GOSAI & GOSAI

[2019] FamCA 463

FAMILY COURT OF AUSTRALIA

GOSAI & GOSAI [2019] FamCA 463

FAMILY LAW – CHILD ABDUCTION – Children brought to Australia – Where the father seeks the return of the children to India – Where the mother seeks sole parental responsibility for the children and that the children spend no time with the father – Where the mother removed the children from India without the knowledge or consent of the father – Where there are serious allegations of family violence against the father made by the mother – Where the removal of the children from India has interrupted their relationship with the father – Where there are ongoing parenting proceedings in the relevant court in India – Where it is in the best interests of the children to be returned to India and to have the Indian court make orders in relation to parenting arrangements – Summary order made for the return of the children to India.

Family Law Act 1975 (Cth) ss 60CC, 67ZC

Acquaah-Akuffo & Abioye (2016) FLC 93-739
Pascarl & Oxley(Edited) (2013) FLC 93-536
ZP v PS (1994) 181 CLR 639

APPLICANT: Mr Gosai

RESPONDENT: Ms Gosai

FILE NUMBER: SYC 5366 of 2018

DATE DELIVERED: 15 July 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 16 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: MST Lawyers

FOR THE RESPONDENT: Ms Gosai in person

Orders

1. That the mother return the children X born … 2004 and Y born … 2006 to India, departing Australia by no later than 16 August 2019 taking a direct flight from Australia to India.

2. That within 14 days the mother provide to the father’s lawyers, MST Lawyers, a travel itinerary and documents evidencing the flights booked for the children to return to India.

3. That both parents have leave to relist these proceedings for further orders to facilitate the return of the children to India by arrangement with the Associate to Justice Johnston.

4. The Court notes the following undertakings given to the Court by the father through his counsel:

   (i)To pre-pay for economy airline tickets for the respondent mother and the children to travel from Sydney to City A, India; and

   (ii)Subject to any order that may be made by an Indian court about the following matters:

   (a)To meet the cost of short-term rental accommodation for the respondent mother and children at a cost of up to INR 12,500 per week (equivalent to approximately AUD 250 per week) for three months from the date of the children’s return to India; and

   (b)To meet the children’s school fees upon their return to attend school at D School, City A, India; and

   (c)To provide periodic financial support to the respondent mother for her and the children from the day of their return to India in the total amount of INR 10,000 per week (equivalent to approximately AUD 200 per week) for three months from the date of the children’s return to India.

5. That the mother’s Response filed on 28 November 2018 be dismissed.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gosai & Gosai has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC5366 of 2018

Mr Gosai

Applicant

And

Ms Gosai

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 24 August 2017 Ms Gosai (“the mother”) removed the two children of her marriage to Mr Gosai (“the father”) from India to Australia without the father’s consent. The father is seeking orders for the return of the children to India.

Applications

1. The father seeks the following order:

   The mother return the children X born … 2004 and Y born … 2006 to India, forthwith upon the making of these orders, departing Australia by no later than . . . taking a direct flight from Australia to India.

   The father also seeks orders to facilitate the children’s return.

2. For completeness, a copy of the orders sought by the father is annexed at Annexure A to these Reasons.

3. The mother seeks orders that she have the sole parental responsibility for the children, that they live with her and that they spend no time with the father. The mother also seeks various restraining orders against the father as specified in her Response.

4. For completeness, a copy of the orders sought by the mother is annexed at Annexure B to these Reasons.

Background matters

1. The parties commenced their relationship in approximately 1996.

2. In 2002 the parties were married in City A, India. At the time of the marriage the mother’s brother was living in Australia and her parents were living in New Zealand. The mother moved in with the father who was living with his parents in City A.

3. In 2004 X was born in New Zealand.

4. In 2006 Y was born in New Zealand.

5. The mother and father subsequently returned to India to live there.

6. The mother alleges that the father was physically violent and verbally and emotionally abusive towards her throughout their marriage. She also alleges that the father has threatened the children.

7. On 5 August 2010 the mother approached the New Zealand High Commission. She claimed that she was experiencing physical abuse and torture perpetrated by the father.

8. On 24 November 2010 the mother lodged a second complaint with the New Zealand High Commission following an alleged incident between her and the father.

9. In November 2010 the mother and children left India and travelled to New Zealand using travel documents provided by the New Zealand High Commission. They later moved to Sydney to stay with the mother’s extended family.

10. In correspondence the father apologised to the mother for his abusive behaviour and sought to reconcile. In August 2011 the parties reconciled and the mother and children travelled back to India.

11. The mother said that gradually the father became increasingly abusive and violent again.

12. The mother alleged that in March 2014 there was an argument between her and the father during which he was verbally and emotionally abusive. She said that the police attended their home. The mother said that in July 2014 the father was physically violent to her and the police attended. The police arrested the father and placed him in custody for one night.

13. On 6 August 2016 the father was again arrested and detained following an attack upon the mother.

14. On 1 November 2016 the mother approached the Special Police Unit for Women and Children in City A and lodged a formal complaint. A first information report was lodged against the father by the Special Police Unit on 9 May 2017.

15. In November or December 2016 the mother filed an application in the City A Courts, under the domestic violence legislation in India (“the domestic violence proceedings”).

    The mother annexed to her affidavit what appears to be a copy of the record and ex parte orders of the City A Courts on 20 December 2016 which includes the following:

    …there is sufficient material on record to show domestic violence have (sic) been taken place and that prima facie the respondent has been committing physical violence/abuse and causing harm to the complainant and his (sic) causing verbal and emotional abuse to the children…

16. The orders made ex parte were that:

    a)The father vacate the former matrimonial home;

    b)The father be restrained from forcibly taking the children from the mother’s care pending the next listed hearing date; and

    c)The mother have interim custody of the children.

17. On 20 December 2016 the parties separated on a final basis when the father vacated the home.

18. On 1 February 2017 the father initiated an appeal against the 20 December 2016 orders in the appellate court of the City A Courts (“the appellate court”).

19. On 9 February 2017 the father’s appeal came before the appellate court and the mother’s counsel provided an undertaking from the mother that she would not remove the children from the jurisdiction until the next hearing date.

20. On 18 February 2017 the appellate court held that the order that the mother have interim custody of the children be set aside because it was made “without taking care of the visitation right of the father”. The order that the father vacate the former matrimonial home and the order restraining the father from removing the children from the care of the mother remained in place.

21. On 4 July 2017 the father filed an application at the City A Courts, seeking that the mother be tried for perjury in relation to false financial information provided to the court and false allegations of domestic violence. The father also offered voluntary payments of interim maintenance pending the Court determining this issue.

22. On 14 July 2017 the father commenced proceedings at the Family Court, City B, D State (“the Family Court at City B”) seeking sole care of the children, that the mother be restrained from moving the children from India and that the children’s passports be deposited with the Court (“the custody proceedings”). The father also sought on an interim basis that he be able to call and visit the children and for the mother to be restrained from tutoring the children against him.

23. On 5 August 2017 a summons was issued in the custody proceedings requiring the mother to attend at court on 30 August 2017 with the children. The summons was served on the mother on 14 August 2017.

24. On 17 August 2017 the custody proceedings were before the Court. The mother filed an application seeking that the father’s application be rejected for non-conformity with procedural requirements.

25. On 24 August 2017 the mother removed the children from India to Australia without the father’s knowledge or consent.

26. On 30 August 2017 the mother failed to attend court for the custody proceedings as directed on 5 August 2017. The matter was adjourned to 15 September 2017 and both parties were directed to appear on that occasion.

27. On 15 September 2017 the mother did not appear at court. The mother’s application to dismiss the father’s application for parenting orders due to non-conformity with procedural requirements was dismissed. On the same date the father filed a contempt application in the Family Court at City B against the mother for non-compliance with orders made on 5 August 2017 and 30 August 2017.

28. On 27 September 2017 the matter was again before the Family Court at City B and the mother was not present. The matter was adjourned to 6 October 2017.

29. On 6 October 2017 the custody matter was heard and counsel for the mother and father advanced arguments. Orders were subsequently made on 9 October 2017 directing the mother to place on record a particular date she intended to visit India before December 2017 or otherwise produce the children to the court on or before 19 December 2017. The mother’s request to appear via video conference was refused.

30. On 31 October 2017 the father filed a parenting application seeking:

    a)An ex parte interim order restraining the mother from applying for permanent residency for herself and the children in Australia and/or continuing with the children’s schooling in Australia;

    b)An ex parte interim direction that the mother return to India with the children no later than 15 November 2017; and

    c)An order that the father be able to visit the children in Australia, New Zealand or any other country for at least six hours on at least three days per week.

31. On 6 February 2018 the Family Court at City B made the following orders:

    a)The father was allowed to travel to Australia to see the children and the mother was not to create any hindrance to this visitation;

    b)The mother was to disclose her residential address in Australia and her mobile telephone number to the father;

    c)The mother was to bring the children to India during the holidays for a meeting with the father for at least 10 to 15 days; and

    d)The matter was listed for 1 March 2018 for the filing of a reply and for arguments in relation to contempt proceedings.

32. On 1 March 2018 the mother’s counsel attended the Family Court at City B and the matter was adjourned to 19 April 2018 to allow the mother to file a written statement and reply to the contempt petition filed by the father.

33. On 19 April 2018 the proceedings were again adjourned due to the mother’s failure to file a written statement.

34. On 11 May 2018 the mother’s counsel attended court and a written statement was filed on the mother’s behalf. The contempt proceedings were adjourned to 20 July 2018.

35. On 2 August 2018 the domestic violence proceedings were listed for appearance and arguments. The orders recorded that in the event the mother failed to appear on 26 October 2018 her application would be dismissed. The father’s counsel informed this Court that this matter had been listed for determination at the beginning of February 2019.

The Law

1. India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction 1980. Therefore, the Family Law (Child Abduction Convention) Regulations 1986 (Cth) do not apply.

2. The process for determination of whether the Family Court or a foreign court should determine questions concerning the custody of a child who has been removed from a foreign jurisdiction was considered by the High Court in ZP v PS (1994) 181 CLR 639. The majority of the High Court held that if a child is in the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application. The primary consideration is the best interests of the child. The following was stated by Mason CJ, Toohey and McHugh JJ at page 647:

   Because the welfare jurisdiction of the Family Court is similar to the parens patriae jurisdiction of the Court of Chancery, the Family Court must also form an independent judgment as to what the welfare of the child requires notwithstanding the existence of any custody order made by a foreign court. Moreover, proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression because the Court is not enforcing a parental right to custody or access. Its duty is to make such order as will “best promote and protect the interests of the child”. It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child. Injustice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a forum non conveniens case, are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.

   However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a foreign court. Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction.

   (Footnotes omitted)

3. The majority of the High Court also said at page 648 as follows:

   In In re F. (Abduction: Custody Rights), Neil L.J. said:

   The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child’s welfare is the first and paramount consideration.

   The High Court further said at page 648 as follows:

   That approach also applies to applications in the Family Court when the question arises whether the Family Court or a foreign court should determine questions concerning the custody of a child within the jurisdiction.

   In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that that Court should embark on determining the issue of custody itself.

4. This approach was followed by the Full Court of this Court in Acquaah-Akuffo & Abioye (2016) FLC 93-739 at 81,847.

5. Section 67ZC of the Family Law Act 1975 (Cth) (“the Act”) provides that the court has jurisdiction to make orders relating to the welfare of children.

   In Pascarl& Oxley (2013) FLC 93-536 the Full Court of this Court observed as follows at page 87, 074:

   57. When the Family Law Reform Act 1995 (Cth) inserted a new Part VII into the Act, the welfare power was placed in a separate section of its own, being s 67ZC, where it is still to be found. That section provides (omitting notes):

   (1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.

   (2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

   58. It will be noted that the “best interests of the child” (the so called paramountcy principle) governs any decision to make an order under s 67ZC.

6. The Court must therefore consider whether it is in the best interests of X and Y for the Court to make a summary order that the children be returned to India so that questions concerning custody and access may be dealt with by the courts of that jurisdiction.

Section 60CC Considerations

1. How the Court is to go about determining what is in the children’s best interests is set out in subsections 60CC(2) and (3) of the Act.

Primary Considerations

1. The primary considerations are set out in subsection 60CC(2) of the Act. These are:

   ·The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Subsection 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.

3. Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

1. The additional considerations are set out in subsection 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Subsection 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The mother said that the children do not wish to spend any time with their father or have anything to do with him. She said that on or about 10 October 2018 she asked them whether they wished to speak with their father. She said the children’s responses were as follows:

   Why would we meet him? He is scary. We don’t want to see him, we have nothing to do with him. He is very scary, why won’t anyone listen to us. Can they force us to see him or live with him when we don’t want to? Why would we meet him he is so scary and unsafe.

2. The children are 15 years and 12 years of age respectively. The views of children of these ages would usually be afforded some weight. But there is no independent evidence about the children’s views. They have not spent any time with their father for approximately two years. In these circumstances it is hardly surprising that the children’s views coincide with the views of their mother. These factors, in my view, reduce the weight which the Court would otherwise place on the children’s views.

Subsection 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child) 

1. These children have lived with their mother for the entirety of their lives. One would expect in such circumstances that they would have a very close attachment to her.

2. On the other hand, as indicated above, the children have not spent any time with their father for approximately two years. There is no objective evidence which would indicate that prior to their removal from India by their mother the children had other than a good relationship with their father, as he asserts.

Subsection 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long‑term issues in relation to the child, to spend time with the child and to communicate with the child

1. Over the period that the children have been separated from their father, all significant decisions in relation to them have been made by their mother. Apparently there has been no opportunity for the father to be able to participate in making decisions about major issues concerning the children.

2. It is clear that, through the father’s continued involvement in the litigation in India in relation to the children and by way of his endeavours to seek the children’s return to India, he wishes to resume his relationship with the children.

Subsection 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The mother asserts that she has borne most of the financial burden of the children over the last couple of years. Between December 2016 and November 2018 when the mother swore her affidavit the father paid $13,200 towards the costs of the children.

Subsection 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

1. There is no suggestion that the father’s application for a return order would involve separation of the children from their mother. But the children have been living in Australia now for almost two years. I accept that there has been some level of settlement of the children in Australia as contended by the mother. An order for their return to India would involve separation of them from their friends and schoolmates in Australia.

2. Return to India would also involve the children leaving the home of their grandparents with whom presumably they have close relationships.

3. But return to India would presumably offer opportunity for the children to resume relationships which they had with friends and acquaintances in India prior to them leaving that country.

Subsection 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. If the children were not to return to India the vast distance between Australia and India would pose difficulty for the children to spend much time with their father. The inevitable consequence would appear to be that the children would be at risk of losing what appears to have been the good relationships which they previously had with their father.

Subsection 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. On a broad view it would seem that the mother has good capacity to be able to parent these children. They appear to be doing well at school. However, the mother has not managed to enable the children to continue to have a relationship with their father. As indicated above, her application is that the children would spend no time with the father. The mother’s case appears to be that so violent and abusive has the father been that it would not be in the children’s interests to have a relationship with him. This is a matter which will need to be examined in considerable detail by the appropriate court.

2. In relation to the father’s capacity to provide for the children’s needs the fact that the Indian courts have made, and confirmed, orders against the father for the protection of the mother raises serious questions about his parenting capacity.

Subsection 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. These children although born in New Zealand are children of Indian parents. The children have spent the major part of their lives living in India.

Subsection 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

1. This is not applicable.

Subsection 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. In my view, the mother, in bringing the children to Australia without seeking the consent of their father, has demonstrated an inappropriate attitude to the responsibilities of parenthood. This was done in the face of current proceedings between the mother and the father in the Indian courts concerning parenting arrangements for the children. Apart from this, the mother appears to be looking after the children well and taking a responsible attitude to their upbringing.

2. It is troubling that the Indian court has made protective orders against the father. The mother’s allegations about domestic violence will ultimately need to be tested but they are very troubling. If in fact the father has perpetrated violence on the mother, who is the primary parent of these children, this would be demonstrative of a most improper attitude on his part to the responsibilities of parenthood.

Subsection 60CC(3)(j) – any family violence involving the child or a member of the child's family

1. As indicated above the mother makes very serious allegations of family violence against the father. The father says that the mother has embellished the extent of any violence.

2. The mother annexed to her affidavit a copy of a letter dated 1 January 2011 which she alleged was sent by the father to her after she had removed the children from India to New Zealand. Assuming that the letter is from the father, in it he concedes that he has been violent, abusive, aggressive and controlling against her, and referred to his violence against the mother as “an ugly nightmare” which he wishes he “could write that episode altogether from the face of this planet ….”.

3. It is true that this concession was made in the context of the father begging the mother for forgiveness, making it clear to her that he wanted her to “give (him) another chance” … to … “repent for (his) sins” and to reconcile with her.

4. But in my view there is also some support for the father having been aggressive from a letter dated 19 January 2017 addressed to the father from the Director of the children’s school in City A at the time. After noting the orders of 20 December 2016 including the restraints, the letter informed the father that as a parent of children at the school he was expected to follow the school’s “Code of Conduct for Parents and Guardians”. The letter went on to note that “Your anger and aggressive tenor in the phone calls to various members of The D School staff on January 10^th (12:30 pm), 12^th (3:30 pm) and 13^th (8:30 am and 9:15 am), is against the spirit of the D School Code of Conduct for Parents and Guardians”. In my view, this material provides some objective support for the mother’s assertions about the father’s aggressiveness and propensity for violence.

5. The father has alleged that the mother has perpetrated violence against the children by smacking them. He also alleged that in July 2012 while in the United States of America the mother threw Y to the ground resulting in a fracture of her arm. The mother said that Y’s arm was fractured when she had a fall.

6. As I have said, the allegations of violence will need to be examined in detail in the children’s interests.

Subsection 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter

1. I have referred above to the history of parenting and domestic violence proceedings between the parties in India. I am not aware of any current violence order which operates against the father other than the restraining orders made in India on 20 December 2016 which were not discharged by the appeal court.

Subsection 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. In my view this consideration has little relevance in the proceedings.

Subsection 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

1. The mother left India at a time when she was seeking the assistance of the Indian court in relation to parenting arrangements for the children, without seeking the court’s permission to do so and without seeking the father’s consent. Such behaviour was grossly disrespectful of authority and of the children’s father and set a poor example for the children.

2. If an order for return of the children to India was made the mother would be able to continue to participate in the proceedings before the Indian court. She has been involved in those proceedings and has instructed lawyers to represent her in those proceedings.

3. On the other hand the father has been unable to obtain a visa to enter Australia and there are questions about whether he would be able to come to Australia and conduct his case in Australia.

DISCUSSION AND CONCLUSION

1. Returning to the primary considerations, the father asserts that prior to the removal of the children from India, he had a very close and loving relationship with the children.

2. The mother takes issue with this saying that before the parties separated, such was the level of the father’s violence that the home environment had become increasingly hostile and unsafe for the children.

3. I would consider it to be to the children’s benefit to be able to have a meaningful relationship not only with their mother but also with their father, provided that spending time with the father did not compromise their safety.

4. Assuming that the father did have a close and loving relationship with the children, clearly this has been interrupted because the children have been living in Australia for almost two years without having spent time with their father. He has not spoken to the children since January 2017.

5. It would appear to be a very serious matter for these children to be deprived of having a meaningful relationship with their father. As indicated above, they appear to have had close relationships with the father prior to separation.

6. The second of the primary considerations is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. As indicated above, the mother alleges a long history of serious verbal, physical and psychological abuse perpetrated by the father against her. She also alleges that much of this abusive behaviour has occurred in the presence or hearing of the children and that they have been adversely affected by it.

7. As I have said, she has put some evidence of alleged admissions by him in this regard. It is also the case that the City A Courts made a finding that prima facie the father had been violent and, as indicated above, it ordered the father to leave the house. The father conceded that the order was a protection order made pursuant to the relevant Domestic Violence Act applicable in City A. Notwithstanding that this order was made ex parte, when the matter was considered on appeal this order remained in place. It is also the case that the City A District Court hearing the appeal noticed that in January 2017 the children’s school in City A “stopped independent access of the father to the children until further notice”. I have also referred to this above.

8. On the other hand, the father, while acknowledging some level of violence, asserts that the mother has greatly exaggerated the father’s alleged abusive behaviour. In any event, one would be concerned that depriving the children of a relationship with their father could have serious longer term emotional and psychological consequences for them.

9. The allegations about violence are worrying. In my view, however, it would be consistent with the children’s best interests for there to be a full inquiry upon all the evidence relevant to the father’s involvement in the children’s lives and the nature of his relationship with them, as well as the mother’s allegations with respect to violence. In my view, the appropriate court to undertake this task is the Indian court, where the father and mother have been engaged in proceedings concerning the parenting arrangements for the children over some years now. After all, India is the place where the children have lived for most of their lives and where the acts constituting the alleged violence took place. To the extent that there might be objective evidence to support the mother’s assertions in this regard, the relevant records and evidence would likely repose in India.

10. Evidence about the children’s experience in Australia would be able to be provided by the mother and such witnesses as she might propose. One would expect her witnesses could give their evidence to the Indian court by way of telephone or video conferencing.

11. As I have said, one would expect it to be in the best interests of these children to be able to have a meaningful relationship with their father. The protective primary consideration is to be given greater weight. In my view, taking account of this, I am satisfied that to order the children’s return to India would be unlikely to expose them to an unacceptable risk concerning their safety. This is because the mother has demonstrated that she is well able to approach the relevant courts in India for whatever protection orders might be required. And as indicated above, the Indian courts have assisted her previously in this regard. After all, domestic violence proceedings between the parties remain pending in India. The mother and children are currently protected by restraining orders made by the Indian court.

12. Having regard to the primary considerations and the relevant considerations discussed above, in my view, the bests interests of these children requires an order that they return with their mother to India. In my view, it would be in their best interests for the courts in India to be able to hear all the evidence relevant to a determination of what parenting arrangements would be in their best interests.

13. In my view, such a process would be unable to be undertaken in Australia to the same extent and with as much relevant evidence as would be available in India where the children have spent most of their lives.

14. In all the circumstances, in my view, the best interests of these children would be served by this Court making a summary order for the return of the children to India so that parenting arrangements in relation to them could be determined by the courts in India.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 15 July 2019.

Associate: 

Date: 15 July 2019

ANNEXURE A

1. The mother return the children, X born in 2004 and Y born in 2006 (“the children”), to India, forthwith upon the making of these orders, departing Australia by no later than 20 October 2018, taking a direct flight from Australia to India.

2. The mother attend with the children at the hearing at the City A Courts, India on 26 October 2018, as listed by that court.

3. Within 48 hours of the making of these orders, the mother provide to the father, via his Australian lawyers, MST Lawyers, a travel itinerary and documents evidencing the flights booked for the children in accordance with order 1.

4. Pending the children’s return to India in accordance with order 1, the mother make the children available to communicate with the father via Skype, Facetime or another agreed form of electronic communication at an agreed time each day and failing agreement at AEST 6:00 pm (being1:30 pm in India) each day.

Costs

1. The mother pay the father’s costs of and incidental to this application.

Other

1. Such further and other orders as this Honourable Court deems appropriate.

ANNEXURE B

1. That the mother have sole parental responsibility for the children X born in 2004 and Y born in 2006 (“the children”).

2. The children live with the mother.

3. The children spend no time with the father.

4. That pursuant to section 68B of the Family Law Act 1975 the father be and is hereby restrained from approaching or coming within 100 metres of the children and the mother.

5. That pursuant to section 68B of the Family Law Act 1975 the father be and is hereby restrained from:

   5.1Coming within 100 metres of the place of residence of the children and the mother;

   5.2Any school/s the children attend;

   5.3The mother’s place of employment.

6. That pursuant to section 68B of the Family Law Act 1975 the father be and is hereby restrained from attempting to or allowing or encouraging any other person to find or locate the mother and/or children including but not limited to their place of residence and any school, or educational institution attended by the child/ren from time to time.

7. That the children are permitted to travel with the mother outside of the Commonwealth of Australia.

8. That for the purposes of order 7 any order made by this court placing the children on the Airport Watchlist be and is hereby discharged.

9. That for the purposes of order 7 the mother may apply for a passport or a renewal of passport for the children X born in 2004 and Y born in 2006 without first obtaining the consent of father.

10. That pursuant to Order 1 the mother be solely responsible for signing all documents on behalf of the children without the consent of the father and without his signature.