Khalid and Khalid (No 4)

[2016] FamCA 797

FAMILY COURT OF AUSTRALIA

KHALID & KHALID (NO 4) [2016] FamCA 797

FAMILY LAW – CHILDREN – Permission to take child overseas.

APPLICANT: Ms Khalid

RESPONDENT: Mr Khalid

FILE NUMBER: CAC 128 of 2014

DATE DELIVERED: 21 September 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 15 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Haughton

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That pursuant to s 65Y of the Family Law Act 1975 the mother be permitted to take the child, C, born … 2005, out of the Commonwealth of Australia and travel with her to India for the period from 10 November 2016 to 18 January 2017 provided that:

   a.The mother provide the father with copies of return tickets for the child at least 14 days prior to the departure;

   b.The mother provide the father with a detailed itinerary providing addresses and phone numbers for the accommodation in which the child will be staying at least 14 days prior to departure.

   c.The mother provide the father with copies of any travel insurance policy obtained and paid for by the mother along with receipt of payment;

   d.The mother will provide the father a copy of any relevant and necessary visa obtained and paid for by the mother; and

   e.The mother will provide the father a copy of any medical certificate(s) evidencing travel immunisations or other medical treatment required by the child to facilitate international travel.

2. That the father shall have liberty to relist this matter on 24 hours’ notice in the event that the mother does not meet any of the conditions detailed in Order 1 above within the specified time frames.

3. That the mother shall engage with the father through her legal representatives no less than 14 days after her return from India in relation to make up time between the father and the child.

4. The mother’s application filed 20 June 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalid & Khalid (No 4) 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 CANBERRA

FILE NUMBER: CAC 128 of 2014

Mr Khalid

Applicant

And

Ms Khalid

Respondent

REASONS FOR JUDGMENT

1. An Application has been made to allow a child, C, born in 2005, who is currently the subject of parenting orders made in proceedings between his mother, Ms Khalid, and step-father, Mr Khalid, to travel to India.

2. It has become apparent that the proper parties in relation to this application have not been joined.  That is C’s father has never been placed on notice of the proceedings nor joined to the proceedings nor served with any documents. 

3. The circumstances deposed to are that C’s father Mr K, lives in India, where C was born.  He has not had any involvement in C’s life since C was young, C’s mother having remarried and moved to Australia when C was about one and a half years old. 

4. C’s mother in her most recent affidavit filed on 13 September 2016 testifies that although she made attempts to involve Mr K in C’s life he did not take up these attempts.  Subsequently she moved to Australia and he has had no involvement in C’s life.

5. Notwithstanding these circumstances the rules provide that he is to be made a party to the proceedings.  There are also provisions to allow him to be served, notwithstanding that he resides in India. 

6. An oral application has been made before me today to dispense with Rules in respect of service of Mr K.  The provisions which deal with dispensation from the Rules are contained at Rule 1.12 with reference to the main purpose of the rules at Rule 1.04.  I note that each of those Rules has as a significant and, in the purposes of Rule 1.04, fundamental component, the requirement that the case be resolved in a just manner.  It is a fundamental component of justice that those who are affected by orders made by the Court are entitled to be a part of those proceedings and to be heard in respect of their interests that may be adversely affected.  This fundamental requirement explains the necessity to join parents as parties to proceedings. 

7. However, there are circumstances where the fundamental requirement of nature justice can be complied with without the formal joinder of a person to the proceedings.

8. In this case, the central matter to be dealt with was in relation to the ability of C to travel to India with C’s mother.  This is a matter in relation which Mr K, as C’s father, is entitled to be heard.  The mother prepared and filed an affidavit on 13 September 2016 which deals with her attempts to involve Mr K in the proceedings.  That affidavit outlines attempts by her solicitors to have Mr K sign terms which would have granted permission for C to travel.  Although somewhat unclear the correspondence from Mr K appeared to indicate his consent for C to travel to India although he had not signed or returned terms.  The mother’s evidence indicated a reluctance on his part to sign terms in case there was a financial consequence. 

9. The affidavit and exhibit M1 also indicated that Mr K was not on notice that the matter was before the Court today and so even if he was on notice generally as to what was sought before the Court he did not have the opportunity to participate. 

10. An attempt was then made today to contact Mr K by telephone.  A telephone call was established between Mr K and the Court at which point Mr K agreed that the mother was his ex-wife and C his child.  He identified that C was born in 2005.  He provided an address that was consistent with an address contained on e-mail correspondence from him as annexed to the mother’s affidavit.

11. On the question of whether or not Mr K was agreeable to C travelling to India he indicated that he gave his permission to travel to India and that such travel would be “ok”. 

12. Under these circumstances Mr K has now been given sufficient opportunity to participate in the proceedings and in fact has indicated consent to the particular outcome in the proceedings sought by the mother such that the requirements of nature justice have been met without a formal joining of him as a party to the proceedings. 

13. Accordingly, I dispense with the requirement to join Mr K as a party to the proceedings in respect of C noting that the proceedings were only to deal with the discrete issue of C’s travel to India.

14. Previously I have published a decision in respect of C’s sibling, D and permission for D to travel to India.  I adopt those reasons as follows and apply them, where appropriate, to C.

15. On 15 June 2016 Judge Neville, of the Federal Circuit Court, made Orders that mean that C lives with the mother and the mother has sole parental responsibility for C.  These orders as amended by me on 4 July 2016 provide that C spend time with the respondent in accordance with C’s wishes.  He has not attended Court in relation to the hearing of the application to travel to India. 

16. In support of her Application, the mother relied upon affidavits filed by her on 20 June 2016 and 22 July 2016 (save that a portion of annexure B of the first of the affidavits is not read, as it relates to settlement proceedings) and 13 September 2016. 

17. The mother also relied upon the husband’s financial statement as filed on 15 December 2015 in so far as it discloses that he receives an income of $192,000 per annum and that he currently holds $86,000 in superannuation. 

18. An order pursuant to s 65Y regarding overseas travel is a parenting order. A decision to make an order pursuant to this section is governed by what is in C’s best interests. C’s best interests are to be determined in accordance with s 60CC of the Family Law Act 1975. The affidavit material of the mother discloses the following matters in terms of the desirability of travel to India:

    (a)The mother and her family are of Indian heritage and culture.  The mother wishes to spend time with her family and hopes for C to develop relationships with cousins who range in age from six months to 18 years.  The cousins are the children of the mother’s sister and now deceased brother.  The mother hopes that the development of relationships between C and these cousins will involve long term interaction. 

    (b)Travel would enable the mother and children to spend time with the mother’s parents who the mother says are unable to travel to Australia due to their health. 

    (c)The mother further notes that overseas travel was a part of the parents’ life together with C, as previously they would travel overseas together for a period of up to two months at a time. 

    (d)The travel is proposed to be funded from savings made by the mother along with a contribution by her parents.  Because of the family that is presently in India, the mother says that her accommodation will be provided by family members.

    (e)The period of travel is said to be justified by the expense and the fact that this would allow C to have proper interaction with a number of different family members.  The mother says that she will follow advice to obtain vaccinations for the children, will provide travel insurance for herself and the children and also addresses the question of the children and make up time.

    (f)In relation to schooling of C, the mother sets out a conversation that she has had with C’s teacher that indicates that any time from school missed is unlikely to be problematic to C. 

19. I note that India is not a Hague Convention country.  There is no mechanism available by which, once the child is overseas, by force of a court order the child can be caused to return to Australia. 

20. The mother addresses this by outlining the following matters.

    a)The mother is an Australian citizen and wishes to return to Australia.

    b)C is an Australian citizen.

    c)The mother has obtained qualifications in Australia, made friends and established a comfortable home in Australia.

    d)On a previous occasion, the respondent took the mother’s passport while she was overseas.  She approached the Australian embassy and they facilitated her return to Australia.  She did not attempt to return to India at that time.  The mother says that she regards Australia as her home.

    e)The mother also asserts correctly that there are property proceedings on foot.  While it is uncertain what pool might be available she points to the fact that the husband holds some superannuation to which she asserts that she would have an entitlement in property proceedings. 

21. What could tell against the benefits of travel would be a situation where C was retained in India. 

22. However, on the mother’s affidavit material I am satisfied that she will return to Australia with C. On balance, the s 60CC factors which are most activated, being:

    (a)The nature of the relationship the child has with the mother and with other persons and the background, including culture and traditions, of the child and of the mother.

    This is the matter of most significance in determining what is in the best interests of C.  C will receive benefits in relation to the interaction with the mother’s family and the experience of that culture. 

23. On balance, it is in C’s interests to travel to India with the mother, provided that the mother is compliant with the terms that she has sought in her Application.  I will make orders in the terms sought in the mother’s Application dated 20 June 2016 in respect of C.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 September 2016.

Associate: 

Date:  21 September 2016