BANIK & PERES
[2020] FamCA 468
•12 June 2020
FAMILY COURT OF AUSTRALIA
| BANIK & PERES | [2020] FamCA 468 |
| FAMILY LAW – CHILDREN – Final Parenting Orders – Where the mother seeks an increase in time to equal time broken up in a 5/2/5/2 regime – Where the father seeks six nights a fortnight with the mother and eight nights a fortnight with him – Where the mother seeks to travel overseas with the children – Where the mothers’ proposal for time is supported by the Expert Report writer and found to be Orders in the children’s best interests – Orders made allowing both parties to travel overseas with the children including to India. |
| Family Law Act 1975 (Cth) ss. 60CC(2), 60CC(3), 64B, 65DAA, 65DAA(5) |
| Baboor & Reema and Ors [2020] FamCA 227 DeLuca & Farnham and Anor [2019] FamCAFC 100 Goode v Goode [2006] FamCA 1346 Line and Line [1997] FLC 92-729 MRR v GR [2010] HCA 4 |
| APPLICANT: | Ms Banik |
| RESPONDENT: | Mr Peres |
| FILE NUMBER: | SYC | 3166 | of | 2017 |
| DATE DELIVERED: | 12 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 11, 12 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Mark Hanna Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Coleman SC |
| SOLICITOR FOR THE RESPONDENT: | Doolan Wagner Family Lawyers |
Orders
The father and the mother shall have equal shared parental responsibility for the children X born … 2011 and Y born 22 October 2014 (“the children”). In doing so they shall consult each other and make joint decisions about the duties, powers, responsibilities and authority for the children.
The children shall live with each of the parents during the school term in the following arrangement:
(a)With the father in Week 1, from 9 am on Monday to 3 pm on Wednesday; and from 9 am on Friday of Week 1 to 3 pm until Wednesday in Week 2.
(b)With the mother in Week 1, from 3 pm on Wednesday to 9am on Friday, in Week 2, from 3 pm on Wednesday to 9 am on the following Monday.
(c)Commencing from when Y attends high school and continuing thereafter, on a week-about basis, with changeover to occur before school Monday, or as the parents otherwise agree in writing.
Time during school term is suspended for all school holiday periods.
For school holidays in Term time:
(a)In even numbered years with the father for the first half and with the mother in the second half or as agreed; and
(b)In odd numbered years with the mother for the first half and with the father in the second half or as agreed.
For the Christmas school holidays as agreed between them in writing, but failing agreement:
(a)In 2020/21, on a week-about basis with the father to have the first week and the mother the second week;
(b)In 2021/22, on a two-week-about basis with the mother to have the first two weeks period and the father the second;
(c)In 2023/24, and subsequent odd numbered years, with the father for the first half of the holidays calculated from the last day of school until the mid-point of the holidays and the mother in the second half of the holidays until the morning of the first day of school;
(d)In 2024/25, and subsequent even numbered years, with the mother for the first half of the holidays calculated from the last day of school until the mid-point of the holidays and the father for the second half of the holidays until the morning of the first day of school;
(e)Within six (6) months of the published date upon which the Festival of Diwali falls, the mother shall advise the father of said date and the children shall come into the mother’s care, in the event they are not otherwise in her care, at 9 am of that day and they shall be returned to the father’s care at 9 am on the next day;
(f)Within six (6) months of the published date of the Holi festival, the mother shall advise the father of said date and the children shall come into the mother’s care, in the event they are not otherwise in her care, at 9 am of that day and they shall be returned to the father’s care at 9 am the next day; and
(g)Within six (6) months of the published date upon which the next Good Friday falls, the father shall advise the mother of said date, and the children shall come into his care, in the event that they are not otherwise in his care, at 9 am of that date and they shall be returned to the mother’s care at 3 pm on Easter Sunday.
Notwithstanding any other Order, the children spend time with the parties as follows:
(a)On each child’s birthday, both children to spend time with the parent with whom they would not otherwise be living from 3 pm to 7 pm;
(b)With the father on the father’s birthday from 8 am to 9 am the following day;
(c)With the mother on the mother’s birthday from 8 am to 9 am the following day;
(d)With the mother from 9 am Saturday before Mother’s Day to before school the Monday after Mother’s Day;
(e)With the father from 9 am Saturday before Father’s Day to before school the Monday after Father’s Day;
(f)In even years, with the mother from 9 am Christmas Eve to 3 pm Christmas Day and with the father from 3 pm Christmas Day to 7 pm Boxing Day; and
(g)In odd years, with the father from 9 am Christmas Eve to 3 pm Christmas Day and with the mother from 3 pm Christmas Day to 7 pm Boxing Day.
For the purpose of these Orders:
(a)“School” includes preschool.
(b)“School day” means a day upon which the children are attending school.
(c)The parent with whom the children are living will deliver the children to school.
(d)When changeover does not occur at school, time shall commence and conclude by the parent with whom the children are living/spending time with delivering them to the other parent’s residence.
(e)School holiday periods shall commence at 3 pm on the last day of school which the children are required by the school to attend for the school term.
(f)School holiday periods shall conclude at 9 am on the first day of school which the children are required by the school to attend for the school term.
(g)The mid-point of the holiday periods occurring at the end of Term 1, 2 and 3 shall be taken to be 5 pm on the middle Saturday of the period;
(h)Changeover during the Christmas school holiday periods in 2020/21 and thereafter shall occur at 5 pm each Friday; and
(i)Each parent shall notify the other immediately of any medical emergency, serious injury or illness involving one, or both, of the children should it occur whilst a child is in their care.
Each parent is at liberty to take the children on a holiday outside of the Commonwealth of Australia, on the following terms and conditions:
(a)The parent wishing to travel shall provide the other with at least two (2) months’ notice in writing of their intention to do so, including the intended country/ies of travel and the planned dates for travel.
(b)One (1) month prior to the date of departure, the parent travelling with the children shall provide to the other parent:
(i)A copy of the children’s return travel itinerary (including return airfare tickets);
(ii)Comprehensive travel insurance for the children;
(iii)The location/s of where the children will be staying during their time overseas; and
(iv)A telephone number on which the children can be contacted whilst overseas.
(c)Two (2) weeks prior to the date of departure (if the mother is travelling with the children) the father shall provide to her the children’s passports.
The mother is permitted to travel with the children to India on 5 April 2021 to meet her father and other family members and holiday, and is to return to Sydney with the children no later than 18 April 2021. The mother’s travel is conditional upon her placing a bond of $30,000 at least 7 days prior to departure to be held on trust with the father’s solicitor with her bond to be returned to her forthwith upon the children’s arrival in Australia.
In exchange for the time allowed for travel in Order 9 above, the children shall spend time with the father throughout the entirety of the June school holidays in 2021.
The mother is permitted to travel with the children to the United States on 17 September 2021 and is to return to Sydney with the children no later than 4 October 2021.
In exchange for the extra week allowed for the mother in Order 11 above, the children are to spend time with the father for the first week of the Christmas school holidays in 2021 in addition to the time he would have otherwise spend with them pursuant to these Orders.
In relation to travel approved in Orders 9 and 11, the mother is to provide the father with the details required at least one month prior to travel.
The parents are to apply for and/or renew the children’s passports by 1 December 2020. Each parent shall contribute 50 per cent of the cost of each passport application or renewal, and any other associated costs, such as passport photos.
Neither parent shall relocate the permanent residence of the children from Sydney except with the explicit written permission of the other parents.
In the event a dispute between the mother and father cannot be settled in private discussion or by written correspondence, the parties shall, before commencing any legal proceedings, jointly engage the services of an accredited family dispute resolution practitioner or any agreed upon third party of their choice and make genuine efforts to engage in a dispute resolution process to settle their dispute.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Banik & Peres has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3166 of 2017
| Mr Banik |
Applicant
And
| Ms Peres |
Respondent
REASONS FOR JUDGMENT
The matter of Banik & Peres is a parenting application where the substantive issues concerning the parenting of the parties' children, X, born … 2011, and Y, born … 2014, is whether they spend six nights a fortnight in their mother’s care and eight nights with their father, or in an equal time arrangement broken into 5/2/5/2 arrangement.
Mr Schonell SC represented the mother and Mr Coleman SC represented the father. The issues before the Court were of a narrow but important compass for the parties. It was the mother's position, and had been for some time since at least the interview with Dr B, the Court expert on 7 May 2019, that the children should live with their parents equally in a regime of time, being two days on/five days off, two days on/five days off; a two/five arrangement. Dr B supported this regime of time.
The father's position, just prior to the hearing commencing, was that the children live with their parents in an arrangement of eight days with him and six days with their mother. His position, as at the interview with Dr B on 7 May 2019, was that the children should live in an arrangement of four nights with their mother in the fortnight, otherwise they live with him. There was a significant change to the father's position consequent upon the spectre of the final hearing. There were also issues of whether the mother should be able to take the children to India for a holiday to meet their extended maternal family, and also to America. The father opposed such travel.
Additionally, there was an issue as to when school holiday time would become equal in both the short-term school holidays and long-term school holidays. Neither parent sought other than an Order for equal shared parental responsibility.
DOCUMENTS RELIED UPON
The material read was as follows:
a)For the mother:
i)Amended Application for Final Orders, affirmed 6 April 2020;
ii)Affidavit, affirmed 6 April 2020; and
iii)Affidavit of her father, Mr C Banik, affirmed 6 April 2020.
b)For the father:
i)Affidavit, sworn 5 April 2020;
ii)Affidavit of his partner, Ms D, sworn 4 April 2020;
iii)Affidavit of his mother, Ms E Peres, sworn 4 April 2020; and
iv)The father withdrew reliance upon an Affidavit of Ms F, sworn 1 May 2020, due to a conflict.
c)A Report was prepared by Dr Milch, dated 2 May 2019 and was marked Court exhibit 1.
d)A Child Responsive Memorandum was prepared by Family Consultant, Ms G. The Child Responsive Memorandum was dated 8 August 2017 and marked Court exhibit 2.
e)The parties’ proposed Orders were put in their respective case outlines, which were also read and marked mother’s exhibit 1, and father’s exhibit 2.
The final hearing proceeded by way of Microsoft Teams. Both the mother, the father, and Ms D were cross‑examined. No other witness was cross-examined in these proceedings.
CHRONOLOGY
The father was born in India on … 1974, currently aged 46.
The mother was born in India on … 1980, currently aged 39.
The father moved to Australia on 21 October 1991, and the mother moved to Australia in June 2007.
The parties married in India on …2007 and commenced cohabitation in June 2007.
On … 2007, the parties married in Australia.
There are two children of the relationship:
a)X, born on … 2011, currently aged eight; and
b)Y, born on … 2014, currently aged five.
On 21 March 2015, the maternal grandmother tragically passed away, having taken her own life. This had a significant emotional impact on the mother for a significant period of time. Dr B opines in his Report, at paragraph 121, that:
The mother had experienced a pathological grief reaction with features of a Major Depressive Episode following the suicide of the maternal grandmother in March 2015. Both parents' account of her functioning during 2015 and 2016 following this tragic event identified that, during this period, her parenting capacity had been impaired. Grief counselling and psychological support had failed to resolve her depressive symptoms. During this period, she had experienced disturbed mood, irritability, anger outbursts and sleep deprivation. This had amplified the parental disharmony which has culminated in the parental separation. The mother struggled with the stigma of mental illness, resulting in the failure to receive assertive psychiatric intervention which could have successfully treated this condition. The father's judgmental stance and her separation from her sister and father in India had exacerbated her feeling of isolation.
The mother reported these symptoms had resolved towards the end of 2017, and Dr B confirmed that the mother was symptom free when he saw her.
In October 2015, the father called a family dinner with the maternal and paternal family to inform them that the parties were separating. The mother alleges that during this dinner, the father announced that the mother had failed as a mother and a wife. The wife asserts that she was severely embarrassed.
In December 2015, the mother allegedly requested the father to accompany her to India to attend to the final religious rituals related to the late maternal grandmother’s death. The mother asserts that the father vehemently opposed her travel to India.
The parties separated in January 2016.
On 30 August 2016, final consent Orders were made in relation to parenting and property. The parenting Orders provided that the “children live with the father and have time with the mother as agreed”.
On 16 November 2016, the mother vacated the former matrimonial home.
On 25 May 2017, the mother commenced proceedings in the Family Court of Australia, seeking that the property Orders of 30 August 2016 be set aside, and for the children to live with her and spend time with the father as agreed.
On 14 June 2017, interim Orders were made for the children to live with the father and spend time with the mother in a two-weekly cycle as follows: in week 1, from 3 pm to 7.30 pm on Tuesday, and 3 pm on Friday to 4 pm on Sunday; and in week 2 from 3 pm to 7.30 pm on Tuesday, and 5 pm Thursday to 8 am Friday. The Orders also provided that the children be placed on the Airport Watch List.
On … 2018, the parties were divorced.
In June 2018, the father commenced a relationship with Ms D.
On 15 June 2018, the Airport Watch Listing for the children expired.
On 21 June 2018, the father files an Application in a Case seeking that the Watch List Orders be renewed.
On 24 April 2019, the mother files a Response seeking that the father’s Application for a renewal of Watch List Orders be dismissed.
On 2 May 2019, the mother consents to making of Watch List Orders.
On 29 July 2019, Orders are made providing for the children to spend an additional night with the mother each fortnight.
On 17 February 2020, Trial Directions for Final Hearing were made.
THE EVIDENCE
The parenting Orders of 30 August 2016 were inappropriate in many respects. Some specific Orders were extremely difficult for the parties to carry out, as Mr Schonell SC expertly referred to. For example, at Order 9, the parties were to:
...give each other four (4) weeks written notice of an intention to travel with the children on domestic vacations during the school holiday period and eight weeks written notice for travel outside the Commonwealth of Australia and such notice shall provide information including but not limited to destination(s) including addresses where the party and child would be staying and contact telephone numbers, flight details, itinerary, and shall be agreed in writing between the parties.
Ultimately, this Order meant that if neither party agreed to a holiday plan, the children did not go on a holiday.
The Orders were poorly drafted and were not child-focused in that although they provided for equal shared parental responsibility of the children, there was no specific time for the mother to spend time with the children, and the children were only to spend time with the mother as agreed.
As events transpired, and as the evidence reveals, this placed the father in a controlling position vis-a-vis the children's time with their mother, and I accept the submission by Mr Schonell SC that the father had used that control on many occasions in the last four years, had actively prevented the children having the best relationship they could with their mother, and spending the time with their mother that their emotional development and needs required should have occurred.
The evidence reveals that the father behaved in a controlling and authoritarian manner when it came to controlling the mother's time with the children. Thus, the Orders were flawed from the get-go.
The father's position initially was that the regime of time imposed by the Court of 14 May 2017 during school term should continue through school holidays. There was ultimately some agreement that extended the time, however the father did not concede anything approaching equal time in school holidays.
Although the evidence revealed that the father commenced a relationship with Ms D in 2018, the father was not forthcoming about this with Dr B. At paragraph 34 of his Report, Dr B notes, “[Mr Peres] was not in a current relationship, although he dated post-separation”.
That was an untruth. When pressed on this in cross-examination, the father attempted to cover up this lie to Dr B by saying it was not a committed relationship. The evidence from Ms D, a delightful, articulate, insightful woman, was that she and the father were in a committed relationship towards the end of 2019, and clearly in a relationship at the time Dr B's Report interviews were carried out in April 2019.
Upon the matter being filed in Court, the parties attended on Ms G, as part of the Child Responsive Program, which found as follows:
24. There appears to be deeply entrenched conflict between Ms Banik and [Mr Peres] and, unfortunately, it will appear that the children have been drawn into their dispute. [Ms Banik] and [Mr Peres] would likely benefit from attending post separation counselling or a psychoeducation program which will assist them to improve their co-parenting capacity.
25. The children’s presentation on the day of the assessment was somewhat concerning. This matter may benefit from the appointment of an Independent Children’s Lawyer.
26. It is suggested that the current parenting arrangement do not meet [X] and [Y's] needs. In the interim, they would likely benefit from an arrangement with a level of structure and specificity, which provides uninterrupted blocks of time with each parent and limits transitions between the parents, but taking into consideration the children’s capacity to manage same. This may also go some way to reducing exposure to parental conflict.
In cross-examination, the father admitted and agreed that at the time the Child Responsive Program was conducted on 31 August 2017, the current parenting arrangements were not meeting the children's needs. However, he took no steps whatsoever to increase the children's time with their mother, and said in his Affidavit that he was waiting, before he increased the children's time, for the expert opinion, such as that which might be provided by Dr B.
However, the fallacy or the hypocrisy of that position was highlighted by his conduct, for when Dr B's Report was released in May 2019, he made the following recommendations, at paragraph 131:
1. The maintenance of shared parental responsibility.
2. The implementation of the mother's proposal for shared care in its entirety. This five/two, five/two arrangement was well constructed and served to provide continuity for the children, with extended periods of time in each household, with handovers at school for the majority of the time. Her proposal that there should be flexibility regarding such arrangement is an important aspect of parenting. It was unfortunate that this was not accepted by the father.
The father took no step at all to increase the children’s time with their mother. There is a plethora of evidence that he did not accept flexibility in the parenting arrangement, and rather sought to maintain rigidity. This is in circumstances where he admitted in cross‑examination that even as long ago as August 2017, the limited time the children were spending overnight in their mother's care was not in their best interests, and was not appropriate for them.
The regime of time that the mother put forward to Dr B, an experienced and highly qualified child psychologist, having prepared many reports in this jurisdiction, was referred to by Dr B, at paragraph 17:
[Ms Banik] detailed her five two, five two parenting plan. This identified that in week 1, the children will be in her care from 3.00 pm on Monday until 3.00 pm Wednesday. They would then be in their father's care from 3.00 pm on Wednesday until Friday morning. She would collect the children from school at 3.00 pm on Friday and they would return to their father's care at 3.00 pm on Wednesday. She explained that this predictable routine would enable the children to spend each Monday and Tuesday with their mother, each Wednesday and Thursday with their father and a period of five days with each parent. This would enable the children to maintain meaningful relationships with both their parents and the diversity of cultural experience. There would be uninterrupted five-day blocks of time, limited interactions between the parents at handovers (which had been difficult for the children). There would also be no more than a five-day period of loss of contact with each parent. This proposal had been submitted to [Mr Peres] in November 2018. She identified there would need to be some flexibility in such arrangements. She proposed that a shared parenting app be used by the parents to enable respectful communication while attending to the children’s needs.
There was significant evidence given by the mother as to the reasons why this proposal would work well for the children, and her position and reasoning was adopted by Dr B.
At paragraph 36 of his Report, Dr B explored the current arrangements with the father. The current arrangements were those imposed by Justice Le Poer Trench. In one week, they were with her from 3 pm Friday to 4 pm Sunday, and in the other week from 5 pm Thursday to 8 am Friday. This resulted in a significant amount of changeovers, not all at school, going to and from the parents' homes, and providing very limited and patchy time in each parent's care.
Significantly, the children were separated from their mother for certainly more than five nights at a time, and it was noted by the mother that this was not an ideal arrangement. The Child Responsive Program Memorandum, which his Honour did not have the benefit of at the time, indicated that the arrangement was not appropriate and was not meeting the children's needs.
Thus, as at April 2019, the father had overwhelming evidence from two experts that the arrangement of time that had been imposed upon his children by the Court in the absence of social science was inappropriate.
At paragraph 36 of his Dr B’s Report:
The current residential arrangements were explored. [Mr Peres] viewed this as OK but “could be better”. He spoke of his concern that [Ms Banik] had difficulty separating from the children at handovers and would approach them and cuddle them repeatedly before saying goodbye. He did not, however, view this to be a major issue. When asked for his proposal for the next step regarding residential and contact arrangements, [Mr Peres] stated that he was looking for guidance.
Dr B explored, "How do you see this issue being resolved?" It was clear that the children separating from their mother on Tuesday night at 7.30 pm was causing the mother and the father distress. The mother had proposed to the father that the time be extended until the next morning, where she would deliver the children to school. He would not agree, yet told Dr B, "It could be better."
Continuing from paragraph 36 of his Report, Dr B went on to say:
[Mr Peres] stated he was looking for guidance. He did not have a problem with the children having an additional night with their mother.
Yet the father put forward no proposal to make it better for his children at that time. An additional night with their mother did not come about until October 2019, and not before the matter was before me in June 2019. At that mention, I asked why the children were not having four nights a fortnight with their mother now when this was their father’s final Order position. I was told this would eventuate.
Again, the father held up what was best for his children to ensure that he maintained the control over the mother and her time with the children as his own proposal to increase time did not commence until October of that year. At paragraph 36 of his Report, Dr B opined:
He ([Mr Peres]) stated he did not have a problem with the children having an additional night with the mother. When referred to [Ms Banik's] well thought out, detailed proposal for five/two, five/two shared care supported by the use of a shared parenting app, [Mr Peres] responded that it would be a matter of how the children coped with such arrangements. In his view this did not concur with the recommendations of the Family Consultant. He questioned the confusing and changing routine, and whether the children's needs would be met by such an arrangement. Despite the Family Consultant's recommendation for change some 18 months ago, he was yet to formulate a proposal.
I find that the father had no intention of formulating a proposal. He would not budge until such time as a Judge pushed him as I did in June 2019 and even then he took months to implement his own proposed Orders.
The submission by Mr Schonell SC that the father has extended his control over the time the children spent with their mother is made out on the evidence. The father has failed to act in a child-focused or appropriate fashion in failing to increase the children’s time with their mother, in circumstances where he knew in 2017 the arrangements for the children could be better and where he was the one in control of changing that situation. I accept that there were problems with handovers, and there were difficulties for both the parents and the children, however his intransigence to change was not a child-focused or justified position to take.
The father asserts the mother took the children to the Gold Coast in October 2019 without notifying him in accordance with the Orders. This is incorrect. The mother told him, in an email to him, attached to her tender bundle at page six, that she was taking the children to the Gold Coast for a surprise getaway. The mother could not give him the unreasonable amount of notice required by the poorly drafted Orders entered into by consent on 30 August 2016 as the father failed to respond to her request to have the children over the long weekend and extend that time, for almost three weeks. His complaint about the mother's conduct has turned into a further example of his poor attitude and inflexibility when it comes to his children spending the appropriate time with their mother that they are entitled to spend.
The mother has well thought out her proposal, and it is consistent with both Ms G and Dr B's respective reports, namely that the children need extended and predictable time with each parent, and to minimise difficulties at changeover, which are avoided if, as the mother proposes, changeover occurs at the children’s school.
The father's argument that, in some way, the mother's proposal is confusing, too many changeovers, is, again, hypocrisy and evidence of rigidity in him. His own minute of proposed Orders, submitted to the Court on 16 March 2020, now forming part of the mother's tender bundle before me, had the following arrangement as being in the children's best interests:
4. The children shall live with their father and spend time with the mother pursuant to an alternating two week cycle as follows:
4.1. In week 1:
4.1.1. From after school on Tuesday or 3 pm if not a school day until 7.30 pm; and
4.1.2. From after school Friday or 3pm if not a school day until before school Monday or 9 am if not a school day.
An additional one night to the Orders of his Honour, but no other overnight time on Tuesday. These Orders provide for four changeovers in week 1:
4.2. In week 2:
4.2.1. From after school Tuesday or 3pm if not a school day until 7.30 pm; and
4.2.2. From 5 pm on Thursday until before school Friday or 9 am if not a school day.
That is eight changeovers in two weeks.
The mother’s proposal, which the father has had notice of since November 2018 and has, effectively, chosen to ignore, as set out in her case outline dated 4 May 2020, is:
4. That the children shall live with each of the parents during the school term in the following arrangement:
a) With the father in Week 1, from 9 am on Monday to 3 pm on Wednesday; and from 9am Friday of Week 1 to 3 pm until Wednesday in Week 2.
b) With the mother in Week 1, from 3 pm on Wednesday to 9 am on Friday, in Week 2, from 3 pm on Wednesday to 9 am the following Monday (Week 1).
This is precisely the same number of changeovers as in the father's proposal yet most importantly, providing for a consistency of days each week in both parents' care. Namely, Monday and Tuesday weekly with the mother and Wednesday and Thursday weekly with their father, a period of five days with each parent, and no separation of more than five days from either parent together with changeovers at school.
How the father could object to this well thought out, well-structured and appropriate regime of time, as was recommended by Dr B, being immediately adopted, can only be explained if I accept the submission of Mr Schonell SC, that he was seeking to control the mother, reduce her time with the children, and was not looking at what was best for the children.
The father's proposal in 16 March 2020 would have maintained what had been for the children, as said by both Dr B and Ms G, an arrangement not meeting their needs. The parents had seen what had happened to the children when they were separated from their mother for more than seven nights, and both agreed it could have been better. The father’s “heel of the hunt” epiphany of six nights in the mother’s care per fortnight, does not deal with the consequences for the children of not being separated for more than five nights during the school term from either parent.
Mr Coleman SC submitted that the mother’s Orders were not reasonably practicable because they provided for a broken and patchy arrangement for the children’s care during the week. The submission by Mr Coleman SC that I cannot enliven my jurisdiction to make the mother's Order because such an Order is not reasonably practicable, yet the Order proposed by the father is reasonably practicable, is rejected by me for the following reasons.
Up until March 2020, this is precisely what the father wanted and is what has been happening, namely, a breaking up in the school week of the nights the children spend in their parents’ care.
The parties have made such a regime of time work, although, to use the father’s words, “it could be better”, and the children are accustomed to such changes. There is no Contravention Application filed by either party, and each parent ensures they comply with the current Orders. The parents live a reasonable distance from each other and have managed to collect and deliver the children to and from school and return them to each other’s homes.
“Reasonable practicality" is one of the considerations I must have regard to under the Act and the case law. Reasonable practicality is defined under section 65DAA(5) of the Family Law Act 1975 (Cth) (“the Act”) and is in the following terms.
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
As Mr Schonell SC submitted, reasonable practicality is not the only, or the overwhelming factor I must have regard to if I am considering whether to make an equal or significant and substantial time Order.
The High Court decision in MRR v GR [2010] HCA 4[1] is seminal on this point. At paragraph 13 of the judgment, their Honours say:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.
[1]MRR v GR [2010] HCA 4 at [13].
Thus, I must not only consider whether the Order proposed is reasonably practical, but I must also have regard to the relevant factors under sections 60CC(2) and (3) of the Act, and to determine whether an equal time Order is in the best interests of the children. This is the pathway I am to follow in making an Order for equal and or substantial time in a parenting matter.
The mother’s proposed Orders are clearly reasonably practicable and are an extension in reality of the current patchy and broken up parenting arrangement, which the father still sought be maintained in March 2020. It is the father’s proposal that is untested, resulting in the children spending more than five nights away from either parent and not seeing the other parent over a substantial block of time. This is the Order that may not be practicable in these circumstances.
There are always practical difficulties, disharmony and difference of opinion for parents in making arrangements work. However, the parties in this matter have shown a capacity to make this work. For example, the week prior to the hearing, the mother described an incident where she collected the children to take them to school from the father, and he had not packed the lunches. The mother said the incident was unpleasant and played out in front of the children. However, it was resolved by the father going back inside and making lunches for the children. This is a normal and reasonable way of parenting children, and was well resolved.
The making of the mother’s Orders will ensure these issues do not arise in the future, as the parent at whose home they have slept that night will be the one taking them to school the following morning. This must be a benefit and is further evidence to support that the mother’s Orders are reasonably practicable.
Expert Evidence
Dr B was critical of the father in him blaming the mother for his health issues. Although he initially denied any problems with his current physical health, it was evident he had a significant past medical history. He related this to the stress of looking after his wife. At paragraph 47 of his Report, Dr B noted that the father viewed himself, “in a state of high alert, flight or fight, walking on eggshells” in their relationship since 2008.
He had suffered from a range of ailments, developed a thyroid condition associated with weight loss, and woke up in cold sweats. He was diagnosed with Thyrotoxicosis, which had been managed with medication, and he had formed the view this was caused by the stress of the marriage. However, at paragraph 47 of his Report, Dr B says, “it should be noted that agitation and anxiety are typical medical symptoms of this condition”.
The father suffered from gastro-oesophageal reflux, which was treated with Somac. He related that to his stressful marital relationship.
The father also required knee surgery in 1996. This had been fine until 2011, when he experienced an exacerbation of the condition. Then again in 2014, he had an eight-month history of sciatica, prior to spinal surgery in March 2015.
As Dr B noted the father sought to blame the mother for difficulties he clearly had a significant hand in creating. At paragraph 47 of his Report:
It is the report writer’s medical opinion that it is a misattribution to view these physical conditions as causally related to the mother’s behaviour or the marital problems.
The father’s conduct in announcing at a family dinner organised by him of the party’s marital issues, as set out by the mother in paragraph 20 of her Affidavit, including what he believed the mother’s failings were in the marriage, was very damaging and is a clear indication that the father views his needs as paramount.
At paragraph 20 of the mother’s Affidavit, she says:
In October 2015, Mr Peres called a family meeting with his parents, my father and sister. My father and sister were visiting to help us celebrate Y’s 1st birthday and X’s 3rd birthday. At this meeting Mr Peres aired grievances in what I discovered was a prepared speech for the two families gathered. He had prepared a formal speech which he had typed up on his computer. He read it out from there in front of my family. Mr Peres has previously produced a copy of the speech he said he gave. It is however redacted and does not include parts that there (sic) highly critical of me. Why he chooses (sic) to give such a speech and to embarrass me in front of my family and extended family has never been explained to me. The theme of the speech was that I had failed as a wife and mother.
The paternal grandfather confirmed, he found it highly stressful and shameful to hear this speech. The maternal grandmother had committed suicide six months earlier and she and her family were still recovering from that traumatic event.
The speech, in part, reads as follows:
Ms Banik is responsible for my health and happiness. It is her job to make sure my needs are met - emotional, sexual and mental health and wellbeing. She is denying me of my basic needs.
I have been deprived by her and this has caused me health issues, she has impacted my work by being dependant on me and by not performing her responsibilities. Her only primary family that she needs to focus on is me and the children.
He continued:
Please stay out of our lives, and stop visiting us so often. We need space from you. And I am not supporting of Ms H’s [the mother’s sister] migration to Sydney. I am not okay with this idea.
Secret, secret squirrel conversations [between Ms H and Ms Banik] and secret agendas are tiring. This cannot continue.
I don’t know what you all are planning behind my back but I will not be sponsoring her visa or letting her stay with us.
As far as I am concerned, there is no mutually acceptable solution. There is no negotiation. This is my family and my kids. The only acceptable solution is what I say.
True to his word, the father continued in that vein, and has conducted himself in that fashion, since 2016.
The mother made concessions that she had been “difficult” following death of her mother. She was positive with Dr B of the father as a parent for the children, including how well they were proceeding in his care, and was generally positive of the importance of their relationship with him. This same characteristic is not evident in the father.
THE LAW
Going to the factors under sections 60CC(2), 60CC(3), and 65DAA of the Act.
The primary considerations in section 60CC(2) of the Act are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations in section 60CC(3) of the Act are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) 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;
(f) the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) 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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) 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, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) 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;
(m) any other fact or circumstance that the court thinks is relevant.
Section 65DAA:
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Going now to the future, I have formed the view consistent with the parent’s position that the presumption of equal shared parental responsibility is not to be rebutted.
Having so determined, I must consider whether there should there be an equal time or significant and substantial time order? Even the fathers’ application now supports a regime of time that is almost equal, being six nights a fortnight in the mother’s care.
The expert, Dr B, whose Report I accept in its entirety, including its opinions and conclusions, supports an equal time arrangement, and in particular, supports the mother’s well-crafted and thoughtful arrangement of five/two/five/two. This enables the children to spend two fixed days each week with one parent, and no more than five days apart from either parent.
Either parent’s proposal will provide for the children to maintain what is a benefit to them of their meaningful relationship with each of their parents. The mother’s Orders ensure that they are not separated from either parent for more than five nights. The father’s Orders continue to have them separated from the mother for a lengthy period of eight nights when lengthy separation from her has not met their emotional needs in the past. Additionally, they will be separated from their father for six nights and this may not meet their emotional needs either.
These children have never been subjected to poor behaviour or family violence. Their parents are each good, hard-working, honest citizens, and are otherwise exemplary people.
It is clear, although not expressed, that the children wish to spend time with their mother and their father, and do not wish to be separated from either of their parents. They have a strong and attached relationship with their father and their mother. Their father has the support of his extended family, and his wonderful, supportive mother, who effectively has been a mainstay for him in the care of the children. It was a great pity that he would not admit this to Dr B in the Report, as is noted by Dr B, who said, “The father down played the role his parents have played in assisting him in the care of the children”.
This support is not available to the mother, and the arrangement she puts forward now is an arrangement she knows she can carry out, as well as maintaining work in her high-powered job, similarly as the father can work in his high-powered job, with the support of his wonderful family.
Both parents take their responsibilities of parenthood seriously. They have both taken every opportunity to spend maximum time with their children. The mother has behaved in an exemplary fashion, when faced with, what I would regard, as mean spirited decisions by the father, being his poor actions and reactions to her requests for more time. The father has struggled to put the needs of his children to maximise their time with their mother before his own needs. For example, as set out in her tender bundle at page seven; the mother sent the following SMS text message to the father on 12 July 2017 at 6.03 pm:
Hi, [Mr Peres]. I just received a free double pass to go for the [game] at ANZ Stadium Tomm. I would love to take X, as he told me how much he loves [soccer] and he has verbally expressed how much he would love for me to take him for a sports game. Being school holidays it would be perfect to take him for a late evening show and also 20 other work colleagues will be going with us which will be fun for him to experience. Please allow for him to be picked up and enjoy an evening out with me. I will drop him back after the game as you have Disney on Ice on Friday with the boys. Looking forward to your response. Thanks, [Ms Banik].
No response. The mother sends another text message following up at 9.06 pm the same evening:
Hi [Mr Peres], can you please send me a confirmation and your response for my request to take [X] to the [game] Tomm night. I have to plan my day accordingly so let me know tonight please. Cheers, [Ms Banik].
Response from the father was received the same evening at 9.48 pm:
Hi [Ms Banik], I don’t think it would be appropriate for [X] to go tomorrow. Disney on Ice is tomorrow. He will be tired after a long day. Soccer kick-off is at 7.30 pm, which is his bed time, and if he went, he would be back by 11.30 pm ish from ANZ Stadium. Also, it is meant to be 8 degrees tomorrow night which means the stadium will be even freezing colder. Maybe we can look at other options? Cheers [Mr Peres].
No options were put forward by him. The mother responds with the following text message the same evening at 10.10 pm:
Hi [Mr Peres], in your email last week you said Disney on Ice is booked for Friday 14th July which is why you declined my request to pick X up at 8am instead of 3 pm. Last Saturday, you took both the boys to see an [AFL game] at the SCG in the evening as well. In the last 2-3 weeks alone they have been out for evening footy games with you, night outs with cousins- Vivid Festival night out, swimming in heated pools even though it’s winter and Y has a cold, and it is very disappointing that my requests to try and spend quality time with my children is consistently met with your denial. Anyways I have a free double pass & I was not intending to stay until the very end with him as I do realise how chilly it gets. The boys need more time with me. They are asking for it more and more & I am extremely saddened by you denying us of quality time together.
That perhaps sums up how the mother has been treated by the father, and her courteous, polite, child-focused response is a testament to her understanding nature.
The mother is the more flexible parent who will be able to more appropriately deal with the children as they age and begin the necessary but painful process of challenging their parents.
These people do not rage at each other; they do not behave badly. They treat each other with courtesy and respect. If any parents had a chance of making equal time Orders work, it is these parents, for both will comply with the Orders. The father has consistently said, “We had to comply with the Orders and maintain the current Orders.” They are courteous, they are polite, and respectful to each other in their emails and in their interactions. I reject any submission that the mothers’ Orders would not be practicable.
I posited to the parties to vary the Orders to an equal time Order in a block of time, when the youngest child attends high school. The parties accepted this as appropriate. I will vary the Orders from that time, unless the parents agree to vary them before that time, with the changeover from school on Monday morning each week or Friday afternoon each week, or such other times as the parents may agree. This is a more appropriate arrangement for older children than the Orders I propose to make now and based on the mothers’ proposal.
Going now to holidays, the children will simply have one half of each school holiday period with each parent. In the short term school holidays commencing now, not, as the father put forward, at the end of Term 3. There is absolutely no reason to not have these boys in an equal time arrangement, in school holidays, with their mum and their dad forthwith. Not one skerrick of evidence was put forward by the father as to why this should not be the case.
In relation to the Christmas school holidays, for the Christmas school holidays for the years 2020/21, I accept, a week-about arrangement initially is likely more acceptable for the children, to get them used to such lengthy periods of time away from either parent. Thereafter, in the years 2021/22, they will go to two weeks with each parent; and thereafter, it will be one half of each school holiday period, commencing 2023/24. I find, these are Orders that will provide for the children’s needs to spend quality time with their parents.
The father did not agree with the mother taking the children to India or America and said he believed the mother was a flight risk. I searched the father’s material to find any objective evidence upon which he could base his subjective position, as he said to me at the hearing, “I have real and genuine concerns.” There are none. In fact, the evidence is to the contrary. The parents have travelled overseas. The mother has travelled to India, and she has always returned. As she says in her Affidavit at paragraph 65:
I am an Australian citizen, have a network of close friends here, have a career I love providing stability and prospects for the future, access to world-class healthcare and respect the fact that [Mr Peres], myself and the boys are all Australian citizens, with roots here in Australia.
I have no desire to return permanently to a country that does not provide the quality of life we have here in Australia and where the equality of women is questionable in both the law and society. I don’t like Indian life; it is dirty, noisy and people are very intrusive. I like the peace and quiet, the safety to be an independent woman, and personal space I enjoy in Australia, something I never had before.
I accept this is the mother’s true position. The father said he was not going to travel to India, and only went to India to marry the mother. Both these parties have a similar view about India and living there. What the mother wants is to return to India and allow these children to experience the culture, from which both their parents come. Contrary to what was submitted to me by the father, it is simply insufficient to say that the maternal grandfather coming to Australia once a year and endeavouring to teach his grandson Indian ways, will immerse them in the Indian culture. It cannot.
These children have the privilege of their Indian heritage; their mother speaking the language and having family in that country. They have the ability of being immersed on a holiday, not just as mere tourists, but actually enjoying the reality of Indian life, knowing they will be returned to Australia, a country where we enjoy many advantages not able to be enjoyed by all Indian citizens. The father’s need to control is evident here.
I was referred to a decision by my sister Justice Hannam of Baboor & Reema and Ors [2020] FamCA 227[2] (“Baboor”) in relation to this issue of overseas travel to a non-Hague country. The decision is most thorough and well-constructed, and although only a single Judge, the decision is both persuasive and authoritative. In that case, her Honour permitted the mother to travel to India and pay a bond of $15,000 by bank cheque.
[2]Baboor & Reema and Ors [2020] FamCA 227.
Her Honour cited and analysed the relevant authorities such as Line and Line [1997] FLC 92-729[3] (“Line”), affirmed by the Full Court in DeLuca & Farnham and Anor [2019] FamCAFC 100 (“De Luca”)[4], explaining the Courts obligation is to “…assess the degree of risk if any of the child not being returned to Australia and consider whether it is appropriate to require any security for the return of the child”.[5]
[3]Line and Line [1997] FLC 92-729.
[4]DeLuca & Farnham and Anor [2019] FamCAFC 100.
[5] Above, note 2 at [27].
Taking a child outside of a country is a parenting Order within the meaning of section 64B of the Act, and I must follow the pathway set out in Goode v Goode [2006] FamCA 1346[6] and sections 60CC(2) and 60CC(3) of the Act which I have done.
[6]Goode v Goode [2006] FamCA 1346.
The factors which are to be assessed in a risk of non-return, as in Line[7] and DeLuca[8] are as follows, and I quote from her Honour at paragraphs 28 of her judgment:
The existence or otherwise of continuing ties between the departing parent and Australia;
The existence and strength of possible motives not to return;
The existence and strength of possible motives to remain in the other nominated country; and
Whether the country of travel is a signatory to the Hague Convention.[9]
[7] Above, note 3.
[8] Above, note 4.
[9] Above, note 2 at [28].
Her Honour continues:
The relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed as a lower level. In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration.[10]
[10] Above, note 2 at [29].
In her decision, Her Honour determined it was in the child’s best interests to travel to India with her mother for a family wedding. Her Honour referred to the importance of cultural events and spending time with important family members for children, even though India is not a signatory to the Hague Convention.
In this matter, the children’s paternal grandfather and aunt live in India and not Australia. In Australia, they have the benefit and the joy of an extended, supportive, loving family from their father’s side of the family in Australia, but they do not have that in Australia from their mother’s family.
As with the decision before her Honour, the husband here contended that the mother’s family is a wealthy, well-respected and influential Indian family, and they could ask her to stay. This was merely assertions the father made, without any objective evidence to support same. The father asserted, he had a fear that the mother wants to stay in India; there was no objective evidence to support that fear and her Affidavit was to the contrary. The father admitted in cross-examination, that the mother has never threatened to take the children to India, never threatened to remove the children from his care; and that when she has gone to India, she has always returned.
I do not see that the father, consistent with her Honour’s finding in Baboor,[11] holds a genuine fear of the mother not returning from India, and this is strengthened by her own view of living in Australia and it superiority for her than living in India. Rather, his stated position is, as I see it, another means by which to control the mother.
[11] Above, note 2.
In all those circumstances, the mother’s application to remove the children to India, America, any other country, is an Order I find in the children’s best interests into the future. I must make this as a positive Order, given what I regard as the father’s inflexibility and inability to extend any time for the mother and children in the absence of it being of benefit to him. I do not see that he would make that concession, and therefore the Court must make these Orders, to minimise further litigation between the parties.
The mother in this case has put forward a $100,000 bond for travel to India, a significant sum for a woman who only has some $300,000 in the bank. I will not require the mother to provide a bond for $100,000. Although I hold no fears or reservations that the mother will not return to Australia, the giving of a bond may be a salve for the father’s concerns, and this would benefit the children and allow them to enjoy their holiday. I find a bond of $30,000 is a more appropriate amount, given I am satisfied the mother is not a flight risk, and that this represents 10 per cent of her savings in Australia.
I will make the Orders sought by the mother in relation to all aspects of the parenting matter. They are the Orders that on the whole provide for the children’s best interests.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 12 June 2020.
Associate:
Date: 12 June 2020
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