Kamdar and Sarin

[2015] FamCA 1233

FAMILY COURT OF AUSTRALIA

KAMDAR & SARIN [2015] FamCA 1233

FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of the husband – striking out of the husband’s application – leave for the wife to withdraw her application – where proceedings are already on foot in India with respect to property and maintenance – where the wife seeks to withdraw her application with respect to parenting proceedings to bring an application in India – question as to whether Australia is the correct forum for the hearing of parenting proceedings when the children have lived in India for four years  

Family Law Act 1975 (Cth)

APPLICANT: Ms Kamdar

RESPONDENT: Mr Sarin

FILE NUMBER: DGC 3163 of 2013

DATE DELIVERED: 12 May 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 12 May 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. That the wife be granted leave to withdraw her Amended Initiating Application filed 17 October 2014.

2. That the husband’s Amended Response to the Initiating Application filed 8 December 2014 be struck out.

AND THE COURT NOTES
That the husband was called at the commencement of this hearing and failed to answer the call.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kamdar & Sarin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3163 of 2013

Ms Kamdar

Applicant

And

Mr Sarin

Respondent

REASONS FOR JUDGMENT

1. This application comes before me, having been adjourned at an earlier mention hearing on 31 March 2015.

2. The proceedings were commenced by the wife in November 2013 in the Federal Circuit Court.

3. The wife seeks orders in relation to the parties’ children.  In addition she seeks orders that the husband to do all acts and things as may be required to cause Australian passports to be issued with respect to the parties’ two children, B, who is aged nine years, and C, who is aged almost seven years.  By her amended Initiating Application filed in October 2014, the wife seeks orders that she have sole parental responsibility for the care of the children and orders that the children live with her and spend time with the husband upon such terms as agreed between the parties.  Currently, the children live with the maternal grandmother in India.

4. The husband has filed an amended Response to Initiating Application on 8 December 2014.  In that document the husband sought orders that the Court do all things as may be required to have the children return to Melbourne, and further orders in relation to the issue of passports and visas.

5. The wife is aged 31 years and lives in Melbourne.  She is employed as an analyst.  She is representing herself in these proceedings. 

6. The husband is aged almost 39 years. He states his employment is in transport and he resides in Melbourne also. 

7. The parties married in 2005 and separated in April 2009.  They were divorced in December of 2013.

8. It is common ground between the parties that the children live with the maternal grandparents in India.  I am informed by the parties that the children have lived in those circumstances for more than four years.  There is a dispute between the parties as to the exact length of time that the children have been living in India.  I am also informed by the parties that there are proceedings on foot in the courts in India with respect to both property and maintenance.

9. At the mention hearing first conducted by me in November 2014, the wife was then represented by Mr Combes of counsel.  At that hearing I raised with both parties the question as to whether or not the parenting proceedings are more appropriately conducted in India where the children reside rather than in the courts in Australia, as on the face of the material then before me it appeared that most of the evidence upon which the parties would seek to rely with respect to a determination of the best interests of the children was in India.

10. The matter was adjourned from that mention hearing to a mention before me on 31 March 2015.  At that hearing each of the parties represented themselves.  That day orders were made by consent in relation to the execution of documents for the provision of passports for the children. 

11. Again I raised with the parties the issue as to whether or not the matter should be listed for a final hearing in Australia in relation to the remaining parenting issues or rather should those issues be ventilated in the courts in India where there are already proceedings on foot. 

12. That day I adjourned the matter for further mention to this day.

13. There is a notation to those orders that I had raised with the parties the question of forum.  It was agreed by the parties, as is reflected in the Court order made that day, that they would seek legal advice as to the appropriate forum for these applications, and on that basis the matter was adjourned for a period of approximately four weeks to enable the parties to consider their respective positions.

14. Today the wife comes to Court.  She informs me that she seeks leave to withdraw her parenting applications before this Court, and further, that she intends to raise parenting issues in the proceedings currently on foot in India.  Having regard to the history of the matter, I am satisfied that it is appropriate that the wife be granted leave to withdraw her application. 

15. The husband has not appeared at this adjourned mention hearing.  The wife informs me that she has had no communication with him since the matter was last before the Court.  In those circumstances I am satisfied that it is appropriate that I strike out the husband’s amended Response to Initiating Application.

16. As detailed earlier in this judgment, there are significant issues as to whether the Family Court of Australia is the appropriate setting for a parenting dispute with respect to these children who have been living in India for an extended period.  The husband has not appeared before me to seek a listing of the matter for a final hearing.  In those circumstances I will strike out his application. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 12 May 2015.

Associate: 

Date:  12 May 2015