Seshan and Sadasivam

[2019] FCCA 742

FEDERAL CIRCUIT COURT OF AUSTRALIA

SESHAN & SADASIVAM [2019] FCCA 742

Catchwords:
FAMILY LAW – Application for suspension of period of operation of Airport Watch List order – where no response to application and supporting affidavit not answered – relevant considerations – where the Applicant has better living conditions in Australia than those which would be available in India – no cogent evidence of flight risk – application granted. 

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Kuebler & Kuebler (1978) FLC 90-434

Line & Line (1997) 21 Fam LR 2059

Thomason & Malhotra [2010] FamCAFC 85

Applicant: MS SESHAN

Respondent: MR SADASIVAM

File Number: MLC 6494 of 2017

Judgment of: Judge A. Kelly

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Orders pronounced: 18 March 2019

Delivered at: Melbourne

Delivered on: 26 March 2019

REPRESENTATION

The Applicant:	In person
Counsel for the Respondent:	Mr Freeman

Solicitors for the Respondent: Resolve Conflict Family Lawyers

ORDERS

1. The hearing of the Application in a Case filed on 31 January 2019 be abridged. 

2. Paragraph 1 of the Order made on 5 September 2017 (which was made until further Order) for the entry upon the Airport Watch List of the name of the child, [X] born on … 2016 (child) be suspended with effect from … 2019 to … 2019 inclusive, and the Marshall and all officers of the Australian Federal Police are requested to take all steps as may be necessary so as to secure the operation of paragraph (2) this Order.

3. Subject to paragraph (4) of this Order, the Applicant mother may take the child out of the Commonwealth of Australia and travel overseas with the child to India during the period … 2019 to … 2019 inclusive.

4. Paragraph (3) of this Order is made upon the following conditions:

   (a)the Applicant mother shall return the child to Australia no later than … 2019;

   (b)no less than four weeks prior to the date of departure, the Applicant mother shall provide to the solicitor for the Respondent father copies of the following:

   (i)return airline tickets for each of herself and the child;

   (ii)travel itinerary for the period … 2019 to … 2019;

   (iii)the address of where the Applicant mother and the child will be residing;

   (iv)contact details where the Applicant mother may be contacted;

   (c)upon the return to Australia of the Applicant mother and the child, the Applicant mother shall notify the Respondent father of such return and make arrangements for the child to recommence the time that he may spend with the Respondent father.

5. Upon the Applicant mother providing to the solicitor for the Respondent father each of the documents pursuant to paragraph  4 of this Order, the child’s passport be immediately released by the Respondent father to the Applicant mother for the purpose of facilitating such travel to India.

6. The Applicant mother return the child’s passport to the solicitor for the Respondent father immediately upon her return to Australia from India.

7. The Applicant mother be at liberty to make application on short notice if she has complied with paragraph (4) of this Order and the Respondent father has not delivered to her the child’s passport in accordance with paragraph (5) of this Order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6494 of 2017

MS SESHAN

Applicant

And

MR SADASIVAM

Respondent

REASONS FOR JUDGMENT

(Revised from ex tempore judgment)[1]

Introduction

[1] These ex tempore reasons for judgment have been revised from the transcript which was first provided to the court on 25 March 2019.

1. This parenting application comes before the Court in a Duty List. 

2. By Application in a Case filed on 31 January 2019, the Applicant mother seeks a suspension of a Watch List order made on 5 September 2017.  The applicant makes that application in circumstances where she seeks to travel with the child, [X], born … 2016 (child), so that they may travel to India, a non-Hague Convention country, for the period from … 2019 to … 2019.

3. Following its filing on 31 January 2019, the Applicant mother served her application and supporting affidavit which service was acknowledged by the Respondent father on 1 February 2019.  In the intervening period of more than six weeks, the Respondent has not filed any answering affidavit.  The failure to do so was explained on the stated basis that it was believed the matter would more conveniently be addressed at a forthcoming trial which is listed to commence on 29 April 2019.  As I observed in the course of submissions, the application on its face states that the Court date for this application is 18 March 2019.  I am less than persuaded by the adequacy of the Respondent father's explanation for his failure to provide answering any affidavit.

4. The procedural history of this matter is somewhat remarkable.  In the period since the initiating application was filed by the Respondent father on 30 June 2017, it has been before this Court on no less than eight occasions.  It has now been transferred to my Docket.

5. On 4 July 2017, a judge of this Court dismissed an ex parte application for a Watch List order which had been made by the respondent father.  The application was dismissed by reason of the respondent failing to appear on the return date of the application.  It was explained in submissions that the failure to do so occurred by reason that the Respondent father was then self-represented. 

6. On 21 July 2017, another judge of this Court made orders restraining both parties from taking or seeking or attempting to take the child out of the Commonwealth of Australia, and an order was made that the child's name be placed on the Airport Watch list.  While the order provided that it would cease to have effect on 6 September 2017, the operation of that order was extended on 5 September 2017.  On that date, further orders were made respecting the child and a Watch List order was made for a period of two years, expiring 4 September 2019.  Orders were made for the parties to attend a conciliation conference with a deputy registrar of the Court on 30 October 2017, and the matter was the subject of the conciliation conference.  It appeared that the matter was not resolved. 

7. On 16 April 2018, orders were made by consent discharging all previous parenting orders, save for the Watch List order, which continued to be in effect until 4 September 2019.  Otherwise, parenting orders were made respecting the spend time and other arrangements respecting the rights of this child.  On 1 August 2018, further orders were made which appeared to refine the parenting orders which had been made earlier by consent, and also providing directions respecting an application in relation to the parties' property interests. 

8. On 7 March 2019, an order was made that the matter be listed for trial on 29 April 2019 on an estimate of two days.  Why that two-day estimate was provided is somewhat surprising in circumstances where on present submissions the parties' asset pool appears to be in the order of $180,000, or near zero (depending upon which version of the evidence may be accepted at trial). 

Applicable principles

1. I was not referred to any authorities governing the present application. 

2. In Kuebler & Kuebler (1978) FLC 90-434, the Full Court identified a number of considerations which may be appropriate when determining an application to be made in the exercise of the Court's statutory discretion to permit a child to travel overseas. The factors identified included: (a) the length of time the child would be out of the country; (b) the bona fides of the application; (c) the effects on the child of being away from the other parent; (d) any threats that the proposed environment may have on the child; (e) the degree of satisfaction whether the promise of return to the jurisdiction would be honoured.

3. In Line & Line (1997) 21 Fam LR 2059, the Full Court considered a range of further circumstances which might be taken into account when assessing the degree of risk posed by a travelling parent not returning with a child from an overseas trip, including: (a) the existence of continuing ties between the departing parent and Australia; (b) the existence of business interests, residence, family or close friends to Australia; (c) the existence and strength of possible motives not to return, including levels of conflict between the parties particularly over child-related issues; (d) the existence and strength of possible motives to return in a country of proposed travel, including such things as possession of property, business interests and the existence of familial and personal ties; and (e) whether the country of travel is signatory to the Hague Convention on Civil Aspects of International Child Abduction.

4. The principles stated in both Kuebler and Line respectively were approved in Thomason & Malhotra [2010] FamCAFC 85.

5. Those principles notwithstanding, it is clear that the Court should always regard the best interests of the child as being of paramount interest in considering such an application. The question of what are the best interests of the child in a parenting application are addressed in particular by Sub-div BA of Div 1 in Part VII of the Family Law Act 1975 (Cth). Again, attention may have been drawn to the matters raised by sub 60CC(2), primary considerations, and (3), additional considerations.

Consideration

1. In the circumstances in which this application is made before me, the applicant mother's affidavit is not contradicted.  I have had regard to the matters raised in that affidavit.  Although the Applicant mother was self-represented before me, the affidavit bore the quality of some legal assistance having been provided.  Over a series of 30 paragraphs, the Applicant mother detailed the history of the matter, including the circumstances in which, on 4 July 2017, she left the parties' home, with the child, at 3.30 am. 

2. The parties have been living separately since that time.  It was in those circumstances that the Respondent father first applied for an airport Watch List order.  The Applicant mother detailed the circumstances in which an Intervention Order was made on 20 July 2018.  As she has deposed, on oath, there have been some three-four breaches of that Intervention Order.  The Applicant mother has now applied for that Intervention Order to be extended.

3. The Applicant mother deposes to the circumstances in which she seeks to travel overseas for a period of some three weeks.  In short, the applicant's younger sister has given birth to a baby girl on … 2017.  The Applicant mother deposed that she wished to go and see the new child and assist her sister with the newborn.  She seeks to do so in circumstances where the child suffers cerebral palsy, and that the younger sister has "completely broken down because [the child] has to undergo [certain] treatment for years and may need neurosurgery at a later stage".  The Applicant mother exhibited a letter from a physiotherapist which described the child's present circumstances.  The Applicant mother deposed that the medical disability of her niece is a matter which is very distressing, both to her and to her entire family in India.

4. In addition, the Applicant mother deposes that as her own child is now two and a half years old, he cannot live without his mother for a period of three weeks, and in those circumstances, it would be in his best interests to both remain with his mother while she travels overseas, and, additionally, in order that he might meet his extended family.  Contextually, one of his cousins is to have a birthday on … 2019.

5. The Applicant mother provided some detail respecting travel to India, including that the Respondent father had on one occasion himself booked a ticket for the Applicant mother to travel with the child to India. 

6. A copy of the ticket was exhibited to the Applicant mother's affidavit.  In addition, the Applicant mother detailed that she claimed an interest in the parties' property in Property A and that this property had a value of more than $300,000, which should be considered as providing some form of assurance for her return to Australia.

7. The Applicant mother deposed that she had travelled with the child to India in 2016 and returned to Australia.  She further deposed that she had no income or assets in India, whereas, by contrast, in Australia she has the benefit of public housing, an income by way of Centrelink payments, together with child support.  In short, the Applicant mother deposed "We are much better here".

8. The applicant further deposed that she could not presently apply for Australian citizenship because she has not yet been in Australia for a sufficient duration so as to meet the qualifying criteria for making that application.  However, the Applicant mother is an Australian permanent resident and made submissions that she will seek Australian citizenship once she has met this qualifying criteria.

9. Moreover, the Applicant mother deposed that, as she would be staying at her parents' house in India, the Respondent father knew her address and deposed:

   I will book the tickets and provide an itinerary and our address in India to the court and [the Respondent].

10. The Applicant mother expressed a willingness to provide make-up time. 

11. In all of those circumstances, the Applicant mother sought the suspension of the existing Watch List order.  It is against those uncontradicted facts that I conclude it is appropriate in all the circumstances to grant the present application.  Having regard to the factors identified and the authorities referred to above, I have given consideration to the following.

12. I do not consider that the length of time that the child would be travelling out of Australia to India to be of any significant duration. 

13. I accept the Applicant mother's evidence as to the circumstances in which she wishes to return to assist in the care of her younger sister and at a time when her niece suffers a significant mental and physical disability. 

14. As her affidavit is not contradicted, I do not consider it appropriate to question the bona fides of her application. 

15. I do not consider that there will be any significant effect on the child being away from the Respondent father.  On the present parenting orders, which were made by consent, the Respondent father presently spends one day per fortnight with the child.  No submission was made that any threat was posed to the child as a result of his travelling to India. 

16. I am satisfied on the basis of the Applicant mother's sworn evidence that she has made a promise to the Court which she will honour to return to Australia on … 2019.

17. In the context of the further considerations identified in Line & Line, it must be accepted that the Applicant mother has no familial ties to Australia.  She does, however, have an existing residence in Australia which, objectively, is of some significant value to her.  On the face of her submissions, her parents live in impecunious circumstances.  Her father, though above retirement age, continues, through necessity, to work in order to provide sustenance to himself and his family.  By contrast, the Applicant mother has the benefit of public housing and Centrelink payments, together with some child support.  I consider that those factors are powerful considerations in this case. 

18. No actual motives were identified by the Respondent father in terms of reasons why the applicant would not return.  However, I do not ignore that on the evidence before me the Applicant mother has obtained an Intervention Order and that the level of conflict between the parties in July 2017 was such as to motivate the Applicant mother to leave their home at 3.30 am. 

19. The matter which was really put against the grant of this relief was articulated in terms of flight risk.  No contemporaneous evidence was adduced by the respondent to support the submission.  Instead, in those circumstances, resort was given to the affidavit filed by the Respondent father in respect of his earlier Watch List application in which he deposed to evidence that the Applicant mother wished to return to India.  That evidence was given in circumstances where the Applicant mother had left the home very early one morning and had done so in the face of what appeared to be a highly conflictual situation.  Though I have reservations concerning the question of motive not to return to Australia, I accept the Applicant mother's evidence that her life in Australia is better than that which she would have in India.  Those same factors persuade me to the view that there are objectively no significant motives for the Applicant mother to remain in India. 

20. As stated at the outset, I do not ignore that India is not a signatory to the Hague Convention.

21. There is, in addition, the circumstance that the parties have a pending property application which is listed for trial 29 April 2019. 

22. Mr Freeman in careful and considered submissions recognised that the net asset pool may be in the order of $190,000.  However, he made a submission that the significant portion of that pool was the Respondent father's value in a property which is registered in his name.  Although the Respondent father has provided an authority for the sale of the property, it appears that the terms pursuant to which it was purchased by the Respondent father include a condition that obliges him to have constructed a house upon that land.  Again, without evidence, the submission was made that the Respondent father has not and cannot construct that house upon that property within the contractually allotted period of time, and that a condition of the contract pursuant to which he purchased the property would require that the interest in the land was forfeited if that dwelling is not constructed by mid-2020.  It is not a matter for me to consider at this stage whether a condition of that kind is so oppressive as to warrant relief against forfeiture. 

23. As matters stand, I cannot ignore and do not leave entirely out of account that the Applicant mother would have a motive to return to Australia to secure what she contends a just and equitable share of the parties' net asset pool to be.  I am also persuaded by the Applicant mother's submission that she will seek Australian citizenship. 

24. Just as the Respondent father points to the absence of any significant property interests in Australia, the same may be said of the Applicant mother's position in India.  There is no evidence suggesting that the Applicant mother has any interest in property in India or any interest of such magnitude as would serve as a significant, or any, motivation for her not to observe her promise to this Court to return to Australia in three weeks.  In all the circumstances, I reject the largely generalised submission that the Applicant mother poses a flight risk. 

25. I therefore propose to grant relief substantially in the terms as sought by the Application in a Case.  I do so because I consider that on the whole of the evidence, it is in the best interests of the child that he should be permitted to travel and remain with his mother for the three-week period that she seeks to be in India with her family, and in particular, with her younger sister.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly

Date: 26 March 2019