Oakley and Millar (No 2) - [2017] FamCA 1093

FAMILY COURT OF AUSTRALIA

OAKLEY & MILLAR (NO. 2)

[2017] FamCA 1093

FAMILY LAW – APPEAL – Stay application – unrepresented litigant – jumble of facts do not advance issue – stay refused.

Family Law Act 1975

Alexander & Cambridge Credit Corporation Limited (1985) 2 NSWLR 685
Clemett and Clemett (1981) FLC 91-013
Federal Commissioner of Taxation & Myer Emporium Limited (No 1) (1986) 160 CLR 220
Jennings Constructions Limited & Burgundy Royale Investments Property Limited (No 1) (1986) 161 CLR 68

APPLICANT:

Mr Oakley

RESPONDENT:

Ms Millar

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

2195

2016

DATE DELIVERED:

6 December 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

6 December 2017

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT

SOLICITOR FOR THE RESPONDENT:

Mr Goddard

Ebejer & Associates

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER Excused

Orders

That the application in a case filed by the husband for a stay of the orders of
4 July 2017 is dismissed.
That the contempt application filed by the wife is adjourned to 10.00am on
30 January 2018.
That the hearing listed for 12 December 2017 at 9.00am is vacated.
That the court requests the Chairman of the Victorian Bar to allocate counsel under the Victorian Bar pro bono scheme to give advice to the husband and such arrangements be made direct with the husband on …

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 Oakley & Millar (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 MELBOURNE

FILE NUMBER: MLC2195 OF 2016

Applicant
Ms Millar

And

Respondent
Mr Oakley

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

By his application filed on 6 December 2017, Mr Oakley seeks the stay of the orders made on 4 July 2017 and 7 June 2017 pursuant to rule 22.11 of the Family Law Rules. That provides, inter alia, that application for a stay of orders pending determination of an appeal.
Today the respondent to that application who is the wife, opposes the stay. She is not here because she is currently in Country B in Africa, and cannot be here because of injunctions from a court in that country. However, what brought the matter before the court today was her application that Mr Oakley be dealt with for contempt of court for non-compliance with an order that he sign documents which are said would have enabled her to return the parties’ children to Australia.
The stay arises from a notice of appeal which only relates to the order made on 4 July 2017. All of the discussion today, and indeed Mr Oakley's affidavit, refers to two orders. The earlier order was made on 7 June and in some ways was an integral part of the proceedings. There is no appeal against that order even if Mr Oakley thinks there is. If he further amends his notice of appeal, the question of him being out of time may arise.
The order made on 4 July 2017 simply reads:
(1) That the application of the husband filed 20 June 2017 is dismissed;
(2)That the reasons this day be transcribed;
(3)That the husband pay the wife's costs fixed in the sum of $920 with a stay of one month;
(4)That the husband pay the independent children's lawyer's costs of $920 with a stay of one month.
Mr Oakley’s June application was a renewed application to lift an injunction made by a Federal Circuit Court judge excluding him from leaving Australia. His position then, and now, is that he wants to return to Country B to be with and/or collect his children.
The reasons for refusing Mr Oakley's June application followed on from a decision of Judge Burchardt in the Federal Circuit Court in 2016. Essentially, his Honour focused on the question of whether Australia was an inappropriate forum to determine the children's matters. At paragraph 25 of my reasons I quoted from three specific paragraphs of the reasons of Judge Burchardt. At paragraph [25], his Honour said:
[25]As soon as the father found out that the mother had returned to Australia and was bringing proceedings, the children were taken to [Country B] for what was described as a holiday.
[26]In my view, both parents live in Australia. While the father says he may need to travel and the like for his work, he has not suggested that he intends to return to [Country B]. In my view, on an interim basis it is quite clear that it is the children's best interests to be with their parents whether the father primarily or the mother primarily in Australia.
And at paragraph [28]:
So in an overarching way, it is clear to me that this Court should proceed to exercise its jurisdiction so far as it properly can. It is clearly in the children's best interests that that be so. They are very young. They should be living with their parents. There is no suggestion that either parent does not love them. Certainly, the father is conceded to love the children by the mother. The father says the mother is not really engaged with the children, that she has been bashing the Court down since the minute she got off the plane, and it is reasonable to suppose that she also loves the children and wants to see them in those circumstances.
In my reasons, I observed:
In my view, absent an appeal, that is a significant finding that could only be disturbed if I was satisfied that there is new evidence since then to justify adopting a different view.
What his Honour Judge Burchardt had said was:
[25].There must be a very real risk that it is the father's intention to leave the children in [Country B] on a more permanent basis.
There has been no appeal lodged against the orders of Judge Burchardt. His Honour’s order was as follows:
(2)Until further order the children live with the mother;
(3)The wife be permitted to travel with the children from Country B to Australia;
(5)The mother shall cause the children to be returned to the Commonwealth of Australia as soon as practicable;
(9)The mother is to have sole parental responsibility for the children until further order.
In Judge Burchardt 's reasons, he set out his view of the forum issue and that it should be determined in favour of the mother. When I considered the matter in June, I found the same thing. In between the hearing on 7 June and 4 July, two important things happened. The first is that a court in Country B, having read presumably what I had written on 7 June, rejected the proposition that Country B was a totally inappropriate forum. The second thing was that Mr Oakley renewed his application based on the determination by the Court in Country B to be allowed to leave Australia to meet up with his children in Country B.
It was that latter application that I determined on 4 July. I found that there was no new circumstance such as to justify granting the application filed on 20 June, and accordingly I dismissed it. Mr Oakley then appealed against that determination. Nothing seems to have advanced in respect of the parenting matter. The children and their mother are still in Country B.
It is only today that the application for the stay has been filed. In fairness to Mr Oakley, he did endeavour to file it earlier, but for reasons that are not clear, the registry refused to list the matter. In some ways it does not matter because prior to him endeavouring to file his application, the mother filed the contempt application which is also listed before me today.
The stay application is difficult to deal with for two reasons. First, because notwithstanding his protestations to the contrary, his appeal is only in respect of the orders of 4 July. In trying to determine that issue, I shall take into account the litigious history.
The second and probably more significant problem is endeavouring to decipher exactly what it is that forms the basis of the appeal.
The principles relating to a Court granting a stay pending the appeal are well settled. See Federal Commissioner of Taxation & Myer Emporium Limited (No 1) (1986) 160 CLR 220; Alexander & Cambridge Credit Corporation Limited (1985) 2 NSWLR 685; and Jennings Constructions Limited & Burgundy Royale Investments Property Limited (No 1) (1986) 161 CLR 68. All of those authorities which have been adopted by the Full Court of this Court stress the discretionary nature of the application which should be determined on its merits.
The principles relevant today to the determination of this application include that the onus of establishing a proper basis for the stay is on the applicant for the stay, however, it is not necessary for him to demonstrate any special or exceptional circumstances. In addition, a person who has obtained a judgment is entitled to the benefit of that judgment. A person who has obtained a judgment is entitled to presume the judgment is correct. Further, the application must be bona fides.
A stay may be granted on terms that are fair to all parties. This may involve a court weighing the balance of convenience and the competing rights of the parties. A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted will be a substantial factor in determining whether or not it is appropriate to grant the stay, and there must be some preliminary assessment of the strength of the proposed appeal, that is, as to whether or not the appellant has an arguable case.
In Clemett and Clemett (1981) FLC 91-013, the Full Court said, in respect of a parenting appeal:
If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.
Contemplation of those words here is significant. The first relates to whether or not the appeal appears on its face to be based on substantial grounds. I will deal with that in a moment.
Is this a delaying tactic? It is not at all clear to me why the issue cannot be resolved in Australia having regard to the number of determinations that have already been made, and it is unclear also why the children have not been returned to Australia.
In Clemett, the Full Court looked at the question also of whether or not the appeal could be dealt with within a reasonable time. Here at best, the next available circuit, as I understand it in Melbourne, is in the middle of next year. In my view, six months further will mean that these children will have been the subject of specific orders of this Court for the best part of a year and nothing has happened. Significantly, Mr Oakley agrees he has not signed forms he was ordered to sign.
Another consideration described by the Full Court was whether or not the present circumstances of the child are satisfactory. It is difficult to see how anyone could say that the children are in satisfactory circumstances at the moment. It seems from, at least Mr Oakley's position, the children are in a prison, using his words, somewhere near the border, and living in a house where there are as many as twelve people.
On any view, his description means that the mother is hiding the children. There is some support for that conclusion because the mother keeps her address secret, no doubt for good reason. On any view, I must conclude that the present circumstances of these children are not satisfactory, and that adds impetuous to the matter being determined a lot more quickly than it currently it is.
As to the notice of appeal, a registrar wrote to Mr Oakley telling him the he needed to amend his notice and on 24 November 2017, he did so. Looking at the document, the only modest changes have been made. Those have been underlined by him and do not affect what I am asked to do here. Significantly he made no alteration to the date of the order he proposes to appeal. So again, the focus of the Full Court, subject to what Mr Oakley does hereafter, will be on the hearing on 4July.
Turning to the grounds of appeal, they are prefaced by an introduction that says:
The Court mistakes the facts and did not take into account important materials consideration and here are the facts documented with the Court several times.
At first blush, that would seem to be an assertion that facts were in evidence but were misunderstood. I have been through my reasons for judgment and the material upon which that material was based, and have not been able to find, from what Mr Oakley set out, where there is an error of fact. At one point in the submissions today he said that there was material on the Court file, but it is clear to me that whatever else might have been on the file, the sorts of things that he was talking about today were not brought to my attention.
I have gone through the grounds of appeal looking for something that might have some substance. Although it is not clear from what he wrote, in discussions Mr Oakley indicated that the most important factor from his perspective in relation to the appeal will go to the question of jurisdiction. He says that the Court's website tells him that if children are out of care of a parent for more than a year, then the Court cannot make orders. I have not looked at what the Court website says, but if it does say that, then it is clearly wrong.
There is nothing in the Family Law Act 1975 (Cth) (“the Act”) that precludes the jurisdiction based on those sorts of considerations.
A second ground, although not entirely clear from the written document, is that I did not deal with the forum factors. This again relates to the issue of which court should be hearing the parenting dispute. In many ways I did not have to deal with that in any great detail because Judge Burchardt did so in considerable detail in May 2016. His Honour went through a number of the relevant authorities, both of the High Court and of this Court, and I observed at the end of reciting those that I thought that his Honour's synopsis of the law was correct. It is again significant to observe that the order that Judge Burchardt made was not appealed. The findings that Judge Burchardt made must have been open to him. It seems difficult, therefore, to see how I made any error based on a finding that had already been made in relation to the question of forum.
If I then turn to the remaining grounds, numbers 4, 5, 6 and 11 to 13 are not grounds at all, but matters of fact relevant in a parenting case. They were not matters that were put before me in evidence at the time. They were matters of argument, but they are matters that would not have affected the determination of the forum issue.
It seems to me that this notice of appeal, if indeed these are intended to be grounds, are misguided. To the extent that any of these matters were raised in the evidence, and some complaint against the mother about her care for the children was raised, they are matters that are to be determined by this Court in the exercise of its parenting powers when the children return to Australia; thus, there is no prejudice to anybody in that sense.
Secondly, these complaints can only go to the question of weight to be given to any particular determination. Again, it is hard to see how any of these matters have any merit as an appeal.
Mr Oakley points to the fact that the Court in Country B has the determination of this matter in hand, but the difficulty with that is that the orders of the Court in Country B were made on 15 June. I made my orders on 7 June. I appreciate that not all courts follow the common law comity position, but it is quite clear and it was evident on 4 July, the Court in Country B rejected the view I took as to forum. In any event, that does not seem to me to be a basis upon which Mr Oakley can mount a ground of appeal.
In paragraph 9 of the grounds of appeal, Mr Oakley said:
The Court did not consider the fact there is a final intervention order that the biological mother and the people around her remain within 200 metre from the children home and school. The Court did not consider the track records of neglect of the biological mother to the children. The Court did not consider that the biological mother is a stranger to the children and they do not know her as she last had contact with the children was three years ago. The Court did not consider the threat and kidnapping attempt by the biological brother and family. The Court did not consider the trauma to the children as a result of being removed by force from the street and left with strangers while missing the people they know and familiar with.
Again, it is difficult to see how that can be possibly be said to be a ground of appeal to the extent that I ignored a final intervention order, or that the mother was a stranger to the children, or that there were kidnapping threats. It is curious that those matters, if they were determined as part of Judge Burchardt's determination in June 2016, they were not the subject of an appeal. It is hard for me to see how I made an error in respect of those matters.
The other grounds of appeal include such things as “totally disregarding the risk of the children” as they presently are, and the fact that “despite the conceded and misleading views of the judicial system in Country B which the mother's lawyer has tried to convince the Court, the mother will not be allowed to leave [Country B]”. That is a grab bag of statements which need to be unpacked. I think it was very clear that I was concerned that the orders of Judge Burchardt had been extant for a long time, and nothing seems to have occurred. That was why on the June hearing, I focused on the necessary steps to get the children back to Australia.
To the extent that it is asserted that the mother's lawyer had a “misleading view” of the judicial system in Country B, that would not have influenced my determination one way or the other. Judge Burchardt had already determined that the forum most appropriate for the determination of this parenting dispute was Australia. To the extent that there were orders in Country B, they seemed to have been after I determined the matter in June.
Mr Oakley says the mother will not be able to leave Country B. I do not know whether that is correct. But in any event, an appeal court could look at that on the basis that there was a futility of the orders I made, or that I was incorrect in determining the question of forum.
It is not clear to me what Mr Oakley means when he says that the mother would not be able to leave Country B. My orders were directed towards him doing things that might give the impetus to her being able to leave Country B. The fact that there is now an extant proceeding in Country B in my view is irrelevant.
I appreciate that Mr Oakley is unrepresented, but by the time he gets to the appeal court, hopefully he will have someone look at his grounds to determine whether there is anything of substance. An appeal is not a grab bag of complaints and new facts. The process has to be done in a proper and orderly way. At the moment, it is hard to see that this appeal has any merit at all.
The affidavit that Mr Oakley has filed today in support of his application for the stay does not advance the matter much further. Of all of the matters that seem to be set out in that affidavit, they all cover the same sorts of issues that were clear to me in June. As outlined earlier in his notice of appeal, there are complaints about the Federal Circuit Court and mistakes that that Court made. There are complaints that the Federal Circuit Court ignored Mr Oakley's position, but none of those matters are matters that can assist me in whether or not there is some merit in this appeal.

There are complaints, for example, that one of the children has missed a four year immunisation which is "crucially important for a female". Presumably if she was back in Australia she would not have missed that immunisation. That does not affect the stay application, because even if I granted the stay, it would not mean that the ability of Mr Oakley to return to Country B would be enhanced.
The affidavit went on to say that the mother was on the run for months. The affidavit of the mother says otherwise. The affidavit of Mr Oakley also says that the children were psychology affected and traumatised by the kidnapping and depravation from their paternal grandmother. That is a conclusion rather than a statement of fact, and I do not know whether he was the necessary qualifications to give that sort of evidence.
There is significant complaint in the affidavit about the way the mother’s lawyers have behaved in this case. I am not in the position to make any finding, and I do not need to do so, but it seems to me that none of those matters had anything to do with the question of a stay. Ultimately, what Mr Oakley says at paragraph [19]:
Besides the many lies in the initial application and throughout the case, the biological mother break the family law disclosure ongoing duty and did not tell the Honourable Court that the Court in [Country B] refused to lift the travel bans of the biological mother, which should have resulted in closing in the case in Australia.
He said:
These orders were aimed at hiding the facts so I can get in other trouble made by other lies. As his Honour mentioned, there are other criminal proceedings in [Country B].
Neither of those complaints advances the real issue in this case, which is that in June and in July, I made orders to effectively expedite the hearing in this Court with the children returned to Australia. None of that has happened, and I reject that a stay advances that issue. In my view, there is no basis upon which I could find that there is merit in the appeal from the material filed.
The most significant basis upon which a court would normally grant a stay is, if by refusing the stay, the appeal would be rendered nugatory. It is hard to see how that could be relevant here either. If I granted the stay, it would not alter the position that the children are still in Country B, and Mr Oakley could not go there to collect them. The appeal would not be heard until the middle of 2018, so that does not advance the situation at all. If I refused the stay, it makes no difference either because at the moment Mr Oakley cannot go to Country B. On that basis, the application for the stay is refused.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 December 2017.

Associate:

Date: 20 December 2017