Shiva and Kapil - [2014] FamCA 1168

FAMILY COURT OF AUSTRALIA

SHIVA & KAPIL

[2014] FamCA 1168

FAMILY LAW – CHILDREN – INTERIM – where the child is currently in India – where the father applies for the return of the child – where the mother is in Australia – where the mother is restrained from leaving Australia – where there are allegations of violence

Child Support (Registration and Collection) Regulation 1988 (Cth)

Family Law Act 1975 (Cth) s61DA

Foreign Judgments Act 1991 (Cth)
Foreign Judgments Regulations 1992 (Cth)

Chalk & Plasto [2013] FamCAFC 48 at par 15-22;
Goode & Goode (2006) 93-286
Marvel & Marvel(No 2) [2010] FamCAFC 101
MRR v GR (2010) 240 CLR 461
Taylor & Taylor (1988) FLC 91-943 at 76,809

APPLICANT:

Mr Shiva

RESPONDENT:

Ms Kapil

FILE NUMBER:

BRC

6001

2014

DATE DELIVERED:

22 December 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

15 December 2014

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER THAT

The mother do all things to ensure that the child B, a male born … 2012 is returned to the Commonwealth of Australia by 19 March 2015.
The father shall be responsible for the costs associated with the child’s economy class travel from India to Australia with such costs to include the costs of return economy air travel between India and Australia for any person nominated by the mother to accompany the child on the journey from India to Melbourne, Australia.
In order to facilitate the implementation of Clause (2) of this Order:
(a)no later than sixty (60) days prior to the date of the child’s economy class flight from India to Melbourne: the mother shall provide the father with details of the nominated flight, the cost of the same and details of a bank account into which funds to be used to purchase the necessary tickets may be deposited; and
(b)no later than thirty (30) days prior to the date of the departure of the child’s economy class flight from India to Melbourne: the father shall deposit the funds required to purchase the economy air tickets necessary to return the child from India to Melbourne, Australia into a bank account nominated by the mother and the mother shall use such funds to purchase the tickets necessary to return the child to Australia;
(c)no later than seven (7) days prior to the date of the departure of the child’s economy class flight from India to Melbourne: the mother shall provide the father with a copy of the child’s economy class aeroplane ticket evidencing his return to Australia.
The mother advise the father of the fact of the child’s arrival in Australia by email or text message sent within twelve (12) hours of the child’s arrival in Australia.
Upon the child’s return to the Commonwealth of Australia, he shall live with the mother.
Clause 2 of the Order made 2 September 2014 shall be discharged upon the child’s return to Australia.
After the child’s…

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 Shiva and Kapil

Details

AGLC: Shiva and Kapil [2014] FamCA 1168
Case: [2014] FamCA 1168
Decision Date: 22 December 2014

CaseChat Overview and Summary

In the matter of Shiva and Kapil, Hogan J of the Family Court of Australia made orders concerning the return and future residence of a child, B, born in 2012. The dispute involved the parents' arrangements for the child, with the orders reflecting a resolution of their disagreements regarding his location and contact with each parent.

The court was required to determine the terms of the child's return to Australia, including the timeline and financial responsibilities for travel. Further issues included the child's residence upon return, the duration of restrictions on his removal from Australia, and the arrangements for supervised contact between the child and his father. The court also considered the role of the Australian Federal Police in enforcing the orders.

Hogan J ordered that the child B be returned to the Commonwealth of Australia by 19 March 2015, with the father to bear the costs of the child's economy class travel from India to Australia, including return travel for a nominated accompanying person. Upon return, the child was to live with the mother, and both parents were restrained from removing the child from Australia until 19 March 2017. The Australian Federal Police were requested to place the child on the Family Law Watch List until that date. The father was to have supervised contact with the child for at least two hours per fortnight at a Melbourne Contact Centre, with specific provisions for the facilitation and costs of this contact. The proceedings were transferred to the Melbourne Registry of the Family Court of Australia, and the parties were granted liberty to apply on seven days' notice.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER THAT

The mother do all things to ensure that the child B, a male born … 2012 is returned to the Commonwealth of Australia by 19 March 2015.

The father shall be responsible for the costs associated with the child’s economy class travel from India to Australia with such costs to include the costs of return economy air travel between India and Australia for any person nominated by the mother to accompany the child on the journey from India to Melbourne, Australia.

In order to facilitate the implementation of Clause (2) of this Order:

(a) no later than sixty (60) days prior to the date of the child’s economy class flight from India to Melbourne: the mother shall provide the father with details of the nominated flight, the cost of the same and details of a bank account into which funds to be used to purchase the necessary tickets may be deposited; and

(b) no later than thirty (30) days prior to the date of the departure of the child’s economy class flight from India to Melbourne: the father shall deposit the funds required to purchase the economy air tickets necessary to return the child from India to Melbourne, Australia into a bank account nominated by the mother and the mother shall use such funds to purchase the tickets necessary to return the child to Australia;

(c) no later than seven (7) days prior to the date of the departure of the child’s economy class flight from India to Melbourne: the mother shall provide the father with a copy of the child’s economy class aeroplane ticket evidencing his return to Australia.

The mother advise the father of the fact of the child’s arrival in Australia by email or text message sent within twelve (12) hours of the child’s arrival in Australia.

Upon the child’s return to the Commonwealth of Australia, he shall live with the mother.

Clause 2 of the Order made 2 September 2014 shall be discharged upon the child’s return to Australia.

After the child’s return to the Commonwealth of Australia, the mother, Ms Kapil born … 1985 and the father, Mr Shiva born … 1985 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child B, a male born … 2012 from the Commonwealth of Australia before 19 March 2017.

It is requested that, after the child’s return to the Commonwealth of Australia, the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 19 March 2017.

Upon expiration of the period referred to in Clause (8) and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.

10.

The child shall spend supervised time with the father for a period of no less than two (2) hours per fortnight at a Contact Centre in Melbourne, Victoria.

11.

In order to facilitate the implementation of Clause (10) of this Order:

(a) by no later than 15 January 2015: the mother shall provide the father with the address and contact details of the Contact Centre at which supervised time between the child and the father will occur; and

(b) thereafter: each party shall forthwith do all things necessary, including matters required of them by the Contact Centre, to ensure that supervised time between the child and the father occurs as soon as possible after the child’s return to Australia; and

(c) each party shall be responsible for any costs associated with that party’s compliance with any intake requirements imposed by the Contact Centre; and

(d) save for the costs associated with intake, the father shall be responsible for the costs associated with him spending supervised time with the child at the Contact Centre.

12.

The parties have liberty to apply on the giving of seven (7) days notice in writing.

IT IS FURTHER ORDERED THAT

13.

These proceedings be transferred to the Melbourne Registry of the Family Court of Australia.

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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