Bose & Mehra - [2010] FMCAfam 353

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BOSE & MEHRA

[2010] FMCAfam 353

FAMILY LAW – Children – overseas travel – application to take child out of jurisdiction – young child aged 17 months – proposed travel to India – India not a signatory to The Hague Convention.

Australian Citizenship Act 2007 (Cth) s.12
Family Law Act 1975 (Cth), ss.60CA, 60CC, 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) Sch. 2

Line & Line (1997) FLC 92-729

Applicant:

MS BOSE

Respondent:

MR MEHRA

File Number:

SYC 4385 of 2009

Judgment of:

Scarlett FM

Hearing date:

6 April 2010

Date of Last Submission:

6 April 2010

Delivered at:

Sydney

Delivered on:

20 April 2010

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

Orders 3, 4 and 5 made on 7 September 2009 are vacated.
The name of the child [X] born [in] 2008 is to be removed from the Airport Watch List also known as the PACE Alert system with effect from 10 May 2010.
The mother is permitted to take the child [X] born [in] 2008 out of the Commonwealth of Australia for the purposes of visiting India between 11 May and 30 May 2010.
The Australian Passports Office is requested to issue to the mother an Australian passport for the child [X] born [in] 2008 without the consent of the father.
The mother is to deposit the sum of FIVE THOUSAND DOLLARS ($5,000.00) with the Receiver of Public Moneys at the Registry of the Federal Magistrates Court in Sydney by 30 April 2010 to be held as security until the child returns to Australia.
If the said child is not returned to Australia by 1 June 2010 the father is permitted to apply on 2 June 2010 for the said sum of $5000.00 to be paid out to him.
After the said child is returned to Australia the mother is to deliver the child’s passport to the Registry of the Court in Sydney by 1 June 2010 and upon doing so she is permitted to apply for the said sum of $5000.00 be returned to her.
Whilst the mother and the child are in India the mother is to reside with her parents at [address omitted], India.
Whilst the mother is in India she is to telephone the father on three occasions each week one of which is to be a Saturday to allow him to speak to the child [X].
The mother is to advise the father by 10 May 2010 of the telephoner numbers and email address upon which she may be contacted whilst in India.
The substantive application filed on 24 July 2009 is listed for further mention at 10:00 am on Monday 21 June 2010.

IT IS NOTED that publication of this judgment under the pseudonym Bose & Mehra is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 4385 of 2009

MS BOSE

Applicant

And

MR MEHRA

Respondent

REASONS FOR JUDGMENT

Application

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 Bose & Mehra

Details

AGLC: Bose & Mehra [2010] FMCAfam 353
Case: [2010] FMCAfam 353
Decision Date: 20 April 2010

CaseChat Overview and Summary

In the matter of Bose & Mehra, the Federal Magistrates Court considered the application by the mother, Mehra, seeking permission for her to travel to India with her child, born in 2008, and to remove the child's name from the Airport Watch List. The application came before the Court as a result of a prior order made by the Court that had restricted the mother's ability to travel overseas with the child. The dispute primarily involved the interpretation and enforcement of that prior order, and the mother's request for permission to travel, as well as the father's concerns about the child's welfare and potential abduction.

The primary legal issue for the Court was to determine whether the mother should be granted permission to travel to India with the child, in light of the prior court order and the father's opposition. The Court also had to consider the implications of the child's name being on the Airport Watch List and whether this should be removed to facilitate the travel. The Court needed to balance the rights and welfare of the child against the rights of the mother and father, and to decide on appropriate conditions to ensure the child's safe return to Australia.

The Court concluded that the mother should be permitted to travel to India with the child, subject to specific conditions designed to safeguard the child's return to Australia. These conditions included the removal of the child's name from the Airport Watch List, the deposit of a sum of money as security, and requirements for regular communication between the father and the child. The Court also set out detailed provisions for the mother's residence and contact information while in India. The Court was satisfied that these conditions adequately protected the child's welfare and interests, and granted the mother's application accordingly.

In summary, the Court vacated certain prior orders and granted the mother permission to travel with the child to India, subject to specific conditions. The Court also ordered the removal of the child's name from the Airport Watch List, the issuance of a passport without the father's consent, and the deposit of a security sum. The mother was required to provide contact information and abide by a communication schedule with the father, and the child was to be returned to Australia by a specified date. The substantive application was listed for further mention to allow for any subsequent issues to be addressed.

Orders

Orders of the court

Orders 3, 4 and 5 made on 7 September 2009 are vacated.

The name of the child [X] born [in] 2008 is to be removed from the Airport Watch List also known as the PACE Alert system with effect from 10 May 2010.

The mother is permitted to take the child [X] born [in] 2008 out of the Commonwealth of Australia for the purposes of visiting India between 11 May and 30 May 2010.

The Australian Passports Office is requested to issue to the mother an Australian passport for the child [X] born [in] 2008 without the consent of the father.

The mother is to deposit the sum of FIVE THOUSAND DOLLARS ($5,000.00) with the Receiver of Public Moneys at the Registry of the Federal Magistrates Court in Sydney by 30 April 2010 to be held as security until the child returns to Australia.

If the said child is not returned to Australia by 1 June 2010 the father is permitted to apply on 2 June 2010 for the said sum of $5000.00 to be paid out to him.

After the said child is returned to Australia the mother is to deliver the child’s passport to the Registry of the Court in Sydney by 1 June 2010 and upon doing so she is permitted to apply for the said sum of $5000.00 be returned to her.

Whilst the mother and the child are in India the mother is to reside with her parents at [address omitted], India.

Whilst the mother is in India she is to telephone the father on three occasions each week one of which is to be a Saturday to allow him to speak to the child [X].

10.

The mother is to advise the father by 10 May 2010 of the telephoner numbers and email address upon which she may be contacted whilst in India.

11.

The substantive application filed on 24 July 2009 is listed for further mention at 10:00 am on Monday 21 June 2010.

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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