Bhagat & Sandhu (No 3)

Case [2024] FedCFamC1F 301

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bhagat & Sandhu (No 3) [2024] FedCFamC1F 301

File number: SYC 806 of 2020
Judgment of: HARPER J
Date of judgment: 8 May 2024
Catchwords: FAMILY LAW – CHILDREN – Whether children should spend time with the father – Where children have not spent time with the father for three and half years – Where the children are progressing well in the sole and primary care of the mother – Where father seeks spend time with orders for both children as his primary position or alternatively the son alone spend time with him – Where mother seeks orders that the children spend no time with the father – Where children do not wish to spend time with the father – Where children’s views given weight – Where father believes himself to be the victim of an extensive conspiracy and some conduct of the mother has contributed to this perception – Court not persuaded collusive strategy or conspiracy established – Where father would likely use any time, including supervised time, with the children to continue unremitting denigration of the mother – Court satisfied that time with the father would expose the children to unacceptable risk of psychological harm – Where father seeks a paternity test – Orders made for the children to spend no time and have no contact with the father – Orders made for the parties to pay the costs of the Independent Children’s Lawyer equally.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60CC, 60CC(2A), 60CC(2), 60CC(3), 60CG, 61DA, 65DAB, 69W

Family Law Amendment Act2023 (Cth) s 25(1)
Cases cited:

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Bhagat & Sandhu [2023] FedCFamC1F 52

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Brianna & Brianna (2010) FLC 93-437; [2010] FamCAFC 97

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Fitzroy & Fitzroy [2009] FamCA 954

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230

M & S (2007) FLC 93-313; [2006] FamCA 1408

Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209

Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

TNL & CYT (2005) 33 Fam LR 167; [2005] FamCA 77

U v U (2002) 211 CLR 238; [2002] HCA 36

Wagstaff & Wagstaff (2022) FLC 94-098; [2022] FedCFamC1A 119
Division: Division 1 First Instance
Number of paragraphs: 151
Date of hearing: 29–30 November 2023, 1 December 2023 and 6 March 2024
Place: Sydney
Counsel for the Applicant: Mr Katsinas
Solicitor for the Applicant: First Choice Family Lawyers
Counsel for the Respondent: Mr Ladopoulos
Solicitor for the…

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AGLC
Bhagat & Sandhu (No 3) [2024] FedCFamC1F 301
Case
[2024] FedCFamC1F 301
Decision Date

CaseChat Overview and Summary

The case of Bhagat & Sandhu (No 3) involves a dispute between Mr Bhagat, the father, and Ms Sandhu, the mother, regarding the parenting arrangements for their two children, X and Y. The primary issue before the court was whether the children should spend time with their father, who had not had any contact with them for over three and a half years. The court was also tasked with deciding the appropriate parenting orders for the children, considering their well-being and the views of the Independent Children's Lawyer (ICL). The father sought orders for both children to spend time with him, either as his primary position or alternatively for the son alone to spend time with him. In contrast, the mother sought orders that the children spend no time with the father. The children themselves expressed a clear desire not to spend time with their father. Additionally, the father believed he was the victim of a conspiracy and some conduct of the mother had contributed to this perception. The court was required to weigh these factors against the statutory considerations outlined in the Family Law Act 1975 (Cth).

The court found that while the father's belief in a conspiracy was not substantiated, the children's strong opposition to spending time with him, coupled with the father's likelihood to use any contact to denigrate the mother, posed a significant risk to the children's psychological well-being. The court concluded that any contact with the father would expose the children to unacceptable risk of psychological harm, and thus, the children should not spend time with him. Furthermore, the court was not persuaded that there was a collusive strategy or conspiracy, as claimed by the father. The court determined that the children's views were appropriately given significant weight given their ages and the circumstances of the case. Consequently, the court ordered that the children were not to spend time with the father and were not to have any contact with him. The court also ordered that the parties were to share the costs of the Independent Children's Lawyer equally.

The court's decision was grounded in the primary considerations under section 60CC(2) of the Family Law Act 1975 (Cth), which require the court to give greater weight to protecting the child from physical or psychological harm. The court found that the father's conduct and the children's strong negative views towards him made it difficult to conceive of orders that would ensure a meaningful relationship between the father and the children. The court was particularly concerned about the potential for the father to use any contact time to continue denigrating the mother, which would be detrimental to the children. In light of these considerations, the court discharged all previous parenting orders and made new orders that the children live with the mother, who was granted sole parental responsibility. The court also permitted the mother to travel outside Australia with the children, with specific provisions regarding the children's passports and identification documents. The father was restrained from making any application for Australian passports or travel-related documents for the children.

Orders

Orders of the court

SYC 806 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BHAGAT

Applicant

AND:

MS SANDHU

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARPER J

DATE OF ORDER:

8 MAY 2024

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The Respondent Mother (“the mother”) have sole parental responsibility for X born 2008 and Y born 2012 (“the children”).

3. The children live with the mother.

4. The Applicant Father (“the father”) is not to spend time with the children and is to have no contact with the children.

Travel

5. Pursuant to s 65Y of the Family Law Act 1975 (Cth) (“the Act”) the mother shall be permitted to travel outside of the Commonwealth of Australia with the children.

6. Any requirement for the signature or consent of the father be dispensed with and the mother is at liberty to do all acts and sign all documents as is necessary, pursuant to s 11(b) of the Australian Passports Act 2005 (Cth) to procure a valid Australian travel document for the children, X born 2008 and Y born 2012, without the signature or consent of the father, including that the mother is authorised to sign all document on behalf of the father.

7. The children’s passports are to be retained by the mother.

8. By no later than 14 days from the date of these orders, the father must do all things necessary to deliver the children’s and the mother’s Country D Identification Cards to the mother’s solicitor’s office.

9. In the event the children’s Country D Identification Cards are lost or otherwise expired, within 21 days of written request from the mother’s solicitor, the father must do all things and sign all documents necessary to cause the children to be issued with valid Country D Identification Cards.

10. The father is restrained from making an application for an Australian passport or travel‑related document for the children.

11. The Court requests that the Australian Federal Police remove the names of the children, X born 2008 and Y born 2012 from the Family Law Airport Watchlist in force at all points of arrival and departure by air or sea in the Commonwealth of Australia.

Other

12. The Independent Children’s Lawyer be discharged.

13. By no later than 28 days from the date of these orders, the parties each pay half of the costs of the Independent Children’s Lawyer to the Legal Aid Commission NSW noting that the total cost of the Independent Children’s Lawyer is $9,045 inclusive of GST.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

On 23 October 2023, when the proceedings were first listed before me for a Case Management Hearing, I ordered that the parenting issues be determined separately before any financial issues. Accordingly, this judgment determines only the parenting issues.BRIEF BACKGROUND The father is 48 and the mother is 42 years old. The parties were married in 2005 in Country D. The parties moved to the United Kingdom in 2007, with the company which employed them both at the time. The mother fell pregnant with X shortly after the move. The parties returned to Country D in 2009, then relocated to Australia in 2010. They separated on a final basis in February 2020. The children have lived with the mother since separation. They have not spent time with the father since late 2020, other than during interviews for a Family Report in March 2021.RELEVANT PROCEDURAL HISTORY The father commenced proceedings on 7 February 2020 by way of Initiating Application. Orders were made placing the children on Family Law Airport Watchlist (“the Airport Watchlist”) at that time. An Independent Children’s Lawyer (“the ICL”) was appointed on 13 February 2020. The father filed an Amended Initiating Application on 24 March 2020 and the matter was transferred to the Family Court of Australia (as it then was). On 2 February 2021, consent orders were made appointing Dr E as the Single Expert Witness. Pursuant to the orders of the Court and the parties’ instructions, Dr E prepared a Family Report which was released to them on 12 April 2021. Orders were made on 10 August 2021 requiring the parties to attend a mediation organised by Legal Aid with respect to the parenting issues. The parties attended mediation on 20 October 2021 and reached an interim agreement. Consent orders were made on 25 October 2021 which provided that the children would live with the mother, X would spend time with the father in accordance with her wishes and Y was to spend supervised time with the father. The parties were to arrange and undertake family therapy at F Family Services. The Court noted, by consent, that the orders were less liberal than the time recommended by Dr E but were agreed to by the father to enable time to commence in the first instance. The Court also noted that the parties envisaged the orders to be in force for approximately three months with a view to the matter being re-listed shortly thereafter for interim determination. On 9 June 2022, Henderson J made orders that a copy of Dr E’s report be provided to the Family Therapist, Dr C. On 12 August 2022, the father filed a Notice of Child Abuse, Family Violence or Risk, a supporting affidavit and a case summary document, which contended that the children were at significant risk of harm due the mother’s poor mental health and their alleged exposure to family violence perpetrated by the mother’s new partners. No accompanying Application in a Proceeding was filed. On 19 September 2022, Henderson J made an order, among other orders, pursuant to s 102NA(1) of the Act, prohibiting either party from personally cross-examining the other, having regard to the serious allegations of family violence purportedly perpetrated by the father upon the mother and X.

Evidence

Evidence Before The Court

The parenting issues were therefore narrowed to the following:(a)Whether the mother should be required to seek the father’s input on the choice of schooling for the children;(b)Whether X should be ordered to spend any time with the father, or simply spend time with him in accordance with her wishes;(c)Whether any orders should be made for Y to spend time with the father, and if so, whether such time should progress to overnight, block holiday time and special occasions;(d)Whether the mother should be permitted to relocate; and(e)Whether the mother should be permitted to travel outside Australia with the children.EXPERT EVIDENCE The Family Report, marked Exhibit “8”, and dated 7 April 2021, was based, as described by Dr E, on the material filed by the parties so far in the proceedings, the Child Dispute Conference Memorandum, some documents produced under subpoena and the interviews conducted, as set out at the commencement of his report. I will refer to the content of the Family Report as necessary during the course of these reasons. The ICL also tendered two reports of Ms B, Registered Psychologist, dated 8 February 2022 and 10 November 2023 (Exhibit 3). Ms B had regular consultations with the children. She was not cross-examined.Family Report Recommendations Dr E made recommendations at paragraph 252 of the Family Report as follows:1.Sole parental responsibility for the mother.2.For the children to remain in the mother’s primary residence.3.For [X’s] wish to have no further contact with her father and paternal family to be accepted with no orders made for her.4.For regular unsupervised contact to be established for [Y]. Initially, this should be day-only contact one day each weekend. After three months, this could be expanded to contact for day-only contact on alternate weekends for Saturday and Sunday. After a further three months, this could be expanded to full weekend including overnight contact. After a further six months, this could be extended to pick-up after school on Friday and return to school on Monday morning. Such arrangements should be contingent upon the father’s ability to be available during these hours. It was noted that to date he had not been available on a consistent basis to transport the children to and from school. 5.The following arrangements should be contingent upon the undertaking of both parents to ensure that there is no denigration of the other parent or members of their extended family.6.The children would benefit from attending psychological intervention with an experienced Child, Adolescent and Family Therapist. The referral could be made by the local GP to enable this to be supported by Medicare. Ideally, this should involve the participation of both parents. That said, [X] was identified to have specific needs for confidential therapy to work through her exposure to family conflict and related violence.7.The children should attend a single general practice. Both parents should be informed of relevant specialist referrals. 8.It would be beneficial for the children to remain in their current school placements. It should be recognised that they have already been exposed to repeated experiences of separation and loss. This will be amplified by further changes of area and school placement.

Decision

Reasons for decision

I consider that there should otherwise be no order as to costs.CONCLUSION For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.

Ratio Decidendi

Legal Principle Established

I turn then to the best interests of the children.PRIMARY CONSIDERATIONS In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act, which 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. In applying these considerations, the Court is to give greater weight to the consideration in subsection 2(b) (See s 60CC(2A) of the Act).Section 60CC(2)(a), the benefit to the children of having a meaningful relationship with both parents The Full Court of the Family Court of Australia in Sigley v Evor (2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):(a)A “meaningful relationship” is one which is “important, significant and valuable to the child” (Mazorski v Albright (2007) 37 Fam LR 518; McCall & Clark (2009) FLC 93-405 (“McCall”)); (b)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents” (McCall at [118]–[119]); and(c)The legislation aspires to promote a meaningful relationship, not an optimal relationship (M & S (2007) FLC 93-313; Godfrey & Sanders (2007) 208 FLR 287; Champness & Hanson (2009) FLC 93-407). There was no dispute the children’s relationship with their mother is important, significant and valuable and this should continue into the future. In light of the fact they have spent no time with him since August 2020, the evidence suggests neither child presently has any positive relationship with the father. A central question, therefore, is what benefit either child would receive from a meaningful relationship with him, and whether any orders of this Court could properly create the framework to allow such a relationship to grow. The father’s view was clear that all children need a father in their lives. Generally speaking, any child benefits from a relationship with a parent if it is “important, significant and valuable”. But in the circumstances of this case, as these reasons will make clear, it is difficult to conceive of orders which would ensure such a relationship with the father. Both children are strongly negative about the father and spending time with him. I have considered the position of each separately as well as jointly in this regard. In light of her age and views, and the conclusions I reach below under s 60CC(2)(b), I cannot see any prospect of X forming a fresh relationship with her father which is meaningful, unless she initiates contact and seeks such a relationship herself. It is worth emphasising here that the interim regime which has been in place since 10 August 2021 is for X to spend time with the father in accordance with her wishes. She is now 16 years old. This reality militates against orders which would compel her to spend time with the father against her wishes.