Darley & Darley (No 5)

Case [2023] FedCFamC1F 193


FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)

Darley & Darley (No 5) [2023] FedCFamC1F 193

File number(s): BRC 2317 of 2013
Judgment of: HOGAN J
Date of judgment: 24 March 2023
Catchwords:  FAMILY LAW – PRACTICE AND PROCEDURE – Where application is made seeking the recusal of the Judge on the basis of actual or apprehended bias – Where application is dismissed.
Legislation: Family Law Act 1975 (Cth)
Cases cited:

British American Tobacco Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2

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

Doughty-Cowell v Kyriazis [2018] VSCA 216

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22

SCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 668

Division: First Instance
Number of paragraphs: 29
Date of hearing: 14 September 2022
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:

MS DARLEY

Applicant

AND:

MR DARLEY

Respondent

order made by:

HOGAN J

DATE OF ORDER:

24 MARCH 2023

THE COURT ORDERS THAT:

1.Paragraphs 1 and 2 of the Application in a Proceeding filed 9 September 2022 are dismissed.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HOGAN J:

  1. Ms Darley submitted that I should recuse myself from further hearing of the current applications before me on the basis of asserted actual bias against her and a reasonable apprehension of bias.

  2. Given the tests to be applied in determining such application (about which more is said below) it is, I think, appropriate that I provide a brief summary of the orders I have previously made and the reasons I have previously delivered on some of the occasions on which Ms Darley and Mr Darley have previously been before me.

  3. Such summary is as follows:

    (a)on 29 September 2017, for the reasons…

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AGLC
Darley & Darley (No 5) [2023] FedCFamC1F 193
Case
[2023] FedCFamC1F 193
Decision Date

CaseChat Overview and Summary

The case of Darley & Darley (No 5) involved a dispute between the parties regarding allegations of bias against the Family Court Judge who had previously presided over their earlier proceedings. The matter came before the Family Court of Australia, which was tasked with determining whether the apprehensions of bias raised by the applicant, Ms Darley, were justified.

The primary legal issue before the court was whether the Judge had demonstrated bias in the earlier proceedings that would carry over into the current case, thereby affecting the perceived impartiality of the Judge. The court had to consider Ms Darley's submissions that the Judge had failed to make certain factual findings and had erred in others, and whether these actions indicated a bias against her case. Additionally, the court needed to apply the two-step process for determining apprehended bias, established in Ebner v The Official Trustee in Bankruptcy.

The court found that Ms Darley's concerns about bias were unfounded. It was determined that the Judge had not prejudged the current proceedings and had, in fact, dismissed some of Mr Darley's applications and adjourned the proceedings to allow Ms Darley more time to prepare. The court also noted that Ms Darley's appeal against the previous parenting orders had been dismissed by the Full Court, which further undermined her claims of bias. The Judge concluded that there was no basis for the apprehension of bias and that the Judge would remain impartial in the current proceedings.

As a result of the court's findings, the appeal was dismissed, and the Judge's decision to proceed with the current proceedings was upheld. The court maintained that the Judge was not biased and was capable of fairly hearing and deciding the matter based on the merits of the case.

Orders

Orders of the court

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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

Authority also establishes that the determination of whether the test of apprehended bias is made out in a particular case requires satisfaction of a two-step process: first, the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits and, secondly, an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[10][10] Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337.Consideration As I appreciated the thrust of her submissions or at least an underlying aspect of the same, Ms Darley contended that the apprehended bias is the apprehension that, because I determined the proceedings between herself and Mr Darley which were finalised by the December 2018 order in a manner that did not totally accept her contentions, I will not bring an impartial mind to the current proceedings and I will, therefore, have prejudged the same. However, as the record makes clear, I did not determine the previous proceedings totally as either Mr Darley of the Independent Children’s Lawyer advanced that I should. Further, in relation to the current proceedings, I have already dismissed aspects of Mr Darley’s application and previously adjourned the proceedings at Ms Darley’s request to afford her the opportunity to explore whether she was able to enlist the services of a person she considered appropriate to provide the Family Report I ultimately ordered be prepared. Ms Darley also submitted that, in determining the proceedings finalised by the December 2018 order:(a)I failed to make a number of factual findings that she urged be made – namely, that:(i)Mr Darley repeatedly, negligently and neglectfully sunburned the children; and(ii)Mr Darley had, amongst the other things she listed, committed coercive controlling family violence, committed family violence, exposed the children to family violence and trauma, negligently allowed X to suffer from heatstroke and failed to follow medical recommendations; and(iii)Mr Darley had made false and misleading statements to the author of the family report; and(iv)Mr Darley had committed perjury by stating he had never been charged with breaching a protection order and then later accepting that he had; and(v)Mr Darley had made false and misleading statements to the Court and had committed perjury. (b)I erred by finding that:(i)Mr Darley did not sunburn the children intentionally in late 2017 and numerous other occasions; and(ii)the children had been exposed to emotional harm by her as a consequence of the sunburn clause she had asked for in previous parenting orders. It is a matter of record that Ms Darley’s appeal against the parenting orders made in December 2018 was dismissed by the Full Court on 23 April 2021.[11][11] Darley & Darley (No. 4) [2021] FamCAFC 54. Ms Darley also submitted that in either making the findings of fact with which she disagreed or in failing to make the findings of fact which she asserted ought to have been made (as she particularised) in the disposal of the proceedings concluded by the making of the December 2018 order, I demonstrated bias against her and her case and, by virtue of such actions:(a)I have demonstrated bias against her case in the current tranche of proceedings; and (b)the hypothetical bystander, possessed of the requisite knowledge, would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the outstanding applications.