FAMILY COURT OF AUSTRALIA
| SADASIVAM & SESHAN | [2019] FamCAFC 76 |
| FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – Overseas Travel – Where the destination is not a signatory to the Hague Convention – Where the primary judge made orders in March 2019 temporarily suspending both an interim injunction restraining the child’s removal from Australia and an interim airport watch list order, which orders were made in September 2017 – Where the mother’s application to suspend the interim orders was made on the mistaken basis that the interim orders were still operable and survived the final consent orders made in August 2018 – Where the final consent orders conferred equal shared parental responsibility for the child upon the parties and did not preserve the interim injunction and interim airport watch list order – Where the father is concerned the mother is a flight risk and she will not return to Australia with the child – Where the appeal succeeds for reasons unrelated to the grounds of appeal – Where the grounds of appeal are considered but were misconceived – Where the appealed orders were made pursuant to errors of law – Where no material deprivation of procedural fairness – Where factual findings made by the primary judge were open on the evidence – Where there is no valid application to remit for re-hearing – Where an order made to dismiss the mother’s application – Where no option but for the appeal to succeed and the orders set aside – Where a single judge of the Full Court declares all interim orders made prior to the final consent orders concerning the child are discharged – Where the party seeking to travel with the child outside Australia will need to file fresh proceedings if the parties cannot reach agreement in exercise of their equal shared parental responsibility. FAMILY LAW – COSTS – Where appeal successful – Where the appeal succeeds on questions of law unrelated to the pleaded grounds of appeal – Where the parties sought costs certificates – Where the grounds of appeal were misconceived and the appellant’s costs needlessly incurred – Where the respondent was only represented on the day of the appeal and had no prior costs to recoup – Where no valid application to remit for rehearing – Where grant of costs certificates refused. |
| Family Law Act 1975 (Cth) ss 60CA, 65AA, 65DAC, 93A, 94AAA, Federal Circuit Court Rules 2001 (Cth) rr 1.05, 4.01 |
| De Winter and De Winter (1979) FLC 90-605 Fatimi Pty Ltd v Bryant [2002] NSWSC 750 Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Klewer v Official Trustee in Bankruptcy (No.2) [2010] NSWCA 258 Marriage of Millar (1983) FLC 91-326; [1983] FamCA 21 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Repatriation Commission v Nation (1995) 57 FCR 25 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Stead v State Government Insurance Commission (1986) 161 CLR… |
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- AGLC
- Sadasivam & Seshan [2019] FamCAFC 76
- Case
- [2019] FamCAFC 76
- Decision Date
CaseChat Overview and Summary
The court found that the appeal succeeded for reasons unrelated to the grounds of appeal as initially pleaded. The primary judge's orders were made in error, and there was no material deprivation of procedural fairness. The factual findings made by the primary judge were open to the evidence presented. The court also noted that no valid application was made to remit the case for re-hearing. Consequently, the court declared all interim orders made prior to the final consent orders concerning the child to be discharged. It was determined that the party seeking to travel with the child outside Australia would need to file fresh proceedings if the parties could not reach an agreement in exercising their equal shared parental responsibility.
The appeal was allowed, and the orders made by Judge A. Kelly of the Federal Circuit Court on 18 March 2019 were set aside. The mother's application filed on 30 January 2019 was dismissed. The court declared that all interim orders concerning the child made prior to the final orders of 1 August 2018 were discharged. Given the circumstances of the case, including the misconceived grounds of appeal and the needless costs incurred by the appellant, the parties' application for costs certificates pertinent to the appeal under the Federal Proceedings (Costs) Act 1981 was dismissed. The form of the order is subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The appeal is allowed and Orders 2 to 7 inclusive made by Judge A. Kelly of the Federal Circuit Court of Australia on 18 March 2019 are set aside.
2.
The Application in a Case filed by the respondent on 30 January 2019 is dismissed.
3.
It is declared that any and all interim orders concerning the child, born on 19 June 2016, under Part VII of the Family Law Act 1975 (Cth) made prior to the final orders of 1 August 2018 are discharged.
4.
The parties’ application for costs certificates pertinent to the appeal under the Federal Proceedings (Costs) Act 1981 (Cth) are dismissed.
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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