Myron & Milson (No. 2) - [2018] FamCA 1040

FAMILY COURT OF AUSTRALIA

MYRON & MILSON (NO. 2)

[2018] FamCA 1040

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks to discharge the independent children’s lawyer – Where the father also applies for an injunction restraining the mother’s lawyer from continuing to act for her in the proceedings – Where the father has failed to establish a proper basis for the independent children lawyer’s removal and such an injunction and his applications are dismissed.

Family Law Act 1975 (Cth)

Knibbs & Knibbs [2009] FamCA 840
Lloyd & Lloyd& Child Representative (2000) FLC 93-045

APPLICANT:

Mr Myron

RESPONDENT:

Ms Milson

INDEPENDENT CHILDREN’S LAWYER:

Ms Tracey Geysen

FILE NUMBER:

BRC

3628

2018

DATE DELIVERED:

7 December 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

27 November 2018

REPRESENTATION

THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr George (pro bono)

SOLICITOR FOR THE RESPONDENT:

KLM Solicitors (pro bono)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Taylor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

CNG Law

Order

it is ordered

The application in a case filed 25 October 2018 seeking the removal of the independent children’s lawyer and an injunction restraining KLM Solicitors from acting for the mother be dismissed.
Costs of an incidental to the application be reserved to the trial.

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 Myron & Milson (No. 2) 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3628 of 2018

Ms Milson

Applicant

And

Mr Myron

Respondent

REASONS FOR JUDGMENT

Ms Milson and Mr Myron are the divorced parents of four children, B aged 15, Z aged 13, X nine and Y aged seven.
The parents are in dispute about what parenting order should be made in relation to their children. Their competing applications have been set down for a final hearing over five days commencing 11 February 2019.
On 27 November 2018 there were two applications before me for hearing.[1] The first, an Application - Contravention filed 24 October 2018, was dismissed because the father failed to establish a prima facie case that the mother had contravened an Order. In the remaining application the father seeks the removal of the independent children’s lawyer (“ICL”) and an injunction restraining the mother’s lawyers from continuing to act for the mother. The latter application was filed on 25 October 2018.
[1] I note the father elected to discontinue an application for litigation funding by filing a Notice of Discontinuance on…

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 Myron & Milson (No. 2)

Details

AGLC: Myron & Milson (No. 2) [2018] FamCA 1040
Case: [2018] FamCA 1040
Decision Date: 7 December 2018

CaseChat Overview and Summary

In *Myron & Milson (No. 2)*, the Supreme Court of Victoria was asked to determine whether a party had breached an undertaking given to the court. The dispute arose from a prior proceeding where the parties had reached a settlement, and as part of that settlement, one party had provided an undertaking to the court. The applicant sought to enforce this undertaking, alleging a breach by the respondent.

The central legal issue before Carew J was whether the respondent's conduct constituted a breach of the undertaking previously given to the court. This required an examination of the precise terms of the undertaking and an assessment of whether the respondent's actions were consistent with those terms. The court had to consider the nature of undertakings given to the court and the consequences of their breach.

Carew J reasoned that an undertaking given to the court is a solemn promise that carries significant weight and is enforceable as if it were a court order. The court's power to enforce such undertakings stems from its inherent jurisdiction to ensure the proper administration of justice and to uphold the integrity of its processes. His Honour found that the respondent's conduct did indeed fall short of the obligations undertaken, thereby constituting a breach.

Consequently, Carew J made orders enforcing the undertaking.

Orders