Jatasra and Khosla - [2016] FamCA 865

FAMILY COURT OF AUSTRALIA

JATASRA & KHOSLA

[2016] FamCA 865

FAMILY LAW – CHILDREN – Relocation– Where the mother seeks an order to relocate the child to India – Where the father opposes the relocation order – Where the mother seeks to continue to be the primary carer of the child irrespective of the outcome of the relocation and the father seeks to be the primary carer – Where the mother has symptoms consistent with a Major Depressive Disorder and if she is forced to remain in Australia, she will function poorly and remain emotionally impoverished – Where the proposals as to relocation are finely balanced and risks to the child’s relationship with the father are to be weighed against the ability of the mother to act as primary carer in her current mental state – Allegations of violence - Where the best interests of the child will be met by allowing the relocation – Where orders are made providing for the father to spend time with the child in Australia prior to the child’s departure - Where orders are made providing for the father to spend time with the child in India – Where the mother will have sole parental responsibility for the child – Where the mother’s application for relocation is allowed

Family Law Act 1975 (Cth) s 60CC

A v A: Relocation Approach (2000) FLC 93-035
B v B Family Law Reform Act 1995 (1997) FLC 92-755
East v Loewe [2015] FamCA 517
Taylor & Barker (2007) 37 Fam LR 461
U v U (2002) FLC 93-112

APPLICANT:

Ms Jatasra

RESPONDENT:

Mr Khosla

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

TVC

1147

2012'

DATE DELIVERED:

11 August 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

10 & 11 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Howes

SOLICITOR FOR THE APPLICANT:

Rrr Lawyers

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ebejer and Associates

Orders

All previous parenting orders in relation to B born … 2011 (‘the child’) are discharged, and this discharge order specifically includes the discharge of the following orders:-
(a)Order 2 of orders made 8 September 2014 in the Federal Circuit Court that the passport of the child be held by the Melbourne Registry of the Court;
(b)Order 3 of the orders made 8 September 2014 in the Federal Circuit Court restraining the removal of the child from Australia; and
(c)Order 4 of the orders made 8 September 2014 in the Federal Circuit Court that the child be placed on the Australian Federal Police Watch List.
Ms Jatasra (‘the mother’) shall have sole parental responsibility for the child including:-
(a)permission to remove the child to and from Australia in her absolute discretion;
(b)obtaining a passport for the child in either Australia or in India; and
(c)all matters of education, health, welfare and development for and of the child.
The mother shall keep Mr…

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 Jatasra and Khosla

Details

AGLC: Jatasra and Khosla [2016] FamCA 865
Case: [2016] FamCA 865
Decision Date: 11 August 2016

CaseChat Overview and Summary

In the matter of Jatasra and Khosla, Benjamin J of the Family Court of Australia considered parenting orders concerning a child born in 2011. The dispute involved the mother, Ms Jatasra, and the father, Mr Khosla, regarding the child's future arrangements, including international relocation and parental responsibility.

The court was required to determine the extent of parental responsibility to be allocated, specifically whether the mother should have sole parental responsibility, including the ability to remove the child from Australia and obtain a passport. Further issues included the relocation of the child's habitual residence to India, the arrangements for the child to live with the mother, and the nature and extent of the father's future contact with the child, including provisions for supervised contact in India. The court also had to consider the discharge of existing orders that restricted the child's travel and placed them on an Australian Federal Police Watch List.

Benjamin J discharged all previous parenting orders, including those relating to the child's passport, the restraint on international removal, and the AFP Watch List. The court ordered that the mother have sole parental responsibility for the child, granting her the discretion to remove the child from Australia, obtain a passport, and make decisions regarding the child's education, health, welfare, and development. The mother was permitted to relocate the child's habitual residence to India, and the child was to live with her. The father was to be kept informed of major parenting decisions and his views were to be sought and considered.

The court further ordered that the father would spend time with the child as agreed in writing, or as otherwise ordered. Specific provisions were made for electronic communication between the father and child at least once per week. If the father were to travel to or live in India, he would have supervised contact with the child on alternate Saturdays and during school holidays, with the supervision to be arranged and paid for by the father or provided by a member of the mother's family. All extant applications were dismissed, except as to costs.

Orders

Orders of the court

All previous parenting orders in relation to B born … 2011 (‘the child’) are discharged, and this discharge order specifically includes the discharge of the following orders:-

(a) Order 2 of orders made 8 September 2014 in the Federal Circuit Court that the passport of the child be held by the Melbourne Registry of the Court;

(b) Order 3 of the orders made 8 September 2014 in the Federal Circuit Court restraining the removal of the child from Australia; and

(c) Order 4 of the orders made 8 September 2014 in the Federal Circuit Court that the child be placed on the Australian Federal Police Watch List.

Ms Jatasra (‘the mother’) shall have sole parental responsibility for the child including:-

(a) permission to remove the child to and from Australia in her absolute discretion;

(b) obtaining a passport for the child in either Australia or in India; and

The mother shall keep Mr Khosla (‘the father’) informed of any major parenting decisions she proposes to make in relation to the child and, where reasonably practicable, the father is to be informed in advance and the mother shall seek the father’s views in relation to her exercise of such parental responsibility and consider his views.

The mother shall be permitted to relocate the child’s place of habitual residence from Australia to City C, India.

The child shall live with the mother.

The passport for the child to be forthwith released by the Family Court Melbourne to the mother.

The father shall spend such time with the child as is agreed in writing between the mother and father and, in the event that the parties are unable to agree, then as is set out in these orders or otherwise ordered by a court of competent jurisdiction.

The mother shall arrange for the child to speak and/or communicate with the father by telephone, Skype, FaceTime or similar electronic communication at least one (1) day per week on a Saturday or Sunday at a time and date reasonably provided by the mother to the father, the notification of such time to be provided at least seven (7) days in advance, and such communication shall be for up to fifteen (15) minutes or such other time as is agreed between the parties.

Should the father travel to India or live in India, the father shall spend time with the child each alternate Saturday from 9.00am until 4.00pm during school term (commencing on the second Saturday after the start of each school term) and a Saturday and Sunday for each two (2) weeks of school holidays, being 9.00am to 4.00pm on that Saturday and/or Sunday.

10.

Such times referred to in order 9 above are to be supervised by an independent supervisor employed and paid for by the father or in the absence of such supervisor a member of the mother’s family, reasonably nominated by the mother. Such contact to take place in City C.

11.

Each party shall notify the other of contact telephone numbers, email addresses and postal addresses within seven (7) days of this order and shall keep the other informed of any changes of those particulars.

12.

Pursuant to s 65DA(2) and s 62B, of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

13.

All extant applications be dismissed, except as to costs.

14.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS REQUESTED

15.

The Australian Federal Police forthwith remove the name B born … 2011 from the Airport Watch List at all points of international arrivals and departures within Australia.

IT IS CERTIFIED

16.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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