BHATT & SANT

[2016] FamCA 327

FAMILY COURT OF AUSTRALIA

BHATT & SANT [2016] FamCA 327

FAMILY LAW – CHILDREN – INJUNCTIONS - Application by the mother that she be permitted to travel with the child to India and for the removal of the child’s name from the Airport Watch List – application opposed by the father and the Independent Children’s Lawyer – s 68B considered – where the mother recently abandoned an application to relocate to India – where the mother says she wishes to travel to India for the purpose of visiting her ill father and to take the child to a place of religious importance – where the child is of a young age – where the father’s relationship with the child is still developing – best interests of the child considered – mother’s application dismissed

Family Law Act 1975 (Cth)

Flanagan & Handcock (2001) FLC 93-074; [2000] FamCA 150

APPLICANT: Ms Bhatt

RESPONDENT: Mr Sant

INDEPENDENT CHILDREN’S LAWYER: Perry Weston Lawyers

FILE NUMBER: MLC 8620 of 2014

DATE DELIVERED: 11 May 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 8 April 2016

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wiener

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Perry Weston Lawyers

Orders

IT IS ORDERED THAT

1. That paragraph 4 and 5 of the orders made by Senior Registrar FitzGibbon dated 14 December 2015 be discharged.

2. Until further order the mother MS BHATT born … 1989 and the father MR SANT born … 1985 themselves, their servants and/or agents, be and are hereby restrained from removing the child D (female) born … 2014 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.

3. As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

4. The mother and the father have liberty to apply to remove the child’s name from the Airport Watch List.

5. The mother’s Application in a Case filed 15 March 2016 and her oral application made on 22 March 2016 be dismissed and removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

1. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

*These orders have been amended where underlined to accord with the orders as pronounced by the Honourable Justice Macmillan on 11 May 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bhatt & Sant has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8620  of 2014

Ms Bhatt

Applicant

And

Mr Sant

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The child the subject of these proceedings D was born in 2014 and is two years of age. On 22 March 2016 I made final parenting orders by consent which included orders for equal shared parental responsibility, that the child live with the mother and that she spend time and communicate with the father each Monday from 11.00 am until 5.00 pm, each Tuesday from 12.00 noon until 8.00 pm, special days as agreed and by telephone, Skype or Viber as agreed.

2. On that date I gave leave to the mother to make an oral application that she be permitted to travel to India from time to time to visit family, for the discharge of the order made by consent by Registrar Mestrovic directing the Australian Federal Police to place the child on the Watch List at all points of arrival and departure to and from the Commonwealth of Australia, her case being that she wanted to be free to travel to India from time to time to visit family, including her parents who live in India. 

3. Although all parenting and financial issues had otherwise been concluded which included the mother’s application to relocate to India which she had abandoned, I listed the mother’s oral application, paragraphs 6, 7, 8 and 9 of her Application in a Case filed 15 March 2016 and the father’s response thereto for hearing before me and made orders for the parties to file affidavits of their evidence in chief and the evidence of any other witnesses upon whom they sought to rely. The mother in that Application in a Case sought orders which would permit her to travel to India with the child between 4 April 2016 and 6 May 2016, that the father do all things necessary to obtain a passport for the child and that the Watch List order be suspended for the relevant period.

4. Both the father and the Independent Children’s Lawyer opposed the mother’s application.

5. This is the only issue I am required to determine in this case.

Evidence

1. The standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that in applying that standard the court must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged. Whilst the issues the Court is required to determine in this case are limited the ramifications of the orders the Court is being asked are significant both for the father and mother but more significantly the child.

2. The mother who is the applicant relied upon her Affidavit filed 29 March 2016, her Affidavit filed 5 April 2016 in reply to the father’s Affidavits filed 30 March 2016, and the affidavit of her mother, Ms C Bhatt filed 29 March 2016.

3. The father relied upon his Affidavits both filed on 30 March 2016.

4. The Independent Children’s Lawyer did not file any material but relied upon the Children and Parents Issues Assessment prepared by Ms E and dated 21 November 2014 (“the Issues Assessment”) and referred the Court to parts of the psychiatric assessment of both the father and the mother prepared by Dr G and dated 2 December 2015. 

5. Both the father and the mother were cross-examined. In order to facilitate that process counsel for the Independent Children’s Lawyer cross-examined each party first, leaving the parties to put those matters they wanted to put not the subject of cross-examination by the counsel for the Independent Children’s Lawyer. Neither the father nor the Independent Children’s Lawyer required the maternal grandmother for cross-examination.

Background

1. The father MR SANT was born in India in 1985 and is 30 years of age. He has recently obtained employment.

2. The mother MS BHATT was born in India in 1989 and is 26 years of age. The mother has a Bachelors degree and completed and obtained a Masters Degree from a university in the United Kingdom thereafter working in the United Kingdom prior to her marriage. The mother is currently unemployed but it is her evidence that she is in the process of seeking employment.

3. The father and mother were married in a civil ceremony in India in 2012. Their marriage was prearranged by their families. Although in or about May 2013 the mother says she considered seeking a divorce, later in 2013 the parties participated in a religious ceremony in India prior to the mother emigrating to Australia in August 2013. They separated in Australia on 15 August 2014, that separation being instigated by the father a matter of months after the child was born. 

4. All of the mother’s immediate family except her parents who live in City I in Northern India, live in Australia. The mother’s two brothers, one of whom is married with a child, live permanently in Australia. The mother’s evidence is that her other brother is presently staying in India with her father.

5. The mother has been the child’s primary carer since her birth and was described by Ms E at paragraph 9 of the Issues Assessment as a “... warm and attentive parent.” On 25 September 2014 the mother filed an Initiating Application in which she sought parenting orders for the child. On 2 December 2014 Bennett J made interim orders that the child live with the mother and in the context of serious allegations of family violence by the mother against the father and other members of his family, and having the benefit of the Issues Assessment dated 21 November 2014, spend supervised time with the father. The child had not spent any time with the father prior to this order being made. On 8 September 2014 the mother obtained an Intervention Order naming both she and the child as protected parties. Ms E reported at paragraph 12 of the Issues Assessment that although the mother had reported to Victoria Police that she had been raped and assaulted by the father, the Department of Health and Human Services files produced pursuant to subpoena indicated that the police had investigated the mother’s allegations and had “no concerns in relation to the father posing a safety risk to the mother or child with no charges laid in relation to the allegations made”.

6. At the time of the interviews for the purposes of her assessment Ms E described the father at paragraph 11 of the Issues Assessment as being “…calm and patient with the child and he trialed [sic] various appropriate strategies to soothe her…” albeit without success due to what Ms E described at that time as his “unfamiliar presence in her life” (paragraph 11 of the Issues Assessment).

7. Ms E also recorded at paragraph 14 of the Issues Assessment significant discord between the paternal and maternal families and a legal process in India in relation to the alleged dowry, which on the evidence before me and submissions made by both the father and the mother is ongoing.

8. At the time of the assessment by Ms E the mother was seeking to relocate to Queensland where her brother and his wife were living. Ms E at paragraph 16 of the Issues Assessment described the proposed relocation as presenting a considerable risk to the child’s opportunity to build or maintain a bond with the father and that it would not provide her with the opportunity to spend the time necessary to support the development of her relationship with her father.

9. In response to the father filing an Amended Application in a Case on 15 November 2015 in which he sought inter alia that the child live with him, on 3 December 2015 the mother filed a Response to an Application in a Case  seeking orders permitting her to return to India with the child, ultimately abandoning that application in the lead up to the Court making final orders on 22 March 2016.   

The Law

1. Section 68B of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:

   (1)  If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

   (a)  an injunction for the personal protection of the child; or

   (b)  an injunction for the personal protection of:

   (i)  a parent of the child; or

   (ii)  a person with whom the child is to live under a parenting order; or

   (iii)  a person with whom the child is to spend time under a parenting order; or

   (iv)  a person with whom the child is to communicate under a parenting order; or

   (v)  a person who has parental responsibility for the child; or

   (c) an injunction restraining a person from entering or remaining in:

   (i) a place of residence, employment or education of the child; or

   (ii)  a specified area that contains a place of a kind referred to in subparagraph (i); or

   (d)  an injunction restraining a person from entering or remaining in:

   (i)  a place of residence, employment or education of a person referred to in paragraph (b); or

   (ii)  a specified area that contains a place of a kind referred to in subparagraph (i).

   (2)  A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

   (3)  An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

2. The order I am being asked to make is not a parenting order as such and therefore not governed by the paramountcy principle found in s 65AA of the Act or it follows the pathway in s 60CC of the Act. However as Kay and Holden JJ said in Flanagan & Handcock (2001) FLC 93-074; [2000] FamCA 150 at paragraph 64 although it may not be subject to s 65AA, as the High Court said in CDJ v VAJ (1998) 197 CLR 172 the best interests of the child in relation to whom the injunction is sought still need to be considered.

3. Finn J adopted a different approach in that case, it being her view that on the basis that s 68B of the Act empowered the court to make such order or grant such injunction as it considers appropriate for the welfare of the child, it could be said that the welfare of the child is the paramount consideration.

4. Whether or not matter I must determine is governed by the paramountcy principle, in circumstances where the court is required to make such order or injunction it considers appropriate for the welfare of the child the best interests of the child in relation to which the order or injunction is sought are a relevant consideration.  

Background

1. It is the mother’s case that her father is seriously ill and facing major kidney surgery but does not want to have that surgery until he has had the opportunity to spend time with the mother and the grandchild he has not yet met. It is for that reason that she filed her Application in a Case on 15 March 2016 seeking to suspend the orders preventing her from taking the child out of the Commonwealth of Australia, allowing her to travel to India with the child in April of this year.

2. The mother annexed to her Affidavit filed 29 March 2016 medical certificates she said were provided by her father’s treating medical practitioners in India. The father challenged the authenticity of the medical certificates and the mother’s evidence as to the dire state of her father’s health. The doctors who have purportedly provided those medical certificates are not on evidence or available for cross examination and although the medical certificates appear to be prima facie what the mother says they are I am not satisfied on the balance of probabilities on the basis of the evidence before me that they are or are not authentic.

3. The certificate purportedly signed by the father’s Physician-cum-Cardiologist refers to the father’s condition as being very critical and requiring a plan for dialysis or kidney transplant. That certificate is undated. The certificate purportedly signed by the Chairman of the Division of Nephrology and Renal Transplant Medicine similarly refers to the father being required to plan “… for dialysis / or kidney transplant in very near future”. That certificate is dated 2 June 2015. 

4. The maternal grandmother deposed at paragraph 8 of her Affidavit filed 29 March 2015 that her husband “is suffering from Chronic Kidney disease stage IV, Coronary Heart disease and have been advised to have a Kidney transplant” but that he was waiting to meet the child and see the mother before undergoing such major surgery. However, I also have in evidence before me photographs of the maternal grandfather at political events and functions as recently as 20 March this year. There is in my view also some force in the father’s submission that if he was as unwell as the mother and the maternal grandmother say he is, one might have expected the maternal grandmother to be in India with him rather than spending many months in Australia with the mother. 

5. Even accepting the authenticity of the medical certificates I am not satisfied on the evidence before me that the maternal grandfather’s health issues are as dire or that a kidney transplant is either necessary or as imminent as the mother asserts.

6. As part of her case the mother wants to take the child to Northern India for religious reasons. Whilst this may be important for the mother it would have little meaning for the child at this time given her young age.

7. The mother’s case is that she not only wants to travel to India to see the maternal grandfather before he has a kidney transplant and to take the child to a place of religious significance but that she has not been to India since immigrating to Australia and wishes to be able to visit her family in India with the child from time to time. Although there is no dispute that the mother has not been to India since she immigrated to Australia, there is also no dispute that the maternal grandmother has spent significant periods in Australia with the mother since separation. Although the maternal grandmother returned to India in July 2015, the mother says because her father was unwell, she returned to Australia in January 2016 and is still in Australia. Although the mother says the maternal grandmother was planning to leave Australia to return to India in March 2016 she has remained in Australia for the hearing before me.

8. A significant factor in this case is that India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. What that means is that if the mother were to refuse to return the child to Australia the father’s options for ensuring her return would be limited and arguably as he would need to institute proceedings in India there would be likely to be a significant delay not to mention significant expense. The impact upon the child of the mother doing so would in my view  be of even greater concern.

9. The mother’s evidence is that she is now settled in Melbourne, living with her brother who has relocated to Melbourne with his wife and child. Although not referred to in her Affidavits relied upon for the purposes of the hearing before me the mother said in cross-examination that her brother has now purchased the property in which they are living and rented out his property in Brisbane travelling to and from Brisbane for the purposes of his employment.  However it is also the case that the mother does not own any property in Australia and currently does not have a job.  

10. As submitted by both counsel for the Independent Children’s Lawyer and the father, the mother deposed, as recently as December 2015, that she that she wanted to relocate to India and that it had always been her wish to do so and set out the reasons for her wanting to do so and the reasons that would make it difficult for her to remain in Australia. Although the mother now says that her circumstances have changed as a result primarily of her brother’s move to Melbourne and her change of attitude, I am not satisfied on the balance of probabilities that that is necessarily the case. In my view there is a very real prospect that if the mother were to be permitted to travel to India she would not return to Australia with the child.

11. Although the mother has offered to deposit $2,000 in the Independent Children’s Lawyer’s trust account as security for the child’s return to Australia counsel for the Independent Children’s Lawyer submitted that this sum would be inadequate. I agree it also seems a modest sum in circumstances where there is evidence which suggests that even if the mother has limited means, she refers to wanting to holiday both overseas and interstate and her extended family appear to have reasonable financial means including:

    a)the maternal grandmother having the means to travel to and from Australia and remain in Australia;

    b)the fact that the maternal grandfather has his own business in India and is a man of some standing in the community in India;

    c)That the mother’s brother has had the means to purchase two properties in Australia.

1. The Court may make such order or injunction as it considers appropriate for the welfare of the child in this case. Although I am satisfied that the mother would no doubt benefit from seeing her father and that this might indirectly benefit the child, the direct benefit to the child given her age is less clear. 

2. Although I, like the Independent Children’s Lawyer, am not unsympathetic to the position the mother finds herself in I must weigh up the benefit to the child and the mother of being permitted to travel to India, either in the short term or from time to time as proposed by the mother, against the detriment to the child if the mother were not to return  to Australia with the child. Having regard in particular to the child’s age and the nature of her relationship with the father as described by the family consultant and in circumstances where that relationship is in all likelihood still developing, I am satisfied that a failure by the mother to return to Australia is likely to, at the very least, significantly undermine that relationship.  

3. In all of the circumstances I do not consider that it would be appropriate or in the child’s best interests to suspend or discharge the Watch List order at this time although I do propose for clarity to discharge the order made by Senior Registrar Fitzgibbon, which provided that the child’s name remain on the Watch List for 2 years The mother submitted that she should not be prevented from leaving the Commonwealth of Australia until the child is 18. That is not what is intended. Circumstances may well change. The risk to the child’s relationship with the father may well be less significant as the child matures and she and the father have had the opportunity to consolidate their relationship. Whilst that is but one consideration and there may be many other considerations, the existing order is an order until further order and there is no reason why, if circumstances change, that the mother could not make another application.  

4. The mother also submitted that she should be permitted to obtain a passport for the child as she would need that passport for the purposes of interstate travel. There is no evidence before me in relation to this issue and in those circumstances I do not propose to accede to the mother’s application for the issue of a passport for the child.

5. As the matter is now concluded I will discharge the appointment of the Independent Children’s Lawyer.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 11 May 2016.

Associate: 

Date:  11 May 2016