FAMILY COURT OF AUSTRALIA
| DARLEY & DARLEY | [2016] FamCAFC 10 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL –Where the mother sought to adduce further evidence – Leave granted for transcripts only to be admitted. FAMILY LAW – APPEAL – CHILDREN – CONSENT ORDERS – Where the trial judge made consent orders on the fifth day of the hearing – Where the mother asserts that she was coerced into agreeing to the consent orders – Where the mother did not raise concerns with the trial judge – Examination of the transcript of trial – Where no foundation for assertion that the orders resulted from undue pressure and influence from the trial judge – Where all remaining grounds of appeal have no proper foundation – Appeal dismissed. FAMILY LAW – APPEAL – CHILDREN – Change of Name – Where the mother appeals final orders relating to the children’s surname – Where the mother sought to change the children’s surname to include the mother’s surname – Where the children have always identified with the father’s surname – Where the mother will retain married name – Where no evidence that the children will suffer embarrassment where their surname is different to their mother’s – Appeal dismissed. FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where the appellant seeks leave to appeal interim property orders – Where no error of principle or substantial injustice established – Where application is misconceived and entirely without merit –Application for leave refused. |
| Family Law Act 1975 (Cth) ss 93A(2), 60B, 60CC, 65DAC, 69ZN, 69ZQ |
| Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc and Anor (1981) 148 CLR 170 CDJ v VAJ (1998) 197 CLR 172 Chapman and Palmer (1978) FLC 90-510 Fooks and McCarthy (1994) FLC 92-450 Gronow v Gronow (1979) 144 CLR 513 Jess and Ors & Jess and Ors (2014) FLC 93-620 Johnson v Johnson (2000) 201 CLR 488 Robinson and Willis (1982) FLC 91-215 Rutherford and Rutherford (1991) FLC 92-255 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 Thwaite v Thwaite [1981] 2 All ER 789 |
| APPELLANT: | Ms Darley |
| RESPONDENT: | Mr Darley |
| INDEPENDENT CHILDREN'S LAWYER: | Ms Fotheringham |
| FILE NUMBER: | BRC | 2317 | of | 2013 |
| FIRST APPEAL NUMBER: | NA | 2 | of | 2015 |
| SECOND APPEAL NUMBER: | NA | 3 | of | 2015 |
| THIRD APPEAL NUMBER: | NA | 18 | of | 2015 |
| DATE DELIVERED: | 4 February 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Murphy and Forrest JJ |
| HEARING DATE: | 23 November 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
LOWER COURT ORDER DATE: 12 December 2014
15 December 2014
16 February 2015
| LOWER COURT JUDGMENT DATE: | 16 February 2015 |
| LOWER COURT MNC: | [2015] FCCA 317 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | Not participating |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Mr Haddrick |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Legal Aid Qld, Southport |
Orders
Leave be granted to the mother to adduce as further evidence in the appeal the transcripts of the hearings on 13 May 2013, 3…
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CaseChat Overview and Summary
The legal issues included whether the mother should be granted leave to adduce further evidence, whether the mother had established any grounds for appeal, and whether the mother's application for leave to appeal interim property orders should be granted. The court examined the mother's assertion that she was coerced into agreeing to the consent orders and the mother's appeal against the children's surname. The court also considered the father's application for costs.
The court found that the mother had not established any grounds for appeal, including that she was coerced into agreeing to the consent orders. The court found that the mother had failed to raise concerns with the trial judge and that there was no foundation for the assertion that the orders resulted from undue pressure and influence from the trial judge. The court also found that the mother's appeal against the children's surname was without merit, as the children had always identified with the father's surname and the mother would retain her married name. The court found that the father's application for leave to appeal interim property orders was misconceived and entirely without merit. The court granted leave to the mother to adduce as further evidence in the appeal the transcripts of the hearings on 13 May 2013, 3 June 2013, 10 December 2013 and 14 February 2014, dismissed the mother's application for leave to appeal orders made on 15 December 2014, dismissed the mother's appeal against final parenting orders made by consent on 12 December 2014, dismissed the mother's appeal against parenting orders pertaining to the children's surnames made on 16 February 2015, and ordered that each party to each of the appeals shall bear their own costs of and incidental to each appeal.
Orders
Orders of the court
1.
Leave be granted to the mother to adduce as further evidence in the appeal the transcripts of the hearings on 13 May 2013, 3 June 2013, 10 December 2013 and 14 February 2014.
2.
The Application for Leave to Appeal orders made on 15 December 2014 (Appeal NA3 of 2015) be dismissed.
3.
The appeal against final parenting orders made by consent on 12 December 2014 (Appeal NA 2 of 2015) be dismissed.
4.
The appeal against parenting orders pertaining to the children’s surnames made on 16 February 2015 (NA 18 of 2015) be dismissed.
5.
Each party to each of the appeals shall bear their own costs of and incidental to each appeal.
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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