Khalid & Khalid (No 3)

[2016] FamCA 755

FAMILY COURT OF AUSTRALIA

KHALID & KHALID (NO 3) [2016] FamCA 755

FAMILY LAW – CHILDREN – Best interests – Travel overseas for a holiday

Family Law Act 1975 (Cth) – ss 60CC, 65Y

APPLICANT: Ms Khalid

RESPONDENT: Mr Khalid

FILE NUMBER: CAC 128 of 2014

DATE DELIVERED: 6 September 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 25 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J Haughton

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf of the respondent

Orders

1. That pursuant to s 65Y of the Family Law Act 1975 the mother be permitted to take the child, D, born … 2009, 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. That the Application in respect of C, born … 2005, is adjourned to 15 September 2016 at 3pm for the mother to take steps to place the father on notice of the proceedings or to make further Application before me. 

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 Khalid & Khalid (No 3) 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

Ms Khalid

Applicant

And

Mr Khalid

Respondent

REASONS FOR JUDGMENT

1. By Application filed 20 June 2016 the applicant mother, Ms Khalid, seeks orders pursuant to s 65Y of the Family Law Act 1975 to allow her to take two children, C, born in 2005, and D, born in 2009, from Australia to travel to India between 10 November 2016 and 18 January 2017.

2. The respondent did not appear at the hearing of this matter on 25 August 2016, nor did he file material in accordance with the directions previously made in relation to this Application.

3. At the hearing of this matter the wife’s affidavit material disclosed that, while she is C’s mother, the respondent is not C’s father.  At present in the proceedings C’s father has not been identified.  I identified to counsel appearing for the mother that, pursuant to Rule 6.02, the parents of a child who is the subject of the application for a parenting order are proper parties.  The natural father of C is not on notice of the proceedings.  It was said on behalf of the mother that, as she has sole parental responsibility, the proceedings could continue without placing the father on notice. 

4. I do not accept that this is the case.  Accordingly, the Application in respect of C has been adjourned to 15 September 2016 for the mother to take steps to place the father on notice of the proceedings or to make further Applications before me. 

5. The mother indicated that she wished to continue with the Application in so far as it deals with D. 

6. On 15 June 2016 Judge Neville, of the Federal Circuit Court, made Orders that mean that D lives with the mother and the mother has sole parental responsibility for D.  There are orders that provide for D to spend time with the father.  These orders were amended by me on 4 July 2016 and, in general terms, provide for alternating weekends and school holiday time.

7. In support of her Application, the mother relies 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). 

8. The mother also relies 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. 

9. An order pursuant to s 65Y is a parenting order. A decision to make an order pursuant to this section is governed by what is in D’s best interests. D’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 D 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 D 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 D, 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 D 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 D, the mother sets out a conversation that she has had with D’s teacher that indicates that any time from school missed is unlikely to be problematic to D. 

10. 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. 

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

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

    b)D 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 in Asia.  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. 

    f)The mother also says that arrangements could be made to provide compensatory time between the father and D following the return from India.

12. It is in D’s interests that both D and the mother be able to establish and maintain relationships with the mother’s family in India.  A short period of time as is proposed for the travel, during which D will not see her father, does not appear to be likely to undermine the relationship with her father. 

13. What could tell against the benefits of travel would be a situation where D was retained in India.  This would have negative impacts on the relationship that she has with the father. 

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

    (a)Those in relation to the benefits of a meaningful relationship being retained with the parents and the benefits that may be taken from those; and

    (b)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.

    These are the matters of most significance in determining what is in the best interests of D.  The meaningful relationship with the father will not be undermined by the travel.  D will receive benefits in relation to the interaction with the mother’s family and the experience of that culture. 

15. On balance, it is in D’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 D.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 6 September 2016.

Associate: 

Date:  6 September 2016