OAKLEY & MILLAR - [2018] FamCAFC 47

FAMILY COURT OF AUSTRALIA

OAKLEY & MILLAR

[2018] FamCAFC 47

FAMILY LAW – APPEAL – Appeal from an order dismissing the father’s application for an injunction restraining him from leaving Australia to be lifted – Where the father’s Amended Notice of Appeal is incompetent because it is directed to orders other than the order from which he appeals and fails to disclose any proper grounds of appeal – Where the injunction was properly made – Where the primary judge’s finding that the father did not demonstrate sufficient changed circumstances to have the injunction varied was open on the evidence – Appeal from costs order – Costs order properly made – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where most of the evidence the father seeks to adduce was available to him at the time of the hearing before the primary judge – Where much of the evidence is irrelevant – Application dismissed.

Family Law Act 1975 (Cth) ss 94AA, 114
Family Law Regulations 1984 (Cth) reg 15A

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gilles & Irby (2016) FLC 93-687; [2016] FamCAFC 13
Lenova & Lenova (Costs) [2011] FamCAFC 141
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Millar & Oakley [2016] FCCA 1283
Millar & Oakley [2017] FamCA 415
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Sampson and Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
Zanda & Zanda (2014) FLC 93-607; [2014] FamCAFC 173

APPELLANT:

Mr Oakley

RESPONDENT:

Ms Millar

INDEPENDENT CHILDREN’S LAWYER:

Taft Lawyers

FILE NUMBER:

MLC

2195

2016

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

9 March 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Alstergren DCJ, Ainslie‑Wallace & Aldridge JJ

HEARING DATE:

9 March 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 July 2017

LOWER COURT MNC:

[2017] FamCA 513

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr A Combes

SOLICITOR FOR THE RESPONDENT:

Ebejer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Did not participate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Taft Lawyers

Orders

The Application in an Appeal filed 2 March 2018 be dismissed.
The appeal be dismissed.
The appellant pay the respondent’s costs fixed in the sum of $3,388.

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 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…

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.

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Details

AGLC: OAKLEY & MILLAR [2018] FamCAFC 47
Case: [2018] FamCAFC 47
Decision Date: 9 March 2018

CaseChat Overview and Summary

Oakley & Millar involved an appeal by the father against an order that dismissed his application for an injunction restraining him from leaving Australia. The father sought to have the injunction lifted. The legal issues centred on the competency of the father’s Amended Notice of Appeal and the merits of the primary judge's decision on the injunction. The court found the Amended Notice of Appeal to be incompetent as it was directed to orders other than the one from which the appeal was lodged, and it failed to disclose any proper grounds of appeal. The primary judge's decision that the father had not demonstrated sufficient changed circumstances to have the injunction varied was upheld as being open on the evidence presented.

The court further addressed the appeal from a costs order, concluding that it was properly made. The application for further evidence was dismissed because most of the evidence the father sought to adduce was available at the time of the primary hearing, and much of it was deemed irrelevant. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs, fixed in the sum of $3,388. The form of the order is subject to entry in the Court's records.

Orders

Orders of the court

The Application in an Appeal filed 2 March 2018 be dismissed.

The appeal be dismissed.

The appellant pay the respondent’s costs fixed in the sum of $3,388.

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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