Tuesday, November 21, 2017

Court Bars a Child’s Visit to India

The Federal Circuit Court of Australia has dismissed the application by an Australian mother of Indian origin to take her child to visit India.  She stated that she wished her young daughter to be present in India, where she planned to marry an Australian man who is also of Indian origin, and then return to Australia.
The Circuit Court relied on expert evidence concerning India’s laws and practices in child custody matters regarding international cases.  In this regard the Court ruled that:
“Although it is a matter for conclusive determination at the final hearing, for the purposes of this interlocutory application I place weight on the expertise of Mr. Morley in the field of international child abduction and his opinion that given the complexities of the Indian family law system the father is likely to face considerable difficulties and expense in locating [the child] and ensuring her safe return, should her mother retain her in India…
It is impossible to predict how an India court may navigate the facts of this case or how much weight an Indian court might give orders of this court.  Mr. Morley’s comment that there is a ‘substantial likelihood’ that the Indian courts would not return the child should the mother fail to return to Australia is sufficient to demonstrate that significant uncertainty exists regarding the degree of deference an Indian court is likely to pay an Australian parenting order. As such, the child’s return to Australia should the mother fail to comply with an order of this Court cannot be guaranteed by the commencement of proceedings by the father in India…
Mr. Morley opines that Courts outside India should be extremely wary about allowing a parent to take a child for a temporary visit to India over objection of the other parents where the mother is of Indian origin and the child is female. In his view there is a substantial likelihood that if the child is not returned voluntarily the Indian court will not return her to her home of habitual residence. Proceedings to recover the child (if necessary) are likely to be extremely slow and expensive process. He contends that [the child] ‘being a girl child, the guardianship of the Mother is of utmost significance. Ordinarily the custody of a girl child who is around 7 years of age must ideally be with her Mother unless there are circumstances to indicate it would be harmful...’”