KADNI & KEERTHI - [2018] FCCA 3425

FEDERAL CIRCUIT COURT OF AUSTRALIA

KADNI & KEERTHI

[2018] FCCA 3425

Catchwords:
FAMILY LAW – Parenting – where the father has consciously chosen not to practice time or a relationship with the child as permitted through orders made by the Court – where bringing finality to the proceedings is in the child’s best interests – consideration of section 60CA of the Family Law Act 1975 – Airport Watch List order.

Legislation:

Child Support (Assessment) Act 1989, ss.116, 117, 123, 124

Family Law Act 1975 ss.60B(4), 60CA, 61C, 61DA, 64B(6), 65DAA(5), 65Y, 68B
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Cases cited:

Gordon & Gordon [2015] FamCA 616

Line & Line (1997) FLC 92-729

Applicant:

MS KADNI

Respondent:

MR KEERTHI

File Number:

PAC 4283 of 2014

Judgment of:

Judge Harman

Hearing date:

23 October 2018

Date of Last Submission:

23 October 2018

Delivered at:

Parramatta

Delivered on:

23 October 2018

REPRESENTATION

Solicitors for the Applicant:

Ms Burrows of Zali Burrows Lawyers

Solicitors for the Respondent:

Ms Singh of Rajesh Chand & Associates

Solicitors for the Independent Children’s Lawyer:

Ms Dodson of Legal Aid NSW Parramatta

ORDERS

The child, [X] born 2013, shall live with her mother, MS KADNI.
Each of the parties shall, forthwith and within 7 days, do all things, sign all documents and give all consents, authorities and instructions as are necessary to make application for and obtain and Australian Passport for child, [X] born 2013.
Subject to Mr Keerthi doing all acts and things and signing all documents necessary to cause the issue of an Australian Passport for [X] (whether the Passport has issued within 7 days or not) then it is noted that no Order for allocation of parental responsibility is made, and accordingly, the provisions of section 61C of the Family Law Act 1975 will apply, such that each parent will have parental responsibility with respect to major issues decisions for [X] at such times as she is in their respective care, provided further, that should Mr Keerthi fail to do all acts and thing and sign all documents necessary to apply for the Passport for [X] within 7 days of the date of this Order, then Mr Keerthi shall have sole parental responsibility for [X] for the purpose of applying for and obtaining an Australian Passport for [X].
Pending further Order, the Applicant, MS KADNI born 1983 (female) and the Respondent, MR KEERTHI born 1983 (male), by themselves, their servants or their agents are restrained from removing or attempting to remove the child, [X] born 2013 (female), from the Commonwealth of Australia until her sixteenth birthday.
Pending further Order, the Marshal of the Federal Circuit Court of Australia and all Officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain either party from…

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 KADNI & KEERTHI

Details

AGLC: KADNI & KEERTHI [2018] FCCA 3425
Case: [2018] FCCA 3425
Decision Date: 23 October 2018

CaseChat Overview and Summary

This matter concerned an application before Judge Harman concerning parenting arrangements for a child, [X], born in 2013. The dispute involved the mother, MS KADNI, and the father, MR KEERTHI.

The court was required to determine several key issues, including where the child would live, the allocation of parental responsibility, and crucially, the process for obtaining an Australian passport for the child. The court also addressed orders preventing the removal of the child from the Commonwealth of Australia and the implementation of airport watch procedures. Furthermore, the court noted that section 65Y of the *Family Law Act 1975* would continue to apply to any proposed overseas travel, requiring parental consent or a court order.

In its reasoning, the court ordered that the child, [X], shall live with her mother, MS KADNI. The court further directed both parties to cooperate in obtaining an Australian passport for the child within seven days. The allocation of parental responsibility was made conditional on the father's compliance with the passport application process; failure to comply would result in the father having sole parental responsibility for passport applications. The court also made orders restraining both parties from removing the child from Australia until her sixteenth birthday and requested the assistance of law enforcement agencies to enforce these orders, including placing the child's name on the Airport Watch List. The court dismissed all other parenting applications, noting that outstanding issues related to property adjustment, child support assessment, and lump sum child support. The court also set timelines for the filing of amended applications and affidavit material for trial, with provisions for dismissal or undefended hearing in the event of non-compliance. Finally, the court discharged the Independent Children's Lawyer and ordered reimbursement of certain legal fees to MS KADNI.

Orders

Orders of the court

The child, [X] born 2013, shall live with her mother, MS KADNI.

Each of the parties shall, forthwith and within 7 days, do all things, sign all documents and give all consents, authorities and instructions as are necessary to make application for and obtain and Australian Passport for child, [X] born 2013.

Subject to Mr Keerthi doing all acts and things and signing all documents necessary to cause the issue of an Australian Passport for [X] (whether the Passport has issued within 7 days or not) then it is noted that no Order for allocation of parental responsibility is made, and accordingly, the provisions of section 61C of the Family Law Act 1975 will apply, such that each parent will have parental responsibility with respect to major issues decisions for [X] at such times as she is in their respective care, provided further, that should Mr Keerthi fail to do all acts and thing and sign all documents necessary to apply for the Passport for [X] within 7 days of the date of this Order, then Mr Keerthi shall have sole parental responsibility for [X] for the purpose of applying for and obtaining an Australian Passport for [X].

Pending further Order, the Applicant, MS KADNI born 1983 (female) and the Respondent, MR KEERTHI born 1983 (male), by themselves, their servants or their agents are restrained from removing or attempting to remove the child, [X] born 2013 (female), from the Commonwealth of Australia until her sixteenth birthday.

Pending further Order, the Marshal of the Federal Circuit Court of Australia and all Officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.

Pending further Order, the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s name on the Airport Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.

The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.

The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these Orders.

THE COURT NOTES that section 65Y of the Family Law Act 1975 will continue to apply to any proposal for overseas travel with [X] by either parent such that each parent will be required to obtain the written consent of the other parent or an Order from this Court before travelling.

10.

Otherwise dismiss all parenting Application by either parent.

11.

THE COURT NOTES that the issues which remain extant between the parties relate to property adjustment, departure from administrative assessment for Child Support and lump sum Child Support.

12.

The Applicant wife shall, no later than close of business 2 November 2018, file and serve an amended Application and such Affidavit material as will be relied upon at trial, provided further that the Applicant’s trial Affidavit shall be no more than 30 pages, in 12 point times new roman font, 18 point justification and no annexures.

13.

The Respondent husband shall, no later than close of business 21 December 2018, file and serve an amended Response and such Affidavit material as will be relied upon at trial, provided further that the Respondent’s trial Affidavit shall be no more than 30 pages, in 12 point times new roman font, 18 point justification and no annexures.

14.

The matter is listed for call over 15 January 2019 at 9.30am

15.

In the event that both parties have filed their trial material as directed above, the matter will be advanced to hearing expeditiously but provided further that if both parties have failed to comply strictly with the above Orders then the proceedings will be dismissed pursuant to rule 13.03B of the Federal Circuit Court Rules 2001 and if only one party has complied, the matter will be heard and determined on a final and undefended basis as against the party in default.

16.

Discharge Independent Children’s Lawyer with the Court’s thanks.

17.

The Independent Children’s Lawyer shall cause the sum of $6,660 previously paid by Ms Kadni to the Legal Aid Commission on account of fees to be incurred in preparation of a Part 15 Report to be reimbursed to Ms Kadni.

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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