Ahuja & Pandher (No 4)
[2023] FedCFamC1F 1112
•18 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ahuja & Pandher (No 4) [2023] FedCFamC1F 1112
File number(s): CAC 1246 of 2022 Judgment of: GILL J Date of judgment: 18 December 2023 Catchwords: FAMILY LAW – PARENTING – International travel – Both parties seeking to travel internationally with the child – Where the child has been previously retained overseas – Where the parties have previously commenced litigation overseas – Where the parties have not complied with orders for the filing of material relating to the application - Application refused Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 18 December 2023 Place: Canberra Solicitor for the Applicant: Litigant in Person Solicitor for the Respondent: Litigant in Person (did not participate) Counsel for the Independent Children's Lawyer: Dr Leslie Solicitor for the Independent Children's Lawyer: Infinity Legal ORDERS
CAC 1246 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AHUJA
Applicant
AND: MR PANDHER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applications in respect of international travel for X are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J
The parties have successfully resolved the parenting dispute in this matter with final orders being in place. However, following that resolution there remained one outstanding matter relating to the international travel for the child, X. That outstanding international travel issue comes in the context where both the father and mother are from Country B, but the final orders otherwise provide for X to remain on the airport watch list. The father and the mother both have sought orders that would permit each of them to remove X from Australia for holiday periods. In order to resolve this aspect of the dispute the father and mother were directed to file affidavit material, a minute of orders and financial statements. The father and mother each filed a minute of orders supporting international travel and the mother filed an affidavit in support. The father filed no affidavit material and has not attended today for the hearing of the matter.
The father has not attended for the hearing of this matter. Whilst it may be observed that this was formally listed for directions the parties were placed on notice on the handing down of orders of 11 September 2023, by notation, that failure to comply with the directions (as has occurred here) may resolute in them not receiving the orders that they want or may result in their case being dismissed.
It should be observed at this point the Independent Children’s Lawyer does not support orders to allow for X to travel internationally.
The determination of the international travel issue is set against a background where at the commencement of these proceedings X was retained in Country B in the father’s care. Litigation then ensued in this court to ensure that X would be returned to the country with a mechanism in place by the retention of the father in Australia to enforce the possibility of such an outcome. While that litigation was taking place and consideration of whether or not X should be ordered to be returned the mother left the country and commenced parallel litigation in Country B. The mother continued that parallel litigation notwithstanding the proceedings in this court. Ultimately that resulted in the father being granted liberty to leave the country to engage in that litigation. The circumstances that surrounded X at that point exposes a significant risk of potential retention of X in Country B. This is so notwithstanding that the father ultimately complied with orders to bring X back to Australia and then consented to order that X would move into the mother’s care. However, the circumstances that unfolded at that time are sufficient to disclose a risk of retention should X be removed.
It should also be noted that the mother’s affidavit material discloses that X is currently fearful of the prospect of travel to Country B. Further against the prospect of X travelling to Country B with her parents is that at least in respect of her father it appears that X is not even spending overnight time with him.
For both of the parents the absence of a financial statement can lead to little confidence that appropriate arrangements might be put in place to return X back to Australia in that there can be minimal confidence as to the parties’ capacity to secure return travel and also little confidence that if something was to go awry that a party would be able to fund their travel to attend Country B to seek to have X returned.
Against these risks there is undoubtedly reason for X to travel. As the mother notes in her affidavit material they have family in Country B and the mother is keen for X to experience her culture and to experience Country B in a way that will allay her fears.
However, at present the proposals made by the parties are general in their terms and do not relate to specific travel. The generalised nature of their applications when set against the background of this case means that the risks of removal by one party to Country B and potential retention of X outweigh the benefits for X.
Under those circumstances, and acknowledging that this does not prevent the parties in the future, should adequate circumstances arise, from seeking specific orders for travel, the current applications for international travel should be refused.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 19 December 2023
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