Fallon & Bashandi - [2013] FamCA 672

FAMILY COURT OF AUSTRALIA

FALLON & BASHANDI

[2013] FamCA 672

FAMILY LAW – INJUNCTIONS – Injunction refusing permission to leave Australia where wife and child in Egypt and unable to leave because of travel ban imposed by that country at the request of the husband – Jurisdiction to make order.

FAMILY LAW – ORDERS – Question of ex parte orders made on evidence which was questionable.

FAMILY LAW – CHILDREN – mother and child in Egypt and unable to leave – appropriate power to make order for child to live with the mother pending further order.

Family Law Act 1975 (Cth)

Glover and Walters (1950) 80 CLR 172
Goode and Goode (2006) FLC 93-286
Khademollah v Khademollah (2000) 26 Fam LR 686 ; (2000) FLC 93-050 ; [2000] FamCA 1045

APPLICANT:

Ms Fallon

RESPONDENT:

Mr Bashandi

FILE NUMBER:

MLC

6992

2013

DATE DELIVERED:

9 September 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

2, 6 and 9 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms O'Connell

SOLICITOR FOR THE APPLICANT:

Oakfair Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Boden

SOLICITOR FOR THE RESPONDENT:

Starnet Legal

Orders

The wife is permitted to formally advise the Australian Government authorities along with the Consulate-General of the Arab Republic of Egypt in Melbourne of the precise details of the case including orders and in due course, these reasons.
The husband forthwith do all acts and things necessary to complete a power of attorney with the assistance of the Consulate-General of the Arab Republic of Egypt in Melbourne (if he or she will so assist) to authorise and direct a person of his choice to take all necessary steps to withdraw the case against the wife (Ms Fallon) and the child Z which bans their travel from Egypt and for that purpose, to set out the relevant number of the case and further, that the husband sign any necessary document for the purposes of supporting that power of attorney indicating that he has no objection for the said Ms Fallon and the child Z to travel immediately out of Egypt.
That the husband Mr Bashandi born … 1977 (male) is restrained by injunction from leaving the Commonwealth of Australia and IT IS REQUESTED THAT the Australian Federal Police place and retain pursuant to the order of 20 August 2013 the name of Mr Bashandi on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain his name on the Watch List UNTIL FURTHER ORDER OF THE COURT.
That the husband forthwith comply with paragraph 3 of the orders of the Federal Circuit Court of Australia made on 20 August 2013 and surrender all and any passports he has to the Registrar of the Family Court of Australia at the Melbourne Registry.
That until further order, the order made 20 August 2013 is varied for the child to live with the wife.
That the husband has liberty to apply at…

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 Fallon & Bashandi

Details

AGLC: FALLON & BASHANDI [2013] FamCA 672
Case: [2013] FamCA 672
Decision Date: 9 September 2013

CaseChat Overview and Summary

In the matter of *Fallon & Bashandi*, heard by Cronin J, the dispute concerned a wife and child who were in Egypt and unable to leave due to a travel ban imposed by that country at the husband's request. The wife sought orders from the Australian court to facilitate their departure from Egypt and to address the husband's actions.

The court was required to determine whether it had jurisdiction to make orders concerning the wife and child's ability to leave Egypt, given their location. Further issues included the appropriateness of ex parte orders made on potentially questionable evidence and the power to make orders for the child to live with the mother pending further determination.

Cronin J reasoned that the court possessed jurisdiction to make orders in this matter, particularly concerning the husband's conduct within Australia and his ability to influence the wife and child's situation in Egypt. The court applied principles relating to the court's power to restrain a party within its jurisdiction from taking actions that would prevent a child from returning to Australia or that would otherwise prejudice the child's welfare. The court also considered the need to ensure the child's living arrangements were with the mother pending further orders.

The court made several orders, including permitting the wife to notify Australian and Egyptian authorities of the case details and requiring the husband to take steps to withdraw the travel ban on the wife and child from Egypt. The husband was restrained from leaving Australia and ordered to surrender his passports. The existing order for the child to live with the wife was continued until further order. The court also adjourned the substantive application but dismissed the application for interim orders, while granting the husband leave to seek parenting orders.

Orders

Orders of the court

The wife is permitted to formally advise the Australian Government authorities along with the Consulate-General of the Arab Republic of Egypt in Melbourne of the precise details of the case including orders and in due course, these reasons.

The husband forthwith do all acts and things necessary to complete a power of attorney with the assistance of the Consulate-General of the Arab Republic of Egypt in Melbourne (if he or she will so assist) to authorise and direct a person of his choice to take all necessary steps to withdraw the case against the wife (Ms Fallon) and the child Z which bans their travel from Egypt and for that purpose, to set out the relevant number of the case and further, that the husband sign any necessary document for the purposes of supporting that power of attorney indicating that he has no objection for the said Ms Fallon and the child Z to travel immediately out of Egypt.

That the husband Mr Bashandi born … 1977 (male) is restrained by injunction from leaving the Commonwealth of Australia and IT IS REQUESTED THAT the Australian Federal Police place and retain pursuant to the order of 20 August 2013 the name of Mr Bashandi on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain his name on the Watch List UNTIL FURTHER ORDER OF THE COURT.

That the husband forthwith comply with paragraph 3 of the orders of the Federal Circuit Court of Australia made on 20 August 2013 and surrender all and any passports he has to the Registrar of the Family Court of Australia at the Melbourne Registry.

That until further order, the order made 20 August 2013 is varied for the child to live with the wife.

That the husband has liberty to apply at any time on short notice to Justice Cronin to discharge paragraph 3 of these orders.

The wife has liberty to apply on short notice to seek further orders for the implementation and enforcement of these orders.

The application of the wife filed 20 August 2013 and the response of the husband filed 6 September 2013 be adjourned to a Registrar’s Directions Hearing at 10.00am on 11 October 2013 but the application for interim orders and the interim response thereto are otherwise dismissed.

The husband has leave to also seek to file an amended response seeking parenting orders if he so desires.

10.

That the reasons this day be expedited and be made available to all parties.

Background

Background to the litigation

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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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