Chander & Chander

[2021] FCCA 1135

FEDERAL CIRCUIT COURT OF AUSTRALIA

Chander & Chander [2021] FCCA 1135

File number(s):

DGC 3540 of 2020

Judgment of:

JUDGE BURCHARDT

Date of judgment:

28 May 2021

Catchwords:

FAMILY LAW – Father seeking parenting orders following consent orders in 2017 – Rice v Asplund (1979) FLC 90-725 objection – court not persuaded any material change in circumstances despite various minor matters of disagreement – re-opening of entire case not in children’s best interests – minor adjustments made to remove disproportionate disagreement about public holidays.

Cases cited:

 Rice v Asplund (1979) FLC 90-725

SPS & PLS [2008] FLC 93-363

Number of paragraphs:

51

Date of hearing:

12 May 2021

Place:

Dandenong

Counsel for the Applicant:

Self-represented

Counsel for the Respondent:

Mr Gates

Solicitor for the Respondent:

Annette Wolfe Barrister And Solicitor

Counsel for the Independent Children's Lawyer:

Ms Bryan

Solicitor for the Independent Children's Lawyer:

Seawater Legal

ORDERS

DGC 3540 of 2020

BETWEEN:

MR CHANDER

Applicant

AND:

MS CHANDER

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	28 MAY 2021

THE COURT ORDERS THAT:

1.The court consolidate the current court file (DGC 3540 of 2020) with the previous court file between the parties (DGC 3019 of 2015).

2.Existing Order 17.2 of the orders dated 22 June 2017 (“2017 Orders”) be discharged.

3.In addition to the time provided for in Orders 16 and 17 of the 2017 Orders, the children spend time with the father on each of the following Victorian Gazetted public holidays:

(a)New Year’s Day;

(b)Labour Day;

(c)Grand Final Day; and

(d)Melbourne Cup Day,

(together “the Father’s Public Holidays”), with spend-time for each of the Father’s Public Holidays to commence at 5pm on the day before the particular public holiday and to conclude at 5pm on the day of the particular public holiday.

4.Existing Order 18.1 of the 2017 Orders be discharged.

5.In addition to the time provided for in Order 18 of the 2017 Orders, there be a suspension of time pursuant to Orders 15, 16 and 17 to enable the children to spend time with the mother on each of the following Victorian Gazetted public holidays:

(a)Australia Day;

(b)Anzac Day;

(c)Good Friday;

(d)Easter Sunday;

(e)Easter Monday;

(f)Queen’s Birthday;

(g)Christmas Day; and

(h)Boxing Day,

(together, “the Mother’s Public Holidays”), with the spend-time for each of the Mother’s Public Holidays to commence at 5pm on the day before the particular public holiday and to conclude at 5pm on the day of the particular public holiday AND THE COURT NOTES THAT the 2017 Orders formerly provided for the children to spend time with the mother on the Christmas and Easter public holidays (as per former Order 17.2) and specifically from 3.30pm on Christmas Eve until 3.30pm on Boxing Day (as per former order 18.1) and nothing in these orders is intended to, nor does, afford the mother extra public holiday time than that to which she was previously entitled under the 2017 Orders, albeit that the 48-hour block over Christmas and Boxing Day now commences and concludes at 5pm rather than 3.30pm as was previously the case.

6.In order to give effect to paragraphs 3 and 5 hereof:

(a)if the children are already the care of a parent prior to the commencement of time for public holidays or are due to go into the care of a parent at the conclusion of time as provided for in paragraphs 3 and 5 hereof, then the children remain in the care of that parent and there be a seamless transition into or out of public holiday time, as the case may be; and

(b)if the children are to transition between the care of their parents at the commencement or conclusion of time as provided for in paragraphs 3 and 5 hereof, then handover be as provided for in Order 19 of the 2017 Orders.

7.The Mother and the Father by themselves, servants or agents are hereby restrained from

(a)using physical punishment on either of the children

(b)denigrating the other in the presence or hearing of the children or either of them

(c)discussing with or in the presence or hearing of the children these proceeding or any allegations referred to in these proceedings or in any documents filed herein

8.The Order appointing the Independent Children’s Lawyer be discharged.

9.The Applicant father pay the Respondent mother’s costs fixed at $9,600.

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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 Chander & Chander is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BURCHARDT

INTRODUCTORY

1. On 15 October 2020, the applicant father filed an initiating application seeking to vary consent orders entered into on 22 June 2017.  In essence, he sought an equal time regime in respect of the parties’ two children, X, born in 2010, and Y, born in 2013.  That application has been met by a Rice v Asplund (1979) FLC 90-725 (“Rice & Asplund”) objection.  Notwithstanding that ordinarily such matters would proceed by way of a foreshortened hearing consisting of submissions only, I ordered on 27 January 2021 that the matter be listed at a trial for one day and appointed an Independent Children’s Lawyer, particularly bearing in mind the self-representation of the father.

2. Both parties have filed affidavit material and both sought to cross-examine.  In the circumstances, and noting the Independent Children’s Lawyer also wished to put questions, the matter involved the taking of oral evidence.

3. Nonetheless, this is still an application of the rule in Rice & Asplund as a preliminary matter (as to which see SPS & PLS [2008] FLC 93-363 per Warnick J) and it needs to be steadily borne in mind that the overriding issue is how the best interests of the children may be met.

4. For the reasons that follow, I propose to dismiss the father’s application, but I am also going to make some minor adjustments to the existing orders which are amply justified on the materials the parties have filed.

   AGREED OR UNCONTROVERSIAL MATTERS

5. Much of the material before the Court is uncontroversial.  The father was born in 1977 in City B, India.  He came to Australia in 2004.  He is plainly, as of course he is quite entitled to be, still very much influenced by his Indian heritage.  He prefers to sleep on the floor, to eat his meals sitting and with his hands, to eat simple Indian-style foods and to celebrate events important in the Hindu calendar.  Given that he has spent all his formative years in India and most of his life there, such an outcome is as understandable as it unexceptionable.  He is a qualified allied health worker and appears to run a successful (COVID notwithstanding) business as an allied health worker and allied health tutor from his home on a two-acre property outside Town C.

6. The mother was born in 1981 and is an allied health worker.  It appears that her family have lived in the Town C area for some considerable time.

7. The parties cohabited in 2007 and married in 2008.  X and Y followed as already indicated.  They separated on 25 January 2015 when the mother left the matrimonial home with the children.  She has subsequently been able to move back into it.  The parties divorced on 30 August 2017.  Financial and parenting orders were made by consent on 22 June 2017, pursuant to which the mother obtained the majority of the financial resources of the parties and a regime of spend time pursuant to which the father had each alternate weekend from Friday to Sunday and each Tuesday after school with half school holidays was put in place.  The orders however contemplated, and it has indeed occurred, that from 2019 onwards, the weekends extended from Friday to Monday.  There has been dispute about the meaning of the interpretation of the orders as to public holidays which interrelates with what for the parties has been a vexed issue of Boxing Day.

   THE PARTIES’ AFFIDAVITS

8. Given the unusual nature of this dispute which in truth involves very little factual disputation, it is appropriate to refer to the parties’ affidavits in some slight detail.  The father’s first affidavit filed 15 October 2020 sets out his complaints about the mother’s conduct.  Much of the matters of which complaint is made are made at a considerable level of generality.  They can be characterised however in the main as complaints that the mother has not adhered as she should have done to the requirements of equal shared parental responsibility by making unilateral decisions as to education and other matters.  At paragraph 12 he complained that Y had been enrolled in childcare for an extra day without his being informed.  It appears that that may have been so, but it is scarcely a matter of major import.

9. I note that exhibit “-3” is a copy of email conversations between the parties which shows the father taking significant issue with the fact that X had missed a day at school and felt it appropriate to contact the school principal about what he described as absenteeism.  These perhaps give the flavour of the complaints.

10. The responding affidavit of the mother filed 25 November 2020 contains a long litany of complaints about the father.  Much of the matters of which the mother complains involve matters of impression on her part and probably the only matter of real significance is an alleged assault on X with a small soft broom handle in September 2020 (paragraph 30.11) following which it is quite apparent that the mother has taken steps to, as it were, empower the children to deal with any such incident.  It is clear, as indeed she said during the trial, that she accepts what the children tell her without any qualification.

11. In his next affidavit filed 9 February 2021, the father complained that alienation had commenced before separation took place by the mother seeking to create what was described as a circle of trust from which he was excluded.  It is of course immediately apparent that this predates the orders that ultimately were made.  I note that at paragraph 5 the father said, “Ms Chander left the family home with the children without my consent” which was undoubtedly true, but it is slightly strangely expressed in circumstances where final separation has taken place.  I note that at paragraph 7 the father deposed racially directed comments by the mother’s family and friends, which have not been traversed either in the mother’s responding affidavit or in cross-examination.  I take it that those are true.

12. I am fortified in that conclusion by an annexure to the father’s subsequent affidavit on 28 April 2021 in which, having noted that the mother had not described him on the emergency contacts list to the children’s school, at page 10 of 2021 an email message sent by the father for mother’s day which the mother described as “some bullshit”.

13. It should also be noted that the parties have annexed a number of email exchanges to their various affidavits.  It is sufficient to say that the father’s approach seems to me at all times to be somewhat pedantic, but the responses from the mother on occasion have been pre-emptory and unyielding (see page 30 of 50 of the affidavit filed 9 February 2021 in which she effectively slams the door shut on the father’s application for some alteration of time).

14. It should be noted in passing that the happy mother’s day message that the father sent consists of a document which I strongly suspect is Indian in origin comparing the roles of mothers and fathers in terms that would be regarded in Australia as sexist.  It should also be noted that both sides have in my view tended to refer to the Court as a means of dispute resolution but that the father has perhaps more commonly than the mother sought to do so.

    THE SUBMISSIONS MADE IN EVIDENCE GIVEN AT COURT

15. What follows is taken from my notes. 

    The Opening and Evidence of the Father.

16. The father said it was all about the children’s best interests.  It is not the children’s fault that there was no relationship between him and the mother.  He pointed out that when the mother made her first application in the original proceedings, she sought only financial orders, whereas he had included parenting orders in his response.  He had supported shared care but had taken ultimately his barrister’s advice.  The mother has contravened orders.  She changed childcare without informing him, and his daughter told him.  This was immediately after the consent orders.  School enrolment forms do not have his telephone number or contact details.  His son is keen on sports, but he is not included in decisions about sports.  The mother’s affidavit of 25 November 2020 asserted there was a need to amend orders for clarity.  The interpretation of orders is different between them.  The mother has 80 per cent of the time or more.  There are problems about public holidays.  All the mother’s complaints in her affidavit were derived from the children.  He explained that his lifestyle is culturally based.  He had lived with his parents and grandparents.  This was normal to him.  He was seeking shared care so that the children could have a meaningful relationship with him and could have love from him.

17. The father adopted his affidavits as true and correct.

18. Under cross-examination by counsel for the mother, the father confirmed that final orders were made by consent in 2017.  These provided for equal shared parental responsibility and he was not seeking to change this.  The children were both at Town C Primary.  X is 10 years old in grade 5 and started at Town C in 2016.  Y is in grade 2 and started in 2019.  When it was put that it was always logical to have the same school as her brother, the father said this could have changed.  He had not initially agreed that Y should go to Town C West but eventually did.  X, in 2023, will need to start high school.  They would go to D Counselling if there was no agreement. 

19. The father said he operates his business from home.  They sleep in the bungalow which has one large room and a kitchen.  There is a toilet and bathroom also.  The children sleep in bunk beds in the same room.  There are spare rooms.  There is one work room, only used occasionally, and one other work room.  He agreed that this sleeping together might be a problem when the children are older, but the children had a very good relationship with him.  This was despite the mother’s alienating.  When Y comes to him, she is emotionally upset and takes time to settle.  The two/twelve regime had been increased to three/eleven in 2011.  They have been through ups and downs.  He believes the children have a good relationship with their mother, but he wants the alienation to stop.  When asked about separation, the father appeared to say that the mother should have asked to take the children from him.  He was questioned about seeking shared care in March 2019.  He said this was because of the way things were going.  He conceded he had told the mother several times he would go back to court.  He said the mother had used her power, in effect, to exclude him.  When asked about his email in which he had indicated he had contacted the school principle, the father said there were a series of events before that.  It was not just that incident.  He was brought up where going to school is a privilege whereas it is taken for granted here.  When taxed with the Mother’s Day message he had sent, it had been put to him that it was patronising, however, the father appeared to suggest that this was a message consistent with his culture.  The main problem was cultural issues.  The mother does breach the orders.  She was not a practicing Catholic.  The children are with the mother at Christmas.  He had been to India in 2017 and 2018 without the children because he cannot take them.  The children are usually with the mother at Easter.  In 2021, he had allowed the Easter time.  They need to change something because they cannot coparent.  He has been living in Town E since 2018 and the mother has been in Town C since 2017.  He is aware that the mother proposes F School, Town C for secondary school, but he wants Town G.  It has not been discussed enough.  Public holidays are a huge amount of time when you only have 20 per cent.

20. The father was cross-examined about the mother’s assertion about derogatory remarks about X’s teeth.  He said this did not happen.  He did not hit the child with a soft broom handle and indeed he went on to make general denials in all the matters alleged.  He had not called X a pussy or a coward. 

21. He usually starts work at 7.30 am.  The children have told him they want more time.  He sought legal advice several times, including before he started these proceedings.  He had also done so a couple of weeks ago.  He pays child support as assessed.  His pay must have gone down after the fires and COVID.  This year, he had to amend it and it is now $540 a month.  He has had no legal fees in this proceeding, save those of the Independent Children’s Lawyer.  When asked what he said the mother had done to alienate the children, he said that the mother had not included him as a school contact. 

22. Under cross-examination by counsel for the Independent Children’s Lawyer, the father said he wanted to improve coparenting with the mother.  She makes extracurricular decisions, but not all the time.  There are difficulties in implementing the 2017 orders and public holidays were more of a concern to the mother.  He would abide the court’s discretion as to public holidays.  There have been difficulties for some time.  Counsel put it to him that he seemed to think that the resolution of difficulties was to come to court, but the father’s answers were not convincing.  When he was asked if he was saying it was the mother’s fault there was no coparenting, he said he did not say that.  (He does, however, want the mother to get herself educated because this had been something he had sought in his materials).  Shared care would balance the power relationship between the parents.  He had been undertaking counselling with the mother pursuant to court orders, but it is now voluntary.  He would consider it in the future.  He went on to give evidence about an entirely laudable involvement in a charitable organisation. 

23. There was no re-examination. 

    The Opening and Evidence of the Mother

24. Counsel opened with reference to authority and submitted that there had been no significant substantial change since the original orders were to be made.  He noted the father had not sought any change to the order for equal shared parental responsibility.

25. The mother was called and adopted her affidavit as true and correct.  She confirmed that her costs in the proceeding are $26,000. 

    The Father Elected to Cross-Examine

26. The mother denied that prior to separation, she had told him that there would be a circle of trust for the children.  She denied keeping the children from him prior to separation.  She had not known that the father opposed Town C Primary School. 

27. When asked why she had not provided the father’s contact details to the school, she said she had put his address.  She went on to say that the children were in her care during school days and if they were unwell, that was why her parents were nominated. 

1. I would interpolate and say that I found the mother’s answers as to this unconvincing.  She has plainly sought to exclude the father at least in this way.

2. The mother said they mainly disagreed about public holidays.  There was cross-examination about Y’s extended time in child care.  The mother said that Y had been enrolled since she was one years old and it was not a change.  She had offered to change the child care arrangements when he had raised concerns.  The mother went on to confirm that she always believes what the children tell her about their time with their father.

3. I would interpolate and say that I asked the mother if it had occurred to her that the children might say what she wanted to hear, but she was adamant that she believes the children at least in more significant matters.  I would observe that the one thing she would never do is ask the father for his version of any such events. 

4. Under cross-examination by the Independent Children’s Lawyers, counsel, the mother said there had been problems with co-parenting since separation.  She was prepared to consider counselling, which was of some assistance.  It was mainly around public holidays and mainly Boxing Day.  Equal shared parental responsibility meant that they would have to agree about the school the children were going to go to, and they would need to communicate as to any serious illness. 

   Final Submissions by the Father

5. The father, whose affect was generally subdued but respectful, repeated his submission that the mother had sought to control the living arrangements.  He still sought the orders in his application and has indicated in his case outline. 

   Final Submissions by Counsel for the Mother

6. Counsel submitted there were detailed orders in 2017 by consent.  There were minor disagreements which were unfortunate but not substantial change.  Counsel referred to the rule in Rice v Asplund and noted the father was seeking to come back to court eight months after the orders were made.  The father does not seek to change the order as to parental responsibility when the children are young.  The parents live in the same area and the children go to the same school. 

   Final Submissions by Counsel for Independent Children’s Lawyer

7. Counsel noted that the Independent Children’s Lawyer had not filed a case outline.  Counsel submitted that it was a matter of the children’s best interests.  The Independent Children’s Lawyer had met the children.  The Independent Children’s Lawyer submitted that the matter should not be reopened at large.  Counsel pointed to the adverse effect of ongoing litigation.  The matters were either not new or not important.  The increase posited in 2019 had taken place and took into account the children’s developing ages.  There is provision in the orders for two extra periods of time with the father to nominate for cultural celebration. 

8. The cultural issues were accommodated in the original orders.  The father was well-meaning and loves his children.  He desires to educate the mother and rebalance the power between them. But these are not in the children’s best interests.  Counsel submitted there should be some specific changes because there were some problems with the orders.  The children had missed cultural events and the mother was insisting on swapping time.  The father should have issued a contravention application. 

9. The choice of school for Y was historical.  There will be no secondary school till 2023 and the issues do not need to be reopened now.  Counsel noted that there was no non-denigration order and submitted this should be made if the court felt it appropriate.  Child support not an issue that arose for consideration in the Rice v Asplund issue.  The cultural issues are not new.  The extracurricular disputes are not major and no one is seeking sole parental responsibility.  Counselling should still continue but there was a question as to whether the court has power to order it.  It was still strongly recommended. 

10. The court should look at the evidence.  Alienation was not evidence.  It was the father’s perception.  The father had written to the school principal, which was not constructive.   The father’s notice of risk sought that the mother be educated, but this was not child focussed.  The father is overeager to go to court.  The issue of the public holiday should be tidied up.  Changing the amounts of time the children spend with the father will not change the co-parenting difficulties. 

11. In further submissions, the father said that Town C was a small place.  He knew the school principal directly which is why he contacted him.  He wanted a more meaningful relationship with his children and wanted the mother in the team.  He had been avoiding contravention application for a long time.  He does not enjoy being in court.  The mother accepts the children’s remarks at face value and this was causing a lot of harm to his relationship with the children.

    Consideration

12. The first thing to be said, and it emerges with complete clarity from the parties’ materials and what was said in court, is that there has not been any material change in circumstances since the 2017 orders.  The orders, as the Independent Children’s Lawyer rightly submitted, had provisions within them to take account of the children’s developing ages and the cultural issues which the matter had raised.  I entirely agree with the Independent Children’s Lawyer that while the measure of disagreements between the parties were unfortunate, in the overall scheme of things, when looked at objectively, they are trivial.

13. I think the father is right to say that much of the difficulty that obtains between him and the mother does relate to their different cultural backgrounds.  The father’s Mother’s Day message, looked at objectively and according to the cultural values that obtain in Australia, was grossly inappropriate.  It was a message demeaning of women, generally, sent to the mother on Mother’s Day.  Nonetheless, it was not sent maliciously.  The mother’s response to it, while understandable at one level, shows a dismissive and offensive attitude towards the father’s cultural background that apparently is shared by her family more generally. 

14. Nonetheless, the children are being brought up in Australia and have never been to India as best I understand it.  To an extent, their exposure to such a radically different pair of households must surely have some measure of difficulty to it, especially since, from the materials, it appears that the father seeks to continue Hindu religious observance in his children, at least to an extent.  He is of course entitled to do this and nothing in this judgment should be taken to be critical of that initiative.  But given the fact that the mother’s view of the father’s culture appears to be somewhat equivocal (it should be noted that she deserves credit for agreeing to the two extra blocks of time to accommodate this) perhaps it is unsurprising that there are tensions between them. 

15. The father’s adherence to his own cultural background can find its expression in unfortunate ways.  The complaint of absenteeism to the school for a one day absence when the child had a minor injury was grossly misconceived and must have been as embarrassing to the mother as it must have been surprising to the school principal. 

16. The father complains of alienation, but it should be noted that this was a complaint that predated separation in any event.  The mother’s affidavit material seeks to create mountains out of molehills, and she would do far better to ask the father if anything has happened when the children make disturbing revelations to her than to save them up for use in an affidavit later on. 

17. The father’s application is essentially for equal time, but this is not in any way indicated as appropriate. 

18. The email styles of both of these parents seem likely to grate upon one another.  That of the father seems persistent almost to the point at times of obsession (absenteeism after one day, for example) and must be exasperating for the mother.  Her responses to him have been curt at times.  It seems to me that the father is far too eager despite his denials to threaten to come to court and his asserted dislike of being in court is certainly not consistent with his email style from time to time.  The parties will have to try and find a better way to resolve their differences. 

19. Having traversed the materials in this admittedly somewhat broad-brush way, it is wholly and absolutely apparent that it is not in the children’s best interest to take this litigation farther.  There has been no material change in circumstances.  There are a few minor matters which I will endeavour to adjust to remove some of the grit in the gear system between the parties, but if ever there was a case where a Rice v Asplund point is made out then this is it.  It is has been noted that the father has not sought to change the regime in respect of equal shared parental responsibility, and this is, in one sense, to his credit.  Nonetheless, it only goes to reinforce the obvious proposition that, really, nothing has changed.  It is plainly not in the children’s best interest that there be further and continual litigation. 

    Ancillary Issues/Counselling

20. No party has sought that I make any further orders as to counselling.  In my view, the extant orders do not require the parties to engage in counselling.  The mother showed praiseworthy preparedness to do so and the father’s position was more nuanced. Given doubts expressed by the Independent Children’s Lawyer, I am not going to compel counselling, but the father should realise that counselling is far more likely to be helpful and productive than further court proceedings. Given the nature of the difficulties that the parties have he would also be well advised to embark upon trying to accept more readily that issues about the upbringing of these children are best addressed by taking a tolerant and slightly broader view of the operation of the orders for parental responsibility then he has done in the past. 

    Non-denigration

21. There is no non denigration order and it is quite plan that there ought to be.  I will make that order. 

    Public Holidays

22. The parties have invested a completely disproportionate amount of emotional energy into the question of public holidays.  The father has sought to include Boxing Day, as it were, as one of the public holidays, and the mother has sought to exclude it.  If one takes a step back from the parties’ somewhat intense positions, the fact is that there are 10 public holidays in Australia in any given year.  Two fall on Christmas Day and Boxing Day, and two fall on Easter Friday and Easter Monday.  The others are New Year’s Day, Australia Day, Anzac Day, Queen’s Birthday, Grand Final Day and Melbourne Cup Day. 

23. The mother already has four of those days because she has Christmas Day, Boxing Day, Easter Monday and Easter Friday.  Additionally, however, the father gets two extra chunks of two days so that, in a sense, those first four days are evened out.  In my view, what should happen is that the remaining six public holidays should be divided as to three each.  I will permit the father to choose which three days he wants given that, as he rightly says, he has the children for far less of the time. 

    CONCLUSION

24. I will hear from the parties when they have had an opportunity to peruse these reasons for judgment.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:

Dated:       28 May 2021