Millwood and Millwood - [2019] FamCAFC 248

FAMILY COURT OF AUSTRALIA

MILLWOOD & MILLWOOD

[2019] FamCAFC 248

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the father failed to file a draft index to the appeal book in accordance with r 22.13 of the Family Law Rules 2004 (Cth) and the directions of the Appeal Registrar – Where it is in the interests of justice that the appeal be reinstated – Where the mother and the ICL were not responsible for the failure of the father to file a draft index to the appeal book – Father to pay the costs of the mother and the ICL in fixed sums.

Family Law Rules 2004 (Cth) rr 22.13, 22.44

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

APPLICANT:

Mr Millwood

RESPONDENT:

Ms Millwood

INDEPENDENT CHILDREN’S LAWYER:

Blumberg Family Lawyers

FILE NUMBER:

MLC

9337

2014

APPEAL NUMBER:

2019

DATE DELIVERED:

16 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

21 November 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 August 2019

LOWER COURT MNC:

[2019] FamCA 594

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Coninos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Blumberg Family Lawyers

Orders

Appeal EA 92 of 2019 be reinstated.
The applicant file and serve a draft index to the appeal book within fourteen (14) days of the date of these orders.
The applicant pay the costs of the respondent fixed in the sum of $2,000 and the Independent Children’s Lawyer fixed in the sum of $500.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Millwood & Millwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 92 of 2019
File Number: MLC 9337 of 2014

Mr Millwood

Applicant

and

Ms Millwood

Respondent

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 31 October 2019, Mr Millwood (“the father”) seeks the reinstatement of his appeal against parenting orders made by a judge of the Family Court of Australia on 23 August 2019. The father’s application for reinstatement of the appeal is opposed by Ms Millwood (“the mother”) and the Independent Children’s Lawyer (“ICL”).
The father filed a Notice of…

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 Millwood and Millwood

Details

AGLC: Millwood and Millwood [2019] FamCAFC 248
Case: [2019] FamCAFC 248
Decision Date: 16 December 2019

CaseChat Overview and Summary

In the Family Court of Australia, the case of Millwood and Millwood involved a dispute concerning the reinstatement of an appeal that had been dismissed by a single judge. The applicants sought to appeal against the decision, which pertained to the care and protection of a child. The court had to determine whether the appeal should be reinstated and, if so, under what conditions. The appeal had been dismissed due to procedural irregularities, but the applicants argued that the errors were minor and did not warrant dismissal of the appeal itself.

The legal issues before the court included the threshold for reinstating an appeal that has been dismissed, the standard of review for the dismissal decision, and whether the procedural errors were significant enough to justify the dismissal of the appeal. The court had to balance the importance of procedural compliance with the need to ensure that justice was served in matters concerning the welfare of a child. It also had to consider whether the dismissal of the appeal itself was appropriate or if it was sufficient to correct the procedural errors.

The court concluded that the procedural errors made were not of a magnitude that would justify the outright dismissal of the appeal. Instead, it found that the appeal could be reinstated provided certain conditions were met. The applicants were required to file and serve a draft index to the appeal book within a specified timeframe and to pay costs to the respondent and the Independent Children’s Lawyer. The court’s decision underscored the importance of procedural regularity in Family Court matters but also emphasised the need to ensure that the interests of the child remain paramount. The orders made reflect a pragmatic approach, allowing the appeal to proceed while ensuring that the parties are aware of the consequences of procedural missteps.

Orders

Orders of the court

Appeal EA 92 of 2019 be reinstated.

The applicant file and serve a draft index to the appeal book within fourteen (14) days of the date of these orders.

The applicant pay the costs of the respondent fixed in the sum of $2,000 and the Independent Children’s Lawyer fixed in the sum of $500.

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

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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