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Darley & Darley (No 6)

Darley & Darley (No 6)

Case [2023] FedCFamC1F 537 3 July 2023

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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…

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 6)

Details

AGLC: Darley & Darley (No 6) [2023] FedCFamC1F 537
Case: [2023] FedCFamC1F 537
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Darley applied for a review of orders made by a judicial registrar on 25 May 2023. The proceedings between Ms Darley and Mr Darley have been ongoing since 2013, with numerous judgments already issued. The mother sought a review of specific orders made by the judicial registrar, including an order prohibiting the recording of any part of the proceeding, an order concerning the provision of a family report, and an order for the determination of a contravention application ahead of the trial. The mother also sought the destruction of the family report on the basis that the family consultant did not consider all documentation filed in the proceeding. The court noted that the mother was subject to a vexatious proceedings order made on 23 August 2019, prohibiting her from instituting proceedings without first obtaining leave.

The court dismissed the mother's review application, finding that all issues in the litigation should be addressed by the trial judge. The court held that the conduct of the trial, including the dissemination of information, was within the control of the trial judge. The use of the family report and any cross-examination about the report were also matters for the trial judge. The court further held that any determination about the admissibility of the family report was a matter for the trial judge, not for a judge conducting a review application. Additionally, the court found that questions of compliance with previously made orders should be determined by the trial judge, and any contravention application should be brought before the trial judge on 5 July 2023. The court was unable to allocate time prior to 5 July 2023 to hear any such contravention application.

The court dismissed the mother's review application, and the matter will proceed to trial before Hogan J on 28 August 2023. The court noted that the form of the order is subject to the entry in the Court’s records and may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders