Millar and Oakley (No 2) - [2018] FamCA 48

FAMILY COURT OF AUSTRALIA

MILLAR & OAKLEY (NO. 2)

[2018] FamCA 48

FAMILY LAW – CONTEMPT – where father refuses to sign authority as ordered to enable mother and children to endeavour to leave Country B – where there is no plausible explanation – respondent found guilty and matter adjourned for submissions relating to penalty and for respondent to obtain legal representation.

Family Law Act 1975 (Cth)

LGM v CAM (2006) FLC 93-267 Oakley & Millar (and various derivations) [2017] FamCA 415, [2017 FamCA 513 and [2017] FamCA 1093) Nieuwstraten and Nieuwstraten (1987) FLC 91-826 Tate and Tate (2002) FLC 93-107
APPLICANT:	Ms Millar

RESPONDENT:

Mr Oakley

FILE NUMBER:

MLC

2195

2016

DATE DELIVERED:

6 February 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

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Taft Lawyers

Orders

That paragraphs 2-4 of the application in a case filed 23 January 2018 are dismissed.
That the application filed 15 December 2017 is dismissed.
That the father’s application for an adjournment of the contempt application filed 20 November 2017 is refused.

HAVING FOUND THE RESPONDENT HUSBAND GUILTY OF CONTEMPT OF COURT:

The application for contempt filed by the wife on 20 November 2017 is adjourned to 9.00am on 12 February 2018 for sentencing.

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 (No 2) 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

These reasons concern a finding that I made at 5.10pm on 30 January 2018 that Mr Oakley (“the father”) was guilty of contempt of court based upon an application brought by Ms Millar (“the mother”) on 20 November 2017.
There have been a number of judgments in proceedings between these parties (in addition to an order of Judge Burchardt in the Federal Circuit Court of Australia). Some of the remarks of his Honour set the background for the current application. On 16 May 2016, his Honour said:
[1]…
[2]…The mother, who is wholly supported by the Independent Children’s Lawyer, seeks that orders be made to compel the father to bring the two children with whom we are concerned back to Australia. It is implicit in that position that should the father fail to comply he would be coerced…

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 (No 2)

Details

AGLC: Millar and Oakley (No 2) [2018] FamCA 48
Case: [2018] FamCA 48
Decision Date: 6 February 2018

CaseChat Overview and Summary

In *Millar and Oakley (No 2)*, Cronin J of the Family Court of Australia considered applications by the parties concerning contempt of court proceedings. The wife had filed an application alleging contempt by the husband, while the husband had also filed applications, including one for an adjournment of the contempt proceedings.

The court was required to determine whether the husband was in contempt of court, and if so, to consider the appropriate course of action, including sentencing. Additionally, the court had to rule on the husband's application for an adjournment of the contempt proceedings and consider other related applications filed by the parties.

Cronin J found the respondent husband guilty of contempt of court. Consequently, the husband's application for an adjournment of the contempt application was refused. The wife's application for contempt was adjourned for sentencing, with the matter scheduled for 9.00 am on 12 February 2018. Certain other applications filed by the parties were dismissed.

Orders

Orders of the court

That paragraphs 2-4 of the application in a case filed 23 January 2018 are dismissed.

That the application filed 15 December 2017 is dismissed.

That the father’s application for an adjournment of the contempt application filed 20 November 2017 is refused.

HAVING FOUND THE RESPONDENT HUSBAND GUILTY OF CONTEMPT OF COURT:

The application for contempt filed by the wife on 20 November 2017 is adjourned to 9.00am on 12 February 2018 for sentencing.

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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