Selva & Manwar
[2022] FedCFamC2F 535
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Selva & Manwar [2022] FedCFamC2F 535
File number(s): PAC 6937 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 14 April 2022 Catchwords: FAMILY LAW – Application for international travel – mother permitted to travel for a period of one month – child’s passport to be held upon return by mother’s solicitor. Legislation: Family Law Act 1975 (Cth) s 69ZL Division: Division 2 Family Law Number of paragraphs: 13 Date of hearing: 14 April 2022 Appearing for the Applicant: Ms Khatiz Solicitors for the Applicant: Kalpaxis Legal Appearing for the Respondent: In person Appearing for the Independent Children’s Lawyer: Mr Greenaway Solicitors for the Independent Children’s Lawyer: Harb Lawyers ORDERS
PAC 6937 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SELVA
Applicant
AND: MR MANWAR
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
14 APRIL 2022
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.The Court REQUESTS that the Australian Federal Police remove the name of the child X born in 2016 from the Airport Watch List at all points of international arrivals and departures in Australia.
2.X born in 2016 is permitted to travel internationally for a period of no longer than 1 month between 15 April 2022 to 15 July 2022 without the need for the consent of the father to be provided to the issue of a passport to X born in 2016. The mother shall be the only person with ‘parental responsibility’ of the child X born in 2016 for the purposes of applying for, and being issued with, an Australian passport for X born in 2016.
3.Upon the return of the mother and the child to Australia, the mother is to surrender the child’s passport to the solicitors for the mother on the basis that they provide an undertaking to the Court that the child’s passport will not be released to the mother without further order of the Court.
THE COURT FURTHER ORDERS THAT:
4.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X born in 2016 are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur on 20 July 2022 with:
a) the Applicant to attend at 9.00am; and
b) the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
5.Part 2 of the event will occur in person at the Parramatta Registry at 1/3 George St, Parramatta NSW 2150 on the morning of 22 July 2022. Specific details regarding the attendance of the parties and the child/ren on this date will be provided to the parties in Part 1 of the event.
6.Each party will do all things necessary to ensure the child/ren attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
7.The parties and the child/ren shall continue to attend at such times, dates and places as the Court Child Expert may advise.
8.Not later than 4.00 pm on 21 April 2022 the parties must provide their contact telephone numbers and email addresses to [email protected]
9.Pursuant to Order
54 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:a) any agreement reached between the parties;
b) identification of key issues requiring resolution;
c) any views expressed by the child/ren any matters (such as the child/ren’s maturity or level of understanding) that would affect the weight that the court should place on those views;
d) the impact of the issues/dispute before the Court on the child/ren; and
e) any other matters that the Court Child Expert considers important to the welfare or best interests of the child/ren.
10.Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.
11.The Court Child Expert shall be at liberty to inspect any material filed by the parties.
12.The competing interim parenting applications relating to the child’s time with the father are listed for hearing at 10am on 9 August 2022.
13.Direct each party file and serve a Case Outline by 4pm on 5 August 2022 setting out:
a) A precise Minute of Orders sought;
b) A list of documents to be read in their case;
c) A chronology of events;
d) Issues in dispute;
e) A brief summary of argument touching upon the matters set out in s 60CC of the Family Law Act 1975 with reference to the relevant evidence relied upon; and
f) A list of authorities to be relied upon.
These orders have been amended pursuant to Rule 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Selva & Manwar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)JUDGE OBRADOVIC:
These are short form reasons delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
Before me today is an urgent application brought by the mother for permission to travel with the parties' only child, X born in 2016, to India. The application has been listed before me today at relatively short notice, and the mother relies upon primarily her affidavit filed on 21 March 2022. At the time of the filing of that application and affidavit, the mother was proposing that she travel to India for a period of approximately one month, and at that time, annexed to her affidavit in support of the application, she had a draft booking itinerary from 28 March to 28 April 2022.
Unfortunately, the time for that intended travel has now passed, and whatever draft booking the mother might have had or did have now surely has lapsed. In any event, the mother in her affidavit, outlines how she will fund her travel, and the reasons for such travel, being that her mother is critically ill, and that she would like to be able to see her before she passes away. The mother also deposes in her affidavit as to the strength of the relationship between the child and the maternal grandmother, and the importance of that relationship to the child.
The father opposes the application for the mother to travel to India, as he says that the mother is not intending on returning to Australia as revenge for separating from her and not continuing with the marital relationship. The parties have agreed upon a chronology (which is exhibit 2 in the proceedings) in relation to travel from November 2019, that the mother, the child and the father undertook to and from India. The mother's evidence is that she and the child had travelled to and from India, a total of five times, including the trip in November 2019. That means that prior to November 2019 and since his birth in 2016, the child had been to and from India at least four times.
The parties agree that on 4 November 2019, the mother, the father and the child travelled to India. There is significant dispute between the parties as to how they came to travel to India in November 2019, and what occurred when they arrived in India in terms of whether or not the father kept the child's passport form the mother and, indeed, whether he initially took the mother's passport from her.
The father, in any event, it is agreed, returned to Australia on 12 November 2019.
Shortly thereafter, on 20 November 2019, the mother was able to return to Australia without the child. She says that the reason for her return to Australia was to see the father and try and attempt to obtain the child's passport from the father so that she could return to Australia with the child. She then returned to India on 30 November 2019, and she remained in India with the child until March 2021.
The father travelled to India on 18 October 2020 and returned to Australia on 8 December 2020. That means that the child did not spend any face to face time with the father between 12 November 2019 and 18 October 2020, and then again from 8 December 2020 until 6 March 2021. Of course, the COVID pandemic hit the world in or about February or March 2020, which explains why the father may not have been able to travel to and from India during the time that Australia's borders were closed. However, the Court is aware that there was certain travel permitted during that period with special permission being granted from the government for such travel to occur. There is no evidence that the father applied for any exemptions from those travel restrictions at any point in time.
The father, interestingly, says that the parties separated in November 2019. The mother says that the parties separated in May 2021. That is a significant point of dispute between the parties. However, if the Court accepts the father's evidence in relation to the date of separation, it is clear that the mother has returned with the child to Australia after the date of separation alleged in the father's case, and, indeed, it is clear on the father's case that after separation, he left the mother and the child in India, at least initially, for a planned period of some four months, and then due to the COVID-19 pandemic was not able to return as he had planned in March 2020.
The father says that the mother is a flight risk and that if she was to go to India with the child that she would not return. The independent children's lawyer has concerns because India is not a Hague Convention country, and because the mother has no ties to Australia; that is, she is not a citizen, and she has no extended family here and, indeed, no family in Australia, and that there is a risk that she would not return with the child if she was permitted to travel with the child to India, notwithstanding that she has, what appears to be on the very face, very cogent reasons for wanting to travel and needing to travel to India to be with her dying mother.
The Court is not satisfied on all of the evidence before it that the mother poses a flight risk, and, notwithstanding that India is not a Hague Convention country. The mother has demonstrated through various trips over the years since the child was born that she has returned to Australia and that she intends to have Australia as her home. Indeed, it seems that the father has significant ties to India as well, and that his family lives in India, and that he has spent extensive periods of time in India, at least since November 2019. In all of those circumstances, the Court deems it appropriate that the child's name be removed from the airport watch list, and that the mother be permitted to travel with the child for a short period of time in accordance with her application, that period of time being no longer than one month.
The Court is not going to make the orders as sought by the mother for the father to sign all documents permitting her to travel and for the application of the passport because the Court has concerns that that process, if there is no immediate action by the father to comply with that order, that that may delay the mother's travel plans, which, indeed, have already been delayed as a result of these proceedings not being able to be heard in a short time frame. For that reason the mother may apply for the child’s passport herself.
The Court therefore makes orders as set out in the forefront of these reasons for judgment.
I certify that the preceding thirteen 13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 11 May 2022
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