Beary & Yeshin (No 2)

Case [2022] FedCFamC1F 126

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Beary & Yeshin (No 2) [2022] FedCFamC1F 126

File number(s): MLC 14649 of 2019
Judgment of: MCEVOY J
Date of judgment: 11 March 2022
Catchwords: FAMILY LAW – CHILDREN – Undefended hearing – Final parenting orders – Where the mother requested to attend the final hearing electronically due to purported fears for her safety – Where the mother is directed by the Court to attend the final hearing in person – Where the mother failed to comply with Court directions by not appearing in person for the final hearing – Where the mother sought to adjourn the final hearing on the morning of the trial – Where the father opposed the adjournment application – Adjournment application dismissed – Where the father sought leave to proceed on an undefended basis – Leave granted for undefended hearing – Where the mother unilaterally relocated with the child to India for over two years – Where the mother attempted to remove the child from Australia but was prevented due to an airport watch list order – Where the mother returned to India on two occasions for a period of several months and the child resided with the maternal aunt and the father in Victoria – Where the mother unilaterally relocated to Western Australia with the child for a period of seven months in breach of interim parenting orders – Where the child was delivered back to the father upon issue of a recovery order – Allegations of family violence made by both parties – Mother’s allegations of family violence not sustained – Final parenting orders made in the terms sought by the father and the ICL – Father to have sole parental responsibility for the child – Order for child to live with father and spend time with mother if she remains in Victoria – Order made for child’s name to remain on the airport watch list until he attains the age of 18 years
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61CA, 61DA, 64B, 65D, 65DAA, 65DAB and 65DAC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33 and r 215.15

The Hague Convention on the Civil Aspects of International Child Abduction  
Cases cited:

A v A (1998) FLC 92-800

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Blakey & Blakey [2020] FamCA 647

Blann & Kenny [2021] FamCA 322

Blann & Kenny [2021] FamCAFC 161

Boman & Boman [2022] FedCFamC1F 93

Briginshaw v Briginshaw (1938) 60 CLR 336

CDJ v VAJ (1998) 197 CLR 172

Donaghey & Donaghey (2011) 45 Fam LR 183

Donnell & Dovey (2010) FLC 93-428

Goode & Goode (2006) FLC 93-286

Hardie & Capris [2010] FamCA 1046

Keane & Keane [2020] FamCA 99

M v M (1988) 166 CLR 69

Mazorsi & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

MRR v GR (2010) 240…

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AGLC
Beary & Yeshin (No 2) [2022] FedCFamC1F 126
Case
[2022] FedCFamC1F 126
Decision Date

CaseChat Overview and Summary

The case of Beary & Yeshin (No 2) involved a dispute between the father and mother of a child born in 2016 regarding parental responsibility and care arrangements. The matter was before the Family Court of Australia. The father sought sole parental responsibility, an extension of the airport watch list order to prevent the child from being taken overseas, and a limited visitation arrangement with the mother. The mother opposed these applications and sought a more substantial shared care arrangement.

The court was required to determine whether it was in the child’s best interests for the father to have sole parental responsibility, whether the child's name should remain on the airport watch list until majority, and what care arrangements would best serve the child’s interests. This involved assessing the mother’s past conduct, including her relocations with the child to India and Western Australia without the father’s knowledge, and her apparent disregard for court orders.

The court found that the mother’s conduct demonstrated a propensity to prioritise her own needs over the child’s best interests, and her past actions gave serious cause for concern. The court accepted that the father's concerns about the mother taking the child overseas were justified, given India’s non-participation in The Hague Convention on the Civil Aspects of International Child Abduction regime. Consequently, the court granted the father sole parental responsibility, subject to an obligation to consult with the mother about major long-term decisions. The court also extended the airport watch list order until the child reaches majority, and set a visitation arrangement whereby the child spends time with the mother every other weekend and overnight in the alternate week if she remains in Melbourne, or half of school holiday time if she relocates to India or Western Australia.

The court's decision was based on the child’s best interests, taking into account the mother’s past actions and the father’s justified concerns about the child being taken overseas. The court concluded that the proposed orders by the father and supported by the Independent Children’s Lawyer were in the best interests of the child.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For reasons that I will explain, I dismissed the mother’s application for an adjournment and granted the father’s application to proceed undefended. Having regard to the relevant evidence, I accepted that the orders proposed by the father and supported by the ICL were in the best interests of the child, and I made those orders. What follows are the reasons for my decision. BACKGROUND The father was born in 1979 in City D, India and is 42 years of age. The mother was born in 1979 in India and is 43 years of age. The mother moved to Australia in 2009 on a spousal visa sponsored by her ex-husband, and is currently a permanent resident of Australia. Prior to the commencement of their relationship the mother was living in Melbourne, and the father was living in City D. The parties met through an Indian matrimony website in early 2015. The father moved to Australia in mid-2015 on a spousal visa, and the parties commenced living together immediately. They were married in 2015, with the child being born the following year in 2016. The child is an Australian citizen and holds an Australian passport. The parties separated sometime in early 2017, and the father filed for a divorce in mid-2018. The mother claims that the separation was due to ongoing family violence perpetrated by the father, although this is denied by him and there is no probative evidence of any of it in the material filed by the mother, or anywhere else. Both parties admit that it was a short and unhappy marriage, and their divorce was finalised in late 2018. The mother relocated with the child from Melbourne to City E, India in 2017 when the child was seven months old. As has been mentioned, the father says that this relocation occurred without his knowledge or consent and he did not become aware of it until mid-2017. The mother did not return to Melbourne until mid-2019, more than two years later. The father did not spend time with the child during this time, and had little contact with him at all. The mother again attempted to take the child back to India in early 2020, however she was prevented from doing so because the father had made an application for the child to be placed on the airport watch list. Orders were duly made on 1 July 2020 placing the child’s name on the airport watch list for a default period of two years, preventing either parent from removing the child from Australia. The mother travelled on her own to India in the period March 2020 to May 2020, leaving the child with the maternal aunt in Melbourne. The mother travelled to India again on her own in mid-2020, and returned to Australia in late 2020. The child resided solely with the father from September 2020 until sometime after the mother’s return, pursuant to interim orders made on 2 September 2020, with the mother apparently having only WhatsApp communication with the child until about mid-November 2020. As has been mentioned, the parties agreed to a shared care arrangement on 12 February 2021, however that was defeated by the mother’s relocation from Melbourne to Perth with the child in breach of Court orders, causing a need for the child to be recovered and returned to his father’s care in Melbourne.

Evidence

Evidence Before The Court

I approach the determination of the issues presented by this case by reference to the statutory regime in s 60CC of the Act and the relevant principles set out above. THE EVIDENCE As an undefended application, the father’s affidavit evidence was accepted without the need for him to be cross examined. The mother’s affidavit evidence, which was almost entirely inadmissible in any event, is properly to be disregarded. I observe, however, having reviewed the mother’s affidavits prior to the morning of the final hearing, that they are of no probative value. They comprise no more than unparticularised assertion and argument. It would not have been appropriate to attribute any weight to this material even if the mother had participated in the trial. Primarily relevant to the matters for determination is the conduct of the mother vis-à-vis both the child and the father over the course of the child’s life. Her actions, on several occasions, have shown not only a disregard for orders and directions of the Court, but a tendency to prioritise her own needs and wants over the best interests of the child. Her movements of the child summarily and without warning, first from Melbourne to India and then from Melbourne to Perth, were not child focused and give serious cause for concern about her preparedness to enable the child to have a meaningful relationship with his father. The mother’s relocation with the child to India in 2017 for more than two years, apparently without the father’s knowledge or consent, was highly problematic. The father did not see the child throughout this time, and had little to no contact with him. Also problematic was the mother’s attempt to take the child back to India in early 2020, which was prevented at the airport. The mother’s unilateral relocation with the child from Melbourne to Perth in early 2021 in breach of the orders made, and the subsequent need for the recovery order to issue, is further evidence of her inability to behave in a child focused way. This tendency by the mother to relocate with the child without notice to the father is the reason that he seeks the extension of the airport watch list order until the child is 18 years of age. With good reason he is vitally concerned to ensure that the mother does not take the child away again, particularly out of Australia. It is his position that if this precaution is not taken, and the mother takes the child to India, he may never see the child again and there would be little to no scope for him to maintain his relationship with the child. The Child Responsive Program Memorandum issued on 21 August 2020 expresses similar concerns. It states that “[t]here is evident risk that [the mother] would return to India given her attempt to leave in [early] 2020, ongoing strong social and financial ties to India and her clearly articulated desire to return to India.” The father has also previously noted, correctly, that as India is not a participant in The Hague Convention on the Civil Aspects of International Child Abduction regime, the mother would not be legally obligated to return the child to Australia to spend time with the father if she were to succeed in taking the child to India again.

Decision

Reasons for decision

As to the additional considerations which may be relevant, none of them cause me to form a different view to that which I have formed having regard to the primary considerations in s 60CC(2) of the Act. In my assessment the mother’s conduct has been deficient when measured by reference to s 60CC(3)(b), (c), (ca), (f), (g), (i), (j), (k) and (l) of the Act. Further, I am satisfied, having regard to s 60CC(3)(d), that it would be highly undesirable for the child, now settled with his father and doing well at school, to be the subject of any arrangement other than essentially that which the father and the ICL propose. Section 60CC(3)(l) provides a further basis for proceeding consistently with the orders proposed by the father and the ICL. CONCLUSION Dealing first with the issue of parental responsibility, having regard to the findings of abuse of the child and family violence I have made, the statutory presumption of equal shared parental responsibility does not apply: s 61DA(2) of the Act. In all the circumstances I am satisfied that it would be in the best interests of the child for the father to have sole parental responsibility, subject to an obligation to consult with the mother about the making of major long term decisions. In my assessment the parties are unable to communicate and cooperate sufficiently well for them to share parental responsibility. The mother’s attitude to the child’s developmental issues, his schooling, and her failure to adhere to the shared care regime that was in place, is reflective of this. There is no evidence whatsoever to suggest that the parties have been able to co-parent effectively. The progress of their relationship since separation has been highly, and no doubt unnecessarily, adversarial, and there could be no serious hope that things may change any time soon. An order that the father have sole parental responsibility reflects the reality of the child’s life since late last year. Insofar as live with arrangements are concerned, it follows from the findings I have made and the order that the father have sole parental responsibility for the child that the best interests of the child require that the father should be principally responsible for his care on a day to day basis. If the mother remains in Melbourne I am satisfied that an arrangement whereby the child spends time with her every other weekend and overnight in the alternate week, as the father and the ICL propose, would be appropriate and in his best interests. If she returns to India or Western Australia, I am satisfied that the proposed regime for half of school holiday time in Melbourne would be appropriate. Having regard to the mother’s past actions the child’s name should remain on the airport watch list until he reaches his majority. Should the father wish for the child’s name to be removed from the watch list at some future date to enable him to travel overseas, he can make an application for this to be done. I would not expect such an application, on the father’s motion, to be controversial.

Ratio Decidendi

Legal Principle Established

In all the circumstances I am satisfied that the child would not benefit from spending time with the mother on other than a fairly limited basis. I accept that by reference to her past conduct her propensity to cause harm to him is too great. Additional considerations: section 60CC(3) As to the additional considerations which may be relevant, none of them cause me to form a different view to that which I have formed having regard to the primary considerations in s 60CC(2) of the Act. In my assessment the mother’s conduct has been deficient when measured by reference to s 60CC(3)(b), (c), (ca), (f), (g), (i), (j), (k) and (l) of the Act. Further, I am satisfied, having regard to s 60CC(3)(d), that it would be highly undesirable for the child, now settled with his father and doing well at school, to be the subject of any arrangement other than essentially that which the father and the ICL propose. Section 60CC(3)(l) provides a further basis for proceeding consistently with the orders proposed by the father and the ICL. CONCLUSION Dealing first with the issue of parental responsibility, having regard to the findings of abuse of the child and family violence I have made, the statutory presumption of equal shared parental responsibility does not apply: s 61DA(2) of the Act. In all the circumstances I am satisfied that it would be in the best interests of the child for the father to have sole parental responsibility, subject to an obligation to consult with the mother about the making of major long term decisions. In my assessment the parties are unable to communicate and cooperate sufficiently well for them to share parental responsibility. The mother’s attitude to the child’s developmental issues, his schooling, and her failure to adhere to the shared care regime that was in place, is reflective of this. There is no evidence whatsoever to suggest that the parties have been able to co-parent effectively. The progress of their relationship since separation has been highly, and no doubt unnecessarily, adversarial, and there could be no serious hope that things may change any time soon. An order that the father have sole parental responsibility reflects the reality of the child’s life since late last year. Insofar as live with arrangements are concerned, it follows from the findings I have made and the order that the father have sole parental responsibility for the child that the best interests of the child require that the father should be principally responsible for his care on a day to day basis. If the mother remains in Melbourne I am satisfied that an arrangement whereby the child spends time with her every other weekend and overnight in the alternate week, as the father and the ICL propose, would be appropriate and in his best interests. If she returns to India or Western Australia, I am satisfied that the proposed regime for half of school holiday time in Melbourne would be appropriate. Having regard to the mother’s past actions the child’s name should remain on the airport watch list until he reaches his majority. Should the father wish for the child’s name to be removed from the watch list at some future date to enable him to travel overseas, he can make an application for this to be done. I would not expect such an application, on the father’s motion, to be controversial.