph 8 of the Order made 26 May 2017 by the Honourable Justice Forrest particularised in paragraph 19 of the Application – Contravention filed 10 January 2018 is dismissed (count 5).
The alleged contravention of paragraph 16 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 21 of the Application – Contravention filed 10 January 2018 is dismissed (count 6).
The alleged contravention of paragraph 16 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 23 of the Application – Contravention filed 10 January 2018 is dismissed (count 7).
The alleged contravention of paragraph 27b of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 25 of the Application – Contravention filed 10 January 2018 is dismissed (count 8).
The alleged contravention of paragraph 21 of the Order made 12…

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.

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Details

AGLC: DARLEY & DARLEY [2019] FamCA 206
Case: [2019] FamCA 206
Decision Date: 5 April 2019

CaseChat Overview and Summary

In the matter of *Darley & Darley*, the applicant alleged that the respondent had contravened court orders on ten occasions without reasonable excuse. The proceedings were heard by Carew J.

The primary legal issues before the court were whether the applicant had established a prima facie case for each of the alleged contraventions, and if so, what sanctions, if any, should be imposed. The court was also required to consider the applicant's history of filing multiple contravention applications and whether a vexatious proceeding order should be made against her.

Carew J found that the evidence did not establish a prima facie case for four of the alleged contraventions. One contravention was found to be proved, but no sanction was imposed. The remaining five alleged contraventions were dismissed. The court noted that the applicant had filed three previous applications alleging 67 contraventions, of which only two had been proved. Consequently, the applicant was required to show cause as to why an order should not be made against her for conducting vexatious proceedings. The applicant was also ordered to pay the costs of the independent children’s lawyer in the sum of $1,528 within 30 days.

Orders