Darley & Darley

Case [2016] FamCAFC 10


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

  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…

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Darley & Darley [2016] FamCAFC 10
Case
[2016] FamCAFC 10
Decision Date

CaseChat Overview and Summary

In Darley & Darley, the mother brought an appeal against several family law orders concerning the children and property. The mother sought to adduce further evidence in the appeal and to appeal final parenting orders and orders relating to the children's surname. The father opposed the mother's application for leave to adduce further evidence and opposed all grounds of appeal. The matter was heard in the Family Court of Australia.

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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