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Millwood & Millwood (No. 2)

Millwood & Millwood (No. 2)

Case [2020] FamCAFC 266 6 November 2020

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FAMILY COURT OF AUSTRALIA

MILLWOOD & MILLWOOD (NO. 2)

[2020] FamCAFC 266

FAMILY LAW – APPEAL – PARENTING – Where the appellant father appeals from final parenting orders – Unacceptable risk of harm – Adequacy of reasons – Whether the primary judge failed to take into account material considerations – Whether the primary judge “elevated” opinions of the single expert – Decision of the primary judge not unreasonable or plainly unjust – No error in exercise of discretion – No error of fact or law established – Appeal dismissed – Costs ordered against the father.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Written and oral applications by the father to adjourn the appeal hearing – Application by the respondent mother to dismiss the appeal – Where the father did not file his Summary of Argument as directed by the Appeal Registry – History of father’s conduct in prosecuting the appeal shows little prospect of him complying with directions – Procedural fairness – Father afforded the opportunity to make oral submissions on the appeal – Applications dismissed.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 22.45

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
B and B (1993) FLC 92-357; [1993] FamCA 143
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
M v M (1988) 166 CLR 69; [1988] HCA 68
Millwood & Millwood [2020] FamCAFC 246
N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

APPELLANT:

Mr Millwood

RESPONDENT:

Ms Millwood

INDEPENDENT CHILDREN’S LAWYER:

Blumberg Family Lawyers

FILE NUMBER:

MLC

9337

2014

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

6 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace, Ryan & Tree JJ

HEARING DATE:

6 October 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 August 2019

LOWER COURT MNC:

[2019] FamCA 594

REPRESENTATION

THE APPELLANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Weightman

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

Order made on 6 October 2020

The Application in an Appeal filed on 2 October 2020 to adjourn the appeal hearing is refused.

It is further ordered

The Response to an Application in an Appeal filed on 29 September 2020 to dismiss the appeal hearing is dismissed.
The oral application to adjourn the appeal hearing is refused.
The appeal against orders…

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 (No. 2)

Details

AGLC: Millwood & Millwood (No. 2) [2020] FamCAFC 266
Case: [2020] FamCAFC 266
Decision Date: 6 November 2020

CaseChat Overview and Summary

In this appeal, the father, the appellant, contested the final parenting orders made by the Family Court, which were in favour of the mother, the respondent. The primary concern was the unacceptable risk of harm to the child if placed in the care of the father. The Full Court of the Family Court of Australia heard the appeal. The central legal issues revolved around whether the primary judge had failed to consider certain relevant factors, whether the primary judge had overvalued the opinions of a single expert, and if the decision was unreasonable or unjust. Additionally, the court examined procedural matters, including applications to adjourn the appeal hearing and to dismiss the appeal due to the father's non-compliance with court directions.

The Full Court held that the decision of the primary judge was not unreasonable or plainly unjust. The court found no error in the exercise of discretion by the primary judge and confirmed that no factual or legal errors had been established. The Full Court dismissed the father's appeal, noting that the father's history of non-compliance with court directions did not support a finding of procedural unfairness, as he had been given ample opportunity to present his case. The Full Court also dismissed the mother's application to dismiss the appeal and ordered costs against the father.

The court's reasoning was grounded in the principle that the primary judge's assessment of the risk of harm and the weight given to expert evidence was within the proper exercise of judicial discretion. The Full Court concluded that the primary judge's decision was adequately reasoned and took into account all relevant material considerations. Consequently, the appeal was dismissed, and the original orders of the Family Court were upheld. The court further ordered the father to pay costs associated with the appeal.

Orders