FAMILY COURT OF AUSTRALIA
| SAWANT & KARANTH | [2014] FamCAFC 235 |
| FAMILY LAW – CHILDREN – International Relocation – Best Interests of Child – Where mother proposes to relocate with child to India – Where father proposes that the mother continue to be the child’s primary carer in Australia – Where trial judge considered the mother’s allegations of violence against the father, mental health and social and economic circumstances in Australia – Whether the trial judge placed too little weight on the legal dismissal of acts of violence – Whether the trial judge ought to have applied a higher standard of proof in relation to allegations of acts of violence – Where the judge was satisfied that in the circumstances the child’s best interests are served by the mother’s proposed relocation to India. |
| Family Law Act 1975 (Cth) |
| A v A (1998) FLC 92-800 Amador & Amador (2009) 43 Fam LR 268 AMS v AIF; AIF v AMS (1999) 163 ALR 501 Briginshaw v Briginshaw (1938) 60 CLR 336 Goode and Goode (2006) FLC 93-286 M v M (1988) 166 CLR 69 M v S (2007) FLC 93-313 Taylor v Barker (2007) 37 Fam LR 461 U v U (2002) 211 CLR 238 |
| APPELLANT: | Mr Sawant |
| RESPONDENT: | Ms Karanth |
| INDEPENDENT CHILDREN'S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | MLC | 8166 | of | 2010 |
| APPEAL NUMBER: | EA | 94 | of | 2014 |
| DATE DELIVERED: | 5 December 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Murphy and Watts JJ |
| HEARING DATE: | 17 September 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 July 2014 |
| LOWER COURT MNC: | [2014] FamCA 510 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hughes |
| SOLICITOR FOR THE APPELLANT: | Thexton Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Druitt |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Moore |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Robertson Solicitors |
Orders
Made on 17 September 2014
IT IS ORDERED:
The appeal be dismissed.
Paragraph 2 and paragraph 4 of the orders of Justice Foster made on 28 July 2014 are discharged and the name of the child, a male born July 2010, be removed from the Airport Watch List (PACE Alert System).
To the extent that paragraph 3 of the orders of Justice Foster made on 28 July 2014 requires the mother to provide to the registry of this court a passport for the child, such order is discharged
No order as to costs.
IT IS FURTHER ORDERED BY CONSENT:
Until the mother and child leave Australia, the father spend time with the child in terms of paragraph 4 of the orders of Justice Foster made 28 July 2014 or for such other times as agreed by the parties.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sawant & Karanth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA94 of…
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- Sawant & Karanth [2014] FamCAFC 235
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- [2014] FamCAFC 235
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CaseChat Overview and Summary
The court considered whether the trial judge had appropriately weighed the legal dismissal of the mother's allegations of violence against the father and whether a higher standard of proof should have been applied to these allegations. Additionally, the court examined whether the trial judge had correctly determined the child's best interests in light of all the evidence presented. The trial judge had concluded that the child's best interests were served by the mother's proposed relocation to India, taking into account the factors that were relevant to the decision. The Full Court found no error in the trial judge's assessment and upheld the decision in favour of the relocation.
The Full Court dismissed the father's appeal, affirming the trial judge's orders. The court discharged certain orders made by the trial judge, including removing the child's name from the Airport Watch List and discharging the requirement for the mother to provide a passport for the child. The court also ordered that until the mother and child leave Australia, the father would have access to the child in accordance with the previous orders or as otherwise agreed by the parties. There was no order regarding costs. The final orders of the court reflect the conclusion that the relocation to India was in the child's best interests.
Orders
Orders of the court
Made on 17 September 2014
IT IS ORDERED:
1.
The appeal be dismissed.
2.
Paragraph 2 and paragraph 4 of the orders of Justice Foster made on 28 July 2014 are discharged and the name of the child, a male born July 2010, be removed from the Airport Watch List (PACE Alert System).
3.
To the extent that paragraph 3 of the orders of Justice Foster made on 28 July 2014 requires the mother to provide to the registry of this court a passport for the child, such order is discharged
4.
No order as to costs.
IT IS FURTHER ORDERED BY CONSENT:
5.
Until the mother and child leave Australia, the father spend time with the child in terms of paragraph 4 of the orders of Justice Foster made 28 July 2014 or for such other times as agreed by the parties.
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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