OAKLEY & MILLAR - [2017] FamCA 513

FAMILY COURT OF AUSTRALIA

OAKLEY & MILLAR

[2017] FamCA 513

FAMILY LAW – Application by husband to leave Australia – Where application previously rejected – where no new circumstances – application dismissed. Costs sought and granted

Family Law Act 1975 (Cth)

APPLICANT:

Mr Oakley

RESPONDENT:

Ms Millar

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

2195

2016

DATE DELIVERED:

4 July 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

4 July 2017

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

Mr Goddard

SOLICITOR FOR THE RESPONDENT:

Ebejer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr E. Taghdir

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the application of the husband filed 20 June 2017 is dismissed.
That the reasons this day be transcribed.
That the husband pay the wife’s costs fixed in the sum of $920 with a stay of one month.
That the husband pay the Independent Children’s Lawyer’s costs of $920 with a stay of one month.

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 < Millar & Oakley 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: MLC 2195 of 2016

Mr Oakley

Applicant

And

Ms Millar

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On 9 June 2017, I made a number of orders dismissing an application by Mr Oakley where he sought permission to leave Australia. The orders that had precluded him from leaving this country had been made by the Federal Circuit Court. On giving reasons for dismissal of his application, I rejected every one of his arguments, the most significant of which was that I made a finding that Australia is clearly not an inappropriate forum. All of the evidence that I had at that stage indicated that the children were Australian citizens and that they were effectively being held against their will and their mother’s will in Country B. No appeal was lodged by Mr Oakley against those orders.
He now makes another application which seeks that he be again permitted to leave Australia so, as he would have it, he can go to Country B and collect the children.
On the occasion when I last heard this matter, I was conscious that there was a pending hearing in Country B. That related to the children, but the plaintiffs, as they were called, were people other than just Mr Oakley. Mr Oakley says that the Court in Country B, after I made the orders that I…

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 & MILLAR

Details

AGLC: OAKLEY & MILLAR [2017] FamCA 513
Case: [2017] FamCA 513
Decision Date: 4 July 2017

CaseChat Overview and Summary

In the matter of *Oakley & Millar*, heard by Cronin J, the husband sought leave to depart Australia. This application had been previously rejected by the court, and the husband was seeking to have the decision overturned. The wife opposed the application.

The central legal issue before the court was whether there were sufficient new circumstances to warrant a reconsideration and grant of the husband's application to leave Australia, given its prior dismissal. The court also considered the question of costs.

Cronin J dismissed the husband's application, finding that no new circumstances had arisen since the previous rejection that would justify granting leave to depart. The court applied the principle that a party seeking to revisit a prior judicial decision must demonstrate a material change in circumstances. Having found no such change, the application was refused. The court ordered that the husband pay the wife's costs fixed at $920 and the Independent Children's Lawyer's costs of $920, with a stay of one month on each payment.

Orders

Orders of the court

That the application of the husband filed 20 June 2017 is dismissed.

That the reasons this day be transcribed.

That the husband pay the wife’s costs fixed in the sum of $920 with a stay of one month.

That the husband pay the Independent Children’s Lawyer’s costs of $920 with a stay of one month.

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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