Seshan and Sadasivam (No.2)

[2019] FCCA 825

FEDERAL CIRCUIT COURT OF AUSTRALIA

SESHAN & SADASIVAM (No.2) [2019] FCCA 825

Catchwords:
FAMILY LAW – Application for stay of operation of orders permitting child to travel with mother to India – relevant considerations – whether appeal would be rendered nugatory – whether proposed grounds of appeal are of merit – application refused.

Legislation:

Family Law Act 1975 (Cth), ss.64B, 65N

Family Law Rules 2004 (Cth), r.22.11

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Baghti & Baghti (No.3) (2013) FamCAFC 201

Clement & Clement (1981) FLC 91-013

Friscioni & Friscioni [2009] FamCAFC 43

K & B (2006) FLC 93-288

Kuebler & Kuebler (1978) FLC 90-434

Line & Line (1997) 21 Fam LR 2059

Seshan & Sadasivam [2019] FCCA 742
Sheldon & Weir (Stay Application) [2011] FamCAFC 5

Thomason & Malhotra [2010] FamCAFC 85

Applicant: MS SESHAN

Respondent: MR SADASIVAM

File Number: MLC 6494 of 2017

Judgment of: Judge A. Kelly

Hearing date: 29 March 2019

Date of Last Submission: 29 March 2019

Orders pronounced: 29 March 2019

Delivered at: Melbourne

Delivered on: 2 April 2019

REPRESENTATION

The Applicant: In person

Solicitor advocate for the Respondent: Mr Freeman

Solicitors for the Respondent: Resolve Conflict Family Lawyers

ORDERS

1. The application in a case filed on 28 March 2019 be refused.

IT IS NOTED that publication of this judgment under the pseudonym Seshan & Sadasivam (No.2) 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

Introduction

1. On 18 March 2019, orders were made permitting the applicant mother to travel to India for a period of some three weeks in … 2019.  The respondent father has filed a notice of appeal from those orders.  Reasons for my decision permitting such travel were given ex tempore and revised on 26 March 2019: [2019] FCCA 792. These reasons explain my decision to refuse the respondent’s application for a stay of those orders and should be read together with those ex tempore reasons.

2. By application in a case filed on 28 March 2019, the respondent seeks an order pursuant to r 22.11 of the Family Law Rules 2004 (Cth) staying the operation of the orders made on 18 March 2019. The application was supported by an affidavit sworn by the respondent father on that date. By his affidavit, the respondent father deposed to the circumstances in which he sought a stay of the orders. In substance, the respondent father deposed to the circumstances upon which he relied to contend that the applicant mother is a flight risk. He also deposes to his having not complied with the order that he supply the applicant mother with the child’s passport which, as I was told in submissions, he has instead retained at a bank in Suburb B.

3. It is well settled that a stay will neither be lightly granted nor granted as a matter of course.  The Full Court has stressed…