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

The hearing of the Application in a Case filed on 31 January 2019 be abridged.
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.
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.
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.
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.
The Applicant mother return the child’s passport to the solicitor for the Respondent father immediately upon her return to Australia from India.
The Applicant mother be…

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 Seshan and Sadasivam

Details

AGLC: Seshan and Sadasivam [2019] FCCA 742
Case: [2019] FCCA 742
Decision Date: 26 March 2019

CaseChat Overview and Summary

This matter concerned an application by the Applicant mother, Seshan, seeking to abridge the hearing of an application filed on 31 January 2019. The core of the dispute involved the Applicant mother's desire to travel overseas with the child, [X], born in 2016, to India. The Respondent father, Sadasivam, was involved in the proceedings, as evidenced by the conditions placed on the mother's travel and the release of the child's passport. The decision was made by Judge A. Kelly.

The primary legal issue before the court was whether to grant the Applicant mother permission to take the child out of Australia and travel to India during a specified period in 2019. This involved determining the conditions under which such travel would be permitted, particularly in light of the child's placement on the Airport Watch List and the need to ensure the child's return to Australia and continued time with the Respondent father.

The court reasoned that the Airport Watch List entry for the child should be suspended for the duration of the proposed travel to facilitate the overseas trip. Permission to travel was granted subject to several strict conditions designed to ensure the child's welfare and the father's continued involvement in the child's life. These conditions included the mother's obligation to return the child to Australia by a specific date, provide detailed travel information and accommodation details to the father's solicitor in advance, and notify the father upon their return. The court also ordered the release of the child's passport to the mother upon her compliance with these conditions and its return to the father's solicitor immediately upon their return to Australia. Liberty was granted to the mother to apply on short notice if the father failed to release the passport after she had met the stipulated conditions.

Orders

Orders of the court

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

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.

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.

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.

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.

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

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.

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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