Knights and Milford - [2018] FamCA 222

FAMILY COURT OF AUSTRALIA

KNIGHTS & MILFORD

[2018] FamCA 222

FAMILY LAW – CHILDREN – Where both parties have withdrawn their applications for parenting orders – Where the parties have agreed that the children should live with the mother – Where there are allegations of violence and substance abuse – Where there is evidence the children have been exposed to family violence in the care of both parents – Where there are concerns about the parenting capacity of both parents – Where concerns are held for the safety of the children in the care of the mother and the father – Where it is appropriate that the Department of Family and Community Services be notified of these concerns.

Tallant & Kelsey (No. 3) [2016] FamCA 933

APPLICANT:

Mr Knights

RESPONDENT:

Ms Milford

INDEPENDENT CHILDREN’S LAWYER:

JLM Family Lawyers Pty Ltd

FILE NUMBER:

PAC

981

2017

DATE DELIVERED:

10 April 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

14 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

AS Family Lawyers

SOLICITOR FOR THE RESPONDENT:

SCB Legal Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

JLM Family Lawyers Pty Ltd

Orders

Leave is granted to the Independent Children’s Lawyer to inspect all material produced on subpoena.
Each of the parties has instructed their legal representatives to withdraw their respective applications before the court.
The Appointment of the Independent Children’s Lawyer is to continue for a further 28 days from today noting that although the proceedings are now discontinued I will be informing the Department of Family and Community Services of the significant concerns that arise in respect to the welfare of the children particularly as a result of the parties themselves agreeing that the children being placed in the care of the mother.

THE COURT NOTES

As foreshadowed, I intend notifying the Department of Family and Community Services about the circumstances of the family.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Knights & Milford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 981 of 2017

Mr Knights

Applicant

And

Ms Milford

Respondent

REASONS FOR JUDGMENT

Introduction

Parenting proceedings before this court which were commenced in March 2017 relate to the two children of Ms Milford (“the mother”) and Mr Knights (“the father”). The children are B who is currently six and C who is currently five (“the children”).
Following the parents’ separation in 2013 or 2014 the children lived with the mother until February 2017 when…

Grounds of appeal

[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.

Continue reading Knights and Milford

Details

AGLC: Knights and Milford [2018] FamCA 222
Case: [2018] FamCA 222
Decision Date: 10 April 2018

CaseChat Overview and Summary

In the matter of *Knights and Milford*, heard before Hannam J, the dispute concerned applications brought before the court by the parties. The specific nature of these applications is not detailed, but it is clear that the proceedings involved the welfare of children.

The primary legal issues before the court were whether to grant leave to the Independent Children’s Lawyer to inspect material produced on subpoena, and the disposition of the parties' applications before the court. The court also considered the continued appointment of the Independent Children’s Lawyer and the appropriate notification of relevant government departments regarding the welfare of the children.

Hannam J granted leave to the Independent Children’s Lawyer to inspect subpoenaed material. Crucially, both parties instructed their legal representatives to withdraw their respective applications, leading to the discontinuance of the proceedings. Despite the discontinuance, Hannam J indicated an intention to notify the Department of Family and Community Services of significant concerns regarding the welfare of the children, particularly in light of the parties' agreement for the children to be placed in the mother's care. The court ordered that the appointment of the Independent Children’s Lawyer would continue for a further 28 days.

Orders

Orders of the court

Leave is granted to the Independent Children’s Lawyer to inspect all material produced on subpoena.

Each of the parties has instructed their legal representatives to withdraw their respective applications before the court.

The Appointment of the Independent Children’s Lawyer is to continue for a further 28 days from today noting that although the proceedings are now discontinued I will be informing the Department of Family and Community Services of the significant concerns that arise in respect to the welfare of the children particularly as a result of the parties themselves agreeing that the children being placed in the care of the mother.

THE COURT NOTES

As foreshadowed, I intend notifying the Department of Family and Community Services about the circumstances of the family.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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