FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Darley & Darley (No 12) [2024] FedCFamC1F 559
File number(s): BRC 2317 of 2013 Judgment of: HOGAN J Date of judgment: 23 August 2024 Catchwords: FAMILY LAW – PARENTING – Where the father seeks that the children remain living with him and communicate with the mother according to their wishes – Where the mother seeks that the children return to her care and have no time or contact with the father – Where the mother seeks that a recovery order be made and that the same lie in the Registry to facilitate the children returning to, and remaining in, her care – Where the children have left the primary care of the mother to live with the father – Where the children have expressed views that they will abscond if they are returned to the mother’s care – Where it is ordered the children live with the father and spend time with the mother in accordance with their wishes – Where the father has sole parental responsibility
FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks that a Vexatious Litigant order made against her in 2019 is dismissed – Where the Application is dismissed
FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks a Vexatious Litigant order against the father – Where the Application is dismissed
Legislation: Acts Interpretation Act 1901 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Darley & Darley [2019] FamCAFC 238
Darley & Darley (No. 4) [2021] FamCAFC 54
Division: First Instance Number of paragraphs: 372 Date of hearing: 28 August 2023; 4, 5 21 & 22 September 2023; 11 December 2023; 11 July 2024 Place: Brisbane Applicant: Litigant in person Respondent: Litigant in person ORDERS
BRC 2317 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DARLEY
Applicant
AND: MS DARLEY
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
23 AUGUST 2024
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All previous parenting orders are discharged.
2.The children, X, born 2006, and Y, born 2009, live with the father.
3.The father have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) for the children.
4.The children shall spend time and communicate with the mother in accordance with their wishes.
5.Each parent keep the other parent informed at all times of a contact telephone number and email address and notify the other as to any change in those details within forty‑eight (48) hours of such change.
6.The father shall advise each child of the mother’s contact telephone number and email address and, in the event that he is notified of any change to the same,…
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- AGLC
- Darley & Darley (No 12) [2024] FedCFamC1F 559
- Case
- [2024] FedCFamC1F 559
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the children should remain with the father or return to the mother's care, and if the latter, whether the mother's application for a recovery order should be granted. The court also needed to determine the mother's applications for a Vexatious Litigant order against the father and to dismiss a Vexatious Litigant order made against her in 2019. The court considered the children's expressed views, their relationship with each parent, and the potential impact of any changes in their circumstances. The court also noted the mother's history of making repeated applications for domestic violence orders and her attempts to cross-examine the father about historical events to obtain inconsistencies.
The court held that the children should continue to live with the father and spend time with the mother in accordance with their wishes, noting their expressed safety concerns and desire to avoid contact with the mother. The court dismissed the mother's applications for a Vexatious Litigant order against the father and to dismiss the Vexatious Litigant order made against her in 2019. The court issued detailed orders concerning the children's living arrangements, communication, and travel permissions, as well as obligations and consequences of non-compliance with the orders. The court also imposed restrictions on the use of documents obtained during the proceedings.
Orders
Orders of the court
BRC 2317 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR DARLEY
Applicant
AND:
MS DARLEY
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
23 AUGUST 2024
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1. All previous parenting orders are discharged.
2. The children, X, born 2006, and Y, born 2009, live with the father.
3. The father have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) for the children.
4. The children shall spend time and communicate with the mother in accordance with their wishes.
5. Each parent keep the other parent informed at all times of a contact telephone number and email address and notify the other as to any change in those details within forty‑eight (48) hours of such change.
6. The father shall advise each child of the mother’s contact telephone number and email address and, in the event that he is notified of any change to the same, shall advise each child of the mother’s changed contact telephone number and email address.
7. The father has leave to provide a copy of this Order to any school or educational institution at which the children attend and to any medical practitioner upon whom the children attend.
8. The father has leave to provide a copy of this Order, the Reasons for Judgment published in support of the same, the Child Impact Report dated 7 September 2022 authored by Mr AH and the Family Report dated 7 August 2023 authored by Ms AF to any therapist upon whom either of the children attend for the purpose of therapy and to the Department of Child Safety, Seniors and Disability Services (by whatever name that agency is then known) and/or the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
9. Each of the children be permitted to travel outside of the Commonwealth of Australia and, pursuant to s 11 (1)(b)(i) of the Australia Passports Act 2005 (Cth), be permitted to have an Australian travel document, as that term is defined by s 6 of the Australia Passports Act 2005 (Cth).
AND IT IS FURTHER ORDERED THAT
10. Save as is otherwise ordered herein, no party is permitted to use the documents provided to or obtained by them in the course of this proceeding, including those obtained in answer to any subpoena which has issued, for any purpose other than this proceeding or any appeal in respect of these Orders.
11. All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
12. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
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
I have been left with the very real concern that an aspect of the mother’s repeated applications for domestic violence orders in various Magistrates Courts has been to involve the father in litigation for the purpose of repeatedly cross-examining him about the same historical events with a view to obtaining inconsistencies – which she then seeks to use to support her submissions that he has perjured himself and/or that he has deliberately misled the various courts before which he has appeared in response to her various applications.SOME OF THE RELEVANT CONSIDERATIONS Given the children’s ages, it seems to me to be appropriate to focus initially on their reported views and attitudes. In taking this approach, the Court should not be seen as failing to appreciate the existence of the primary considerations prescribed by s 60CC(2) of the Act – rather, these reasons confront the reality of these children’s current situation.The children: their views, the nature of their relationship with each of their parents and the likely effect on them of any changes in their circumstances, including if orders are made in the terms sought by the parents[49][49] Family Law Act 1975 (Cth) ss 60CC(3)(a), (b), (d), (g) and (m). Consideration of the evidence about the children’s previous presentations and attendance at school will occur later in these Reasons. At this point, it seems to me to be more pertinent to focus upon those views they have more recently expressed to persons other than their parents.X X was 16 years of age when she spoke to Mr AH in September 2022. I accept she told him, amongst other things, that:(a)living with the father was “good”; she felt safe in his care, he did not want to know what happened in the mother’s care, was more “chilled” and did not “worry as much” as the mother;[50] and(b)the area she had lived in with the mother was “shit” and the way the mother treated them was “like shit” and she did not feel safe there – the mother would always get in moods, be “angry as” and take it out on everyone when she was angry by hitting her, throwing things, screaming and locking them (the children) out of the house;[51] and(c)she was not going to talk to the mother (“no not happening”) and did not want anything to do with her – but she would like to see Y as she had not seen her in ages;[52] and(d)she had experienced “years and years” of abuse in the mother’s care – her mother “whinged to her friends about us”, prohibited them from going out and “yelled at us” if they did not arrive home from school on time;[53] and(e)her mother spoke about her father “all the time”, called him an “arsehole” and said it was because of him she had to go to Court: she said her mother had made “false allegations” about the father and, when asked how she knew about any of the allegations, she said that she had been interviewed by police in relation to them;[54] and(f)she had “run away” from the mother three times and, on the third occasion, she contacted her father, who picked her up and took her to the police;[55] and(g)when she lived with the mother, she and Y used to talk about running away;[56] and(h)if an order was made for her to live with the mother, she would “run away” and she indicated that, next time, she would take “my sister”.[57] [50] Child Impact Report, paragraphs 21 and 22.[51]Child Impact Report, paragraph 23; Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.[52]Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.[53]Child Impact Report, paragraph 27; Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.[54] Child Impact Report, paragraph 24.[55] Child Impact Report, paragraph 25.[56]Affidavit of the mother filed 23 August 2023, pages 1683-1690/2642 and pages 1723-1737/2642: Mr AH’s notes.[57] Child Impact Report, paragraph 26.