Morrall and Olmos - [2016] FamCA 1019

FAMILY COURT OF AUSTRALIA

MORRALL & OLMOS

[2016] FamCA 1019

FAMILY LAW – CHILDREN – Application for a stay of orders pending appeal– where the application for a stay is heard by the trial judge

Family Law Act 1975 (Cth)

Cape & Cape [2013] FamCAFC 114

APPLICANT:

Mr Morrall

RESPONDENT:

Ms Olmos

FILE NUMBER:

BRC

11732

2012

DATE DELIVERED:

24 November 2016

PLACE DELIVERED:

Hobart

PLACE HEARD:

Launceston – the applicant by video-link from the Sydney Registry and the respondent by video-link from the Canberra Registry

JUDGMENT OF:

Benjamin J

HEARING DATE:

16 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Dobinson Davey Clifford Simpson

COUNSEL FOR THE RESPONDENT:

Mr Page QC

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

The father’s application to stay the orders made in this Court on 23 September 2016 is dismissed.
Order pending the outcome of the appeal on the mother’s oral application an order that;
2.1The mother will return B born … 2010 (‘the child’) to Australia in the event that the appeal by the father against the orders made 23 September 2016 is successful and an order is made for the return the child to Australia either by the Full Court of the Family Court of Australia or by a court to which any parenting and relocation proceedings may be remitted for rehearing.
2.2Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Costs of this application are reserved.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: BRC 11732 of 2012

Mr Morrall

Applicant

And

Ms Olmos

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Morrall (‘the father’) and Ms Olmos (‘the mother’) have been engaged in litigation regarding their daughter the child (‘the child’) who is now aged six.
After a lengthy hearing before me in Canberra between April, May and July 2016 reasons were delivered and orders were made on 23 September…

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 Morrall and Olmos

Details

AGLC: Morrall and Olmos [2016] FamCA 1019
Case: [2016] FamCA 1019
Decision Date: 24 November 2016

CaseChat Overview and Summary

In the matter of *Morrall and Olmos*, Benjamin J of the Family Court of Australia considered an application by the father to stay orders previously made on 23 September 2016. The mother also made an oral application for an order pending the outcome of an appeal.

The primary legal issue before the Court was whether to grant the father's application to stay the existing orders. Additionally, the Court was required to determine the terms of an order concerning the child's return to Australia, contingent upon the success of the father's appeal against the September 2016 orders.

Benjamin J dismissed the father's application to stay the orders. However, the Court made an order pending the outcome of the father's appeal. This order stipulated that the mother would return the child to Australia if the father's appeal was successful and an order for the child's return was made by the Full Court of the Family Court of Australia or a remitted court. The Court also included particulars of obligations, consequences of contravention, and assistance for compliance, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975* (Cth), as detailed in an attached Fact Sheet. Costs of the application were reserved, and it was certified that engaging senior counsel and counsel was reasonable.

Orders

Orders of the court

The father’s application to stay the orders made in this Court on 23 September 2016 is dismissed.

Order pending the outcome of the appeal on the mother’s oral application an order that;

2.1 The mother will return B born … 2010 (‘the child’) to Australia in the event that the appeal by the father against the orders made 23 September 2016 is successful and an order is made for the return the child to Australia either by the Full Court of the Family Court of Australia or by a court to which any parenting and relocation proceedings may be remitted for rehearing.

2.2 Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Costs of this application are reserved.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

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.