VELLERS & VELLERS - [2019] FamCA 412

FAMILY COURT OF AUSTRALIA

VELLERS & VELLERS

[2019] FamCA 412

FAMILY LAW – PROPERTY – enforcement of previous orders – orders to restrict movement – enforcement of orders made in Australia in another jurisdiction – airport watch list – urgent ex parte application – orders made.

Family Law Rules 2004 (Cth) r 5.12.

Rahman & Rahman [2013] FamCAFC 162
Xuen & Chao (injunction in aid of enforcement) [2014] FamCA 798

APPLICANT:

Ms Vellers

RESPONDENT:

Mr Vellers

FILE NUMBER:

HBC

256

2019

DATE DELIVERED:

20 June 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

20 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Trezise

SOLICITOR FOR THE APPLICANT:

Wallace Wilkinson & Webster

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

No appearance

THE COURT ORDERS THAT THE FOLLOWING ORDERS WILL APPLY UNTIL 5 PM ON 3 JULY 2019:

The wife’s Initiating Application filed on 17 June 2019 be listed for hearing on 3 July 2019 at 9.15 am in Hobart.
Until further Order, the respondent, Mr Vellers (born … 1968) is restrained from leaving or attempting to leave the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by immediately registering the respondent on the Airport Watch List. It is directed that the Applicant’s solicitor, Ms Sally Rofe of Wallace, Wilkinson and Webster, serve a sealed copy of this Order on the Australian Federal Police.
The respondent must immediately deliver up to the Office Manager of the Hobart Registry of this Court, his Country B passport, his birth certificate and his Australian citizenship documents, original and copies (if any).
The respondent is restrained by injunction from applying for a passport from the government of the Country B, from any Country B authority, from the Commonwealth of Australia and from any other source.
The costs of the applicant are reserved until further hearing.
The solicitor for the wife is to serve a copy of these orders upon the solicitor for the father by close of business today.

THE COURT NOTES THAT:

A.The wife has provided an undertaking as to damages that will apply until 5pm on 3 July 2019

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 Vellers & Vellers 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 SYDNEY

FILE NUMBER: HBC 256 of 2019

Ms Vellers

Applicant

And

Mr Vellers

Respondent

EX TEMPORE REASONS FOR JUDGMENT

introduction

The matter before the court concerns an application by Ms Vellers…

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 VELLERS & VELLERS

Details

AGLC: VELLERS & VELLERS [2019] FamCA 412
Case: [2019] FamCA 412
Decision Date: 20 June 2019

CaseChat Overview and Summary

In *Vellers & Vellers*, the wife sought urgent ex parte orders from the Federal Circuit Court of Australia to prevent the respondent husband from leaving Australia. The dispute concerned the enforcement of previous orders, with the wife specifically requesting measures to restrict the husband's movement, including his placement on an airport watch list.

The court was required to determine whether to grant urgent injunctive relief to restrain the respondent from leaving the Commonwealth of Australia and to order the surrender of his passports and citizenship documents. The court also had to consider the appropriate mechanism for enforcing such orders, particularly in relation to international travel restrictions.

McClelland DCJ reasoned that the wife had established a sufficient basis for the urgent, ex parte orders sought, given the potential for the respondent to depart Australia and frustrate the court's previous orders. The court applied principles relating to the grant of interlocutory injunctions, requiring the applicant to demonstrate a serious question to be tried and that the balance of convenience favoured the granting of the injunction. The court also considered its power to make orders for the enforcement of its own judgments and to prevent a party from frustrating those judgments.

The court ordered that the respondent be restrained from leaving or attempting to leave the Commonwealth of Australia until further order, with a request to the Australian Federal Police to place him on the Airport Watch List. The respondent was also ordered to deliver up his Country B passport, birth certificate, and Australian citizenship documents, and was restrained from applying for any passports. The wife provided an undertaking as to damages, and the costs of the applicant were reserved.

Orders

Orders of the court

THE COURT ORDERS THAT THE FOLLOWING ORDERS WILL APPLY UNTIL 5 PM ON 3 JULY 2019:

The wife’s Initiating Application filed on 17 June 2019 be listed for hearing on 3 July 2019 at 9.15 am in Hobart.

Until further Order, the respondent, Mr Vellers (born … 1968) is restrained from leaving or attempting to leave the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by immediately registering the respondent on the Airport Watch List. It is directed that the Applicant’s solicitor, Ms Sally Rofe of Wallace, Wilkinson and Webster, serve a sealed copy of this Order on the Australian Federal Police.

The respondent must immediately deliver up to the Office Manager of the Hobart Registry of this Court, his Country B passport, his birth certificate and his Australian citizenship documents, original and copies (if any).

The respondent is restrained by injunction from applying for a passport from the government of the Country B, from any Country B authority, from the Commonwealth of Australia and from any other source.

The costs of the applicant are reserved until further hearing.

The solicitor for the wife is to serve a copy of these orders upon the solicitor for the father by close of business today.

THE COURT NOTES THAT:

A. The wife has provided an undertaking as to damages that will apply until 5pm on 3 July 2019

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 Vellers & Vellers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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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