Miller and Harrington - [2007] FamCA 1124

FAMILY COURT OF AUSTRALIA

MILLER & HARRINGTON

[2007] FamCA 1124

FAMILY LAW – CHILDREN – With whom the child lives – Orders

FAMILY LAW – COSTS – Between parties – Circumstances justifying order

Family Law Act 1975 (Cth)

APPLICANT:

Ms Miller

RESPONDENT:

Mr Harrington

FILE NUMBER:

BRF

6207

2000

DATE DELIVERED:

31 July 2007

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

13 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page of Senior Counsel

SOLICITORS FOR THE APPLICANT:

Rees Law, Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Forrest of Counsel

SOLICITORS FOR THE RESPONDENT:

Murdochs Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

SOLICITORS FOR INDEPENDENT

CHILDREN’S LAWYER:

Mr Galloway of Counsel

Morrison Lawyers

Orders

The Mother’s Application in Form 1 filed 1 March 2006 is dismissed.
The Mother’s Application in Form 2 filed by leave on 13 April is dismissed.
The Mother is to pay the Father’s costs on an indemnity basis of and incidental to all proceedings since the order of Justice Buckley dated 8 July 2005 including:
a.Application for Final Orders filed by the mother on 1 March 2006;
b.Application in a Case filed by the mother on 1 March 2006;
c.Application in a Case filed by the father on 2 February 2006;
d.Application for Contravention filed by the father on 17 March 2006;
e.Application in a Case filed by the father (by leave) on 21 November 2006;
f.Application in a Case filed by the Independent Children’s Lawyer on 29 November 2006; and
g.Application in a Case filed by the father on 22 December 2006.
Save that the solicitors for the Father are not to charge for annexures 1 to 4 inclusive to the affidavit of the Father filed 30 March 2006.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 6207 of 2000

MS MILLER

Applicant

And

MR HARRINGTON

Respondent

And
INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Mr Harrington and Ms Miller are the natural parents of two children, J born in September 1992 and R born in September 1995.
After a six day contested hearing, Buckley J on the 8 July 2005 ordered the children reside with the Father. The Mother was to spend time with the children by way of supervised contact for two hours each week for a period of six months. Thereafter the Mother was to have contact at agreed times but failing agreement on alternate weekends, 5.00 pm Friday to 5.00 pm Sunday and for one half of school holidays. There were also orders relating to special days and orders dealing with specific issues. In particular, there was an order that the parents have joint responsibility for the long term care, welfare and development of the children.
On 1 March 2006 less than eight months after the trial in this matter the Mother filed an application seeking an order that…

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 Miller and Harrington

Details

AGLC: Miller and Harrington [2007] FamCA 1124
Case: [2007] FamCA 1124
Decision Date: 31 July 2007

CaseChat Overview and Summary

In the matter of *Miller and Harrington*, heard before Barry J, the dispute concerned applications made by the Mother and Father regarding parenting orders. The Mother had filed two applications, one on 1 March 2006 and another on 13 April 2006, both of which were ultimately dismissed. The proceedings also involved various applications filed by the Father and the Independent Children's Lawyer.

The central legal issues before the court were the determination of the applications made by the Mother and the appropriate orders for costs. The court was required to consider the merits of the Mother's applications and, in light of its decision, to make orders regarding the costs incurred by the parties throughout the proceedings.

Barry J dismissed both of the Mother's applications. In relation to costs, the court ordered that the Mother pay the Father's costs on an indemnity basis for all proceedings that had occurred since the order of Justice Buckley on 8 July 2005. This included the costs associated with a range of applications filed by both parties and the Independent Children's Lawyer, with a specific exclusion for certain annexures to an affidavit filed by the Father.

Orders

Orders of the court

The Mother’s Application in Form 1 filed 1 March 2006 is dismissed.

The Mother’s Application in Form 2 filed by leave on 13 April is dismissed.

The Mother is to pay the Father’s costs on an indemnity basis of and incidental to all proceedings since the order of Justice Buckley dated 8 July 2005 including:

a. Application for Final Orders filed by the mother on 1 March 2006;

b. Application in a Case filed by the mother on 1 March 2006;

c. Application in a Case filed by the father on 2 February 2006;

d. Application for Contravention filed by the father on 17 March 2006;

e. Application in a Case filed by the father (by leave) on 21 November 2006;

f. Application in a Case filed by the Independent Children’s Lawyer on 29 November 2006; and

g. Application in a Case filed by the father on 22 December 2006.

Save that the solicitors for the Father are not to charge for annexures 1 to 4 inclusive to the affidavit of the Father filed 30 March 2006.

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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