MHAMBREY & VAIRAJA

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.