Prasad and Prasad

[2007] FamCA 375

FAMILY COURT OF AUSTRALIA

PRASAD & PRASAD [2007] FamCA 375

FAMILY LAW - CHILDREN - ORDERS - Variation - Overseas travel

Family Law Act 1975 (Cth)

APPLICANT: MR PRASAD

RESPONDENT: MRS PRASAD

FILE NUMBER: MLC 4217 of 2007

DATE DELIVERED: 19 APRIL 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 19 APRIL 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR DICKSON

SOLICITOR FOR THE APPLICANT: GADENS LAWYERS

COUNSEL FOR THE RESPONDENT: MS GOMES, DUTY SOLICITOR

Orders

1. THAT the Husband be at liberty to remove the child of the marriage, the younger son born in April 2004 from the Commonwealth of Australia and travel to India only for the period 21 to 30 April 2007 inclusive.

2. THAT paragraph 6 of the Orders made by consent on 7 March 2007 be suspended in relation to the child the younger son for the period 21 April to 1 May 2007.

3. THAT a sealed copy of these Orders be served by the Husband’s solicitors upon:

   a)the Australian Federal Police, with the request that they give effect to paragraphs 1 and 2; and

   b)the Wife at the Address for Service filed by her with the Court this day.

4. THAT no later than 10:30 a.m. on 20 April 2007, the Husband cause to be deposited with his solicitors, Gadens Lawyers of […], the sum of $15,000 (“the sum”), which is to be held by the said solicitors until the later of:

   c)4 May 2007; or

   d)Mr W being satisfied of the younger son having returned to the Commonwealth of Australia (and advising the Wife by SMS); and

   e)any other Order of the Court.

5. THAT the solicitors for the Husband confirm with the Wife by telephone and SMS no later than 12.00 noon on 20 April 2007 receipt by them of the sum.

6. THAT the Husband cause the younger son to telephone the Wife on a daily basis for a reasonable period not to exceed thirty (30) minutes on her mobile telephone during his stay in India.

7. THAT all extant applications be otherwise dismissed and removed from the List of Cases Awaiting Determination.

8. THAT the reasons for judgment this day be transcribed, be placed on the Court file and be made available to the parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the husband.

2. That pursuant to s.65DA(2) and s.62B of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   IT IS NOTED:

A.THAT the Court facilitated a telephone link up with the Wife, who was present, via that link, for the duration of the hearing.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4217 of 2007

MR PRASAD

Applicant

And

MRS PRASAD

Respondent

REASONS FOR JUDGMENT

1. The matter of Prasad is listed in the Judicial Duty List this day and I am asked to determine whether the husband and the youngest child of the marriage can depart Australia for the purposes of brief visit and holiday to India.

2. Mr Dickson of counsel appears for the husband.  Ms Gomes, as the duty lawyer, is representing the wife.  The wife is currently in Queensland but has been contacted on her mobile telephone and is listening to the matters in court.

3. The proceedings were commenced by a Form 1 and Form 2 application filed 17 April 2007.  The specific orders sought therein are that the husband be at liberty to remove the youngest child, a son, born in April 2004, from Australia and to travel to India for an amended period, which is now between 21 April and 30 April (inclusive) 2007. 

4. For that to occur it will be necessary for there to be an uplifting of the current airport watch list order.  The wife has instructed her solicitor to oppose those orders.  Her primary position is that the child should not be permitted to depart Australia.

5. In the alternative her position is that the husband must lodge a bond of $40,000 AUD with the court and that the elder of the child, the elder son, born in April 1998, should, at the husband's expense, fly to Queensland and spend the period, whilst he and the other child are overseas, in the presence and company of the wife.

6. The other issue raised by the mother is as to the medical security and safety of the child and the necessity for a doctor to give a clear direction to the court that all medical procedures and vaccinations have been complied with.  The husband has given assurances that he will ensure that the younger son is at all times medically safe and not exposed to any unnecessary risk.

7. A certificate has been annexed to the affidavit filed by leave as to the condition of the 95‑year‑old family member in India and that his condition is very critical and that the prognosis is said to be "very bad".

8. In support of the application the father has signed an affidavit which I have read and likewise an affidavit of his solicitor, Mr W, has been filed with the court and I have read that document also. 

9. The history of this matter is of some length in the court but it is most recently encapsulated within final orders made by consent and those orders are exhibited to the affidavit of the husband.  The effect of those orders are that all prior orders are discharged and as of 7 March 2007 orders were made for the two children to live with the husband and spend time with the wife.  That time is essentially in first and third Victorian school vacation periods.  I understand that the children have just returned from spending that time in Queensland.  Paragraph 6 of that order provides the airport watch list order and otherwise with some particularity I have read the various notations to the order, including the fact that the family report recommended that the children live with the wife.  Notwithstanding that, and after legal advice, the wife consented to the orders and accordingly, the children now reside in the residence of the husband in Melbourne.  There is, of course, the usual and appropriate order for the parents to have shared equal parenting responsibility.

10. I indicate I have read all of those orders and understand the agreement that the parties reached only last month and which orders are final.

11. With that background and having a clear understanding of what both parties agreed I will certainly allow the father to travel to India for the period of eight or nine days as requested.  The specific dates will be in accordance with the exhibit and the Qantas airline schedule of flights departing 21 April and returning 30 April (inclusive).

12. I will provide for appropriate orders to uplift the airport watch list order and so amend that order to permit the youngest child to fly out of the Commonwealth of Australia and thereafter to return with his father to his homeland.  I am wholly satisfied that there is the very, very real likelihood, indeed almost certainty, that the father will return to Australia.  The other child is and remains in Australia.  I am satisfied that the two children will be reunited.

13. One of the issues raised by the wife was as to the care that the father would take of, and whether it is in the best interest of the child to so travel and I find as a fact that the father will provide an appropriate level of care for his youngest child. 

14. On the question of a bond or security the wife seeks $40,000 to be lodged.  In the context of this case I would have thought that the greatest security is first that consent orders have recently been made by consent and the wife was comfortable for the children to then live with their father or otherwise that one of the children, the eldest child, remains in Australia.  Nevertheless, Mr Dickson has indicated that his client can transfer a sum of money to be held on trust by the solicitor for the husband, pending the husband's return.  I am persuaded therefore that there is the opportunity to provide for that order.  I will require a far modest sum than $40,000.  I am going to require $15,000 to be lodged in the solicitor's account pending further order or the return of the child to Australia.

15. If, of course, the husband does not return the child in accordance with the orders that I will pronounce, there will be liberty to apply so that the wife can access those moneys for recovery or legal proceedings or travel costs.

16. I will require the youngest child to talk to his mother by telephone each day whilst overseas and the husband will have to facilitate that particular requirement.

17. I will specifically order that the existing airport watch list be suspended to facilitate the overseas travel and additionally and by way of a specific order for absolute clarity, that the husband be permitted to take the child, the younger son, out of the Commonwealth of Australia for the period commencing 21 April and until 30 April of this year.

18. It will be the responsibility of the father's solicitor to serve a copy of that order upon Australian Federal Police and also upon the wife at her current address for service which Ms Gomes will have to provide to the court. 

19. I will have these reasons transcribed and placed upon the court file.  For completeness and certainty in this matter I will make an order that the files in MLF 1912 of 2006 and MLC 4217 of 2007 be consolidated.

20. I will not be ordering the requirement for the eldest child to travel to Queensland and to have that week in Queensland.  The child has only just returned.  He is in Melbourne.  It was envisaged under the orders that he would be in Melbourne.  He is with members of the husband's family.  There can be no issue or concern as to safety and I am not going to further interrupt his lifestyle by another travel to Queensland at a substantial cost to the father.

21. There are orders in place for time to be spent and the parties agreed to those only last month and they can remain and what the parties agreed to will be and remain the situation. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………
Associate: 
Date: 2 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PRASAD & PRASAD