Prashant & Ashtekar [2022] – Court Denies International Travel Amid Relocation Concerns

INTRODUCTION

1. This was an interim hearing to determine the Respondent Mother’s proposed orders, inter-alia, to enable her to travel to India with the children X (“X”) born in 2007 and Y born in 2011 (“the children”) between about 4 December 2022 and 16 January 2023. The Father opposed such proposed orders. There is another child born out of the parties’ relationship being B (“B”) born in 2004.
2. The Mother’s proposed Minute of Orders sought are set out in her Case Outline filed 14 November 2022.
3. The Father’s proposed Minute of Orders sought are set out in his Case Outline filed 9 November 2022.

MATERIAL RELIED UPON

4. The Mother relied on:(a) Affidavit of the Mother filed 7 October 2022;(b) Her Case Outline filed 14 November 20202;(c) Her Notice of Child Abuse, Family Violence or Risk filed 7 October 2022;(d) Her Parenting Questionnaire filed 7 October 2022.
5. The Mother also sought to rely upon her Affidavit belatedly filed on 14 November 2022. This Affidavit was objected to by the Father. The Court only permitted the Mother to rely upon this Affidavit to the extent of paragraph 20 and Annexures A and C.
6. The Father relied on, inter alia:(a) His Affidavit filed 14 October 2022;(b) His Case Outline filed 9 November 2022;(c) His Notice of Child Abuse, Family Violence or Risk filed 14 October 2022;(d) His Parenting Questionnaire filed 14 October 2022;(e) Section 60I Certificate filed 8 November 2022.

RELEVANT LEGAL PRINCIPLES

7. In Kuebler & Kuebler [1978] FamCA 26; (1978) FLC 90-434 (“Kuebler”), the Full Court of the Family Court of Australia (Ashe SJ, Gun and Yuill JJ concurring) stated:

…the considerations that should be given to an application which involves the custodial parent taking a child out of the jurisdiction, without being exhaustive, would be these:

(a) The length of the proposed stay out of the jurisdiction;

(b) The bona fides of the application;

(c) The effect on the child of any deprivation of access;

(d) Any threats to the welfare of the child by the circumstances of the proposed environment;

(e) The degree of satisfaction in which the Court bases its assessment of the parties that a promise of a return to the jurisdiction would be honoured.

8. In Line & Line [1996] FamCA 145; (1997) FLC 92-729 Murray, Lindenmayer & Kay JJ stated, in relation to (e) above in Kuebler :

4.49 The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).

4.50 We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 October, 1980 (“the Convention”). However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country.

4.51 Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties…

9. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode v Goode (2006) 206 FLR 212.
10. In Marvel v Marvel [2010] FamCAFC 101; (2010) 240 FLR 367, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
    120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

…

122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

123 Later, at [100] their Honours amplified their comments and said:

The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

11. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 said at [19]:
    19. As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
12. The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49):
    49. It is also important to stress here that the requirement to “consider” each factor [under section 60CC of the Act] does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD [2014] FamCAFC 42; (2014) FLC 93-582.
13. Further, it stated, at paragraph 50:
    50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.
14. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
15. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
16. To determine what is in a child’s best interests, the court must consider the matters set out in section 60CC. Firstly, the court must consider the primary considerations, being:

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

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

17. In applying these considerations, as per section 60CC(2A), greater weight must be given to the “need to protect” the child over the benefit to the child of a meaningful relationship with the parents.
18. The court must also consider the “additional considerations” specified in section 60CC subsection (3) where relevant.

THE BEST INTERESTS OF THE CHILDREN

Section 60CC considerations

Subsection (2a) – the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.

19. The Mother is aged 43, and the Father is aged 55 years. Both parties were born in India.
20. The parties’ relationship commenced in about mid-2002 and they were married in late 2003 in India. The parties emigrated to Australia in mid-2005 and have lived in Australia ever since. The parties separated in March 2020 living under the one roof until 30 June 2022.
21. After an ADVO was made for the Mother and children’s protection against the Father in July 2022, the children had no contact with the Father until early September 2022. Since early September 2022 B and Y have been spending a few hours with the Father each Saturday. The child X, whom the Mother alleges was physically assaulted by the Father earlier in 2022, refuses to have any contact with the Father.
22. It would appear that the children have a meaningful relationship with the Mother. The child Y may presently have a meaningful relationship with the Father that is being restored to its former state as at about 30 June 2022. The child X’s former meaningful relationship with the Father appears to have become fractured since an alleged incident in about May 2022.
23. The children will benefit from the maintenance of their meaningful relationship with the Mother. The children should benefit from having a meaningful relationship with the Father provided it is safe for them to do so.
24. If the children are absent from Australia for about six weeks, it is possible the timely restoration of Y’s meaningful relationship with the Father may be detrimentally affected.
25. Should the Mother travel to India with the children and the children remain in India, the Father may well have significant practical difficulties and expenses in spending time and communicating with the children. India is not a party to the Hague Convention; the Father would likely experience significant legal challenges and related delay in prosecuting parenting proceedings in India for the return of the children to Australia. In these circumstances the timely restoration of his meaningful relationship with the children would likely be detrimentally affected. The Court would make similar comments should the Mother fail to return the children to Australia in a timely fashion after 16 January 2023.

Subsection (2b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

26. The Mother makes very serious allegations of family violence against the Father. The Father makes significant denials in this context.
27. The Mother, in her Affidavit filed 7 October 2022, alleges that the Father, as soon as the parties were married, began to abuse her physically, verbally and emotionally. She alleges that this abuse was severe and sustained, “and it happened far too frequently for me to recall and document in detail.” The Mother alleges, inter alia, physical abuse by the Father towards her including being punched in the head with a closed fist regularly throughout the marriage. The Mother alleges that she was punched by the Father in the presence and view of the children. The Mother alleges that for many years she lived in constant fear that if anyone found out about the abuse, the children would be taken into care. The Mother alleges that in one incident around September 2021, during physical abuse by the Father towards her, she genuinely feared for her life. The Mother went to the police who later issued an ADVO against the Father for her protection; a final ADVO was made against the Father for the protection of the Mother for two years from 21 September 2021. The Mother alleges that the physical abuse then ceased however the verbal and emotional abuse of the Father escalated.
28. The Mother also alleges in the above Affidavit verbal and emotional abuse by the Father of a serious nature. She alleges that after the first ADVO in September 2021 the Father perpetrated threatening behaviour against her. Alleged threatening messages to the Mother made the Mother feel frightened.
29. The Mother alleges that X is scared of the Father and that the Father has been abusive and controlling towards her. She alleges that during early 2022 this child’s school year adviser called the Mother on multiple occasions to tell her that this child was feeling unsafe at home, and that if the Father would not leave the home, then the child would like to go to a refuge. The Mother alleges that in about May 2022, the Father being allegedly angered by the length of X’s shorts, screamed at her and grabbed her by the throat choking her for a few seconds. In a report from a clinical counsellor for X dated 1 October 2022, the counsellor refers to this child struggling with suicide ideation, self-harm, obsessive-compulsive thoughts and restrictive eating. The Mother alleges that this child refuses to have anything to do with the Father, that she was already fearful of him prior to the Father allegedly assaulting her, and that she is now even more terrified that the Father will blame her for the ADVO and the criminal charges that the Father is facing.
30. The police obtained a provisional ADVO on 1 July 2022 for the protection of the Mother and the children. As a result of this Order the Father was required to vacate the family home. In the Grounds of the Application made by the police it is stated that the police believe that the alleged actions of the Father against the Mother, in particular, amounted to controlling harassing and intimidating behaviour. The police referred to the alleged fearfulness of the Mother and the child X towards the Father.

Section 60CC(3) – Additional Considerations

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

31. The Mother alleges that the children have indicated to her that they wish to accompany the Mother on travel back to India as proposed by the Mother in early December 2022. The Court would not attach significant weight to these alleged views, and in this regard the Court refers to its discussions below.

(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)

32. The Court refers to its discussions above under the meaningful relationship primary consideration. There is a suggestion, on the material before the Court, that the children have positive relationships with the maternal and paternal extended family in India.

(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; and to spend time with the child; and to communicate with the child

33. Both parties would appear to have taken such opportunities.

(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

34. Both parties would appear to have fulfilled such obligations when the children were in their respective care.

(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 he or she has been living

35. See below.

(e) The practical difficulty and expense of a child spending time with and communicating with the 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

36. See above under the meaningful relationship primary consideration.

(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

37. Subject to the Court’s discussions above under the need to protect primary consideration, both parents would appear to have such capacities.

(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

38. There is a suggestion that the children are in good health apart from alleged adverse mental health in the child X.

(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

39. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

40. Both parties would appear to have demonstrated appropriate attitudes subject to the Court’s discussion above under the need to protect primary consideration.

(j) Any family violence involving the child or a member of the child’s family.

41. See above under the need to protect primary consideration.

(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 following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

42. See above under the need to protect primary consideration.

(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.

43. Should the Mother be permitted to travel to India with the children and the children remain in India, and the Father wishes to secure the children’s legal return from India to Australia, he may have to commence legal proceedings in India and further proceedings in Australia; the Court refers to its discussion above under the meaningful relationship primary consideration.

m) Any other fact or circumstance that the court thinks is relevant.

44. The Mother’s proposed length of stay in India is about six weeks.
45. As to the bona fides of the Mother’s application, the Court has a significant concern as to the reliability of the Mother’s assertion that she proposes that the children will be returned to Australia on 16 January 2023, and which is discussed below.
46. Apart from being unable to spend regular time with the Father, there would not appear to be any threats to the welfare of the child by the circumstances of the proposed environment of the children in India, should they be permitted to travel there with the Mother; the Mother states that during her proposed time in India with the children, she and the children will be staying in the same suburb as the Father’s parents.
47. As to the degree of risk that the Mother, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return with the children, the Court makes the following observations.
48. The parties and children historically travelled as a family back to India every couple of years as both parties’ extended family remain living in India, with their last trip being in about December 2019. The children have not seen their maternal or paternal extended families since about December 2019. The Mother herself travelled to India alone in about January 2021 for ten days.
49. The Mother has booked return tickets for herself and the children to India, in relation to the proposed travel to India.
50. The Mother alleges that she proposes that the children spend time with the paternal and maternal extended family of each party in India. The Mother alleges that she believes the children will benefit from the proposed holiday to India particularly the child X whose mental health has allegedly been particularly affected by the Father’s allegedly abusive behaviour. The Mother alleges that there will be a coming-of-age/puberty ceremony to be celebrated for the child X in India. She alleges that her own university classmates are planning a reunion at the end of 2022 in India.
51. The parties emigrated to Australia in mid-2005 and have lived in Australia ever since.
52. The children have attended school in the Region C area. The child X is in Year 9 and, according to the Mother, has many friends. The child Y is in Year 5 and, according to the Mother, has many close friends.
53. The Mother alleges that she works as a professional with a company with whom she has been employed for almost six years. She alleges she enjoys her work.
54. The parties have been Australian citizens since about mid-2009.
55. The letter from the Mother’s solicitor to the Father’s solicitor dated 19 May 2022 states, inter alia, that the Mother only moved to Australia on the Father’s insistence. The letter asserts that the Father has “breached the ADVO on a number of occasions through text communication and verbally, and continues to harass and bully [the Mother]”. The letter asserts the Mother’s proposal that the parties sell the family home in December 2022.
56. In a letter dated 23 June 2022 from the Mother’s solicitor to the Father’s solicitor, it is stated, inter alia, that the Mother’s parents reside in India at a particular property which “has been settled in our client’s name. Our client’s parents are 66 years and 71 years of age and are in good health. Whilst our client will inherit this property, it is not an asset that is currently realisable or appropriate to be included on the balance sheet.”
57. In the above letter dated 23 June 2022 the Mother’s solicitor alleges that the Father has on three occasions breached the ADVO made on 21 September 2021 having allegedly posted thinly veiled threats, and menacing and intimidating messages on Facebook directed towards the Mother and the Mother’s family. In this context, the Mother had submitted that she would have no significant motivation to remain in India by reason of alleged family violence perpetrated by the Father because of the existence of the current final ADVO and provisional ADVO. Nevertheless, this submission should be set against the alleged breaches by the Father of the ADVO made on 21 September 2021.
58. The above letter goes on to state that the Mother has applied for various rental properties that will house herself and the children and is waiting on replies.
59. The Court refers to its discussions above under the need to protect primary consideration. The Mother’s allegations in that context suggests that the Mother may well have a significant motivation to travel to India with the children and remain there or fail to return to Australia after 16 January 2023 in a timely fashion. This suggestion is reinforced if not supported by:(a) The Mother’s statements to the Father (confirmed by his solicitors) that she only moved to Australia on the Father’s insistence;(b) The Mother’s alleged statement to the Father in February 2022 that if the Father did not go to India that she would go to India instead because she wanted to take a break from the Father;(c) The Father’s allegations that in August 2010 the Mother left with the eldest child and X to spend a period of time in India for what was intended to be a two-week trip but in circumstances where the Mother allegedly withheld the children in India for four months;(d) Further ADVO proceedings are due to occur in March 2023;(e) The Father’s allegations that in March 2022 the eldest child advised the Father, after returning from school one day, that the Mother had told him that she would be taking the eldest child and his siblings to India at the end of the year and the two youngest children would be enrolled in an international school there. (The Court observes that in paragraph 20 of the Mother’s Affidavit filed 14 November 2022, in relation to these allegations, she states that she does “not know about this conversation” and alleges that at the end of March 2022 the eldest child accompanied her to a post office to have new passport pictures taken for the Mother’s planned trip to India in December 2022);(f) The Father’s allegations that he recalls on numerous occasions throughout the marriage the Mother would tell him that, “one day, you will find us all missing and I will take the children away from you”;(g) The Father’s allegations that on 17 January 2022 the Mother sent him a WhatsApp message stating, inter alia, that “it was your idea and wish to get settled in Australia and to remain here…It’s only because you want to live here that we are still here against everything I wanted.” This alleged message from the Mother to the Father is set out in Annexure C to the Father’s Affidavit filed 14 October 2022;(h) The Father’s proposed parenting orders (both final and interim) that the children spend time with the parties on a week about arrangement;

    (i) The Mother obtained her professional qualifications in India graduating there in about 2002.

60. On balancing the above matters as to the risks or non-risks of the Mother travelling to India with the children and the children not returning to Australia, the Court would presently assess the risk of the children not being returned to Australia from India as being a significant risk. The Court would also assess the risk of the children not being returned to Australia from India in a timely fashion after 16 January 2023 as being a significant risk.
61. The Court observes that India is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 (“the Convention”).
62. As to the financial circumstances of both parties, on the material presently before the Court, the Mother presently has employment as a professional, it was her parents that paid for the parties’ travel expenses every time they travelled to India, the Mother has superannuation benefits in Australia, and the Mother, through her solicitor’s letter of 19 May 2022, proposed that the parties sell the family home in December 2022.
63. As to the Father, he alleges that he works as a Manager. The Mother alleges that he owns, together with his brother and Father, an interest in an Indian property. There is no material before the Court to suggest that he presently has significant funds available to prosecute legal proceedings in India should the Mother fail to return the children to Australia on 16 January 2023.
64. The Mother does not propose any security to ensure the children’s return to Australia on 16 January 2023.

SUMMARY

65. Evaluating the above considerations under section 60CC of the Act, including consideration of relevant case law factors applicable to the Mother’s proposed trip to India with the children, the Court is of the view, on the evidence presently before the Court, that it will not be in the best interests of the children to make orders permitting the Mother to travel to India with the children as proposed by her.
66. It will be in the best interests of the children to make the Father’s proposed interim travel orders set out in his Response filed 14 October 2022 (proposed orders 15 and 16, but removing reference to the child B).
67. The Mother’s proposed passports and travel orders set out in her proposed Minute of Order set out in her Case Outline filed 14 November 2022 shall be dismissed.