EULALI & EULALI - [2018] FamCA 512

FAMILY COURT OF AUSTRALIA

EULALI & EULALI

[2018] FamCA 512

FAMILY LAW – CHILD ABDUCTION – Child taken from Australia – Where the parties took the children on a holiday to Country H – Where the parties are in dispute as to whether they intended to return to Australia – Where the children received Country H citizenship after arriving – Whether the children should be returned to Australia.

FAMILY LAW – INJUNCTIONS – Injunction restraining the father from returning to Country H – Likelihood that the father would return to the Commonwealth of Australia if permitted to depart.

FAMILY LAW – PROPERTY – Interim – Injunction against dealing with property – Injunction restraining the use of rental income except for mortgage payments and outgoings.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA

Fallon & Bashandi [2013] FamCA 672
Keats & Keats [2016] FamCAFC 156
Marvel v Marvel [2010] FamCAFC 101
Mazorski v Albright [2007] FamCA 520

APPLICANT:

Ms Eulali

RESPONDENT:

Mr Eulali

FILE NUMBER:

ADC

1643

2018

DATE DELIVERED:

13 July 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

2 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Dickson
SOLICITOR FOR THE APPLICANT:	AM Legal

COUNSEL FOR THE RESPONDENT:

Mr Mellows

SOLICITOR FOR THE RESPONDENT:

Dorrian Legal

BY CONSENT IT IS ORDERED:-

That until further order the wife be restrained from disposing of, encumbering or otherwise dealing with the property situate at B Street, Suburb C, South Australia, ...
That the husband do all things necessary to facilitate the wife and the children being able to communicate on a daily basis via Skype, Facetime or telephone PROVIDED that the wife shall instigate any telephone calls with the children.

IT IS ORDERED:

That the husband, his servants or agents do all things necessary to forthwith facilitate the immediate return of X born … 2009, Y born … 2010 and Z born …2012 (“the children”) to the Commonwealth of Australia.
That at the wife’s sole expense she shall provide for the children to return to Australia with … Airline or such other airline as the wife may nominate and the wife is to provide the husband with details of the itinerary and flight number.
That the wife shall collect the children from the arrival hall at the Adelaide Airport.
That the husband be restrained and an injunction granted restraining him from removing or causing the removal of the children from the care of the wife until further order and upon any breach the Marshall of the Family Court of Australia, all Officers of the Australian Federal Police and all Officers of the State and Territory Police are authorised and directed to arrest the husband without a warrant.
That the orders made 8 June 2018 do operate until further order.
That the wife cause all rental income payable by the tenants of the property situate at D Street, Suburb E, South Australia, … to be paid into the account held with…

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: EULALI & EULALI [2018] FamCA 512
Case: [2018] FamCA 512
Decision Date: 13 July 2018

CaseChat Overview and Summary

The parties, the father and the mother, were in dispute concerning their children who had been taken from Australia to Country H. The central issue was whether the parents intended to return to Australia after a holiday to Country H, with the children subsequently acquiring citizenship in Country H. The matter came before Berman J.

The court was required to determine several legal issues. These included whether the children had been wrongfully removed from Australia within the meaning of the Hague Convention, and consequently, whether they should be returned to Australia. Additionally, the court considered whether an injunction should be granted to restrain the father from returning to Country H, assessing the likelihood of his return to Australia if permitted to depart. The court also addressed interim property matters, including whether to grant an injunction against dealing with property and to restrain the use of rental income.

Berman J considered the evidence regarding the parties' intentions concerning their return to Australia. The court applied principles of family law concerning child abduction under the Hague Convention, focusing on the habitual residence of the children and the wrongful removal. The court also applied principles relating to injunctive relief, assessing the risk of the father absconding and the need to preserve property pending final determination.

The court made orders regarding the children's return and granted an injunction restraining the father from leaving Australia. Further orders were made concerning the management of rental income.

Orders