Darley (No 5)

Case [2024] FedCFamC1A 241


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 2024
File 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…

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AGLC
Darley (No 5) [2024] FedCFamC1A 241
Case
[2024] FedCFamC1A 241
Decision Date

CaseChat Overview and Summary

In the matter of Darley (No 5), the applicant, who is the mother of two children, sought leave to appeal against two decisions of the primary judge. The first decision pertained to procedural orders that had been made during the parenting trial, and the second decision related to parenting orders that had been made after the trial. The applicant also sought to reopen the proceedings to adduce further evidence in the form of affidavits. The court had to determine whether the proposed appeals had reasonable grounds and if allowing the appeals would serve any utility.

The legal issues the court needed to address included whether the proposed grounds of appeal identified genuine grounds of appeal pertaining to legal or discretionary error. The court had to consider if the appeals were vexatious and devoid of utility, as appeals are not typically allowed even if the grounds of appeal contain some merit if there would be no known utility in allowing the appeal.

The court found that the proposed grounds of appeal largely failed to identify genuine grounds of appeal pertaining to legal or discretionary error. The court concluded that the proposed appeals were misconceived and lacked reasonable grounds. The appeals were deemed to be vexatious under section 102QF(1) of the Family Law Act 1975 (Cth), and therefore, the applications for leave to appeal were dismissed under section 102QF(2) of the Act. Consequently, leave to institute the appeal was refused, and the applications in an appeal were dismissed.

The final orders of the court were that leave to institute the appeal was refused, and both applications in an appeal were dismissed. This decision reinforces the principle that appeals are not permitted if they lack reasonable grounds and would be devoid of utility.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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