Darley & Darley (No 8)
[2023] FedCFamC1F 574
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Darley & Darley (No 8) [2023] FedCFamC1F 574
File number(s): BRC 2317 of 2013 Judgment of: HOGAN J Date of judgment: 10 July 2023 Catchwords: FAMILY LAW – CHILDREN – Where the applicant seeks leave to institute contravention proceedings against the respondent – Where the application is dismissed. Legislation: Family Law Act 1975 (Cth) Cases cited: Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481
Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177
SCVG (2020) FLC 93-967; [2020] FamCAFC 147
State Bank of New South Wales Ltd v Stenouse Ltd (1993) Aust Torts Reports 81-423
Division: First Instance Number of paragraphs: 25 Date of hearing: 5 July 2023 Place: Brisbane The Applicant: Litigant in person The 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:
10 JULY 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 5 July 2022, as amended by an oral application, for leave to institute proceedings for contravention as particularised in the Application – Contravention signed 26 June 2022 and the Application – Contravention signed 3 July 2023 (as exhibited to Ms Darley’s affidavit filed by leave on 5 July 2023) is dismissed.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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:
On 23 August 2019, for the reasons delivered that day, Carew J made an order pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) prohibiting Ms Darley from instituting proceedings against Mr Darley or the Independent Children's Lawyer under the Act in a court having jurisdiction under it without first obtaining leave pursuant to s 102QE of the Act.
Ms Darley seeks that an order be made granting her leave to institute contravention proceedings against Mr Darley in terms set out in an Application – Contravention signed by her on 26 June 2022 and an Application – Contravention signed by her on 3 July 2023.[1]
[1] Exhibited to the affidavit of Ms Darley filed by leave on 5 July 2023.
Some relevant background
On 5 July 2022, Ms Darley filed an Application in a Proceeding (“the July 2022 Application”) by which she sought leave to institute parenting proceedings and, amongst other relief, leave to institute proceedings alleging that Mr Darley had contravened final parentings orders I made on 12 December 2018 (“the December 2018 orders”) after a trial which occupied seven days across 2017 and 2018.
The July 2022 Application was relied on by Ms Darley, at least in part, in answer to contravention proceedings which had been instituted against her by Mr Darley when he filed an Application – Contravention on 23 May 2022 (“the May 2022 Contravention Application”).
The May 2022 Contravention Application, by which Mr Darley alleged that Ms Darley had contravened the terms of the December 2018 orders by failing to provide Y to spend time with him, was first before me on 11 July 2022. At that time, the parents’ older daughter X[2] had been living with Mr Darley since early December 2021 (and had not spent time with Ms Darley since then), whilst their younger daughter, Y[3], remained living with Ms Darley. When Ms Darley first made me aware of the existence of the July 2022 Application – it not having been listed before me on 11 July 2022 – it had been listed to be heard by Carew J on 28 July 2022.
[2] Born in 2006.
[3] Born in 2009.
For whatever reason and as a consequence of whatever decisions and/or actions made and taken by either parent, the reality for the children (and their parents) was, as at 11 July 2022, that they had not spent time with each other for a number of months and that each of them had not spent time, for a number of months, with the parent with whom they were not then living.
It was this circumstance which led me to attempt, on 11 July 2022, to have these parents focus on the Court’s power[4], once proceedings for contravention have commenced, to vary existing parenting orders. This seemed to me to be appropriate and in the children’s best interests given that the children’s circumstances had clearly changed significantly since the end of 2021. Given this, I also raised with the parents whether I should consider making an order for them and the children to be interviewed by a court child expert/family consultant and for such person to prepare a report to assist the Court in determining, at the hearing of the parents’ competing applications to vary the December 2018 orders, those orders now in the children’s best interests. In order to accommodate this approach, I accorded the matter significant priority and allocated it hearing dates on 14 and 15 September 2022.
[4] Family Law Act 1975 (Cth), s 70NBA(1).
Further, given Ms Darley’s objection to the engagement of a court child expert/family consultant, I accorded her the opportunity to attempt to ascertain the existence of someone she considered appropriately qualified to conduct the interviews and prepare a report and who was prepared to be engaged in that activity – I listed the proceedings for further consideration of that issue on 22 July 2022.
Unfortunately, as a consequence of my subsequent ill-health, that appearance was adjourned to 5 August 2022.
When the parents appeared on 5 August 2022, I noted that Ms Darley’s evidence included that she had been unable to locate an appropriately qualified person to prepare a family report; I noted that aspects of the May 2022 Contravention Application remained outstanding; I advised that the children and the parents would be interviewed by a court child expert/family consultant on 31 August and 1 September 2022 and that the matter would be listed, having been accorded significant priority, for hearing (of what I regarded as the competing application to vary the December 2018 order) on 14 and 15 September 2022. I also noted that the July 2022 Application (by which, amongst other things, Ms Darley sought leave to institute contravention proceedings against Mr Darley) remained unresolved – I advised the parties that I did not intend to deal with that aspect of the application at that time because of my desire, given that the children remained living separately and were still not spending time with each other or the parent with whom they were not living, to (attempt) to keep the parents focused on the competing variation applications; I advised the parents that, whilst I would not fail to deal with the July 2022 Application insofar as it sought leave to institute contravention proceedings against Mr Darley and that I would hear their submissions in relation to the same at the trial which I had listed for 14 and 15 September 2022, I was focused, in the circumstances, on dealing with the applications to vary the December 2018 order – which I noted was, for me, the bigger priority in the circumstances.
When the proceedings returned before me on 14 September 2022, Ms Darley sought that I recuse myself from further involvement in them.[5] In doing so she relied on her affidavit filed on 9 September 2022 (of some 676 pages) and her affidavits filed on 5 July 2022 (468 pages), 8 July 2022 (32 pages), 2 August 2022 (48 pages), 4 August 2022 (64 pages), 1 September 2022 (46 pages), 8 September 2022 (51 pages) and 13 September 2022 (74 pages) and the Reasons for Judgment delivered 18 December 2018. She also relied on written submissions filed 4 August 2022, an Outline of Case filed 16 October 2017, an affidavit by Mr ZZ sealed 12 September 2022 and sought to rely on an affidavit by Dr YY sealed 12 September 2022.
[5] Application in a Proceeding filed 9 September 2022, paragraphs 1 and 2.
During the course of taking Ms Darley’s submissions on 14 September 2022 – and in the course of seeking to understand her submissions to the effect that one of the actions she relied on, as establishing either my actual bias against her case and/or that the test for a reasonable apprehension of bias was met, included my refusal to hear her application for leave to institute contravention proceedings against Mr Darley – I noted my recollection that I had previously advised the parents that I had not forgotten about this aspect of the July 2022 Application and that I would come to it, but was according priority to the “variation” aspect of the proceedings because the children were not seeing each other or the parent with whom they were not living.
Ms Darley’s submissions on 14 September 2022 included that her application for leave to commence contravention proceedings against Mr Darley had not been heard “to prevent any findings of fact being made against the father which might adversely affect the father’s current application and the orders that are made”. Once the submissions were completed, I reserved my decision so that I could have the opportunity to play close attention to the evidence to which Ms Darley had referred me during her submissions and to consider her application properly.
On 24 March 2023, I dismissed Ms Darley’s application that I recuse myself from further involvement in the proceedings.
On 25 May 2023, a Judicial Registrar listed the matter for final hearing before me for two days commencing on 28 August 2023. An order dismissing the May 2022 Contravention Application was made by consent.[6] The Judicial Registrar made a number of directions to facilitate the trial listing, including that the parents and children attend for interview for the preparation of an updated family report – an order that seems to me to be apposite given that Y moved from Ms Darley’s care into Mr Darley’s care in early November 2022 and that it appears that neither child has spoken to or spent time with Ms Darley since leaving her care: that is, X has not spent time with Ms Darley since December 2021 and Y has not spent time with Ms Darley since November 2022.
[6]As was the case in relation to the outstanding aspects of the Application in a Proceeding filed 9 September 2022 by Ms Darley.
On 31 May 2023, the Judicial Registrar listed Ms Darley’s application for leave to institute contravention proceedings against Mr Darley before me on 5 July 2023. Whilst the order listing the matter referred only to the relief sought at paragraph 2 of the July 2022 Application, I approached the hearing on the basis that Ms Darley also sought leave to commence contravention proceedings as particularised in an Application – Contravention signed by her on 3 July 2023.[7]
[7] Exhibited to the affidavit of Ms Darley filed by leave on 5 July 2023.
Ms Darley’s submissions in support of the grant of leave
During the course of hearing her submissions in support of the grant of leave to institute contravention proceedings against Mr Darley, I asked Ms Darley to identify the purpose/s of the proposed applications for contravention.
Doing the best that I can, it seemed to me that Ms Darley’s purposes were:
(a)to ensure that findings of fact about various contentions (which will be the subject of evidence given at the trial listed to commence on 28 August 2023 before me) are made before the trial commences so that they can be used to provide bases for the making of those parenting orders which Ms Darley asserts are now in the children’s best interests; and
(b)given Ms Darley’s assertion that, in determining the previous proceedings by the December 2018 order, I failed to make various findings of fact which she sought be made:
(i)to ensure that findings of fact about various contentions (which will be the subject of evidence given at the trial listed to commence on 28 August 2023 before me) are, in fact, made as the disposition of the applications for contravention (if commenced) would require such findings of fact to be made; and
(ii)to prevent a repetition of the 2018 failures to make findings of fact from reoccurring; and
(c)to ensure that, before the 28 August 2023 trial commences, there are findings on the record that Mr Darley contravened the December 2018 orders without reasonable excuse – because this is relevant to the determination of those parenting orders now in the children’s best interests and because such findings are relevant to the assessment of Mr Darley’s credit; and
(d)to ensure that the correct facts are stated on the record; and
(e)to address her concerns that findings of fact will not be made at the upcoming trial; and
(f)to address the failure in the past to make findings that Mr Darley has committed perjury, filed a “false verified statement” and attempted to pervert the course of justice; and
(g)to ensure that, given the children are both now living with Mr Darley despite the terms of the December 2018 order requiring that they live with her, a finding is made that Mr Darley is in breach of the December 2018 order; and
(h)to ensure that findings of fact are made about the alleged contraventions before the trial proceeds so that there is not a repeat of the past situation where she was “punished” by being the subject of a vexatious proceedings order; and
(i)to address failings in the system; and
(j)to ensure that findings are made that Mr Darley has told different stories to different judicial officers about the same matters, which will go to a consideration of his credit at the upcoming trial; and
(k)on the premise that any instituted applications for contravention can be heard and determined before the trial commences: to narrow the purview of the trial as findings of fact made in the determination of the contravention applications can be used at the trial (and thus obviate the necessity for the Court to consider that evidence at trial); and
(l)to provide a basis for her application at trial that Mr Darley be the subject of a vexatious proceedings order prohibiting him from instituting proceedings in a court having jurisdiction under the Act.
As I appreciated it, Ms Darley’s primary (but clearly not only) purpose of seeking leave to prosecute the applications for contravention against Mr Darley was to safeguard against a prospective failure to make findings of fact at the upcoming trial, during which the evidence will include the evidence to be relied on in prosecuting the applications for contravention if leave to institute the same is granted.
Ms Darley also submitted that the proposed applications for contravention she wished to institute against Mr Darley are not vexatious because he has not denied breaching the December 2018 order (in that both children are now living with him, whilst that order provides for them to live with her and spend time with him) and she has been waiting for the Court to determine her application (at last insofar as that dated June 2022 is concerned) for a considerable period of time. She also rejected any suggestion that the upcoming trial listing means there is no or little utility in prosecuting the applications for contravention on the basis that she has been waiting for a significant period of time for her application for leave to be determined. She submitted that she had sought leave to institute contravention proceedings against Mr Darley because the Court had previously noted that the appropriate process is that applications for contravention be heard and determined before a trial takes place. Ms Darley also submitted that, if leave to institute the contravention applications is given, they should be heard and determined now in case the current trial dates are vacated.
Discussion
The Court may exercise the discretion to grant leave to Ms Darley to institute the contravention proceedings against Mr Darley that she wishes to prosecute only if is satisfied that they are not vexatious proceedings.[8]
[8] Family Law Act 1975 (Cth) s 102QG(4).
“Vexatious proceedings” are relevantly defined[9] to include proceedings:
(a)that are an abuse of the process of the court; and
(b)instituted in the court to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)instituted or pursued in the court without reasonable ground; and
(d)conducted in the court in a way as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
[9] Family Law Act 1975 (Cth) s 102Q(1).
Proceedings may be an abuse of process of the court where they:
(a)are unreasonably oppressive and unfair to the other party; and/or
(b)will bring the administration of justice into disrepute and/or
(c)seek to re-litigate something that has already been determined in previous proceedings;[10] and/or
(d)are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise.[11]
[10] State Bank of New South Wales Ltd v Stenouse Ltd (1993) Aust Torts Reports 81-423 at 64,086 – 64,089.
[11]See: Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 per Roden J at [168], as referred to by the Full Court in Marsden & Winch (2013) FLC 93-560 at [150] to [153] albeit in the course of considering an appeal against an order made pursuant to the previous s 118(1)(c) of the Act that the father not institute any further proceedings under the Act for parenting orders or any other orders in relation to the child without leave of the Court. See also SCVG (2020) FLC 93-967 at [33], [39]–[46], [50] & [51].
Given the history of the consideration of the application for leave to institute contravention proceedings, the nature of the contraventions alleged and the time at which they are alleged to have occurred, Ms Darley’s purposes in seeking the exercise of the discretion in favour of the grant of leave to enable the prosecution of the same and that it is accepted that the evidence to be adduced in support of any application for contravention against Mr Darley will be the same as the evidence relied on by Ms Darley at the trial of the proceedings listed to commence on 28 August 2023 (such that whatever relevant findings of fact can then be made, including in relation to any non-compliance with the December 2018 order and/or whether any such non-compliance was reasonable in the circumstances in which it occurred), I am not persuaded that the applications for contravention which Ms Darley seeks leave to institute are not vexatious proceedings in the circumstances which now exist.
Consequently, I dismiss the Application in a Proceeding filed 5 July 2022, as amended by an oral application, for leave to institute proceedings for contravention as particularised in the Application – Contravention signed 26 June 2022 and the Application – Contravention signed 3 July 2023 (as exhibited to Ms Darley’s affidavit filed by leave on 5 July 2023).
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 10 July 2023
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