Oakley & Millar - [2022] FedCFamC1A 7

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Oakley & Millar [2022] FedCFamC1A 7

Appeal from: Millar & Oakley [2021] FedCFamC1F 12

Appeal number(s): NAA 28 of 2021

File number(s): MLC 2195 of 2016

Judgment of: AUSTIN J

Date of judgment: 1 February 2022

Catchwords: FAMILY LAW – APPEAL – Practice and Procedure – Where the grounds of appeal as presently pleaded are not in satisfactory form – Where the 25 grounds are a retinue of complaints about the perceived unfairness of the trial process and the result – Where the appeal has no reasonable prospect of success in its current form – Where the grounds are struck out – Where in default of an Amended Notice of Appeal being filed within 21 days, the appeal is summarily dismissed – Application in an Appeal – Where the appellant agreed it should not be heard and determined until after the grounds of appeal are settled.

Legislation:
Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26(1)

Cases cited:
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

Yule v Junek (1978) 139 CLR 1;[1978] HCA 4

Number of paragraphs: 8

Date of hearing: 1 February 2022

Place: Newcastle (via video link)

The Appellant: Litigant in person

Solicitor for the Respondent: Ebejer & Associates

The Independent Children's Lawyer: Did not participate
ORDERS

NAA 28 of 2021
MLC 2195 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR OAKLEY

Appellant

AND:
MS MILLAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

1 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The grounds of appeal contained within the Notice of Appeal filed on 30 September 2021 are struck out and, in default of an Amended Notice of Appeal being filed within 21 days:
(a)the appeal is summarily dismissed; and
(b)the Application in an Appeal filed on 7 December 2021 is dismissed.

2.The Application in an Appeal filed on 7 December 2021 is otherwise listed for hearing before Austin J at 9.30 am on Friday 25 February 2022.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oakley & Millar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

On 2 September 2021, in proceedings under Pt VII of the Family Law Act

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 [2022] FedCFamC1A 7
Case: [2022] FedCFamC1A 7
Decision Date: 1 February 2022

CaseChat Overview and Summary

The appellant, Mr Oakley, filed an appeal against a decision made by the Family Court in a case concerning children's law. The respondent, Ms Millar, and the independent children's lawyer were parties to the original decision. The appeal was heard in the Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction. Mr Oakley's appeal was dismissed, and the grounds of appeal were struck out. The court ordered that the appeal would be summarily dismissed if an amended notice of appeal was not filed within 21 days. The application in the appeal was dismissed, but it was listed for a hearing after the grounds of appeal were settled.

The legal issues that the court was required to decide involved the form and substance of the grounds of appeal. The court noted that the 25 grounds of appeal were not in satisfactory form and amounted to a series of complaints about the perceived unfairness of the trial process and the result. The court found that the appeal had no reasonable prospect of success in its current form, and the grounds were struck out. The court also considered an application in the appeal, which the appellant had agreed should not be heard and determined until after the grounds of appeal were settled.

The court's reasoning and outcome were based on the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The court held that the grounds of appeal were not in the proper form and did not identify any errors of law or procedure that would warrant an appeal. The court found that the appeal had no reasonable prospect of success and that striking out the grounds of appeal was an appropriate outcome. The court also dismissed the application in the appeal, but it was listed for a hearing after the grounds of appeal were settled. The court ordered that the appeal would be summarily dismissed if an amended notice of appeal was not filed within 21 days.

The final orders of the court were that the grounds of appeal contained in the notice of appeal filed on 30 September 2021 were struck out, and in default of an amended notice of appeal being filed within 21 days, the appeal was summarily dismissed. The application in the appeal filed on 7 December 2021 was dismissed, but it was listed for a hearing after the grounds of appeal were settled. The order was made on 1 February 2022 by Austin J.

Orders

Orders of the court

NAA 28 of 2021

MLC 2195 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR OAKLEY

Appellant

AND:

MS MILLAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

1 FEBRUARY 2022

THE COURT ORDERS THAT:

1. The grounds of appeal contained within the Notice of Appeal filed on 30 September 2021 are struck out and, in default of an Amended Notice of Appeal being filed within 21 days:

(a) the appeal is summarily dismissed; and

(b) the Application in an Appeal filed on 7 December 2021 is dismissed.

2. The Application in an Appeal filed on 7 December 2021 is otherwise listed for hearing before Austin J at 9.30 am on Friday 25 February 2022.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

Full text does not contain this section.

NAA 28 of 2021 MLC 2195 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR OAKLEY Appellant
AND:	MS MILLAR Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Millar & Oakley [2021] FedCFamC1F 12
Appeal number(s):	NAA 28 of 2021
File number(s):	MLC 2195 of 2016
Judgment of:	AUSTIN J
Date of judgment:	1 February 2022
Catchwords:	FAMILY LAW – APPEAL – Practice and Procedure – Where the grounds of appeal as presently pleaded are not in satisfactory form – Where the 25 grounds are a retinue of complaints about the perceived unfairness of the trial process and the result – Where the appeal has no reasonable prospect of success in its current form – Where the grounds are struck out – Where in default of an Amended Notice of Appeal being filed within 21 days, the appeal is summarily dismissed – Application in an Appeal – Where the appellant agreed it should not be heard and determined until after the grounds of appeal are settled.
Legislation:	Family Law Act 1975 (Cth) Pt VII Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26(1)
Cases cited:	Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Yule v Junek (1978) 139 CLR 1;[1978] HCA 4
Number of paragraphs:	8
Date of hearing:	1 February 2022
Place:	Newcastle (via video link)
The Appellant:	Litigant in person
Solicitor for the Respondent:	Ebejer & Associates
The Independent Children's Lawyer:	Did not participate

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	1 FEBRUARY 2022