Bose & Mehra
[2010] FMCAfam 353
•20 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOSE & MEHRA | [2010] FMCAfam 353 |
| FAMILY LAW – Children – overseas travel – application to take child out of jurisdiction – young child aged 17 months – proposed travel to India – India not a signatory to The Hague Convention. |
| Australian Citizenship Act 2007 (Cth) s.12 Family Law Act 1975 (Cth), ss.60CA, 60CC, 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) Sch. 2 |
| Line & Line (1997) FLC 92-729 |
| Applicant: | MS BOSE |
| Respondent: | MR MEHRA |
| File Number: | SYC 4385 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 April 2010 |
| Date of Last Submission: | 6 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2010 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
ORDERS
Orders 3, 4 and 5 made on 7 September 2009 are vacated.
The name of the child [X] born [in] 2008 is to be removed from the Airport Watch List also known as the PACE Alert system with effect from 10 May 2010.
The mother is permitted to take the child [X] born [in] 2008 out of the Commonwealth of Australia for the purposes of visiting India between 11 May and 30 May 2010.
The Australian Passports Office is requested to issue to the mother an Australian passport for the child [X] born [in] 2008 without the consent of the father.
The mother is to deposit the sum of FIVE THOUSAND DOLLARS ($5,000.00) with the Receiver of Public Moneys at the Registry of the Federal Magistrates Court in Sydney by 30 April 2010 to be held as security until the child returns to Australia.
If the said child is not returned to Australia by 1 June 2010 the father is permitted to apply on 2 June 2010 for the said sum of $5000.00 to be paid out to him.
After the said child is returned to Australia the mother is to deliver the child’s passport to the Registry of the Court in Sydney by 1 June 2010 and upon doing so she is permitted to apply for the said sum of $5000.00 be returned to her.
Whilst the mother and the child are in India the mother is to reside with her parents at [address omitted], India.
Whilst the mother is in India she is to telephone the father on three occasions each week one of which is to be a Saturday to allow him to speak to the child [X].
The mother is to advise the father by 10 May 2010 of the telephoner numbers and email address upon which she may be contacted whilst in India.
The substantive application filed on 24 July 2009 is listed for further mention at 10:00 am on Monday 21 June 2010.
IT IS NOTED that publication of this judgment under the pseudonym Bose & Mehra is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4385 of 2009
| MS BOSE |
Applicant
And
| MR MEHRA |
Respondent
REASONS FOR JUDGMENT
Application
The applicant is the mother of a baby girl who was born [in] 2008. She wishes to take the child to India with her for a period of 19 days. The respondent, who is the child’s father, opposes the mother’s plan to take the child out of Australia, fearing that the mother will not return the child to Australia and also expressing concerns about the child’s health.
Background
The parties were both born in India. The father is now an Australian citizen, and has been so since 2005. He is a [occupation omitted]. The mother deposes in her affidavit filed on 26th February 2010 that she is a resident of Australia who “will be eligible for citizenship in 2010”.[1]
[1] Affidavit of Ms Bose 26.2.2010 at paragraph [3]
The parties were married in Maharashtra State, India, under the Hindu Marriage Act [in] 2004. They solemnised their marriage in Australia [in]2005.
The child [X] was born in New South Wales, [in] 2008. She was issued with an Australian passport on 22nd December 2008, although the mother does not have that document and the father denies that he has it. The mother deposes in her affidavit filed on 26 February 2010 that the passport has been reported as lost.[2]
[2] Affidavit of Ms Bose 26 February 2010 at paragraph [8]
The parties travelled to India with the child in December 2008 and separated there. The mother and child lived with the mother’s parents in Mumbai. An incident occurred in Mumbai on 11th February 2009 involving the father and his parents on the one hand and the mother and the child on the other, which led to court actions against the father and his parents under section 498A of the Indian Penal Code and under the Domestic Violence Act 2005. These proceedings are still on foot.
The parties returned to Australia separately and have lived separately and apart since then.
The father commenced proceedings in this Court on 24th July 2009 seeking various parenting orders, including an injunction restraining the mother from removing the child from Australia. On 7th September 2009 Altobelli FM made interim orders restraining the parties from removing the child from Australia and placing the child’s name on the airport watch list, also known as the PACE Alert system. Those orders are still in force.
On 18th December 2009 his Honour made interim orders by consent providing that the child would spend time with the father:
a)Each Saturday from 8:00 am to 2:00 pm until 14th May 2010;
b)
Thereafter each Saturday from 8:00 am to 4:00 pm until
25th October 2010; and
c)Each Tuesday and Thursday from 5:00 pm to 7:30 pm.
On 5th March 2010 a Metropolitan Magistrate of the Railway Mobile Court of Andheri, Mumbai, made an interim order providing that the father should pay maintenance of 10,000 rupees per month each for the mother and the child.
The Present Application
The mother wishes to travel to India from 11th to 30th May for reasons to do with the ongoing court proceedings in India. She wishes to take the child with her, claiming that she is too young to be left in the care of the father for that length of time.
The respondents to the application under the Domestic Violence Act (called “the opponents” in India) and the accused in the proceedings under s.498A of the Indian Penal Code have filed applications for dismissal or discharge of the actions. The mother has been requested by the Assistant Public Prosecutor in the s.498A matter to attend at the Office of the Prosecutor at the Court for the purpose of proceeding with the matter. She wishes to take steps to continue with both of those matters.
The mother submits that the length of time that she plans to be away is necessary, not only because of flight schedules, but to allow the child to rest after travelling. She will be staying with her parents in Mumbai. She states in her affidavit of 26th February 2010 that the child will not travel outside of the Mumbai region. She offers to telephone the father twice a week whilst she is away to enable him to interact with the child. She also suggests communication by Skype once a week or as the father wishes.
The mother has offered to enter into a security bond in the sum of $5,000.00 and lodge that amount with the Court.
The mother specifically denies any intention to leave Australia permanently with the child. She is about to graduate on 7th May 2010 with a Master’s Degree in [omitted] and is seeking work in that area. She is leasing a home unit and has paid a rental bond of $1600.00.
The mother does not wish to leave the child in the care of the father for the period of 19 days whilst she is away in India because he has not looked after her for lengthy periods in the past.
The mother has deposed in her affidavit that the child is still breast feeding and is not yet consuming much in the way of solid food. The child shows signs of separation anxiety which has led to a failure to thrive. The child is under the care of a paediatrician, a dietician and a child mental health worker. She has annexed various reports from these professions to her affidavits.
The father raises the concern that the mother may not return to Australia with the child. He points to the fact that India is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (known as “The Hague Convention”). As he deposes in his affidavit filed in court on the day of the hearing:
The applicant Ms Bose has spent most of her life in Mumbai and her family and friends live in the same vicinity, and there is a possibility that she might change her mind regarding returning back to Australia during this visit.[3]
[3] Affidavit of Mr Mehra 6.4.2010 at paragraph [17]
He also raises concerns about the child’s health and safety whilst in India. He refers to the possibility of the child suffering from separation from him whilst she is away, as she is in his care almost every alternate day. He raises concerns about the standard of medical care available in India as opposed to Australia.
The father also refers to the fact that the mother has commenced and is continuing court proceedings against him in India and cites that fact as showing her lack of intention to remain in Australia.
He has also annexed to his affidavit a copy of the reasons for decision of the Metropolitan Magistrate, Railway Mobile Court, Andheri, Mumbai, of 5th March 2010. There was an issue of jurisdiction raised which required consideration by that court. The Court considered the child’s citizenship and made this finding at paragraph [17] of the decision:
She is a person who is born outside the India after 26th January 1950. She is citizen of India as her father and mother are citizens of India at the time of her birth. Accordingly, she is gone with citizenship of India by desent (sic).
In my view, with respect, the child is an Australian citizen by virtue of the fact that she was born in Australia and one parent, her father, was an Australian citizen at the time (Australian Citizenship Act 2007 (Cth) s.12(1)).
Whether or not the child also holds Indian citizenship, the father expresses concern that an Indian court would find that she is a citizen of that country.
The father is confident of his ability to look after the child whilst the mother is overseas. He has taken leave from his employment [omitted] from 12th to 31st May so that he can devote himself to her care on a full time basis.
The Relevant Law
In any application to take a child out of the jurisdiction temporarily, the Court must consider whether there is a risk that the child will not be returned to Australia.
The Full Court of the Family Court of Australia considered this question in Line & Line[4], which concerned an application to take a child out of Australia for a holiday. The Court must consider the degree of risk that the child will not be returned to Australia and whether the country of travel is a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“The Hague Convention”) (see Family Law Act 1975, s.111B).
[4] (1997) FLC 92-729
Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 shows that India is not a Convention Country.
Conclusions
In considering the degree of risk that child would not be returned to Australia, I take into account the reasons given by the mother for wishing to visit India. It is a legitimate reason for the mother to travel to India for the purposes of those court proceedings, noting that the other parties have brought applications for discharge or dismissal on the basis that the mother has not attended Court. Whilst the father has characterised the mother’s taking court proceedings in India as evidence of her lack of connection with this country, I note that one matter has actually been brought by the Indian Police and the matters claimed arise out of incidents said to have occurred in that country.
It is significant, to my mind, that the mother did return to Australia from India in 2009, after the separation from the father. Has she been planning to remain in India, that would have been an opportune time to do so, notwithstanding that she was engaged in study for a Master’s degree in Australia.
The father’s case appears to be based on suspicion that the mother might change her mind whilst in India and decided to stay away. There is no evidence that would lead to the inference that she has any plans to do so. At most, the father’s case appears to be based on a possibility, rather than a probability.
Again, the father’s claim that the standard of medical care in India is not as high as in Australia appears to be based on the possibility that the child might become ill whilst she is away. I note from the evidence that the mother plans to stay with her family in Mumbai, which is a large city in India. If the mother were planning to stay in a remote rural village it would be more of a concern.
The young age of the child suggests strongly that the child should remain in the care of the mother, especially as she is still being breast fed. The father has not had the child stay overnight on the orders in this matter, and to go from time with the father for 6 hours during the day to all day for 19 days straight is a major change for the child. The evidence from the mother’s paediatrician indicates that the child is in good enough health to travel with the mother on the proposed trip.
I am satisfied that, whilst there is a possibility that the mother would not return the child to Australia, the degree of risk is relatively low. The mother should be permitted to take the child temporarily to India, provided that proper arrangements are made, including a security deposit.
There needs to be frequent communication between the parties about the child’s welfare whilst the mother and child are away, and the parties need to consider the child spending more time with the father after her return to Australia to make up for the time missed during May.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 20 April 2010
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