Miyajima & Mikkelsen - [2024] FedCFamC1A 208

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Miyajima & Mikkelsen [2024] FedCFamC1A 208

Appeal from: Miyajima & Mikkelsen [2024] FedCFamC2F 720

Appeal number: NAA 167 of 2024

File number: NCC 749 of 2016

Judgment of: ALDRIDGE J

Date of judgment: 7 November 2024

Catchwords: FAMILY LAW – APPEAL – PARENTING – Allegations of family violence perpetrated by the father – Primary judge accepted the father posed a risk of harm to the children – Primary judge made orders for the father’s time with the children to be conditional on his engagement in psychological therapy and completion of courses – Application of Lainhart & Ellinson (2023) FLC 94-166 – Order uncertain – Order constitutes an improper divestiture of judicial power – Appeal allowed – Costs certificates issued.

Legislation: Federal Proceedings (Costs) Act 1981 (Cth)

Cases cited: Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200

Number of paragraphs: 25

Date of hearing: 16 October 2024

Place: Sydney

Counsel for the Appellant: Mr Othen SC

Solicitor for the Appellant: ALJ Legal

Counsel for the Respondent: Mr Tregilgas

Solicitor for the Respondent: Peter Evans & Associates, Solicitors

Counsel for the Independent Children’s Lawyer: Mr Guyder

Solicitor for the Independent Children’s Lawyer: Wooi Legal
ORDERS

NAA 167 of 2024
NCC 749 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS MIYAJIMA

Appellant

AND:
MR MIKKELSEN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

7 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The Application in an Appeal filed by the respondent on 15 October 2024 seeking leave to rely on their late filed Schedule of Costs is allowed.
2.The appeal is allowed.
3.Orders 13 to 20 of the orders made 6 June 2024 are set aside.
4.The question of what time, if any, the children are to spend with the respondent and the circumstances under which any such time is to take place is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.

5.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (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 the appeal.
6.The respondent and Independent Children’s Lawyer are granted costs certificates pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (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 them in respect of the costs incurred in the appeal.
7.The appellant, the respondent and the Independent Children’s Lawyer are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to…

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 Miyajima & Mikkelsen

Details

AGLC: Miyajima & Mikkelsen [2024] FedCFamC1A 208
Case: [2024] FedCFamC1A 208
Decision Date: 7 November 2024

CaseChat Overview and Summary

This appeal involved a dispute between Ms Miyajima and Mr Mikkelsen regarding parenting arrangements for their children. The Federal Circuit and Family Court of Australia's appellate division was tasked with reviewing the primary judge's decision that had imposed conditions on Mr Mikkelsen's time with the children, including mandatory psychological therapy and course completion. The primary judge had found that Mr Mikkelsen posed a risk of harm to the children due to allegations of family violence.

The central legal issue was whether the orders made by the primary judge constituted an improper divestiture of judicial power, as well as whether the orders were uncertain. The appeal hinged on the interpretation and application of the case of Lainhart & Ellinson (2023) FLC 94-166. The court found that the primary judge had indeed made orders that amounted to an improper divestiture of judicial power and were uncertain. The orders requiring Mr Mikkelsen to engage in psychological therapy and complete courses before spending time with the children were deemed to be delegating judicial functions to the therapists and course providers, which was not permissible under the law.

The court allowed the appeal and set aside the orders in question. It remitted the matter for rehearing before a different judge, emphasising that the primary judge should not impose conditions that require the children to participate in therapeutic processes. Additionally, the court granted costs certificates to all parties, recognising the complexity and significance of the appeal.

The final orders included setting aside certain parenting orders, remitting the matter for rehearing, and issuing costs certificates to the appellant, respondent, and the Independent Children’s Lawyer for the costs incurred in the appeal and the rehearing.

Orders

Orders of the court

NAA 167 of 2024

NCC 749 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS MIYAJIMA

Appellant

AND:

MR MIKKELSEN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

7 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed by the respondent on 15 October 2024 seeking leave to rely on their late filed Schedule of Costs is allowed.

2. The appeal is allowed.

3. Orders 13 to 20 of the orders made 6 June 2024 are set aside.

4. The question of what time, if any, the children are to spend with the respondent and the circumstances under which any such time is to take place is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.

5. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (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 the appeal.

6. The respondent and Independent Children’s Lawyer are granted costs certificates pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (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 them in respect of the costs incurred in the appeal.

7. The appellant, the respondent and the Independent Children’s Lawyer are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the rehearing.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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NAA 167 of 2024 NCC 749 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS MIYAJIMA Appellant
AND:	MR MIKKELSEN Respondent
INDEPENDENT CHILDREN’S LAWYER

Appeal from:	Miyajima & Mikkelsen [2024] FedCFamC2F 720
Appeal number:	NAA 167 of 2024
File number:	NCC 749 of 2016
Judgment of:	ALDRIDGE J
Date of judgment:	7 November 2024
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Allegations of family violence perpetrated by the father – Primary judge accepted the father posed a risk of harm to the children – Primary judge made orders for the father’s time with the children to be conditional on his engagement in psychological therapy and completion of courses – Application of Lainhart & Ellinson (2023) FLC 94-166 – Order uncertain – Order constitutes an improper divestiture of judicial power – Appeal allowed – Costs certificates issued.
Legislation:	Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:	Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200
Number of paragraphs:	25
Date of hearing:	16 October 2024
Place:	Sydney
Counsel for the Appellant:	Mr Othen SC
Solicitor for the Appellant:	ALJ Legal
Counsel for the Respondent:	Mr Tregilgas
Solicitor for the Respondent:	Peter Evans & Associates, Solicitors
Counsel for the Independent Children’s Lawyer:	Mr Guyder
Solicitor for the Independent Children’s Lawyer:	Wooi Legal

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	7 NOVEMBER 2024