FAMILY COURT OF AUSTRALIA
| MHAMBREY & VAIRAJA | [2018] FamCAFC 120 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the father sought to adduce further evidence on the appeal – where the evidence sought to be adduced was not further evidence upon any question of fact – where the application did not meet the criteria for admission of further evidence on appeal as prescribed by the High Court – application dismissed. FAMILY LAW – APPEAL – CHILD ABDUCTION CONVENTION REGULATIONS – where the trial judge found the child was not habitually resident in the USA immediately prior to his removal from that country – where the father contended that the trial judge was in error in finding that the child became habitually resident in Canada prior to being removed to Australia – where the father contended that the trial judge gave insufficient or excessive weight to certain evidence in determining the dispositive issue – where the trial judge determined that there was no settled mutual intention on the part of the parents that the child would return to reside in the USA upon returning from Canada – where the trial judge’s findings as to the child assuming habitual residence in Canada, and not resuming habitual residence in the USA upon his return, were open to his Honour on the evidence – where it would not be legitimate for this Court to disturb the trial judge’s conclusion as to the dispositive issue – appeal dismissed – father to pay the mother’s costs of the appeal in the fixed sum of $11,000. |
| Family Law Act 1975 (Cth) ss 93A(2), 117(2), 117(2A) Convention on the Civil Aspects of International Child Abduction 1980 Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14(1)(a), 16(1A)(b), 16(2) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47 Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359; [1992] FCA 184 |
| APPELLANT: | Mr Mhambrey |
| RESPONDENT: | Ms Vairaja |
| FILE NUMBER: | PTW | 6220 | of | 2015 |
| APPEAL NUMBER: | WA | 14 | of | 2017 |
| DATE DELIVERED: | 5 July 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray, Murphy… |
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- MHAMBREY & VAIRAJA [2018] FamCAFC 120
- Case
- [2018] FamCAFC 120
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the child was habitually resident in the USA immediately before being removed to Canada and then Australia. A secondary issue was whether the trial judge erred in his determination of the dispositive issue, specifically whether the child became habitually resident in Canada prior to being removed to Australia. The father argued that the trial judge gave insufficient or excessive weight to certain evidence, and that there was a settled mutual intention between the parents for the child to return to reside in the USA.
The court found that the application to adduce further evidence did not meet the criteria prescribed by the High Court, and therefore dismissed the application. The court also found that the trial judge’s determination that the child had assumed habitual residence in Canada, and not resuming habitual residence in the USA upon his return, was open to his Honour on the evidence. The court held that it would not be legitimate to disturb the trial judge’s conclusion on the dispositive issue. Consequently, the father's appeal was dismissed, and he was ordered to pay the mother's costs of the appeal in the fixed sum of $11,000.
Orders
Orders of the court
1.
The father’s Application in an Appeal filed on 1 November 2017 to adduce further evidence be dismissed.
2.
The father’s appeal from the orders made by O’Brien J on 17 March 2017 be dismissed.
3.
The father pay the mother’s costs of the appeal proceedings in the fixed sum of $11,000 within thirty (30) days of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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