Darley (No 2)

Case [2023] FedCFamC1A 112

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Darley (No 2) [2023] FedCFamC1A 112

Appeal from: Darley & Darley(No 7) [2023] FedCFamC1F 551
Appeal number: NAA 172 of 2023
File number: BRC 2317 of 2013
Judgment of: AUSTIN, Harper & riEthmuller JJ
Date of judgment: 2 August 2023
Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks leave to appeal from a decision of the primary judge prohibiting the parties from cross-examining one another – Where an injunction was previously made prohibiting the mother from instituting proceedings under the Family Law Act 1975 (Cth) against the father or the Independent Children’s Lawyer without first obtaining leave to do so – Where appeals only lie from judgments – Where the subject order was no more than a procedural ruling – Where the order does not determine any right enjoyed by the applicant – Where the proposed appeal lacks reasonable ground and is therefore vexatious – Application dismissed.
Legislation:

Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Family Law Act 1975 (Cth) Pt VII, XIB, ss 4, 94, 102NA, 102Q, 102QB, 102QE, 102QF, 102QG

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 36

Federal Court of Australia Act1976 (Cth) ss 4, 24

Judiciary Act1903 (Cth) s 35

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 10.13

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4, ss 26, 28
Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39

Brambles Holdings Ltd v Trade Practices Commission (1979) 40 FLR 364; [1979] FCA 80

Cabal v United Mexican States (No 3) [2000] FCA 340

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Darley [2023] FedCFamC1A 111

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

Dupois v Queensland Police Service & Anor [2023] QCA 44

Ex parte Bucknell (1936) 56 CLR 221; [1936] HCA 67

Fierro & Fierro (No 8) [2023] FedCFamC1A 28

Harrell [2021] FamCAFC 119

Jess & Jess (No 3) [2023] FedCFamC1A 2

Kabat & Garacia [2019] FamCAFC 191

Lawrance v The Commonwealth of Australia [2007] FCA 1524

Lorde & Chu [2014] FamCAFC 228

Maclean v Brylewski [2022] NSWCA 217

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Naparus & Frankham (2020) FLC 93-943; [2020] FamCAFC 32

R v Bozatsis and Spanakakis (1997) 97 A Crim R 296

Re the Will of Gilbert (1946) 46 SR (NSW) 318

SCVG (2020) FLC 93-967; [2020] FamCAFC 147

Singam & Moffrey (2015) FLC 93-641; [2015] FamCAFC 42

Wilkes and Wilkes (1981) FLC 91-060; [1981] FamCA 41

Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 58
Date of hearing: Determined in chambers on the papers
The Applicant: Litigant in person

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AGLC
Darley (No 2) [2023] FedCFamC1A 112
Case
[2023] FedCFamC1A 112
Decision Date

CaseChat Overview and Summary

The case of Darley (No 2) involves an applicant who seeks leave to appeal a procedural order made by the primary judge in ongoing family law proceedings. The applicant, a mother, had previously been prohibited from instituting certain proceedings without leave under section 102QB of the Family Law Act 1975 (Cth). Despite this prohibition, the applicant has been allowed to respond to and contest proceedings initiated by the child's father. The legal issues before the court were whether the applicant's proposed appeal was caught by the earlier prohibition and whether the applicant had substantially complied with the requirements of section 102QE of the Act to support her application for leave to appeal.

The court held that the applicant's proposed appeal was indeed caught by the section 102QB prohibition, as it was an attempt to challenge the procedural order made by the primary judge. The court further determined that the applicant's affidavits did not substantially comply with the statutory requirements of section 102QE(3) of the Act, as they failed to disclose all relevant former litigation as required. The court dismissed the application for leave to appeal, noting that the applicant had not provided sufficient information to support her application. The court, however, found that the applicant had raised an arguable case that the orders effect a substantial injustice and ordered that the application and supporting material be served on the father for a hearing under section 102QG(1) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

The application is dismissed for the following reasons.Background On 23 August 2019, an order was made pursuant to s 102QB of the Act prohibiting the applicant from instituting proceedings under the Act against the father or the Independent Children’s Lawyer without first obtaining leave to do so under s 102QE of the Act. The injunction was made in these terms:1.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the applicant mother be prohibited from instituting proceedings against [the father] or the independent children’s lawyer, under this Act in a court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act. Years later, on 13 February 2023, fresh proceedings were commenced by the father of the subject child under Pt VII of the Act and are now listed for trial before the primary judge in late August 2023. Self-evidently, the s 102QB injunction does not preclude the applicant from responding to the father’s application and contesting those proceedings. However, on 26 May 2023, the primary judge made this procedural order in the proceedings:1.Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Act are to apply to the cross-examination of each of the parties in these proceedings. The appeal which the applicant now wants to bring from that procedural order is caught by the s 102QB injunction (Harrell [2021] FamCAFC 119 at [8]; SCVG (2020) FLC 93-967 at [24]) and so the applicant needs leave to bring the appeal, the grant or refusal of which leave is governed by the provisions of ss 102QE, 102QF, and 102QG of the Act.Disposition Any application for leave to institute proceedings, including appellate proceedings, to override the effect of the s 102QB injunction must be supported by an affidavit containing certain information (s 102QE(3)). If the affidavit does not substantially comply with the statutory requirements, the application may be dismissed on that basis alone (s 102QF(1)). In support of her application for leave to institute the appeal proceedings, the applicant relied upon her two affidavits filed on 27 June 2023 and 29 June 2023 and her written submissions and ‘further submissions’ filed on 26 July 2023. In supposed fulfilment of her obligation under s 102QE(3) of the Act, the applicant deposed this in her first affidavit:5. I state in relation to s102QE(3) that:(a)this Application, Appeal NO 83/2019, Appeal No NAA74/2023 and my Application for a Recovery Order filed 4 November 2022 are the only occasions I have sought leave in this regard;(b)Application for Protection Orders in the Magistrates Court and District Court, current Protection Order in place protecting myself and the children dated 17 November 2022;(c) Applications to the High Court which were not successful;(d) To the best of my knowledge I have disclosed all relevant facts.(As per the original) Such evidence falls far short of disclosure of all relevant former litigation and cannot be properly construed as “substantially comply[ing]” with s 102QE(3) of the Act, as the Full Court recently pointed out when dismissing another similar application brought by the applicant on the same evidence (Darley [2023] FedCFamC1A 111).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the unusual circumstances of this matter I am persuaded that the applicant has raised an arguable case that the orders effect a substantial injustice.Conclusion For these reasons I would make orders pursuant to s 102QG(1) of the Act for the application and supporting material to be served upon the father for a hearing pursuant to that provision.

Ratio Decidendi

Legal Principle Established

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