MHAMBREY & VAIRAJA

Case [2018] FamCAFC 120


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
Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136
Caratti v Mammoth Investments Pty Ltd (2016) 309 FLR 1; [2016] WASCA 84
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359; [1992] FCA 184
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701; [2016] FamCAFC 57
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

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…

Continue reading MHAMBREY & VAIRAJA

Sign in free to access the full text

Details
AGLC
MHAMBREY & VAIRAJA [2018] FamCAFC 120
Case
[2018] FamCAFC 120
Decision Date

CaseChat Overview and Summary

Mhambrey & Vairaja involves a family law dispute heard in the Federal Circuit and Family Court of Australia. The father appealed against orders made by O’Brien J on 17 March 2017, which were related to the removal of their child from the United States of America and subsequent habitual residence in Canada before being brought to Australia. The father also sought to adduce further evidence on the appeal, which was subsequently dismissed.

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

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.