Darley (No 5)
[2024] FedCFamC1A 241
•17 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Darley (No 5) [2024] FedCFamC1A 241
Appeal from: Darley & Darley (No 11) [2024] FedCFamC1F 558
Darley & Darley (No 12) [2024] FedCFamC1F 559
Appeal numbers: NAA 243 of 2024
NAA 244 of 2024File number: BRC 2317 of 2013 Judgment of: WILLIAMS, SCHONELL & MCNAB JJ Date of judgment: 17 December 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where an injunction was previously made prohibiting the applicant from instituting proceedings under the Family Law Act 1975 (Cth) against the father or the Independent Children’s Lawyer without leave – Where the applicant seeks leave to appeal from two decisions of the primary judge in relation to parenting matters and her application to reopen the proceedings to adduce further evidence – Where the proposed appeals lack reasonable grounds and are therefore vexatious and are devoid of utility– Applications dismissed. Legislation: Criminal Code Act 1995 (Cth) div 273B
Family Law Act 1975 (Cth) ss 67Z, 67ZBA, 67ZBB, 69ZN, 69ZR, 69ZQ, 69ZX, 102Q, 102QB, 102QE, 102QF, 102QG
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 16, 67, 149
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Darley (No 4) [2023] FedCFamC1A 158
Darley & Darley (No 4) [2021] FamCAFC 54
Darley & Darley (No 8) [2023] FedCFamC1F 574
Darley & Darley (No 11) [2024] FedCFamC1F 558
Darley & Darley (No 12) [2024] FedCFamC1F 559
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fingleton v R (2005) 227 CLR 166; [2005] HCA 34
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
Harrell [2021] FamCAFC 119
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Naparus & Frankham [2018] FamCAFC 190
Naparus & Frankham (No 2) [2020] FamCAFC 238
Newett & Newett (No. 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Reece & Reece [2011] FamCAFC 24
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
SCVG (2020) FLC 93-967; [2020] FamCAFC 147
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 91 Date of hearing: 30 October 2024 Place: Brisbane, delivered in Melbourne The Applicant: Litigant in person ORDERS
NAA 243 of 2024
NAA 244 of 2024
BRC 2317 of 2013FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DARLEY
Applicant
ORDER MADE BY:
WILLIAMS, SCHONELL & MCNAB JJ
DATE OF ORDER:
17 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Applications in an Appeal filed 20 September 2024, being NAA 243 of 2024 and NAA 244 of 2024 are 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).
REASONS FOR JUDGMENT
WILLIAMS, SCHONELL & MCNAB JJ
By two Applications in an Appeal filed 20 September 2024, the applicant seeks leave to appeal two suites of orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1).
On 23 August 2024, the primary judge made orders in Darley & Darley (No 11) [2024] FedCFamC1F 558 (“the procedural orders”) dismissing the applicant’s application to reopen the proceedings and adduce further evidence, pending determination of the substantive parenting proceedings between the parties.
Immediately following the making of the procedural orders, the primary judge made orders in Darley & Darley (No 12) [2024] FedCFamC1F 559 (“the parenting orders”). The parenting orders provide for the parties two children, X and Y, to live with the proposed respondent (“the father”), the father to have sole parental responsibility in respect of all major long-term issues, and the children to spend time and communicate with the applicant in accordance with their wishes.
The Application in an Appeal, NAA243/2024, pertains to the procedural orders, and the Application in an Appeal, NAA244/2024, pertains to the parenting orders.
The Applications in an Appeal were heard in the absence of the father. That is because on 23 August 2019, an order was made pursuant to s 102QB of the Family Law Act 1975 (Cth) (“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.
For the reasons that follow, leave to appeal will be refused and both Applications in an Appeal will be dismissed.
Background
The parents married in 2004 and separated in September 2012. Following separation, both children remained living with the applicant, who was primarily responsible for their care. In December 2018, orders were made for the children to live with the applicant and spend time with the father on alternate weekends and during school holidays. Time proceeded generally in accordance with the orders.
In December 2021, X, who was then 15 years old, removed herself from the applicant’s household and commenced living with her father. Y continued to spend time with the father and X until February or March 2022, when the applicant advised the father that Y would no longer spend time nor communicate with him. The consequence of that decision was that the children did not spend time together and did not spend time or communicate with their non-residential parent.
In May 2022, the father commenced contravention proceedings, and in February 2023 commenced proceedings under Part VII of the Act. On 5 August 2022, orders were made for the preparation of a Child Impact Report, which was ultimately dated 7 September 2022. At the time of the Child Impact Report interviews with the children in early September 2022, X, who was living with her father, had not seen nor communicated with the applicant for around eight months and had not spent time with Y for about five months. Y, who was living with the applicant, had not seen or communicated with her father or X for about five months.
In early November 2022, about two months after the Child Impact Report interviews, Y, who was then aged 13, ran away from the applicant’s household.
Interviews with a Court Child Expert for a Family Report occurred in June 2023. At that time, both children were living with the father. X had not communicated or spent time with the applicant for 18 months, and Y had not done so for seven months or so.
At [5] of the Reasons, the primary judge observed that neither child had any significant communication with the applicant since leaving her care, nor had they spent time with her, despite it being highly likely that each child knew how to contact the applicant.
The parenting trial before the primary judge occupied six hearing days between 28 August 2023 and 11 December 2023. On 23 May 2024, whilst judgment was reserved in the parenting trial, the applicant filed an Application in a Proceeding which was then amended on 11 June 2024 (“the June 2024 application”) where she sought to reopen the evidence in the parenting proceedings to adduce evidence contained within multiple affidavits filed by her.
The June 2024 application was heard by the primary judge on 11 July 2024.
On 23 August 2024, the primary judge made both the procedural orders and the parenting orders and delivered reasons for both sets of orders.
The applicant seeks leave to appeal both the procedural orders and the parenting orders.
THE APPLICATIONS IN AN APPEAL
At Part D of both Applications in an Appeal, the applicant seeks identical relief. She seeks leave to file an appeal pursuant to Part XIB of the Act, for the leave application and the appeal to be heard urgently and at the same time, leave to file an application for a judicial review of the injunction made 23 August 2019, for the appeals to be heard together (supposing leave is granted), and leave to file an application to adduce further evidence.
In her draft proposed Notice of Appeal, which is annexed to her affidavit filed 20 September 2024 as annexure ‘[MD]1’, at Part F the applicant seeks orders that the two proposed appeals be dealt with together, if the appeal is successful the Court re-exercise discretion and make orders effectively reversing the current parenting arrangements, recovery orders for Y, including a “permanent” recovery order, discharge of the injunction made in 2019, and an order declaring the father a vexatious litigant.
We pause to comment that the relief sought at paragraph 4 of Part D of the Applications in an Appeal is misconceived. The applicant seeks to challenge by way of judicial review, an order made on 23 August 2019 pursuant to s 102QB(2) of the Act. That order, set out below, was previously the subject of an application by the applicant seeking leave to appeal the order, which was not granted by the Full Court (Darley & Darley (No 4) [2021] FamCAFC 54 at [163]-[172]).
On 23 August 2019 a judge of the Family Court of Australia made a vexatious proceedings order pertaining to the applicant as follows:
1.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the [applicant]… 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.
Section 102QE(2) of the Act enables a person who is subject to a vexatious proceedings order to apply to the Court for leave to institute proceedings that are subject to the order (“an application for leave”) (Harrell [2021] FamCAFC 119 at [8]; SCVG (2020) FLC 93-967 at [24]).
The grant or refusal of leave is governed by the provisions of ss 102QE, 102QF, and 102QG of the Act.
Section 102QE(3) of the Act requires the applicant to file an affidavit in support of an application for leave, which includes listing all occasions on which the applicant has previously applied for leave, list all other proceedings the applicant has instituted in any Australian Court or tribunal, and disclosing all relevant facts about the application, whether supporting or adverse, which are known to the applicant.
Section 102QF(1) of the Act enables the Court to dismiss an application for leave if the Court considers the affidavit filed does not substantially comply with s 102QE(3). Section 102QF(2) of the Act mandates the Court to dismiss the application for leave, if it considers the proceedings are vexatious proceedings, as defined by s 102Q(1), and s 102QG(4) provides that leave may only be granted if the Court is satisfied the proceedings are not vexatious.
The definition of vexatious proceedings in s 102Q(1), includes:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court of tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
In support of both Applications in an Appeal, the applicant filed two almost identical affidavits in support of each application of some 3,670 pages, comprising voluminous annexures. The annexures to both affidavits refer to earlier affidavits filed in different proceedings, none of which are relevant to the proposed appeals. Whilst the affidavits broadly comply with the requirements of s 102QE(3)(a) and s102QE(3)(c), as required by s 102QE(3)(b), they fail to list previous appeal proceedings in the Family Court of Australia (as it then was). Notwithstanding that omission, we consider there has been substantial compliance with the relevant legislation.
In addition to filing an affidavit, the applicant filed “combined written submissions” in each appeal, which were identical, and at the hearing, sought to tender a further document of 232 pages, which she described as a critique of the primary parenting judgment. That document was tendered by the applicant and is Exhibit A in the application before this Court.
Both the combined written submissions and the critique of the primary parenting judgment filed by the applicant fail to specifically refer to the particular grounds of the proposed appeal, and are a generalised litany of complaints, which provide minimal assistance.
It is difficult, if not impossible, to readily discern from either the affidavits, the proposed grounds of appeal, the combined written submissions, and the critique of the parenting judgment, where the applicant has attempted to identify error on the part of the primary judge or where it is set out “a specific and concise statement of the point sought to be argued” (Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]).
The applicant relies on Bahonko v Sterjov (2008) 166 FCR 415 (“Bahonko”) as authority for the proposition that it is “incumbent upon the Court of Appeal to “hunt through the evidence” where the Appellant submits with reasonable grounds that in doing so, “the Court will find appealable errors” (affidavit of applicant filed 20 September 2024, paragraph 28(c)).
The applicant’s submission is erroneous. It is not for the Court but rather for the applicant to identify the errors in the judgment under appeal: Newett & Newett (No 2) (2021) FLC 94-051 at [34], quoting Bahonko at [3]. In Bahonko, the Full Court of the Federal Court of Australia said:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an applicant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the applicant), that such an examination may yield a conclusion of appellable error.
(Emphasis added)
For the reasons that follow, we are satisfied that the appeal is without reasonable grounds and consequently leave must be refused.
Before turning to the grounds of appeal, in the proposed Notice of Appeal, it is useful to set out the well settled principals which govern appeals from discretionary judgments, as identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”). There, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Grounds of appeal
The proposed grounds of appeal comprise 19 complaints about asserted errors of law and fact made by the primary judge, and complaints about her conduct. Grounds 15 and 19 complain about apprehended and/or actual bias on the part of the primary judge, and her failure to disqualify herself from hearing the proceedings. Under Ground 14, the applicant complains the primary judge failed to afford her procedural fairness.
Grounds of appeal in relation to bias and procedural fairness are challenges to the integrity of the administration of justice; thus, they must be dealt with first, before other discrete grounds of appeal: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581, 611–612 and 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]. Accordingly, we turn first to Grounds 15, 19 and 14.
Ground 15
Under this ground, the applicant contends the primary judge demonstrated apprehended and/or actual bias against the applicant by making findings and rulings or giving weight to particular evidence which she considered to be wrong and favouring the father.
In her written submissions, the applicant asserts the primary judge’s decision in the procedural judgment, to refuse the applicant leave to adduce further evidence, whilst permitting the father to do so, demonstrated apprehended/and or actual bias.
This ground is drawn broadly and unaided by submissions that distinguish between a contention as to apprehended as opposed to actual bias.
To establish actual bias, the applicant must show the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]). Nowhere in any of the voluminous documents filed by the applicant did she attempt to do so.
The relevant test to be applied to determine apprehended bias is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), where the plurality of the High Court of Australia (“the High Court”) said:
6… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(Footnotes omitted)
The application of the apprehension of bias principle involves a two-step analysis. First, the identification of what is said might lead a decision maker to decide a case other than on its legal and factual merits, and second, the articulation of a logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]). Per Ebner, once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
Nowhere in her combined written submissions or critique of the primary parenting judgment does the applicant specifically identify either the first step in the required analysis, nor the logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]) or any factors or considerations relevant to the assessment of the reasonableness of the asserted apprehension of bias.
The task of the primary judge was to make findings on the disputed facts. Despite the breadth of the contentions, no part of the submissions identifies where the primary judge failed to decide the dispute according to the law. Findings merely contrary to the applicant’s case does not demonstrate actual bias or apprehended bias.
This ground has no merit.
Ground 19
This ground contends the primary judge failed to recuse herself, despite previously having made adverse judgments and determinations against the applicant. The submissions do not identify where the applicant made any application for the primary judge to recuse herself. The fact that the primary judge may have made findings adverse to the applicant in prior proceedings in interim hearings does not establish an arguable ground that the primary judge should have recused herself (s 69ZR(3) of the Act). The applicant did not contend she raised objections of bias in whatever form, before or during either hearing. The appropriate time to raise objections of bias is at the hearing itself: Vakauta v Kelly (1989) 167 CLR 568 at 572–574.
This ground has no merit.
Ground 14
Under Ground 14, the applicant asserts that the primary judge erred in failing to afford her procedural fairness and natural justice by denying applications for leave to file contraventions, failing to hear her applications, refusing to reopen proceedings to adduce fresh evidence, excluding evidence and giving improper weight to certain evidence all of which were said to be relevant to the best interests of the child.
Procedural fairness requires each party to be given an adequate opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550 at 582). The applicant complains in general terms about rulings and findings made by the primary judge, and not about any failure to provide the applicant with an opportunity to be heard or present her case. We do not agree the primary judge denied the applicant an adequate opportunity to be heard and present her case, as she clearly did in both the substantive parenting trial and the application to adduce further evidence. We observe that the applicant’s application for leave to file a contravention was filed and determined by the primary judge in 2023 (Darley & Darley (No 8) [2023] FedCFamC1F 574). The applicant’s application for leave to appeal against the order of the primary judge dismissing the application was heard and dismissed by the Full Court in September 2023 (Darley (No 4) [2023] FedCFamC1A 158). That application has nothing to do with the orders made in August 2023, from which the applicant now seeks leave to appeal.
In any event, not every departure from the rules of natural justice entitles the aggrieved party to a new trial (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).
As to the complaint about weight under this ground, the difficulty of challenging a primary judge’s attribution of weight on appeal is well known. As stated in Gronow & Gronow (1979) 144 CLR 513 at 521 per Stephen J:
…An appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessment of matters of weight.
The weight or importance given to evidence is a matter quintessentially for the primary judge, unless an appellant can show the primary judge was plainly wrong: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 at 230–231 per Kirby J.
The applicant’s complaint is general and unspecified, and she did not demonstrate nor attempt to address how the primary judge was “plainly wrong”. There is no merit in either complaint in this ground.
We now turn to the balance of the grounds.
Ground 1
The applicant asserts the primary judge erred at law by failing to observe the principles in ss 69ZN, 69ZX and 69ZQ of the Act. By doing so, the primary judge failed to acknowledge disputed issues of family violence against the applicant and children supposedly perpetrated by the father, failed to identify all issues in dispute and the order in which they would be dealt with and failed to deal with as many matters in a single occasion as possible.
Section 69ZN of the Act sets out the principles that the Court must give effect to in conducting child-related proceedings. Section 69ZN(7) provides that Principle 5 is:
7.…that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
An examination of the parenting reasons of the primary judge at [291]–[336] demonstrates the primary judge did identify the issues in dispute and specifically dealt with the allegations of family violence raised by the applicant during the parenting trial.
Section 69ZQ of the Act sets out the general duties relating to giving effect to the principles as expressed in s 69ZN of the Act. The applicant does not specifically identify the effect, adverse or otherwise, of any asserted failure to observe the general duties, and in any case s 69ZQ(3) of the Act provides that a failure to comply with subsection (1) does not invalidate an order. It is apparent from the comprehensive parenting reasons, the primary judge was cognisant of, dealt with, and made findings about identified contentious issues.
Section 69ZX of the Act sets out the Court’s general duties and powers relating to evidence. The provision is permissive and there is no identified failure on the part of the Court to exercise its powers in relation to receiving and dealing with evidence. The applicant’s complaint, as far as we can discern, is that the applicant disagrees with the resultant exercise of power.
We do not understand what is meant by the complaint that the primary judge failed to deal with as many issues on a single occasion as possible. It is not a genuine ground of appeal complaining of legal nor discretionary error. The primary judge was burdened with a very large volume of evidence and submissions produced by the applicant, and the terms of the parenting judgment demonstrate the magnitude of the task imposed on the primary judge by the applicant. It is readily apparent from the parenting reasons that the needs of the children, and the impact of the conduct of the proceedings were the central focus of the primary judge.
This ground has no merit.
Ground 2
Under Ground 2, the applicant complains the primary judge erred at law by making orders:
2…without facilitating a hearing of the matter set down on her docket, in contravention of the High Court Authority Allesch v Maunz – i.e. only hearing the matter with a prejudicial view to a new (expensive, traumatic and time consuming) Trial; where there was no application before the Court, and refusing to fully and properly hear the Application for Leave to File a Contravention that was the open application on the docket”.
The reference to Allesch v Maunz [2000] 203 CLR 172 is understood to be a reference to the judgment of Kirby J at [35] in support of the proposition that as an incident of procedural fairness a party must be given an opportunity to present material information and submissions relevant to a decision before it is made. We say this because this passage is referred to throughout the material filed and relied upon by the applicant. The applicant relies on this proposition to justify her practice of filing thousands of pages of material from her previous applications in support of the next application, hearing or appeal.
We are unable to understand what is meant by the applicant’s complaint that the primary judge made orders without facilitating a hearing of the matter, when her Honour self-evidently heard the trial over many days. There is no merit in this ground.
Ground 3
The applicant asserts the primary judge erred at law by determining “the application for leave to file a contravention was vexatious pursuant to s 102QF(2) of the Act” and the primary judge failed to take into account evidence that the father had admitted contravening orders. This complaint is not about either suite of orders of the primary judge made on 23 August 2024, as identified at Part D of the proposed Notice of Appeal and is misconceived. There is no merit in this ground.
Ground 4
Under this ground, the applicant complains the primary judge erred at law by making orders for a trial, absent a formal application having been filed by either party.
On 13 February 2023, the father filed an Initiating Application recommencing substantive proceedings in this Court wherein he sought orders to vary the final parenting orders made on 12 December 2018. The applicant filed a Response to Initiating Application on 15 March 2023 where she sought her Application in a Proceeding filed on 5 July 2022 be heard, and for the father’s application to be dismissed.
On 19 May 2023, a Judicial Registrar made orders for the Application and Response to be transferred to the Federal Circuit and Family Court of Australia (Division 1) pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
On the first day of the trial before the primary judge on 28 August 2023, the Initiating Application filed by the father was specifically referred to, as was the applicant’s evidence and response to that Application. At paragraph 27 of her affidavit filed in support of her Applications in an Appeal, the applicant refers to the father’s Initiating Application which was before the Court in the proceedings before the primary judge. This ground has no merit.
Ground 5
The applicant asserts the primary judge erred by “making a grossly improper exercise of discretion by deliberately excluding evidence that demonstrated prima facie risk of sexual harm on the children, family violence against the [applicant], and parental neglect of the children”. The ground and submissions do not identify with any precision which evidence was wrongly excluded. This ground has no merit.
Ground 6
Under this ground, the applicant asserts the primary judge erred at law by illegally interfering in discretionary power of other judges and thereby breaching the principle of judicial independence, which would otherwise enable other judges to make parenting orders pertaining to the children. The affidavits filed in support of her Applications in an Appeal do not identify with any precision how the primary judge is said to have illegally interfered with any other judge’s decision-making or exercise of discretion. This ground has no merit.
Ground 7
Under this ground, the applicant contends the primary judge erred at law by acting in “criminal contravention” of s 273B.4 of the Criminal Code Act 1995 (Cth). This ground is baseless. In Newett & Newett (No 2) (2021) FLC 94-051 at [63]-[64] the Full Court stated in relation to a similarly drafted ground of appeal:
63Division 273B of the Criminal Code Act 1995 (Cth) (“the Criminal Code Act”) deals with protection of children. Section 273B.5, for example, makes it an offence for a Commonwealth officer who has the care and supervision of a child in his or her capacity as a Commonwealth officer, and who knows of information that would lead a reasonable person to believe that another person has committed a child sexual abuse offence, and to fail to report it to the police.
64The primary judge, whilst charged with the task of deciding what parenting orders are in the best interests of the children, did not have the children under his care or supervision. We cannot accept that div 273B of the Criminal Code Act applies to a judge hearing proceedings under Part VII of the Act.
This ground has no merit.
Ground 8
The applicant asserts in this ground that “The Primary Judge has erred at law by acting with Criminal Negligence towards vulnerable children, by deferring judgments and delaying proceedings in a manner that kept the Children at risk of sexual harm from 23 May 2022 to the current date” which she says is in breach of s 67ZBB of the Act. That section provides:
Section 67ZBB - Court to take prompt action in relation to allegations of child abuse or family violence
1. This section applies if:
a.a notice is filed under subsection 67Z(2) or 67ZBA(2) in proceedings for an order under this Part in relation to a child; and
b.the notice alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:
i.there has been abuse of the child by one of the parties to the proceedings; or
ii.there would be a risk of abuse of the child if there were to be a delay in the proceedings; or
iii.there has been family violence by one of the parties to the proceedings; or
iv.there is a risk of family violence by one of the parties to the proceedings.
2. The court must:
a. consider what interim or procedural orders (if any) should be made:
i.to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
ii.to protect the child or any of the parties to the proceedings; and
b.make such orders of that kind as the court considers appropriate; and
c.deal with the issues raised by the allegation as expeditiously as possible.
3. The court must take the action required by paragraphs (2)(a) and (b):
a.as soon as practicable after the notice is filed; and
b.if it is appropriate having regard to the circumstances of the case—within 8 weeks after the notice is filed.
4.Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 67ZBD or 67ZBE to obtain particulars, documents or information from information sharing agencies in relation to the allegation.
5.Without limiting subparagraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.
6.A failure to comply with a provision of this section does not affect the validity of any order made in the proceedings for the order.
There is no reference in the grounds of appeal and submissions that suggest the primary judge delayed in responding to a notice filed under ss 67Z(2) or 67ZBA(2) of the Act. Section 67ZBB(6) of the Act provides that a failure to comply with a provision of this section does not affect the validity of any order made in the proceedings for the order.
Any delay in the delivery of reasons is entirely the product of the sheer volume of material placed before the Court by the applicant referred to in the Reasons and considered by the primary judge.
To the extent that the applicant raises the primary judge ought to be subject to criminal prosecution, the applicant does not assert the primary judge was not acting in the exercise of her Honour’s judicial functions when conducting hearings, considering the allegations raised, reserving her decision and subsequently delivering judgment. There is nothing asserted which might displace the judicial immunity that the primary judge is subject to in relation to civil and criminal liability (Fingleton v R (2005) 227 CLR 166 at [40]). This ground has no merit.
Grounds 9, 10, 11, 12 and 13
Under each of these grounds, the applicant contends the primary judge erred at law either by failing to exercise jurisdiction by making findings of fact not available on the evidence that the father is not a risk of harm to the children, or, alternatively, failing to make findings of fact, including that the father was emotionally abusing the children by alienating them from their applicant and coaching and lying to the children about her. Each of these grounds are mere assertion unaided by particulars. The submissions fail to specify what material considerations the Court has failed to take into account and merely asserts that there has been a failure to make particular findings, without identifying error of the kind referred to in House v The King. These grounds are simply an invitation to make a different decision and as such they are not a proper basis to seek to impugn a discretionary judgment. These grounds have no merit.
Ground 16
The applicant complains the primary judge erred at law by omitting and obscuring facts, concealing the truth of the matter, and failing to make findings of delinquent character and dishonest and fraudulent conduct against the father. The applicant lists seven sub-grounds, where she asserts alleged error on the part of the primary judge, by failing to make findings. The submissions do not advance the complaint and are simply an invitation for this Court to make a different finding, absent precise identification of the asserted error.
In any event, contrary to the applicant’s assertions, at [57]–[63] of the parenting judgment, the primary judge did refer to and make findings about the applicant’s concerns about the father’s credibility. No appellable error in that reasoning has been established by the ground of appeal nor the submissions. This ground has no merit.
Ground 17
The applicant asserts the primary judge erred at law by failing to observe the judicial oath given pursuant to s 16 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). This ground is specious as a reiteration of other grounds and is founded on the premise that the primary judge failed to observe her judicial oath, because her Honour made findings and orders that did not accord with those sought by the applicant.
As to the claim Smith J had made a finding in his orders of 15 November 2022, that the father had contravened orders, this issue was specifically dealt with by the primary judge at [47] of the parenting judgment where her Honour said:
47…In fact, the Order made by Smith J on 15 December 202 does not note that the father is in contravention of court orders – rather, Note E says that “the parties today confirmed that the child is still living with the father contrary to the current orders”. This subtle difference in recounting provides yet another example of the issues associated with assessing the [applicant]’s evidence without having regard to the source document/s on which she purports to rely for the assertions she makes.
This ground has no merit.
Ground 18
The applicant asserts the primary judge failed to apply the “Paramountcy Principle of the Best Interests of the Child” in contravention of s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Specifically, the applicant complains the primary judge failed to read all the materials before her during the hearing and failed to take into account particular risks to the child, Y, arising from her missing periods of schooling whilst in the father’s care. The submission does not identify what material it is asserted the primary judge failed to read.
As to the complaint about the risks to the child arising from school absence, a trial judge is not expected to deal with every piece of evidence (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447), nor grapple with every submission (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).
The applicant filed voluminous material, and it is apparent from the comprehensive reasons of the primary judge, that her Honour dealt with relevant matters raised by the applicant during the hearing and considered relevant documents. At [204] of the Reasons, the primary judge referred to the academic achievements of the child. This ground has no merit.
Futility of appeal
Whilst we understand the applicant will be sorely disappointed leave to appeal has not been granted, practically speaking there is little to be gained by appealing either the procedural or parenting orders of the primary judge.
The older child, X, has already turned 18 and it is not within the jurisdiction of the Court to make parenting orders for a child of that age. A successful appeal would not result in parenting orders pertaining to X. As far as Y is concerned, she is currently less than 18 years. By the time an appeal is heard, and if the matter were to be remitted for rehearing, she would probably be aged at least 17. Even if parenting orders were ultimately made regarding Y as sought by the applicant, it is difficult to contemplate whether Y would comply with any such orders, or how a recovery order could reasonably be executed, to compel her to comply. That is particularly pertinent because as far as we are aware, Y has not spent time or communicated with the applicant since she left her household in early November 2022.
Generally, appeals are not allowed even if the grounds of appeal contain some merit (which in this case they do not) if there would be no known utility in allowing the appeal: Reece & Reece [2011] FamCAFC 24 at [108]-[109]; Naparus & Frankham [2018] FamCAFC 190 at [4] and [17]; and Naparus & Frankham (No 2) [2020] FamCAFC 238 at [46].
CONCLUSION
The proposed appeal is misconceived and lacks reasonable grounds. Most of the proposed grounds fail to properly identify genuine grounds of appeal pertaining to legal or discretionary error. Both Applications in an Appeal are therefore vexatious (s 102QF (1) of the Act), and the applications for leave must be dismissed (s 102QF(2) of the Act).
For these reasons, leave to institute the appeal is refused. The Applications in an Appeal will be dismissed.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Williams, Schonell & McNab. Associate:
Dated: 17 December 2024
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