SATHRA & SATHRA

[2009] FamCA 975

FAMILY COURT OF AUSTRALIA

SATHRA & SATHRA [2009] FamCA 975

FAMILY LAW – PRACTICE AND PROCEDURE – CHILDREN – Review application in the nature of an enforcement application relating to the implementation of Orders previously made allowing the father to remove the children from Australia – Children’s names placed on airport watchlist as sought by the mother, pending hearing of the her interim application
FAMILY LAW – COSTS – Each party to pay their own costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Sathra

RESPONDENT: Ms Sathra

FILE NUMBER: SYF 5076 of 2003

DATE DELIVERED: 9 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 9 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fernie (Solicitor advocate)

COUNSEL FOR THE RESPONDENT: In Person

Orders

1. The husband’s application for review filed 8 January 2009 be granted. 

2. The Orders made by Judicial Registrar Loughnan on 23 December 2008 be discharged.

3. The wife is to file and serve any Amended Application for Final Orders on or before 8 May 2009.

4. The wife’s Response to an Application in a Case filed 6 April 2009 be listed before Registrar Crawford on 18 May 2009 at 9.30 am by telephone.

5. The husband’s Application in a Case filed 6 January 2009 is withdrawn and dismissed.

6. Pending the close of business 18 May 2009 the father and the mother and each of their servants and agents are restrained from taking or sending or attempting to take or send the children L (a female) born … March 2000 and M (a female) born … January 1998 from Australia.

7. The Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

8. The Court requests that until the close of business 18 May 2009 the Australian Federal Police place the name of the children L and M on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.

9. In relation to the review application determined by me today, each party is to pay their own costs.

10. The costs application of the husband is otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sathra & McCall-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

Children

1. Before the Court is an Application for Review filed by the husband on 8 January 2009.  The Orders sought to be reviewed are those made by Judicial Registrar Loughnan on 23 December 2008.  On that day before the Court was an Application filed by the father on 18 December 2008 and an Application by the mother filed 19 December 2008. 

2. The application of the father was really in the nature of an enforcement application insofar as he was seeking machinery orders to assist in the implementation of Order 15 made by Justice Steele on 12 April 2006.  That Order allowed the father to be able to remove the children from Australia upon giving 42 days notice to the mother and upon other conditions being met. 

3. The father sought orders that the names of the children, should they have been placed on the airport watch list, be removed to enable him to leave Australia on 4 January 2009.

4. The Application in a Case filed by the mother on 19 December 2008 sought an order that the parties be restrained from removing the children from Australia until further order and that the children's names be placed on the airport watch list.

5. At the time those applications were filed there was no application before the Court seeking final orders.  The Judicial Registrar, after some submissions and discourse with the parties, made orders on 23 December 2008. 

6. The first of those Orders restrained the father from removing the children from Australia for the purposes of travelling to India.  The father has no present plan to remove the children from Australia again until the end of the year and certainly no current plan to remove the children to India.  The circumstances were that he had arrangements and plans to take them to India during the last summer holiday but those plans have now been circumvented by the Orders of the Court.

7. The Judicial Registrar noted consent having been granted by the mother to the father being able to remove the children between 5 January 2009 and 28 January 2009, or such other days as the parties may agree, to a country which is a signatory of the Hague Convention and for which the Australian Department of Foreign Affairs and Trade has no travel advisory more serious than that travellers be alerted to their own security.  That order was clearly an interim order and was designed to cater for the Christmas school holidays at the end of 2008/ early 2009. 

8. In support of that Order the Judicial Registrar made an order that permitted the children to be able to leave Australia and sought the assistance of the Australian Federal Police in giving effect to the orders.  That Order was clearly directed at the airport watch list.  There is no evidence, however, that at this time there is an order placing the children's names on the airport watch list. 

9. At the time the Judicial Registrar made the orders (on 23 December 2008) there was no Application for Final Orders and the only jurisdiction available to make them lay in the Court enforcing its own orders.  There is no longer any application for enforcement.

10. It is clear that the mother does wish to pursue final orders for variation of the orders made by Justice Steele on 12 April 2006 to be more restrictive in terms of the circumstances in which the father may remove the children from Australia and the places to which he might take them.  To that end she has undertaken to file an Application for Final Orders by 8 May 2009 and I propose to list that matter as a first return date on 18 May 2009 at 9.30 am.

11. In addition, on 6 April 2009 the wife filed a Response to Application in a Case.  That Application sought interim orders which may go to deal with the interim circumstances which the mother wishes to have addressed and so I propose to also make that application returnable on 18 May 2009 at 9.30 am.

12. The mother in her affidavit material filed in support of her orders sought on 19 December 2008 made a number of serious allegations against the father insofar as it was alleged he had failed to comply with certain orders made 12 April 2006. 

13. Given the circumstances that have unfolded in the latter half of 2008 up to and including the day of the orders made by Judicial Registrar Loughnan on 23 December 2008, and given that the father has no present plan to remove the children from Australia until the end of this year, it is in my view clearly of no detriment to the husband to have the injunction made placing the children's names on the airport watch list. It will preserve the situation as between the parties until a Judicial Officer has an opportunity to hear the mother's interim application, in circumstances where there is an Application for Final Orders before the Court.

Costs

1. Before the Court is an application arising out of the determination by me of the Review Application filed today by the husband.  The husband was wholly successful in having his review application granted. However, the circumstances which arose on 23 December 2008 continue and the wife appears for herself. The wife has an apparent lack of comprehension of the procedures. 

2. The wife had not filed an Application for Final Orders but quite clearly she seeks a variation of orders in the material which she had placed before the Court. The father must therefore be seen as being on notice about that matter and in fact, he seems to have clearly understood that in view of the other orders he was seeking in an application filed on 6 January 2001.

3. Ultimately today I did make an order placing the children’s names on the airport watch list until 18 May 2009 and providing a facility of time for the mother to file an Application for Final Orders to vary the orders of 12 April 2006. 

4. I know nothing of the financial circumstances of the husband, however the wife has provided information to me about her financial circumstances and, to say the least, it does not appear that she is in a position to either fund legal representation or meet costs orders. However, quite apart from that, this is a case which, in my view, requires the provisions of s 114(1) of the Family Law Act 1975 (Cth) to be applied and an order be made that each party pay their own costs. I would therefore dismiss the costs application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  15 October 2009