Mehra and Bose (No.2)
[2010] FMCAfam 464
•10 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MEHRA & BOSE (No.2) | [2010] FMCAfam 464 |
| FAMILY LAW – Stay of proceedings – application for stay of orders permitting respondent to take child out of the Commonwealth – principles to be applied in family law matters – delay. |
| Australian Citizenship Act 2007 (Cth) s.12 Family Law Act 1975 (Cth) |
| Bose & Mehra [2010] FMCAfam 353 |
| Applicant: | MR MEHRA |
| Respondent: | MS BOSE |
| File Number: | SYC 4385 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 May 2010 |
| Date of Last Submission: | 10 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2010 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms Connor as Duty Solicitor |
| Solicitors for the Respondent: | Legal Aid NSW |
ORDERS
The Application for a stay of the orders of 20 April 2010 filed on 6 May 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Mehra & Bose is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4385 of 2009
| MR MEHRA |
Applicant
And
| MS BOSE |
Respondent
REASONS FOR JUDGMENT
The application before the Court today is an application for a stay of orders made by this Court on 20th April 2010. The application is not expressed as such in as many words as the orders sought are as follows:
a) Orders made on 7th September 2009 are in place.
b) Orders made on 20th April 2010 are set aside.
c)The Mother is to deliver the daughter [X]’s passport to the Registry of the Court in Sydney within two days of receiving these orders.
However, the situation is that on 20th April 2010, as a result of a hearing before the Court on 6th April 2010, I made orders vacating several orders made between the parties on 7th September 2009 removing the name of the Child from the Airport Watch List with effect from today, as it turns out, permitting the Mother to take the Child out of the Commonwealth of Australia for the purposes of visiting India, requiring the issue of passport, requiring the deposit of a sum of $5,000.00 to be held as security until the Child returns to Australia; and subsequent orders as to what should take place if the Child was not returned to Australia by 1st June 2010. The reference to that decision is Bose v Mehra [2010] FMCAfam 353.
On 6th May 2010, the Father – who is the Respondent to the substantive application but the Applicant in this application – lodged an appeal against that decision. He filed an affidavit in support and brought an application in a case setting out the orders as I have described them. In effect, however, what he is seeking is a stay of the orders of 20th April 2010.
He submits that as he has lodged an appeal that the Court should not allow the Mother to leave India with the Child, he refers to the substance of the appeal, which is yet to be given a hearing date. He has set out the grounds of his appeal and he has told the Court today that he seeks to issue further subpoenas in relation to financial matters between the parties.
Against this, Ms Connor, who appears for the Mother on a duty solicitor basis, has submitted that the Mother would suffer a considerable amount of hardship if at this stage she were not allowed to leave Australia with the Child. She submitted that there are no financial issue that would form the subject of the appeal before the Full Court.
The Mother would be severely disadvantaged in that she has complied with the orders made on 20th April 2010. She has obtained a visa for the Child to enter India, which visa would expire on 31st May 2010, but she has no insurance and, having booked and paid for the tickets which would allow her to leave Australia with the Child tomorrow she would, indeed, lose her airfare without any recompense.
Further, it has been submitted that there is no idea when the appeal would be heard but, in Ms Connor’s experience, and I accept that as a solicitor employed by the Legal Aid Commission of New South Wales she would have significant experience in these matters, it may be that a considerable time would elapse before the appeal would take place.
The Father has pointed out that he has at all times been employed full‑time in his current occupation with [omitted] and that he has not had the benefit of legal assistance. It has in fact taken him some time to prepare his various applications and affidavits in support. He pointed out that in earlier proceedings in India, the magistrate there had made a somewhat interesting finding that the parties’ child was Indian, although whether or not that be the case, I found that the Child, having been born in Australia of an Australian parent, is, by virtue of section 12 of the Australian Citizenship Act 2007, an Australian citizen.
The situation is that, on my understanding of the law, a stay should not be ordered as a matter of right or as a matter of course. The application for an order must establish a ground. Whilst it is said that special considerations apply to stays in children’s cases, this is a case in which a child is involved, but perhaps not strictly a children’s case. It relates to the Mother’s application to travel to India for the purpose of certain legal proceedings over there between the Husband and herself. Her concern is that unless she attends as required by the public prosecutor that an application by the Father to dismiss one of the cases for want of prosecution will, in fact, succeed.
The need for her to take the Child with her and not leave her in the care of the Father relates to the young age of the Child, the fact that she is still being breastfed and not yet consuming much in the way of solid food. She refers also to the Child showing signs of separation anxiety which has led to a failure to thrive. I set out in paragraphs [15] and [16] of the decision of 20th April 2010 the Mother’s concerns as to why it is that she needs to take the Child with her whilst she attends to these legal matters in India.
The general principles that should be considered in dealing with the stay can be summarised as follows:
a)whether refusing a stay would render a successful appeal nugatory, or will make it impossible or impractical to restore the position;
b)any hardship that would be suffered by the applicant and the respondent as a result of granting or refusing a stay;
c)the merits of the appeal;
d)whether there has been a delay in applying for the stay;
e)the bona fides of the applicant; and
f)the time it is expected for the appeal to be heard.
Dealing with those matters in order, it will be seen that this decision, whilst discretionary, involves balancing the weight of one or more of these factors against the others. First of all, it is clear that, if a stay is not granted, then the Mother will be able to continue with her planned course of leaving Australia with the Child tomorrow and travelling to India.
No appeal date has been set and, indeed, it would be surprising if it had been set in respect of an appeal that was only lodged last Thursday,
6th May 2010. As the appeal is against the order allowing the Mother to leave Australia or to take the Child out of Australia, it is quite right to say that refusing the stay would render a successful appeal nugatory.
The Court must consider any hardship that would be suffered by the Applicant and the Respondent as a result of granting or refusing a stay. Clearly, the hardship that would be suffered by the Applicant is the same as in the previous matter. It would render a successful appeal nugatory. The Applicant has expressed a concern that the Respondent will not return to Australia, which was an issue, of course, considered at some length in the proceedings before me, resulting in a decision handed on 20th April 2010.
There is also the question of hardship to the Respondent, as argued by Ms Connor for the Respondent. If the stay is granted, the Respondent would be unable to take the Child out of Australia. True it is that it would be legally possible for her to leave the Child with the Father because there are no orders that would forbid the Respondent from leaving Australia and making her way to India to carry out the business there. Practically, however, for the reasons that were explored in the hearing before me, the Mother says that she is unable to leave the Child for that period of time so that, in effect, if she cannot take the Child out of Australia, she cannot go.
If she were not to go at this short notice, she would lose her airfare, for which, apparently, she does not have insurance. It may well be argued that it would have been a prudent course to obtain insurance against such a possibility. Ms Connor has submitted that the Mother obtained a decision in her favour after a hearing, and that she has done everything that the Court required her to do in the decision of
20th April 2010. Further, it has been put that the requirement of the order of 20th April 2010 to provide the sum of $5,000.00 has left the Mother without sufficient funds, although that, I should say, is an aspect with which the Applicant Father does not agree. Nevertheless, I am satisfied that there would be a hardship to the Mother, and not an insignificant one, if she were, in fact, prevented from travelling tomorrow.
The Court must also consider the merits of the appeal. The affidavit in support of the Father’s application for a stay contains the submission by the Applicant that the Court did not adequately assess or provide adequate reasons in determining the degree of risk of the Mother not returning to Australia with the Child. Further, it was submitted that the sum of $5,000.00 required to be held was insufficient, and insufficient reasons were provided in arriving at that amount.
Further, it was submitted that the Court failed to recognise the fact that if the Mother does not return to Australia with the Child, there were no other options left to the Father to ensure the Child’s safe return, but to start court proceedings and action in Australia and in India.
It is, of course, difficult to require a Court to consider the merits of an appeal against the Court’s own decision. It is fair to say that the Applicant, or the appellant as he will be, has an arguable case in respect of the appeal. It could not be said, in fairness, that the appeal is one of no merit.
The Court must also look at whether there has been a delay in applying for the stay. The circumstances are that the decision was handed down on 20th April 2010. It was a reserved decision and, at the time, a sealed copy of the orders was made available to each party, and the reasons for decision, which had been reduced to writing, were provided to the parties. So each party had the decision and the reasons for decision in their hands on the day the decision was made.
In practice, therefore, it would have been possible for an appeal to be lodged and an application for a stay to be made the following day, which was, in fact, a working day. Of course, the Father has said that he was not able to do that. He does not have legal representation. He is engaged in full‑time employment. He had to undertake his own research and preparation. And he says that it was not, therefore, possible for him to lodge an appeal and apply for a stay until the time that he did, which was on Thursday, 6th May 2010, which was two working days ago. Indeed, the Mother did not receive the final documentation upon which the Father relies until today.
There was an affidavit filed on 6th May 2010 which was not read as it was replaced by a more full affidavit to which financial documents were annexed, which was filed in Court today. The fact is that the Mother had copies of the application for a stay and affidavit in support today, and she has had the benefit of legal representation in these proceedings. I note the Father’s explanation. Nevertheless, I am of the view that there has been a delay in applying both for a stay and in lodging the appeal.
The Court must consider the bona fides of the Applicant. It could be argued that, in lodging an application for a stay and an appeal so late, that there is a suspicion of an abuse of process. It could be argued that the Father’s actions in attempting to stop the Mother travelling to India with the Child are an effort to frustrate the progress of the legal proceedings in India. I am not satisfied, however, that I could make such a finding with any confidence, and I am not, therefore, making any finding that the Applicant lacks bona fides.
The other matter that is to be considered, of course, is the time when it is expected the appeal to be heard. And the answer to that, as has been discussed earlier, is that, at this stage, neither of the parties knows. I have no idea when the appeal is to be heard, nor is it of any immediate concern, only insofar as these proceedings are concerned. Ms Connor submits, however, that, in her experience, a considerable time would elapse before the Full Court of the Family Court would be able to hear that appeal. And of course, the delay in the appeal being heard, carrying the stay along with it, would mean that the Mother would lose the airfare, that the visa for the Child would expire on 31st May 2010, and still the appeal would not be heard.
It all gets down to a question of balancing the various factors. I have given consideration to these matters over the luncheon adjournment, and my view is that the hardship to the Applicant, which would involve considerable difficulty with the appeal, is outweighed by the real hardship to the Respondent. And for those reasons, the application for a stay of the orders of 20th April 2010 filed on 6th May 2010 is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 12 May 2010
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