Millar and Oakley (No 3) - [2018] FamCA 68

FAMILY COURT OF AUSTRALIA

MILLAR & OAKLEY (NO. 3)

[2018] FamCA 68

FAMILY LAW – INJUNCTION – where restraining orders precluding the applicant from leaving Australia are in place – where application made to discharge orders but no new evidence – application refused.

Family Law Act 1975 (Cth)

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

INDEPENDENT CHILDREN’S LAWYER

Excused from attending

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.
That for the purposes of the hearing on 12 February 2018, the wife and her legal representatives are excused from attendance if they so desire.

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

REASONS FOR JUDGMENT

By his application filed 23 January 2018, Mr Oakley seeks four orders, the first of which concerns the dismissal of an application that be he dealt with for contempt of Court orders. I shall deal with that separately as the hearing of the application for contempt follows this application.
The second application for orders seeks that the Court lift the travel ban off him to - use his words, “Speed the process of Court in [Country B].” The difficulty with that is that I have no indication that it will indeed speed up anything. Associated with that is the issue of forum which has already been determined and is, as I understand it, now the subject of an appeal. I understand there is a prospect that the appeal can be heard in the sittings of the Full Court commencing on 5 March but that is only on the basis that other cases do not proceed and there is sufficient time.
The third application sought orders that the Court:
Alert the Legal…

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 3)

Details

AGLC: Millar and Oakley (No 3) [2018] FamCA 68
Case: [2018] FamCA 68
Decision Date: 30 January 2018

CaseChat Overview and Summary

In the matter of *Millar and Oakley (No 3)*, Cronin J of the Family Court of Australia considered applications brought by the parties concerning alleged contempt of court. The wife had filed an application alleging contempt by the respondent husband on 20 November 2017, and further applications were filed on 15 December 2017 and 23 January 2018. The husband sought an adjournment of the contempt application.

The primary legal issues before the court were whether the respondent husband was guilty of contempt of court, and whether the husband's application for an adjournment of the contempt proceedings should be granted. The court was also required to determine the fate of the applications filed on 15 December 2017 and 23 January 2018.

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 court dismissed the applications filed on 15 December 2017 and 23 January 2018. The wife's application for contempt, filed on 20 November 2017, was adjourned to 12 February 2018 for sentencing, with the wife and her legal representatives excused from attendance if they wished.

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.

That for the purposes of the hearing on 12 February 2018, the wife and her legal representatives are excused from attendance if they so desire.

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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