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 of 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

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

2. That the application filed 15 December 2017 is dismissed.

3. 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:

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

2. 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

1. 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. 

2. 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. 

3. The third application sought orders that the Court:

   Alert the Legal Aid that they finance a case of lies which is waste of taxpayers’ money and risk the children life.

4. The fourth order sought is that the Court stop the lawyer currently on the record of this Court for the wife.  He describes the lawyer’s actions as “vexatious”.  I do not need to deal with that issue at all because, apart from anything else, the application has not been served upon the lawyer, nor is she named as a party to the proceedings.  In my view, even if the Court has inherent control over its practitioners as officers of the Court, it would not be appropriate to deal with the matter on the basis, as he asserts. 

5. Before dealing with each of the three matters in general, it is important to refer to the affidavit that Mr Oakley filed on 23 January this year.  As with many of the documents that I have seen in the past from Mr Oakley, they are a very closely typed and a condensed set of arguments rather than facts.  The first is that he relies upon what he describes as a letter from the Attorney-General of Country B concerning a decision about his complaint (or someone’s complaint) of child neglect against the biological mother.  The difficulty with that assertion is that the document attached is not from the Attorney-General at all but from a public prosecutions officer who, in some detail, sets out what had occurred in relation to complaints.  As I interpret the letter, it asserts that the prosecution report which was “written off” ought now be returned.  That means to me that there are allegations of neglect and they go further than allegations at this stage. 

6. The second, and probably more substantive issue, is set out in paragraph 4 of Mr Oakley’s affidavit.  In this assertion he refers specifically to a Court hearing in the Country B and refers to it as a “neglect case”.  He says that the hearing was on 10 December 2017 and that the Court file was transferred to another Court jurisdiction where the wife lives.  He then refers to a letter referring to the fact that a protection Court summons was issued on 10 December.  He goes on later to refer to the need for him to attend the hearing on 10 December.  The documents that I have attached to the affidavit do not refer to 10 December but rather to 10 January.  It seems that that is an error on his part.  More importantly, what he says is that the Court system requires him to appear and he uses the summons, as he calls it, as evidence of the fact that he has been called before the Court in the Country B.  The difficultly, obviously, is that the hearing is on 10 o’clock on 10 January and that has now passed.

7. What he does not say in his affidavit is the full sequence of events as to what occurred at the hearing on 10 December.  It transpires that on 10 December the wife was ordered to hand over the children to the husband’s family and, in defiance of that, she was arrested and imprisoned for a period of three days.  Despite having defied the Court and what was said at that hearing, the children remained out of the father’s family’s care.  On or about the third day of her imprisonment, the husband’s mother sought a discharge of the order and it seems that the Court complied with her wish and she was released.

8. The curious inference to be drawn from that is that notwithstanding all of the accusations of neglect, the Court was prepared to release the mother knowing that she had at least control, if not possession, of the children at that time, so one might conclude that the Court was not particularly worried about the neglect case at that particular time. 

9. The affidavit then goes on to say that the wife had been represented by a lawyer in the Country B whom it seems is now no longer engaged and that, for the purposes of a previous hearing in this Court, falsified a document using the letterhead of this particular lawyer.  The lawyer has written a letter in the English language which is somewhat confusing but he purports to say that he is suing the mother and that he would not have said the things that were said. 

10. In a very garbled submission today, Mr Oakley says that either the wife or someone close to her has falsified this document or, it would seem, he assumes that the wife’s Australian lawyer has done so.  There is no evidence to indicate that there is any basis for that allegation.  It may, in the fullness of time, prove to be correct, but on the basis of an assertion such as that is before the Court at the moment, I would not be prepared to accept that the Court was previously mislead. 

11. The husband then says that he mentioned to a Magistrates’ Court - and I do not understand what the basis of that application was - that the Australian Family Court documents were being widely spread on international social media by a group of people around the wife. He said he had been advised by the Magistrate to inform this Court of the fact that that had occurred. As I have explained to him today, whilst this Court might be concerned about a breach of s 121 of the Family Law Act 1975 (Cth) (“the Act”), the reality is that the prosecution and, indeed, any necessary orders arising out of that sort of breach, fall predominantly to the Attorney-General for the Commonwealth of Australia. On that basis, there is no application before me to do anything further about that.

12. The husband then goes on to say that a number of affidavits filed by the wife and the documents to support those affidavits misled Judge Burchardt.  None of those assertions is new and, indeed, if Judge Burchardt was misled then those issues can be raised before the Full Court in the forthcoming period of time on the appeal. 

13. He ultimately then returns to the fact that it is important that he be able to travel to the Country B to sort all these problems out, not just in relation to the welfare of the children, but also the proceedings in the Country B. The difficulty I have with that is that he now states from the bar table that even if I allowed him to go to the Country B, there is no indication from him that the mother and the children would be allowed to return to Australia.  I asked the question twice and got the same answer, so I am not sure what the purpose of his attendance in the Country B would be. 

14. He says that he needs to go there for schooling and for proper accommodation purposes and to enable the children to be vaccinated, but those matters could be equally dealt with in Australia on the basis of a quick return of the children here.

15. Ultimately, therefore, there is nothing new in the application for a removal of the travel ban.  To the extent that the travel ban should never have been placed by the Court in the first place, no doubt that issue will be addressed by the Full Court in the future.  On that basis, paragraph 2 of the application must fail. 

16. In respect of the other matters relating to advising the Legal Aid, it is not the function of this Court to determine whether or not the Court has been mislead, either by a litigant or, indeed, by a practitioner.  Those matters can certainly be dealt with at trial but at this stage I am only dealing with the interlocutory issues.  There is no utility, therefore, in me making orders in terms of paragraph 3 and 4 of his application. 

17. It is abundantly clear that the husband has spoken to a number of people.  He has told me that he has been in touch with the Australia Federal Police, the Local Magistrates’ Court and, more importantly, in respect of the fourth order that he seeks, the Legal Services Commission.  There is no evidence as to what concern, if any, the Legal Services Commissioner has in this case and, on that basis, I again reiterate that order 4 is of no utility even if I did have the power to make those orders.

18. On that basis, paragraphs 2, 3 and 4 of the application are dismissed.  I shall deal with paragraph 1 of his application when I deal with the contempt application which shall now proceed. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 January 2018.

Associate: 

Date:  15 February 2018