Millson & Halbert - [2021] FamCA 352

FAMILY COURT OF AUSTRALIA
Millson & Halbert [2021] FamCA 352

File number(s): SYC 6260 of 2007

Judgment of: HARPER J

Date of judgment: 1 June 2021

Catchwords: FAMILY LAW – Contravention application –
Where allegations of contravention made by the mother – mother alleged breach of order by the father in failing to inform her of his ultimate decision on schooling – Where no case to answer – Where an allegation of contravention that the father failed to complete necessary intake forms with MM Services to enable supervised time to commence – Where case to answer established – Where no case to answer in respect of allegation of failure to make children available on specific dates for supervised time – Where variation of final orders may be necessary – Where application stood over to receive evidence and argument concerning reasonable excuse.

Legislation:
Family Law Act 1975 (Cth) ss 65N, 70NAC, 70NAD, 70NAF, 70NBA, 70NDB

Evidence Act 1995 (Cth) s 140(2)

Family Law Rules 2004 (Cth), r 21.06

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363

Marsden & Winch (No.3) [2007] FamCA 1364

Millson & Halbert (No. 2) [2019] FamCA 869

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Number of paragraphs: 54

Date of hearing: 21 April 2021

Place: Sydney

Solicitor for the Applicant: Voros Lawyers

Counsel for the Respondent: Mr Blackah

Solicitor for the Respondent: G & D Lawyers
ORDERS

SYC 6260 of 2007

BETWEEN:
MS HALBERT

Applicant

AND:
MR MILLSON

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

1 JUNE 2021

THE COURT ORDERS THAT:
1.By no later than close of registry filing on 21 June 2021:
(a)the Respondent Father file and serve any affidavit upon which he proposes to rely on the question of reasonable excuse;
(b)the parties have leave to file and serve any application for variation of the orders made on 27 November 2019, specifying the statutory basis for such variation, and the precise orders sought.

2.The proceedings be stood over to 23 June 2021 for mention.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Millson & Halbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Harper J
INTRODUCTION

These are proceedings between the parents of Y born in 2006, and X born in 2011 ("the children"). The Applicant Mother is Ms Halbert ("the mother") and the Respondent Father is Mr Millson ("the father").
Final orders were made by me on 27 November 2019 ("Final Orders").
On 23…

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 Millson & Halbert

Details

AGLC: Millson & Halbert [2021] FamCA 352
Case: [2021] FamCA 352
Decision Date: 1 June 2021

CaseChat Overview and Summary

In the matter of *Millson & Halbert*, Ms Halbert (the applicant mother) brought a contravention application against Mr Millson (the respondent father) in the Family Court of Australia. The mother alleged that the father had contravened final orders made on 27 November 2019, primarily concerning the children's schooling and supervised time with the mother.

The court was required to determine whether the mother had established a case to answer in relation to several alleged contraventions. Specifically, the court considered whether the father had failed to notify the mother of his ultimate decision regarding the children's schooling, failed to complete necessary intake forms for MM Services to enable supervised time, and failed to make the children available on specific dates for supervised time. The standard of proof for these contraventions was on the balance of probabilities, with the court noting that a stronger degree of satisfaction might be required depending on the seriousness of the allegations.

Justice Harper found that the mother had not established a case to answer regarding the alleged contravention of the schooling notification order. While the father had not explicitly notified the mother of his ultimate decision, the court considered his attempt to involve her in the decision-making process and the mother's broad supportive response to be a reasonable attempt to comply with the order, thus negating an intentional failure to comply. However, the court did establish a case to answer in relation to the father's alleged failure to complete intake forms for MM Services. The court also found no case to answer regarding the alleged failure to make the children available on specific dates for supervised time.

The proceedings were stood over to 23 June 2021 for mention, with directions for the father to file any affidavit concerning reasonable excuse and for both parties to file any application for variation of the final orders by 21 June 2021.

Orders

Orders of the court

SYC 6260 of 2007

BETWEEN:

MS HALBERT

Applicant

AND:

MR MILLSON

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

1 JUNE 2021

THE COURT ORDERS THAT:

1. By no later than close of registry filing on 21 June 2021:

(a) the Respondent Father file and serve any affidavit upon which he proposes to rely on the question of reasonable excuse;

(b) the parties have leave to file and serve any application for variation of the orders made on 27 November 2019, specifying the statutory basis for such variation, and the precise orders sought.

2. The proceedings be stood over to 23 June 2021 for mention.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 65N(2) provides that: (2) a person must not(a) hinder or prevent a person and the child from spending time together in accordance with the order; or (b) interfere with a person and the child benefiting from spending time with each other under the order”.EVIDENCE The mother relied upon her Contravention Application filed 23 October 2020; her affidavit sworn on 14 October 2020, filed 23 October 2020, and her second affidavit sworn 14 October 2020, filed 23 October 2020. She was not cross-examined. The father filed no evidence at this stage of the proceedings (Family Law Rules 2004 (Cth), rule 21.06).ALLEGED CONTRAVENTIONS The first alleged contravention was said to be of Order 3, which is in the following terms:3.Prior to the father making decisions concerning major long term issues relating to the children, including but not limited to their health and education, the father shall notify the mother in writing, such writing to include SMS or email communication, of his proposal and seek her response in writing within 21 days and take into account the mother’s response, provided such response is received within the stated period, and notify the mother of his ultimate decision. The mother's evidence shows that on 24 December 2019 the father emailed the mother advising her that he was "looking to change both girls [sic] schooling in January 2020 and thereafter". He informed the mother that he had contacted the Registrar of NN School in Suburb RR for Y, and if unsuccessful enrolling her there, he would seek to enrol her at QQ School. He advised he emailed PP School with a view to April commencing Year 3 there. The mother responded by email saying: "…if you believe it is in the best interests of Y & April, I fully support your decision." The alleged contravention is that after this exchange, the father failed to notify the mother of "his ultimate decision". The mother gave evidence that she was unaware of the children's schooling at the date she swore her affidavit. The father argued there was no contravention. He says the evidence shows the parties made a joint decision about schooling. I do not accept this argument. The father presented the mother with proposed schools and in respect of Y, choice of different schools. He did not then notify the mother of his ultimate decision. Having said that, the requirement for notification in Order 3 forms the final step in a process requiring the father to involve the mother in his decision making about choosing a school. The broad nature of the mother's response in her email "I fully support your decision" could reasonably be understood as the mother agreeing to whatever the decision the father made. A failure to tell the mother of the ultimate decision is equally consistent with the father taking the view that he had made a reasonable attempt to comply with Order 3. I accept that the father made a reasonable attempt to comply with Order 3. It follows that if the father made a reasonable attempt to comply, he did not intentionally fail to comply. I am not satisfied that either s 70NAC(a)(i) or (ii) have been met in relation to this contravention.

Decision

Reasons for decision

Reasons for judgment were delivered on 27 November 2019: Millson & Halbert (No. 2) [2019] FamCA 869 (“the primary judgment”). The Final Orders were quite detailed. It is unnecessary to set them out in full for the purposes of this judgment. I will refer to individual orders as necessary in the course of these reasons. I note here, however, that I ordered the children to live with the father and made an order allocating sole parental responsibility to him. Detailed orders were made which were designed for the children to spend a block of time away from the mother, than for a reintroduction of supervised time with the mother, possibly leading to unsupervised time. The mother filed an Application – Contravention on 23 October 2020. The details of the alleged contraventions are discussed below. This judgment deals only with the question of whether the mother has established a case to answer in respect of her allegations of contravention against the father.STANDARD OF PROOF The mother relied upon the provisions of Division 13A of Part VII of the Act. Section 70NAF(1) provides that the standard of proof to be applied "in determining matters under this Division" [Division 13A] is proof on the balance of probabilities". This is the civil standard and is readily distinguishable from the criminal standard of proof "beyond reasonable doubt", which applies in some contravention hearings. Section 70NAF(3) provides for the criminal standard of proof, in relation to some specified types of orders, which may be characterised broadly as imposing the more serious types of sanction. These are not relevant to the contraventions alleged in the present matter. The degree of satisfaction required within the civil standard can vary. Where the allegations of fact involve criminal or quasi-criminal conduct the degree of satisfaction may need to be stronger, taking account of the nature of the subject matter, the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding: in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363; [1938] HCA 34; s 140(2) of the Evidence Act 1995 (Cth). Division 13A provides for a range of sanctions ranging from orders for make-up time to fines and imprisonment. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 at 170-171 the High Court further illuminated the position as follows:"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove." Thus, even though proceedings under Division 13A are civil proceedings, a stronger degree of satisfaction may be applicable depending on the nature of the allegation of contravention: Marsden & Winch (No.3) [2007] FamCA 1364 at [136]-[138].CONTRAVENTION OF AN ORDER

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 6260 of 2007
Judgment of:	HARPER J
Date of judgment:	1 June 2021
Catchwords:	FAMILY LAW – Contravention application – Where allegations of contravention made by the mother – mother alleged breach of order by the father in failing to inform her of his ultimate decision on schooling – Where no case to answer – Where an allegation of contravention that the father failed to complete necessary intake forms with MM Services to enable supervised time to commence – Where case to answer established – Where no case to answer in respect of allegation of failure to make children available on specific dates for supervised time – Where variation of final orders may be necessary – Where application stood over to receive evidence and argument concerning reasonable excuse.
Legislation:	Family Law Act 1975 (Cth) ss 65N, 70NAC, 70NAD, 70NAF, 70NBA, 70NDB Evidence Act 1995 (Cth) s 140(2) Family Law Rules 2004 (Cth), r 21.06
Cases cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 Marsden & Winch (No.3) [2007] FamCA 1364 Millson & Halbert (No. 2) [2019] FamCA 869 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Number of paragraphs:	54
Date of hearing:	21 April 2021
Place:	Sydney
Solicitor for the Applicant:	Voros Lawyers
Counsel for the Respondent:	Mr Blackah
Solicitor for the Respondent:	G & D Lawyers

ORDER MADE BY:	HARPER J
DATE OF ORDER:	1 JUNE 2021