Sathra and Sathra

[2008] FamCA 1212

FAMILY COURT OF AUSTRALIA

SATHRA & SATHRA [2008] FamCA 1212

FAMILY LAW – CHILDREN – Travel – Restraint

Family Law Act 1975 (Cth)

APPLICANT: Mr Sathra

RESPONDENT: Ms Sathra

FILE NUMBER: SYF 5076 of 2003

DATE DELIVERED: 23 December 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan, JR

HEARING DATE: 23 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Applicant In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Reid Family Lawyers

Orders

1. That the father be restrained from removing or causing the removal of the children M born … January 1998 and L born … March 2000 from the Commonwealth of Australia for the purposes of travel to India pending further order.

2. On the basis of the mother’s consent leave is granted to the father to cause the children to be removed from the Commonwealth of Australia between 5 January 2009 and 28 January 2009 or such other days as the parties may agree on in writing, to a country which is a signatory to the Hague Convention on Civil Aspects of International Child Abduction and in respect of which the Australian Department of Foreign Affairs and Training has no travel advisory more serious than “travellers be alert to their own security”.

3. The Court requested the assistance of the Marshal of this Court and of the Australian Federal Police in giving effect to these orders and in particular permitting the children to leave the Commonwealth of Australia for travel in accordance with Order 2.

IT IS NOTED

1. The parties agree that the children are to live with the father for the purposes of the Christmas school holidays commencing at 10:00 am on 4 January 2009.

IT IS NOTED that publication of this judgment under the pseudonym Sathra and Sathra is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 5076  of 2003

MR SATHRA

Applicant

And

MS SATHRA

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to travel for two children, M born in January 1998, and L born in March 2000.

2. Some orders were made in 2006 which provided for the parties to arrange overseas travel for the children.  There were conditions to the orders which included the giving of 42 days prior written notice.  The father gave that notice in this instance in relation to proposed travel to India.  He has family connections in that part of the world.  He sent a letter, I think by registered post, to the mother.  Because she thought it related to financial issues between the parties - I do not know what they are - she decided that she would not open the letter, and returned it to sender.

3. Because they enjoy a poor relationship, in subsequent communications between the parties the issue of overseas travel was not addressed. Having given the required notice, the father proceeded to make preparations for the travel.  The mother complains that that includes having the children immunised in relation to some medical conditions. That was undertaken out of abundant caution rather than necessity. The father tried to arrange that through the medical centre that the parties are required to use under the Court orders.  That centre was not available to him for some reason, so he took the children to another centre. That is technically a breach of the orders. I think he took the children out of school without giving notice to the mother for that purpose.  That is technically a breach of the orders.

4. The case is about whether the children should travel to India in January.  The mother lists a number of reasons why she opposes it.  She opposes it because India is not a Hague convention country; she opposes it because the children do not always enjoy perfect health; she opposes it because of the adverse travel advisories based on violent attacks that occurred in Mumbai and elsewhere in November, and she says that it is not safe.

5. This is rehearing of an issue that the parties agitated last Christmas in relation to travel to the United States.  The parties’ court file, travels in five or six large boxes. The proceedings commenced in 2003.  The trial Judge who saw the parties last December said that the mother’s opposition to the travel was wholly vexatious and without merit, and made a costs order against the mother and ultimately, although a bit late, the travel proceeded.

6. In those circumstances there is no issue about the Hague convention.  In 2006 the Court decided that it was appropriate that there be overseas travel, in 2007 the Court decided it was appropriate that there be overseas travel and if the father had wanted to retain the children in the United States, or whatever, that would have caused some mischief, and it was not done.  The children have been returned.  That is not an issue in my view. 

7. There is no issue about the children’s health, there is nothing to suggest that the father is disqualified in relation to his judgment about caring for them.

8. However, there is an issue about the safety of the travel. The Department of Foreign Affairs and Trade has issued a travel advisory as at yesterday, which puts India at the second highest category of alert.  The highest category is ‘do not travel’, the second highest category is that ‘people reconsider the need to travel’.  Next back from that is ‘a high degree of caution’, the next back from that is ‘exercise caution’, and the lightest concern is ‘be alert at your own security’. The advisory says that on 26 and 27 November in Mumbai there was a series of coordinated terrorist attacks in a number of locations, two luxury hotels and a number of other placed.  170 people were killed, more than 300 were injured, Australians were among the casualties.  Specifically there is an advisory not to travel in Jammu or Kashmir and there should be vigilance in relation to special days, and we are coming up for a public day which is 26 January. 

9. Going backwards, on 2 December 2008 there was a bomb explosion at Dishnu railway station killing two people injuring 15; 30 October a series of explosions in the north-east, 70 people were killed, hundreds injured; 29 September two explosions in Mudhasa, Gujarat, Malegaon, and another place, three killed, dozens injured in the last mentioned explosion; a flower market in South Delhi 27 September, one person killed a dozen injured; five explosions in New Delhi on the evening of 13 September, 24 killed, 100 injured; 26 July a series of bomb blasts through Ahmadabad, dozens of people killed, 150 injured; five bombs in Bangalore 25 July, and so on.

10. These are things, as I said to the parties during the course of submissions, that people disagree about.  If Court permission is sought, and that was the purpose of the orders in 2006, 42 days notice was to enable the parties to bring the matter to Court where there was a dispute.  As I say, I do not think there is any merit in the mother’s concerns in relation to most things, but in relation to the travel advisories, that is what they exist for.

11. I will not permit the travel.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan

Associate: 

Date: 24 February 2009