Mehra and Bose - [2011] FMCAfam 263

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MEHRA & BOSE

[2011] FMCAfam 263

FAMILY LAW – Children – Parenting Orders – one child living with mother – best interests of the child – where there is conflict between the child’s parents – whether the child will suffer harm by being exposed to parental conflict – equal shared parental responsibility – equal shared parental responsibility – substantial and significant time – Airport Watch List – Security Deposit.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA

Bose & Mehra [2010] FMCAfam 353

Applicant:

MR MEHRA

Respondent:

MS BOSE

File Number:

SYC 4358 of 2009

Judgment of:

Scarlett FM

Hearing date:

10 March 2011

Date of Last Submission:

10 March 2011

Delivered at:

Sydney

Delivered on:

11 March 2011

REPRESENTATION

Counsel for the Applicant:

The Applicant appeared in person

Solicitors for the Applicant:

No solicitor on the record

Solicitor for the Respondent:

Ms Tin

Solicitors for the Respondent:

Marsdens Law Group

ORDERS

All previous parenting orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child [X] born [in] 2008.
The child [X] is to live with the Mother.
The child [X] is to spend time with the Father:
(a)Until [date omitted] 2011:
(i)From 5:00 pm to 7:30 pm each Tuesday;
(ii)From 5:00 pm to 7:30 pm each Thursday;
(iii)From 8:00 am to 4:00 pm each Saturday;
(b)From [date omitted] 2011 to [date omitted] 2012:
(i)From 7:30 am on Friday to 12 noon on Saturday;
(ii)From 7:30 am to 7:30 pm each Tuesday;
(c)From [date omitted] until [X] commences school:
(i)From 7:30 am on Friday until 5:30 pm on Saturday;
(ii)From 7:30 am to 7:30 pm each Tuesday;
(d)From the time that the child [X] commences school until she attains the age of 18 years:
(i)Each alternate weekend from after school Friday until the commencement of school on Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on Tuesday;
(ii)For one half of each of the Autumn, Winter and Spring school holidays being the first half in each odd numbered year and the second half in each even numbered year;
(iii)From 9:00am on 2 January until 5:30pm on Australia Day in each year;
(iv)From 9:00 am to 5:30 pm on Father’s Day in each year;
(v)During the Diwali festival in each odd numbered year;
(vi)From 5:00 pm on Christmas Eve until 5:00 pm on Christmas Day in each even numbered year; and
(vii)At such other times as the parties shall agree.
The child [X] is to live with the Mother at all other times.
Changeover between the parties is to be at the [A] Childcare Centre at [address omitted] or at such other place as the parties shall agree.
The Father must submit his work schedule to the Mother at the commencement of each year within forty-eight (48) hours of receiving the work schedule.
The Father must submit a copy of his [work] roster to the Mother at…

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 Mehra and Bose

Details

AGLC: Mehra and Bose [2011] FMCAfam 263
Case: [2011] FMCAfam 263
Decision Date: 11 March 2011

CaseChat Overview and Summary

Mehra and Bose was a parenting case heard in the Federal Circuit Court of Australia. The Applicant Father sought parenting orders relating to the child [X], born in 2008. The parties had been in a de facto relationship for approximately five years. The primary issue before the court was the determination of the future parenting arrangements for the child, including the allocation of parental responsibility, living arrangements, and the schedule for the child spending time with each parent. The court also needed to consider the mother's application for the return of security money and items, as well as the mother's application to restrain the father from removing the child from Australia.

The court considered the welfare and best interests of the child to be the paramount consideration in determining the parenting arrangements. It was acknowledged that both parents were capable of providing a loving and stable environment for the child. The court noted the importance of both parents being involved in the child's life and the need for the child to maintain a relationship with both parents. The court also considered the need for the child to continue to practise her Hindu culture and religion. After weighing all the evidence and submissions, the court determined that equal shared parental responsibility was in the best interests of the child. It was decided that the child would live with the mother but would spend significant time with the father, with detailed arrangements set out in the orders. The court also dismissed the mother's applications for the return of security money and items.

The court made detailed orders for the allocation of parental responsibility, living arrangements, and the schedule for the child spending time with each parent. The mother was restrained from removing the child from Australia until 31 March 2013, and the Australian Federal Police and Department of Immigration and Citizenship were requested to place the child's name on the Airport Watch List. The court also ordered that each party must permit the child to practise the Hindu culture and religion while in their care and that both parties must receive school-related information about the child.

Orders

Orders of the court

All previous parenting orders are discharged.

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child [X] born [in] 2008.

The child [X] is to live with the Mother.

The child [X] is to spend time with the Father:

(a) Until [date omitted] 2011:

(i) From 5:00 pm to 7:30 pm each Tuesday;

(ii) From 5:00 pm to 7:30 pm each Thursday;

(iii) From 8:00 am to 4:00 pm each Saturday;

(b) From [date omitted] 2011 to [date omitted] 2012:

(i) From 7:30 am on Friday to 12 noon on Saturday;

(ii) From 7:30 am to 7:30 pm each Tuesday;

(i) From 7:30 am on Friday until 5:30 pm on Saturday;

(ii) From 7:30 am to 7:30 pm each Tuesday;

(d) From the time that the child [X] commences school until she attains the age of 18 years:

(i) Each alternate weekend from after school Friday until the commencement of school on Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on Tuesday;

(ii) For one half of each of the Autumn, Winter and Spring school holidays being the first half in each odd numbered year and the second half in each even numbered year;

(iii) From 9:00am on 2 January until 5:30pm on Australia Day in each year;

(iv) From 9:00 am to 5:30 pm on Father’s Day in each year;

(v) During the Diwali festival in each odd numbered year;

(vi) From 5:00 pm on Christmas Eve until 5:00 pm on Christmas Day in each even numbered year; and

(vii) At such other times as the parties shall agree.

The child [X] is to live with the Mother at all other times.

Changeover between the parties is to be at the [A] Childcare Centre at [address omitted] or at such other place as the parties shall agree.

The Father must submit his work schedule to the Mother at the commencement of each year within forty-eight (48) hours of receiving the work schedule.

The Father must submit a copy of his [work] roster to the Mother at the commencement of each month within forty-eight hours of receiving the [work] roster.

Each party must advise the other of their home address, landline telephone number if any and mobile telephone number within fourteen (14) days of the date of these Orders.

10.

Each party must advise the other of any change to their home address, landline telephone number or mobile telephone number within forty-eight (48) hours.

11.

Each party is to continue the nutritional plan ordered for [X] by her dietician or paediatrician.

12.

In the event that the Mother is unable to take the child [X] to any medical appointment, vaccination, immunisation or hospital attendance than the Father must do all things necessary to take the child.

13.

Each party must advise the other of any illness or injury requiring medical or hospital treatment suffered by the child [X] as soon as is reasonably practicable.

14.

The Mother is restrained by injunction from removing or attempting to remove the child [X] born [in] 2008 from Australia until 31 March 2013.

15.

The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and the Police Forces of the various States and Territories of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said child [X] from the Commonwealth of Australia on any date prior to 31 March 2013.

16.

The Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship are to do all things necessary to place the name of the child [X] born [date omitted] 2008 on the Airport Watch List also known as the PACE Alert System at all points of arrival and departure from Australia and maintain the child’s name on the said Watch List until 31 March 2013.

17.

The application by the Mother for the return by the father of the sum of $5,000.00 security is dismissed.

18.

The application by the Mother for the return by the Father for the return of items including but not limited to a nursery cot, changing table, mattress and bed linen is dismissed.

19.

Each party must do all necessary things to permit the child to practise the Hindu culture and the Hindu religion whilst in the care of that party as provided by these Orders.

20.

Upon the commencement of the child at school each party is to be entitled to receive from the school copies of all school reports, newsletters, invitations to school functions, information about school photographs and all other information normally provided to parents of children attending that school and each party is to provide to the child’s school a copy of these Orders.

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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