Legal Research
Cases
Darley & Darley (No. 4)

Darley & Darley (No. 4)

Case [2019] FamCA 595 23 August 2019

Type to search within this case.

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 4)

[2019] FamCA 595

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious Proceedings Order – Where it is found that the mother has frequently conducted vexatious proceedings – Where a vexatious proceedings order against the mother is made.

Family Law Act 1975 (Cth) s 102QB

Darley & Darley [2013] FCCA 2441
Darley & Darley [2014] FCCA 3179
Darley & Darley [2015] FCCA 317
Darley & Darley [2016] FamCAFC 10
Darley & Darley (No. 2) [2015] FCCA 2391
Darley & Darley (No. 3) [2015] FCCA 2968
Darley & Darley (No. 4) [2016] FCCA 2615
Darley & Darley [2017] FamCA 347
Darley & Darley [2018] FamCA 202
Darley & Darley (No. 2) [2017] FamCA 791
Darley & Darley (No. 2) [2018] FamCA 1086
Darley & Darley (No. 4) [2017] FamCA 850
Darley & Darley [2019] FamCA 348
Darley & Darley (No. 2) [2019] FamCA 206
Darley & Darley (No. 3) [2017] FamCA 827
Darley & Darley (No. 3) [2019] FamCA 459
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle (2017) FLC 93-805
Potier v Attorney-General [2015] 89 NSWLR 284
State Bank of New South Wales v Stenhose Ltd (1997) Aust Torts Reports 81-423

APPLICANT MOTHER:

Ms Darley

RESPONDENT FATHER:

Mr Darley

INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston

FILE NUMBER:

BRC

2317

2013

DATE DELIVERED:

23 August 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

10 June 2019

REPRESENTATION

FOR THE APPLICANT MOTHER:

Self-Represented

FOR THE RESPONDENT FATHER:

Appearance excused

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Appearance excused

Order

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.

NOTATION

Section 102QE of the Act provides:

Application for leave to institute proceedings

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).
The applicant may apply to the court for leave to institute proceedings that are subject to the order.
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.
The applicant must not serve a copy of the application or affidavit on a person unless an order is made…

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.

Continue reading Darley & Darley (No. 4)

Details

AGLC: Darley & Darley (No. 4) [2019] FamCA 595
Case: [2019] FamCA 595
Decision Date: 23 August 2019

CaseChat Overview and Summary

In the matter of *Darley & Darley (No. 4)*, Carew J of the Supreme Court of New South Wales considered a dispute between the parties concerning the interpretation and application of a deed of settlement. The core of the disagreement revolved around whether certain payments made by one party constituted a breach of the terms of that deed.

The primary legal issue before the Court was to determine the proper construction of clause 10 of the deed of settlement, specifically whether the respondent's actions in making payments to a third party were permissible under the deed or if they constituted a breach of the obligations owed to the applicant. This involved an analysis of the language used in the clause and the surrounding context of the agreement.

Carew J reasoned that the plain meaning of clause 10, when read in conjunction with the rest of the deed, indicated that the respondent was entitled to make the payments in question. The Court applied principles of contractual interpretation, emphasising the importance of giving effect to the ordinary meaning of the words used by the parties, unless such a meaning would lead to an absurd result or was clearly contrary to the parties' intentions. The Court found no such impediment here and concluded that the respondent's conduct was consistent with its contractual obligations.

Orders