Bhargava & Jani

[2021] FCCA 1932

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bhargava & Jani [2021] FCCA 1932

File number(s):	DGC 4317 of 2018
Judgment of:	JUDGE BLAKE
Date of judgment:	4 August 2021
Catchwords:	FAMILY LAW – parenting – application by father for spend time arrangements with child – child estranged from father for significant period of time – child resisting to spend time with father – child alienated from father by mother – in child’s best interests to develop a meaningful relationship with father – interim orders – child spend time with father on a graduated basis – court to assess at a later date whether such time has occurred
Legislation:	Family Law Act 1975 (Cth), ss 60CA, 60CC
Number of paragraphs:	43
Date of hearing:	2 August 2021
Place:	Dandenong
Advocate for the Applicant:	In person
Solicitor for the Applicant:	None
Solicitor Advocate for the Respondent:	Mr Warraich
Solicitor for the Respondent:	Huk Legal Services Pty Ltd
Independent Children’s Lawyer	McCormack & Co

ORDERS

DGC 4317 of 2018

BETWEEN:

MR BHARGAVA

Applicant

AND:

MS JANI

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	4 AUGUST 2021

THE COURT ORDERS THAT:

1.The matter be adjourned to 26 November 2021 at 10am for Mention at the Federal Circuit Court of Australia in Dandenong.

2.All previous parenting orders be discharged.

3.The child, X born in 2011 (‘the child’) live with the Mother.

4.The Father spend time with the child for 2 hours each month commencing in September 2021, at a time nominated by Ms C, or if Ms C is not available, another professional nominated by the ICL (the ‘Consultant’).

5.On the first three occasions that the Father spends time with the child, such time is to take place in the presence of the Consultant who is to facilitate the reintroduction of time between the Father and the child. The Father is to take all steps necessary to engage the Consultant for this purpose prior to time commencing in September 2021 and is to pay the costs of the Consultant. 

6.The Mother must deliver the child to the place and at the time nominated by the Consultant. The Mother must immediately leave the area after delivering the child to the Consultant.

7.The Father is permitted to:

(a)communicate with any school or education related provider for information regarding the child; and

(b)receive any information or reports from a school or education related provider relating to the child that would usually be provided to parents;

(c)in respect of the child, attend and participate in any activities conducted by a school or education provider that parents are ordinarily able to participate in

and these orders may be produced as evidence of such authority.

8.The Father is entitled to have direct contact with child’s medical practitioners and other professional service providers to the child, and to receive information about the child from such providers upon his request, and these orders may be produced as evidence of such authority.

9.For the purposes of orders 7 and 8 above the Mother must within 48 hours of the date of these orders, notify the Father in writing of the following in relation to the child:

(a)The name of the school the child attends, the name and contact details of the principal of the school and the name and contact details for the child’s teacher;

(b)The name of any organisation that that child attends to participate in activities, and the name and contact details of any coach or instructor; 

(c)The name of the medical centre the child attends,  the name of the general practitioner the child usually attends and the contact details for the medical centre and the practitioner;

(d)The name and contact details for any organisation and practitioner the child has attended upon in the last 18 months for her physical, emotional or mental health.

10.The Mother must notify the Father in writing of any change to the child’s school, education and activity providers or health practitioners within 24 hours of making any change, and must provide the Father with the following:

(a)The name of the organisation providing the new service;

(b)The name of the teacher, practitioner, doctor, health professional, coach or other person that is working with the child;

(c)All contact details for the persons or organisations referred to in (a) and (b) above.  

11.Orders 3 to 10 apply until further order of the Court.

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 under the pseudonym Bhargava & Jani is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

DELIVERED EX TEMPORE, REVISED FROM THE TRANSCRIPT

1. This is an application made by the father for parenting orders.  The parenting orders concern X, born in 2011 (‘X’).  The orders sought by the father, among other things, are that he be able to spend two hours during one weekend, in every four weekends, with X.  Those orders are supported by Mr D, the family report writer, who prepared the family report dated 16 July 2021. 

2. The mother's position, in relation to the father spending time with X, has shifted throughout the proceedings.  In her response dated 9 April 2019 she proposed orders which would have seen the father spend more time with X than what he is currently asking for.  She then entered the trial apparently opposing any order for the father to spend time with X.  During the course of the hearing her representative indicated she was willing to permit the father to spend supervised time with X.  Under cross-examination, she effectively stated that she would do whatever the Court ordered.  At the conclusion of the hearing, her position was no clearer.

   BACKGROUND FACTS

3. The following background facts can be taken from the parties' affidavits. 

4. The father was born in India in 1979.  The mother was born in India in 1980.  The parties apparently met each other while at school. 

5. At some point, the parties separately migrated to Australia and reconnected.  They were married in 2006. 

6. X was born in 2011. 

7. The parties separated in or around June or July 2016, when the father moved out of the home.

8. The father did not have any contact with X for several months after separation.

9. The father says that from November 2016, the mother allowed him to spend approximately 1.5 hours with X at the former matrimonial home.  He says that he saw the child for four or five Sundays, after which the mother stopped contact.  There does not seem to be any dispute that the mother did indeed stop contact.

10. Subsequent to this, the father claims that the mother agreed to allow him to spend time with X on Mondays between 6 pm and 8 pm.  He deposes to various difficulties with this time, and further deposes that it came to an end in around March 2017 when the mother stopped time again.  It does not appear to be in dispute that the mother stopped time on this occasion.

11. The father's evidence is that in early February 2018, he contacted a family relationship centre in Suburb E to commence the process of negotiating a parenting plan with the mother.  The father deposes that following this, on 30 May 2018, the mother allowed him to spend four consecutive Saturdays with X from 3 pm to 5 pm.  He says that he developed a bond with X during this time at which the mother was not present.  The father deposes that when he sought additional time with X at a second meeting at the family relationship centre in Suburb E, the mother subsequently terminated all time with the child.  Again, that the mother ended the time between the father and X on that occasion, does not seem to be in issue. 

12. The father last saw X on 22 September 2018.

    THE EVIDENCE

13. The father relied on his affidavits filed on 24 December 2018 and 21 July 2021.  He was cross-examined about the content of those affidavits by the independent children's lawyer.  The father also called one of his relatives, Mr F, to give evidence.

14. The mother relied on affidavits filed on 8 April 2019, 14 August 2020 and 28 July 2021.  She also was cross-examined by the independent children's lawyer. 

15. The independent children's lawyer relied on the family report and also the affidavit of Ms C dated 11 August 2020.  Neither Mr D nor Ms C were required for cross-examination.  No party objected to the family report or the affidavit of Ms C being placed into evidence.

    The evidence of the parents

16. In addition to the matters that I have referred to above, the father gave evidence, among other things, that: 

    (a)he did not see X in the months following separation because he was upset, stressed, isolated and living with others;

    (b)when he had been permitted to spend time with X, as noted earlier, that time had progressed well and he had formed a bond with X;

    (c)he paid for four private supervised sessions with X in 2019 after the commencement of proceedings in the Court, but that none of the sessions took place because X did not want to see him;

    (d)he had completed the Smart Moves course through G Family Centre in Suburb H in 2019;

    (e)the therapeutic counselling conducted by Ms C, that he paid for, could not proceed after the mother informed Ms C that X was not coping; and

    (f)the phone calls ordered by the Court to take place between the father and X have not assisted in the development of the relationship between him and X, because X chooses not to talk to him.

17. The mother's evidence may be summarised as follows: 

    (a)she has been X's primary carer;

    (b)the father did not have a relationship with X while the parties were married, and took minimal interest in her;

    (c)the father failed to contact X for a period of eight months after separation;

    (d)the father has been inconsistent in his attempts to see X and develop a relationship with her;

    (e)in March 2015, the father picked X up from school. X did not wish to come with him. On return to the home, the father flew into a rage and slapped X with his hands on her face, back and legs;

    (f)prior to the parties building their house in Suburb J, the father slapped the mother during an argument about money and called her, among other things, a "slut";

    (g)that in March 2018, the parties had an argument about jewellery during which time the father pushed her in the bedroom;

    (h)that it was X's unwillingness to spend time with the father that resulted in the cessation of the involvement of Ms C;

    (i)that X is unwilling to spend time with the father, and this is X's independent decision and opinion;

    (j)that X's GP has diagnosed with her generalised anxiety and panic disorders;

    (k)she dislikes the father because of what he did to her and X;

    (l)she does not know of any family or friends that would be able to facilitate a meeting between X and the father for two hours each month as suggested by Mr D;

    (m)if there is to be time between the father and X, that time needs to be supervised for X's safety;

    (n)that she has done all she can to encourage X to see her father and wants X to have a relationship with him; and

    (o)that she is concerned about X's health and wellbeing.

    The evidence of Ms C

18. Ms C prepared a Therapeutic Counselling Report (‘report’) for the Court, during the interlocutory proceedings in this matter that was filed on 11 August 2020.  Ms C is a psychologist and a Regulation 7 family consultant at the time the report was prepared.  In that report, Ms C stated the following: 

    (a)that the father presented as thoughtful and child focused, as well as calm, rational and coherent;

    (b)that the mother presented as hostile and negative about the father;

    (c)that X spoke only negatively about her father and did not want to see him;

    (d)that X was aware that her parents were not friendly towards each other;

    (e)noted the father's comment that when he had spent time with X in the past, X had expressed concerns that she would get into trouble from the mother because she was enjoying herself;

    (f)that the mother presented with fixed views and

    (g)gave the following opinion and recommendations:

    16Mr Bhargava presents as capable of providing competent caregiving.  On the basis of the information provided and my observations, Mr Bhargava does not present as a protective risk in any caregiving that he might provide for his child X.

    17While Ms Jani also presents as a capable caregiver to X, her attitude towards Mr Bhargava presents with the potential to be alienating and unsupportive of any meaningful relationship that X might have with her father.

    18Ms Jani demonstrates limited insight into understanding the impact on a child’s long-term development of such attitudes and presents herself as the only competent caregiver for X. 

    19Ms Jani’s hatred towards Mr Bhargava has impacted on X’s potential to manage a healthy relationship with both parents, a primary goal for children when parents separate.  Ms Jani’s capacity to resolve this emotional stalemate for herself in the context of a therapeutic counselling approach, and thereby free X psychologically to pursue a healthy relationship with her father, is doubtful.

    20With regard to Mr Bhargava, he will need considerable emotional and psychological support to manage inevitable and ongoing grief about the loss of his relationship with X. 

    21With regard to X, she too will need considerable psychological support independent of Ms Jani, to address the ongoing effects of estrangement from her father. 

    22Any orders made by the Court should reflect a need for X to have an ongoing relationship with her father, Mr Bhargava.

    23X attends individual counselling with a professional who appreciates the context of high-conflict parenting, parental separation, and alienation.  Such a professional might be Ms K or Ms L. 

    24       Mr Bhargava attends independent supportive counselling if he deems necessary. 

    The family report

19. Mr D prepared the family report.  He was not called for cross-examination.  In his report Mr D:

    (a)observes that the mother and the father had no communication about X;

    (b)stated X made it clear she did not wish to see her father;

    (c)stated that X does not have any contact with the paternal extended family;

    (d)states that "X has developed an entrenched position that she does not want to spend any time with her father and that X's position is supported by her mother who claims she has been advised by various professionals not to force X to see her father.";

    (e)states "that it is unlikely that X has retained feelings of anxiety about contact with her father for so long when the incident she states where her father hit her because she didn't go with him from school was minor and out of frustration.  Prior to that incident, which occurred after separation approximately four years ago, X was exposed to conflict between her parents whose relationship ended five years ago.";

    (f)states that it is more likely that X is supporting her mother's view that the father is a bad person, and she does not want to upset her mother by getting to know him;

    (g)states that the phone calls have not assisted in the development of a relationship between X and her father; 

    (h)recommends that X should have monthly contact with her father in a public setting such as a shopping centre or McDonalds for two hours so that she can form a view of him independent of her mother's view.  The mother should arrange for a family friend with whom X is comfortable to take her and return her; and

    (i)recommends that X spend two hours during one weekend in every four weekends with the father, the father have direct contact with X's school, and that he participate in school activities for parents, that the father have direct contact with X's medical practitioner to review the information on her health, and that phone calls between X and her father cease.

20. The father was unrepresented in the proceeding before me.  I formed the impression that he was genuine about wanting to see his daughter.  His evidence was credible and straightforward, and he was genuinely aggrieved at being excluded from his daughter's life.

21. As I have noted above, the mother did not clearly articulate or set out what orders she wanted from these proceedings, despite being given various opportunities to do so.  Her evidence in the witness box was inconsistent.  Her manner in the witness box was combative.  I formed the view that many of the explanations given by the mother of her behaviour or X's behaviour were not credible and cannot be believed.  In my view, the mother's evidence suffered from the defects I have mentioned above because she cannot bring herself to articulate to the Court her genuine position. That position, in my view and having heard all the evidence and observed the parties, is that she does not want X to have any relationship with her father and that she has actively undermined X's ability to develop any genuine relationship with her father. 

22. Both Mr D and Ms C were not required for cross-examination.  I accept the entirety of their evidence.  I particularly accept and agree with the observations made by each of Mr D and Ms C about the mother, her attitudes and behaviours, and the reasons why X, who is aged only 10, refuses to see her father. 

23. The mother in her evidence made three specific allegations of family violence against the father which I have outlined above.  They are the allegations that he hit X after picking her up from school in March 2015, that he slapped the mother during an argument, and that he pushed her in the bedroom in March 2018.  Family violence is a scourge on our society, and any allegation of family violence must be taken seriously by the court.  In this matter I have examined the mother's allegations closely and also the relevant evidence.  I do not accept that the father engaged in any of the family violence as alleged for the following reasons.  First, for the reasons articulated earlier, I do not regard the mother as a credible witness.  I do not believe her accounts having seen her in the witness box.  I accept the father's evidence that the family violence alleged by the mother did not occur.

24. Second, while the mother deposes to extreme fear of the father now, she has not produced any independent medical evidence to the Court that supports the extreme fear or anxiety she claims to suffer from. 

25. Third, while the mother claims to significantly fear the father now such as to seek orders that any time he spends with X be supervised, the position was very different when she filed her response.  That response, filed over two years ago, contemplated the father spending regular time with X.  At the time that proposal was made by the mother, the alleged family violence incidents had occurred more recently. Nothing has occurred since the mother put her position in her response, however her fear has purportedly increased to the point where she does not want X, on one view, to spend any time with the father.  She could not explain that position when I asked her to.

26. In the present matter, when regard is had to all of the evidence, I find the father does not pose any risk to X. 

    WHAT IS IN X’S BEST INTERESTS?

27. The Family Law Act 1975 (‘Act’) sets out the matters that the Court must have regard to in making a parenting order. Section 60CA of the Act provides, in deciding whether to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration. Section 60CC of the Act then sets out those matters that the Court must have regard to when ascertaining what is in the children's best interests.

1. The primary considerations in relation to what is in the children's best interests are set out in section 60CC(2) of the Act. Subsection 2(a) provides that a primary consideration is the benefit to the child of having a meaningful relationship with both of the child's parents. Subsection 2(b) provides that a primary consideration is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. By subsection 2(a), the Court is to give greater weight to the considerations set out in subsection 2(b).

2. Finally, Section 60CC(3) sets out the additional considerations that the Court must have regard to in considering a child's best interests. I turn now to consider the above principles in the contexts of the present matter.

3. This is one of those difficult cases that arise from time to time.  I find that the mother has alienated X from the father.  I find that X likely experiences distress at the thought of seeing her father. The risk to X does not arise because of anything the father has done. It arises from the mother's actions in alienating the father from X and the risk that poses to X's wellbeing because of the distress X suffers at the thought of seeing her father. 

4. The Court is required to balance the risk above with the other considerations set out in the Act, and in particular the requirement that X have the opportunity to have the benefit of a meaningful relationship with her father. The Court, of course, recognises that where these competing considerations conflict, the Court is to give greater weight to the need to protect the child from harm as contemplated by Section 60CC(2)(b).

5. In proceeding to weigh what is in X's best interests, two important facts need to be considered and weighed. First, I have little confidence that the mother, even after considering these reasons, will change her views and support X having a relationship with the father.  Accordingly, any orders that I might need to make need to take account of the very realistic possibility that the mother will continue to actively undermine attempts by the Court to give X the opportunity to have a relationship with her father.  Second, X is 10 years old.  She is rapidly approaching an age where, like many adolescents, she will want to do her own thing.  In that context, given X's age, this may well be the last occasion on which the Court will be able to make orders which facilitate a relationship between father and daughter. 

6. I accept that the mother has been the primary carer of X. There seems little doubt that she has adequately cared for X's physical needs.  I am satisfied, however, that she lacks the capacity as a parent to adequately care for X's emotional needs when it comes to fostering any relationship with the father.  The mother is, in my view, completely blind to the importance to X now, and in the future, of the father having a functioning relationship with X.

7. Insofar as the father's capacity and attitude to parenting is concerned, I rely on and adopt the observations of Ms C and I also rely on my own observations of him and his capacities.  He appears child-focused and competent, and I am satisfied he has X's best interest at heart. 

8. The mother sought to make much of the fact that it is X who independently does not wish to see her father.  I understood the mother's position to be that I should give great weight to X's wishes.  I am unable to do so in the present case.  X is only 10 years old.  She last saw her father almost three years ago.  Any views she has of her father can only come from her mother given those circumstances.

9. The mother's case was, in part, that the father had not been an active and engaged parent with X during the relationship and prior to separation.  The mother was not challenged on this point, and I accept her evidence.  It is, however, a matter which I give little weight to.  On all the evidence, the father has tried extensively to build a relationship with his daughter for the last three years in order to be active and engaged in her life.  His failure to fulfil his parental obligations did not arise because of any failure on his part.  It has arisen because of a deliberate decision made by the mother to remove him from X's life. 

10. I am required to consider the effect on X of any change in the present circumstances.  X has not seen her father for three years.  I have no doubt that ordering time between X and the father will cause X some distress.  That distress might be added to by X being separated from her mother for the duration of any time she spends with her father.  These are matters I take into account.  Against that, however, the following must be weighed.  First, if an order for X to spend time with the father is not made now, she may lose the opportunity to develop a meaningful relationship with him in the future.  Second, the independent children's lawyer submitted, and I accept, that the extent of any distress experienced by X might be able to be diminished somewhat if any time that is ordered occurs initially with the involvement of a professional such as Ms C.  Third, in all of this it needs to be remembered that the time sought by the father and recommended by Mr D is not extensive.  It effectively amounts to around two hours a month.  While X may experience distress in the lead up to or during any time with her father, that distress will not occur regularly.  Time is not being ordered every week.  Nor will it occur for a long time.  I pause to observe that there is not any independent medical evidence on affidavit as to the extent of any distress or harm X may suffer if I was to make an order for the father to spend time with X in the terms recommended by Mr D.

11. The difficulty or expense associated with X spending time with her father needs to briefly be considered.  The difficulty, insofar as one exists in this case, arises not because of any geographical or distance restraint, but from the mother's attitude which I have already commented on.  Insofar as expense is concerned, if a professional like Ms C is to be engaged in the initial stages that any spend time with the father takes place, it is likely to come at a cost.  Ultimately, given the mother's attitude, it is a cost the father will need to bear.  In cross-examination he indicated that he could reluctantly bear that cost.  I apprehend from his answer that, while it may cause him some financial difficulty, he is prepared to do it.

12. One matter that requires comment and consideration is the need to try and finalise this litigation, which has been in this court for some time now.  An order that the father spend no time with X would, it seems to me, finalise matters. 

13. During closing submissions, the independent children’s lawyer submitted that, even though the matter had been listed for final hearing and the making of final orders, the Court should give consideration to making interim orders.  It was submitted that interim orders would be appropriate, given the attitude of the mother in the circumstances of this case.  It was submitted that the Court should be involved in assessing whether the mother complies with the orders and how time with the father progresses. Plainly, if I were to adopt this course, it would result in the litigation being prolonged.  Matters would not be finalised.  Litigation would continue to be a stress on the parents and, in particular, the mother, who is the primary carer of X.  The Court should rightly be cautious of making orders that unnecessarily prolong parenting litigation when that litigation may - and I stress may, because there is no evidence about this - affect the wellbeing of the primary carer of the child.

    DISPOSITION

14. When all of these matters are weighed, I am of the view that it is in X's best interests that I make an order that she spend time with the father in accordance with the recommendations made by Mr D.  The only qualification I would make to that statement is that I accept the submission of the independent children's lawyer that time should initially take place with Ms C in attendance for the first few visits.  That is necessary, unfortunately, given the mother's position that there is no one that she knows that could take X to visit her father.  The benefit of having Ms C in attendance, of course, is that a professional will be on hand to deal with any anxiety X may experience in the initial stages.  Apart from that qualification, I am also inclined to make the other orders recommended by Mr D, but to make them very specific. 

15. I have also, somewhat reluctantly, agreed to accept the submission of the independent children’s lawyer that the orders I make be interim orders of the Court and that the matter return to Court three months from now so the Court can assess the situation as it unfolds. 

16. The mother does not seem to appreciate or understand the harm that she has inflicted and is continuing to inflict on X by alienating X from her father.  It is inevitable that children grow into adults.  It is not beyond the realms of possibility in a case such as this that if matters do not improve that at some point in the future when X is an adult, she will turn to her mother and hold her accountable for her actions.  At that time, the mother's relationship with X might well be irretrievably poisoned and damaged.  What will make matters worse is that X will not have a father to turn to because of the actions of her mother.  The mother would do well to reflect on these matters, given this matter is returning to Court.  The mother would also do well to reflect on the fact that, if matters do not improve, one option available to the Court is to make an order changing the residence and making X live with her father. 

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:  

Dated:       4 August 2021