Kaur & Kaur - [2014] FCCA 2843

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & KAUR

[2014] FCCA 2843

Catchwords:
FAMILY LAW – Children aged 7 and 4 – overseas travel – father wishes to travel to India for three weeks – mother opposes travel on basis of a risk that father will not honour promise to return the children to Australia – mother further opposes the travel on the basis children have not previously spent extended periods of time in father’s sole care and proposed trip is too long in its duration – mother asserts that she has always been children’s primary carer – father asserts that he has been integrally involved in providing care for the children since the date of their respective births – parties and children share Indian background – children both born in Australia – both parties Australian citizens – India a non-Hague convention country – father seeks further time with children prior to final hearing – nature of interim hearing parties – assessment of risk – weighing up of possible benefits and detriments of proposed travel – matters to be considered – best interests.

Legislation:

Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 64B; 65DAA

Gin & Hang [2010] FamCA 617
MRR v GR (2010) 240 CLR 461
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729

Applicant:

MR KAUR

Respondent:

MS KAUR

File Number:

ADC 4611 of 2013

Judgment of:

Judge Brown

Hearing date:

18 November 2014

Date of Last Submission:

18 November 2014

Delivered at:

Adelaide

Delivered on:

9 December 2014

REPRESENTATION

Counsel for the Applicant:

Mr Bowler

Solicitors for the Applicant:

S E Lawyers

Counsel for the Respondent:

Mr Anderson

Solicitors for the Respondent:

David Burrell & Co

ORDERS

The parties’ completing application be fixed for final hearing on 22, 23 and 24 April 2015.
The parties jointly instruct a suitably qualified expert, to be agreed between them and failing agreement to be appointed by the court, to prepare a family assessment report, at their joint expense, with the report to be completed no later than 13 March 2015.
The proceedings be adjourned for further directions to 23 March 2015 at 9.30 am.

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibilities for the children of the marriage X born (omitted) and Y born (omitted) 2010 (hereinafter referred to as “the children”).
The children live with the mother.
The children spend time with the father as follows:
(a)During school terms:
(i)Each alternate weekend from 5.00 pm Saturday until the commencement of school/child care the following Tuesday;
(ii)In the other week of each fortnight from the conclusion of school/child care on Monday until commencement of school/child care the following Tuesday.
(b)During the end of year school holidays 2014/2015, subject to the arrangement for Christmas hereunder:
(i) In weeks 1, 3 and 5 of the holiday from 9.00 am Sunday until 9.00 am the following Friday;
The children spend from 12 midday 24 December 2014 until 12 midday 25 December 2014 with 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 Kaur & Kaur

Details

AGLC: Kaur & Kaur [2014] FCCA 2843
Case: [2014] FCCA 2843
Decision Date: 9 December 2014

CaseChat Overview and Summary

In Kaur & Kaur, the parties, the mother and father, brought their dispute concerning the children of the marriage before Judge Brown. The proceedings involved applications relating to the children's living arrangements, time spent with each parent, and the father's interim application to travel overseas with the children.

The court was required to determine several key issues, including the nature of parental responsibilities, the children's residence, the specific arrangements for the children to spend time with each parent during school terms and holidays, and the continuation of existing orders regarding the children's travel and the parties' conduct. The court also had to consider the father's application for permission to travel overseas with the children.

Judge Brown made orders establishing equal shared parental responsibility for the children, with the children to live with the mother. Specific, detailed arrangements were set out for the children to spend time with the father, including during school terms and the end-of-year holidays. Existing orders placing the children on an Airport Watch List and restraining their removal from Australia were continued. Crucially, injunctions were issued restraining both parents from denigrating the other in the presence or hearing of the children, or discussing the proceedings with them. The court also made orders ensuring ongoing communication and information sharing between the parents regarding the children's health and education, and confirmed that the issue of overseas travel for the children would remain a live issue at trial, dismissing the father's interim application for overseas travel.

Orders

Orders of the court

The parties’ completing application be fixed for final hearing on 22, 23 and 24 April 2015.

The parties jointly instruct a suitably qualified expert, to be agreed between them and failing agreement to be appointed by the court, to prepare a family assessment report, at their joint expense, with the report to be completed no later than 13 March 2015.

The proceedings be adjourned for further directions to 23 March 2015 at 9.30 am.

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibilities for the children of the marriage X born (omitted) and Y born (omitted) 2010 (hereinafter referred to as “the children”).

The children live with the mother.

The children spend time with the father as follows:

(a) During school terms:

(i) Each alternate weekend from 5.00 pm Saturday until the commencement of school/child care the following Tuesday;

(ii) In the other week of each fortnight from the conclusion of school/child care on Monday until commencement of school/child care the following Tuesday.

(b) During the end of year school holidays 2014/2015, subject to the arrangement for Christmas hereunder:

(i) In weeks 1, 3 and 5 of the holiday from 9.00 am Sunday until 9.00 am the following Friday;

The children spend from 12 midday 24 December 2014 until 12 midday 25 December 2014 with the father and from 12 midday 25 December 2014 until 12 midday 26 December 2014 with the mother.

Orders 2, 3, 4 and 5 of the orders made 20 December 2013 placing the names of the children on the Airport Watch List and restraining the parties from removing the children from the Commonwealth of Australia continue.

The mother and father are each restrained and an injunction issues restraining each of them from denigrating the other in the presence or hearing of the children or from permitting any other person to do so.

10.

The mother and father are each restrained and an injunction issues restraining each of them from discussing these proceedings in the presence or hearing of the children or from permitting any other person to do so.

11.

The mother and father shall:

(a) keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;

(b) keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the child and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the child; and

(c) inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the child. This order authorises any treating medical practitioner to release details of the child’s medical condition and/or injury to the other parent.

12.

The parents authorise by this order, the school, attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at the expense of the parent requesting same).

13.

Each parent is at liberty to attend at the child’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.

14.

The father’s interim application to travel overseas with the children is dismissed but the issue of overseas travel for the children remains a live issue at trial.

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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