Millar & Oakley

Case [2021] FedCFamC1F 12

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Millar & Oakley [2021] FedCFamC1F 12

File number(s): MLC 2195 of 2016
Judgment of: WILLIAMS J
Date of judgment: 2 September 2021
Catchwords: FAMILY LAW – PARENTING – Application by the father for two children to live with him and for an order for equal shared parental responsibility, notwithstanding he had spent no time with the children for many years – Held the mother should have sole parental responsibility for the children and they should remain living with their mother – Dispute about whether the father had abandoned the mother in the African Country B in September 2014 with the intention to remove the children to Australia – Whether the father returned the children to the African Country B in April 2016 to put them beyond the jurisdiction of the Australian courts – Whether the father frustrated the return of the mother from the African Country B to Australia – Allegations by both parents that the other parent posed an unacceptable risk of harm to the children – The mother alleged coercive and controlling conduct and removal of the children from her care by the father and the father alleged parental incapacity and mental health issues of the mother – Held that the father was an unacceptable risk of harm to the children as alleged by the mother and the mother does not pose an unacceptable risk to the children and is a committed and competent parent – Whether it was in the best interests of the children to spend time with the father in the context of the finding of unacceptable risk of harm – Held there should be no time between the children and the father and there were no conditions or circumstances which would mitigate the risk the father posed to the children  
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 60CG, 61DA, 68B, 68Q, 69ZW, 122AA
Division: Division 1 First Instance
Number of paragraphs: 287
Date of hearing: 30 July–2 August 2019, 9 December 2019, 12–13 March 2020, 28 June – 1 July 2021  
Place: Melbourne
Counsel for the Applicant: Mr Goddard
Solicitor for the Applicant: Ebejer And Associates
Counsel for the Respondent: In Person
Counsel for the Independent Children's Lawyer: Ms Patterson
Solicitor for the Independent Children's Lawyer: Taft Lawyers

ORDERS

MLC 2195 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MILLAR
Applicant
AND:

MR OAKLEY
Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

2 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.All previous parenting orders are discharged.

2.The mother have sole parental responsibility for the children X born in 2012 and Y born in 2014 (“the children”).

3.The children live with the mother.

4.The children spend no time nor have any communication with the father.

5.The Father, his servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the…

Continue reading Millar & Oakley

Sign in free to access the full text

Details
AGLC
Millar & Oakley [2021] FedCFamC1F 12
Case
[2021] FedCFamC1F 12
Decision Date

CaseChat Overview and Summary

The case of Millar & Oakley involves a protracted dispute concerning the parental responsibility of children X and Y, born in 2012 and 2014 respectively, following the separation of their parents. The father, an Australian citizen who has lived in Australia since 2001, and the mother, who originates from African Country B, have divergent accounts of the events leading to their separation. The mother claims that the father left African Country B with the children in September 2014, without her knowledge or consent, whereas the father asserts that the parents divorced in accordance with Islamic law in 2014. The case has been litigated extensively in various Australian courts and in African Country B, primarily focusing on the international dispute over the children between the parents and the father's extended family.

The primary legal issues before the court were whether the mother should be granted sole parental responsibility for the children, and if so, what arrangements should be made for the father's contact with the children. The court considered the relevant statutory provisions under the Family Law Act 1975 (Cth), particularly sections 60CC and 60CG, which require the court to ensure that any orders made do not expose a person to an unacceptable risk of family violence and to consider the benefit to the child of having a meaningful relationship with both parents. The court had to weigh the evidence presented by both parties, including affidavits, expert reports, and previous court judgments, to determine the appropriate course of action in the best interests of the children.

The court found that the father had engaged in coercive and controlling conduct towards the mother, which had led to his exclusion from the children's lives and decision-making since 2016. The court also found that the father had removed the children from their mother in September 2014 and had subsequently taken them to African Country B, obstructing their return to Australia. Given these findings, the court concluded that it was in the best interests of the children for the mother to have sole parental responsibility. The court emphasised that the mother had been the primary carer for the children and that they were thriving in her care. The court further found that any involvement of the father posed an unacceptable risk to the children's stability and welfare.

The court ordered that the mother should have sole parental responsibility for the children and that the father should have no time or contact with the children in the future. This decision was based on the father's history of coercive and controlling conduct, his removal of the children from their mother, and the lack of any meaningful relationship between the children and their father since their reunification with the mother in April 2016. The court considered that these orders would provide the maximum possible protection for the children from the father and his actions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

As a result of that allegation I requested Counsel for the Independent Children’s Lawyer to arrange for the author of the second DHHS report dated December 2019, Ms V to be available to give evidence and being cross-examined. Ms V gave evidence and was cross examined on both the second last afternoon of the trial and for a further hour on the last morning of the trial.BACKGROUND Regrettably, this matter has an extensive history of litigation in this Court, the Federal Circuit Court and courts in the African Country B. The primary focus of the litigation in the African Country B has been an international dispute about the children between the parents and the father's extended family. The parents' version of past events is divergent, with each blaming and holding the other responsible, for what has transpired. The father has lived in Australia since 2001 and is now an Australian citizen. The mother lived in the African Country B, where the parties had known each other since childhood. They were reintroduced to each other at a family wedding in either 2006 or 2007 in the African Country B. The parties married in 2010 and immediately applied for a spousal visa to enable the mother to travel to Australia. After initial rejection of the application, a Visa was granted which enabled the mother to arrive in Australia in 2012. Although the mother was entitled to apply for permanent residency, because she had lived in Australia for a period of six months, she did not pursue that application. Their first child, X, was born in 2012 and the second child, Y, was born in 2014. According to the father, the parents were divorced in Australia, pursuant to Islamic law in 2014, with him contacting the members of the maternal family to advise of the separation. The mother asserts that separation occurred on 24 September 2014, when the father left the African Country B with the children and returned to Australia, without their mother's knowledge or consent. Prior to September 2014, the mother asserts that she was the primary carer of the children, albeit they were enrolled in a child care centre three days a week from the end of June 2014. According to the mother, the children's enrolment in child care was at the unilateral behest of the father. According to the father, the mother lacked parental capacity to care for the children and the children were allocated a place, as a result of a priority request from the Nurse. On 15 September 2014, the parents and children travelled to the African Country B with return flights booked for 20 October 2014. The mother was under the impression that the family was having a holiday in the African Country B and would be returning to Australia at the conclusion, in accordance with the return ticket. Whilst the family was in the African Country B, on 24 September 2014, the father and the children returned to Australia, without advising the mother. The mother asserts that she had gone to visit family members for a few hours during the day, leaving the children with their father and when she returned to their accommodation some hours later, the father had left with the children and she had no idea of their whereabouts.

Evidence

Evidence Before The Court

The documents relied upon by the Independent Children's Lawyer are:(a)Children and parents issues assessment of Ms S dated 27 February 2019;(b)Family report of Ms S dated 26 June 2019;(c)Section 69 ZW response from the DHHS dated 14 February 2019 ;(d)the following judgments:(i)reasons for judgment of Judge Burchardt delivered 14 November 2016 (sole parental responsibility to mother);(ii)reasons the judgment of Cronin J delivered 9 June to 2017 (injunctions and orders relating to further prosecution of proceedings in the African Country B; for the father and his servants and agents to do all things to authorise removal of mother and children from any injunctive orders in the African Country B and authorise the African Country B authorities to remove them from the African Country B);(iii)reasons for judgment of Cronin J delivered 6 February 2018 (Contempt). These reasons also refer to and incorporate parts of the reasons for judgement of Judge Burchardt of 16 May 2016;(iv)reasons the judgment of Cronin J delivered 12 February 2018 (Contempt Sentencing);(v)reasons for judgment of Cronin J delivered 12 September 2018 (dismissal of father's application for, inter-alia, an immediate change of residence).EVIDENCE The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)). Section 140 of the Evidence Act 1995 (Cth) provides:(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject- matter of the proceeding; and(c) the gravity of the matters alleged. The mother and father relied upon their respective affidavits. I have examined that evidence and do not propose to repeat it in these reasons. It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:62.…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:It is not the duty of the judge to decide every matter which is raised in argument.…Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…

Decision

Reasons for decision

It is a very serious matter to exclude the rights and responsibilities of parental responsibility from a parent. However, in the context of the father having had no involvement in the children’s lives or decision-making since 2016 and my findings as to the removal of the children from their mother in September 2014, frustrating her return to Australia and his wilful removal of the children to the African Country B in 2016, it is an irresistible conclusion that the mother should have sole parental responsibility for the children. It is impossible to consider any situation where the mother who has been subjected to the father’s coercive controlling conduct should be required to consult or communicate with the father about long-term decision-making for the children. She has made decisions without the father’s input since 2016 and the evidence of the family consultant is that the children are thriving in her care and that she is a devoted and capable parent. I have no hesitation in making an order that sole parental responsibility should be vested in the mother, particularly if orders are made providing for the father to have no time or contact with the children in the future. I intend to make an order that the mother have sole parental responsibility.CONCLUSION In his final submissions, Counsel for the mother submitted that the orders proposed by the mother lead to the inescapable conclusion that those orders offer the mother and the children the maximum possible protection from the father and his actions and to least disrupt the children’s lives. I agree with and accept that submission. He urged the court to make ten critical findings as follows:(a)the father had engaged in family violence towards the mother after the birth of X of a serious nature, by reason of his coercive and controlling conduct;(b)there were problems in the relationship but no final separation prior to August 2014 in the African Country B;(c)the father notified the immigration authorities in June 2014 that the marriage had broken down without the mother’s knowledge, and with the intention to subsequently abandon her in the African Country B and remove the children to Australia;(d)he abandoned the mother in the African Country B without her passport or a Visa as he knew she could not easily return to Australia and deliberately removed the children from her and severing the relationship between the children and their mother without regard to the impact on the children;(e)when he returned to Australia in September 2014 he did not take any steps to assist the mother to return, which she eventually did;(f)upon the return of the mother to Australia in 2016 the father obtained an intervention order against her and when he was served with the mother’s parenting application to the Court, he immediately took the children to the African Country B to put them beyond the reach of the Australian courts;(g)when the father returned to Australia, he frustrated the return of both the children to Australia and the mother’s ultimate return to Australia;(h)after the mother’s return to Australia the children have lived in a stable and happy life and were thriving in the absence of the father;(i)the father poses an ongoing threat to the children stability and welfare because of his attitude towards the mother;(j)the orders proposed will minimise the risk to the maximum extent possible to protect the children.

Ratio Decidendi

Legal Principle Established

In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards. PRIMARY CONSIDERATIONSThe benefit to the child of having a meaningful relationship with both of the child’s parents In McCall & Clark [2009] FamCAFC 92 ("McCall & Clark") at [109], the Full Court said:[109] The Act does not contain a definition of "meaningful", nor does it provide any specific criteria to assess how parents either have, or should have, a "meaningful involvement" in a child's life. It does not give guidance to the interpretation of the phrase "meaningful relationship". At [117] of McCall & Clark, the Full Court said:[117] Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a "prospective" one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic]. The Full Court said there were differing possible approaches to s 60CC(2)(a) of the Act. The Court preferred the "prospective approach", although the "present relationship approach" may also be relevant. At [118] of McCall & Clark, the Full Court defined both the "present relationship approach" and "prospective approach" as follows:…(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child's parents by examination of evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made ("the present relationship approach");…(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents ("the prospective approach"). In this dispute I prefer the prospective approach. In Mazorski v Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one "which is important, significant and valuable to the child" and the word meaningful is "a qualitative adjective, not strictly a quantitative one". At present the children do not have a relationship with their father. The children have not seen their father since being reunited with their mother in April 2016. At that time X was three years and four months old and Y was two years old. The family consultant (at paragraph 91 of her report dated 24 June 2019) is of the opinion that prior to reunification with their mother, it is likely that the children formed a significant relationship with their father, particularly as they did not have a relationship with their mother for approximately two years. However, it is not possible to ascertain what explanations were provided to the children for the absence of their mother. The children's relationship with their father has obviously been disrupted, not only because they have had no time with him since April 2016, but because of their current developmental ages, they are able to express and articulate their experience with him. There is of course, the possibility that the children have been influenced by the mother, because of her experiences with their father, however the children own experiences are real.