Darley & Darley (No. 4)

Case [2021] FamCAFC 54

FAMILY COURT OF AUSTRALIA

Darley & Darley (No. 4) [2021] FamCAFC 54

Appeal from: Darley & Darley (No. 2) [2018] FamCA 1086
Darley & Darley (No. 2) [2019] FamCA 206
Darley & Darley (No. 4) [2019] FamCA 595
Appeal number(s): NOA 9 of 2019
NOA 39 of 2019
NOA 83 of 2019
File number(s): BRC 2317 of 2013
Judgment of: AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ
Date of judgment: 23 April 2021
Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Appeal against orders providing for the distribution of net sale proceeds of the former family home and retention of the parties’ superannuation entitlements – Where the primary judge erred in finding that an existing interim order would prevail beyond final orders – Appeal allowed in part – Limited re-exercise of discretion – Appeal otherwise dismissed.

FAMILY LAW – APPEAL – PARENTING – Appeal against orders providing for the children to live with the mother and spend time with the father – Bias – No specificity of actual or apprehended bias – Procedural Fairness – No error demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – CONTRAVENTION –Where at trial all but one contravention was dismissed with no sanction imposed – Where the mother contended the primary judge was “unprofessional”, denied her procedural fairness, failed to take material considerations into account and made findings not available on the evidence – Where the mother did not particularise her grounds of appeal – No error demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – VEXATIOUS LITIGANT – Where the mother was declared vexatious pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) – Leave to institute proceedings – Where the mother’s intended proceedings are without reasonable grounds – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the mother filed a multitude of applications relating to all three appeals – Where the applications did not distinguish between each appeal – Controversial evidence – Evidence incapable of carrying probative value – Where the mother did not particularise what parts of the evidence were relevant – Applications dismissed – No orders as to costs.

Legislation:

Evidence Act 1995 (Cth) ss 69, 91, 138

Family Law Act 1975 (Cth) Pts VII, VIII, XIB, XIIIA, Div 13A, ss 4(1), 4AB, 11B(c), 60B(1), 60CC, 60CG(1), 65DAC, 69ZV, 69ZX(3), 75(2), 93A(2), 102Q(1), 102QB, 102QE, 102QF, 102QG, 117

Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Regulations 1984 (Cth) reg 7

Family Law Rules 2004 (Cth) r 22.09
Cases cited:

A v A (1998) FLC 92-800; [1998] FamCA 25

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Bass and Bass (2008) FLC 93-366; [2008] FamCAFC 67

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22

Carpenter & Lunn (2008) FLC 93-377; [2008] FamCAFC 128

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577

Continue reading Darley & Darley (No. 4)

Sign in free to access the full text

Details
AGLC
Darley & Darley (No. 4) [2021] FamCAFC 54
Case
[2021] FamCAFC 54
Decision Date

CaseChat Overview and Summary

Ms Darley appeals against several orders made by the Family Court in relation to property distribution, parenting arrangements, contraventions, and leave to appeal. Mr Darley cross-appeals against the property distribution orders. The Court of Appeal found that the primary judge erred in allowing an interim order to prevail beyond the final orders. The Court of Appeal allowed the appeal in part and re-exercised its discretion in relation to the distribution of the net sale proceeds of the former family home. The Court of Appeal dismissed the appeal in relation to the parenting orders, finding no error in the primary judge's decision. The Court of Appeal also dismissed the appeal in relation to the contraventions, finding no error demonstrated by the mother. The Court of Appeal dismissed the mother's application for leave to appeal, finding her to be a vexatious litigant. The Court of Appeal also dismissed the mother's applications to adduce further evidence in relation to all three appeals, finding the evidence incapable of carrying probative value.

The Court of Appeal found that the primary judge did not err in her consideration of the evidence given by the parties in relation to the mandatory considerations prescribed by s 60CC of the Family Law Act 1975 (Cth). The Court of Appeal found that the primary judge's attention was principally focussed upon any current risk of harm allegedly posed by the father to the children, as required by s 60CC(2)(b) of the Act. The Court of Appeal found that the primary judge did not overlook s 60CC(3)(k) of the Act, acknowledging the numerous past temporary family violence orders made in the mother's favour by a State court, the conditions of which did not trespass upon any parenting orders. The Court of Appeal found that the primary judge's findings in relation to the father's care of the children were eminently open to her and there was no error.

The Court of Appeal found that the mother failed to identify what "relevant matters" were overlooked by the primary judge in finding the deficiencies in the passport application forms signed by the father were "not intentional" and that his alleged contravention of the order was not proven. The Court of Appeal found that the decision made about the contravention applications was not discretionary in nature and that the decision was either right or wrong. The Court of Appeal found that the mother's grievance with the first judge's dismissal of two contravention counts alleged against the father ought to have been the subject of a ground of appeal in the first appeal from the orders made at that time, but it was not. The Court of Appeal found that the mother's complaint was without merit in any event.

The Court of Appeal found that the parties' hearsay evidence about what was said to them in passing by State magistrates in other proceedings could hardly carry any probative weight in proceedings before the primary judge. The Court of Appeal found that the mother failed to explain in the appeal why it was necessary for her Honour to have positively found the State magistrate made the comments to the father as she alleged. The Court of Appeal found that the mother did not conduct her case contending that her honest belief in the risks of harm posed by the father was so pervasive that if, contrary to her proposal, orders were made for the children to spend unsupervised time with him she would collapse emotionally and be unable to cope, thereby compromising the children's welfare. The Court of Appeal found that the mother eventually conceded in both cross-examination and final submissions that the children could regularly spend unsupervised time with the father.

The Court of Appeal found that the primary judge did not err by making two particular orders. The Court of Appeal found that Order 6(b) and 6(c) enable the children to spend time with the father in school holiday periods for longer than the four weeks of annual leave he can take from his employment and, since his ordinary work hours are between 4.00 am and 2.00 pm, the mother asserts he cannot look after the children satisfactorily and so the order was made in error. The Court of Appeal found that the mother's grievance was without merit.

The Court orders that leave is granted to the appellant to rely upon the unfiled Amended Notice of Appeal dated 22 February 2021 in relation to Appeal No. NOA 9 of 2019 and the unfiled Amended Notice of Appeal dated 19 February 2021 in relation to proposed Appeal No. NOA 83 of 2019. The Court dismisses the outstanding applications contained within the Applications in an Appeal filed on 2 August 2019, 11 November 2019, 2 December 2019, 12 December 2019, 21 May 2020, 25 September 2020, and 22 February 2021. The Court allows Appeal No. NOA 9 of 2019 in part and dismisses Appeal No. NOA 39 of 2019. The Court refuses leave to appeal in Appeal No. NOA 83 of 2019. The Court makes no order as to costs.

Orders

Orders of the court

NOA 9 of 2019

NOA 39 of 2019

NOA 83 of 2019

BRC 2317 of 2013

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS DARLEY

Appellant

AND:

MR DARLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ

DATE OF ORDER:

23 APRIL 2021

THE COURT ORDERS THAT:

1. In relation to Appeal No. NOA 9 of 2019, leave is granted to the appellant to rely upon the unfiled Amended Notice of Appeal dated 22 February 2021.

2. In relation to proposed Appeal No. NOA 83 of 2019, leave is granted to the appellant to rely upon the unfiled Amended Notice of Appeal dated 19 February 2021.

3. Otherwise, the outstanding applications contained within the Applications in an Appeal filed on 2 August 2019, 11 November 2019, 2 December 2019, 12 December 2019, 21 May 2020, 25 September 2020, and 22 February 2021 are dismissed.

4. Appeal No. NOA 9 of 2019 is allowed in part.

5. The respondent shall forthwith cause to be delivered to the appellant, in an undamaged and working condition:

a) the original DVD recording of the christening celebration for the eldest child;

b) the original DVD recording of the wedding celebration of the parties; and

c) the original CD storing the photographs of the said christening and wedding.

6. Appeal No. NOA 39 of 2019 is dismissed.

7. Leave to appeal in Appeal No. NOA 83 of 2019 is refused.

8. No order as to costs

.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As is clear from the reasons for judgment, the primary judge considered at length the merit of the evidence given by the parties in relation to each of the mandatory considerations prescribed by s 60CC of the Act. Sensibly, her Honour did not make blanket findings about the parties’ credit, or lack thereof. Indeed, the primary judge found reason to doubt the evidence of both parties in some respects, which her Honour explained in these terms:17.My concerns about the evidence given by both parents at various times during the proceedings make this impasse somewhat difficult to resolve: both parents at times approached the giving of evidence with their own benefit more in mind than an objective recitation of the facts; each was, in my view, willing to obfuscate on occasions, albeit that they approached this task differently too…(Emphasis added) The primary judge considered the mother’s evidence about the father’s commission of family violence, all of which related to incidents either before or at the time of their separation in September 2012 (at [85]–[116]), but it was obviously appropriate for the mother’s allegations to be considered in context. The subject events occurred more than two years before the parties first agreed to final parenting orders in December 2014, which orders provided for the children to spend substantial amounts of unsupervised time with the father, and more than five years before the start of the trial in October 2017. Moreover, the mother’s concessions during cross-examination about the amount of unsupervised time the children could safely spend with the father only served to emphasise the waning significance of her historical allegations. Her Honour found the parties’ relationship was characterised by verbal abuse in the past (at [89] and [228]), but was unconvinced the father had committed “family violence” or “domestic violence” (at [237] and [239]) or that the father communicated with the mother in a “controlling and coercive manner” (at [241]). The primary judge’s attention was principally focussed upon any current risk of harm allegedly posed by the father to the children, as s 60CC(2)(b) of the Act required. Her Honour did not overlook s 60CC(3)(k) of the Act, acknowledging the numerous past temporary family violence orders made in the mother’s favour by a State court, the conditions of which did not trespass upon any parenting orders (at [228]–[239]). The primary judge also considered the mother’s evidence about the father’s care of the children between 2012 and 2018 (at [117]–[154]), which was contended to be either abusive or neglectful. The primary judge found the father did not deliberately harm the children and that they were likely to be safe spending unsupervised time with him, though his care was somewhat more laissez-faire than the mother’s approach to their care (at [152]–[154], [188] and [196]). All of those findings were eminently open to the primary judge. There was no error.

Decision

Reasons for decision

Presumably, therefore, this grievance relates to the dismissal of Count 10 concerning the dispute which arose over the children’s passports in January 2019. This ground of appeal must be dismissed because the mother failed to identify what “relevant matters” were overlooked by the primary judge in finding the deficiencies in the passport application forms signed by the father were “not intentional” (at [57]), in which case his alleged contravention of the order was not proven (at [59]). In any event, with the help of the ICL, the passport applications were completed and signed at court on the day of hearing (at [58]), so the substance of the parties’ dispute was successfully resolved.Decision clearly wrong (Ground 6) This ground, contending the primary judge erred by “exercising… discretion to arrive at a decision which was clearly wrong”, must be dismissed because it is unsupported by any submission. In any event, the decision made about the contravention applications was not discretionary in nature. On the available evidence, the decision was either right or wrong and no other grounds of appeal establish any error made in the disposition of the contravention applications. While the decision to order the mother to pay the ICL’s modest costs was discretionary, nothing about the reasons given for that order suggests it was “clearly wrong”.Other orders (Ground 12) Although this is an appeal from orders made by the second judge in April 2019, this ground alleged the first judge erred in December 2018 by dismissing two contravention counts alleged against the father. The first judge decided those two counts should be dismissed when determining the substantive parenting proceedings between the parties (at [276]–[278]) and made orders accordingly. When the remainder of the mother’s contravention applications were heard by the second judge in April 2019, her Honour expressly noted the earlier disposition of those two counts (at [2]). The mother’s grievance with the first judge’s dismissal of those two counts in December 2018 ought to have been the subject of a ground of appeal in the first appeal from the orders made at that time, but it was not. The grievance cannot be legitimately pursued in this second appeal. However, overlooking the technical procedural impediment, the mother’s complaint is without merit in any event. The complaint is that the first judge erred by “failing to exercise jurisdiction” and by “failing to make findings” which accorded with the mother’s belief in the father’s contravention of the subject orders. First, the primary judge did exercise jurisdiction by determining the counts, so there was no failure. Secondly, her Honour explained the dismissal of the counts on the basis of her lack of satisfaction that the evidence proved the father’s intentional breach of the orders, or alternatively, that the evidence proved his reasonable excuse for the breach. No error is manifest merely from the mother’s disagreement with the decision made. Her misconception is evident from the submission she simply made in these terms:31.… [The first judge] could and should have made the determination that the [father] breached those Orders on the evidence…THE VEXATIOUS ORDER APPEAL

Ratio Decidendi

Legal Principle Established

The parties’ hearsay evidence about what was said to them in passing by State magistrates in other proceedings could hardly carry any probative weight in proceedings before the primary judge. Her Honour noted the dispute over what had been said to the parties by State magistrates in the past and so, soundly, decided it was inadvisable to make definitive findings in the absence of transcript (at [231]–[232]). The mother failed to explain in the appeal why it was necessary for her Honour to have positively found the State magistrate made the comments to the father as she alleged. Passing comments were meaningless. The implications of any decision made by a State court would be evident from the face of its orders or reasons for judgment.Failure to take a material consideration into account (Grounds 6 and 18) The mother contended the primary judge erred at law by failing to take into account material considerations, namely her “anxiety due to a genuine belief” that the children had been abused by the father (Ground 6) and the relevant evidence pertaining to the risks of harm posed by the father to the children by reason of his family violence and neglect (Ground 18). The findings about the mother’s allegations of family violence and neglect have already been addressed under Ground 23. Her Honour did not fail to take the mother’s evidence into account. Rather, the findings against the father for which the mother advocated were not made. That did not entail error. Notably, the mother did not conduct her case contending that her honest belief in the risks of harm posed by the father was so pervasive that if, contrary to her proposal, orders were made for the children to spend unsupervised time with him she would collapse emotionally and be unable to cope, thereby compromising the children’s welfare (Sedgley and Sedgley (1995) FLC 92-623 at 82,259–82,260; Re Andrew (1996) FLC 92-692 at 83,200–83,203; A v A (1998) FLC 92-800 at 84,996–84,997). On the contrary, the mother eventually conceded in both cross-examination and final submissions that the children could regularly spend unsupervised time with the father. She made this final submission at trial:[THE MOTHER]: … I have no intention of stopping the children seeing the – their father, if that’s what the court orders.(Transcript 14 February 2018, p.180 lines 30–31) Self-evidently, the mother anticipated she could ensure the children would spend unsupervised time with the father if ordered and it would not compromise her parenting capacity. She cannot run a contradictory argument in the appeal, let alone without evidence to support it (Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7; Water Board v Moustakas (1988) 180 CLR 491 at 497). Ground 18 also fails.Erroneous orders (Grounds 24 and 28) These grounds contend the primary judge erred by making two particular orders. Orders 6(b) and 6(c) enable the children to spend time with the father in school holiday periods for longer than the four weeks of annual leave he can take from his employment and, since his ordinary work hours are between 4.00 am and 2.00 pm, the mother asserts he cannot look after the children satisfactorily and so the order was made in error (Ground 24).