Beary & Yeshin (No 2)
[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 CLR 461
Mulvany & Lane (2009) FLC 93-404
Poisat & Poisat (2014) FLC 93-597
Tate JRD v Tate MT (2000) FLC 93-047
U v U (2002) 211 CLR 238
Division: Division 1 First Instance Number of paragraphs: 90 Date of last submission/s: 28 February 2022 Date of hearing: 28 February 2022 Place: Melbourne Counsel for the Applicant: Mr Lethlean Solicitor for the Applicant: Ressan Lawyers Counsel for the Respondent: Ms Chia Solicitor for the Respondent: Rothschild Legal Group Counsel for the Independent Children’s Lawyer Mr Gardiner Solicitor for the Independent Children’s Lawyer MMH Lawyers ORDERS
MLC 14649 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BEARY
Applicant
AND: MS YESHIN
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
28 FEBRUARY 2022
THE COURT ORDERS THAT:
1.All prior parenting orders be discharged.
2.The father have sole parental responsibility of the child of the relationship namely, X born 2016 (“the child”).
3.Save in the event of an emergency, prior to making any long-term decision concerning the child, the father shall:
(a)advise the mother of the intended decisions to be made by email;
(b)seek the written response from the mother in relation thereto;
(c)consider any such written response by the mother prior to making a decision; and
(d)advise the mother as soon as reasonably practicable of the ultimate decision.
4.The Airport Watch List order dated 1 July 2020 be varied so as to expire on 6 December 2034.
5.The child live with the father.
6.Should the mother relocate to India, the child spend time with the mother as follows:
(a)during the Victorian term school holiday periods in the State of Victoria at such times to be agreed and failing agreement from 6:00pm on the first Saturday following the last day of the applicable school term for 8 consecutive days (7 nights) with changeover to be at 6:00pm unless otherwise agreed;
(b)during the Victorian long summer school holidays at such times to be agreed and failing agreement with the mother for a period of three weeks, being the first three weeks of the holiday period in even numbered years (with time to commence at 6:00pm the day following the last day of school) and the last three weeks of the holiday period in odd numbered years (with time to conclude at 6:00pm the day prior to the commencement of the school year);
(c)or such other times as agreed to by the parties in writing.
7.Should the mother reside in Victoria, the child spend time with the mother as follows:
(a)commencing 11 March 2022, each alternate weekend from the conclusion of school (or 3:00pm) Friday to the commencement of school Monday (or 9:00am);
(b)commencing 2 March 2022, in the alternate week from the conclusion of school (or 3:00pm) on Wednesday to the commencement of school Thursday (or 9:00am);
(c)or such other times as agreed to by the parties in writing.
8.The mother confirm in writing by email to the father 24 hours prior to any scheduled time with the child, and failure to do so means that the father may make alternative arrangements for the child.
9.For the purposes of changeovers which do not occur at school, changeovers shall take place at Suburb L Police Station, unless otherwise agreed in writing.
10.In the event that the mother is unable to collect the child from school on time, she must organise afterschool care for the child and be responsible for any associated costs of same.
11.The parents shall be permitted to communicate with the child by telephone/audio-visual means/communication each Wednesday with such communication to be initiated between 6:30pm and 7:00pm (AEST) when the child is not in their respective care.
12.The parties shall permit the child to have telephone/audio-visual means/communication app time with the other parent upon any reasonable request by the child.
13.Each party shall keep the other party informed of any significant illness or accident suffered by the child when in his or her care, and as soon as practicable, advise the other party of the name and telephone numbers of each relevant treating medical practitioner or like professional, and authorise such treating medical practitioner or like professional to discuss the illness or accident, treatment and prognosis with the other party.
14.Each party may give a copy of these orders to any school or treating medical practitioner attended by the child.
15.Each party will provide to the other party with no less than 28 days’ notice of any proposed change of address and will otherwise keep each other party informed as soon as practicable of any change to their telephone number and email address.
16.Each party is restrained:
(a)from denigrating the other party, and/or the other party’s family while the child is in their presence or hearing, and/or allowing the child to remain in the presence or hearing of any third party who is denigrating the other party or the other party’s family; and
(b)from discussing the family law proceedings with the child and/or in the presence or hearing of the child and/or showing the child any documents relating to the family law proceedings.
17.Each parent shall authorise any school that the child attends to advise the other parent of any information concerning the child, including copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child as soon as is practicable.
18.Each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that a child shall attend from time to time to provide to the other parent any information regarding the child.
19.The parties communicate by email or such other agreed written form of communication with each other in respect to matters regarding the child’s routine, health, development milestones, handovers, contact requests, travel information, educational issues and all such other information as may be appropriate to be communicated between the parties.
20.Each parent shall use their best endeavours to not expose a child to inappropriate language and/or age inappropriate content, nor permit anybody else to do so in the presence or hearing of the child.
21.The Independent Children’s Lawyer be discharged.
AND THE COURT NOTES THAT:
A.The mother did not attend the final hearing despite being directed by the Court to do so.
B.The mother was represented by counsel and the mother’s oral application for an adjournment of the final hearing was refused.
C.The final hearing proceeded on an undefended basis.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Beary & Yeshin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCEVOY J:
INTRODUCTION
The parties to these proceedings are the applicant father, Mr Beary (“the father”) and the respondent mother, Ms Yeshin (“the mother”). The proceedings concern the future parenting arrangements for the one child of the relationship, X born in 2016 (“the child”) who is presently five years of age. The child has recently commenced his preparatory year at primary school.
The relationship between the parties is characterised by extraordinary animosity, even by the standards of this Court. On 12 February 2021 orders were made by consent putting in place a shared parenting arrangement in circumstances where the mother had left the child in Australia and returned to India in mid-2020. The mother had been prevented from taking the child to India with her at that time by the operation of an extant watch list order. Despite the order preventing the child from leaving, the mother returned to India without him for about three to four months, effectively surrendering him into the care of his father who remained in this country. The mother had previously taken the child to India when he was very young, apparently without the consent of the father, and remained there for a period of more than two years before returning to Australia. The 12 February 2021 consent orders provided for the child to spend equal time with each parent on a fortnightly basis.
However, 12 days after the making of those orders, on 24 February 2021, the mother unilaterally relocated with the child from Melbourne to Perth in contravention of the orders. Despite the father’s requests that she return she refused to do so, and on 21 September 2021 a recovery order was made. The child was subsequently removed from the mother and delivered to the father, who had been required to travel to Perth at his own expense to receive the child. The child was delivered to the father at Perth airport by officers of the Australian Federal Police in October 2021.
Thereafter, the mother returned to Melbourne and the regime set out in the 12 February 2021 orders continued. However in December 2021 the mother failed to collect the child from the changeover location, and so the child has remained living with the father since December 2021. The child has apparently had no time with the mother between then and February 2022, although this has not stopped her from attempting to prevent the child commencing primary school in Melbourne earlier this year, a matter to which it will be necessary to return.
On 13 October 2021 I listed the matter for an urgent final hearing on 28 February 2022. It was plain that the level of conflict between the parties and the child’s particular challenges were such that a speedy resolution of their dispute was essential. On the basis of the parties’ trial material, the principal dispute between them was parental responsibility and with whom the child should live. Although it had historically been a part of the mother’s case that she be permitted to relocate to India (or alternatively to Western Australia) with the child, there was some ambiguity about this in her trial material. Neither her Outline of Case nor her Further Amended Response to Initiating Application explicitly sought orders that she be permitted to relocate with the child to India or to Western Australia.
In the week prior to the commencement of the final hearing the mother indicated in communications to the Court that she did not propose to be present at the final hearing, and wished to participate electronically by way of Microsoft Teams. Her reason, in broad terms, was that she feared for her safety. For reasons that will become apparent, I did not consider that the mother’s apprehensions that she would be at risk by coming to Court were at all well founded. She was informed that it was the Court’s expectation that she be present, and she was directed to attend: see r 15.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). In my assessment the interests of justice demanded that the mother be present in Court, including so that she could be cross examined on the myriad allegations which she had made about the father and his treatment of her and the child.
However, notwithstanding the direction that the mother be present, in an email to the Court late on the evening before the final hearing she indicated that she was not able to be present. Her reasons, she said in her email, were that she was not yet fully vaccinated for Covid-19, she held concerns about being stalked by the father, and that she was due to attend a hearing in the Magistrates Court on day two of the final hearing. On the morning of 28 February 2022 the mother did not attend at Court. Through her publicly funded counsel, who was placed in a difficult position, the mother sought to have the trial adjourned. The mother had no proposal for when the matter should be re-listed, maintaining only that it could not proceed at present. It was submitted on her behalf that if the trial were adjourned she would reserve her position on relocation, although it seemed reasonably likely that a relocation application would be pursued at some time in the future. There was some suggestion by the mother’s counsel initially that the mother would consent to certain orders which the Independent Children’s Lawyer (“ICL”) had proposed on 23 February 2022 (as well as an additional twice weekly phone call with the child) on an interim basis, although the mother later withdrew any consent to these orders.
The father and the ICL both opposed the application for an adjournment. They sought to have the matter proceed undefended if the mother was not prepared to participate, contending that her refusal to attend and her adjournment application were typical of her behaviour more generally, and that it would not be in the best interests of the child for there to be any further delay. The father sought an arrangement whereby if the mother and the child did not relocate, he have sole parental responsibility and the child live with him but spend alternate weekends and one night every other week with the mother. In the event that the mother did relocate, the father’s proposed orders contemplated the mother having the child for half of the school holidays in Victoria. The ICL supported the orders proposed by the father.
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.
The father currently resides in Suburb F in Melbourne, and the mother in Suburb G in Melbourne. The father has a master’s degree and has completed a postgraduate course in management. He previously worked as the manager at a business located in Suburb H. In mid-2019 the father was promoted to a national role, and moved to Brisbane for this position. However, upon learning of the mother and child’s return to Melbourne, he requested a transfer and moved back to Melbourne. He left this position in late 2021.
The mother says that she is a qualified health professional in India, and since 2017 has had her own private practice in City E. However, she is not licensed to practise in Australia, and has never practised here. The mother has worked briefly in Australia in an administrative role, but has primarily been receiving Centrelink payments, both before and after the parties’ marriage. For periods where the child was in the mother’s care, the father was making child support payments on a monthly basis. The father says that during the marriage he paid for all expenses, including rent, groceries, utilities, medical expenses and the like.
The paternal grandmother also lives in Australia, having moved from India initially to help the mother during her pregnancy. The maternal grandmother also moved to Australia to assist with the child, but has since returned to India, her visa having expired. The maternal aunt also resides in Australia and is a permanent resident.
The father is in relatively good health, however during the periods where he was unable to see his son he has become depressed and has suffered from anxiety. Further, he has become increasingly depressed and anxious as a result of the proceedings. He has been consulting with a psychologist and a doctor to deal with the stress and anxiety he has been experiencing, and has been prescribed medication for this. The mother has asserted that she is in good health, although she admits to not having been in good mental health in the past, having suffered from stress, sleep deprivation and depression.
The child has developmental delays, especially in relation to his speech, as well as non-verbal Autism. However, he has seen doctors and psychologists in relation to this and is currently making good progress at school.
HISTORY OF PROCEEDINGS
On 20 December 2019 the father initiated proceedings in the Melbourne Registry of the Family Court of Australia seeking interim and final parenting orders, particularly that the parties be restrained from removing the child from Australia and that the child be placed on the airport watch list. These orders were sought because the father identified an immediate risk that the mother may again remove the child from Australia. On 2 March 2020 the father filed an Amended Initiating Application seeking equal shared parental responsibility for the child and a shared time arrangement.
The mother filed a Response to Initiating Application on 13 March 2020 seeking that the child live with her and that she be allowed to relocate to India with the child.
Thereafter the parties filed a series of amended initiating applications and responses seeking both interim and final orders, and on 1 July 2020 the Senior Registrar made interim orders that the parties be restrained from removing the child from Australia, and that the child’s name be placed on the airport watch list for two years.
As has been mentioned, on 2 September 2020 interim orders were made for the child to live with the father rather than the maternal aunt because the mother had returned to India. The reasons of the Senior Registrar suggest that the mother supported this arrangement, agreeing that this was in the child’s best interests if he could not relocate to India with her. The child then remained in the father’s sole care for some five months from this time.
The father ultimately sought sole parental responsibility for the child by reason of the mother’s abandonment of the child to return to India twice in 2020.
The matter was originally listed for final hearing on 6 September 2021, however this date was vacated in circumstances where the mother had taken the child to Western Australia. The matter was the subject of an unsuccessful judicial mediation before Macmillan J on 5 August 2021. As has been mentioned, it was necessary for the child to be recovered from the mother in Western Australia, and since December 2021 he has been in the sole care of the father.
The last complication to occur before trial was the mother’s unilateral withdrawal of her consent to enrol the child in school, after the parties had agreed to a primary school. In January 2022 the father was compelled to make an application to enrol the child in school, which was granted on 31 January 2022.
I observe finally that both the mother and the father have filed various notices of risk throughout the proceedings alleging family violence. Section 67Z reports have been prepared by what is now known as the Department of Families, Fairness and Housing (“DFFS” or “the Department”) on 9 April 2020, 2 December 2021 and 25 January 2022. The latest report notes that the Department intends to take no further action in relation to the matter, and that all allegations of family violence have been uncorroborated and unsubstantiated. The Department has taken the view that there is insufficient information to indicate that the child is at risk of significant harm from either parent, although unsurprisingly the report does note that the parents’ conflictual relationship and the child’s exposure to parental acrimony is such that there is a concern that the child may be at risk of emotional harm.
ADJOURNMENT APPLICATION
As has been mentioned, the mother chose not to attend Court on the morning of the trial. Through her counsel she sought interim orders broadly as proposed by the ICL on 23 February 2022, together with an indefinite adjournment of the trial. She did not propose any timetable to bring the matter to a new hearing date. The mother had earlier been informed by the Court that her safety concerns could be accommodated during the trial, and that Court security would be on hand. The relevant emails to and from the mother were tendered by the father at trial.
In the face of the opposition of the father and the ICL to this course, and noting the importance of the proper use of public funds where all parties were funded by legal aid, as well as the child’s need for finalisation of the acrimonious dispute between his parents, I dismissed the mother’s adjournment application in the following terms:
I propose to dismiss your client’s application, Ms Chia, for an adjournment. It will be apparent from what I have said in discussions this morning that this is a matter which has been listed for final hearing before the Court this morning for several months now. There have been numerous exchanges of emails between my chambers and either your client or your client’s solicitor, Mr Rothschild, in relation to the importance of [your client] attending here today. She has sought not to attend and been directed to attend. She has proffered reasons for her non-attendance concerning apprehended safety issues. The emails which have passed between my chambers and Mr Rothschild and/or your client have indicated to her that there is appropriate security in place in Court, and that she can be provided with access to the safe room if that would assist her. It would seem that she has decided that, notwithstanding all of that, she still wishes not to attend.
In all the circumstances, I accept the submissions that have been made by Mr Lethlean of counsel for the father and by Mr Gardiner of counsel on behalf of the ICL that this is a matter which cries out for final hearing. The parties have been seeking a final hearing over the course of the last 12 months in their appearances before me. The child has just started prep. It is highly desirable that the question of the appropriate parenting orders be dealt with, and dealt with on a final basis. It is important, having regard to the child’s best interests, that this occur because at the moment he finds himself in what is … an unseemly tug of war between his parents. This has most recently manifested itself in December of 2021 with him being left in the father’s care, and with the mother having no time with the child at all.
I am satisfied that it would not be in the interests of the administration of justice or the best interests of this child for the matter to be further adjourned, especially in circumstances where the mother has no substantive position to put in terms of when she would be prepared to appear to deal with this matter on a final basis. That seems to me to be a matter of some significance.
I should say also, for the purposes of my reasons for declining to grant this application for an adjournment, that I regard the circumstances in which the application has been made as high-handed on the part of the mother, and reflecting badly on her. Although I note, rather unsatisfactorily, that it is consistent with her past high-handed behaviour, which of course includes, shortly after orders were made by me for a shared care … arrangement, the mother deciding to de-camp to Western Australia, refusing to return until it was necessary for me to make orders to have the child forcibly returned to Melbourne.
So for those reasons, Ms Chia, your client’s application for an adjournment is dismissed.
APPLICATION TO PROCEED UNDEFENDED
Consequent upon the dismissal of the mother’s adjournment application the father and the ICL sought that the matter proceed undefended. They did so on essentially the same grounds advanced in opposition to the adjournment, noting that the mother had consistently failed to engage properly with the proceedings and comply with court orders and directions, and that the child had been living with the father and had not seen the mother since early December 2021.
Counsel for the mother informed the Court that she had instructions to resist the application made by the father and the ICL to proceed undefended, but she indicated that she could make no further submissions in support of the mother’s position.
In all the circumstances I accepted the submissions of the father and the ICL that the mother has failed to comply with the directions of the Court and that it would be appropriate for the matter to proceed undefended: see r 1.33(2)(c) of the Rules. The mother had been on notice of the final hearing and had not attended, despite being directed to do so, and she has routinely ignored court orders during the pendency of the matter. She was also on notice that the Court would entertain an application for the matter to proceed undefended in the event that she did not attend the trial. In my view it would have been entirely inappropriate and not in the best interests of the child for the matter to be subjected to any further delay in the face of the mother’s deliberate refusal to attend Court, and I am satisfied that the mother has been afforded procedural fairness.
I note also, and have regard to, the relevant observations of the Full Court of the Family Court of Australia in Tate JRD v Tate MT (2000) FLC 93-047 upholding the decision of the trial judge to strike out the husband’s response and refuse him the right to cross-examine the wife based upon what was described as a ‘continual delay; most of it due to the non-compliance of the husband as follows:
99. In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration” (State of Queensland v J.L. Holdings; supra) (original italics). But justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch v Maunz [2000] HCA 40 at paras 38-40). Case Management guidelines, principles and orders are designed to facilitate the ends of justice by encouraging: full frank and prompt disclosure; settlement; identification of the matters genuinely in dispute needing the Court’s determination; and the expeditious marshalling and presentation of relevant evidence.
…
107. The Court, no less than those who litigate before it, is constrained by the interplay of competing principles. In the attainment of justice in individual matters, which will always remain the paramount consideration, appropriate sanctions are essential to see that its orders and directions are obeyed in the pursuit of that end. Such a goal overrides any notions of punishment for disobedience of such orders.
108. Where, as here, non-compliance with the orders and directions of the Court will, in the opinion of the trial Judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings. Whilst such cases are “exceptional”, and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that a manipulation of the court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.
These observations resonate strongly in the present circumstances. What the High Court said subsequently in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 adds obvious force to them. The mother is a serial manipulator of court processes and she simply ignores orders which she does not like. In my judgment enough is enough. Both the father and the child are entitled to have this matter heard, and a final decision made.
Accordingly, I gave the father leave to proceed undefended in the following terms:
I am satisfied that in all the circumstances it is appropriate for the father to have leave to proceed undefended. I say so for substantially the same reasons that I was not prepared to accede to the mother’s application for an adjournment. The matter has been listed for today for several months. The mother has been informed. She has known that it has been listed for today. She has filed material. I have had regard to the material that she has filed. She has been directed to attend personally today. She has not attended personally today. The best interests of this child unquestionably demand that this matter be heard and determined and that final orders be made. That is what I will now do.
PROPOSALS OF THE PARTIES
The father and the ICL sought that final parenting orders be made substantially in the terms set out at the commencement of these reasons.
The mother was said to have consented to the orders proposed by the ICL in their Outline of Case filed 23 February 2022 on an interim basis, but through her counsel she later withdrew that consent. Her position in relation to the orders being sought by the father and ICL was that she opposed them, but as I understand it she did not proffer any alternative. The orders that she had sought in her Further Amended Response to Initiating Application filed 22 February 2022 were in the following terms:
1.
All previous parenting orders be discharged until final orders.That the Child live with the Mother.
2.Mother have sole parental responsibility of [the child] born on …2016.
3.
[The child] to live with mother in Perth on permanent basis & father to spend time with child as per the family consultant’s recommendations made on 01/07/2021 report.That the Airport Watch List Order by the Honourable Family Court dated 1 July 2020, on the Child is discharged.
4.That the child’s passport be renewed before 28 April 2022.
5.That the Applicant Father (“the Father”) spend time with the Child as follows:
a.Communicate over facetime once per week.
b.Meet the Child once per year during the school holidays, in India, until the Child turns 18 years old.
In any event, as the matter proceeded on an undefended basis the mother’s proposal for final orders, whatever it might be and whether it included relocation to India or to Western Australia, can be set to one side.
MATERIAL RELIED UPON
The father relied upon the following material:
(a)Child Inclusive Memorandum filed 21 August 2020;
(b)Family Report filed 1 July 2021;
(c)his affidavit filed 20 December 2021 and sworn 16 December 2021;
(d)affidavit of Ms J filed 20 December 2021 and sworn 15 December 2021;
(e)his further affidavit filed 10 February 2022 and sworn 9 February 2022; and
(f)his Outline of Case filed 21 February 2022.
The ICL relied upon the following material:
(a)Family Report filed 1 July 2021; and
(b)Outline of Case filed 23 February 2021.
Although it is strictly not relevant, the mother had indicated in her case outline filed 25 February 2022 that she relied on the following material:
(a)Outline of Case filed by the ICL on 23 February 2021;
(b)Further Amended Response to Final Orders filed 22 February 2022;
(c)her affidavit filed 14 February 2022 and sworn 14 February 2022;
(d)section 67Z Report filed by the DFFH;
(e)her Notice of Risk filed on 27 December 2021;
(f)her Notice of Risk filed on 20 September 2021;
(g)her affidavit filed 9 September 2021 and sworn 8 September 2021;
(h)Amended Response to Final Orders filed 2 August 2021;
(i)her affidavit filed 15 June 2021 and sworn 14 June 2021;
(j)Family Report filed 1 July 2021;
(k)her affidavit filed 31 August 2020 and sworn 31 August 2020;
(l)her affidavit filed 29 June 2020 and sworn 26 June 2020; and
(m)her affidavit filed 13 March 2020 and sworn 10 March 2020.
I observe, as will have been apparent, that in preparation for the trial, and in the expectation that the mother would attend, I had read and considered the mother’s material. I have formed the views I have formed about the orders to be made bearing that material in mind, albeit of course that by refusing to present herself for cross examination the mother’s various allegations about the father and her position more generally (whatever it is) can have no currency.
THE STATUTORY REGIME AND RELEVANT PRINCIPLES
Best Interests: Objects, Principles and Considerations
Part VII of the Family Law Act 1975 (Cth) (“the Act”) is concerned with children. It sets out the objects, principles and matters that must be considered when determining what parenting order is proper. In proceedings for a parenting order the Court may, subject to s 61DA (the presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Div 6 of Pt VII, make such parenting orders as it thinks proper: s 65D(1) of the Act.
A “parenting order” is defined in s 64B of the Act and may deal with matters including with whom a child is to live, the time a child is to spend with another person, and the allocation of parental responsibility for a child. The paramount consideration when making a parenting order is the best interests of the child or children the subject of the proceedings: s 60CA of the Act.
Section 60B(1) of the Act sets out the objects of Pt VII, which are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s 60B(2) of the Act. They are that, unless it would be contrary to the best interests of a child:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Ascertaining the best interests of a child by reference to the Act’s mandatory considerations must recognise that, as the High Court observed in CDJ v VAJ (1998) 197 CLR 172 at 219, [152]:
It is a mistake to think that there is always only one right answer to the question of what the best interest of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [1985] FLR 894 at 897-898, Lord Fraser of Tullybelton pointed out:
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.
Section 60CC(2) and (3) of the Act set out the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. Section 60CC(2)(a) provides that a primary consideration will be the benefit to the child of having a meaningful relationship with both of the child’s parents. However the effect of s 60CC(2A) is that the Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Family violence is defined in s 4AB(1) of the Act as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. Examples of this, as s 4AB(2) sets out, include an assault, a sexual assault or other sexually abusive behaviour, repeated derogatory taunts, and preventing a family member from making or keeping connections with his or her family, friends, or culture. Section 4AB(3) provides that for the purposes of the Act a child will be exposed to family violence if the child sees or hears family violence or otherwise experiences the effect of family violence. Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order.
When determining what is in the best interests of the child the relevance of the primary and additional considerations and the weight to be given to them will depend upon the particular circumstances of each case: Poisat & Poisat (2014) FLC 93-597 at [34]. As to the manner in which the court is to take those considerations into account, in Donnell & Dovey (2010) FLC 93-428 the Full Court said that the considerations may be seen as “…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion” (at [103]). In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed at [76]-[77] as follows:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Original emphasis)
As the High Court emphasised in U v U (2002) 211 CLR 238, the Court’s power in making a parenting order is to make orders it considers to be in a child’s best interests and it is not bound by the parties’ proposals (see Gummow and Callinan JJ at [80], with whom Gleeson CJ at [1], McHugh J at [44], and Hayne J at [169]-[171] agreed).
Parental Responsibility and Spend Time Arrangements
Subject to the Court making an order changing the statutory conferral of joint parental responsibility, s 61C of the Act provides that each of the parents of a child, who is not yet 18 years old, has parental responsibility for that child. There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, but that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child (or any other relevant child) or family violence. Further, the presumption may be rebutted where the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility: s 61DA of the Act.
It will be by reference to s 60CC of the Act that the Court will consider the best interests of the child in the context of determining parental responsibility. Findings about the best interests of the child, having regard to the s 60CC considerations, are required to be made in order to come to a conclusion as to whether the presumption in s 61DA, if it applies, is to be rebutted: see the discussion in Hardie & Capris [2010] FamCA 1046 at [60]-[61] (Murphy J).
Section 65DAC is concerned with the sharing of parental responsibility. Where a parenting order provides that there is to be a sharing of parental responsibility and the exercise of that parental responsibility will involve making a decision about major long-term issues in relation to the child, the order is taken to require the decision to be made jointly: s 65DAC(2) of the Act. Thus, the persons making the decision will need to consult one another in relation to the decision to be made, and make a genuine effort to come to a joint decision about that issue.
When the presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with both parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practicable for the child to spend “substantial and significant time” with each of the parents (s 65DAA(2)).
These principles have been the subject of careful examination in Goode & Goode (2006) FLC 93-286 (“Goode & Goode”) and MRR v GR (2010) 240 CLR 461. As the Full Court explained in Goode & Goode (at [72]), there is now a clear legislative intent in favour of substantial involvement of both parents in the lives of their children. This is so in relation to parental responsibility as well as to time spent with the children. Such principles are applicable in all parenting cases, including those in which a proposed relocation is in issue.
Principles in Parenting Proceedings Involving Allegations of Abuse
It is well settled that the central duty of the Court in parenting cases – which is to make orders in the best interests of the relevant child or children – and the mandatory process by which that duty is to be undertaken, does not change because allegations of abuse are made: M v M (1988) 166 CLR 69 at 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) (“M v M”); Donaghey & Donaghey (2011) 45 Fam LR 183 at [22] (Murphy J).
As the High Court observed in M v M at 76:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
How a trial judge is to assess disputed allegations of sexual and other abuse is a question which has occupied much judicial and academic attention. In Keane & Keane [2020] FamCA 99 at [63]-[78] (“Keane & Keane”) I analysed the existing state of the authorities and how the Court must discharge its obligation to assess the relevant evidence in order to determine whether there is an unacceptable risk of harm to the child: see also Blakey & Blakey [2020] FamCA 647 at [96] (Benjamin J); Blann & Kenny [2021] FamCA 322 at [22] (Macmillan J); Blann & Kenny [2021] FamCAFC 161 at [83]-[86] (Watts, Austin & Tree JJ); Boman & Boman [2022] FedCFamC1F 93 at [119] (Strum J). It is important to note that the approach to be adopted applies to all allegations of risk of harm, including family violence of the kind which the parties have alleged against one another in this case, including the emotional and psychological harm for which they say each other have been responsible. It is not confined to allegations of risk by reason of sexual abuse (see A v A (1998) FLC 92-800 at 84,994-84,995 (Fogarty, Kay and Brown JJ)).
Axiomatically, the fact finding exercise is conducted in accordance with the civil standard of proof as provided in s 140 of the Evidence Act 1995 (Cth). Importantly, s 140(2) reflects the factors mentioned by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and referred to in M v M at 76-77 as applicable in circumstances where an allegation is one of particular seriousness or the consequences flowing from a particular finding are grave.
Had the mother participated in the trial the principles set out in Keane & Keane would have been relevant in assessing her allegations of abuse. However, in circumstances where she has refused to participate her allegations against the father can be substantially disregarded. In any event, as I will explain, her allegations are entirely unparticularised and uncorroborated, and then have the appearance of being confected. In the face of the father’s vigorous denials of them and the absence of any corroborating material at all, I proceed on the basis that they are unfounded.
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.
Also concerning is the mother’s propensity to leave the child without warning for long periods. She has returned to India without the child on two occasions: in early to mid-2020, and again from mid to late 2020. The child was left with the maternal aunt in both instances, and at the second instance the father obtained orders that the child live with him. The mother’s actions in this regard seem far from child-focused.
In a similar vein, the mother failed to collect the child from the pick-up location in December 2021, as required by the interim parenting orders which were in place at the time. Her purported reason was that she had concerns for her safety when around the father. However the effect of this was to remove herself from her young son, again without warning.
It would now seem that the child has spent significant blocks of time with each parent, but without much, if any, exposure during these periods of time to the other parent. For the first three years of his life he lived solely with the mother and spent little to no time with the father. However he resided solely with the father for some five months in 2020, and then with the father again from December 2021 until the present time.
Such binary care arrangements, which I regard as a consequence of the mother’s conduct, must be regarded as highly unsatisfactory for the child. Although the Family Consultant’s report was prepared when the child was still in Perth with the mother, and so some of her recommendations are somewhat outdated, the following is relevant:
62. [The child] is a young boy who since his birth has been subject to a number of different care arrangements, including a number of primary carers. When children are not provided with stability and predictability, it can result in feelings of uncertainty, and potentially impact on their capacity to feel safe, and build trusting relationships. It is possible that this has been a burden for [the child] and has potentially affected his ability to feel settled, to deepen his relationships with the adults in his life, as well as potentially impacting upon his overall development. Should this high level of inconsistency and movement continue in [the child’s] life it will likely hinder his capacity and potential to thrive.
63. The number of changes that have occurred appear to be the result of adult centric decision-making. Throughout the material, and during the interviews, both of the parties appear to focus on the shortcomings of the other party, and the shortcomings of their parenting. This enduring pattern of high-conflict between [the father] and [the mother] has potentially resulted in a dynamic in which the parties’ relationship is the focal point of this matter, rather than the needs of [the child]. This has potentially blunted both parties’ insight into [the child’s] needs, hindering their capacity to make child informed decisions. This acrimonious co-parenting relationship could be the most damaging factor for [the child’s] well-being. Should this continue, and as [the child] develops a more sophisticated understanding of his family dynamic he could feel that his parents do not prioritise him above their own needs. This could affect his self-esteem and worth, as he grows older. Further to this, his parents’ relationship is one of [the child’s] primary examples of a relationship. How his parents interact with one another will teach [the child], and likely shape his views, understanding, and expectations of his own relationships. Without a positive example, [the child’s] social development, such as how he interacts with others, how he builds and maintains friendships, and how he manages conflict could be hindered.
…
65. Moreover, high-conflict dynamics can have a polarising effect on children, directly affecting their relationship with both of their parents. Should this level of conflict continue, [the child] will be at risk of being encouraged either actively or inadvertently to reject one parent above the other. This can happen as a result of a child seeking a positive relationship with both parents, however being exposed to such a high level of pressure and/ or coercion, that it is too difficult to maintain both relationships. Should this occur, it will place a significant burden on [the child], and potentially to the detriment of his relationship with both of his parents.
…
67. [The mother] relocated with [the child] to Western Australia in February, following the court making an order stipulating a shared care arrangement with both parties located in Melbourne. [The mother] advised that this was due to [the father] being abusive towards [the child] whilst in his care, the history of family violence being destabilising, and Melbourne being unfeasible in terms of cost of living. If the court is to accept this, [the mother] has potentially acted in a protective way, attempting to safeguard [the child] from further trauma. However, should this not be the case, this behaviour is highly obstructive, and demonstrates limited capacity to prioritise [the child’s] best interests, which could be viewed as a pattern of behaviour. Further to this, it raises worry that should an order be made that is reliant on [the child] moving between the parties, that a pattern of withholding [the child] would develop, placing him in an increasingly uncertain care arrangement.
These observations are highly concerning. They evidence a pattern of behaviour on the part of the mother, in particular, which is damaging to the child and to his ability to form healthy relationships with both his parents and their respective families. They may have implications also for his future development.
It must also be recognised that, so far, the child has not prospered in the shared care of both parents. The child has developmental delays and non-verbal Autism. It may be accepted that he requires a stable living and school environment in order to manage and perhaps overcome these difficulties. There is some evidence that since he has been in his father’s care since December 2021 things have improved. He is now making good progress at school and appears happy in the classroom.
However this has not always been the case. The Family Consultant noted that:
66. There has been inconsistent information provided regarding [the child’s] development and health needs. It is documented that [the child] has been referred to the [K Hospital] for specialist assessments. These appointments would require a referral from another health professional, and therefore in [the child’s] best interest to be supported to attend these. Should [the child] be assessed to have any special needs, it is imperative that all essential supports be implemented as soon as possible to assist him. Without formal assessments being completed, this is impossible, and places [the child] at a significant disadvantage. Clarity regarding what appointments [the child] has missed, and these being rescheduled needs to be done by the parties as a matter of urgency.
Having regard to these observations and the father’s evidence of the mother’s refusal to deal appropriately with the child’s learning difficulties, I am satisfied that the mother has been neglectful of the child in relation to these matters and that she has attempted to minimise or ignore the child’s developmental needs.
Then there is the family violence to which the mother has subjected the father and the child. She has stalked, intimidated and threatened the father, including in front of colleagues and in public at his place of employment, as well as in text messages. She has abused the father and the child, including by the use of offensive language.
More recently, the mother has neglected the child by not taking him to his medical appointments regarding his Autism disorder, and by preventing the child from attending school. Although the mother has alleged family violence perpetrated by the father, none of these allegations have been corroborated by any independent evidence and in the circumstances there would be no basis to accord them any weight.
The s 67Z Report of 25 January 2022 is dismissive of the various allegations made by the mother, and it notes that while it is important for the child to have a meaningful relationship with both parents, this is only when the relationship promotes the best interests of the child and their safety. The report concludes that in this instance the parents have a highly conflictual relationship and that any shared care arrangements may expose the child to parental acrimony.
Another troubling feature of the mother’s behaviour towards the child was her unilateral withdrawal of consent for him to be enrolled in primary school in January 2022. This was after the mother and father had agreed for the child to be enrolled for his preparatory year at a local primary school, completing and signing the enrolment form in late 2021. Apparently the mother withdrew her consent because she did not believe there was any benefit in the child attending one month of school in Victoria, in circumstances where she then said that she sought to relocate with the child either to Western Australia or India. The father was put to the trouble of obtaining further orders of this Court that he be allowed to enrol the child in primary school.
All things considered, I have no difficulty in accepting that the mother’s behaviour towards both the child and the father has been highly problematic. I am satisfied that her abandonment of the child at various times, her relocation with him to India and Western Australia without reference to the father, her consistent attempts to prevent the child having a relationship with his father, and her neglect of his developmental challenges, have caused psychological harm to the child and have constituted family violence within the meaning of that term in s 4AB of the Act. The mother’s refusal to attend for the trial and be cross examined is significant, and I infer that she could not have said anything by way of cogent explanation of her behaviour.
With these findings in mind I turn to the issues for determination which can most conveniently be canvassed in the context of the considerations prescribed by s 60CC of the Act.
THE BEST INTERESTS OF THE CHILD
Primary considerations: section 60CC(2)
Although there have been allegations of abuse, neglect and family violence made by both parties, I have only been able to accept that the mother has engaged in conduct of this kind. I do not consider that the father has been abusive or neglectful. Indeed, he would seem to be a decent, responsive, and competent parent. To this extent s 60CC(2)(b) of the Act is relevant, and requires that the child be protected from psychological harm in the form of subjection or exposure to abuse, neglect, or family violence. Self-evidently in all the circumstances, I have serious concerns about the mother’s behaviour towards the child and consider that his best interests now require that orders be made protecting him from further psychological harm at the hands of his mother. Any ongoing involvement by her in the child’s care should, in my assessment, be limited.
Although it is of course generally desirable that a child have a meaningful relationship with both parents, such a relationship must be important, significant, and valuable to the child: Mazorsi & Albright (2007) 37 Fam LR 518 at [26] (Brown J); and it is necessary to focus on the benefit to the child of the relationship: McCall & Clark (2009) FLC 93-405 at [122] (Bryant CJ, Faulks DCJ and Boland J).
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.
The balance of the orders agreed by the father and the ICL are ancillary in nature and of the usual kind. I accept that they are appropriate and in the child’s best interests. They provide for the mechanics of the child’s future care, and enable the mother to have some level of involvement, should she wish to do so. They also provide for the discharge of the ICL, which is now appropriate. The orders of the Court will be as set out at the commencement of these reasons.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 11 March 2022
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