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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...’”
