Oakley & Millar (No 3) - [2022] FedCFamC1A 82

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Oakley & Millar (No 3) [2022] FedCFamC1A 82

Appeal from: Millar & Oakley [2021] FedCFamC1F 12

Appeal number(s): NAA 28 of 2021

File number(s): MLC 2195 of 2016

Judgment of: ALDRIDGE, AUSTIN & WILSON JJ

Date of judgment: 31 May 2022

Catchwords: FAMILY LAW – APPEAL – Parenting – Where the appellant father appeals from orders providing for the respondent mother to have sole parental responsibility for the children and for them to live with her, but for the children to spend no time nor communicate with the father – Where the appellant pleads 30 separate grounds of appeal – Procedural fairness – Where the contention that the father was given less time to cross-examine is plainly untrue – Where the interjections of the primary judge were neither unwarranted nor discourteous – Mistake of fact – Where there was no error by the primary judge in accepting the respondent’s evidence merely because the appellant disputed it – Error of law – Where there was satisfactory evidentiary foundation for the orders of the primary judge – Unacceptable risk – Where the primary judge gave expansive reasons for why the appellant poses an unacceptable risk of harm to the children – Discretionary error – Where the appellant confuses the failure to take a material consideration into account with the consideration and rejection of evidence said to be material – Where none of the grounds have merit – Appeal dismissed – Costs ordered in a fixed sum.

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CC, 69ZX, 121

Cases cited:
De Winter v De Winter (1979) FLC 90-605

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Oakley & Millar [2022] FedCFamC1A 7

Oakley & Millar (No. 2) [2022] FedCFamC1A 27

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Number of paragraphs: 95

Date of hearing: 31 May 2022

Place: Melbourne

The Appellant: Litigant in person

Counsel for the Respondent: Ms Damon

Solicitor for the Respondent: Ebejer & Associates

The Independent Children’s Lawyer: Filed Submitting Notice 31 May 2022
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:

ALDRIDGE, AUSTIN & WILSON JJ

DATE OF ORDER:

31 MAY 2022

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal in the fixed sum of $5,405.71.

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…

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 (No 3)

Details

AGLC: Oakley & Millar (No 3) [2022] FedCFamC1A 82
Case: [2022] FedCFamC1A 82
Decision Date: 31 May 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the court considered an appeal by the father, Mr Oakley, against orders providing for sole parental responsibility for the children to be with the mother, Ms Millar, and for the children to have no contact with the father. The father had raised 30 separate grounds of appeal, which the court needed to address. The primary issues included procedural fairness, potential mistakes of fact or law by the primary judge, and the risk of harm posed by the father to the children.

The court found that the father's claims of procedural unfairness were without merit. The father had ample time to cross-examine and the primary judge's interjections were neither unwarranted nor discourteous. The court also dismissed the father's claims of a mistake of fact or error of law, finding that the primary judge had a satisfactory evidentiary foundation for the orders made. Furthermore, the court accepted the primary judge's expansive reasons for concluding that the father posed an unacceptable risk of harm to the children. The father's argument regarding a discretionary error was also rejected as he had confused the failure to take a material consideration into account with the consideration and rejection of evidence. The court found that none of the father's grounds had merit.

The appeal was dismissed with the father ordered to pay the mother’s costs of and incidental to the appeal in the fixed sum of $5,405.71. The form of the order was subject to review and potential variation in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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:

ALDRIDGE, AUSTIN & WILSON JJ

DATE OF ORDER:

31 MAY 2022

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant shall pay the respondent’s party/party costs of and incidental to the appeal in the fixed sum of $5,405.71.

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

For the reasons which follow, the appeal should be dismissed with costs.BACKGROUND The appellant has lived in Australia since 2001 and is an Australian citizen. The parties were introduced in African Country B in 2006 or 2007. They married in 2010. The respondent was eventually granted a visa to enter Australia in 2012. Their two children were born in 2012 and 2014. The marriage broke down at some point between June and September 2014. In September 2014, the family travelled to African Country B. All members of the family held return airfares, with the return trip due to be taken a month later in October 2014. Little more than a week after arrival in African Country B, the appellant and children returned to Australia without the respondent. The circumstances under which she was left in African Country B were contentious. At that point in time, the elder child was two years of age and the younger child was only months old and was still being breast-fed by the respondent. The respondent later learned the appellant had caused her Australian visa to be cancelled, due to their marital separation. She therefore remained stranded in African Country B until February 2016, when she was finally able to obtain another visa enabling her entry into Australia. All the while, the children lived with the appellant in Australia and did not see the respondent. In March 2016, immediately following the respondent’s return to Australia, she initiated proceedings seeking parenting orders under Pt VII of the Act. Her interim application was listed for hearing in May 2016. However, upon being served with the respondent’s initiating process, in April 2016, the appellant took the children back to African Country B and placed them in the care of his family. He then returned to Australia alone. Upon hearing the respondent’s interim application in May 2016, orders were made for the children to be returned to Australia, but the appellant did not comply with the orders. The children remained in African Country B. The respondent returned to African Country B in October 2016 to find the children. After spending a month searching, she found them and took them into her care. Proceedings in relation to the children had by then been commenced in African Country B by the paternal family, who alleged the respondent had abandoned the children. The respondent defied an African Country B order to return the children to the care of the paternal grandmother, which resulted in her imprisonment for three days. Meanwhile, more interim orders were made in November 2016 in Australia, providing for the respondent to have sole parental responsibility for the children, for them to live with her, and for them to be returned to Australia forthwith. The appellant protested his inability to ensure the children’s return to Australia but, in January 2018, after he was convicted of contempt and sentenced to a suspended term of imprisonment, the appellant facilitated the respondent and children’s return to Australia by signing the necessary African Country B documentation. They finally arrived back in Australia in May 2018.

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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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:	ALDRIDGE, AUSTIN & WILSON JJ
Date of judgment:	31 May 2022
Catchwords:	FAMILY LAW – APPEAL – Parenting – Where the appellant father appeals from orders providing for the respondent mother to have sole parental responsibility for the children and for them to live with her, but for the children to spend no time nor communicate with the father – Where the appellant pleads 30 separate grounds of appeal – Procedural fairness – Where the contention that the father was given less time to cross-examine is plainly untrue – Where the interjections of the primary judge were neither unwarranted nor discourteous – Mistake of fact – Where there was no error by the primary judge in accepting the respondent’s evidence merely because the appellant disputed it – Error of law – Where there was satisfactory evidentiary foundation for the orders of the primary judge – Unacceptable risk – Where the primary judge gave expansive reasons for why the appellant poses an unacceptable risk of harm to the children – Discretionary error – Where the appellant confuses the failure to take a material consideration into account with the consideration and rejection of evidence said to be material – Where none of the grounds have merit – Appeal dismissed – Costs ordered in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CC, 69ZX, 121
Cases cited:	De Winter v De Winter (1979) FLC 90-605 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Oakley & Millar [2022] FedCFamC1A 7 Oakley & Millar (No. 2) [2022] FedCFamC1A 27 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Number of paragraphs:	95
Date of hearing:	31 May 2022
Place:	Melbourne
The Appellant:	Litigant in person
Counsel for the Respondent:	Ms Damon
Solicitor for the Respondent:	Ebejer & Associates
The Independent Children’s Lawyer:	Filed Submitting Notice 31 May 2022

ORDER MADE BY:	ALDRIDGE, AUSTIN & WILSON JJ
DATE OF ORDER:	31 MAY 2022