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…

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 Oakley and Millar (No 2)

Details

AGLC: Oakley and Millar (No 2) [2017] FamCA 1093
Case: [2017] FamCA 1093
Decision Date: 6 December 2017

CaseChat Overview and Summary

In the matter of *Oakley and Millar (No 2)*, Cronin J of the Family Court of Australia considered an application by the husband for a stay of orders made on 4 July 2017, and a contempt application filed by the wife.

The court was required to determine whether to grant the husband's application for a stay of the previous orders and to decide the future course of the wife's contempt application.

Cronin J dismissed the husband's application for a stay of the orders. The contempt application filed by the wife was adjourned to 30 January 2018, and the hearing previously listed for 12 December 2017 was vacated. Furthermore, the court requested the Chairman of the Victorian Bar to allocate counsel under the Victorian Bar pro bono scheme to provide advice to the husband.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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