Millar & Oakley - [2016] FCCA 1283

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLAR & OAKLEY

[2016] FCCA 1283

Catchwords:
FAMILY LAW – Interim parenting dispute – children in (country omitted) – parents in Australia – whether father should be compelled to remain in Australia and cause children to be returned to Australia – whether Australia appropriate forum – orders made as sought by mother and Independent Children’s Lawyer.

Cases cited:
Goode v Goode [2006] FamCA 1346

Voth v Manildra Flour Mills (1990) 171 CLR 538
Henry v Henry (1996) 185 CLR 571
Zanda v Zanda (2014) 293 FLR 1

Applicant:

MS MILLAR

Respondent:

MR OAKLEY

File Number:

MLC 2195 of 2016

Judgment of:

Judge Burchardt

Hearing date:

16 May 2016

Date of Last Submission:

16 May 2016

Delivered at:

Melbourne

Delivered on:

16 May 2016

REPRESENTATION

Counsel for the Applicant:

Ms Ebejer

Solicitors for the Applicant:

Ebejer & Associates Lawyers

Counsel for the Respondent:

Ms Burt

Solicitors for the Respondent:	Souki Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Taghdir

Solicitors for the Independent Children’s Lawyer:

Taft Lawyers

ORDERS

Within 14 days the father advise the mother’s lawyer and the Independent Children’s Lawyer of the arrangements that have been made by him to secure the travel of X born (omitted) 2012 and Y born (omitted) 2014 (“the children”) to the Commonwealth of Australia including:
(a)The name of the person who will be travelling and accompanying the children;
(b)The flights proposed to be organised including departure time from (country omitted), arrival time at Melbourne, Australia and flight number and airline details;
(c)The full name, date of birth, passport number and other relevant information with respect of the accompanying adult.
Each of the father and the mother shall forthwith do all things, sign all documents and give all consents and authorities necessary to enable, permit and cause the children to be delivered into the Commonwealth of Australia no later than 30 May 2016.
Upon the children’s return to Australia the children live with the father at his residence in (omitted), Victoria.
The children spend time with the mother as agreed between the parties or as deemed appropriate by the Court.
Upon the children returning to Australia, the Australian Federal Police notify the mother, the Independent Children’s Lawyer and the Court.
The matter be adjourned to this Court for mention before Judge Burchardt on 7 June 2016 at 9.30 am.
Liberty to apply is granted to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Millar & Oakley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2195 of 2016

MS MILLAR

Applicant

And

MR OAKLEY

Respondent

REASONS FOR JUDGMENT

Although this is an extraordinary case involving a number of features that certainly I have never encountered in my 10 years on the bench, it is still an interim hearing and I propose, therefore, to address the matter by reference to the statutory pathway as illuminated at paragraph 82 in the decision of the Full…

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 & Oakley

Details

AGLC: Millar & Oakley [2016] FCCA 1283
Case: [2016] FCCA 1283
Decision Date: 16 May 2016

CaseChat Overview and Summary

In the matter of *Millar & Oakley*, heard before Judge Burchardt, the dispute concerned arrangements for the travel of two children, born in 2012 and 2014, to the Commonwealth of Australia. The father was ordered to provide specific details regarding the arrangements for the children's travel, including the identity of the accompanying adult, proposed flight details, and information about the accompanying adult.

The court was required to determine the necessary steps to ensure the children's arrival in Australia by a specified date, and to establish their living arrangements and time spent with each parent upon their return. The court also needed to consider the notification process upon the children's arrival.

Judge Burchardt ordered that both parents take all necessary actions to facilitate the children's delivery to Australia by 30 May 2016. Upon their return, the children were to reside with the father in Victoria, and spend time with the mother as agreed or as determined by the Court. The Australian Federal Police were directed to notify the mother, the Independent Children's Lawyer, and the Court upon the children's return. The matter was adjourned for mention, with liberty to apply granted to the parties.

Orders

Orders of the court

Within 14 days the father advise the mother’s lawyer and the Independent Children’s Lawyer of the arrangements that have been made by him to secure the travel of X born (omitted) 2012 and Y born (omitted) 2014 (“the children”) to the Commonwealth of Australia including:

(a) The name of the person who will be travelling and accompanying the children;

(b) The flights proposed to be organised including departure time from (country omitted), arrival time at Melbourne, Australia and flight number and airline details;

Each of the father and the mother shall forthwith do all things, sign all documents and give all consents and authorities necessary to enable, permit and cause the children to be delivered into the Commonwealth of Australia no later than 30 May 2016.

Upon the children’s return to Australia the children live with the father at his residence in (omitted), Victoria.

The children spend time with the mother as agreed between the parties or as deemed appropriate by the Court.

Upon the children returning to Australia, the Australian Federal Police notify the mother, the Independent Children’s Lawyer and the Court.

The matter be adjourned to this Court for mention before Judge Burchardt on 7 June 2016 at 9.30 am.

Liberty to apply is granted to the parties.

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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