MACLEOD & MILLER - [2015] FCCA 581

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACLEOD & MILLER

[2015] FCCA 581

Catchwords:

FAMILY LAW – Parenting – interim proceedings – children believed to be in (country omitted) – father seeks to have injunction restraining him from leaving Australia lifted.

Legislation:

Family Law Act 1975, s.114(3)

Zanda & Zanda [2014] FamCAFC 173
Sampson & Hartnett (No.10) (2007) FLC 93-350

Applicant:

MS MACLEOD

Respondent:

MR MILLER

File Number:

MLC 9820 of 2014

Judgment of:

Judge Harland

Hearing date:

5 March 2015

Date of Last Submission:

5 March 2015

Delivered at:

Melbourne

Delivered on:

5 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr Horsfall

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

Ms Bourke

ORDERS

The matter is adjourned to 23 June 2015 at 9.30am for mention before Judge Bender.
The father shall provide any communication between himself and his family with respect to the children X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2012 to the mother’s solicitors within 7 days.
Liberty to apply is granted to the parties.

AND THE COURT NOTES THAT:

A.Pursuant to order 6 of the orders made on 12 December 2014, the father MR MILLER shall continue to remain on the Airport Watch List.

IT IS NOTED that publication of this judgment under the pseudonym Macleod & Miller is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9820 of 2014

MS MACLEOD

Applicant

And

MR MILLER

Respondent

REASONS FOR JUDGMENT

The children of the relationship X (“X”), aged 5 and twins Y (“Y”) and Z (“Z”), aged 3 are believed to be in (country omitted). Both their parents are currently in Australia.
The applicant mother commenced the proceedings on 30 October 2014, seeking injunctions restraining the father from leaving Australia and seeking the father to direct members of the paternal family to return the children to the mother in Australia.
The matter was first listed before Judge Bender on 31 October 2014. The court made several ex-parte orders on that day. Order 4 of those orders placed the father on the Airport Watch List. Order 5 required the children to be returned to Australia immediately and the father was required to do all acts and things necessary to direct members of his family to return the children to Australia.
Further directions were made in the matter on 14 November 2014 when the father appeared in person.
When the matter was next in court on 12 December 2014, both parties were represented. The court made further orders enabling the mother to travel to (country omitted) within 14 days to collect the children and return them to Australia. Orders noted that the Federal Attorney General’s Department had given the mother a grant of assistance of $11,400, for the purposes of travelling to (country omitted) and obtaining legal assistance in (country omitted).
The matter came before me on 5 March 2014. The children have not been…

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 MACLEOD & MILLER

Details

AGLC: MACLEOD & MILLER [2015] FCCA 581
Case: [2015] FCCA 581
Decision Date: 5 March 2015

CaseChat Overview and Summary

In this interim parenting matter before Judge Harland, the father, Mr Miller, sought to have an injunction restraining him from leaving Australia lifted. The dispute concerned the welfare of three children, X, Y, and Z, who were believed to be in a country not specified in the provided text.

The central legal issue before the court was whether the existing injunction preventing the father from leaving Australia should be continued or discharged. This required the court to consider the best interests of the children in the context of their presumed location abroad and the father's desire to travel.

Judge Harland's reasoning focused on the need to ensure the children's safety and well-being, particularly given their presumed location outside of Australia. The court maintained the Airport Watch List order against the father, indicating a continued concern for his potential departure and its impact on the children. The court also ordered the father to provide any communication with his family regarding the children to the mother's solicitors within seven days, and granted liberty to apply to both parties.

Orders

Orders of the court

The matter is adjourned to 23 June 2015 at 9.30am for mention before Judge Bender.

The father shall provide any communication between himself and his family with respect to the children X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2012 to the mother’s solicitors within 7 days.

Liberty to apply is granted to the parties.

AND THE COURT NOTES THAT:

A. Pursuant to order 6 of the orders made on 12 December 2014, the father MR MILLER shall continue to remain on the Airport Watch List.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.