MILBURN & MILBURN - [2016] FamCA 724

FAMILY COURT OF AUSTRALIA

MILBURN & MILBURN

[2016] FamCA 724

FAMILY LAW – CHILDREN – Interim parenting orders – Best interests of the child – equal shared parental responsibility – where father seeks mother’s application to be dismissed – where father wants to maintain equal shared parental responsibility – where mother brought an application to support the Family Report – where children exposed to ongoing parental conflict – where one child presented with self-harming behaviour – where mother frequently spent extended periods of time in the United Kingdom – where this lead to the father bringing a Hague Convention proceeding – where mother left children with father in Australia to secure employment in the United Kingdom – where the presumption of equal shared parental responsibility applies – where historical and minor events which may satisfy family violence should not displace the presumption – where the mother takes care of foster children – where equal time is in the best interests of the children and reasonable practical.

FAMILY LAW – PRACTICE AND PROCEDURE – Where father raises Rice and Asplund argument – where father contends that the Rice and Asplund principle should preclude the mother from being able to revisit interim orders – where there is insufficient change in circumstance to justify re-litigation – where mothers application is dismissed.

Family Law Act 1975 (Cth) ss 60B, 60CA, 61DA, 65DAA(1), 65DAC
Federal Circuit Court Rule 13.04A

Banks & Banks [2015] FamCAFC 36
Goode v Goode (2006) FLC 93-286
Mauldera & Orbel (2014) FLC 93
S v Australian Crime Commission (2005) 144 FCR 431
Salah & Salah [2016] FamCAFC 100
T v N [2001] FMCAfam 222
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT:

Ms Milburn

RESPONDENT:

Mr Milburn

INDEPENDENT CHILDREN’S LAWYER:

Ms Gray

FILE NUMBER:

CSC

244

2015

DATE DELIVERED:

29 August 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

10 and 11 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jacobs

SOLICITORS FOR THE APPLICANT:

Ascione & Associates

COUNSEL FOR THE RESPONDENT:

Mr Slade Jones

SOLICITORS FOR THE RESPONDENT:

Bassano Law

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

Orders

The mother’s Application in a Case filed 28 June 2016 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 244/2015

Ms Milburn

Applicant

And

Mr Milburn

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings concern the appropriate interim parenting orders for the parties’ two children, being A (“the older child”), born … 2008 and hence presently eight years of age, and M (“the younger child”), born … 2010 and hence six years old (“the children”). By Application in a Case filed 28 June 2016, Ms Milburn (“the mother”) seeks orders that the children spend five nights per fortnight in the care of Mr Milburn (“the father”) together…

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 MILBURN & MILBURN

Details

AGLC: MILBURN & MILBURN [2016] FamCA 724
Case: [2016] FamCA 724
Decision Date: 29 August 2016

CaseChat Overview and Summary

In the matter of *Milburn & Milburn*, heard before Tree J of the Family Court of Australia, the father sought the dismissal of the mother's application, wishing to maintain existing orders for equal shared parental responsibility. The mother's application was brought to support a Family Report, amidst concerns of ongoing parental conflict and one child exhibiting self-harming behaviour. The mother had previously spent extended periods in the United Kingdom, leading to the father initiating Hague Convention proceedings, and had left the children in Australia to pursue employment overseas.

The court was required to determine whether the presumption of equal shared parental responsibility should apply, and whether historical or minor events of family violence should displace this presumption. Furthermore, the court considered the father's argument, based on the principles in *Rice and Asplund*, that the mother's application should be precluded from revisiting interim orders due to insufficient change in circumstances justifying re-litigation. The court also had to assess whether equal time with the children was in their best interests and was reasonable and practical, noting the mother's care of foster children.

Tree J reasoned that the presumption of equal shared parental responsibility should apply, and that historical or minor events that might satisfy family violence should not displace this presumption. The court found that the mother's application did not present sufficient change in circumstances to warrant re-litigation of interim orders, applying the principles established in *Rice and Asplund*. Ultimately, the court concluded that equal time with the children was in their best interests and was reasonable and practical.

Consequently, the mother's Application in a Case filed on 28 June 2016 was dismissed.

Orders

Orders of the court

The mother’s Application in a Case filed 28 June 2016 be dismissed.

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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