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 of 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

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.

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

1. 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.

2. 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. 

3. 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 did, disagrees with my judgment and says that Country B is the appropriate forum for the future of the children to be determined.

4. The Country B judgment, which has been translated and filed with his affidavit of 19 June, does not say that forum has been so determined.  It is simply a form of order in relation to where the children are to spend time with various people, including Mr Oakley’s relatives.  This issue, therefore, has already been decided by the Australian court, and the fact that the judiciary in Country B may or may not have taken my judgment into account seems to me to be irrelevant.  I made orders and they were not appealed.  The findings I made indicated that Australia was the appropriate forum for this matter to be determined, and, on that basis, the current application cannot succeed.

5. The matter ventilated by Mr Oakley has already been decided.  The material provided by Mr Oakley is not new material.  It does nothing to advance the case for a variation of the orders.  On that basis, the application in a case filed 20 June 2017 is dismissed.

RECORDED : NOT TRANSCRIBED

1. Section 117 of the Family Law Act requires that, in proceedings under the Act, each party should bear their own costs unless there are circumstances to justify departure from that principle. If the Court is contemplating making an order, it must consider the matters set out in section 117(2A) of the Act. I cannot think of a better example of circumstances that justify departure from the principle where someone has made an application which is doomed to fail. I have already previously indicted why the application was unsuccessful and no new evidence has been presented.

2. Mr Oakley has wasted not only the Court’s time, but the time and money of the public purse.  He says that he has only $2 in his account, but that is not a basis not to make an order for costs.  He has not complied, according to the assertion made against him, with signing documents under pervious orders, and, even if he has a dispute about the nature of the documents on the basis that he says that they will not succeed, that does not obviate his obligation to comply with the orders.  There are justifying circumstances here to make an order for costs.  I take into account that Victoria Legal Aid is the one effectively paying for the proceedings.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 July 2017.

Associate: 

Date:  18 July 2017