BHATT & SANT - [2016] FamCA 327

FAMILY COURT OF AUSTRALIA

BHATT & SANT

[2016] FamCA 327

FAMILY LAW – CHILDREN – INJUNCTIONS - Application by the mother that she be permitted to travel with the child to India and for the removal of the child’s name from the Airport Watch List – application opposed by the father and the Independent Children’s Lawyer – s 68B considered – where the mother recently abandoned an application to relocate to India – where the mother says she wishes to travel to India for the purpose of visiting her ill father and to take the child to a place of religious importance – where the child is of a young age – where the father’s relationship with the child is still developing – best interests of the child considered – mother’s application dismissed

Family Law Act 1975 (Cth)

Flanagan & Handcock (2001) FLC 93-074; [2000] FamCA 150

APPLICANT:

Ms Bhatt

RESPONDENT:

Mr Sant

INDEPENDENT CHILDREN’S LAWYER:

Perry Weston Lawyers

FILE NUMBER:

MLC

8620

2014

DATE DELIVERED:

11 May 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

8 April 2016

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wiener

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Perry Weston Lawyers

Orders

IT IS ORDERED THAT

That paragraph 4 and 5 of the orders made by Senior Registrar FitzGibbon dated 14 December 2015 be discharged.
Until further order the mother MS BHATT born … 1989 and the father MR SANT born … 1985 themselves, their servants and/or agents, be and are hereby restrained from removing the child D (female) born … 2014 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.
As soon as practicable the Court forward a copy of this order to the Australian Federal Police.
The mother and the father have liberty to apply to remove the child’s name from the Airport Watch List.
The mother’s Application in a Case filed 15 March 2016 and her oral application made on 22 March 2016 be dismissed and removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

*These orders have been amended where underlined to accord with the orders as pronounced by the Honourable Justice Macmillan on 11 May 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bhatt & Sant has been approved…

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 BHATT & SANT

Details

AGLC: BHATT & SANT [2016] FamCA 327
Case: [2016] FamCA 327
Decision Date: 11 May 2016

CaseChat Overview and Summary

In the Family Court of Australia, Justice Macmillan considered an application by the mother, Ms Bhatt, for permission to travel with the child, D, to India and for the removal of D's name from the Airport Watch List. This application was opposed by the father, Mr Sant, and the Independent Children’s Lawyer. The mother sought to travel to India to visit her ill father and take the child to a place of religious significance, having recently abandoned a prior application to relocate to India.

The central legal issues before the court were whether it was in the best interests of the child, D, to permit her removal from Australia, and consequently, whether D's name should remain on the Airport Watch List. The court was required to consider the provisions of s 68B of the Family Law Act 1975 (Cth), which pertains to the best interests of the child, in light of the child's young age and the developing relationship between the father and the child.

Justice Macmillan dismissed the mother's application, finding that it was not in the child's best interests to permit international travel. The court's reasoning appears to have been influenced by the mother's prior unsuccessful attempt to relocate the child to India, the child's tender age, and the importance of maintaining the father's relationship with the child. The court ordered that the mother and father be restrained from removing the child from Australia and that the child's name remain on the Airport Watch List until further order. The mother's application was dismissed.

Orders

Orders of the court

IT IS ORDERED THAT

That paragraph 4 and 5 of the orders made by Senior Registrar FitzGibbon dated 14 December 2015 be discharged.

Until further order the mother MS BHATT born … 1989 and the father MR SANT born … 1985 themselves, their servants and/or agents, be and are hereby restrained from removing the child D (female) born … 2014 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.

As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

The mother and the father have liberty to apply to remove the child’s name from the Airport Watch List.

The mother’s Application in a Case filed 15 March 2016 and her oral application made on 22 March 2016 be dismissed and removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

*These orders have been amended where underlined to accord with the orders as pronounced by the Honourable Justice Macmillan on 11 May 2016.

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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