Millard and Millard - [2018] FamCA 258

FAMILY COURT OF AUSTRALIA

MILLARD & MILLARD

[2018] FamCA 258

FAMILY LAW – CHILDREN – Interim proceedings - With whom a child lives – With whom a child spends time – With whom a child communicates – Application by mother for a recovery order in respect of the middle child – Application by mother that children live with her and spend no time with the father – Recovery order issued for the middle child – Interim orders made that children live with the mother – Interim Orders made that children spend no time with the father – Specific Issues Orders- Injunctive Orders

Family Law Act 1975 (Cth) s 60CC

Toohey & Toohey [2016] FamCA 15

APPLICANT:

Ms Millard

RESPONDENT:

Mr Millard

FILE NUMBER:

SYC

5458

2015

DATE DELIVERED:

26 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

20 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies S.C.

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Ms Nelson

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

Orders

The interim parenting orders 1, 2, 3, 4, 5, 6, 7, and 8 made 14 March 2018 in respect of B born … 2005, C born … 2007 and D born … 2012 (‘collectively the children’) are vacated.

UNTIL FURTHER ORDER

Ms Millard (‘the mother) have sole parental responsibility for the children.
The children shall live with the mother.
The children shall spend no time with the father Mr Millard(‘the father’).
The mother shall be at liberty to leave the Sydney metropolitan area with the children pending further order.
The mother shall be at liberty to organise counselling for the children at S Child Psychology Centre or such other counselling services as is determined by the mother and which can facilitate counselling for the children, and thereafter the mother shall ensure the children’s’ attendance on a counsellor as recommended by the counsellor.
Pursuant to s 68B(1)(b) of the Family Law Act 1975 (Cth) the father be and is hereby restrained from assaulting, harassing or molesting the mother in any way.
Pursuant to s 68B(1)(a) of the Family Law Act 1975 (Cth) the father be and is hereby restrained from the following:-
(a) assaulting, harassing or molesting the children or any of them in any way;
(b)forwarding, sending, initiating or sustaining any communication in any form with the children or any of them;
(c)entering or being within 50 metres of the mother’s home, presently E Street, Suburb F;
(d)entering or remaining or being within 50 metres of the children’s schools, presently being Suburb F Public School and/or G School; and
(e) Being within 50 metres of the children or any of them.
Each of the parents is restrained from:-
(a)denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with…

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 Millard and Millard

Details

AGLC: Millard and Millard [2018] FamCA 258
Case: [2018] FamCA 258
Decision Date: 26 April 2018

CaseChat Overview and Summary

In *Millard and Millard*, Benjamin J of the Federal Circuit and Family Court of Australia made orders concerning the parenting of three children, B, C, and D. The dispute involved the mother, Ms Millard, and the father, Mr Millard, and the court was required to determine interim parenting arrangements and issue protective orders.

The court was tasked with determining the primary caregiver for the children, whether the children should spend any time with the father, and whether the mother should be permitted to relocate with the children. Furthermore, the court considered the necessity of restraining orders against the father to protect the mother and children, and orders to prevent the denigration of parents and the discussion of proceedings with the children. The court also addressed the potential removal of the children from Australia and the recovery of one of the children, C.

Benjamin J ordered that the previous interim parenting orders be vacated. The mother was granted sole parental responsibility, and the children were to live with her and spend no time with the father. The mother was permitted to leave the Sydney metropolitan area with the children and to arrange counselling for them. Crucially, extensive restraining orders were made against the father, prohibiting him from assaulting, harassing, or molesting the mother or children, from communicating with the children, and from attending near the mother's home or the children's schools. Both parents were restrained from denigrating each other in the presence of the children or discussing the proceedings with them.

The court also issued orders preventing the removal of the children from Australia and requested their names be placed on the Family Law Watchlist. A recovery order and warrant were issued for child C, authorising law enforcement to locate and take possession of C and deliver the child to the mother. The father and his agents were restrained from removing the children from the mother, and law enforcement was authorised to arrest anyone breaching certain orders.

Orders

Orders of the court

The interim parenting orders 1, 2, 3, 4, 5, 6, 7, and 8 made 14 March 2018 in respect of B born … 2005, C born … 2007 and D born … 2012 (‘collectively the children’) are vacated.

UNTIL FURTHER ORDER

Ms Millard (‘the mother) have sole parental responsibility for the children.

The children shall live with the mother.

The children shall spend no time with the father Mr Millard(‘the father’).

The mother shall be at liberty to leave the Sydney metropolitan area with the children pending further order.

The mother shall be at liberty to organise counselling for the children at S Child Psychology Centre or such other counselling services as is determined by the mother and which can facilitate counselling for the children, and thereafter the mother shall ensure the children’s’ attendance on a counsellor as recommended by the counsellor.

Pursuant to s 68B(1)(b) of the Family Law Act 1975 (Cth) the father be and is hereby restrained from assaulting, harassing or molesting the mother in any way.

Pursuant to s 68B(1)(a) of the Family Law Act 1975 (Cth) the father be and is hereby restrained from the following:-

(a) assaulting, harassing or molesting the children or any of them in any way;

(b) forwarding, sending, initiating or sustaining any communication in any form with the children or any of them;

(d) entering or remaining or being within 50 metres of the children’s schools, presently being Suburb F Public School and/or G School; and

(e) Being within 50 metres of the children or any of them.

Each of the parents is restrained from:-

(a) denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with;

(b) discussing any aspect of these proceedings (other than to inform the children of these interim orders) or the Apprehended Domestic Violence Order proceedings, or any criminal proceedings instituted against either party with or in the presence of the children or any of them;

(c) showing the children any documents filed in these proceedings or discussing any of the allegations made in the documents filed with or in the presence of the children or any of them; and

(d) showing the children any documents produced under subpoena or discussing the content of any such documents with or in the presence of the children or any of them.

10.

Until further order Mr Millard born … 1976, Ms Millard born … 1975 and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children B born … 2005, C born … 2007 and D born … 2012 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist, until the Court orders its removal, or with consent of all parties.

11.

Pursuant to s 67Q of the Family Law Act 1975 (Cth) a recovery order and warrant be issued to the Marshall, all officers or agents of the Australian Federal Police and all officers of the police forces of all the states and territories of the Commonwealth of Australia (“officers and agents”) authorising and directing them to at any time and with such assistance as they require and if necessary by force to:

(a) stop and search any vehicle, vessel or aircraft; and

(b) enter and search H Street, Suburb J NSW 2069 or any premises or place,

where there may be reasonable cause to believe that Mr Millard (‘the father’) born … 1976 and the child C born … 2007 (“C”) may be found and to take possession of C.

12.

The officers and agents referred to in these orders may put these orders into effect on a fax or email copy of these orders.

13.

Upon recovery of the child, the officers and agents are, pursuant to s 67Q(d) of the Family Law Act 1975 (Cth) are directed to deliver the child C to Ms Millard, born … 1975.

14.

The father and his servants and agents are restrained from removing, or causing the removal of B born … 2005, C born … 2007 and/or D born … 2012 from the mother.

15.

The officers and agents are authorised and directed to arrest, without warrant, any person who acts in breach of order 7 and 13 of these orders.

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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