Ustinov & South Australian State Central Authority - [2008] FamCAFC 110

FAMILY COURT OF AUSTRALIA

USTINOV & SOUTH AUSTRALIAN STATE CENTRAL AUTHORITY

[2008] FamCAFC 110

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILD ABDUCTION – Central Authority – Children brought to Australia – Mother resided in Bulgaria – Father opposed application of Central Authority – Wishes of children not to return to Bulgaria – Trial Judge made orders designed to effect the return of the two children forthwith to Bulgaria – Father appealed – Whether the children were habitually resident in Bulgaria immediately before their removal – Whether on the evidence before the trial Judge her discretionary decision not to refuse to order the children’s return was wrong – Whether the trial Judge’s reasons were inadequate – Whether the finding that the children were not at grave risk upon their return was wrong – No merit in arguments on appeal – Appeal dismissed

FAMILY LAW - APPEAL – Application to adduce further evidence – Whether the further evidence demonstrated that the orders for the return of the children were and/or are wrong

Family Law (Child Abduction Convention) Regulations 1986, reg 16(1A), reg 16(3), reg 16(3)(c)

In Re M (FC) and Another (FC) (Children) (FC) [2007] UKHL 55

APPELLANT:

MR USTINOV

RESPONDENT:

COMMISSIONER OF POLICE AS SOUTH AUSTRALIAN STATE CENTRAL AUTHORITY

APPEAL NUMBER:

2008

FILE NUMBER:

ADC

4796

2007

DATE DELIVERED:

25 July 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Adelaide

JUDGMENT OF:

Bryant CJ, Finn and Warnick JJ

HEARING DATE:

30 June 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 April 2008

LOWER COURT MNC:

[2008] FamCA 257

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr McQuade

SOLICITOR FOR THE APPELLANT:

Lempriere Abbott McLeod

COUNSEL FOR THE RESPONDENT:

Mr Kourakis QC

SOLICITOR FOR THE RESPONDENT:

Crown Solicitors Office

Orders

That the appeal be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ustinov & South Australian State Central Authority is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 34 of 2008
File Number: ADC 4796 of 2007

MR USTINOV

Appellant

And

COMMISSIONER OF POLICE AS SOUTH AUSTRALIAN STATE CENTRAL AUTHORITY

Respondent

REASONS FOR JUDGMENT

On application by the State Central Authority pursuant to the Family Law (Child Abduction Convention) Regulations 1986, Dawe J made orders designed to effect the return of two children forthwith to Bulgaria. The application was brought at the request of the mother, Mrs Ustinov, who resided in Bulgaria. The father, Mr Ustinov who had brought the children from Bulgaria to Australia in mid‑2007, opposed the application of the Central Authority and these reasons relate to his appeal against Dawe J’s orders.
The Notice of Appeal contained 20 grounds and one paragraph numbered as a ground, but which merely notified the possibility of an application for leave to amend. However, Mr McQuade of counsel who appeared for the father indicated that there were three contentions in…

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.

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Details

Case: [2008] FamCAFC 110
Decision Date: 25 July 2008

CaseChat Overview and Summary

The appeal was brought by the father, challenging a decision made by the Family Court regarding the return of two children to Bulgaria, where their mother resided. The father opposed an application by the South Australian State Central Authority to return the children to Bulgaria. The children had expressed a wish not to return to Bulgaria, and the father argued that the trial judge’s decision to order their return was wrong. The father also contended that the trial judge's reasons were inadequate and that the finding that the children were not at grave risk upon their return was incorrect.

The central legal issues before the court were whether the children were habitually resident in Bulgaria immediately before their removal and whether the trial judge's discretionary decision not to refuse to order the children’s return was flawed. The court also needed to consider whether the trial judge's reasons were inadequate and whether the finding that the children were not at grave risk upon their return was erroneous. Additionally, the court examined whether further evidence presented during the appeal demonstrated that the orders for the return of the children were wrong.

The court found no merit in the father's arguments on appeal. The trial judge's decision was upheld as there was no error in her determination that the children were habitually resident in Bulgaria before their removal. The court considered the evidence and found that the trial judge's reasons were adequate, and her conclusion that the children were not at grave risk upon their return was supported by the evidence. The court also found that the additional evidence presented during the appeal did not change the outcome of the case. The appeal was dismissed, and the orders for the return of the children to Bulgaria were upheld.

Orders

Orders of the court

That the appeal be dismissed.

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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