CLAYTON & BANT - [2013] FamCA 790

FAMILY COURT OF AUSTRALIA

CLAYTON & BANT

[2013] FamCA 790

FAMILY LAW – CHILDREN – Interim proceedings – Where the Mother is an Australian citizen and the Father is a United Arab Emirates national – Where the parties were residing in the United Arab Emirates but travelled to Australia regularly – Where the parties travelled to Australia with the child in June 2013 and were to return to the United Arab Emirates in September 2013 – Where the Mother obtained a protection order against the Father and filed an application for parenting orders under Part VII of the Family Law Act 1975 – Where the Father sought an order for summary return of the child to the United Arab Emirates – Where the Father’s legal representatives acknowledged that there are a number of disputed issues of fact that could not be resolved without oral evidence – Where the parties agreed that a parenting trial of the relevant issues was necessary – Where the Father reserved his position to argue for a summary order for return at trial.

FAMILY LAW – CHILDREN – Interim proceedings – With whom a child spends time – Where the Mother alleges the Father poses a risk to the child if he were to spend unsupervised time with her – Where the Mother alleges the Father would act to return the child to the United Arab Emirates – Where the Father was prepared to provide undertakings and to spend supervised time with the child pending the trial.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Clayton

RESPONDENT:

Mr Bant

FILE NUMBER:

LEC 310 of 2013

DATE DELIVERED:

11 September 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

26 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamwood

SOLICITOR FOR THE APPLICANT:

GJ Legal Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Dunning Q.C. and Mr Alexander

SOLICITOR FOR THE RESPONDENT:

Barry Nilsson Lawyers

Orders

It is ordered

That the Father file an Amended Response setting out the final parenting orders sought in the event that his interim relief is refused, within seven days hereof.
That the Mother file and serve any further affidavits of evidence-in-chief within 14 days of the service of the Amended Response.
That the Father file and serve any further affidavits of evidence-in-chief within 21 days of service of the Amended Response.
That the parties’ applications be adjourned to 10:00 am on 8 October 2013 for hearing on a final basis for four days.
That until further order, Y Bant born … 2009 (“the child”) live with the Mother.
That the Father be restrained by himself, his servants or agents from removing the child from the Mother’s possession and removing the child from Australia.
That the Father surrender to the Family Court of Australia all passports in respect of the child however described until further order.
That the Father, Mr Bant, be restrained from taking any steps to obtain any passports or travel documents in respect of the child, Y born…

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 CLAYTON & BANT

Details

AGLC: CLAYTON & BANT [2013] FamCA 790
Case: [2013] FamCA 790
Decision Date

CaseChat Overview and Summary

This case concerned competing applications for parenting orders under Part VII of the *Family Law Act 1975* (Cth) between Ms Clayton ("the Mother"), an Australian citizen, and Mr Bant ("the Father"), a national of the United Arab Emirates ("UAE"). The parties had resided in the UAE but travelled regularly to Australia with their child, Y, born in 2009. In June 2013, the family travelled to Australia with plans to return to the UAE in September 2013. However, the Mother obtained a protection order against the Father and filed an application for parenting orders. The Father sought an order for the summary return of the child to the UAE.

The central legal issues before the Court were whether to grant the Father's application for a summary return of the child to the UAE, and in the interim, what parenting arrangements were in the child's best interests pending a final trial. The Court was required to determine these issues in circumstances where there were significant disputed issues of fact, including the Mother's residency status and security in the UAE, allegations of domestic violence, and the Father's alleged risk to the child. The Father's legal representatives acknowledged that these disputed facts could not be resolved without oral evidence and that a trial was necessary.

The Court reasoned that a summary return of the child to the UAE was not appropriate at this interim stage due to the numerous disputed issues of fact that required oral evidence to resolve. The Court noted that the Father had reserved his position to argue for a summary return at trial. In balancing the child's best interests under section 60CC of the *Family Law Act 1975*, the Court considered the child's young age, the need to preserve relationships with both parents, and the Mother's untested allegations of risk. Given the inability to resolve these allegations on an interim basis, the Court adopted a conservative approach.

Consequently, the Court made interim orders pending a four-day final trial scheduled to commence on 8 October 2013. These orders included that the child live with the Mother, and that the Father be restrained from removing the child from Australia and surrender all passports relating to the child. The Australian Federal Police were directed to place the child's name on the All Ports Watch Alert System. The Father was permitted supervised time with the child on alternate days, at his expense, and was required to provide undertakings regarding travel and passports, with the Court making formal orders in lieu of undertakings for practical enforcement purposes. The parties were also ordered to participate in a Family Report.

Orders