MILLWOOD & MILLWOOD - [2019] FamCA 594

FAMILY COURT OF AUSTRALIA

MILLWOOD & MILLWOOD

[2019] FamCA 594

FAMILY LAW – CHILDREN – Parental responsibility – Where the mother and father each seek sole parental responsibility for the child and for the child to live with them – Where in the alternative the father seeks a shared care arrangement – Where the mother seeks that the child spend no time with the father – Where the Independent Children’s Lawyer (“ICL”) supports the orders sought by the mother – Where the father has been subject to criminal proceedings regarding alleged sexual abuse against a minor – Where the mother believes that the father has sexually abused the child – Where there are various family violence allegations made against the father by the mother –Where the mother has always been the child’s primary caregiver – Orders made in similar terms to those proposed by the mother and ICL.

FAMILY LAW – COSTS – Where the ICL seeks an order for costs against each of the parties – Where the proceedings were particularly complex – Where significant court time was expended on the proceedings – Where the complex nature of the proceedings was a result of the parties’ behaviour – Where the Court found it was just to make an order for costs – Application granted – Orders made for each party to pay the costs of the ICL in an equal share.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65DAA, 117

Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Millwood

RESPONDENT:

Ms Millwood

INDEPENDENT CHILDREN’S LAWYER:

Blumberg Family Lawyers

FILE NUMBER:

MLC

9337

2014

DATE DELIVERED:

23 August 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATES:

11-14 December 2018 and
18-19 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gardiner as a direct brief

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Barry Nilsson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Blumberg Family Lawyers

Orders

The following parenting orders are made in relation to the child Y born … 2011.
All previous parenting orders be discharged.

Parental Responsibility

The mother shall have sole parental responsibility for the child.

Live with

The child shall live with the mother.

Spend time

The child shall spend no time with the father.

School

The mother shall sign all documents and do all things necessary to authorise the school at which the child may from time to time attend;
(a) to furnish the father with copies of all school reports, notices and advices concerning the child and any activity involving the child; and
(b)to make available copies of any school photographs of the child to the father at his expense.

Health

The mother shall:
(a)notify the…

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 & MILLWOOD

Details

AGLC: MILLWOOD & MILLWOOD [2019] FamCA 594
Case: [2019] FamCA 594
Decision Date: 23 August 2019

CaseChat Overview and Summary

In the matter of *Millwood & Millwood*, Johnston J of the Family Court of Australia considered competing applications for parental responsibility and living arrangements for the child, Y. The mother sought sole parental responsibility and for Y to live with her, with no time spent with the father. The father, in the alternative, sought a shared care arrangement. The Independent Children’s Lawyer (ICL) supported the orders sought by the mother. The proceedings were significantly complicated by allegations of sexual abuse against a minor made against the father, and family violence allegations made by the mother against the father. The mother had historically been the primary caregiver for Y.

The court was required to determine the best interests of the child, Y, in circumstances marked by serious allegations of abuse and family violence. Specifically, the court had to decide whether Y should live with the mother or father, who should have parental responsibility, and whether Y should spend any time with the father. The court also considered the complex issue of costs, given the protracted and behaviour-driven nature of the proceedings.

Johnston J made orders reflecting the mother's application and the ICL's recommendations. The mother was granted sole parental responsibility for Y, and Y was ordered to live with the mother. Crucially, Y was ordered to spend no time with the father. The court also made detailed provisions regarding the sharing of information about Y's schooling and health, and mandated professional assistance for both Y and the mother. Restraints were imposed on both parties regarding denigration of each other and discussion of proceedings with Y. In relation to costs, the court found it just to order each party to pay an equal share of the ICL's costs, totalling $7,422 for each party.

Orders

Orders of the court

The following parenting orders are made in relation to the child Y born … 2011.

All previous parenting orders be discharged.

Parental Responsibility

The mother shall have sole parental responsibility for the child.

Live with

The child shall live with the mother.

Spend time

The child shall spend no time with the father.

School

The mother shall sign all documents and do all things necessary to authorise the school at which the child may from time to time attend;

(a) to furnish the father with copies of all school reports, notices and advices concerning the child and any activity involving the child; and

(b) to make available copies of any school photographs of the child to the father at his expense.

Health

The mother shall:

(a) notify the father immediately of any major illness suffered by the child and any hospitalisation of the child

(b) make available to the father copies of any medical report or reports that may be sent to the mother in connection with such illness or hospitalisation; and

(c) authorise any hospital in which the child may be admitted and any medical practitioner under whose care the child may be to give such information to the father as he may request.

Professional assistance

The mother shall within 14 days make the necessary arrangements to obtain treatment for the child from a clinical psychologist, excluding Ms C, in order to assist the child to deal with any mental health issues, whereupon such treatment should commence as soon as possible thereafter and continue as recommended by the psychologist.

Pursuant to section 121 of the Family Law Act 1975 (Cth) (“the Act”) the Mother shall provide a copy of Dr D’s expert report and the Reasons for Judgment to the psychologist.

10.

The mother shall within 14 days the make necessary arrangements to obtain an assessment from a psychiatrist in order to assist her to deal with her excessive obsessional anxiety and possible paranoid beliefs as identified by the Court-appointed expert, Dr D, whereupon such treatment should commence as soon as possible thereafter and continue as recommended by the psychiatrist.

11.

Pursuant to section 121 of the Act the mother shall provide a copy of Dr D’s expert report and the Reasons for Judgment to the psychiatrist.

Restraints

12.

The parties are restrained from denigrating the other party or members of their respective families in the presence or the hearing of the child and will remove the child forthwith from the presence of any third party who denigrates the other parent.

13.

The mother be restrained by injunction from discussing any aspect of the proceedings, including any judgment or orders, with the child.

Courtesy

14.

In the event that either party has a change of contact details, they shall forthwith provide the other party with details of such changes.

Explanation

15.

The mother arrange without undue delay for the child to meet with the Independent Children’s Lawyer (“ICL”) and the child’s psychologist to explain these orders and their effect to the child.

Costs

16.

Within 60 days each of the parties shall pay to Legal Aid New South Wales the sum of $7,422 being their one-half share of the costs of the ICL as assessed and fixed by the Court.

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

Background

Background to the litigation

Full text does not contain this section.

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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