Mohan and Modi - [2017] FamCA 5

FAMILY COURT OF AUSTRALIA

MOHAN & MODI

[2017] FamCA 5

FAMILY LAW – PRACTICE & PROCEDURE – stay – where the mother seeks to stay the proceedings commenced by the father in the Family Court of Australia – where proceedings relating to the child were finalised in India in November 2016 – whether Australia is a clearly inappropriate forum – where the proceedings are stayed.

Kwon & Lee (2006) FLC 93-287
Pascarl & Oxley (2013) FLC 93-536
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

APPLICANT:

Ms Mohan

RESPONDENT:

Mr Modi

FILE NUMBER:

BRC

11056

2011

DATE DELIVERED:

13 January 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

11 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr Cameron

SOLICITOR FOR THE RESPONDENT:

MCH Family Law

Orders

The Initiating Application filed by the father on 25 August 2015 is stayed.
All Applications are to be removed from the list of cases awaiting a hearing.

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 Mohan & Modi 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 BRISBANE

FILE NUMBER: BRC 11056 of 2011

Ms Mohan

Applicant

And

Mr Modi

Respondent

REASONS FOR JUDGMENT

This is an application by Ms Mohan (“the mother”) for a stay of the parenting proceedings commenced by Mr Modi (“the father”) on 25 August 2015.
The application is opposed by the father.

background

The mother and father married in 2006 and separated on a final basis in November 2012. They were divorced in India in January 2015.
The mother and father have one child, B (“the child”) born in 2007.
The mother is thirty-six years of age and registered in Australia as a medical practitioner. She is in Australia on a student visa. The mother is currently undertaking a Master’s Degree and about to submit her final piece of assessment within the next two to three weeks. Thereafter she will be returning to live permanently in India.
The father is forty-two years of age and practises in Australia as a health professional.
The mother and father were born in India and have extensive family still living in India.
The child was born in India but lived in the United Kingdom with her parents for two months in 2008 and two months in 2009. She also lived with her parents in Australia from August 2010 until 5 December 2011. The mother and child returned to India in or about April…

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 Mohan and Modi

Details

AGLC: Mohan and Modi [2017] FamCA 5
Case: [2017] FamCA 5
Decision Date: 13 January 2017

CaseChat Overview and Summary

In the matter of *Mohan and Modi*, Carew J of the Family Court of Australia considered an application by the father, filed on 25 August 2015. The precise nature of the dispute between the parties is not detailed, but the court's orders indicate it involved applications concerning children.

The central legal issue before the court was whether to grant a stay of the father's initiating application and remove all related applications from the hearing list. This suggests the court was asked to consider whether the proceedings should be paused or halted entirely.

Carew J ordered that the father's initiating application be stayed, and that all applications be removed from the list of cases awaiting a hearing. The court's reasoning for these orders is not provided in the extract, but the outcome indicates a decision to halt the progression of the proceedings at that time.

Orders

Orders of the court

The Initiating Application filed by the father on 25 August 2015 is stayed.

All Applications are to be removed from the list of cases awaiting a hearing.

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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