Darley & Darley (No 2)

[2022] FedCFamC1F 906

Federal Circuit and Family Court of Australia

(DIVISION 1)

Darley & Darley (No 2) [2022] FedCFamC1F 906

File number(s):

BRC 2317 of 2013

Judgment of:

HARTNETT J

Date of judgment:

17 November 2022

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Ex parte leave to institute proceedings pursuant to s 102QB of the Act – Where the applicant sought a recovery order – Where service is required – Where the respondent is entitled to be granted an opportunity to be heard – Leave granted on condition that only the mother’s recovery application is heard – where the mother made an application in respect of parenting orders for an older child – where that application is premature – Where a Child Impact Report has been prepared – Where no leave to institute parenting order proceedings in respect of sixteen year old child is possible at the present time.

Legislation:

Family Law Act 1975 (Cth) ss 102QB, 102QG

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Division:

Division 1 First Instance

Number of paragraphs:

13

Date of hearing:

15 November 2022

Place:

Melbourne

The Applicant:

Litigant in person

The Respondent:

Ex parte

ORDERS

BRC 2317 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DARLEY

Applicant

AND:

MR DARLEY

Respondent

order made by:	HARTNETT J
DATE OF ORDER:	15 November 2022

THE COURT ORDERS THAT:

1.The Applicant serve her Application in a Proceeding filed 4 November 2022, her affidavits filed 6 November 2022 and 14 November 2022 and a copy of this Order upon the Respondent by 5.00pm on 16 November 2022.

2.Pursuant to section 102QE of the Family Law Act 1975 (Cth) there is leave for the Applicant to institute a proceeding being her Application in a Proceeding filed 4 November 2022 on the condition that only her application for a Recovery Order in respect of the child, Y born 2009, is heard and determined .

3.The Application in a Proceeding filed 4 November 2022 be listed for hearing before a Senior Judicial Registrar on 17 November 2022 at 10:00am via Microsoft Teams.

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 & Darley (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HARTNETT J

1. On 23 August 2019, Carew J made the following order in a proceeding between these parties:

   1.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the applicant mother be prohibited from instituting proceedings against [Mr Darley] or the independent children’s lawyer, under this Act in a court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act.

2. Section 102QE of the Family Law Act 1975 (Cth) (“the Act”) is as follows:

   1.        This section applies to a person (the applicant) who is:

   (a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or

   (b)acting in concert with another person who is subject to an order mentioned in paragraph (a).

   2.The applicant may apply to the court for leave to institute proceedings that are subject to the order.

   3.        The applicant must file an affidavit with the application that:

   (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 applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

3. Section 102QG(1)(a) relevantly states:

   (1)Before the court makes an order granting an application under section 102QE for leave to institute proceedings, it must:

   (a)       order that the applicant serve:

   (i)the person against whom the applicant proposes to institute the proceedings; and

   (ii)       any other person specified in the order;

   with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

   (b)give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

4. On 4 November 2022, the mother filed an Application in a Proceeding seeking numerous orders being 24 in number. Relevantly, the mother sought that leave be granted to institute proceedings under s 102QE of the Act; leave be granted to file the Application in a Proceeding; the matter be listed urgently and heard ex-parte in the absence of the respondent father; service be dispensed with; the matter not be heard by Carew J, Hogan J and Baumann J; and a recovery order be made returning the younger of the parties’ children, Y born 2009 (“the child”), to the mother’s sole care and responsibility.

5. In satisfaction of s 102QE(3) of the Act at [15] of the mother's affidavit in support of her Application in a Proceeding, filed 6 November 2022, the mother, relevantly, stated:

   …in relation to s102QE(3) that: a) An Application in an Appeal, Appeal No […] and these Applications are the only occasions I have sought leave in this regard; b) Application for Protection Orders in the Magistrates Court and District Court; c) Applications to High Court; d) to the best of my knowledge I have disclosed all relevant facts, whether supporting or adverse to the applications, about the Applications.

6. At the hearing on 15 November 2022, which was an expedited hearing of limited duration prior to the recommencement of a defended hearing at 10.00am, the mother made oral submissions in support of her Application in a Proceeding. In those submissions she asserted that the proceeding was not a vexatious one, and that leave to institute a proceeding should be granted to her in circumstances where on 3 November 2022, the child was removed from her care by the father, although how, the mother is unsure, save that the father communicated in writing with her to advise that the child had, on that date, “run away” to his home and his care. The mother had not seen the child since that date, nor had any communication with her. This occurred in the context of the child living with the mother for the last 13 years, being the entirety of the child’s life. That current residence status accorded with the final parenting orders of Her Honour, Hogan J dated 12 December 2018. Such live with order has not been varied and/or discharged since the making of those orders as asserted by the mother. In fact, that appears to be the case. In addition, the mother asserted that the child needed to be returned to her care to advance her education and health, and, in particular, for a specialist appointment with an Ear, Nose and Throat Specialist on 17 November 2022 at XX Hospital.

7. The orders of Hogan J made on 12 December 2018 relevantly provide that:

   …

   2.The children, [X] born […] 2006, and [Y], born […] 2009, live with the mother.

   3.The father and mother have equal shared parental responsibility for the major long term issues of the children including:

   a.        the children’s education (both current and future); and

   b.        the children’s religious and cultural upbringing; and

   c.        the children’s health; and

   d.        the children’s names; and

   e.changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with, or live with, either parent.

   ….

   6.The children spend time with the father at all times as may be agreed by the parents in writing but, failing agreement, as follows:

   a.commencing Friday 14 December 2018: each alternate weekend, from 5.00 pm on Friday to 4.00 pm on Sunday; and

   b.        during the school holiday period….

   …

8. I am satisfied in the circumstances of this matter that the mother should be granted leave pursuant to s 102QE of the Act to institute proceedings on the condition that only her Application in a Proceeding filed 4 November 2022 in respect of the recovery orders as sought by her is heard and determined by the Court. This is so because it is clear there is a parenting order in her favour together with a history, until very recently, of the child living with her. There is also, on the mother’s evidence and submissions, a situation where the child has not seen her father in accordance with the orders made on 18 December 2018 since March 2022. Both the mother and father acknowledge that the child is now in the care of the father. Why that is so, and/or how that has come to pass, is a matter about which I can make no finding. But certainly, the mother cannot be shut out from seeking orders for the return of the child in these circumstances.

9. The mother sought service upon the father, in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), of her Application in a Proceeding and affidavits, which she sought to rely upon, be dispensed with. That is not a step I propose to make. The father must be given an opportunity to be heard by the Court and be put on notice of the proceeding in accordance with the Act (s 102QG) and the Rules. I note further the history of this matter, is lengthy, involves parenting orders, and has as part of its history a vexatious litigant order as against the applicant. I determined it was essential to afford procedural fairness to the father by the provision of service upon him of all material relied upon by the mother.

10. The mother also sought parenting orders in respect of the parties’ daughter, X born 2006, who is now 16 years of age. I note that there is a Child Impact Report (“Report”) recently prepared by a Court Child Expert dated 7 September 2022 on the Court file. That Report was ordered by Her Honour, Hogan J, on 5 August 2022, in respect of a Contravention Application filed by the father on 23 May 2022 and an Application in a Proceeding filed by the mother on 5 July 2022. Those applications were heard by Her Honour on 14 September 2022 and judgment remains reserved. The views of X are no doubt sought, at least, if not expressed, in the Report of the Court Child Expert. Leave to institute proceedings for further parenting orders in respect of X is not an appropriate exercise of my discretion in circumstances where there is a reserved judgment on an Application in a Proceeding filed by the mother in respect of both X and the child. Further, it does not appear on the evidence that any attempt has been made by the parties at dispute resolution where such process is, in particular, informed by X’s views as they may appear in the Court Child Expert’s Report and otherwise canvasses all relevant matters.

11. Additional to all of the above, any application for parenting orders by the applicant needs to be carefully constructed with a single affidavit of the applicant in support. What the applicant puts before the Court at the present time does not meet that criteria. Rather, the applicant seeks to transverse her various grievances as set out in numerous affidavits that go back years, and place before the Court many matters which are no longer of relevance and/or where never of relevance. The material could not be filed in its current form, save as to that part which relates to her seeking of a recovery order.

12. The Application in a Proceeding for orders in respect of the child is distinguished from that in respect of X. There is a real question as to the basis of the movement of the child from the mother’s care on 3 November 2022. Was it in effect a removal orchestrated by the father, and in respect of which a recovery order should be issued? Or was it a deliberate action of the child, without input and/or manipulation from or by the father, and if the latter, for what reason?

13. An examination of what occurred on 3 November 2022 as put before the Court by each of the parties is required.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.

Associate:

Dated:       17 November 2022