Sawant and Karanth - [2014] FamCA 510

FAMILY COURT OF AUSTRALIA

SAWANT & KARANTH

[2014] FamCA 510

FAMILY LAW – CHILDREN – International relocation – Where the parties have a long-standing conflictual relationship – Family violence – Risk of harm – Where the father’s attitude to the child and responsibilities of parenthood are in issue – Where the father has a limited but developing relationship with the child – Whether there is a benefit to the child having a meaningful relationship with both parents – Where India is not a signatory to the 1980 Hague Child Abduction Convention or the 1995 Hague Child Protection Convention – Where the child is to live with the mother – Where the presumption of equal shared parental responsibility is rebutted by family violence – Whether it is in the child’s best interests to permit the child to relocate to India with the mother – What time the child should spend with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2),(3) and (4), 61DA, 65DAA

AMS and AIF (1999) 199 CLR 160
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755
Malcolm & Monroe and Anor (2011) FLC 93-460
Mazorski v Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483
Morgan & Miles (2008) 38 Fam LR 275, (2007) FLC 93-343
Muldoon & Carlyle (2012) FLC 93-513
Sayer & Radcliffe and Anor (2013) 48 Fam LR 298
Taylor & Barker (2007) 37 Fam LR 461

APPLICANT:

Mr Sawant

RESPONDENT:

Ms Karanth

INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

FILE NUMBER:

MLC

8166

2010

DATE DELIVERED:

14 July 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

5, 6, 7 and 8 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O'Brien

SOLICITOR FOR THE APPLICANT:

Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schroder

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW Parramatta

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Snelling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders

That the mother be permitted to relocate to India with the child K, born … 2010, (“the child”) forthwith.
That the mother have sole parental responsibility for the child.
That the child live with the mother.
That the child spend time with the father as agreed between the mother and father in writing, with such writing to include email and/or SMS communication and, in default of agreement, as follows:
(a)By Skype or FaceTime communication or such other appropriate visual electronic communication medium at least twice per week between the hours of 5.00 pm. and 7.00 pm New Delhi time on Wednesday and Sunday evenings.
(b)For a period of not less than ten (10) days in India in each twelve (12) month period from the date of these Orders to coincide with the child’s long summer school holiday period, with the mother within fourteen (14) days of the father informing the mother of his proposed travel booking of return economy class airfares from Sydney to New…

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 Sawant and Karanth

Details

AGLC: Sawant and Karanth [2014] FamCA 510
Case: [2014] FamCA 510
Decision Date: 14 July 2014

CaseChat Overview and Summary

The case of *Sawant and Karanth* concerned an application by the mother for permission to relocate with the child, K, born in 2010, to India. The father opposed this relocation. The matter came before Foster J.

The primary legal issues before the court were whether the mother should be permitted to relocate to India with the child, and what parenting orders should be made to govern the child's living arrangements, parental responsibility, and time spent with each parent, particularly in light of the proposed international relocation. The court was also required to consider the practicalities of international travel for the child and the father's ability to spend time with the child.

Foster J ordered that the mother be permitted to relocate to India with the child forthwith. The court granted the mother sole parental responsibility and ordered that the child live with her. The father was to spend time with the child as agreed in writing, with detailed provisions for communication via electronic means and for the father's time with the child in India and Australia in default of agreement. The court also made orders regarding the child's international travel, including removal from the Airport Watch List. To facilitate the father's time with the child and ensure compliance with the orders, the mother was restrained from applying for the child's passport until a sum of AUD$25,000 was paid to the father's solicitors, to be held in trust. The mother was also ordered to use her best endeavours to procure the discontinuance of any proceedings in India against the father or his family. All outstanding applications were dismissed.

Orders

Orders of the court

That the mother be permitted to relocate to India with the child K, born … 2010, (“the child”) forthwith.

That the mother have sole parental responsibility for the child.

That the child live with the mother.

That the child spend time with the father as agreed between the mother and father in writing, with such writing to include email and/or SMS communication and, in default of agreement, as follows:

(a) By Skype or FaceTime communication or such other appropriate visual electronic communication medium at least twice per week between the hours of 5.00 pm. and 7.00 pm New Delhi time on Wednesday and Sunday evenings.

(b) For a period of not less than ten (10) days in India in each twelve (12) month period from the date of these Orders to coincide with the child’s long summer school holiday period, with the mother within fourteen (14) days of the father informing the mother of his proposed travel booking of return economy class airfares from Sydney to New Delhi at the best fare reasonably available three (3) months prior to his travel, to facilitate payment of such fares on behalf of the father and in relation to such periods:

(i) That on the first occasion of the father’s travel to India, provided that such travel shall be no more than twelve (12) months after the father last spent time with the child in Australia, the child spend time with the father on the first three (3) days of such period on a day basis between the hours of 10.00 am and 3.00 pm, thereafter for four (4) days on a day basis from 9.00 am to 5.00 pm, thereafter from 9.00 am on the next day to 5.00 pm on the day following and thereafter from 9.00 am on the next day for two (2) consecutive nights concluding at 5.00 pm on the last day, and otherwise as agreed to by the mother and father;

(ii) That on the second and each subsequent occasion of the father’s travel to India, provided that such travel shall be no more than twelve (12) months after the father last spent time with the child in India or Australia, the child shall spend time with the father from 9.00 am to 5.00 pm on the first two (2) days and thereafter from 9.00 am on the next day for two (2) consecutive nights concluding at 5.00 pm after the last night and then from 9.00 am on the next day for four (4) consecutive nights to 5.00 pm on the last day, and otherwise as agreed to by the mother and father.

(c) On other occasions that the father is able to travel to India upon him providing to the mother not less than one (1) months’ notice in writing of his intended travel, at such times as are agreed between the mother and father, and in default of agreement, from 9.00 am to 5.00 pm on the first two (2) days and thereafter from 9.00 am on the next day for two (2) consecutive nights concluding at 5.00 pm after the last night and then from 9.00 am on the next day for four (4) consecutive nights to 5.00 pm on the last day and thereafter as agreed, provided always that if such period is during school term, the father shall ensure the regular and prompt attendance of the child at school whilst the child is spending time with him.

(d) For a period of not less than seven (7) days in Australia in each twelve (12) month period from the date of these Orders, from 9.00 am to 5.00 pm on the first two (2) days and thereafter from 9.00 am on the next day for two (2) consecutive nights concluding at 5.00 pm after the last night and then from 9.00 am on the next day for three (3) consecutive nights to 5.00 pm on the last day and thereafter as agreed, with such period to coincide, if possible, with the child’s school holidays in India upon the mother giving to the father not less than three (3) months’ notice in writing of such period and provided always that the mother shall pay the cost of the child’s return economy class airfares to Australia and the child be accompanied by the mother or a person known to the child nominated by the mother until such time as the child is able to travel internationally as an unaccompanied minor.

(e) On such other occasions as the mother and child may be in Australia as agreed between the mother and father with times the child is to spend with the father to approximate the times provided for in (d) above.

That the child K, a male, born … 2010, be permitted to travel internationally and that, for this purpose, the child’s name be removed from the Airport Watch List (PACE Alert System).

That the mother be restrained from applying for a passport for the child until such time as she has facilitated the sum of AUD$25,000 being paid to the father’s solicitors, Rafton Family Lawyers, to be held by that firm in a controlled interest-bearing money account in trust for the father and the mother, with funds from that account to be applied:

(a) as directed by the mother and the father jointly in writing;

(b) in payment to the father of the cost of his airfares in travelling to India in the event that the mother fails to pay for the father’s airfares, as provided for in the Orders above; or

(c) in payment of the balance remaining in the account in the event that the mother fails to comply with the Orders above as to the child’s time with the father in Australia and such sum may be applied by the father as he sees fit in seeking to enforce the compliance by the mother with her obligations provided for in these Orders either in Australia or in India, and any travel expenses reasonably incurred by the father in so doing.

That subject to the payment of AUD$25,000 as provided for in the Orders above being confirmed by the father’s solicitors, Rafton Family Lawyers, the mother, Ms Karanth, may apply for a passport for the child, born … 2010, without first obtaining the consent of the father, Mr Sawant.

That the mother use her best endeavours to procure for herself and other members of her family the discontinuance of any proceedings commenced as against the father or any member of his family in India so as to facilitate the father travelling to India without risk of arrest or the existence of any proceedings against him or his family.

All outstanding applications be dismissed.

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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