Millar and Oakley - [2017] FamCA 415

FAMILY COURT OF AUSTRALIA

MILLAR & OAKLEY

[2017] FamCA 415

FAMILY LAW – PRACTICE & PROCEDURE – Application for interim orders
FAMILY LAW – INJUNCTION – Overseas legal proceedings

Family Law Act 1975 (Cth)

APPLICANT:

Ms Millar

RESPONDENT:

Mr Oakley

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

2195

2016

DATE DELIVERED:

9 June 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

7 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McLeod

SOLICITOR FOR THE APPLICANT:

Ebejer & Associates

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Elleray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Taft Lawyers

Orders

That insofar as the father sought interim orders in paragraph 5 of his affidavit filed 1 June 2017, that application is dismissed.
That the application in a case filed 6 February 2017 is dismissed.
That the application in a case filed 21 April 2017 is dismissed.
That until further order of this Court, the father is restrained by injunction from proceeding with, or prosecuting, any legal action in African Country B relating to the children X born … 2012 and Y born … 2014, relating to the determination of:
(a) where the said children live;
(b) with whom the children should live; and
(c)any restraint upon the mother and the children leaving Country B.
The father, including by his agents, is forthwith to do all things necessary and sign all consequential documents to:
(a)Authorise the removal of the mother and the children from any injunctive order in Country B to enable the mother and the children to depart that country to enable compliance with inter alia, paragraph [5] of the order of the Federal Circuit Court (of Australia) made on 14 November 2016; and
(b)Authorise the relevant Sudanese authorities to enable the departure of the mother and the children from Country B.
Paragraph [3] of the orders of the Federal Circuit Court made 16 May 2016 is discharged.
The mother’s proposed orders (1), (5), (8), (9), (10) and (11) of the application for interim orders filed 25 May 2017 are adjourned to a date to be fixed.
That both the mother and the father have leave to seek that any applications for further be listed on an urgent basis in the event that:
(a)      The children are not returned to Australia forthwith;
(b)      The father fails to comply with these orders; or
(c)      The children do return to Australia.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these 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…

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 [2017] FamCA 415
Case: [2017] FamCA 415
Decision Date: 9 June 2017

CaseChat Overview and Summary

In the matter of Millar and Oakley, heard before Cronin J, the dispute concerned applications brought by both the father and the mother relating to their two children, X and Y. The father sought interim orders, and both parties filed applications concerning the children's living arrangements and their ability to depart a foreign country.

The court was required to determine whether to grant the father's interim applications, and to consider the applications filed by both parties. A central issue was the father's prosecution of legal action in a foreign country concerning the children's residence and their ability to leave that country, and the mother's ability to depart with the children.

Cronin J dismissed the father's interim applications and other applications filed by the parties. Crucially, the court issued an injunction restraining the father from proceeding with any legal action in African Country B concerning where the children live, with whom they should live, or any restraint on the mother and children leaving that country. The father was ordered to take all necessary steps to authorise the removal of the mother and children from any injunctive order in Country B and to enable their departure, to facilitate compliance with a previous Federal Circuit Court order. The court also discharged a prior Federal Circuit Court order and adjourned some of the mother's proposed orders. Both parents were granted leave to seek urgent listing of further applications under specific circumstances, including the children not being returned to Australia or the father failing to comply with the orders. The court also noted the inclusion of a fact sheet detailing obligations and consequences of contravention, pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth).

Orders

Orders of the court

That insofar as the father sought interim orders in paragraph 5 of his affidavit filed 1 June 2017, that application is dismissed.

That the application in a case filed 6 February 2017 is dismissed.

That the application in a case filed 21 April 2017 is dismissed.

That until further order of this Court, the father is restrained by injunction from proceeding with, or prosecuting, any legal action in African Country B relating to the children X born … 2012 and Y born … 2014, relating to the determination of:

(a) where the said children live;

(b) with whom the children should live; and

The father, including by his agents, is forthwith to do all things necessary and sign all consequential documents to:

(a) Authorise the removal of the mother and the children from any injunctive order in Country B to enable the mother and the children to depart that country to enable compliance with inter alia, paragraph [5] of the order of the Federal Circuit Court (of Australia) made on 14 November 2016; and

(b) Authorise the relevant Sudanese authorities to enable the departure of the mother and the children from Country B.

Paragraph [3] of the orders of the Federal Circuit Court made 16 May 2016 is discharged.

The mother’s proposed orders (1), (5), (8), (9), (10) and (11) of the application for interim orders filed 25 May 2017 are adjourned to a date to be fixed.

That both the mother and the father have leave to seek that any applications for further be listed on an urgent basis in the event that:

(a) The children are not returned to Australia forthwith;

(b) The father fails to comply with these orders; or

That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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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