MILLWOOD & MILLWOOD - [2020] FamCAFC 246

FAMILY COURT OF AUSTRALIA

MILLWOOD & MILLWOOD

[2020] FamCAFC 246

FAMILY LAW – APPEAL – APPLICATION FOR ADJOURNMENT – Where the father made an application to adjourn the hearing of his appeal against final parenting orders – Appeal previously deemed abandoned and re-instated – Where the father has repeatedly failed to comply with directions and rules of Court in relation to the conduct of the appeal – No satisfactory explanation is provided for his failure to satisfy procedural orders – Effect of ongoing litigation on the child – On balance it is not in the interests of justice to delay the hearing – Applications for costs by the respondent and Independent Children’s Lawyer granted.

APPLICANT:

Mr Millwood

RESPONDENT:

Ms Millwood

INDEPENDENT CHILDREN’S LAWYER:

Blumberg Family Lawyers

FILE NUMBER:

MLC

9337

2014

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

29 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

29 September 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 August 2019

LOWER COURT MNC:

[2019] FamCA 594

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Coulton

SOLICITOR FOR THE APPLICANT:

Rockdene Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Barry Nilsson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stapleton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Blumberg Family Lawyers

Orders

That the Application in an Appeal filed 25 September 2020 by the applicant father for an adjournment of the appeal be dismissed.
Other than in relation to the costs of the application for an adjournment, the Response filed by the respondent mother on 29 September 2020 be adjourned to the appeal and listed for hearing at the same time.
That the applicant father pay the respondent mother’s costs of his application for an adjournment in the amount of $5,000 which sum is to be paid within twenty- eight (28) days of the date of these orders.
That the applicant father pay the Independent Children’s Lawyer’s costs of his application for an adjournment in the amount of $1,000 which sum is to be paid within twenty-eight (28) days of the date of these orders.
That the time for the applicant father to file his Summary of Argument and List of Authorities be extended to 4.00 pm on 30 September 2020.
That the time for the respondent mother and the Independent Children’s Lawyer to file their Summaries of Argument and Lists of Authorities be extended to 9.00 am on 6 October 2020, upon condition that unfiled copies of those documents are served on the applicant father no later than 3.00 pm on 5 October 2020 at an email address provided by him or on his behalf.

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:…

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.

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Details

AGLC: MILLWOOD & MILLWOOD [2020] FamCAFC 246
Case: [2020] FamCAFC 246
Decision Date: 29 September 2020

CaseChat Overview and Summary

The case involves an appeal by the father, identified as the applicant, against a decision in a family law matter, with the mother as the respondent. The father sought an adjournment of the appeal, which was filed on 25 September 2020. The mother's response to the application for an adjournment was filed on 29 September 2020. The legal issues before the court were the merits of the father's application for an adjournment and the costs associated with that application. The court was also required to determine the scheduling of the appeal, the costs of the application, and the timelines for the filing of legal documents.

The court dismissed the father's application for an adjournment, finding that there were no sufficient grounds to warrant a delay in the appeal. The court acknowledged that the mother's response was timely and that the adjournment was not necessary. In relation to costs, the court awarded the mother and the Independent Children's Lawyer costs of $5,000 and $1,000, respectively, for the application for an adjournment. These costs were to be paid by the father within 28 days of the date of the orders. The court also extended the time for the father to file his Summary of Argument and List of Authorities to 4.00 pm on 30 September 2020, and for the mother and the Independent Children's Lawyer to file their Summaries of Argument and Lists of Authorities to 9.00 am on 6 October 2020, with unfiled copies to be served on the father by 3.00 pm on 5 October 2020.

In summary, the court dismissed the father's application for an adjournment and ordered him to pay the mother's and the Independent Children's Lawyer's costs associated with the application. The court also adjusted the timelines for the filing of legal documents in relation to the appeal. The mother's response was to be heard at the same time as the appeal, and unfiled copies of legal documents were to be served on the father by a specified date. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

That the Application in an Appeal filed 25 September 2020 by the applicant father for an adjournment of the appeal be dismissed.

Other than in relation to the costs of the application for an adjournment, the Response filed by the respondent mother on 29 September 2020 be adjourned to the appeal and listed for hearing at the same time.

That the applicant father pay the respondent mother’s costs of his application for an adjournment in the amount of $5,000 which sum is to be paid within twenty- eight (28) days of the date of these orders.

That the applicant father pay the Independent Children’s Lawyer’s costs of his application for an adjournment in the amount of $1,000 which sum is to be paid within twenty-eight (28) days of the date of these orders.

That the time for the applicant father to file his Summary of Argument and List of Authorities be extended to 4.00 pm on 30 September 2020.

That the time for the respondent mother and the Independent Children’s Lawyer to file their Summaries of Argument and Lists of Authorities be extended to 9.00 am on 6 October 2020, upon condition that unfiled copies of those documents are served on the applicant father no later than 3.00 pm on 5 October 2020 at an email address provided by him or on his behalf.

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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