Hazra & Mallik (No 2) [2025] FedCFamC2F 1445 (18 September 2025)

1. The Court will provide this order to the relevant authorities for the purposes of the child, X born in 2022, being removed from the Watch List at all points of international arrivals and departures in Australia.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, to add observations inadvertently omitted due to the pressure of time and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.

1. In the matter of Hazra & Mallik I made final orders on 28 August 2024. Those orders concerned property division between the applicant father, Mr Hazra ('the Father') and the respondent mother, Ms Mallik ('the Mother'), and provided for the parties' child to live with the Father and for the Father to have sole decision making about major long-term decisions relating to the child.
2. Their child, X, was born in 2022 and is now almost three. The parents commenced to live together when they married in 2018, and they separated in April 2023. The Father issued proceedings on 8 May 2023.

1. The proceedings and chain of events involved in this matter had a significant discord, or incongruity, to them.
2. The Mother's position in the proceedings in 2023 and 2024 was that the Father should only spend limited time with X. X at that time was a baby, or a toddler. I refer to the decision of Hazra & Mallik [2024] FedCFamC2F 1213 made on 26 August 2024, and the reasons for those orders, by way of background to the current application.

1. The Mother was called outside the Court this day and has not appeared. Further, there has been no application by her to attend by electronic hearing.

Whether to proceed in the absence of the Mother

1. The first question I must determine is whether I can proceed to hear the Father's application to discharge the arrangement known as a "watch list order" in the absence of the Father.
2. I am satisfied that the Mother knows of the proceedings, knows of the court case this day, and has had the opportunity to participate. Hence, it is procedurally fair, and just and equitable, that I proceed to hear the matter in the absence of the Mother.

1. The next question I must determine is whether I proceed undefended, that is, having regard to only what the evidence that the Father puts before me, or whether I should have regard to documents that the Mother has provided to the Court and to the Mother.
2. The usual practice of the Court is that when a party is proceeding on an undefended basis, only the evidence of the party attending Court is to be had regard to. It would be in exceptional circumstances that the material provided by the absent party, who has not participated in the proceedings in the ordinary or orthodox matter, would be had regard to.
3. In this case, there is the very significant discordance and incongruity between the Mother's position when represented by lawyers and the circumstances of her then, at very short notice, leaving the then baby, X, with the Father. Ultimately, on or about May 2024, having previously strongly opposed the Father spending any significant time with X, the Mother simply, with less than two hours' notice by text message, demanded that the Father pick up X from his day care because, "I have an emergency and leaving to overseas."[1]
4. Further, it is apparent that, despite abruptly leaving the child in the Father's care and leaving the country, the Mother has commenced proceedings in India in regard to the custody and guardianship of the child. It is not clear to me how that Court would have jurisdiction to make orders in regard to an Australian citizen who has lived all his life in Australia, but that is a matter for the Indian Court.
5. It may be that the Indian Court, by reason of the doctrine of comity, would have regard to (although would not be bound by) the decision of this Court. An example of that comity between courts is the decision of the Honourable Justice K in May 2025 in proceedings in the High Court in proceedings ...-... which is publicly available online and in the Republic of India.
6. In all of those most unusual circumstances, I have determined that it is appropriate to have regard to what the Mother has asked me to take into account. I do so notwithstanding that those documents are not regularly filed and have been provided late in the piece. I do acknowledge that this is an urgent application brought on at short notice by the Father. In all of those circumstances, which I regard as exceptional, I propose to have regard to what the Mother has asserted.
7. The Mother has provided to the Court via email a written document of two pages, but containing many other documents, including pages of text messages in 2024 between the parties, a photograph of what is apparently a seriously injured foot, and documents corroborating her assertion of seeking orders in a court described as the Family Court, District and Sessions Judge, Judge L. I have determined to have regard to the matters the Mother has asked that I have regard to.
8. The long and the short of it is that the Mother explains her absence from X's life as a result of being harassed by the Father's friends and family in both Melbourne and India, and she stated:

This harassment became unbearable, and as a result, I felt I had no choice but to temporarily leave for India [in] May 2024 to resolve issues at home. Unfortunately, during my time in India, I was involved in an accident that severely injured my leg, and I was unable to return to Australia immediately. During this time, I also lost my job, which further complicated my situation.

It is crucial that the Airport Watchlist Order remains in place until the ongoing legal matters in India are resolved. The current situation and [Mr Hazra]'s actions suggest that his request is part of a broader attempt to remove me from [X]'s life, which raises serious concerns about my ability to maintain any contact with my son in the future.

4. Request to the Honourable Court

Considering the above, I respectfully request that the Airport Watchlist Order remains in effect until all relevant legal proceedings in India have concluded. ...

It is also clear that the Mother asserts she was unable to obtain a passport to return to Australia for the purpose of opposing this order.

1. I acknowledge, and have taken into account, what the Mother has asserted. I am unable to be satisfied, on the balance of probabilities, that what she asserts is either true or accurate. Nonetheless, I acknowledge that communication to the Court.

1. I do not accept the Mother's assertion that it is crucial that the airport watch list order remains in place until the Indian proceedings are resolved. I am unable to accept the invitation, or even application, contained in that document (marked 'M2 - Mother's evidence and submissions provided 17 September 2025') where she requests a rescheduling or postponement of the hearing to permit her to attend the Court proceedings without hindrance.
2. I accept that there is some urgency in the Father's application as he wishes to attend an important personal and cultural event, being the wedding of a friend in New Zealand. The Father's ties to the jurisdiction of the Commonwealth of Australia are substantial and, indeed, overwhelming. The watch list order, as explained in the reasons of 28 August 2024, was made at the Father's application because of his concern that the Mother may remove the child from the Commonwealth of Australia and detain the child in the Republic of India.
3. In the circumstances where the Mother has remained in India since May 2024, and it appears unlikely that she will return to Australia any time soon, the Father contends that there is no practical need or purpose for the watch list order. However, as addressed in the reasons of 26 August 2024, that watch list order now prevents him, and hence X, from attending ordinary, everyday, significant cultural events like the wedding of a friend.
4. Hence, having taken into account what the Mother asks me to do, I find that the case and application of the Father for the discharge of the watch list order to be overwhelming.
5. I take into account the best interests of X as the paramount consideration. I take into account the matters under section 60CC which specify how I am to take this into account, or how I am to determine the best interests of X.
6. The most relevant consideration in this case is under section 60CC(2)(f), "anything else that is relevant to the particular circumstances of the child". The most significant matter is that the Father cares for X without the assistance of X's mother but with the assistance of his mother (X's paternal grandmother) and has the ordinary, usual, everyday common or garden need to attend a friend's wedding, as people ordinarily do. Hence, I am satisfied that it's in X's best interest that I discharge the watch list order.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.

[1] See [25] of the decision of Hazra & Mallik [2024] FedCFamC2F 1213.