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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.