MYRON & MILSON

Case [2020] FamCAFC 151

FAMILY COURT OF AUSTRALIA

MYRON & MILSON [2020] FamCAFC 151

FAMILY LAW – APPEAL – PARENTING – Where the father appeals against orders that he have no contact with the children – Family violence – Risk of emotional and psychological harm to the children – Best interests of the child – Procedural fairness – Application to adjourn trial dismissed – Trial conducted without father’s participation – Where father did not apply to reopen the trial – Failure to apply to vary or set aside orders – No error established – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – REOPEN APPEAL – Where the father sought to adduce further evidence on appeal and later sought to reopen the appeal for the purpose of adducing further evidence – Evidence of limited probative value – Reopening to address evidentiary weakness exposed at appeal hearing – Both applications dismissed.

FAMILY LAW – APPEAL – COSTS – Where the father wholly unsuccessful – Father an undischarged bankrupt – Costs order made in favour of the mother.

Australian Constitution s 73

Family Law Act 1975 (Cth) Pt VII, ss 4(1), 60CC, 93A(2), 94, 117(4)

Family Law Rules 2004 (Cth) r 17.02
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Cooke & Morton (2018) FLC 93-820; [2018] FamCAFC 9
Day v Perisher Blue Pty Ltd (No 2) [2005] NSWCA 125
Farmer & Rogers [2010] FamCAFC 253
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Langley & Tarelli and Anor (No. 2) (2020) FLC 93-963; [2020] FamCAFC 126
Moller v Roy (1975) 132 CLR 622; [1975] HCA 31
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Watkins & Watkins (2004) 31 Fam LR 590; [2004] FamCA 381
APPELLANT: Mr Myron
RESPONDENT: Ms Milson
INDEPENDENT CHILDREN’S LAWYER: TLG Law
FILE NUMBER: BRC 3628 of 2018
FIRST APPEAL NUMBER: NOA 18 of 2019
SECOND APPEAL NUMBER: NOA 26 of 2019
DATE DELIVERED: 19 June 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Brisbane
JUDGMENT OF: Ainslie-Wallace, Ryan & Watts JJ
HEARING DATE: 31 October 2019 and further written submissions received
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE:

11 February 2019;

22 February 2019
LOWER COURT MNC: [2019] FamCA 69
[2019] FamCA 84

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Wilson QC
SOLICITOR FOR THE APPELLANT: Waller Family Lawyers
COUNSEL FOR THE RESPONDENT: Ms Downes
SOLICITOR FOR THE RESPONDENT: KLM Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Taylor
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: TLG Law

Orders

  1. The Application in an Appeal to adduce further evidence in the appeal filed on 17 October 2019 be dismissed.

  2. The Application in an Appeal to reopen the…

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AGLC
MYRON & MILSON [2020] FamCAFC 151
Case
[2020] FamCAFC 151
Decision Date

CaseChat Overview and Summary

In the matter of Myron & Milson, the father appealed against orders made by the Family Court of Australia that he have no contact with his children. The appeal was heard in the Family Court of Australia, and the mother cross-appealed against an order regarding costs. The father sought to adduce further evidence during the appeal and later sought to reopen the appeal for the purpose of adducing further evidence. The mother opposed both applications.

The legal issues that the court had to decide included whether the father had established any error in the primary judge's decision to order no contact between him and the children, whether the father's applications to adduce further evidence and to reopen the appeal should be allowed, and whether the father should be ordered to pay the mother's costs of and in relation to the appeals. The court had to consider the evidence and arguments presented by both parties and determine whether the father's applications were appropriate and whether the costs order was justified.

The court found that the father had not established any error in the primary judge's decision, and therefore dismissed the appeal. The court also dismissed the father's applications to adduce further evidence and to reopen the appeal, finding that the evidence he sought to adduce had limited probative value and that the reopening was not appropriate to address the evidentiary weakness exposed at the appeal hearing. Finally, the court ordered the father to pay the mother's costs of and in relation to the appeals, finding that he was an undischarged bankrupt and that the mother had been wholly unsuccessful in the appeals.

The court made several orders, including dismissing the father's applications to adduce further evidence and to reopen the appeal, dismissing the father's appeal, and ordering the father to pay the mother's costs of and in relation to the appeals. The form of the order is subject to the entry of the order in the Court's records.

Orders

Orders of the court

1.

The Application in an Appeal to adduce further evidence in the appeal filed on 17 October 2019 be dismissed.

2.

The Application in an Appeal to reopen the appeal filed on 21 February 2020 be dismissed.

3.

Appeal NOA 26 of 2019 be dismissed.

4.

The father pay the mother’s costs of and in relation to the appeals in the amount of $12,999.90 within twenty-eight (28) days.

5.

The Application for costs by the Independent Children’s Lawyer be dismissed.

Notation

6.

Appeal NOA 18 of 2019 was withdrawn.

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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