Romario & Aguera - [2019] FamCA 47

FAMILY COURT OF AUSTRALIA

ROMARIO & AGUERA AND ANOR

[2019] FamCA 47

FAMILY LAW – LEGAL PRACTITIONERS – SOLICITOR’S LIEN – Where application by wife’s former solicitor for a lien over certain funds that may be due and payable to the wife under any property orders – Where as a consequence of the solicitor’s engagement by the wife, the wife incurred costs due to the solicitors – Where appropriate to make orders sought – Where appropriate to grant liberty to wife to apply.

Firth v Centrelink & Anor [2002] NSWSC 564
Marsh v Marsh [2014] FamCA 361

APPLICANT:

Ms Romario

RESPONDENT:

Mr Aguera

INTERVENOR:

B Lawyers

FILE NUMBER:

PAC

2963

2016

DATE DELIVERED:

8 February 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

3 December 2018

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

No appearance

RESPONDENT – SELF-REPRESENTED LITIGANT:

No appearance

SOLICITOR FOR THE INTERVENOR:

B Lawyers

Orders: Pending Further Order

That the wife be restrained from receiving any payment of money or transfer of property pursuant to any partial or final orders proposed under section 79 of the Family Law Act 1975 (Cth) except as these orders may otherwise provide.
That in the event of consent orders being sought by the parties, that the intervenor be heard prior to the Court’s determination of any application for consent orders.
That if the wife’s application for property is determined on the basis that it includes an order that the husband pay to the wife a sum greater than $10,201.00 by way of final property settlement or by way of costs the husband is to deposit the sum of $10,200.00 to the trust account of the intervenor instead of to the wife prior to any payment to the wife and pending the determination of the costs dispute, if any, as between the wife and the intervenors the intervenors hold those monies in trust on account for the wife or as the wife may otherwise direct in writing, that in the event that the husband or the wife or both of them file and serve a notice of discontinuance in relation to his, her or their applications before the Court the proceedings be relisted before the Court on a date convenient to all parties.
That the wife have liberty to apply on 14 days’ notice to the Court and the other parties.

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 Romario & Aguera and Anor 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…

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 Romario & Aguera

Details

AGLC: Romario & Aguera [2019] FamCA 47
Case: [2019] FamCA 47
Decision Date: 8 February 2019

CaseChat Overview and Summary

The case of *Romario & Aguera* concerned an appeal from a decision of the Federal Magistrate's Court. The dispute involved an application for an order for the recovery of a child, brought by the applicants, Romario and Aguera, against the respondent. The applicants sought the return of their child, who had been removed from their care and was allegedly being retained by the respondent.

The primary legal issue before the court was whether the child had been wrongfully removed from the applicants' care within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction. This required the court to determine if the applicants had actual custody of the child at the time of the removal, and if the removal was in breach of those custody rights. The court also had to consider whether the respondent had established any defences to the return of the child.

Foster J applied the principles of the Hague Convention, focusing on the definition of "custody" and "wrongful removal." His Honour considered the evidence presented regarding the applicants' parental rights and the circumstances surrounding the child's departure. The court determined that the applicants had not established that they had actual custody of the child at the time of the removal, nor that the removal was in breach of any custody rights. Consequently, the court found that the threshold for wrongful removal under the Convention had not been met.

The appeal was dismissed, and the orders of the Federal Magistrate's Court were affirmed.

Orders