Millar and Oakley - [2018] FamCA 46

FAMILY COURT OF AUSTRALIA

MILLAR & OAKLEY

[2018] FamCA 46

FAMILY LAW – Oral application for an adjournment of a contempt application by the father – Where the father has had the contempt application since November and filed other material not related to the specific contempt application in the interim period. – Where the father has made no endeavour to obtain legal advice – where the father’s position in relation to the contempt can only be in relation to the question of a reasonable excuse as on previous occasions and in other courts, the father has been warned of the risk of imprisonment upon a finding of contempt of court. – Adjournment refused.

Family Law Act 1975 (Cth)

Millar & Oakley [2016] FCCA 1283

APPLICANT:

Ms Millar

RESPONDENT:

Mr Oakley

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

2195

2016

DATE DELIVERED:

30 January 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Goddard

SOLICITOR FOR THE APPLICANT:

Ebejer & Associates

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Excused

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Taft Lawyers

Orders

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 Millar & Oakley 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 MELBOURNE

FILE NUMBER: MLC 2195 of 2016

Ms Millar

Applicant

And

Mr Oakley

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On 20 November 2017, Ms Millar (“the mother”) filed a contempt of court application against Mr Oakley (“the father”).
The contempt application was listed for hearing on 6 December 2017 on which occasion, the father appeared without legal representation as he had in a number of hearings during 2017. The contempt application focuses on an order made on 9 June 2017 that the father do various things and sign consequential documents that would authorise the removal of the mother and their two children from Country B in Africa. Because I was concerned about the seriousness of the consequences of a finding against the father and over the opposition of counsel for the mother, I adjourned the proceedings to 30 January 2018 and made the following order:
That the court requests the Chairman of the Victorian Bar to allocate counsel under the Victoria Bar Pro Bono Scheme to give advice to the husband and such arrangements be made direct with the husband on (relevant number).
That order was made in ignorance of the fact that the Victorian Bar Pro Bono Scheme does not cover family law proceedings. Presumably because of the festive season, albeit that the order was brought to the attention of the Office of the Chairman of the Victorian Bar, it was unfortunate that it was not brought to the attention of the relevant person responsible for the pro bono scheme.
Quite properly over the morning of 30 January 2018, the Executive Officer of the Victorian Bar wrote to the court indicating what I have set out above and indicated that the father should get advice elsewhere.
The father told the court that he wanted an adjournment of five weeks but was unable to explain why that period was critical. Prior to being made aware of the lack of assistance available from the Victorian Bar, the father insisted that he was somehow entitled to representation as a result of the order that I have made. It will be self-evident that the order had nothing to do with “representation” but rather advice and specifically, at the December hearing, I made reference to the concern I had about his understanding of the serious nature of what he faced. This was not the first time however that the seriousness of contempt of court had been brought to the father’s attention.
In a hearing on 16 May 2016 in the Federal Circuit Court of Australia, Judge Burchardt made orders relating to the parties’ children and specifically, an order that both parents do all things necessary to enable the children to be delivered into the Commonwealth of Australia by a set date in May 2016. The father was represented by counsel on that day but significantly, Judge Burchardt said that it was important for the father to have 14 days to take the steps indicated in the order he made and that there were a number of steps necessary including enabling him to find the funds necessary to implement the order, obtain legal advice and consider his position and, if necessary, to appeal.
Having set out that background, Judge Burchardt said:
[31]I am giving him time to do that, because there is a very real prospect – and there is no way of obfuscating this – that if the father does not comply with (his Honour’s order) he will go to jail for contempt and he would be likely to stay there until such time as he does comply. That is not an option that would be ruled out and it is a very serious option.
It will thus be seen that the serious nature of defying a court which has ordered cooperation of a parent to return children from abroad is starkly clear. Thus, the father failing to prepare for this case and sitting on his hands both as to the preparation of any argument contrary to that of the wife but also obtaining legal advice, might be seen as folly.
Counsel for the mother opposed the father’s adjournment and requested an opportunity to cross-examine him. The father was clearly reticent but having regard to the time that had expired since the filing of the contravention applications but also the fact that Judge Burchardt had made orders as long ago as May 2016 for the return of these children and nothing has occurred, there was a justification for the father’s request for an adjournment to be more carefully examined than just by submissions from the court’s bar table.
In his evidence, the father confirmed that he had received the application and that he was aware of its contents and in particular, knew that it was a complaint about him not signing the necessary documents. He said most importantly, he had not spoken to lawyers in Australia. However, he had sought advice in Country B and had spent significant sums of money on those lawyers. There was some suggestion that he had been restrained by injunction from sending money to Country B but I need not address that any further.
The father confirmed in cross-examination that he had been represented by counsel when the matter was in the Federal Circuit Court. Initially, he had no apparent recollection of the warning of Judge Burchardt, but he seemed to recognise the paragraph to which I have earlier referred in the judgment that his Honour handed down when I showed it to him.
The father is in full-time employment and earns something in the vicinity of $90,000 per year. He does not have to provide for anyone other than himself because the mother and the children have been in Country B now for the best part of two years. He was unable to tell me how much money he had spent on lawyers.
When the father was asked why he had not sought legal advice but had managed to put together applications in a case seeking again not only to discharge previous injunctions relating to him travelling outside of Australia but also his demands that lawyers for the wife be referred to relevant authorities, he simply responded that he intended to file more applications.
The father is an intelligent and articulate man and although English may not be his first language, he had no difficulty communicating.
I reminded the father that in December, I was unhappy about the lack of advice in relation to the contempt proceedings and at the time, he had dismissed my concern. His attitude now in seeking to adjourn the proceedings because he had not been provided with some form of pro bono advice bearing in mind the circumstances just set out, I consider he was not serious about pursuing legal advice.
In the circumstances, no benefit could flow to the father in respect of the adjournment of the proceedings. On the other hand, the mother is the subject of injunctive orders in Country B from a court which precludes her from leaving that country based upon litigation in which the father was originally a participant; it is now asserted that others are running the argument there for him. All of that has to be seen in the context of a finding of Judge Burchardt that the proper forum for the determination of the children’s issue was Australia (see Millar & Oakley [2016] FCCA 1283).
In my view, the adjournment was a delaying tactic and nothing more.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 January 2018.

Associate:

Date: 30 January 2018