Darley (No 4)

Case [2023] FedCFamC1A 158

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Darley (No 4) [2023] FedCFamC1A 158

Appeal from: Darley & Darley (No 8) [2023] FedCFamC1F 574
Appeal number: NAA 200 of 2023
File number: BRC 2317 of 2013
Judgment of: ALDRIDGE, HARPER & RIETHMULLER JJ
Date of judgment: 18 September 2023
Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where mother seeks leave to appeal from orders dismissing two Applications – Contravention against the father – Where an injunction was previously made pursuant to s 102Q of the Family Law Act (Cth) prohibiting the mother from instituting proceedings against the father or Independent Children’s Lawyer without first obtaining leave pursuant to s 102QE – Primary judge was not satisfied mother’s Application – Contravention was not vexatious and dismissed mother’s application – Where mother must satisfy the Court that her proposed appeal is not vexatious – Where grounds of proposed appeal are without merit – Court satisfied mother’s proposed appeal lacks any reasonable ground – Court not satisfied appeal is not vexatious – Leave refused – Application in an Appeal dismissed.
Legislation:

Crimes Act1914 (Cth) ss 35, 36

Family Law Act 1975 (Cth) Pts VII, XIB, Div 12A, ss 67ZN, 69ZQ 102Q(1), 102QE, 102QE(2), 102QF, 102QF(2), 102QG(4)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26(1), 26(2)(a)(i), 28(3)(e)(i)

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) s 4.02(1)(b)

Cases cited:

Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481; [1988] NSWCA 8

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Darley (No 2) [2023] FedCFamC1A 112

Darley (No 3) [2023] FedCFamC1A 126

Doughty-Cowell v Kyriazis [2018] VSCA 216

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2020] HCA 63

Goldsmith & Stinson (No 2) (2023) FLC 94-134; [2023] FedCFamC1A 25

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

Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177

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

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

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

Spencer [2022] FedCFamC1A 131

State Bank of New South Wales Ltd v Stenouse Ltd (1993) Aust Torts Reports 81-423
Number of paragraphs: 39
Date of hearing: 30 August 2023
Place: Melbourne, delivered in Sydney
The Applicant: Litigant in person

ORDERS

NAA 200 of 2023
BRC 2317 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS DARLEY

Applicant

ORDER MADE BY:

ALDRIDGE, HARPER & RIETHMULLER JJ

DATE OF ORDER:

18 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 28 July 2023 be 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…

Continue reading Darley (No 4)

Sign in free to access the full text

Details
AGLC
Darley (No 4) [2023] FedCFamC1A 158
Case
[2023] FedCFamC1A 158
Decision Date

CaseChat Overview and Summary

In the case of Darley (No 4), the mother sought leave to appeal from orders dismissing two applications she had made, which were considered to be in contravention of the father. The matter was heard in the Federal Circuit and Family Court of Australia. The primary concern of the court was whether the mother's proposed appeal lacked reasonable grounds and was vexatious. The mother had previously been declared a vexatious litigant and was subject to an injunction prohibiting her from instituting proceedings against the father or the Independent Children's Lawyer without first obtaining leave.

The legal issues the court had to decide were whether the mother's proposed appeal lacked reasonable grounds and whether it was vexatious. The mother had to satisfy the court that her proposed appeal was not vexatious and that it had reasonable grounds. The court examined the mother's submissions and found that they contained numerous irrelevant and baseless allegations, which led to the conclusion that her proposed appeal lacked reasonable grounds. Furthermore, the court was not satisfied that the appeal was not vexatious, given the mother's history of vexatious litigation.

The court's reasoning and outcome were based on the mother's history of vexatious litigation and the content of her submissions. The court found that the mother's proposed appeal lacked reasonable grounds and was likely to be vexatious. Therefore, the court refused the mother's application for leave to appeal and dismissed her application in an appeal. The court's final orders were that the application in an appeal filed on 28 July 2023 be dismissed.

Orders

Orders of the court

NAA 200 of 2023

BRC 2317 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DARLEY

Applicant

ORDER MADE BY:

ALDRIDGE, HARPER & RIETHMULLER JJ

DATE OF ORDER:

18 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 28 July 2023 be 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).

Background

Background to the litigation

In accordance with the Court’s practice, her application for leave to institute proceedings was heard before it had been served upon the proposed respondent father (“father”) prior to being heard. Her application was listed to hear oral argument on 30 August 2023. On the morning of the hearing, the mother emailed to the Court 12 pages of submissions in writing (“Further Submissions”). At the hearing of the mother’s application, she sought to rely upon her proposed Notice of Appeal and the Further Submissions in lieu of oral argument (as she indicated she was suffering from a lung infection). The Court acceded to this approach.BACKGROUND The mother has been before this Court on numerous occasions. Some background has been set out in several recent judgments of the Full Court (Darley (No 2) [2023] FedCFamC1A 112 at [3]–[5]; Darley (No 3) [2023] FedCFamC1A 126 at [5]–[7]). Final parenting orders had been made by the primary judge on 12 December 2018. On 23 August 2019, the mother was declared a vexatious litigant under Pt XIB of the Family Law Act1975 (Cth) (“the Act”) and was enjoined from instituting proceedings without leave by an order in the following terms:1.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the … 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. The primary judge explained, in terms we adopt, the immediate circumstances leading to the primary judgment as follows:3. On 5 July 2022, [the mother] 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 [the father] 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. 4. The July 2022 Application was relied on by [the mother], at least in part, in answer to contravention proceedings which had been instituted against her by [the father] when he filed an Application – Contravention on 23 May 2022 (“the May 2022 Contravention Application”). 5. The May 2022 Contravention Application, by which [the father] alleged that [the mother] 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 had been living with [the father] since early December 2021 (and had not spent time with [the mother] since then), whilst their younger daughter, Y, remained living with [the mother]. When [the mother] 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.(Footnotes omitted)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In addition, the same reasons which lead to the conclusion that the mother’s proposed appeal lacks any reasonable grounds encourages certainty that her appeal would be instituted to harass or annoy and cause delay. This conclusion is supported by her evidence and further submissions which, as already pointed out, contain numerous irrelevant and baseless allegations. CONCLUSION For these reasons, leave to institute the appeal should be declined. The Application in an Appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.