FAMILY COURT OF AUSTRALIA
| LANKA & DEV | [2020] FamCA 910 |
| FAMILY LAW – PARENTING – Application by mother for child to relocate with her to India in circumstances where child was removed from India in December 2017 without her knowledge or consent – father asserts there were circumstances justifying the removal of the child from India to Australia – whether the maternal grandparents facilitated and assisted the father to remove the child – child has remained living in Australia with her father since December 2017 and is well settled – no face to face time with the mother between December 2017 and September 2019 – periods of no contact between child and mother – relationship between child and a half sibling – mother alleges lack of consent of the half sibling’s father restricted her travel to Australia – mother did not adduce expert immigration evidence as to her capacity to remain in Australia –should the child be permitted to travel to India in the future including an examination of the mother’s capacity to promote a relationship between the father and the child – impact of COVID-19 on future travel between Australia and India – parental responsibility where parents live in different countries and limited communication between them |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA Evidence Act 1995 (Cth) ss.140, 144 |
| Jones v Dunkel (1959) 101 CLR 298 Bell & Nahos [2016] FamCAFC 244 Taylor & Barker [2007] FamCA 1246 Cowley & Mendoza [2010] FamCA 597 Heath & Hemming (No.2) [2011] FamCA 749 McCall & Clark [2009] FamCAFC 92 Mazorski & Albright [2007] FamCA 520 Line & Line [1996] FamCA 145 Miles & Miles [2011] FamCAFC 72 |
| APPLICANT: | Mr Lanka |
| RESPONDENT: | Ms Dev |
| FILE NUMBER: | MLC | 9626 | of | 2019 |
| DATE DELIVERED: | 30 October 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Williams J |
| HEARING DATE: | 6 – 10 July 2020 |
| WRITTEN SUBMISSIONS: | Respondent – 31 July 2020 Applicant – 28 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Swart |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| COUNSEL FOR THE RESPONDENT: | Ms Byrnes |
| SOLICITOR FOR THE RESPONDENT: | Vic Rajah Family Lawyers |
Orders
The mother be and is hereby restrained by herself, her servants and/or agents from removing or attempting to remove or causing or permitting the removal of the child, Y Lanka born on … 2012 (“the child”), from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the child’s name on the Family Law Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
The father have sole parental responsibility for Y Lanka (“the child”), born on … 2012 with the father to notify the mother via email of any such decisions within 7 days.
The child live with the father in Australia.
The child communicate with the mother via…
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- AGLC
- LANKA & DEV [2020] FamCA 910
- Case
- [2020] FamCA 910
- Decision Date
CaseChat Overview and Summary
Williams J determined that the mother should be restrained from removing the child from Australia and that the Australian Federal Police should place the child's name on the Family Law Airport Watch List. The father was granted sole parental responsibility for the child, with the obligation to notify the mother via email of any decisions within seven days. The child was ordered to live with the father in Australia and to communicate with the mother via FaceTime or other electronic means each Tuesday and Sunday for a period not exceeding 30 minutes on each occasion. The parties were enjoined from discussing the proceedings with the child, questioning the child about parenting arrangements, using the child to communicate messages, or denigrating the other parent. Communication between the parties regarding the child was to occur via Our Family Wizard. The orders also detailed specific arrangements for the mother's time with the child while she remained in Australia, including during school terms, school holidays, on the child's birthday, and for religious festivals. The mother's time with the child was suspended during specific periods, including Easter and Christmas. If the mother were to live outside Australia, the child was to spend time with her in Australia on at least three occasions each year for at least seven days each, subject to specific notice and logistical requirements, including the father booking and paying for accommodation for the mother in the local vicinity when the child was in Australia. The parties were also required to keep each other informed of their residential addresses and contact details, and to notify each other of any serious illness or injury to the child, and to authorise each other to liaise with medical practitioners and schools.
Orders
Orders of the court
1.
The mother be and is hereby restrained by herself, her servants and/or agents from removing or attempting to remove or causing or permitting the removal of the child, Y Lanka born on … 2012 (“the child”), from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the child’s name on the Family Law Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
2.
The father have sole parental responsibility for Y Lanka (“the child”), born on … 2012 with the father to notify the mother via email of any such decisions within 7 days.
3.
The child live with the father in Australia.
4.
The child communicate with the mother via FaceTime or other electronic communication each Tuesday and Sunday at a time to be agreed and in the absence of agreement at 6:30 pm for a period of not more than 30 minutes on each occasion.
5.
The parties are each hereby restrained by injunction from the following conduct or permitting the child to remain in the presence or hearing of any other person engaging in the following:
5.1 Discussing these proceedings in the presence or hearing of the child other than to explain to her the arrangements put in place by these orders;
5.2 Questioning the child about any parenting or living arrangements in the other parent’s care;
5.3 Using the child to communicate messages between the parties;
5.4 Denigrating the other parent (or other members of the extended family) in the presence or hearing of the child.
6.
The parties to communicate regarding the child via Our Family Wizard at their own expense.
7.
Whilst the mother remains in Australia
7.1 During school term as follows:
7.1.1 Commencing in week one of each term and each alternate week thereafter, from the conclusion of school or 3:30pm on Thursday (or 12:00pm if a non-school day) until the commencement of school on Monday (or 5.30 pm if a non-school day); and
7.1.2 Each week from the conclusion of school or 3.30pm on Wednesday (or 12:00pm if a non-school day) until the commencement of school on Thursday (or 12:00pm if a non-school day).
7.2 During school holidays as follows:
7.2.1 During school term holidays, for one half of the holiday period for a block of 7 nights at times to be agreed and failing agreement for the first week, with any remaining time to be shared equally;
7.2.2 During the long summer holidays, for one half of the holiday period at times to be agreed, and failing agreement on an alternating weekly basis, with the mother’s time to commence in the first week of the school holidays and each alternate week thereafter;
7.3 On the child’s birthday if the child is not otherwise spending time with the mother on that day, for a period of three hours on a school day and from 9:00am to 2:00pm if a non-school day;
7.4 For Religious festival 1 from after school Friday to 9:00am on Sunday;
7.5 For Religious festival 2 from after school Friday to before school on Monday;
7.6 For Religious festival 3 from 9:00am on the first day until 12:00pm the following day;
7.7 From 5:00 pm the Saturday evening prior to Mother’s Day until 8:30 am on the Monday morning after Mother’s Day;
7.8 During all school term holidays for a period of four nights being comprised of three consecutive nights.
8.
The mother’s time with the child be suspended on the following occasions:
8.1 For Easter, from 5pm on Maundy Thursday until 5pm on Easter Sunday;
8.2 For Christmas, from 10am on 24 December until 5pm on Boxing Day;
8.3 On the child’s birthday if the child is not otherwise spending time with the father on that day, for a period of three hours if a school day;
8.4 From 5:00 pm the Saturday evening prior to Father’s Day until 8:30 am on the Monday morning after Father’s Day;
8.5 At other times as agreed between the parties in writing.
9.
For the purposes of changeover pursuant to these orders, where changeover is not otherwise at school, changeover will take place at the mother’s residence.
10.
If the mother lives outside of Australia, the child spend time with the mother in Australia as follows:
10.1 On at least three occasions each year for at least seven days on each occasion), preferably during term breaks;
10.2 The child’s time with the mother pursuant to paragraph 10.1 be subject to the following:
10.2.1 The mother give the father not less than 28 days’ notice of her travel, including the intended during of the stay, and if intending to travel within Australia, details of the intended travel;
10.2.2 If the mother’s travel to Australia occurs within school term, the mother ensure that the child attend all school and extra-curricular activities during her care;
10.2.3 The father to book and pay for accommodation for the mother in the local vicinity. In the event that the mother intends to travel with Y within Australia, she will be responsible for accommodation costs.
Notice and authorities
11.
Each party:
11.1 Shall keep the other advised at all times of their residential address, mobile telephone number (capable of accepting SMS), and emergency contact number, and provide the other party with any new information within 24 hours of any change of residential address, mobile telephone number and/or emergency contact number;
11.2 Notify the other as soon as is reasonably practical in the event Y becomes seriously ill or sustains a serious injury, requiring medical attention at a hospital whilst in that party’s care and keep the other advised of the details of any private health insurance cover for Y;
11.3 Provide the other party with details of any injury or illness suffered by Y requiring medical treatment, and the name(s) of the treating medical practitioner(s) and authorise the other party to attend any medical appointment(s) and otherwise liaise with the treating medical practitioner(s);
11.4 Advise the other party of any medication which is prescribed for Y;
11.5 Follow all reasonable directions and recommendations of any treating medical practitioners, with respect to the medical care of Y, including prescribed medications, unless the parties both agree not to follow such directions and recommendations;
11.6 Authorise, if not already authorised, any school attended by Y to:
11.6.1 provide the other party with copies of all notices, newsletters, reports, photographs and other information normally given to parents in relation to Y; and
11.6.2 communicate with the other party in relation to the Y’s progress.
12.
Each party be at liberty to provide a sealed copy of these parenting orders to Y’s school.
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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