Darley & Darley (No 6)
[2023] FedCFamC1F 537
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Darley & Darley (No 6) [2023] FedCFamC1F 537
File number BRC 2317 of 2013 Judgment of WILSON J Date of judgment 3 July 2023 Catchwords FAMILY LAW – REVIEW APPLICATION – mother sought review of judicial registrar’s orders – mother is the subject of vexatious proceedings order – leave to bring applications not having been granted – mother sought destruction of family report – mother sought orders for the determination of contravention application ahead of trial presently listed for 28 August 2023 – matters for determination by trial judge – held, review application dismissed. Legislation Family Law Act 1975 ss 102QB(2), 102QD & 102QE Cases cited Darley & Darley [2013] FCCA 2441
Darley & Darley [2014] FCCA 3179
Darley & Darley (No.3) [2015] FCCA 2968
Darley & Darley (No.2) [2015] FCCA 2391
Darley & Darley [2016] FamCAFC 10
Darley & Darley (No.4) [2016] FCCA 2615
Darley & Darley [2017] FamCA 347
Darley & Darley (No.5) [2017] FamCA 1182
Darley & Darley (No.2) [2017] FamCA 791
Darley & Darley (No. 3) [2017] FamCA 827
Darley & Darley (No. 4) [2017] FamCA 850
Darley & Darley [2018] FamCA 202
Darley & Darley (No.2) [2018] FamCA 1086
Darley & Darley [2019] FamCA 348
Darley & Darley (No. 2) [2019] FamCA 206
Darley & Darley (No. 3) [2019] FamCA 459
Darley & Darley (No. 4) [2019] FamCA 595
Darley & Darley [2019] FamCAFC 238
Darley & Darley [2020] FamCAFC 4
Darley & Darley (No. 2) [2020] FamCAFC 193
Darley & Darley (No. 3) [2020] FamCAFC 289
Darley & Darley (No. 4) [2021] FamCAFC 54
Darley & Darley [2022] FedCFamC1F 566
Darley & Darley (No 2) [2022] FedCFamC1F 906
Darley & Darley (No 3) [2022] FedCFamC1F 1061
Darley & Darley (No 4) [2023] FedCFamC1F 162
Darley & Darley (No 5) [2023] FedCFamC1F 193
Division Division 1 First Instance Number of paragraphs 22 Date of last submissions 28 June 2023 Date of hearing 28 June 2023 Place Melbourne Solicitor for the applicant applicant in person Solicitor for the respondent respondent 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
WILSON J
DATE OF ORDER
3 July 2023
THE COURT ORDERS THAT
1.The mother’s review application is 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
By application for review dated 14 June 2023, the mother has applied to review orders made by a judicial registrar of the court on 25 May 2023.
Litigation between the father and mother has been on foot since 2013. Over the ensuing 10 years, not less than 27 judgments of the court have been produced dealing with aspects of the ongoing internecine in this litigation.[1]
[1] Darley & Darley [2013] FCCA 2441, Darley & Darley [2014] FCCA 3179, Darley & Darley (No.3) [2015] FCCA 2968, Darley & Darley (No.2) [2015] FCCA 2391, Darley & Darley [2016] FamCAFC 10, Darley & Darley (No.4) [2016] FCCA 2615, Darley & Darley [2017] FamCA 347, Darley & Darley (No.5) [2017] FamCA 1182, Darley & Darley (No.2) [2017] FamCA 791, Darley & Darley (No. 3) [2017] FamCA 827, Darley & Darley (No. 4) [2017] FamCA 850, Darley & Darley [2018] FamCA 202, Darley & Darley (No.2) [2018] FamCA 1086
Pursuant to orders previously made, the trial of this proceeding is fixed before Hogan J on 28 August 2023. Pursuant to orders made by a judicial registrar on 31 May 2023, the application in paragraph 2 of the mother’s application in a proceeding filed on 5 July 2022 is fixed for 5 July 2023 before Hogan J.
In the review application before me, both the mother and the father were unrepresented. The two children who are the subject of this litigation are currently 16 and 13 years of age.
On 31 May 2023 the judicial registrar also ordered that all applications in the mother’s 5 July 2022 application in a proceeding not already determined are to be dealt with on 5 July 2023 before Hogan J.
The mother sought a review in relation to the orders of the judicial registrar made 25 May 2023 in paragraphs 3, 13, 13(g), 14, 15, 16, 17, 18, 19 and 20. The mother also sought a review of notation G to those orders. The notation was not an order. The mother took me to no authority indicating that a notation could be reviewed.
Before going to each order that is the subject of this review application, it is necessary to point up two important issues. First, by orders made on 23 August 2019 by Carew J, the mother was prohibited under s 102QB(2) of the Family Law Act from instituting proceedings under the Family Law Act without first obtaining leave under s 102QE of the Family Law Act. I asked the mother whether her review application that she brought before me was caught by the orders of Carew J made 23 August 2019. The mother answered in the negative, although she did not provide a substantive submission to support her assertion.
The mother failed in her appeal against the order made by Carew J on 23 August 2019.[2]
[2] Darley & Darley (No 4) [2021] FamCAFC 54.
Second, on 17 March 2023, Campton J dismissed a different review application brought by the mother, largely on the basis that Carew J had made orders pursuant to s 102QB(2) of the Family Law Act. Campton J held that the filing by the mother of an amended application for review was a nullity and so the amended application before Campton J became stayed. In the course of his Honour’s reasons,[3] Campton J held that each application in a proceeding then before his Honour attracted the operation of s 102QD of the Family Law Act and each amended application in a proceeding attracted the operation of s 102QE. His Honour dismissed the mother’s application for review.
[3] Darley & Darley (No 4) [2023] FedCFamC1F 162.
In this review application the mother seemed to ignore the consequences to her of Carew J’s orders made on 23 August 2019. The mother made no meaningful attempt to demonstrate any entitlement to leave in relation to this review application.
THE ORDERS REVIEWED
By paragraph 3 of the judicial registrar’s order all parties are prohibited from recording any part of the proceeding. The mother advanced no submissions about that order or why the mother sought a review of it. The conduct of the trial is wholly within the control of the trial judge. Prohibiting the dissemination of information otherwise captured by s 121 of the Family Law Act is also a matter for the trial judge. In the reasons of Campton J dated 17 March 2023, his Honour expressed significant concern that the mother had filed voluminous affidavit material and other documents.
Yet paragraph 3 of the 25 May 2023 orders applied not only to the mother but also to all parties, their legal representatives and any witnesses in the proceeding. The mother advanced no submission in relation to paragraph 3 of the judicial registrar’s orders.
The mother sought the review of paragraph 13 of the order made 25 May 2023. Those related to the provision of the family report to be used in this litigation. The mother’s case in this litigation is that the family report that has been prepared should be destroyed by court order on the basis that the family consultant did not read and consider the totality of the documentation filed in this proceeding.
At the outset I refuse that application. The use of which the trail judge makes of the family report is squarely within the control of the trail judge. Likewise, any cross-examination about the family report, what the report writer considered, who the report writer interviewed and the issues canvassed with relevant persons is entirely within the control of the trial judge. Hogan J will make evidentiary rulings. Hogan J should address this issue in the conduct of the trial. The use made of the family report is not a proper matter for a judge dealing with a review application.
The father informed me that the entirety of his case in this proceeding was reposed in the family report. In those circumstances, any determination about any aspect of the family report including its admissibility is properly a matter for the trial judge, not for a judge conducting a review application.
The wife submitted that I needed to hear and determine contravention applications brought by her and that those applications had to be determined ahead of the trial. In debate with the mother it transpired that the mother sought orders concerning the determination of her contravention application so that she could submit to the trial judge that the husband should not be believed in his evidence in this case by reason of his being found to have contravened one or more orders previously made.
Having regard to the proximity of the trial, it seemed to me that questions of compliance or otherwise with orders previously made should be determined by the trial judge. The mother was emphatic in her rejection of that notion. She said she wanted the forensic advantage of going to trial with the benefit of a finding that the father had contravened one or more orders.
Aside from the fact that any such contravention application would require the allocation of judicial hearing time and that this proceeding is next before Hogan J on 5 July 2023 (two business days), I have misgivings about taking away from the trial judge the ability to assess each witness’s veracity uninfluenced by a finding on a contravention application.
I was unable to allocate time prior to 5 July 2023 to hear any such contravention application.
The mother sought recovery orders. That should be determined at trial. The trial is only a few weeks away. Further, if the mother presses for recovery orders ahead of the trial, she can bring that application before Hogan J on 5 July 2023.
In my view, the mother’s review should be dismissed. All issues in this litigation should be addressed by the trial judge.
I dismiss the mother’s review application.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 3 July 2023
Darley & Darley [2019] FamCA 348, Darley & Darley (No. 2) [2019] FamCA 206, Darley & Darley (No. 3) [2019] FamCA 459, Darley & Darley (No. 4) [2019] FamCA 595, Darley & Darley [2019] FamCAFC 238, Darley & Darley [2020] FamCAFC 4, Darley & Darley (No. 2) [2020] FamCAFC 193, Darley & Darley (No. 3) [2020] FamCAFC 289, Darley & Darley (No. 4) [2021] FamCAFC 54, Darley & Darley [2022] FedCFamC1F 566, Darley & Darley (No 2) [2022] FedCFamC1F 906, Darley & Darley (No 3) [2022] FedCFamC1F 1061, Darley & Darley (No 4) [2023] FedCFamC1F 162 and Darley & Darley (No 5) [2023] FedCFamC1F 193.
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