MEHRA & MEHRA

[2019] FamCA 586

FAMILY COURT OF AUSTRALIA

MEHRA & MEHRA [2019] FamCA 586

FAMILY LAW – PARENTING – where Mother wishes to travel overseas – where risk of non-return – costs.

Family Law Act 1975 (Cth) ss 60CC, 117, 117(2A)

Lees & Halstead [2018] FamCA 970
Marvel & Marvel [2010] FamCAFC 101

APPLICANT: Mr Mehra

RESPONDENT: Ms Mehra

FILE NUMBER: CAC 1794 of 2017

DATE DELIVERED: 19 August 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 August 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Sharma Lawyers

SOLICITOR FOR THE RESPONDENT: R & J Lawyers

Orders

1. The Mother’s Application in a Case is dismissed.

2. The Mother pay the Father's costs as agreed or assessed within a period of 28 days after such agreement or assessment.

3. The matter is transferred to the Registrar's list pending further application by the parties or pending the matter being listed for preparation for trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1794 of 2017

Mr Mehra

Applicant

And

Ms Mehra

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Before delivering judgment in this matter I will note that both parties attempted to file through the portal documents outside of normal Court hours, including documents which are not permitted to be filed, for example, documents associated with affidavits, documents not associated with affidavits and affidavits with annexures.  None of these is a permissible course of action under the Rules that govern this Court and in the ordinary course would lead to the rejection of those documents. 

2. The subject of these proceedings is an application by the Mother, pursuant to an application in a case filed on 29 July 2019, to enable her to depart from the Commonwealth of Australia and travel with the parties’ daughter, X, to India both specifically through September / October 2019 and also more generally. 

3. The Father opposes such permission being given to the Mother.  He does so primarily for two reasons.  First he alleges that the Mother was non-compliant with orders that governed electronic communication between himself and X on the last trip to India which occurred in January 2018.  The Mother for her part accepts that there was some non-compliance with those arrangements but says that it was attributable to her attending a wedding and attending upon an ill relative.  She asserts that there was some agreement struck between her lawyers and the Father's lawyers.  This is a contentious matter which is unable to be resolved at this time.

4. Of more significance is the second ground opposed by the Father wherein he asserts that the Mother poses a risk of non-return should she be given permission on an interim basis to travel to India before the resolution of the proceedings.  In support of her application to travel the Mother says that she has travelled to India on multiple occasions and has returned.  That is uncontentious.  She alleges that she has no family support in Australia, that too appears to be uncontentious.  She says that she is an Australian citizen.  She identifies a number of ties to Australia, including X's enrolment and says that the bona fides of her application are demonstrated by the fact that she has made an application to travel to the Court.  She makes a generalised offer of a guarantee or bond but offers no evidence as to its terms, her capacity or to show the appropriateness of any guarantee.  Against this the Father observes that the Mother has now amended her application for final orders sought, such that she seeks orders that would enable her to live in India with X.  He accepts that the Mother is now without relatives in Australia, supporting such a contention by filing evidence to demonstrate that the Mother's sister has now moved from Melbourne to India.  He notes that India is not a signatory under the relevant Hague Convention.  He asserts that there is a risk of non-return and therefore implicitly a frustration of the proceedings. 

5. The approach to such matters was outlined by Justice Berman in the case of Lees & Halstead[1].  In dealing with such a matter on an interim basis, he adopted what had been said in Marvel[2], noting that interim proceedings are a temporary measure until all evidence can be tested.  Justice Berman commented that a cautious approach in such circumstances, generally on a risk averse basis, should be pursued.  This seems a sensible, even if not mandatory, approach to the exercise of the discretion in matters such as these. 

   [1]Lees & Halstead [2018] FamCA 970

   [2]Marvel v Marvel [2010] FamCAFC 101

6. In determining the matter I am to consider the objects and principles of the Act and am to resolve the matter on the basis of what may be in X's best interests. X’s best interests are to be determined by consideration of the matters outlined at s 60CC of the Family Law Act.  Key amongst those considerations, as being a matter put at risk in these proceedings, is the impact that removal of X and failure to return X may have on the benefits of meaningful relationship between X and her Father. 

7. I note that X has regular contact with her Father, until now seeing him twice a week, although early this morning that was consolidated into a weekly period of time with the Father. 

8. The factors identified by the Father point to a risk.  It may be that at final hearing I determine that there is no such risk, but under the current position where the Mother proposes that there be a final move to India where she has no family here in Australia, they being located in India, and where the proposed travel is to a non-Hague country it is appropriate to opt for a cautious approach protective of the benefits of meaningful relationship between X and her Father.  This means that X would be deprived of the benefit of having time with her maternal family in India and being exposed to her culture in India.  However, it is the former matters that weigh against the application and accordingly the application is dismissed.

9. In this matter each of the parties had sought costs either as a component of the Mother’s Application in a Case or a component of the Father's response.  The general approach in this Court to costs is that set out at s 117 of the Act which is that each party to proceedings under this Act shall bear his or her own costs.

10. Section 117 sets out a series of considerations as to whether or not there should be a departure from that particular approach.  Those considerations are set out at s 117(2A).  The parties have addressed me in relation to the matter.  The Mother urges that I follow the usual rule that each party bear his or her own costs.  The Father asserts that his costs should be met because of the lack of success of the Mother in the proceedings.  I might note that in the Application in a Case the Mother has been wholly unsuccessful.

11. Of the matters under s 117(2A) that appears to have been the only matter that has been raised in this particular instance.  The complete lack of success of the Mother in her proceedings is sufficient to justify an order as to costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 19 August 2019.

Associate:

Date:  21 August 2019