MANKUS & MATULIS - [2015] FamCA 217

FAMILY COURT OF AUSTRALIA

MANKUS & MATULIS

[2015] FamCA 217

FAMILY LAW – CHILDREN – forum for the determination of parenting proceedings - removal of children from Country E by the mother to Australia – where the children and parents are Country E and have permanent residence in Australia – where the mother says there was a long held plan for the family to move to Australia – where the father wrote letters of support for a child of the marriage to be granted permanent residency in Australia – where some children are Australian citizens – where the mother says she will not return to Country E – meaningful relationship with both parents – time between now and the finalisation of proceedings – change in circumstances – practical difficulty and expense – best interests of the children.

Family Law Act 1975 (Cth) ss 11F, 60CC

G & C [2006] FamCA 994.
Killam and Loeng [2015] FamCAFC 41
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Pascarl & Oxley (2013)FLC 93-536
Zanda & Zanda [2014] FamCAFC 173
ZP v PS (1994) 181 CLR 639

APPLICANT:

Ms Mankus

RESPONDENT:

Mr Matulis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

5648

2014

DATE DELIVERED:

1 April 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

20 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shroder

SOLICITOR FOR THE APPLICANT:

Smythe Wozniak Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Tockar

SOLICITOR FOR THE RESPONDENT:

Owen Hodge Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms DeVere

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Parramatta

Orders

That the forum in relation to the application for final orders filed 24 November 2014 is the Family Court of Australia.
That the father is restrained from continuing with or prosecuting any application in relation to parenting orders concerning the children B (born … 2006), C (born … 2009) and D (born … 2009) in the Family Division of the High Court of Country E.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mankus & Matulis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5648 of 2014

Ms Mankus

Applicant

And

Mr Matulis

Respondent

REASONS FOR JUDGMENT

Introduction

The parents, who separated in December 2012 after a 12 year marriage, are in dispute about the future parenting of their three children, B, who is eight and twins C and D who are five. This is an application for a determination in relation to the forum in which that parenting dispute is to be heard.
The father has commenced family law proceedings, including parenting proceedings in Country E, and wishes for the parenting dispute to be resolved in that country. The mother has commenced parenting proceedings in the Family Court and seeks for those proceedings to be determined in…

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 MANKUS & MATULIS

Details

AGLC: MANKUS & MATULIS [2015] FamCA 217
Case: [2015] FamCA 217
Decision Date: 1 April 2015

CaseChat Overview and Summary

In *Mankus & Matulis*, the Family Court of Australia was asked to determine the appropriate forum for parenting proceedings concerning three children. The mother had removed the children from Country E to Australia, where both parents held permanent residency and some of the children were citizens. The mother expressed an intention not to return to Country E, citing a long-held plan for the family's relocation and the father's prior support for one child's permanent residency in Australia.

The central legal issues before the court were whether Australia was the appropriate forum for the determination of parenting orders, and whether the father should be restrained from pursuing parenting proceedings in Country E. The court was required to consider the best interests of the children, including the existence of a meaningful relationship with both parents, the practical difficulties and expense of litigating in multiple jurisdictions, and any changes in circumstances since the children's relocation.

Justice Hannam determined that the Family Court of Australia was the appropriate forum for the final parenting orders. The court reasoned that the children's permanent residency and citizenship in Australia, coupled with the mother's firm intention not to return to Country E, weighed heavily in favour of Australian jurisdiction. The practical difficulties and expense of litigating in Country E, and the potential disruption to the children's lives, were also significant considerations.

Accordingly, the court ordered that the forum for the application for final orders filed on 24 November 2014 was the Family Court of Australia. Furthermore, the father was restrained from continuing with or prosecuting any application in relation to parenting orders concerning the children in the Family Division of the High Court of Country E.

Orders

Orders of the court

That the forum in relation to the application for final orders filed 24 November 2014 is the Family Court of Australia.

That the father is restrained from continuing with or prosecuting any application in relation to parenting orders concerning the children B (born … 2006), C (born … 2009) and D (born … 2009) in the Family Division of the High Court of Country E.

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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