Unidi and Amali - [2019] FamCA 217

FAMILY COURT OF AUSTRALIA

UNIDI & AMALI

[2019] FamCA 217

FAMILY LAW – JURISDICTION – PARENTING – Where parenting proceedings commenced by mother in Australia and father in Country B, a non-Hague Convention country – Where the child has been living in Country B with her relatives since early 2018 – Application adjourned and parties at liberty to re-list application if child is in Australia.

Family Law 1975, s.111CD

Zaro & Zan [2019] FamCA 4

APPLICANT:

Ms Unidi

RESPONDENT:

Mr Amali

FILE NUMBER:

BRC

14418

2018

DATE DELIVERED:

1 March 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

1 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Gunn

SOLICITOR FOR THE APPLICANT:

Bhardwaj and Associates Lawyers

COUNSEL FOR THE RESPONDENT:

Mr F Dzelalija

SOLICITOR FOR THE RESPONDENT:

Tonio Lawyers

Orders

That the Application of the mother filed 11 December 2018 and amended on 15 February 2019 and the father’s Response filed 1 February 2019 and amended on 27 February 2019 be adjourned to the Registrar’s List on a date to be fixed.
Either party may seek to have this matter relisted before the Honourable Justice Baumann (and if his Honour is unavailable, before another Justice of the Family Court of Australia) not earlier than seven (7) days after the child X (born … 2014) has been returned to the Commonwealth of Australia from Country B.
That the costs of today be reserved.

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 Unidi & Amali 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 BRISBANE

FILE NUMBER: BRC 14418 of 2018

Ms Unidi

Applicant

And

Mr Amali

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from oral reasons delivered)

A little girl, X (born in 2014, and therefore nearly five years of age) was born in Country B; has Australian citizenship but has been living in Country B which is a non-Hague Convention country since 2 January 2018.
No proceedings were filed in this Court until the mother filed an application on 11 December 2018 some 11 months after the child went to Country B. During 2018 the evidence is, and I accept, that the mother visited the child in Country B on three separate occasions: in March, August and then October 2018. As recently as 1 January 2019 the father, who was also born in Country B but who is working in Australia and has done so for some time, commenced proceedings in Country B for the “

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 Unidi and Amali

Details

AGLC: Unidi and Amali [2019] FamCA 217
Case: [2019] FamCA 217
Decision Date: 1 March 2019

CaseChat Overview and Summary

In the matter of *Unidi and Amali*, heard before Baumann J of the Family Court of Australia, the dispute concerned parenting arrangements for a child, X, born in 2014. The mother had filed an application on 11 December 2018, which was amended on 15 February 2019, while the father filed a response on 1 February 2019, also amended on 27 February 2019.

The central legal issue before the court was the determination of parenting orders, particularly in light of the child X's presence outside of the Commonwealth of Australia in "Country B". The court was required to consider the appropriate course of action for the parenting proceedings, taking into account the child's location and the implications for the court's jurisdiction and the welfare of the child.

Baumann J adjourned the proceedings to the Registrar's List on a date to be fixed. The court stipulated that either party could seek to relist the matter before his Honour, or another Justice of the Family Court of Australia, no earlier than seven days after the child X had been returned to the Commonwealth of Australia from Country B. The costs of the hearing were reserved.

Orders

Orders of the court

That the Application of the mother filed 11 December 2018 and amended on 15 February 2019 and the father’s Response filed 1 February 2019 and amended on 27 February 2019 be adjourned to the Registrar’s List on a date to be fixed.

Either party may seek to have this matter relisted before the Honourable Justice Baumann (and if his Honour is unavailable, before another Justice of the Family Court of Australia) not earlier than seven (7) days after the child X (born … 2014) has been returned to the Commonwealth of Australia from Country B.

That the costs of today be reserved.

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

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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