SARIN & SARIN

[2020] FCCA 1740

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARIN & SARIN [2020] FCCA 1740

Catchwords:
FAMILY LAW – Parenting – application for the child to travel with the mother to India – where the child has spent very limited time with the father since separation – where the mother has relinquished her Indian citizenship – where the child and the mother are Australian citizens – satisfied there is no flight risk or that the mother would not return with the child to Australia.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS SARIN

Respondent: MR SARIN

File Number: DNC 592 of 2017

Judgment of: Judge Young

Hearing date: 10 June 2020

Date of Last Submission: 10 June 2020

Delivered at: Darwin

Delivered on: 10 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Lethlean

Solicitors for the Applicant: Top End Women's Legal Service

The Respondent: In person

ORDERS

1. That the mother of the child X born in 2014 be permitted to apply for an Australian passport without first obtaining the consent or signature of the child’s father.

2. That the mother MS SARIN born in 1988 be permitted to travel with the said child outside the Commonwealth of Australia without the permission of the father MR SARIN born in 1986.

3. That the Registry Manager of the Family Court of Australia Darwin provide a copy of the orders made today to the appropriate person in DFAT.

4. That the matter be adjourned to the trial call-over list on 20 November 2020 at 9.30am for further directions.

IT IS NOTED that publication of this judgment under the pseudonym Sarin & Sarin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 592 of 2017

MS SARIN

Applicant

And

MR SARIN

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim application for permission for the mother to travel with the child to India.  The mother was born in India and the child, X, who is five and a half years old, lives with his mother.  The mother, while born in India, is an Australian citizen.  She has deposed that she no longer holds Indian citizenship.  She has her parents in India and she says that she would like to be free to travel to India from time to time to visit her family and to ensure to X is familiar with Indian culture at its source. 

3. The mother deposes that she has visited India on previous occasions, using the child’s now expired Australian passport.  She says that post-separation, from 2016, she travelled to India with the child on three occasions to visit the family: in 2016, 2017 and 2019.  However, since the expiry of the child’s passport, the father has objected to the mother obtaining a new passport for the child, for reasons that are not entirely clear to me. 

4. The child has spent very limited time with the father since separation, and has not on any occasion spent overnight time with the father.  The father’s objective, apparently, in refusing to sign the passport was to either ensure that the mother agreed that he could travel to India with the child, or for the child to spend more time with him. 

5. It is unclear to me precisely what his objective is but in circumstances where it would appear the child has not spent any overnight time with the father since separation and the present time orders are for daytime, I see no urgency about an order permitting the child to travel to India with the father.  Indeed, there is no basis for such an order until the time the child is spending with the father is extended and includes block time, including overnight time, such as on school holidays.  Things do not appear to have got to that stage yet so in my view it is not to be contemplated that the child would be travelling to India with the father for the foreseeable future. 

6. It is a very different matter for the mother.  I am satisfied that there is no flight risk and indeed the father, once I clarified the position with him, seemed to accept that.  It should be noted, however, India is not a Hague Convention country and should the mother decide not to return, I have very little doubt there would be great difficulty ensuring a return of the child. 

7. However, as I have noted the mother is not an Indian citizen, she is an Australian citizen having relinquished her Indian citizenship.  She is a resident in Darwin, she is employed in Darwin and, as I say, the child is an Australian citizen and goes to school here.  I am not satisfied that there is any flight risk or any risk that the mother would not return with the child to Australia.  Accordingly I propose to make the orders that the mother seeks.  The mother is permitted to apply for an issue of an Australian passport and the signature of the father is not required. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 29 June 2020