Millwood & Millwood
[2017] FamCAFC 35
•7 March 2017
FAMILY COURT OF AUSTRALIA
| MILLWOOD & MILLWOOD | [2017] FamCAFC 35 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time in which to file a Notice of Cross-Appeal – Where the Application in an Appeal was allowed by consent. FAMILY LAW – APPEAL – CHILDREN – Where the appeal was allowed by consent – Where the proceedings are to be remitted – Where the primary judge made an error of law – Costs certificated issued for the appeal and rehearing under the Federal Proceedings (Costs) Act 1981 (Cth). |
| Family Law Act 1975 (Cth) s 94AAA(3) Federal Proceedings (Costs) Act 1981 (Cth) |
| APPLICANT: | Ms Millwood |
| RESPONDENT: | Mr Millwood |
| INDEPENDENT CHILDREN’S LAWYER: | Rowley & Associates |
| FILE NUMBER: | MLC | 9337 | of | 2014 |
| APPEAL NUMBER: | EA | 123 | of | 2016 |
| DATE DELIVERED: | 7 March 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane (parties appeared by videolink from Sydney) |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 7 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 1660 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dura |
| SOLICITOR FOR THE APPLICANT: | Milevski Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Smythe Wozniak Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Rowley & Associates |
Orders – Application in an Appeal filed 21 February 2017
By consent, the parties agree:
That leave be granted to the respondent to file a Notice of Cross-Appeal out of time.
That the respondent/cross-appellant file and serve her Summary of Argument and List of Authorities in respect of the Appeal and Cross-Appeal by 7 April 2017.
That the appellant/cross-respondent file and serve his Response to the respondent/cross-appellant Summary of Argument by 5 May 2017.
The Independent Children’s Lawyer file and serve their Summary of Argument and List of Authorities by 26 May 2017.
Orders – Appeal EA 123 of 2016
On the application of both parties:
That the Appeal filed by the appellant father on 5 August 2016 be allowed.
That the Cross-Appeal filed by the cross-appellant mother on 7 March 2017 be allowed.
That the Orders 1 to 12 (inclusive) of the Orders of the Federal Circuit Court made on 8 July 2016 be set aside.
That the proceedings be remitted for re-hearing to the Federal Circuit Court of Australia at Sydney.
That there be no order as to costs.
The Court grants to the appellant/cross-respondent husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent/cross-appellant wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
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 BRISBANE |
Appeal Number: EA 123 of 2016
File Number: MLC 9337 of 2014
| Ms Millwood |
Applicant
And
| Mr Millwood |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is the hearing of an Application in an Appeal filed 21 February 2017, in which the applicant, Ms Millwood, seeks an extension of time in which to file a Notice of Cross-Appeal. The parties and the Independent Children’s Lawyer have resolved that application, and proffer to the Court some orders by consent which I will make shortly.
The parties have agreed on the outcome of the appeal and asked the Court to find that both the appeal and the cross-appeal should be allowed and the orders of the primary judge set aside and the matter remitted for hearing.
The Chief Justice just today has given a direction under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that the appeal be heard by a single judge.
The error that has been identified by the parties lies in Order 5 made by the primary judge. That order provides:
(5)If the father obtains from a registered assessor an assessment that his risk of recidivism for sexual assault of a child is low, then [the child] shall spend time with her father:
(a)During school term time each alternate weekend from after school Friday until before school Monday commencing the first weekend of each school term.
(b)For the first half of the Term 1, 2 and 3 school holidays from 9am on the first Saturday to 5pm on the middle Sunday.
(c)For half of the Term 4 school holidays being the first half in years ending in an odd number and the second half of years ending in an even number or zero.
(d)At such other times as the parties agree.
As is apparent from that order, the case before his Honour required consideration of allegations of sexual abuse by the father in the past, and Order 5 is obviously an order designed for the protection of the child.
However, at least two issues flow from that Order. Firstly, it is entirely unclear as to what the words “registered assessor” mean and who would fit within that description. Secondly, and more importantly, the order in effect gives the registered assessor the power to make a parenting order for the child, by finding that the risk of recidivism is low. That is not, in my opinion, an appropriate exercise of judicial power, in that it hands the jurisdiction of the Court to the assessor. Further, if the Court is considering making a parenting order, such as the time a child is to spend with a parent, it needs to have regard to all of the then relevant provisions of Part VII of the Act and not just whether or not there is at any particular time a low risk of recidivism.
I am accordingly satisfied that there is an error in his Honour’s orders and that the appeal and the cross-appeal should be allowed.
Accordingly, by consent, I make the orders proffered by the parties in relation to the Application in an Appeal filed 21 February 2017 and will make appropriate orders allowing the appeal and the cross-appeal. The parties also asked that there be no order as to costs but that, in the light of the clear error, certificates issue under the Federal Proceedings (Costs) Act 1981 (Cth). That is an appropriate course.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 7 March 2017.
Associate:
Date: 10 March 2017
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