Agarwal & Desai
[2024] FedCFamC2F 601
•14 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Agarwal & Desai [2024] FedCFamC2F 601
File number(s): PAC 5997 of 2019 Judgment of: JUDGE MYERS Date of judgment: 14 May 2024 Catchwords: FAMILY LAW – parenting proceedings – best interests of child – where the child is 12 years old - where it is an agreed fact that the father have sole parental responsibility for the child and the child live with the father – where the mother has an illness and is chronically ill – where the issues in dispute concern the duration and frequency of time that the child spends with the mother and whether the child should be permitted to travel overseas with the father. Legislation: Family Law Act 1975 (Cth) ss 60CC(2)(a)-(b), (3)(a)-(m). Cases cited: Line v Line (1997) FLC 92-729, [34]. Division: Division 2 Family Law Number of paragraphs: 85 Date of last submission/s: 30 April 2024 Date of hearing: 2-4 April 2024 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers Counsel for the Respondent: Mr Fantin Solicitor for the Respondent: Pannu Lawyers ORDERS
PAC 5997 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS AGARWAL
Applicant
AND: MR DESAI
Respondent
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
10 MAY 2024
THE COURT ORDERS THAT:
1.All previous interim parenting orders be discharged.
2.The father have sole parental responsibility for the child, X born in 2012 (‘the child’).
3.The child live with the father.
4.The child spend time with the mother from 5:00pm to 7:30pm each Wednesday and from 12:00 noon to 4:00pm each Sunday.
5.To give effect to Order 4 above and Order 6 below, the father shall deliver the child to the mother at the commencement of the time and collect the child from the mother at the conclusion of the time.
6.That unless otherwise agreed between the parties (where the mother possesses the capacity to make an agreement or otherwise between the father and the mother’s legal guardian) in writing, the child shall spend time with the parties during special occasions commencing from the date of the orders as follows:
(a)On Diwali, the child shall spend time with the mother from 4:00pm until 7:00pm, and in the event Diwali falls on a non-school day when the child is not already in the mother’s care, the child shall spend time with the mother from 11:00am until 2:00pm.
(b)That the child spend time with the mother on the day of a community celebration of the festival of Holi from 11:00am until 2:00pm provided that:
(i)The celebration is in Region B,
(ii)The Applicant provides not less than 7 days’ notice of the upcoming festival celebration with the date and location.
(c)That the mother’s time with the child shall be suspended on Father’s Day.
(d)That in the event the child is not already in the mother’s care on Mother’s Day, the child shall spend time with the mother from 11:00am until 6:00pm on Mother’s Day.
(e)That the mother’s time with the child shall be suspended on the father’s birthday.
(f)That in the event the child is not already in the mother’s care on the mother’s birthday, the child shall spend time with the mother from 11:00am until 2:00pm with the mother on the mother’s birthday and in the event the mother’s birthday falls on a school day from 4:00pm until 7:00pm.
(g)That in the event the child is not already in the mother’s care on the child’s birthday, the child shall spend time with the mother from 11:00am until 2:00pm on the child’s birthday and in the event the child’s birthday falls on a school day from 4:00pm until 7:00pm.
7.The time between the child and the mother must be supervised by a supervisor acceptable to the father. For the purposes of this Order, the maternal grandfather is deemed by the court to be an acceptable supervisor and otherwise the father will not unreasonably withhold his consent with respect to the acceptability of a person who will supervise the child’s time with the mother where that person is a responsible adult known to the child.
8.Upon the child attaining the age of 14 years, the child shall spend time with the mother in accordance with the child’s wishes.
9.Each of the parties and their servants and agents are restrained from removing or attempting to remove or causing or permitting the removal of:
(a)X born in 2012
from the Commonwealth of Australia.
10.It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the said child attains the age of 15 years (in 2027).
11.Upon expiration of the period referred to in the above order, the Australian Federal Police will cause the removal of the said child’s name from the Watch List.
12.The father is permitted to apply for and renew passports or travel documents for the child to travel overseas upon attaining the age of 15 years without consent being first obtained by the mother in accordance with s 11 of the Australian Passports Act 2005 (Cth). This order shall act as authority for the purpose of the father obtaining any travel document for the child.
13.That the father shall retain the child’s original birth certificate and passport and where such documents are in the possession of the mother then the mother shall provide the same to the father within 14 days.
14.Upon the child attaining the age of 15 years in 2027 the Parramatta Registry of the Federal Circuit and Family Court of Australia shall release the said child’s passport (that is in the custody of the registry) to the father.
15.In relation to the child’s future attendance at counselling referred to at Notation A below, the father shall be entitled to provide a copy of the Child Impact Report prepared by Ms D dated 19 February 2024 to the child’s General Practitioner or any counsellor and/or psychologist the child may be referred to for counselling in the future.
16.That should the child suffer injury or serious illness the parents shall notify the other of the same as soon as is practical.
17.The Court reserves the parties’ costs for determination upon the making of submissions in relation to costs following the Court delivering a decision in respect of the parties’ property proceedings.
18.All outstanding parenting applications are dismissed.
19.The parties are granted liberty to provide Final Property Terms to Chambers, otherwise the matter stands reserved pending property judgment delivery.
AND THE COURT NOTES THAT:
A.The father intends to take the child to the child’s General Practitioner for the purpose of obtaining a mental health plan or referral to an appropriate counselling service to address the matters raised in the Child Impact Report dated 19 February 2024.
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).
REASONS FOR JUDGMENT
JUDGE MYERS:
INTRODUCTION
This is the final parenting decision delivered as the first part of a final property and parenting application in the matter of Agarwal & Desai. The Court will, in due course, deliver the second part of the decision that relates to property following the parties making written property submissions in accordance with the timetable set by the Court.
The Applicant Mother, Ms Agarwal (“Mother”) commenced proceedings seeking a parenting and property determination filing her Application for Final Orders and supporting documentation on 3 December 2019. The Respondent Father, Mr Desai (”Father”) filed his Response to Final Orders and supporting documentation on 18 February 2020.
The parties are the parents of X born in 2012, now age 12 years.
The matter was initially set down for Final Hearing and heard on 31 January - 2 February 2022, 7 - 8 June 2022, 18 August 2022 and 27 October 2022. Orders were made on 27 October 2022 reserving the matter for judgment delivery, pending written submissions. The Court subsequently received the parties’ written submissions, and in the course of preparing the judgment, was notified by the solicitor for the Applicant Mother by way of email as to the following:
Dear Associate
We continue to act on behalf of the wife.
We have been advised by members of our client’s family and a social worker that our client is chronically ill and is hospitalised. It would seem that this is a change of circumstances that the Court should be made aware of.
We suggest that His Honour relists the matter for directions in a month’s time to enable us to ascertain through medical evidence our client’s state of health and prognosis.
We have been advised that the view of the social worker managing our client’s affairs at the hospital where she is a patient that an application is to be made to the Guardianship Division for our client’s affairs to be managed. As such it would seem unlikely that we are able to be properly instructed by our client.
We have the consent of the husband’s solicitors to forward this correspondence to you and are advised that it is the Respondent’s preference to appear via Microsoft Teams if this can be accommodated by the Court.
The matter was listed for Directions Hearing on 1 May 2023 where the Court was advised of the mother’s medical condition, namely that she had suffered a medical episode causing paralysis and that she had lost her ability to speak and understand English. In short, the mother had lost capacity to care for herself, care for X or provide instructions to her solicitors.
The Court on this date made the following Orders and Notations:
(1)Within twenty-eight (28) days of today’s Orders, the legal representative for the wife is directed to file and serve the following:
(a)An Application in a Proceeding seeking the appointment of a litigation guardian for the wife and Affidavit in support of the Orders sought;
(b)A further Affidavit from the proposed litigation guardian notifying the acceptance of such appointment, and any conflict.
(2)Pending further order, the child the subject of the proceedings live with the father
(3)Pending further order, the father have sole parental responsibility for the said child.
(4)The matter is adjourned for Directions Hearing on 5 June 2023 at 10:00am.
AND THE COURT NOTES THAT:
(A)The mother has had a medical episode. She is currently in hospital and has no capacity to be able to provide any consent. It is necessary and practical that the father has sole parental responsibility.
On 5 June 2023, the Court made Orders for the appointment of Ms C, the mother’s sister-in-law, as Litigation Guardian on behalf of Ms Agarwal.
At the Final Hearing listed on 2-4 April 2024 the Litigation Guardian on behalf of the Applicant mother was represented by Mr Givney of Counsel briefed by Maclaren’s Lawyers. The Respondent father was represented by Mr Fantin of Counsel briefed by Pannu Lawyers. The mother was not present at the Final Hearing, neither in person nor via AVL.
CHRONOLOGY
This is not a matter where there is any benefit or need by the Court to go into great detail regarding the parties’ historical relationship and care arrangements that existed for X during the party’s relationship, noting the mother’s incapacity to care for herself or X as a result of the illness.
By way of background, the father was born in 1984, currently aged 39 years, and the mother was born in 1983, currently aged 40 years.
Both parties were born in Country E.
The parties married in 2010.
The parties’ only child X was born in 2012 (currently aged 12 years).
In 2013 the parties were granted Australian Citizenship.
In 2015, X was diagnosed with Mild Autism.
The parties separated early late 2018.
The father is employed as an administrative officer for F Company.
Ms Agarwal is now unemployed.
The mother commenced proceedings in the Federal Circuit Court of Australia (as it then was) on 3 December 2019.
It is not contested that the mother was the primary carer of X prior to her suffering her illness. When the mother suffered her illness in 2022 everything changed. The mother cannot look after herself let alone look after X. It is uncontroversial that since this time the father has been the child’s primary carer.
The mother is now in the full-time care of her father (the maternal grandfather), who is residing in Australia pursuant to a visitor’s visa. The mother receives assistance pursuant to the NDIS and is assisted eight hours per weekday by health care providers who attend upon the mother at her home. The health care providers are present for seven hours being from 9:00am – 12noon and 4:00pm-8:00pm on weekends (Transcript dated 2 April 2024, p 73, lines 31-39). The mother is also assisted by a physiotherapist, occupational therapist, and speech therapist, where their attendance is flexible (Transcript dated 2 April 2024, pages 77-78).
It is uncontroversial that the father has remarried and that his wife lives in Country E. For reasons that are not clear to the Court the father’s wife has been unable to secure even a short-term visitor’s visa to enter Australia. The father’s parents reside in Country E, and they too have been unable to obtain a visa to visit Australia.
On 23 November 2023 the parties attended a Dispute Resolution Conference with a Judicial Registrar. On this date the Judicial Registrar ordered the preparation of a Child Impact Report. The parties also entered into Interim Consent Orders on 23 November 2023 that provide, inter alia, for the father to have sole parental responsibility for X, that X live with the father, and spend time with the mother as agreed in writing and failing agreement, each fortnight from 11am Saturday to 11am Sunday supervised by the maternal grandfather, with the father to deliver and collect the child from the mother’s residence.
Time in accordance with the said orders took place until 23/24 March 2024 weekend, save and except for a period of eight weeks between 7 December 2023 and 31 January 2024 when the mother travelled with the maternal grandfather to Country E. The Litigation Guardian advised the Court during cross examination that the reason for the travel was so that the mother could try alternate medication/treatment. (Transcript dated 2 April 2024, p 80, lines 23-34)
Interviews of the parents and the child for the preparation of the Child Impact Report were scheduled to be held on 1 and 6 February 2024 by Child Court Expert, Ms D. Unfortunately, the litigation guardian for the mother did not attend at the interview to be conducted with the mother. A further interview of the litigation guardian was then rescheduled. Unfortunately, the litigation guardian failed to attend and accordingly the interview was unable to proceed with the mother alone given the mother’s language inabilities. The Court notes that there may have been confusion as to who was required to attend the interview, noting that Mr Givney of Counsel raised with the Court that an email was received directed to the mother’s solicitors that suggested that Ms C need not attend.
The Child Impact Report was subsequently prepared and is dated 19 February 2024.
On 12 March 2024 the father filed his trial Affidavit. The litigation guardian for the mother filed her trial Affidavit, and then a further Affidavit filed in Court on 2 April 2024. The father’s wife did not file an Affidavit in the proceedings.
The Court ordered the parties initially prepare short parenting submissions on a quick turn around and then property submissions in accordance with a longer timetable where the Court formed the view that the parenting aspect of the parties’ applications needed immediate resolution so that X and the parties could get on with their lives moving on from the turmoil caused by the mother’s illness. The Court also viewed the delivery of a parenting decision prior to a property decision as beneficial where this decision will have an impact on the weight the Court will give some of the factors the Court is required to take into account when dividing the parties’ property. As set out above the Court will deliver the second part of the decision in respect of property in due course.
PROPOSED ORDERS
The Litigation Guardian on behalf of the Applicant Mother sought final parenting orders as contained within her written submissions filed on 30 April 2024, which provided in summary:
(1)The father have sole parental responsibility for the child;
(2)The mother spend time with the child from 5:00pm to 7:30pm each Wednesday and from 12noon to 4:00pm each Sunday;
(3)The father shall deliver the child to the mother at the commencement of time and collect the child from the mother at the conclusion of time; and
(4)The child shall remain on the Airport Watchlist until the child attains the age of 16 years.
The Respondent Father sought final parenting orders as contained within his written submissions filed 24 April 2024, which provided in summary:
(1)The father have sole parental responsibility for the child;
(2)The mother spend time with the child as agreed and failing agreement on a three stage increase which ultimately sees the child spending time with the mother each Wednesday from 4-7pm (provided the father has a car), from 11am Saturday to 11am Sunday (provided the child has suitable accommodation) or in the event the child does not have suitable accommodation overnight, from 11am Saturday- 6pm Saturday each alternate weekend;
(3)When the child attains 14 years of age, the child shall spend time with the mother in accordance with the child’s wishes.
(4)Time on special occasions including: Diwali, Holi, Father’s Day, Mother’s Day, Father’s birthday, Mother’s birthday and the child’s birthday.
(5)That the child be permitted to travel overseas with the father on the basis of certain conditions having been satisfied.
Of particular note is the change in the parties’ positions. The father initially opposed overnight time when the mother sought overnight time. The mother now seeks daytime only and the father proposes overnight time. In essence, the parties’ positions have reversed.
ISSUES FOR DETERMINATION
Notably, the parties agree that the father is to have sole parental responsibility for the child and the child is to live with the father. The key issues for the Court’s determination are:
(1)The duration and the frequency of the time that the child is to spend with the mother; and
(2)Whether the child be permitted to travel overseas with the father, in particular to Country E.
The Court considers the legislative pathway found at part VII of the Family Law Act 1975 (‘the Act’) in the paragraphs below.
THE PRIMARY CONSIDERATIONS – BEST INTEREST
The primary considerations set out in s 60CC (2) of the Act in summary are:
·The benefit of the child having a meaningful relationship with both parents.
·The need to protect the child from physical or psychological harm if they are being exposed to family violence, abuse, or neglect.
Section 60CC(2)(a)
It is not contested that there is a benefit in X having a meaningful relationship with both parents.
Of concern to the Court was the evidence given by the litigation guardian during cross-examination with respect to the need to maintain a relationship between the child and mother. The evidence appeared to place the mother’s interests above that of the child’s:
[Ms C]: It is very – like, it’s a tough decision to make, because I am listening to you today, I am listening to them, I am listening to the father. I have been listening – sitting here listening to everyone, and I feel like I do want [Ms C] to have a relationship with [X], like ‑ ‑ ‑
His Honour: All right?‑‑‑ ‑ ‑ ‑
[Ms C]: with the child. The thing is, we came down from having – wanting to have a relationship – like, coming every fortnight sleepover to, you know, having a few hours every weekend, not having holidays, full holidays, coming down to a few days in the holidays. I don’t know how short we can go because even if [X], the child, doesn’t want to be with the mother today, but mother – to her – to her intention or her strength to get better comes from seeing the child. She sees the child. She works hard. She is – like, you know, that is her motivation.
His Honour: All right?‑‑‑
[Ms C]: I can’t forget that.
His Honour: All right?‑‑‑
[Ms C]: You know, of all the things, I know the child is distressed. I can very well tell, because I work in the field, so I know that the child ‑ ‑ ‑
His Honour: When you say he is – when you say he is distressed, what distress are you observing?‑‑‑
[Ms C]: Like, the video you saw. If you saw something else, I saw something else. That’s the thing that ‑ ‑ ‑
His Honour: What did you ‑ ‑ ‑?‑‑‑
[Ms C]: You know ‑ ‑ ‑
His Honour: What did you see?‑‑‑
[Ms C]: I saw that a – a mum is trying to – you know, a mother’s point of view, where she is hugging, she is like showing the love, and – but the thing is that, at this point, the child is, “Okay, I am sitting there. I don’t have to do anything. Easy and relaxed. Even if he goes there, sits overnight, just relaxing, not doing anything, not engaging with mum, the mum is getting all the things that she needs by seeing the child.
(Transcript dated 2 April 2024, p 83, lines 10-39).
The issue for the Court with respect to the benefit of the child having a meaningful relationship is one where it is harder for X to maintain a meaningful relationship with his mother than it is for most other children. His relationship with his mother is anything but normal and the Court is conscious to ensure that it does not make orders for time with the mother that would see X begin to resent spending time with his mother as a result of becoming bored or finding the visits tedious or difficult.
Section 60CC(2)(b)
The Court considers the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence. The Court does not find that in the general sense there is a need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence in the either party’s home. Rather the Court is concerned that the mother’s lack of capacity to care for X as a result of her disability is such that it will be necessary that the Court require X’s time with his mother to be supervised so as to prevent X being neglected. Supervision is required where the mother cannot care for herself and certainly not for X. A responsible adult will need to supervise the time so that X’s needs, even on a basic level such as being fed when he is hungry are met.
THE ADDITIONAL CONSIDERATIONS, S60CC(3)
The Court turns to the considerations found at s 60CC(3)(a)-(m) of the Act.
Views expressed by the child/children, and the relevant weight the Court should give to their views: s 60CC(3)(a)
Section 60CD of the Act prescribes how the views of a child are expressed and provides:
(1) Paragraph 60CC(3)(a) requires the court to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child. This section deals with how the court informs itself of views expressed by a child.
(2) The court may inform itself of views expressed by a child:
(a) by having regard to anything contained in a report given to the court under subsection 62G(2); or
(b) by making an order under section 68L for the child's interests in the proceedings to be independently represented by a lawyer; or
(c) subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
Note 1: Paragraph (a)--subsection 62G(3A) generally requires the person giving the report to ascertain the child's views and include those views in the report.
Note 2: Paragraph (b)--paragraph 68LA(5)(b) requires the independent children's lawyer for the child to ensure that the child's views are fully put before the court.
The Court ordered a Child Impact Report following the matter being reopened due to the mother’s significant change in circumstances. The Child Impact Report was prepared by Ms D and is dated 19 February 2024.
At paragraphs 14-16 of the Child Impact Report Ms D recorded her interview with X, as follows:
14. [X] presented as an engaged and polite child. [X] said that living with his father is “good”, as they do activities together, such as going to the park. [X] described his father as kind and funny, and said they have a “good relationship”.
15. [X] said that he was “sad” about his mother’s medical condition initially, however, he is now “a bit angry” that she went to [Country E] recently without telling him and he has not seen her for two months. [X] said that his relationship with his mother is not very strong, especially now, as he cannot communicate with her. [X] said that when he lived with his mother, he was unhappy because his mother would make him do chores and threaten to not allow him to spend time with his father if he did not complete his chores.
16. [X] stated that he wants to continue living with his father, and he would prefer to see his mother for “a few hours” on a weekend, without any overnights. [X] said that due to his mother’s medical condition, his (maternal) grandfather has to care for him, so he does not feel like he actually spends quality time with his mother and having overnights with her (and his grandfather) feels somewhat meaningless.
X’s views recorded in the Child Impact Report are clear. The Court gives X’s views some weight where he has the level of maturity and understanding to evaluate and report on the quality of his relationship with the mother and the impact particular quantities of time with his mother has and will have on his relationship with the mother. While X’s views are persuasive they are not of such weight that they are solely determinative in this matter where X’s views are but one of a number of considerations the Court must take into account.
The nature of the child’s relationship with each of the child’s parents and any other persons including any grandparent or relative of the child: s60CC(3)(b)
The Court does not want X’s time with the mother to be a chore. Whilst the Court accepts that X’s relationship with his mother was once a loving and close relationship, the nature of the relationship irreversibly changed following the mother suffering an illness.
Counsel on behalf of the Applicant sought to tender two videos depicting the relationship between the child and the mother. These videos were received into evidence and form Exhibit ‘A’ in the proceedings. Counsel on behalf of the Applicant submitted to the Court as follows:
This video shows, your Honour – this video shows there’s a connection between these two people. There obviously is, your Honour knows that this parent will not encourage this child to see his father – to see his mother.
(Transcript dated 2 April 2024, page 40, lines 43-45)
In the view of the Court, sadly X looked to be disengaged and bored. The Court was highly concerned, having watched the videos, that X’s relationship with the mother will only be strained by forcing him to spend long periods of time with the mother.
The Child Court Expert offered the Court some insight into the difficulties in X’s relationship with the mother in cross examination where she stated:
I – I believe from – from everything that I have – in terms of [X]’s (sic) age, the – I think he – and I – I observed in the video, as well, he seems to be quite – you know – withdrawn and a little – I suppose I think he feels unsure and uncertain of how – and he – he expressed that he finds it challenging to communicate with his mum. He has – so he has got underlying psychological – you know – issues in determining – you know – regarding grief and loss and confusion, which is understandable for a child of his age. His mother was his primary carer, regardless of what that relationship looked like. Obviously, it has been reported to be quite positive in the past. [X]’s (sic) current – how he – his – his – his – his, I suppose, perception of his relationship with his mum currently is that it has deteriorated, and I think that that is – has – obviously is based a lot to do with the lack of communication and the difficulty in communicating with her, which you – you – you – we – we all saw in the – in the video as well. So there is, I think, a level of frustration that comes with that, and I suppose that is what I mean by pressure, the spending – you know – long periods of time without – without the necessary supports, because he actually has – he actually has no professional supports in place to support his relationship with his mother, that it is – it is – it is almost a – you know – could potentially become, if he – if he is not enjoying and feeling comfortable with the time that he spends with his mother and – and ultimately, his grandfather, then it – it could ultimately act as a deterrent for him to want to spend more time with – with her, which is a concern that I hold, which is why I made the suggestion in terms of key considerations for – for the moment, that he spends shorter but more – yet more regular periods of time with his mother, with the additional professional supports for both himself and [Ms C].
(Transcript dated 2 April 2024, page 101, lines 44-47 and page 102 lines 1-20).
The nature of the child’s relationship with the father is a positive one. X reported to the Child Court Expert that living with his father is “good”, as they do activities together, such as going to the park. X described his father to the Court Child Expert as kind and funny, and said they have a “good relationship”.
There is no evidence to suggest that the child has anything but a loving and strong relationship with his extended family including his paternal and maternal grandparents and his father’s new wife.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in the child/children’s life: s60CC(3)(c)
This is not really a case about either party failing to take the opportunity to participate in making decisions about major long-term issues in relation to the child; to spend time with the child; and to communicate with the child. However, one of the issues that has driven a wedge between X, and his mother is that she went overseas for a period of eight weeks without telling or warning X she would do so. The mother did not spend time with X during this time leaving him, in the view of the Court, feeling abandoned.
This is evident at paragraph 15 of the Child Impact Report where it is reported:
15. [X] said that he was “sad” about his mother’s medical condition initially, however, he is now “a bit angry” that she went to [Country E] recently without telling him and he has not seen her for two months.
While the Court notes the mother is incapable of telling X anything, the fact that the maternal grandfather or anyone else said nothing to X about the mother going to Country E warrants some criticism. Given the precarious nature of the mother’s relationship with X leaving to go overseas without warning caused a fracture in X’s relationship with the mother that will, at the very least, take a significant period of time to heal.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child: s60CC(3)(ca)
The father is fulfilling his obligations to maintain X. The mother has no capacity to maintain X.
The likely effect of any changes in X’s circumstances, including the likely effect on the child of any separation from either of the parents or any other person with whom they have been living: s60CC(3)(d)
The Court considers the likely effect of any changes in the X’s circumstances, including the likely effect on the child of any separation from either of his parents.
X has had a long history of changes in his care arrangements. The Child Court Expert summed up well X’s history of change in cross examination where she stated:
As I have highlighted in my – in my report, that he has had multiple changes in his care arrangements in his early childhood from, I believe, the age of three, including moving – living in [Country E] for – and being separated from his parents for quite some time, and then obviously being in the primary care of his mother. He has had periods where he hasn’t seen either parent, like the non-residing parent, for a period of time, and then his mother becoming really unwell all of a sudden. This – this – you know, I believe that, in – in my – in my assessment, that [X] is actually struggling quite a lot with the – the changes in – with his mother’s health and the deterioration of that, which has actually impacted their relationship and his ability to communicate with her. So his – he definitely – I – I suppose, it – it seems that he really wants to spend time with her, but he just, at his age and stage of development, he doesn’t, and I did highlight in my report that he doesn’t have the support required to actually manage that relationship and to – the supports in place to help him almost rebuild and navigate that new relationship with his mother, given her – her capacity limitations at this time. [X] experienced a significant change in his circumstances following his mother suffering [an illness]. [X] was uprooted from his primary carer. His mother could no longer care for him, noting she can no longer properly care for herself. However, the father has been [X]’s primary carer now since [late] 2022. [X] appears to be well settled in the father’s care and he has expressed a desire to the Child Court Expert to remain living in the father’s care.
(Transcript dated 2 April 2024, page 98, lines 21-35)
The current arrangements put in place pursuant to consent orders dated 23 November 2023 provide for X to live with the father and spend supervised time with the mother as agreed and failing agreement each alternate weekend from 11:00am Saturday – 11:00am Sunday. It is important to note that the father has, on occasion, facilitated additional weekly time between the child and mother.
The litigation guardian on behalf of the mother sought orders for the child to spend daytime only with the mother from 5:00pm to 7:30pm each Wednesday and from 12noon to 4:00pm each Sunday. The father seeks orders that initially provide for daytime only and that increase to overnight time each alternate weekend (provided the mother has suitable accommodation), with the child being permitted to spend time with the mother in accordance with his wishes upon attaining the age of 14.
Of particular note to the Court is the fact X has expressed that he would prefer to see his mother for a few hours on a weekend, without any overnights.
Ms D provided her opinion about the most suitable arrangements for X at paragraph 28 of her report which provided that:
it may be beneficial for [X] to spend shorter, yet more regular periods of time with [Ms C] under the current circumstances.
The Court will make orders as sought by the litigation guardian on behalf of the mother that will see the child spend time with the mother from 5:00pm to 7:30pm each Wednesday and from 12noon to 4:00pm each Sunday.
The limited nature of the time the child will spend with the mother will not adversely affect X or cause him separation anxiety from either parent where the final arrangement is not dissimilar to what X is currently used to where he will continue to live with the father and spend limited but frequent time with the mother.
The practical difficulty and expense of a child spending time with and communicating with a 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: s60CC(3)(e)
The Court heard evidence from the father about his alleged difficulties in obtaining the use of a car, such that it may limit his ability to collect or deliver the child to the mother mid-week. The Court does not accept this suggested issue will cause a problem or prevent the father delivering or collecting the child to the mother where, in the view of the Court, the father is a sensible and resourceful person who is well capable of making arrangements such that he could collect or return the child to the mother mid-week.
The Court will make orders for the father to deliver the child to the mother at the commencement of time and collect the child from the mother at the conclusion of time, in circumstances where the mother is foreseeably never going to be able to drive and never going to be able to use public transport on her own with X. In those circumstances the only practical option that is workable for X to spend time with the mother is that the father collects and returns X to and from the mother during times X spends with his mother.
The capacity of the parent or any other responsible adult to provide for the needs of the child, including emotional and intellectual needs: s60CC(3)(f)
The Court considers the capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children including the children’s emotional and intellectual needs.
The Court finds the father has capacity to provide for X’s emotional and intellectual needs. It is not contested that the father has been meeting X’s needs since he came into the father’s primary care in late 2022.
The mother does not have the capacity to provide for the needs of the X, including his emotional and intellectual needs. As previously noted, the mother is now in the full-time care of her father and is assisted eight hours per day by health care providers.
The Court is conscious that X is young and that even his basic needs such as being fed even a simple meal cannot be met by the mother. The Court is also concerned about the potential for X to become a carer for his mother. To be clear X should not be placed into a position where he ends up being relied upon or enlisted to assist in caring for the mother where he is left alone with the mother for any period. In order to ensure that X’s needs are met and that he does not end up acting as a de facto carer for the mother it will be necessary that the time X and the mother spend with one another be supervised by a supervisor acceptable to the father. That supervisor can of course include the maternal grandfather who is capable of meeting X’s needs.
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: s60CC(3)(g)
There is nothing in the maturity, sex, lifestyle, and background (including culture and traditions) of the child, or of either of the parents, or any other characteristics of the child that the Court thinks are relevant to the determination of what is in the best interests of the child.
If the child is an Aboriginal child or a Torres Strait Islander child: s60CC(3)(h)
X is not an Aboriginal and Torres Strait Islander child.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents: s60CC(3)(i)
The Court considers the attitudes towards the responsibility of parenthood demonstrated by the parties. To the best the Court can discern, both parents have demonstrated an appropriate attitude towards the responsibilities of parenthood.
Any family violence involving the child or a member of the child's family: s60CC(3)(j)
Whilst there were allegations made against the father relating to family violence against the mother before the illness, the evidence is such that the Court cannot find that family violence did or did not take place. In this case given the factual matrix in relation to the mother’s complete lack of capacity to care for and provide for X’s needs renders an in-depth historical consideration of the issue almost pointless. In any case there is no suggestion by the mother via the Litigation Guardian that X faces any risk in the father’s household related to family violence.
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: s60CC(3)(k)
There are currently no ADVO’s between the parties.
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: s60CC(3)(l)
It is preferable to make the orders that would be least likely to lead to the institution of further proceedings in relation to X in this matter. In this case neither set of proposed orders provides for a pathway that is more or least likely to see the parties engaged in future Court proceedings.
Any other fact or circumstance that the Court thinks is relevant: s60CC(3)(m)
The parties are apart with respect to the issue of overseas travel. The Court has considered the decision in Line v Line (1997) FLC 92-729 at [34] where the Full Court determined that there were a number of factors connected with assessing risks related to overseas travel that included:
·The existence of continuing ties between the departing parent and Australia;
·Whether there was motivation not to return;
·The existence and strength of possible motive to remain in the other nominated country;
·Whether the country intended for travel with the children is, or is not, a signatory to the Convention on the Civil Aspects of International Child Abduction;
·Even if the designated country is a signatory, the possibility of the departing parent deviating from the designated destination to another destination in a non-convention country; and,
·The financial circumstances of both parties and the hardship a departing parent may suffer by the imposition of security;
·The purpose of such security is to provide a sum which will realistically entice the person removing the children to return and to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the child.
·Providing security at a particular level that would realistically entice the person removing the children to return.
The father has friends and a recent job in Australia. The father’s parents and new wife both reside in Country E. Unfortunately, the father’s parents appear unable to travel to and enter Australia and the father’s wife is unable to travel to and enter Australia. While there is a property owned by the parties in Sydney, it is agreed between the parties that the property will need to be sold in order to effect a property settlement. The father has what are best described as limited ties to Australia.
The Court cannot ignore the significant fact that the father’s wife lives in Country E and cannot, it would seem, enter into Australia even on a visitor’s visa. Because of this issue there is, in the view of the Court, a strong motivation for the father to go to Country E with X and not return so that he can live his life with his family in Country E. While it might seem cruel to the father that he cannot just go and live his life in Country E with his wife and his family it must be remembered that these proceedings are not the determination of an international relocation case. Rather these are proceedings where on both parties’ applications X should and will spend time with the mother in Australia. Perhaps the father will bring proceedings in the future to relocate with X to Country E. It will ultimately be a matter for him.
Country E is not a signatory to the Convention on the Civil Aspects of International Child Abduction.
While the Husband would not suffer financial hardship if an order for significant but reasonable security of say $40,000 was made and came into effect following the determination of the parties’ property proceedings (where the father receives some of the proceeds from the sale), the Court is concerned that the father’s motivation to be with family is on the face of the evidence so strong there may be no reasonable amount of security that would motivate him to return to Australia. While the Court acknowledges that it made orders by consent for the father and X to visit Country E it was done at a time where the final property proceedings were yet to be finalised and there was a significant financial motivation for the father to return.
The Court is conscious that at a future stage it would be reasonable and important for X to visit Country E so that he might be able to be connected with his family and with his culture. If the Court made orders that put an airport watch list order in place until X was 15 years of age this would, in the view of the Court, mitigate against the father just moving with X to Country E as X could by that stage, in the view of the Court vote with his feet to either not go to Country E or make moves to come back himself assisted by the mother and her family members who live in Country E. Given the Court has determined that X should spend time with the mother in accordance with his wishes when he turns 14 years, the adding of an additional year where X remains on the airport watch list unable to leave Australia is sufficient to dissuade the father from taking X to Country E and when there, determining not to return.
The court heard evidence from the Child Court Expert regarding the importance of X obtaining counselling. That evidence was clearly set out in the following exchange with the Court:
[Ms D]:‑‑‑I – I have made – I have made several recommendations or key considerations for pathways and of – for decision-making, one of them being that he sees a psychologist or a counsellor, which would provide him with that opportunity to have that one-on-one – one-on-one support, psychological support, to allow him to – yes – express his emotions and discuss any matters that he may be feeling, sort of – whether it be uncomfortable or just unable to articulate himself, give him that space, that emotional space, to actually have that support, as well as other supports that, if you would like more information, I am happy to go into that. But I – I did – I did highlight my – the first key consideration was for him to have one-on-one psychological support ‑ ‑ ‑Yes?‑‑‑ ‑ ‑ ‑ to navigate him through this experience.
HIS HONOUR: And that is through – just so I can be clear, that is through getting a mental health plan put in place, is that right, or did you mean ‑ ‑ ‑?‑‑‑It is at point 25.
[Ms D]:I – I don’t know if I mentioned a mental health care plan, but that is obviously possible. That is ‑ ‑ ‑ Yes?‑‑‑Absolutely.
(Transcript dated 2 April 2024, page 99, lines 25-40).
There is, in this case, no alternative to making an order that X live with the father. Consequently, the court cannot in reality make an order that the father engage X in counselling aa a condition of X living with the father. If the court were to make a stand-alone order for counselling such an order would be aspirational rather than enforceable. The best the Court can do in the circumstances is to note the father’s willingness to engage X in counselling and make orders that would allow the father to provide the Child Impact Report prepared by Ms D dated 19 February 2024 to X’s general practitioner and potential counsellor or psychologist.
The Court considers that it is important that X engages with the mother in activities and sees her on occasions that are of importance beyond the ordinary time he would spend with her each week. Those occasions include Diwali, the mother’s birthday, child’s birthday, Mother’s Day and the local cultural event that is held in Region B that is referred to as ‘Holi’.
Noting X’s disappointment in his mother having travelled to Country E without notice, letting the above occasions pass without the opportunity for X to spend time with his mother could lead to X forming the view that the mother and her family are disinterested in him being part of any important occasions. It was obvious having read the Child Impact Report that X struggled with the idea of him being left out of, or not included in, the mother’s travel to Country E. Making specific orders for special occasions will ensure that X feels part of both his father’s and mothers’ family and that he is not being left out or forgotten. This issue is particularly important where, because of the mother’s inabilities, it is unlikely that the mother, her carers, or other family members would initiate time on special occasions with X. The Court determines that it is in the best interest of X that specific orders are made providing for time with the mother on Diwali, the mother’s birthday, child’s birthday, Mother’s Day and Holi. Just as it is important to ensure X spends time with the mother on special occasions, it is important to suspend the mother’s time on the father’s birthday and Father’s Day so that X has the benefit of spending time with the father on those specific occasions. It is unnecessary to make specific orders for the child to spend time with the father on Diwali or the child’s birthday as the orders make no provision for overnight time with the mother and as a consequence X will always spend some time with the father on his own birthday and Diwali.
PARENTAL RESPONSIBILITY
The parties both seek final orders for the father to hold sole parental responsibility. Given the mother’s lack of capacity to provide for X’s need and her legal incapacity to make decisions on her own behalf the presumption in favour of equal shared parental responsibility is rebutted where it is not in the best interest of X that the parents equally share parental responsibility. The Court will make orders that the father have sole parental responsibility for X. The Court does not consider section 65DAA of the Act.
CONCLUSION
Final orders will be made in accordance with the findings and reasons set out above and are contained at the beginning of this judgment.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 14 May 2024
0
0
1