Prashant & Ashtekar - [2022] FedCFamC2F 1620

Federal Circuit and Family Court of Australia
(DIVISION 2)
Prashant & Ashtekar [2022] FedCFamC2F 1620

File number(s): PAC 5491 of 2022

Judgment of: JUDGE NEWBRUN

Date of judgment: 24 November 2022

Catchwords: FAMILY LAW – Children - Application for children to travel overseas with the Mother to India for a period of six weeks - Proposed travel opposed by Father because of concerns, inter alia, that the children may not be returned - Best interests of children - Mother’s proposed travel with children to India not permitted

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Cases cited:
Banks & Banks (2015) FLC 93-637

Eaby & Speelman (2015) FLC 93-654

Goode v Goode (2006) 206 FLR 212

Kuebler & Kuebler (1978) FLC 90-434

Line & Line (1997) FLC 92-729

Marvel v Marvel (2010) 240 FLR 367

Division: Division 2 Family Law

Number of paragraphs: 67

Date of hearing: 16 November 2022

Place: Parramatta

Solicitor for the Applicant: Ms Morgan

Counsel for the Respondent: Mr Bateman

Solicitor for the Respondent: Unified Lawyers
ORDERS

PAC 5491 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PRASHANT

Applicant

AND:
MR ASHTEKAR

Respondent

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

24 NOVEMBER 2022

PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Mother's proposed passports and travel orders in her proposed Minute of Order set out in her Case Outline filed 14 November 2022 are dismissed.
2.Both parties, namely Mr Ashtekar born in 1967 and Ms Prashant born in 1979 and their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the said children X born in 2007 and Y born in 2011 from the Commonwealth of Australia.
3.The Australian Federal Police give effect to this Order by placing the names of the said children on the Family Law Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, or until the Court orders its removal.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Prashant & Ashtekar has been approved pursuant to s 121(9)(g) of the Family…

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 Prashant & Ashtekar

Details

AGLC: Prashant & Ashtekar [2022] FedCFamC2F 1620
Case: [2022] FedCFamC2F 1620
Decision Date

CaseChat Overview and Summary

Prashant and Ashtekar concerned the dispute over the mother's application to travel to India with the children, X and Y, for a period of six weeks. The father opposed this application on the basis that the children may not be returned to Australia, among other concerns. The Federal Circuit and Family Court of Australia (Division 2) was required to decide whether the mother's proposed travel with the children to India would be in their best interests. The court considered the primary considerations under section 60CA of the Family Law Act 1975 (Cth), including the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence.

The court found that the children have a meaningful relationship with the mother, but the restoration of the child Y's relationship with the father may be detrimentally affected if the children are absent from Australia for six weeks. The court also found that the children may be at risk of physical or psychological harm if they remain in India, as the mother may not return them to Australia. The court considered the additional considerations under section 60CC of the Act, including the capacity of each parent to provide for the children's needs and the practical difficulty and expense of the children spending time with and communicating with the father if they remain in India. The court found that the risk of the children not being returned to Australia from India was significant, and that the financial circumstances of both parties did not provide a sufficient basis for the mother to travel to India with the children.

The court concluded that it would not be in the best interests of the children to make orders permitting the mother to travel to India with them as proposed. The mother's proposed passports and travel orders were dismissed, and both parties were restrained from removing the children from Australia. The Australian Federal Police were directed to place the children's names on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period or until the Court orders its removal.

Orders