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…

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 Millar and Oakley

Details

AGLC: Millar and Oakley [2018] FamCA 46
Case: [2018] FamCA 46
Decision Date: 30 January 2018

CaseChat Overview and Summary

In the matter of *Millar and Oakley*, heard before Cronin J, the dispute concerned an application for leave to appeal against a decision of the Registrar. The applicants sought to challenge the Registrar's refusal to grant them leave to appeal against an earlier decision made by a Deputy Registrar.

The central legal issue before Cronin J was whether the applicants had demonstrated sufficient grounds to be granted leave to appeal the Registrar's decision. This required the court to consider the principles governing the grant of leave to appeal, particularly in circumstances where a prior application for leave had already been refused.

Cronin J applied the principles established in *House v The King* and *Australian Coal and Shale Employees' Federation v The Commonwealth*, which dictate that leave to appeal should only be granted in exceptional circumstances. His Honour found that the applicants had failed to establish any error of law or fact in the Registrar's decision, nor had they demonstrated any compelling reason why the appeal should be heard. The applicants' arguments were found to be without merit and did not meet the threshold for granting leave.

Consequently, Cronin J dismissed the application for leave to appeal.

Orders

Orders of the court

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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