NASHI & SHONA - [2014] FamCA 706

FAMILY COURT OF AUSTRALIA

NASHI & SHONA

[2014] FamCA 706

FAMILY LAW – PARENTING – Application by mother seeking permission for international travel – child aged 7 – purpose of travel to visit extended maternal family in Country D – father has no contact with the child for 12 months as a consequence of pending criminal proceedings – significance of Country D becoming a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980 – mother required to pay security bond – order made facilitating overseas travel

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

Re R [2014] EWHC 2802 (FAM)
Marvel [2010] FamCAFC 101
Goode [2006] FamCA 1346

APPLICANT:

Mr Nashi

RESPONDENT:

Ms Shona

INDEPENDENT CHILDREN’S LAWYER:

Marsdens Law Group

FILE NUMBER:

PAC

3419

2013

DATE DELIVERED:

18 August 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

18 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mahony Family Lawyers

Marsdens Law Group

Orders

The Father’s application for an adjournment is dismissed.
The child B born … 2007 is permitted to travel internationally.
The Mother may apply for a passport for the said child B born … 2007 without first obtaining the consent of the Father.
The Mother do provide to the Father a full itinerary relating to the overseas travel proposed by her including details of air travel, destination and accommodation and contact details for the Mother and the child as soon as practicable before departure and in any event not less than 14 days before departure.
The child’s passport remain in the custody and possession of the Mother.
Not less than 14 days prior to her departure from Australia for the purposes of these orders the Mother deposit with her solicitor the cash sum of $5,000 to be held on trust for both parties and to be disbursed as follows:
(a) To be repaid to the Mother in full on her return to Australia; or
(b)To be paid on account of any legal and other appropriate fees incurred by the Father in the event that the Mother fails to return the child to Australia and for the purposes of this order the Father shall provide all necessary invoices and accounts to the Mother’s solicitor for payment.
The proceedings be listed before the Docket Registrar on Monday 10 November 2014 at 11:00am for further directions.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.
Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

IT IS NOTED THAT:

A.The Father on 12 May 2014 filed a Response seeking dismissal of the Mother’s parenting application but no other orders. In due course it will be necessary for the Father to file an amended response setting out with particularity parenting orders sought by him.

IT…

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 NASHI & SHONA

Details

AGLC: NASHI & SHONA [2014] FamCA 706
Case: [2014] FamCA 706
Decision Date: 18 August 2014

CaseChat Overview and Summary

The case of *Nashi & Shona* concerned an application by the Mother for permission for the child, B, born in 2007, to travel internationally. The Father opposed this application. The matter came before Foster J.

The primary legal issue before the court was whether to grant the Mother's application for international travel for the child, and if so, under what conditions. This involved determining the best interests of the child in the context of proposed overseas travel and the father's concerns.

Foster J dismissed the Father's application for an adjournment. The court permitted the child B to travel internationally and allowed the Mother to apply for a passport for the child without the Father's consent. The court also made detailed orders to safeguard the Father's interests, including requiring the Mother to provide a full itinerary and contact details for the proposed travel at least 14 days before departure. The child's passport was to remain in the Mother's custody. Furthermore, the Mother was ordered to deposit $5,000 with her solicitor, to be held on trust. This sum was to be repaid to the Mother upon her return, or disbursed to cover the Father's legal fees if the Mother failed to return the child to Australia, with the Father to provide necessary invoices. The proceedings were listed for further directions, with liberty granted to the Independent Children's Lawyer to relist the matter on short notice and to have photocopy access to subpoenaed documents.

Orders

Orders of the court

The Father’s application for an adjournment is dismissed.

The child B born … 2007 is permitted to travel internationally.

The Mother may apply for a passport for the said child B born … 2007 without first obtaining the consent of the Father.

The Mother do provide to the Father a full itinerary relating to the overseas travel proposed by her including details of air travel, destination and accommodation and contact details for the Mother and the child as soon as practicable before departure and in any event not less than 14 days before departure.

The child’s passport remain in the custody and possession of the Mother.

Not less than 14 days prior to her departure from Australia for the purposes of these orders the Mother deposit with her solicitor the cash sum of $5,000 to be held on trust for both parties and to be disbursed as follows:

(a) To be repaid to the Mother in full on her return to Australia; or

(b) To be paid on account of any legal and other appropriate fees incurred by the Father in the event that the Mother fails to return the child to Australia and for the purposes of this order the Father shall provide all necessary invoices and accounts to the Mother’s solicitor for payment.

The proceedings be listed before the Docket Registrar on Monday 10 November 2014 at 11:00am for further directions.

Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.

Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

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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