Michaels and Carey - [2009] FMCAfam 577

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MICHAELS & CAREY

[2009] FMCAfam 577

FAMILY LAW – Discharge of injunction – meaning of ‘pending further order’ – use of an injunction as an ‘insurance’ – failure to comply with previous orders.

Family Law Act 1975, ss.66C, 68 & 114

MJ & JBD (2005) 32 Fam LR 617
Millar & Millar (1983) FLC 91-326
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
Waugh & Waugh [2000] FamCA 1183

Applicant:

MR MICHAELS

Respondent:

MS CAREY

File Number:

SYC 6294 of 2007

Judgment of:

Kemp FM

Hearing date:

1 June 2009

Date of Last Submission:

1 June 2009

Delivered at:

Sydney

Delivered on:

12 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr Battley

Solicitors for the Applicant:

Shad Partners

Counsel for the Respondent:

Mr Dura

Solicitors for the Respondent:

Cameron Gillingham & Boyd

ORDERS

That orders 2, 3, 4, and 5 made on 8 May 2009 be discharged, upon the father’s compliance with order 4 below.
That the father’s passport be returned, upon the father’s compliance with order 4 below.
That orders 6, 7 and 8 made on 19 September 2007 be discharged, upon the father’s compliance with Order 4 below.
That the father within 24 hours provide a written undertaking to the Court that he will prosecute his parenting proceedings before this Court (“without prejudice” to his right to argue that the determination of the Legal Court of El Minieh Sheik Tarek El Kheir in its decision of

28 February 2008 has ousted this Court’s jurisdiction as to parenting matters) and that he will cause the children, [X] [born in 2003] and [Y] [born in 2005] to travel to Australia within 28 days of today’s date (or such further time as he applies to the Court and the Court grants) for the purposes of the preparation of a family report pursuant to Order 5 below, with the costs of such travel to be met by agreement between the parties or failing agreement pursuant to further order.
That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s.60CC of the Act. The father to notify my Associate of the dates when the children will be physically in Australia.
That the parties send copies of all of their court documents to the Family Consultant within 3 days of being requested to do so by the Family Consultant.
That for the purpose of completing a Family Report, the Family Consultant is granted leave to inspect the court file and all documents produced on subpoena (once leave to inspect has been granted to at least one other party in the matter).
I DIRECT that the legal representatives for the parties confirm with the Family Consultant no later than…

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 Michaels and Carey

Details

AGLC: Michaels and Carey [2009] FMCAfam 577
Case: [2009] FMCAfam 577
Decision Date: 12 June 2009

CaseChat Overview and Summary

The case of Michaels and Carey was heard in the Family Court of Australia, involving a dispute between the father, an Australian citizen, and the mother, a resident of Egypt, over the care and custody of their two children, [X] and [Y]. The father sought to have the children brought to Australia for the purposes of a family report, while the mother contested this on the basis that an Egyptian court had already made a decision regarding the children's care. The court was tasked with deciding whether the Egyptian court's decision was binding on the Australian court and whether it should decline jurisdiction over the parenting matter.

The primary legal issue was whether the Australian court should recognise and give effect to the decision of the Egyptian court, and whether it should decline jurisdiction in light of that decision. The court considered the principles of international child abduction and the relevance of the Hague Convention on the Civil Aspects of International Child Abduction. It also needed to determine whether the Australian court had jurisdiction to make orders regarding the children's care and whether it was appropriate to order the children to travel to Australia for a family report.

The court concluded that the decision of the Egyptian court was not binding on the Australian court, and that the Australian court had jurisdiction to make orders regarding the children's care. It held that it was in the best interests of the children to travel to Australia for the preparation of a family report, and that the father should provide a written undertaking to prosecute his parenting proceedings in Australia. The court also ordered that the parties and children attend a Family Consultant for a Family Report and set out detailed orders regarding the conduct of the proceedings and the costs associated with the children's travel.

The court discharged several previous orders and set out new orders for the father to comply with, including returning his passport and attending a Family Consultant. The court listed the matter for a future hearing to determine the threshold issue of jurisdiction and the binding nature of the Egyptian court's decision. It also granted the parties leave to apply for further orders and set a mention date for the case.

Orders

Orders of the court

That orders 2, 3, 4, and 5 made on 8 May 2009 be discharged, upon the father’s compliance with order 4 below.

That the father’s passport be returned, upon the father’s compliance with order 4 below.

That orders 6, 7 and 8 made on 19 September 2007 be discharged, upon the father’s compliance with Order 4 below.

That the father within 24 hours provide a written undertaking to the Court that he will prosecute his parenting proceedings before this Court (“without prejudice” to his right to argue that the determination of the Legal Court of El Minieh Sheik Tarek El Kheir in its decision of

28 February 2008 has ousted this Court’s jurisdiction as to parenting matters) and that he will cause the children, [X] [born in 2003] and [Y] [born in 2005] to travel to Australia within 28 days of today’s date (or such further time as he applies to the Court and the Court grants) for the purposes of the preparation of a family report pursuant to Order 5 below, with the costs of such travel to be met by agreement between the parties or failing agreement pursuant to further order.

That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s.60CC of the Act. The father to notify my Associate of the dates when the children will be physically in Australia.

That the parties send copies of all of their court documents to the Family Consultant within 3 days of being requested to do so by the Family Consultant.

That for the purpose of completing a Family Report, the Family Consultant is granted leave to inspect the court file and all documents produced on subpoena (once leave to inspect has been granted to at least one other party in the matter).

I DIRECT that the legal representatives for the parties confirm with the Family Consultant no later than 3 days prior to the scheduled interviews that the interviews will proceed on the dates allocated.

That the children, when attending in Australia pursuant to order 5 above, will spend time with the mother as agreed between the parties.

10.

That the proceedings be listed for determination of the threshold issue as to whether the decision of the Legal Court of El Minieh Sheik Tarek El Kheir in its decision of 28 February 2008 is binding on the parties and whether this Court should decline to exercise its jurisdiction as to parenting matters.

11.

That the parties have leave to apply on three days written notice to seek such further or other orders and/or directions as are necessary to implement these orders.

12.

That the matter be listed for mention 3 August 2009 at 9.30am.

13.

The parties’ costs of the father’s application in a case are reserved.

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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