A Right to be Heard: The Necessity of Opportunity in Section 102QE Proceedings
Darley & Darley (No 2) [2022] FedCFamC1F 906 (17 November 2022)
A legal proceeding took place in August 2019 between two parties, in which the mother was restricted from instituting proceedings against the respondent or the independent children's lawyer without court permission. In November 2022, the mother filed an Application in a Proceeding seeking various orders, including a recovery order for her younger child. She stated that she has followed the requirements of the Family Law Act and disclosed all relevant information about previous legal proceedings.
Facts:
In August 2019, Carew J made an order in a legal proceeding between two parties. The order stated that the mother, referred to as the applicant, cannot institute proceedings against the respondent (Mr Darley) or the independent children’s lawyer under the Family Law Act 1975, without first obtaining permission from the court.
On November 4, 2022, the mother filed an Application in a Proceeding, seeking 24 different orders. She requested permission to institute proceedings under the Family Law Act, permission to file the Application in a Proceeding, an urgent hearing of the matter without the presence of the respondent father, dispensation of service, that the matter not be heard by Carew J, Hogan J, and Baumann J, and a recovery order to return the younger child, Y, to her sole care and responsibility.
In accordance with the requirements of section 102QE(3) of the Family Law Act, the mother stated in her affidavit filed on November 6, 2022 that the Application in a Proceeding and the Application in an Appeal are the only times she has sought permission from the court. She also stated that she has disclosed all relevant facts about the applications, including previous protection order applications in the Magistrates Court and District Court, and applications to the High Court.
In summary, the mother filed an Application in a Proceeding seeking various orders, including a recovery order for the younger child. She stated that she has followed the necessary steps outlined in the Family Law Act and has disclosed all relevant information about previous legal proceedings.
Issue:
The issue in this case is that the mother is seeking various orders, including a recovery order for the younger child, and is requesting permission to institute proceedings under the Family Law Act 1975. The previous court order prohibits her from doing so without first obtaining leave from the court. The mother has stated that she has followed the necessary steps and disclosed all relevant information about previous legal proceedings.
Applicable law:
Family Law Act 1975 (Cth) s 102QG - provides that before a court can grant an application under section 102QE to initiate legal proceedings, it must order that the applicant serve the person they are pursuing legal action against and any other specified persons with a copy of the application and supporting documents, and a notice that they have the right to participate in the hearing of the application. The court must also give the applicant and the served persons an opportunity to be heard at the hearing.
Analysis:
A hearing was held on November 15th, 2022, to consider a mother's application in a proceeding. The mother claimed that the child had been removed from her care by the father, who claimed the child had "run away" to his care. The mother sought leave to institute the proceedings to recover the child and sought parenting orders. The judge granted the mother leave to institute the proceedings for recovery orders, but not for parenting orders, as there was a reserved judgment on an application in a proceeding filed by the mother. The father must be given notice of the proceedings and an opportunity to be heard. The mother's application needs to be constructed carefully with a single affidavit in support.
Conclusion:
The applicant is ordered to serve a copy of the order to the Respondent by 5:00 pm on November 16, 2022. According to the Family Law Act 1975, the Applicant is allowed to continue with the proceeding for a Recovery Order for the child named Y, born in 2009. The hearing for the application will take place on November 17, 2022, at 10:00 am and will be conducted via Microsoft Teams, in front of a Senior Judicial Registrar.
Case: Darley & Darley (No 2) [2022] FedCFamC1F 906
Judgment of: HARTNETT J
