FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLMAN & MILLMAN | [2020] FCCA 1811 |
| Catchwords: FAMILY LAW – Interim hearing – application in respect of children’s arrangements – spousal maintenance – litigation funding – high conflict – nature of interim hearing – nature of interim hearing and urgent spousal maintenance order – lack of disclosure – what is appropriate forum for case – family violence – coercive and controlling behaviour – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 72, 74, 75, 77, 80, 117 Federal Circuit Court Rules 2001 (Cth), rr.24.02, 24.03 |
| Cases cited: Ashton & Ashton (1982) FLC 91-285 Bevan & Bevan (1995) FLC 92-600 Black & Kellner (1992) FLC 92-287 Briese & Briese (1986) FLC 91-713 Chapman & Chapman (1979) FLC 90-671 Eaby & Speelman (2015) FLC 93-654 Goode & Goode (2006) FLC 93-286 Hall & Hall [2016] HCA 23 Hogan & Hogan (1986) FLC 91-704 Luciano & Luciano [2000] FamCA 401 Mazorski v Albright (2007) 37 FamLR 518 MRR v GR (2010) 240 CLR 461 Zahawi & Rayne [2016] FamCAFC 90 Zschokke & Zschokke (1996) FLC 92-693 |
| Applicant: | MS MILLMAN |
| Respondent: | MR MILLMAN |
| File Number: | ADC 30 of 2020 |
| Judgment of: | Judge Brown |
| Hearing date: | 26 June 2020 |
| Date of Last Submission: | 26 June 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 3 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lewis |
| Solicitors for the Applicant: | Jaqui Ion Lawyers Pty Ltd |
| Counsel for the Respondent: | Ms Nelson QC |
| Solicitors for the Respondent: | Angela Ferdinandy |
ORDERS
That the matter be transferred to the Family Court of Australia to be listed on a date and time to be advised to the parties subject to order two hereof.
Pursuant to Section 26 of the Federal Circuit Court of Australia Act1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Family Court on 12 August 2020 at 9.15am to discuss issues of interim spousal maintenance and litigation funding and any other matters incidental to these proceedings.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $350 in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
That the Respondent file and serve a statement of financial circumstances and any further affidavit in respect of interim spousal maintenance and litigation funding within fourteen (14) days of the date of these orders.
That the Applicant file any affidavit in reply within twenty-one (21) days of the date of these orders.
No later than 4 August 2020 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules, which includes the following documents:
(a)copies of each party’s 3 most recent taxation returns;
(b)copies of each party’s 3 most recent taxation assessments;
(c)if the party is a member of a superannuation plan:
(i)if not already filed or exchanged--the completed superannuation information form for any superannuation interest of…
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- AGLC
- MILLMAN & MILLMAN [2020] FCCA 1811
- Case
- [2020] FCCA 1811
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate forum for the case, given the complex and high-conflict nature of the proceedings, and to make orders regarding interim spousal maintenance, litigation funding, and the children's living arrangements and time spent with each parent. The court also needed to address issues of disclosure and the potential for international travel of the children.
Judge Brown reasoned that the case involved issues of such complexity and sensitivity, particularly concerning family violence and the children's best interests, that it was more appropriate for the Family Court of Australia to hear the matter. The court ordered the transfer of the proceedings to the Family Court and directed the parties to attend a conciliation conference with a Registrar to discuss interim spousal maintenance and litigation funding. Further orders were made regarding the filing of financial statements and affidavits, the exchange of informal discovery, and the payment of conference fees.
The court also made specific orders concerning the children's living arrangements, continuing the current arrangements with variations for school holidays and alternate weekend arrangements. Crucially, injunctions were granted restraining the removal of the children from the Commonwealth of Australia and prohibiting parental abuse or discussion of proceedings with the children. Directions were also given for communication between the parties, the commissioning of a family assessment report, and the allocation of urgent hearings for outstanding financial issues.
Orders
Orders of the court
1.
That the matter be transferred to the Family Court of Australia to be listed on a date and time to be advised to the parties subject to order two hereof.
2.
Pursuant to Section 26 of the Federal Circuit Court of Australia Act 1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Family Court on 12 August 2020 at 9.15am to discuss issues of interim spousal maintenance and litigation funding and any other matters incidental to these proceedings.
3.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $350 in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
4.
That the Respondent file and serve a statement of financial circumstances and any further affidavit in respect of interim spousal maintenance and litigation funding within fourteen (14) days of the date of these orders.
5.
That the Applicant file any affidavit in reply within twenty-one (21) days of the date of these orders.
6.
No later than 4 August 2020 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules, which includes the following documents:
(a) copies of each party’s 3 most recent taxation returns;
(b) copies of each party’s 3 most recent taxation assessments;
(c) if the party is a member of a superannuation plan:
(i) if not already filed or exchanged--the completed superannuation information form for any superannuation interest of the party; and
(ii) for a self-managed superannuation fund--the trust deed and copies of the 3 most recent financial statements for the fund;
(d) if the party has an Australian Business Number, copies of the last 4 business activity statements lodged;
(e) if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.
7.
That the parties exchange documents outlining the legal costs they have each already expended and estimates of the costs likely to be incurred by each of them in the current matter on or before 4 August 2020.
8.
Following the conciliation conference in order (2) hereof the Registrar convening the conference is directed to allocate a hearing of any outstanding interim financial issues before the Family Court with such degree of urgency as she deems fit.
Until further or other order
9.
That the Respondent continue to make the necessary recurrent payments, as they fall due, in respect of the vehicle driven by the wife, that being the Motor Vehicle 1, and ensure that all other liabilities, such as registration and insurance in respect of the vehicle, are maintained.
10.
That the parties jointly commission a family assessment report, at their joint expense, to be completed by a suitably qualified expert to be agreed between them, but direct that the report be completed, if at all practicable, by 30 September 2020.
11.
The children X born in 2010 and Y born in 2013 live with the Applicant mother.
12.
That the current time spending arrangements pursuant to the orders of 12 February 2020 continue, save and except for the following variations:
(a) The children spend time with the Respondent father during school holidays as follows:
(i) During the current school holidays from 9.00am on 15 July 2020 until 6.00pm on 19 July 2020;
(ii) During the September/October school holidays, unless the parties agree otherwise, from 9.00am on 30 September 2020 until 6.00pm on 4 October 2020.
(b) The alternate weekend school term regime will recommence on 1 August 2020 together with the provisions for the Tuesday and Thursday after school catch ups and the Thursday morning school drop offs as provided for in the orders of 12 February 2020, which will continue during school terms.
13.
Handovers that do not occur at school occur at the Applicant’s home, situated at B Street, Suburb C.
14.
MS MILLMAN born in 1983 and MR MILLMAN born in 1974, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children X born in 2010 and Y born in 2013 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 for the said period, or until the Court orders its removal.
15.
The parties be restrained and an injunction is hereby granted restraining them from:
(a) Abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so; and
(b) Discussing these proceedings with the children or allowing any other person to do so.
16.
The parties use a communication book or parenting app to inform one another of all issues relevant to the children including but not limited to issues such as the children’s physical needs, medical appointments and information, dietary needs and extracurricular activities, school events and achievements.
17.
The parties shall keep each other advised of their address, landline and mobile telephone numbers and email addresses with each party notifying the other of any intended change within three (3) days of arrangements for the change being made.
18.
Should a medical emergency arise in relation to the said children whilst the said children are in the care of either of the parties then the party concerned shall notify the other party as soon as practicable of the time and nature of such medical emergency, the name and address of any treating medical practitioner and hospital attended by the children and the location of the children.
19.
Each party has the right to attend at the child’s school for all events that are routinely attended by parents and to receive all notifications, reports, school photographs and similar documents disseminated by each such school.
20.
Each party is to have telephone or electronic communication with the children when they are not in that party’s care each day at times to be agreed between the parties but, failing agreement, at 6.00pm each evening.
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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