Court rejects mother's application to travel with children to India in best interests of children

Prashant & Ashtekar [2022] FedCFamC2F 1620 (24 November 2022)

The parties are in dispute over an application for children to travel overseas with the Mother to India for a period of six weeks.  The proposed travel is opposed by Father because of concerns, inter alia, that the children may not be returned.  The Court, in making parenting orders, considered the  best interests of the children.

Facts

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.  The Mother is aged 43, and the Father is aged 55 years.

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.  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.  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.

Issue

Whether or not it is in the best interests of the children to make orders permitting the Mother to travel to India with the children as proposed by her.

Applicable law

Family Law Act 1975 (Cth) s 60CC  - provides that the Court should consider the chidlren's best interests when making parenting orders.

Analysis

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.  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.  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.  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.   There is no material before the Court to suggest that the Father 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.

Conclusion

The Mother's proposed passports and travel orders in her proposed Minute of Order set out in her Case Outline filed 14 November 2022 are dismissed.

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