Milson & Myron (No 2) - [2019] FamCA 84

FAMILY COURT OF AUSTRALIA

MILSON & MYRON (NO. 2)

[2019] FamCA 84

FAMILY LAW – CHILDREN – Best interests of a child – Where the mother seeks sole parental responsibility, that the children live with her and spend no time with the father – Where the father failed to participate in the final hearing of the proceedings – Where the father perpetrated family violence against the mother – Where the two eldest children have significant mental health concerns – Where the father presents an unacceptable risk of emotional or psychological harm to the children – Where the risk cannot be ameliorated by supervision – Where the benefit of the younger children having a relationship with the father is not outweighed by the risk of emotional and psychological harm to them and their siblings – Where the mother has taken reasonable steps to ensure the children are protected and that they receive ongoing assistance in respect of their mental health – Where the children will live with the mother – Where the father will spend no time and have no communication with the children.

FAMILY LAW – PRACTICE AND PROCEDURE – Referral of papers to Legal Services Commission and Queensland Law Society.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Carpenter & Carpenter [2014] FamCAFC 100
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731
Day v Perisher Blue Pty Ltd (No 2) [2005] NSWCA 125
D’Cruz & Pierce and Ors [2009] FamCA
Epping & Merl [2015] FamCAFC
Johnson & Page (2007) FLC 93-344
Kioa v West (1985) 159 CLR 550
M & M (1988) 166 CLR 69

APPLICANT:

Ms Milson

RESPONDENT:

Mr Myron

INDEPENDENT CHILDREN’S LAWYER:

Ms Geysen

FILE NUMBER:

BRC

3628

2018

DATE DELIVERED:

22 February 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

11 - 14 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

KLM Solicitors

FOR THE RESPONDENT:

No Appearance

SOLICITOR FOR THE RESPONDENT:

(Withdrew on first day of trial)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

TLG Law

It is ordered that:

All previous parenting orders be discharged.
The children, B born … 2003, Z born … 2005, X born … 2009 and Y born … 2011 (“the children”) live with the mother.
The mother have sole parental responsibility for the children.
The father not spend time with the children.
Save as provided in this Order, the father be restrained and an injunction hereby issues restraining the father from:
(a) communicating or attempting to communicate with the mother or any of the children by any means including verbally or via email, text message or any form of social media;
(b) causing or requesting any person to communicate or attempt to communicate with the mother or any of the children by any means including verbally or via email, text message or any form…

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 Milson & Myron (No 2)

Details

AGLC: Milson & Myron (No 2) [2019] FamCA 84
Case: [2019] FamCA 84
Decision Date: 22 February 2019

CaseChat Overview and Summary

In *Milson & Myron (No 2)*, the Federal Circuit and Family Court of Australia considered an application by the mother for sole parental responsibility for the parties' children, that the children live with her, and that they spend no time with the father. The father had failed to participate in the final hearing. The proceedings were marked by findings of family violence perpetrated by the father against the mother, and significant mental health concerns in the two eldest children.

The court was required to determine whether it was in the best interests of the children for the mother to have sole parental responsibility and for the children to live with her, with no time or communication with the father. This involved assessing the risk of emotional or psychological harm to the children posed by the father, and whether such risk could be mitigated. The court also had to consider the benefit of the younger children maintaining a relationship with the father against the identified risks to them and their siblings.

Carew J found that the father presented an unacceptable risk of emotional or psychological harm to the children, a risk that could not be ameliorated by supervision. While acknowledging the benefit of the younger children having a relationship with the father, this was outweighed by the risk of harm to all the children. The court noted the mother had taken reasonable steps to protect the children and ensure they received ongoing mental health assistance. Consequently, the court ordered that the children live with the mother and that the father spend no time and have no communication with them. The court also ordered that papers be referred to the Legal Services Commission and the Queensland Law Society.

Orders