Arabatzis & Severino & Anor - [2013] FamCA 117

FAMILY COURT OF AUSTRALIA

ARABATZIS & SEVERINO AND ANOR

[2013] FamCA 117

FAMILY LAW – CHILDREN – Application by the paternal Aunt in circumstances where the child’s parents are missing – Best interests.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Arabatzis

FIRST RESPONDENT:

Mr Severino

SECOND RESPONDENT:

Ms Severino

INDEPENDENT CHILDREN’S LAWYER:

Tim Mulvany

FILE NUMBER:

MLC

6602

2012

DATE DELIVERED:

1 March 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

14 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glass

SOLICITOR FOR THE APPLICANT:

Victoria Legal Aid

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Mulvany

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAYWER:

T J Mulvany & Co

IT IS ORDERED THAT

The Applicant Paternal Aunt, Ms Arabatzis, have parental responsibility for the child D born … April 2000.
The said child live with the Applicant Paternal Aunt.
The Initiating Application filed 23 July 2012 be otherwise dismissed and removed from the list of cases awaiting hearing.
That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order, are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Arabatzis & Severino and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6602 of 2012

Ms Arabatzis

Applicant

And

Mr Severino

Respondent

And

Ms Severino

Respondent

REASONS FOR JUDGMENT

This matter was first listed for hearing before me on 5 October 2012. On that date the Applicant Paternal Aunt, in her Initiating Application filed 23 July 2012, sought orders for sole parental responsibility for her nephew and that he live with her. In July 2008 the Applicant Aunt received a phone call from a person who said that he was at Melbourne Airport with her nephew. The caller did not identify himself nor did she meet or ever hear from him again. The Applicant Aunt and her husband then travelled by bus, train and taxi to Melbourne Airport. The child ran to them and immediately asked them if his father was with them. Although she said they looked, they could not locate the person the child said had accompanied him to Australia from Sri Lanka. The child has lived with his Aunt and her family since that day.
The child’s mother, who remained in Sri Lanka with her daughter, contacted the Aunt after her son’s arrival in Australia. She explained at that time that the child’s father had disappeared in 2008 and that she had not heard from him since. She said that she had sent the child to Australia…

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 Arabatzis & Severino & Anor

Details

AGLC: ARABATZIS & SEVERINO AND ANOR [2013] FamCA 117
Case: [2013] FamCA 117
Decision Date: 1 March 2013

CaseChat Overview and Summary

In *Arabatzis & Severino & Anor*, the Supreme Court of Victoria was asked to determine whether a caveat lodged by the respondents, Mr. and Mrs. Severino, against land owned by the applicants, Mr. and Mrs. Arabatzis, should be maintained. The dispute arose from a contract for the sale of the applicants' property, which the respondents sought to purchase. Following the execution of the contract, the respondents lodged a caveat, asserting an equitable interest in the land. The applicants sought to have this caveat removed.

The primary legal issue before the Court was whether the respondents had established a sufficient caveatable interest in the land to justify the continued existence of the caveat. This required the Court to consider the nature of the equitable interest claimed by the respondents, specifically whether their rights under the contract for sale constituted a registrable interest or a proprietary interest capable of supporting a caveat. The Court also had to assess whether the respondents had acted in good faith in lodging the caveat.

Macmillan J reasoned that a caveatable interest arises from a proprietary right, not merely a personal contractual right. His Honour referred to established principles that a purchaser under a contract for sale acquires an equitable interest in the land from the time of the contract, provided the contract is specifically enforceable. However, the Court found that the respondents had not demonstrated that the contract was specifically enforceable at the time the caveat was lodged, nor had they established any other proprietary interest. Consequently, the Court concluded that the respondents had failed to establish a sufficient caveatable interest.

The Court ordered that the caveat lodged by the respondents be removed.

Orders