CHANNA & FERNANDEZ
[2020] FCCA 2153
•5 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHANNA & FERNANDEZ | [2020] FCCA 2153 |
| Catchwords: FAMILY LAW – Spousal maintenance – whether the wife is unable to adequately support herself. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 72(1), 74(1), 75(2), 75(3) |
| Applicant: | MR CHANNA |
| Respondent: | MS FERNANDEZ |
| File Number: | MLC 13973 of 2018 |
| Judgment of: | Judge Riley |
| Hearing dates: | 29 and 30 April 2020 and 1 and 27 May 2020 |
| Date of last submission: | 8 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 5 August 2020 |
REPRESENTATION
| Counsel for the applicant: | Mr Singh |
| Solicitors for the applicant: | Opal Legal |
| Counsel for the respondent: | Mr Mellas |
| Solicitors for the respondent: | Mitchell Family Law |
ORDERS BY CONSENT
The parents have equal shared parental responsibility for X born in 2018 ("X”).
X spend time with his father each Father's Day from 6pm on the Saturday before Father's Day to 6pm on Father's Day, if X is not already spending time with his father.
X spend time with his mother each Mother's Day from 6pm on the Saturday before Mother's Day to 6pm on Mother's Day, if X is not already spending time with his mother.
Until 5 August 2025 the mother and her servants and agents be restrained from removing or attempting to remove X from the Commonwealth of Australia.
Until 5 August 2025 the father and his servants and agents be restrained from removing or attempting to remove the X from the Commonwealth of Australia.
Until 5 August 2025 X be restrained from leaving the Commonwealth of Australia.
THE COURT REQUESTS THAT
The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include X’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain X’s name on the airport watch list until 5 August 2025.
ORDERS BY CONSENT
The mother and the father notify each other as soon as possible of any medical emergency, serious injury or illness involving X.
If X is taking prescribed mediation, the parent who buys X’s medication provide the other parent with the medication and instructions for its use, when X goes into the other parent’s care.
The mother and the father keep the other informed in writing of the names and addresses of any treating medical or other health practitioners that treat X and this order be authority for any treating medical or other health practitioner to release X’s medical information to the other parent at the expense of the parent requesting such information.
The mother and father notify the other within 24 hours of any change in his or her telephone number or address.
This order be authority for X’s day care or pre-school or school to give each parent any information about the progress of X’s education and other related activities at the expense of the parent requesting such information.
During the time X spends with each parent, that parent:
(a)respect the other parent's privacy;
(b)not denigrate or insult the other parent or their partner or family members in the presence or hearing of X; and
(c)remove X from any environment where the other parent is being denigrated by others or the proceedings are being discussed.
ORDERS
X live with his mother.
The mother be permitted to relocate with X to Adelaide on 1 January 2021, or on such subsequent date as the border between Victoria and South Australia is open with no requirement for people to quarantine in either direction unless they test positive for COVID-19.
Until the mother and X relocate to Adelaide, X spend time with his father as follows:
(a) each Tuesday and Thursday from 10am until 4pm;
(b) each alternate weekend from:
(i)5pm on Friday until 12md on Saturday; and
(ii)10am until 4pm on Sunday; and
(c)as otherwise agreed.
After X relocates to Adelaide and until 1 August 2021, X spend time with his father in Adelaide in a four week cycle as follows:
(a)in the first week, from 10am until 4pm on Friday, and from 10am Saturday until 4pm on Sunday;
(b)in the second week, from 10am until 4pm on Saturday;
(c)in the third week, from 10am until 4pm on Friday, and from 10am Saturday until 4pm on Sunday; and
(d)in the fourth week, from 10am until 4pm on Saturday.
Between 2 August 2021 and X commencing primary school, X spend time with his father in a four week cycle as follows:
(a)in the first week, in Melbourne, from 10am on Friday until 4pm on Sunday;
(b)in the second week, in Adelaide, from 10am until 4pm on Saturday;
(c)in the third week, in Adelaide, from 10am on Friday until 4pm on Sunday; and
(d)in the fourth week, in Adelaide, from 10am until 4pm on Saturday.
From X commencing primary school until the end of Year 1, X spend time with his father in a four week cycle as follows:
(a)in the first week, in Melbourne, from 10am on Saturday until 4pm on Sunday;
(b)in the second week, in Adelaide, from 9am until 5pm on Saturday;
(c)in the third week, in Adelaide, from after school on Friday until 4pm on Sunday; and
(d)in the fourth week, in Adelaide, from 9am until 5pm on Saturday.
From X commencing primary school until the end of Year 1, X spend time with his father in the school holidays as follows:
(a)in the school term holidays, from 10am on the first Saturday until 10am on the first Wednesday in Melbourne; and
(b)in the long summer holidays, from 10am on 28 December until 10am on 1 January, and from 10am on 8 January until 10am on 12 January, and from 10am on 19 January until 10am on 23 January in Melbourne.
From the end of Year 1, X spend time with his father in a four week cycle as follows:
(a)in the first week, in Melbourne, from 10am on Saturday until 4pm on Sunday; and
(b)in the third week, in Adelaide, from after school on Friday until before school on Monday;
From the end of Year 1, X spend time with his father in the school holidays in Melbourne as follows:
(a)in the school term holidays, from 10am on the first Saturday until 10am on the middle Saturday; and
(b)in the long summer holidays, in alternate weeks, commencing at 10am on the second Saturday.
X spend time with his father on X’s birthday and on the father’s birthday in Adelaide:
(a)if the birthday falls on a non-school day, from 10am until 3pm; and
(b)if the birthday falls on a school day, from the conclusion of school until 5:30pm.
Commencing when X is four years old, X spend from 6pm on Parsi New Year to 10am the following day with his father in Adelaide in even numbered years.
Commencing when X is four years old, X spend from 6pm on Navroze to 10am the following day with his father in Adelaide in odd numbered years,
X spend from 11am on Christmas Eve until 11am on Christmas Day with his father in Melbourne in 2020 and in Adelaide in even-numbered years commencing in 2022.
X spend from 11am on Christmas Day until 11am on Boxing Day with his father in Adelaide in odd-numbered years.
X spend time with his father as otherwise agreed in writing.
The father give the mother four weeks’ written notice if he does not intend to spend any particular time with X as provided for in these orders.
Before X and the mother relocate to Adelaide, changeover occur as agreed between the parents and failing agreement by the mother delivering X to his father’s residence at the commencement of X’s time with his father, and the father deliver X to the mother’s residence at the conclusion of that time.
After X and the mother relocate to Adelaide, changeovers occur as agreed between the parents and failing agreement as follows:
(a)at the commencement of X’s time with his father:
(i)in Adelaide, at school, if changeover is to occur at school times, and otherwise at the father’s accommodation, provided it is within 15 kilometres of the mother’s home, and, if it is not, then changeover occur at the mother’s home; and
(ii)in Melbourne, at the relevant arrival gate for X’s flight; and
(b)at the conclusion of time between X and his father:
(i)in Adelaide, at school, if changeover is to occur at school times, and otherwise at the mother’s home; and
(ii)in Melbourne, at the relevant departure gate for X’s flight.
The father pay for the costs of his travel to and from Adelaide except that the mother reimburse the father within seven days of receiving a request for his airfares to and from Adelaide for one weekend in every four weeks until X is three years old, with the airfares calculated as the average of the father’s two previous return flights.
The mother pay for X’s and any accompanying adult’s travel to and from Melbourne for any weekend visits.
The father pay for the costs of his and X’s accommodation in Adelaide.
The parents share equally in the cost of X’s travel to Melbourne during school holiday periods on the basis that:
(a)if X is travelling accompanied, the mother book X’s tickets, and the father reimburse half to the mother within seven days of receiving a tax invoice; and
(b)if X is travelling unaccompanied, the parents alternate the booking of, and bear the cost of, X’s tickets, with the father to book X’s first unaccompanied travel.
Both parents be at liberty to attend X’s sporting, or extra-curricular activities and any assemblies or gatherings at X’s school to which the parents are usually invited, irrespective of which parent X is living with pursuant to these orders.
The application for spousal maintenance is dismissed.
Pursuant to s.65DA(2) 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.
NOTATIONS
(A)If either parent seeks that X’s name remains on the airport watch list after 5 August 2025, then, before that date, that parent should file a further application to that effect supported by affidavit.
(B)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(C)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Channa & Fernandez is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 13973 of 2018
| MR CHANNA |
Applicant
And
| MS FERNANDEZ |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for:
a)parenting orders in respect of X born in 2018 (“X”); and
b)spousal maintenance for the respondent mother.
This matter was originally in the docket of Judge Bender. However, it was transferred to me for trial.
The parties resolved their property dispute with certain consent orders made on 1 May 2020, during the course of the trial.
X was two years old in 2020. Both of his parents are Indian, and came to Australia as adults. They had an arranged marriage, which lasted about five years. The parents separated when X was four months old. Since separation, X has lived with his mother and spent frequent amounts of time with his father, which have built up to include overnight time.
It was common ground that X’s primary attachment is with his mother, and that attachment is sound and she cares for him well. He is developing normally. It was also common ground that X has a good and loving bond with his father. There was no suggestion of drug or alcohol misuse, psychiatric disorders or physical family violence. However, each parent alleged the other was controlling.
Both parents are Parsis, and follow the Zoroastrian religion. There is a small community of Parsis in Melbourne, where the mother, the father and X have been living. However, the mother wishes to relocate to Adelaide, where her only sibling, a sister, Ms B, lives with her husband and almost four year old twin boys. The mother’s parents live in India. The father’s mother and maternal grandfather live in India. The father is an only child.
The father is employed in the science industry and earns about $167,000 per year. The mother is presently unemployed but previously worked in health care, earning between about $20,000 and $40,000 per year. She also has a Masters’ degree from Country W university but has not found employment with that qualification. The mother’s family in India is wealthy, or, on the father’s account, very wealthy.
Chronology
The parties provided to the court an agreed chronology which was substantially as follows:
Date Event 1984 The father was born. He is 36 years old. 1986 The mother was born. She is 34 years old. 2012 The father arrived in Australia as a permanent resident (skilled migrant). 2013 The parents married in City C India. It was an arranged marriage. 2013 The mother moved to Australia.
The parents commenced cohabitation.
The father was working full time for Employer D.
The mother obtained various jobs in health care until the birth of their child in 2018.2018 X (“X”) was born. He has just had his second birthday. September 2018 The parents had informal mediation about their relationship.
The mother’s parents (Mr E and Ms F) were present for this mediation, together with the father’s friend, Mr G.4 December 2018 The father filed an initiating application with the Federal Circuit Court of Australia. 6 December 2018 The parents separated.
The mother and X moved out of the former matrimonial home.December 2018 The father commenced spending time with X supervised by the mother at McDonalds from 10:30am until 12:30pm each Saturday. 7 December 2018 The father filed an application in a case. 7 January 2019 The father withdrew $97,351.84 from the parents’ home loan account. 17 January 2019 The mother filed a response to the initiating application and a response to the father’s application in a case.
The mother sought to relocate to Adelaide.25 January 2019 The father filed an amended initiating application. 31 January 2019 Interim orders were made by consent:
X to spend time with his father:(a) each Saturday from 10:30am until 12:30pm at Suburb H library;
(b) each Sunday from 10:30am until 12:30pm at J Play Centre;
(c) each Thursday from 10am until 12md at Suburb H library;
(d) the father was able to take X outside the library for no more than 30 minutes provided the outside temperature was between 18 and 28 degrees and there was no rain; and
(e) the father was to ensure that he attended all contact visits alone, save for one contact each week.
The father paid the mother $7,500, which was to be characterised at trial.
The matter was listed for final hearing on 29 April 2020.February 2019 The parents implemented a communication book in respect to X’s development. April 2019 The mother commenced attending upon a psychologist – Ms K. 4 April 2019 The parents attended upon Ms L for the purposes of a family report. 9 April 2019 The family report of Ms L was provided to the parents. 22 May 2019 The parents attended mediation. They reached an agreement in respect of interim parenting arrangements. 12 June 2019 The mother filed an application in a case in respect of spousal maintenance. 18 June 2019 Interim orders were made by consent in respect to parenting matters.
X to spend time with his father:(a)from 1 June 2019 – each Thursday from 7am until 9:30am and each Saturday and Sunday from 10am until 12:30pm
.;(b)from 1 October 2019 – each Thursday from 7am until 9:30am and each Saturday and Sunday from 10am until 2pm; and
(c)on 2 August 2019, from 8:30am until 11am.
The father paid the mother $30,000, which was to be characterised at trial.
The father was deemed to receive a partial property settlement of $49,851.84.1 July 2019 The mother moved into rental accommodation with X in Suburb M. She paid $1,738 per month by way of rent. 8 August 2019 The father filed an application in a case in respect of parenting matters. The father made an application with his employer (Employer D) to access their paternity leave policy. From 2019 until 2020, the father also proposed accessing his annual leave to spend time with X. 4 September 2019 The mother filed a response to the father’s application in a case. 10 September 2019 Interim orders were made by consent:
X to spend time with his father:(a)from 1 November 2019, each Monday, Wednesday and Friday from 10am until 4pm; and
(b)from 1 February 2020, each Wednesday, Saturday and Sunday from 10am until 4pm.
These orders also permitted the mother to travel with X to Adelaide for Christmas from 23 December 2019 until 31 December 2019. Make up time between X and his father occurred on 5 January 2020, 11 January 2020 and 12 January 2020 from 10am until 4pm.
20 March 2020 X spent overnight time with his father as a trial from 5pm Friday 20 March 2020 until 12md on Saturday 21 March 2020. 10 April 2020 X spent overnight time with his father as a trial from 5pm Friday 10 April 2020 until 12md on Saturday 11 April 2020. 17 April 2020 The matter was listed before Judge Riley for trial directions.
The parents indicated to the court that property matters had resolved.20 April 2020 The parents agreed to interim arrangements for X to spend time with his father:
1. each Tuesday and Thursday from 10am until 4pm;
2. each alternate weekend from 5pm until 12md on Saturday (commencing 24 April 2020); and
3. each alternate Sunday from 10am until 4pm (commencing 26 April 2020).
Orders by consent
During the trial, the parents consented to parenting orders on a final basis as follows (exhibit 2):
1.That the parties have equal shared parental responsibility for X born in 2018 ("the child”).
2.That the child spend time with the Father each Father's Day from 6.00pm on the Saturday before Father's Day to 6.00pm on Father's Day, if the child is not already spending time with the Father.
3.That the child spend time with the Mother each Mother's Day from 6.00pm on the Saturday before Mother's Day to 6.00pm on Mother's Day if the child is not already spending time with the Mother.
4.That the child remain on the Airport Watch list for a period of 5 years from the date of Order.
5.That the Mother and Father notify the other as soon as possible of any medical emergency, serious injury or illness involving the child.
6.If the child is taking prescribed medication, the parent who buys the child's medication will provide the other parent with the medication and instructions for its use, when the child goes into the other parents’ care.
7.The Mother and Father shall keep the other informed in writing of the names and addresses of any treating medical or other health practitioners that treat the child and this order is authority for any treating medical or other health practitioner to release the child's medical information to the other parent at the expense of the parent requesting such information.
8.If either parent changes their contact telephone number or address they must notify the other within 24 hours of that change.
9.This order is authority to the child's day care or pre-school or school to give each parent any information about the progress of the child's education and other related activities at the expense of the parent requesting such information.
10.During the time the child spends with each parent that parent shall:
a.Respect the other parent's privacy;
b.Not denigrate or insult the other parent or their partner or family members in the presence or hearing of the child; and
c.Remove the child from any environment where the other parent is being denigrated by others or the proceedings are being discussed.
Those orders will be made by the court, save that, with the parents’ consent, the usual airport watch list orders will be made.
The applicant father’s proposed parenting orders
In his further amended initiating application filed on 22 April 2020, the father proposed parenting orders as follows, excluding the proposals that were the subject of consent orders:
2.That until the child attains the age of 3 years and 6 months the Child live with the Mother and spend time with the Father as follows:
a)From now until 1 August 2020
i. From 10am to 4pm each Tuesday and Thursday
ii. Each alternate weekend from 5pm Friday to 12pm Saturday
iii. Each alternate Sunday from 10.00am until 4.00pm
b)Thereafter from 1 August 2020
i. Each Tuesday from 6pm to 6pm Wednesday 6pm
ii. Each alternate Friday from 5pm to 6pm Saturday
c)Thereafter from 1 December 2020
i. In the first week each Tuesday from 6pm to Thursday 6pm
ii. In the second week each Thursday from 6pm to Saturday 6pm
d)Thereafter from 1 April 2021
i. In the first week each Monday from 6pm to Thursday 6pm
ii. In the second week each Friday from 6pm to Sunday 6pm
e)Thereafter from 1 August 2021
i. In the first week each Monday from 6pm to Friday 6pm
ii. In the second week each Thursday from 6pm to Sunday 6pm
3.From 1 April 2022 the Child live with the Mother and the Father on a week about basis from Sunday 6pm to Sunday 6pm
4.That the Child shall spend time with the Father on the Child’s birthday if the Child is not already spending time with the Father then as follows:
a)From 8am to 3pm for 2020, 2021 and 2022
b)If on a weekday then from afterschool or 3pm to 7pm
c)If on a weekend then from 8am to 3pm
5.That the Child shall spend time with the Father on the Father’s birthday [if] the Child is not already spending time with the Father as follows:
a)From 8am to 3pm for 2020, 2021 and 2022
b)If on a weekday then from afterschool or 3pm to 7pm
c)If on a weekend then from 8am to 3pm
6.That the Child shall spend time with the Father on Parsi New Year if the Child is not already spending time with the Father as follows:
a)From 6pm on Parsi New Year to 10am the following day
7.That the Child shall spend time with the Father on the occasion of “Navroz” if the Child is not already spending time with the Father as follows:
a)From 6pm on day of “Navroz” to 10am the following day
8.That the Child shall spend time with the Father during Christmas as follows:
a)For Christmas 2020 from 6pm on Christmas Day to 6pm the following day and to continue each year ending in an even number
b)For Christmas 2021 from 6pm on Christmas eve to 6pm on Christmas Day and to continue each year ending in an odd number
9.That the Child shall spend time with the Father during the New Year period as follows:
a)For New Years Eve 2020 from 6pm on New Years Eve to 6pm on New Years Day and to continue each year ending in an even number
b)For New Years Eve 2021 from 6pm on New Years Day to 6pm the following day and to continue each year ending in an odd number
…
11.That from the year the Child commences school, the Child shall spend time with the Father during the school holiday periods as follows:
a)For the first half of the school holidays and Christmas holidays in each year ending in an even number
b)For the second half of school of the school holidays and Christmas holidays in each year ending in an odd number
12.That for the purpose of changeover, the Mother deliver the Child to the Father’s residence at the conclusion of [contact] and the Father deliver the Child to the Mother’s residence at the conclusion of contact
Make-up time
13.In the event that the Child does not spend time with the Father under these orders for any reason, the Child is to spend time with the Father on the next available day and on subsequent days until the contact time lost has been made up. This time is to be by way of “Make-up” time and such time is in addition to the time in Orders 2 – 11 above
As can be seen, the father did not proposed any orders in the event that the mother and X were given permission to relocate to Adelaide.
The respondent mother’s proposed parenting orders
The mother’s amended proposed orders were emailed to the court on 1 May 2020, and became exhibit 3. The mother’s parenting proposals, excluding the proposals that were dealt with by agreement, and excluding the proposals that applied if the mother were not given permission to relocate to Adelaide, were as follows:
1.That X born in 2018 (“the child”) live with the Respondent.
…
Relocation to Adelaide
3.That the Respondent be permitted to relocate with the child to Adelaide from 1 January 2021.
Spend time Arrangements
4.That until Respondent relocates to Adelaide with the child, the child spend time with the Applicant as follows: -
(a)Each Tuesday and Thursday from 10.00am until 4.00pm; and
(b)Each alternate weekend from
(i) 5.00pm on Friday until 12.00pm on Saturday; and
(ii) 10.00am until 4.00pm on Sunday.
5.Upon the Respondent relocating to Adelaide with the child, and until the child commences primary school, the child spend time with the Respondent as follows: -
(a)In Melbourne on the first weekend of each calendar month, from 12.00pm on Friday until 3.00pm on Sunday;
(b)In Adelaide, on the third weekend of each calendar month, from 12.00pm on Friday until 4.00pm on Sunday; and
(c)Any additional or alternative time as agreed between the parties in writing.
6.Upon the child commencing primary school, and until the child completes Year 1, the child spend time with the Respondent as follows: -
(a)In Melbourne on the first weekend of each calendar month, from 10.00am on Saturday until 3.00pm on Sunday;
(b)In Adelaide, on the third weekend of each calendar month, from 4.00pm on Friday until 4.00pm on Sunday;
(c)For 4 consecutive nights during the Term 1, 2 and 3 gazetted holiday periods as agreed between the parties in writing, and failing agreement commencing at 10.00am on the day immediately following the last day of required school attendance and concluding at 2.00pm four days thereafter;
(d)For two blocks of 4 consecutive nights during the Term 4, summer long holiday periods as agreed between the parties in writing, and failing agreement: -
(i) Commencing at 10.00am on 27 December and concluding at 4.00pm on 31 December in Melbourne; and
(ii) Commencing at 10.00am on 12 January and concluding at 4.00pm 15 January, in Melbourne;
(e)Any additional or alternative time as agreed between the parties in writing.
7.Upon the child commencing Year 3, the child spend time with the Applicant as follows:
(a)In Melbourne on the first weekend of each calendar month, from 10.00am on Saturday until 3.00pm on Sunday;
(b)In Adelaide, on the third weekend of each calendar month, from 4.00pm on Friday until 4.00pm on Sunday;
(c)For the first half of all term 1, 2 and 3 school holidays periods, being the first half in even years and the second half in odd years, with school holidays deemed to commence from 10.00am the day immediately after the last day of required school attendance, deemed to conclude at 3.00pm on the day immediately before the commencement of the next school term and with the midpoint occurring at 12.00pm on the middle Saturday;
(d)For two consecutive weeks during the Term 4 summer long holiday period as agreed between the parties and failing agreement from 10.00am on 27 December until 10 January each year and concluding at 4.00pm 14 days thereafter; and
(e)Any additional or alternative time as agreed between the parties in writing.
Special Spend Time Arrangements
8.In the event the Applicant travels to Adelaide, and subject to Order 9, the child shall spend time with the Applicant: -
(a)For Christmas:
(i) From 9.00am Christmas Eve (24 December) until 2.00pm Christmas Day (25 December) in even numbered years;
(ii) From 2.00pm Christmas Day (25 December) until 5.00pm Boxing Day (26 December) in odd numbered years:
(b)On the child’s birthday, in the event the child’s birthday falls during time the child would have otherwise been in the Respondent’s care: -
(i) In the event the birthday falls on a non-school day, from 9.00am until 2.00pm; and
(ii) In the event the birthday falls on a school day, from the conclusion of school until 6.30pm.
(c)On the Applicant’s Birthday, in the event the Applicant’s birthday falls during time the child would have otherwise been in the Respondent’s care: -
(i) In the event the birthday falls on a non-school day, from 9.00am until 2.00pm; and
(ii) In the event the birthday falls on a school day, from the conclusion of school until 6.30pm.
(d)On Parsi New Year, in the event the child is not already in the Applicant’s care:
(i) In the event the Parsi New Year falls on a non-school day:
(A)From 9.00am until 2.00pm in even years; and
(B)From 2.00pm until 6.00pm in odd years.
(ii) In the event the Parsi New Year falls on a school day:
(A)From the conclusion of school until 6.00pm.
(e)On Navroze, in the event the child is not already in the Applicant’s care:
(i) In the event the Navroze falls on a non-school day:
(A)From 9.00am until 2.00pm in even years; and
(B)From 2.00pm until 6.00pm in odd years.
(ii) In the event the Parsi New Year falls on a school day:
(A)From the conclusion of school until 6.00pm.
(f)Any additional or alternative time as agreed between the parties in writing; and
(g)All Orders which are inconsistent with this Order are suspended to the extent of their inconsistency.
9.In respect to Order 8 hereof, the Applicant shall provide the Respondent with no less than 4 weeks written notice of any intention to travel to Adelaide to spend time with the child.
10.That the child spend time with the Respondent as follows: -
(a)For Christmas:
(i) From 9.00am Christmas Eve (24 December) until 2.00pm Christmas Day (25 December) in odd numbered years;
(ii) From 2.00pm Christmas Day (25 December) until 5.00pm Boxing Day (26 December) in even numbered years:
(b)On the child’s birthday, and in the event the child’s birthday falls during time the child would have otherwise been in the Applicant’s care: -
(i) In the event the birthday falls on a non-school day, from 9.00am until 2.00pm; and
(ii) In the event the birthday falls on a school day, from the conclusion of school until 6.30pm.
(c)On the Respondent’s Birthday, in the event the child would have otherwise been in the care of the Respondent: -
(i) In the event the birthday falls on a non-school day, from 9.00am until 2.00pm; and
(ii) In the event the birthday falls on a school day, from the conclusion of school until 6.30pm.
(d)On Parsi New Year, in the event the child is not already in the Respondent’s care:
(i) In the event the Parsi New Year falls on a non-school day:
(A)From 9.00am until 2.00pm in even years; and
(B)From 2.00pm until 6.00pm in odd years.
(ii) In the event the Parsi New Year falls on a school day:
(A)From the conclusion of school until 6.00pm.
(e)On Navroze, in the event the child is not already in the Respondent’s care:
(i) In the event the Navroze falls on a non-school day:
(A)From 9.00am until 2.00pm in even years; and
(B)From 2.00pm until 6.00pm in odd years.
(ii) In the event the Parsi New Year falls on a school day:
(A)From the conclusion of school until 6.00pm.
(f)Any additional or alternative time as agreed between the parties in writing; and
(g)All Orders which are inconsistent with this Order are suspended to the extent of their inconsistency.
Cost of Travel
11.The child’s travel to Melbourne shall be paid as follows: -
(a)During all periods pursuant to Order 5(a), 6(a) and 7(a), with the Respondent to pay for the child’s airfares to Melbourne;
(b)During all periods pursuant to Order 5(b), 6(b) and 7(b), with the Applicant to pay for his airfares to Adelaide;
(c)During all special occasions pursuant to Order 8 hereof, with the Applicant to pay for his airfares to Adelaide;
(d)During all school holiday periods (Order 6(c), Order 6(d), Order 7(c) and 7 (d)) the cost of the child’s airfares to Melbourne is to be shared equally as follows: -
(i) With the Respondent to book the flights at first instance; and
(ii) The Applicant to reimburse his half share of such flights within 7 days of receipt of the tax invoice from the Respondent.
Changeovers
12.For the purposes of Orders 5 through 10, changeovers shall occur as agreed between the parties and failing agreement as follows: -
(a)At the commencement of time between the child and the Respondent: -
(i) In Adelaide, at the Respondent’s residence;
(ii) In Melbourne, at the relevant arrival gate for child’s flight;
(b)At the conclusion of time between the child and the Respondent: -
(i) In Adelaide, at the Respondent’s residence;
(ii) In Melbourne, at the relevant departure gate for the child’s flight.
…
19.Both parties are at liberty to attend the child’s sporting, or extra-curricular activities and any assemblies or gatherings at the child’s school to which the parents are usually invited, irrespective of which parent the child is living with pursuant to these Orders.
Principal parenting issues in dispute
As can be seen, the principal issue in dispute was whether the mother should be permitted to relocate with X to Adelaide on 1 January 2021, when X will be about two years and five months old. The father opposed the relocation, and not propose any orders in the event that the mother is permitted to relocate with X.
The father was agreeable to X living with his mother for now, but proposed that X live in a week about arrangement with each of his parents once he is about three years and eight months old. The mother opposed an equal shared care arrangement.
Material relied upon
The father said in his case outline filed on 24 April 2020 that he relied on:
a.his amended application dated and filed on 22 April 2020;
b.his financial statement dated and filed on 22 April 2020;
c.his affidavit dated and filed on 9 April 2020;
d.his affidavit dated and filed on 23 April 2020;
e.the affidavit of Ms N (the father’s mother) dated 8 April 2020 and filed on 9 April 2020; and
f.the affidavit of Mr G (the father’s friend) dated 7 April 2020 and filed on 16 April 2020.
The mother said in her case outline filed on 27 April 2020 that she relied on:
a.her amended response filed on 15 April 2020;
b.her financial statement filed on 15 April 2020;
c.her affidavit filed on 15 April 2020;
d.the affidavit of Ms N (the mother’s father) filed on 15 April 2020;
e.the affidavit of Ms B (the mother’s sister) filed on 15 April 2020;
f.the affidavit of Ms K (the mother’s psychologist) filed on 15 April 2020;
g.the affidavit of Ms L (the family consultant) filed on 12 July 2019;
h.the material produced by the Region O City Council pursuant to the subpoena issued on 18 January 2019;
andi.the material produced by Employer D pursuant to the subpoena issued on 30 March 2020; and
j.the material produced by Suburb P Maternal & Child Health Care pursuant to the subpoena issued on 30 March 2020.
The family consultant’s report
The family consultant, Ms L, prepared a private family report dated 9 April 2019. It was exhibited to her affidavit sworn or affirmed on 2 July 2019. Ms L interviewed the parents and X on 4 April 2019, when he was eight months old. Unfortunately, her family report was not updated for the final hearing, by which time X was about 20 months old.
At the time of the family report, the mother’s response filed on 17 January 2019 was current. At that point, the mother sought to be permitted to relocate with X to Adelaide. It appears that she wished to be permitted to relocate immediately, when X was five months old.
Also at the time of the family report, X was spending time with his father pursuant to orders made by consent on 31 January 2019, which provided for X to spend time with his father:
a)from 10.30am until 12.30pm each Saturday and Sunday; and
b)from 10am until 12md each Thursday,
subject to:
c)no one other than the father being present except for on one occasion each week;
d)the visits occurring at a specified library and play centre; and
e)the father not being allowed to take X outside for more than 30 minutes if the temperature was more than 28° Celsius or less than 18° Celsius.
Ms L said in her family report that:
INTRODUCTION
1.This matter concerns the living and spending time arrangements for the child of the marriage, X, born in 2018. Given the child’s age, only 8 months old, the father’s application does not specify the final orders he seeks. The mother’s response seeks relocation to Adelaide and specifies that the child spend two hours twice per week, but neither her response nor Affidavit address the child’s time with the father if she and the child were to live in Adelaide.
2.Mr Channa also made an Application in a Case soon after his application, seeking a Recovery Order.
3.On the first return date, the parties agreed on interim arrangements that the child spend time with his father three times per week, for 2 hours Saturday, Sunday and Thursday from 10.30am to 12.30pm. The Orders restrict how that time is undertaken. Mr Channa wishes to progress the time and change or eliminate the restrictive circumstances. Ms Fernandez wants the current arrangement to remain for a considerable period into the future. X is 8 months old and is being breast fed. The mother lives in Suburb M and the father lives in Suburb H, and works in Suburb Q. There are practical limitations in designing the child’s care arrangements.
BACKGROUND
4.The parties met and married in India in 2013. The husband is an Australian citizen and the wife came to Australia immediately after the wedding. The former matrimonial home is in Suburb H where the husband continues to live and he works in Suburb Q. After separation, the mother found accommodation in Suburb M. The husband’s application to Court of 4 December 2018 was made prior to the parties separating. The maternal grandparents had been staying with them for some months and there was conflict within the marriage. Mr Channa was aggrieved because, as he perceived it, he was not allowed to spend sufficient time on his own with the child and more generally complained about the mother’s excessive control and his exclusion from the child. He further complained about deceitful behaviour by the wife and her parents, as well as expressing concern about the wife’s care of their baby, over-swaddling him and her lack of hygiene. He sought a Watch List Order fearing that mother and child would flee the country and return to India.
5.Ms Fernandez left the matrimonial home 2 days later, 6 December 2018 on being informed that she would be served with Family Law proceeding. In response, the husband filed an Application in a Case seeking a Recovery Order.
6.In some respects the parties make similar allegations. Ms Fernandez complained that the husband was controlling as did Mr Channa. They each made allegations that the other took their personal documents including birth certificates and other identity documents. In his affidavit material he alleged that it was for the purpose of impersonating him so a passport could be obtained, and at interview said that it was so that they could be naturalised Australian citizens. He sought a watch list Order fearing that the wife would flee to India with the child. He had installed cameras in the house and outside and the wife said that it was another method of knowing and controlling all her movements. He informed her only on the day of installation. Mr Channa is a professional and she claimed that her email accounts were hacked into.
7.The Orders of 31 January 2019 prescribe quite precisely how the child’s time is to be spent. The time is to be spent inside at the two designated venues, the library and the J play centre. Unusually they specify the temperatures outside of which the father is forbidden to take the child and he is only allowed to have him outdoor[s] for no longer than 30 minutes.
8.This report will address the question of whether the child should relocate now with his mother and what arrangements are appropriate for the child at present.
THE PARENTS
FATHER: Mr Channa– DOB 1984 :
9.Mr Channa presented as intense and anxious. He denied being anxious though he sat at the edge of the seat during the interview and frequently rubbed or wrung his hands. He was at times defensive giving explanations before answering, had difficulty being direct and he had a tendency to answer questions tangentially. His understanding of questions was literal and responses were couched in concrete terms.
10.The issues and the allegations which caused or led to the separation were still relatively vivid and although they did not dominate discussions about the child, suspicions remain and are a backdrop to their lack of trust of each other. The allegations one makes, in many respects are mirrored by the other, and both parties perceive the other as wanting to control and exclude them.
11.Throughout the interview Mr Channa was focused on the child and whenever he spoke of X, he beamed with pleasure. He is intensely devoted and all his considerations were about his relationship with the child.
12.He perceives his time to be restricted and supervised although the Orders do not say that it is to be supervised. The mother was said to remain either in the building with them or nearby and she is periodically seen in the same room or vicinity during his time. The father is restrained from taking the child outside unless the outside temperature is within the prescribed limits. He had no explanation for the reason for these limitations. He agreed to the mother’s demands for the sake of commencing to see his son and to maximise the time they can spend together.
13.Despite his frustration, his expectations for the future were stated in reasonable terms and considerate of the child’s needs. He said that as X grows older he wants more time as “would be appropriate for his age and to allow us to bond”. Given the child’s age, he does “not want to only see him on the weekend but also during the week as frequently as possible”. He would like to “spend time and to develop in the normal way and to enjoy activities together”. His ideal was to see the child every day after work during the week. He highlighted that he took X swimming at 4 months of age and wants the opportunity of doing such regular activities. Ms Fernandez said that he had only once taken the child to the pool. He wants unrestricted time and feels hampered by having to be “within the four walls”. Since the Orders were made he has only been able to take X outdoors on 3 or 4 occasions because of the weather limitations and it is likely to be more difficult in the near future because the weather will be colder.
14.He had a number of complaints about the wife including that she does not inform him of things that are happening, X’s routines, what he eats and claimed that she only sometimes answers his emails and that she keeps the communication book so that the is prevented from asking questions. He claimed that he is not permitted to feed him but allowed only to give him water, which he brings, [sterilised], from home. He said that he did not know what X is eating but with further questioning, he disclosed that he had been told in January or February that the child had commence solid foods and been informed of the type of foods as he progressed to include a wider range of pureed foods. Similarly, he said that he was at a loss to know or understand why the hours were chosen to be 10.30am to 12.30pm. He blamed the mother for not responding to his communications. From the examples he gave, it appeared that he initiates multiple enquiries and that he expects responses quickly and to all his communications, sending reminders and follow ups. Some examples of his communications appeared to be reasonable enquiries, such as how to arrange his time on public holidays when the library is closed. He would prefer to speak to her directly and after having interviewed the mother, there is a distinct lack of awareness by him of her need to have little direct contact and communication with him.
15.Mr Channa works in Suburb Q as a professional and said that his work is specialised so that he would not find employment in South Australia. He could not describe what if any transferable skills he has in the industry, and maintained that he can only work for his current employer. He leaves for work at 7:45am, works 8:36 hours but longer sometimes, and arrives home 6:30 pm to 7:00pm. He said that his employer is flexible but then he said he did not want to spend time during the day because of his employment. The current midweek time is inconvenient as it occurs during the day. He would prefer it at the conclusion of the day. He was unable to say as to whether this would fit in with X’s sleep routine. The distances to be travelled are problematic: Suburb Q, Suburb M and Suburb H. He is willing to travel to Suburb M to the mother’s home if he could have longer and unrestricted time during the week as well as the weekend.
16.Mr Channa positively glowed with pleasure and pride whenever he spoke of X. He absolutely delights in the child’s development and described with beaming smiles what the child can now do. The father seemed to have good observational skills and showed awareness of his own reactions. X can now crawl and stand and the father is mindful that he should “allow him to explore rather than selfishly hold him” in his arms as he is tempted to do. There is a degree of indulgence in how he responds to the baby.
17.He is happy to attend to all X’s needs and was even proud that he had now grown to a size 3 nappy. The change in nappy size is an indicative example of how each of the parties communicates with and perceives the other. Mr Channa complained that while the mother told him the new size of the nappy he should now buy, she did not inform him and did not respond to his communication asking which brand. He looked at the nappy provided by the mother and “figured it out myself”. Ms Fernandez was concerned that the father has little awareness of the child’s needs and has to be directed and informed on the minutia of even [basic] tasks.
18.The husband was asked about whether he still had concerns about the mother’s care given his criticisms of her in his affidavit material of her hygiene and overly clothing and wrapping the baby. He had difficulty answering the question directly, still concerned that he did not know what is happening with the child at the mother’s home. A series of questions had to be asked in order to have clear answers about whether the child was happy and well and had developed well, was clean and had clean clothes. He ultimately answered that X was well cared for on each count but they were begrudgingly given, and he still needed to point out that X has not gained sufficient weight very early after birth and that the child supposedly “smells a bit” in the morning when he spends time with his father.
19.Mr Channa is opposed to the mother’s relocation to Adelaide as clearly the distance, at this age, precludes the development of a bond with his son which can only happen by having frequent visits. He volunteered that he will support his son financially and … provide whatever he needs. He hopes in the future, as the child is older, to have more time, approximately equal time, and to be involved daily in all aspects of his life and not just on weekends or holidays.
20.The husband lives on his own and has no family in Australia but has a good range of close friends mostly in Melbourne and some in Sydney. His mother visits from India for periods at a time. The child’s godparents are immensely interested in seeing the child but current Orders are not conducive and the number of visits other people can attend is restricted to only once per week. He wants the opportunity to invite his friend or friends and to take X to see them. His pride and pleasure in his son is genuine and infectious and his colleagues at work even closely follow the child’s development.
MOTHER: Ms Fernandez – DOB: 1986
21.Ms Fernandez presented as relatively calm and more directly answered questions. She was equally proud and pleased with X’s progress and reported the child to be generally, happy, active, alter and highly social for a baby of his age. X has reached the developmental stage of having some reactions to strangers, but in comparison to other babies, he is very interactive. He easily interacted with me and even initiated smiling and holding his hand out to be touched at the first meeting. He seeks his mother’s approval at times before interacting with others and demonstrated a healthy, secure and confident temperament. The Mother has enrolled X in classes which provide him with a range of experiences, such as music and movement for babies and interaction with others.
22.The mother was pleased to hear feedback that the child is displaying the behaviours of a well cared for baby and that he is being provided with competent, nurturing parenting. Both from her and the father’s description of their interactions with the child, as well as my observations, each of the parents indulges the baby’s needs to a degree, with both being sensitive to and allowing the X’s responses to dominate. To date it has [led] to a very contented and confident baby.
23.The mother had difficulty describing or summarising the child’ routine. Sleeping and feeding schedules were dependent on when the child seeks to be breastfed and I was not given specific times of when he sleeps. Ms Fernandez feeds X on demand and one of the reasons she does not want to increase the time he spends with his father, is because the child is hungry on return and demands to be breast fed and is also very tired. She said that solid foods at present are not sufficient and do not replace a full breast feed.
24.On the day of the interviews, when the child was returned after spending time with his father for approximately 1.5 hours, X was observed to immediately seek the mother’s arms and wanted to be breastfed. He fed hungrily from both breasts. He gently clung to his mother on return and uses the mother’s cuddling and feeding as a means of reconnecting with her and receiving reassurance. This is not unreasonable and expected given the child’s age and the mother’s more indulgent practice. On occasion, the child arrives asleep from spending time with his father, indicating that X is relaxed. The mother is pleased when this happens and said that it is much better for his return trip home, especially if he does not wake.
25.The mother openly admitted that the spending time arrangements are going well and reconfirmed that she wants to support the child’s relationship with his father. Both parents facilitate the changeover well. She arrives early at the changeover venue to prepare the child, speaking positively and encouragingly about seeing his father. She encourages X who takes a little time to appreciate that he is going to his father and then warms to, and interacts with him. The process is made easier by using this gentle and facilitative approach. I observed both parents facilitate change over and on both occasions the two were faultless in their sensitive approach.
26.The mother likes the current arrangements and wants them to continue. She admitted that the restrictions on the circumstances of the contact period were at her request. The reason for restricting the child from being taken outdoors if the temperature is outside the specified 18 to 28 degrees is because X easily gets colds. She insisted that this was so and had the support of the child’s doctor, and she maintained that these restrictions were required although the contact occurred in the summer months. She had a similar explanation for restricting his time outdoors to only 30 minutes. She further raised the father’s lack of skills in caring for the child. The mother’s concerns at interview seemed overstated and unrealistic. Unless there is clear evidence of a particular illness or susceptibility to illness and X is different to other children, then those restrictions should be removed. Ms Fernandez is a good mother but she is anxiously overprotective to the point of overseeing or controlling the father’s circumstances and interactions with their child. The father’s ineptitude in some practical matters, although not his overall care of the baby, and persistent questions to her reinforce her perception of him. Both parents’ anxieties inflame their need to control the other person.
27.The father complained that she is often in and around the facility and feels that it amounts to supervision. The mother denied that she is constantly there [and] said that she “goes away”. It was not clear whether she leaves the venue or simply goes to another room. She said she looks forward to the time when they have longer periods together so that she can attend to her chores or her own needs.
28.Ms Fernandez wishes to relocate to Adelaide for a number of reasons, all of which are reasonable in view of her circumstances. She is unemployed and her former employer, Employer R in Suburb S, does not now have a full time position for her. She was working on a part-time basis prior to taking maternity leave. She effectively has no income and relies on financial support from her parents and her sister. They funded her car and many other expenses, and she is now in debt to them. [The mother maintained in her oral evidence that she told the family consultant that the father paid her child support.] She needs full-time employment in order to be able to pay for her own apartment or home as she would otherwise not be able to afford the rent. She and the child are currently renting one room from people of the same caste, but it is in Suburb M. If she was permitted to relocate with the child, she would live with her sister and family, rent free. She would have both the financial and emotional support she needs and X would be with twin cousins who are 2 years old. Ms Fernandez has no family in Melbourne and no friends as the friendship circle the parties had during the marriage was that of her husband. Her parents live in India and periodically come to Australia. Her mother stayed in the same room with her and X while the paternal grandfather had to obtain hotel accommodation. Her parents left on the day of the interviews for this report.
29.Ms Fernandez was asked how she would feel if she was not permitted to relocate, and her response was that she “was happy to stay” but that life would be difficult financially and without supports. She will need to work full time and is likely to move to the eastern suburbs or close to her employment but was otherwise unable to be more specific. In summary, she lives in constrained circumstances with limited financial resources and without any practical or emotional supports.
30.Some time was spent discussing options for other spending time arrangements but there appeared to be many practical considerations which became difficult to overcome. She was opposed to increased time because of X’s breast feeding needs. He has teeth and has begun eating solids in the form of purees including fruit and a range of vegetables but she considered the solids insufficient to satisfy the child’s hunger in lieu of breastfeeding1. She would not agree to the husband feeding the child any food and he is restricted to only giving X water. Any solids would have to be home made by her and she did not agree with giving the child any purchased baby purees.
1 The World Health Organisation, guidelines on Infant and Young Child Feeding suggest the introduction of food supplements from 6 months onwards and by 9 - 23 months can involve 3 - 4 meals of using supplementary foods as well as 1 to 2 additional snacks. They also state that on demand feeding can continue to 2 years of age or beyond.
31.Travel to Suburb H from Suburb M takes her 45 - 60 minutes although she leaves 2 hours before the appointed time so that she has additional time to feed and prepare the baby. She would agree to the father collecting from or delivering him to Suburb M but not her home and similarly agrees to travel to Suburb H but not to conduct the changeover from the former matrimonial home. Her preference was that the period of time should remain the same for approximately another year. The options became very limited as a result of her feeding practices and child’s unspecified sleep pattern.
32.The parties communicate via a communication book, email and text. While the father complained that she does not respond, the mother explained that he initiates too many communications, seeking overly detailed information, and that he is critical of her and taunts her. She said that she informs him of about all of the foods X can eat and about medical and other appointments, to which the father has not attended. There remains a degree of distrust of the father although she clearly stated that she has no fears about the child’s safety in his care.
CHILD: X - DOB : 2018
33.The child was observed with each of his parents and the changeover transitions were also observed from the mother to the father and later, from the father to the mother.
34.Despite their differences both parents were impressive in their ability to be sensitive and highly facilitative of the child going from one to the other parent. After a little pause, X easily reached out to his father and was very happy to be returned to his mother. Mr Channa was gentle and facilitative and did not rush the process. The mother modelled delight about seeing his father, to which the child responded with pleasure. Both parents were exemplary in their conduct in the presence of the child. Whereas X was a little hesitant to go to his father, he had no such hesitancy when returning to his mother. As indicated above I noted the child was ravenous, needing to be breastfed after only 1.5 hours and gently seeking his mother’s constant touch. X was in other respects not adversely affected by spending time with his father.
CONCLUSION
35.The parents separated in December 2018. Their dispute about the baby commenced before the separation and in many respects, it has been a relatively short time since their separation. Both parents presented with a degree of anxiety, which was also projected as concerns for the baby’s care and a tendency to mistrust the other. The mother tends toward being anxiously overprotective and a little indulgent. X is the centre of her world and she is singularly devoted to the child. The father is also devoted and indulgent. He was additionally intense at times and combined with his inexperience, has possibly led to asking many questions of the mother. Despite their differences and dispositions, they have conducted themselves in an exemplary manner in the presence of the child. They both have placed the child’s needs as their principal consideration and X has optimally developed and thrived.
36.X is a healthy, happy little by with an excellent disposition and confidence. He is undoubtedly attached to his mother and that attachment is secure and stable. It is indicative of having received positive, nurturing parenting which provides for the child’s needs at the time that he needs that nurturance. It is the building block of a secure, even temperament and the basis of a successful early childhood development.
37.X is fed on demand and sleeps when he needs to. The mother was not able to describe the pattern or schedule. The child has several teeth and continues to be teething and he commenced eating solids some 2 months ago. He is standing and crawling and is enthusiastic to stand on his own. His progress is typical of young babies of his age and within the normal developmental milestones.
38.It is likely that X could manage spending a slightly longer period of time with his father, the observations were that he was very happy and needed to return to his mother after he spent only 1.5 hours with his father. His feeding and sleeping needs should be the prime considerations, as they are the basic needs of the baby. While it is difficult for the parents and requires both patience and sacrifices on their part for the time being, the child’s needs should predominate and are the paramount considerations. His time could later progress as with other children of his age and temperament.
39.The restrictions placed on the father’s care of X are excessive and unnecessary. Unless there is a clear diagnosis of an illness rather than the mother’s description of the child being sensitive to the weather, the restrictions on how the child spends his time with his father should be removed. Mr Channa should be able to take him outdoors at his discretion. Friends’ and family’s attendance should not be restricted as it will not interfere with the development of the child’s relationship with his father, but instead give him a broader experience of their time together.
40.Similarly there is no reason why the father cannot feed the child pureed food, whether purchased or home made, and he should be encouraged to do so. This will also prepare both father and child for longer periods of time in the near future.
41.At this stage it would be more facilitative for the mother to deliver the child to Suburb H and the father [to] return him to Suburb M including for the time during the working week. It provides for the father to spend time at his home or outdoors and it is more convenient if the child needs to sleep during his time with his father. When X spends longer periods it will be expected that he have a sleep at his father’s home and Mr Channa can attend to the baby.
42.I recommend that the time be increased for half an hour on each of the 3 days per week. After approximately 3 - 4 months the time should increase to four hours on the weekend and 3 hours mid-week.
43.Thereafter the period of time should increase to 6 hours on Saturday and Sunday when the child is around 16 months of age and progress to full 8 [hour] days on consecutive Saturdays and Sundays at some time in the future. He should continue to spend 3 hours mid-week with his father. It is difficult to be minutely prescriptive as it is unknown whether X will still be breastfeeding and the extent or capacity and practice of having other solid meals as replacements for breastfeeding. For these reasons it is difficult to predict other times and especially when overnight time should commence. While X is breastfeeding, the dates of when 8 hour long days and overnight time are difficult to recommend and overnight [is] unlikely to be able to commence prior to the child turning 2 years old.
44.The question of whether the mother is permitted to relocate with the child is dependent, from a psychological perspective, on her needs and circumstances, the child’s relationship with his parents and how his relationship with his father can be maintained. Whether the father is able to relocate is also a relevant factor. There is no question that X’s attachment is with his mother and that he thus should live with her, and it is my recommendation, that he do so for the foreseeable future. X should spend as much time as is possible with his father in accordance with his physical and psychological needs. The relationship between father and son will develop over time to create some bond and the period of time will increase commensurate with the child’s developmental needs. In this case overnight time cannot commence prior to the child turning 2 years of age and then, an assessment is required to determine if X is ready and able to be away from his primary attachment parent for longer periods and without breastfeeding.
45.As to her relocation to Adelaide, in summary as noted above, Ms Fernandez lives in constrained circumstances with limited financial resources and without any practical or emotional supports. She undoubtedly finds it difficult. To date she has been solely focused on her care of X and parenting activities and any substantial financial support has been from her parents and sister. The impact of such isolation from family over time and in the future is as yet unable to be assessed. Ms Fernandez has done well since the separation despite these difficult circumstances. It is understandable and desirable that the mother and child should live in improved circumstances and that she has the support of family.
46.From the child’s perspective, if he was to live in Adelaide, he could regularly spend time with his father for long weekends or for a number of days in one block. This could commence once the child has developed and is able to spend some blocked time with his father for 3 - 4 days at a time. It is likely to be when he reaches around 5 years of age, but could be earlier if the parents agree and X is able to manage 3-4 nights away without adverse effects. Adelaide is only approximately an hour away and frequent weekends, fortnightly or monthly could be more easily managed. Skype and Facetime several times per fortnight would continue the relationship’s development.
47.There are currently too many uncertainties to be able to more confidently make recommendations into the future. These include whether the mother will be working and where she will be living in Melbourne, and how the child develops and his routine. The parties’ proposals should she relocate have not been addressed to any degree and in particular, the father’s employment and whether he can relocate.
48.Both parents would benefit from attending a post-separation parenting course in particular to assist them with their communications. The father would also be assisted by attending a parenting skills course primarily to learn more about babies and young children.
Changes following the release of the family report
Following the release of the family report, orders were made by consent on 18 June 2019 that X spend time with his father:
a)from 1 June 2019:
a.each Thursday from 7am until 9:30am; and
b.each Saturday and Sunday from 10am until 12:30pm;
b)from 1 October 2019:
a.each Thursday from 7am until 9:30am; and
b.each Saturday and Sunday from 10am until 2pm; and
c)in 2019, X’s birthday, from 8:30am until 11am.
That is, X’s time with his father was increased a little, and the restrictions on who could be present and where X was to spend time with his father were removed, as were the temperature restrictions. The father utilised leave from work to be able to see X on weekdays.
By orders made by consent on 10 September 2019, X’s time with his father was further increased as follows:
a)from 1 November 2019, each Monday, Wednesday and Friday from 10am until 4pm; and
b)from 1 February 2020, each Wednesday, Saturday and Sunday from 10am until 4pm.
By agreement, and as a trial, X spent overnight time with his father from 5pm on Friday 20 March 2020 until 12md on Saturday 21 March 2020.
Similarly, by agreement, and as a trial, X spent overnight time with his father from 5pm on Friday 10 April 2020 until 12md on Saturday 11 April 2020.
On 20 April 2020, the parents agreed to interim arrangements for X to spend time with his father:
a)each Tuesday and Thursday from 10am until 4pm;
b)each alternate weekend from 5pm Friday until 12md on Saturday (commencing 24 April 2020); and
c)each alternate Sunday from 10am until 4pm (commencing 26 April 2020).
By the time the trial commenced on 29 April 2020, the mother had resiled from her initial position that relocation occur forthwith, at which time X was five months old. At the time of the trial, the mother proposed that relocation occur when X was two years and eight months old. The mother also agreed, during the course of the trial, to immediately increase X’s time with his father to two overnights per week, to strengthen X’s bond with his father prior to the relocation.
The family consultant’s oral evidence
In cross-examination by the father:
a)Ms L was unable to say whether it was good that X’s time with his father had progressed to overnight time at the relatively early age of 20 months because she had not seen X or his parents since X was eight months old;
b)she agreed that the communication book indicated that the father’s written communications with the mother from 14 September 2019 onwards were fine, except for one exchange about X’s flu vaccine which could be characterised as controlling and was probably reflective of the father’s anxiety about X’s health;
c)she said that commencement of overnight time consisting of one overnight per week was fine for a securely attached child who had turned two, but two overnights per week for such a child would be a stretch;
d)she and, in her opinion, most psychologists definitely would not recommend that a three and a half year old child have week about time with each parent, contrary to the father’s proposal;
e)she would not specify an age where equal time with each parent would be appropriate, saying whether equal time was appropriate at all always depended on the child and the parents in each case;
f)she said that, if X is to have two consecutive overnights per fortnight starting with his father in January 2021, the first few visits should take place in Adelaide, rather than alternating between Adelaide and Melbourne immediately;
g)she said that two consecutive overnights would be a little early for X in January 2021, and that plan should be tried out before becoming a regular pattern, whether X was living in Melbourne or Adelaide;
h)she said that overnight time would normally be substituted for mid-week time between two and three years of age, depending on how the child was developing; and
i)she said that, if X is doing well, she would continue with one overnight for some time longer before increasing to two overnights.
In cross-examination by the mother, Ms L said that:
a)commencing in January 2021, two consecutive overnights per fortnight would be more than usual, but, provided that X was already stable, and there was no conflict between the parents at changeover or otherwise, she would support it;
b)four overnights per fortnight commencing in December 2020, as the father proposed, was far too much for a child of X’s age, being 28 months at that point;
c)equal time when X is three years old was not appropriate, as it would destabilise his attachment to his primary carer, being his mother;
d)two overnights a fortnight would help to develop X’s bond with his father, which is a different thing to attachment;
e)notwithstanding that the mother’s sister had visited her 10 times since separation, and her parents had visited her five times since separation, if the mother says she felt isolated from her family then, unless she was considered to be not telling the truth, then that is what she feels and what she needs; and
f)the mother had done relatively well on her own, but young mother’s want support from their families.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with the court’s power to make orders in respect of children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) of the Act provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will address the relevant considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
There is no doubt that X would benefit from having a meaningful relationship with both of his parents. They are both devoted to him and, except for some anxiety on both their parts that has led to some controlling behaviour, they are both appear to be exemplary parents.
X has his primary attachment with his mother, but his bond with his father is also very important for his normal emotional and psychological development. It is imperative that X’s bond with his father is fostered.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
These factors are not current issues in this case. However, the father’s case was that, since 14 September 2019, he has been much better behaved than previously. He did not seek to explain or justify his previous behaviour. In effect, this was a concession on the father’s part that his behaviour prior to 14 September 2019 was indefensible. The mother’s evidence was that the father was controlling and disparaging of her, rather than physically violent or abusive. In broad terms, I accept that evidence, but also accept that it is largely in the past.
Both parents have been somewhat controlling in connection with X’s care. That has been motivated by anxiety as new parents, especially as they separated when X was only four months old.
The mother imposed restrictions on X’s time with his father, descending to the detail of how many minutes the father could spend outside with X, subject to a certain temperature range. This was controlling behaviour, but the product of anxiety about X’s welfare.
The father, even after 14 September 2019, tried to ensure that X had his flu shot at a particular place and at a particular time. Again, this was reflective of concern about X, and was the product of anxiety about X’s welfare.
As X has grown, both parents have relaxed a little more and have settled into their roles as parents. By all accounts, X is developing beautifully, and both parents, but particularly the mother, can be commended for how well they have cared for him.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X is obviously much too young to have expressed any views, or for the court to take them into account.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
By all accounts, X has a solid attachment to his mother and a growing and comfortable bond with his father. There is no suggestion that X does not love and need both of his parents.
There was little evidence about X’s bond with other family members. However, the mother’s sister and parents have visited the mother and X many times since separation. It could be expected that X has developed a connection with his maternal extended family.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Both parents have taken every opportunity to be as involved as possible in X’s life. He lives with his mother. His father has taken time off work to spend time with him mid-week, as well as on weekends, and appears to be doing everything within his power to have as much time with him as possible. The father, for example, has attended all but one of X’s medical appointments.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father pays child support more or less as assessed. The mother otherwise fully supports X.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
It is not proposed that X be completely separated from anyone. If X were to relocate to Adelaide, his bond with his father would need careful attention, to ensure that their bond remains strong.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
At present, there are no significant difficulties with X spending time with his father, although the father lives in Suburb H and the mother lives in Suburb M. Those suburbs are about a half an hour drive apart. Obviously, if the mother and X relocate to Adelaide, there will be very significant expenses and practical difficulties in X maintaining a relationship with his father, unless the father moved to Adelaide as well.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents clearly have the capacity to provide for X’s needs. They are both intelligent and educated people, who are devoted to X.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Both parents are Parsis and members of the Zoroastrian religion. There is no cultural conflict in this case, or any suggestion that either parent would not nurture X’s cultural heritage or sense of identity.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents have demonstrated an admirable attitude to the responsibilities of parenthood. The mother, while initially imposing some unreasonable restrictions on X’s time with his father, has mostly been supportive of X’s relationship with his father. The father has done everything within his power to nurture his relationship with X and be a good father to him. The mother, in the difficult circumstance of being a single parent, appears to have done an excellent job of parenting X.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Happily, this is not a factor in the present case.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
Again, this is not a factor in the present case.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings. However, it is not apparent what that order would be.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
While it is well-established that a parent does not need to have compelling reasons for wishing to relocate a child’s residence, both parents in this case focussed on the mother’s reasons for wishing to move to Adelaide with X. I will address her reasons below.
a. mental health
The mother said that her mental health was suffering from stress and anxiety which would be alleviated if she and X could move to Adelaide and live with her sister Ms B, her husband, and their twin boys who are almost four years old.
The mother called evidence from her treating psychologist, Ms K. While the father did not dispute that the mother had attended Ms K 19 times since separation, on a weekly or fortnightly basis, the father otherwise strenuously attacked Ms K’s evidence and said it should be given no weight.
The father said that Ms K was not qualified to diagnose a mental health disorder, as she is not a clinical psychologist or psychiatrist. Ms K’s curriculum vitae indicates that she has a Bachelor’s degree in psychology from a university in Country T, has obtained a Masters’ degree in psychology from V University in 2015 and she also has some work experience as a counsellor.
Ms K said in her report that the mother had severe anxiety and depression. She based this assessment on the mother’s verbal self-report and on the mother’s answers to the Beck’s Anxiety and Depression Inventories.
Obviously, people are sometimes motivated to give false answers in self-reports, particularly in the context of legal proceedings. The mother was not a particularly credible witness. She frankly conceded that she had lied on her resume about her work experience when seeking entry to a Masters’ program at a Country W university, and tried to brush off that deceit as though it was nothing.
The mother also produced a document which showed, and she confirmed orally, that she had signed a transfer of shares in City C India in 2017 in the presence of two witnesses. However, her passport showed that she was in Melbourne on that date. The mother was not able to explain the discrepancy.
The mother’s father tried to explain the problem with the dates, saying that the mother had actually signed the share transfer in early 2017. That may be true, but, in circumstances where the transfer was apparently signed by the mother, dated in 2017 and purportedly witnessed by two people, the maternal grandfather’s evidence means that the share transfer was a false document. The whole point of signing, dating and witnessing a document is to say that it was signed on the given date. The maternal grandfather’s evidence overall lacked credibility, not least because he claimed to be a company director before conceding that he had recently been barred from acting as a company director for five years.
All in all, I consider that it is possible that the mother has fabricated or exaggerated her mental health difficulties to strengthen her case. That possibility is supported by the fact that there was no professional assessment of the mother’s mental state, independently of the mother’s self-report, and independently of the mother’s treating psychologist.
The possibility that the mother fabricated or exaggerated her alleged mental health condition is also strengthened by the fact that Ms K did not refer the mother to a doctor or a psychiatrist to provide medication for the mother, even though the mother has attended upon Ms K 19 times between 16 April 2019 and 19 February 2020, a period of ten months, and was allegedly continuing to present with severe anxiety and depression. If the mother really had been suffering from severe anxiety and depression for all that time, clearly, some other form of treatment should have been attempted. The fact that it was not suggests that the mother was not in truth severely anxious and depressed.
The father also argued that Ms K’s evidence should be given little weight because her registration as a psychologist was suspended for six months in 2015 for professional misconduct. Ms K did not disclose the suspension until she was asked for the second time whether her practise as a psychologist had been continuous for 16 years. She conceded that the nature of her misconduct was that she had engaged in a sexual relationship with a client.
The father argued that Ms K had allowed her emotions to affect her judgment in the case of her professional misconduct, and implied that Ms K had also allowed her emotions to affect her judgment in the present case. The father implied that, after 19 sessions, Ms K had become close to the mother, and provided a report that suited the mother’s needs in this litigation, rather than an objective and professional opinion. I accept that there is some force in this submission.
The father also noted that there was a significant discrepancy between Ms K’s assertion that the mother’s unhappiness started shortly before their first session in April 2018, (that is, she became unhappy at or shortly after the time of separation) and the mother’s evidence that she had been unhappy during the marriage.
By way of example, the father pointed to the mother’s email dated 8 November 2018 to the father in which she said:
In our nearly five years of marriage, I have been through a lot emotionally. If you recall, even after six months into our marriage we had no physical relationship. Till date, we do not have a relationship like husband and wife and stay like strangers under the one roof.
The father submitted that there was no connection between the mother’s mental health and their separation, contrary to Ms K’s evidence. However, any psychologist will say that there is a world of difference between unhappiness and severe anxiety and depression. While I do not doubt that the marriage between the mother and father in this case left the mother miserable, that is not to say that her anxiety and depression, if any, started prior to separation.
Ms K also said that the mother’s mental health was better when she was with her family. The father noted that the mother’s parents and sister had visited her often since separation and she had been a number of times to see her sister in Adelaide. The father said this evidence was inconsistent with Ms K’s evidence that the mother’s mental health was generally bad but improved when she was with her family. The father seemed to be saying that the mother was with her family a lot.
It is true that, at least prior to the COVID-19 pandemic, the mother did see a lot of her family, by most standards. However, that does not mean that she was not anxious and depressed in between times.
All in all, I have grave doubts about the reliability of Ms K’s evidence that the mother has severe anxiety and depression, and give it little weight. However, I do not doubt that the mother has had a tough time emotionally in the last several years, being the single mother of a very young child in a foreign country and after enduring five years of a very unhappy arranged marriage.
b. social isolation
The mother claimed in this proceeding that she had no family or emotional supports in Melbourne, whereas in Adelaide she would be able to live with her sister Ms B, her husband and their twin boys who are almost four years old. However, according to Ms K’s report, the mother did not intend to actually live in the same house as her sister for long, but planned to find a separate house nearby.
The father disputed that the mother was socially isolated in Melbourne. He noted that, immediately after separation, the mother and X stayed for six months with a friend, Ms U, who was like a sister to the mother. The mother’s friendship with Ms U has continued since the mother has found her own house. For example, Ms U cared for X while the mother was attending the four days of the final hearing in this matter.
The mother conceded that, following separation, she invited 25 to 30 people to X’s first birthday party. The mother conceded that, following separation, she continued to interact with a number of Parsi families. However, she maintained they were acquaintances rather than friends.
The mother conceded that she saw her sister and parents on the following occasions following separation:
a)on 6 December 2018, being the day of separation, her sister, Ms B, visited the mother in Melbourne;
b)on 17 to 18 December 2018, the mother visited Ms B and her family in Adelaide;
c)on 24 to 28 December 2018, the mother visited Ms B and her family in Adelaide;
d)later in December 2018, around New Year’s Eve, the mother visited Ms B and her family in Adelaide for about three days;
e)on 31 January 2019, the mother’s parents were present in Melbourne for the first court date;
f)the maternal grandmother remained in Melbourne with the mother for all of February and March 2019;
g)in 2019, Ms B visited the mother in Melbourne for the mother’s birthday;
h)in April 2019, the maternal grandparents visited the mother in Melbourne for the family report interviews;
i)in May 2019, the maternal grandparents were present in Melbourne for the family report interviews;
j)in June 2019, the maternal grandparents were present in Melbourne for an application in court;
k)in 2019, the maternal grandparents and Ms B visited the mother in Melbourne for X’s first birthday;
l)in September 2019, the maternal grandparents visited the mother in Melbourne for a court event;
m)in November 2019, the mother visited Ms B in Adelaide;
n)in December 2019, the maternal grandparents visited the mother in Melbourne for a family function; and
o)in February or March 2020, the mother visited Ms B in Adelaide.
Overall, the mother conceded in her oral evidence that Ms B visited her every few weeks or months, and the mother visited Ms B five times in 2019.
The father submitted that the mother was not socially isolated, because she saw Ms B or her parents often, without living in Adelaide.
While there were many visits, it may also have felt to the mother like there were large gaps between them. Different families have different frequencies of seeing each other. Different people have different needs in relation to spending time with other people, and with their families.
It seems to me that the many visits, especially by the maternal grandparents coming all the way from India (albeit on business class airfares) indicates that the mother’s family is very close to her, and that they were very concerned about her well-being and tried to do their best to support her.
As Ms L explained, there is a huge difference between the support people receive from close family, and the support they receive from all but the closest friends, much less from acquaintances or co-workers.
As Ms L also explained, if the mother feels isolated, she feels isolated. It is not for the father to tell her that she does not feel that way, or that it is unreasonable for her to feel that way.
Notwithstanding my doubts about the mother’s credibility generally, I do accept her evidence that she feels isolated living in Melbourne. That feeling would obviously have been compounded by the restrictions on movement caused by the COVID-19 pandemic, with the mother’s parents not being permitted to visit from India, and the border between Victoria and South Australia being closed.
c. work capacity
The mother also argued that, if she were permitted to relocate to Adelaide, she would find it easier to gradually return to work, with her sister’s financial, emotional and physical assistance, particularly with child care.
The mother has not been in paid employment since X was born in 2018. Previously, she worked in health care, earning $20,000 to $30,000 per year, on her account, or, on the father’s account, in the 2015, 2016, 2017, 2018 and 2019 financial years respectively, $22,073, $42,363, $19,374, $32,993, and $11,509 (five months only). Either way, the mother was in relatively low paid employment, although she does have a Masters’ degree from a prestigious university.
The mother’s argument was that child care fees would take so much of her salary that paid employment would be pointless in Melbourne, whereas, in Adelaide, her sister, Ms B, would be able to assist her financially and physically with child care.
Ms B said in her unsworn affidavit filed with the court on 15 April 2020 that:
a)she had a three-bedroom home and there was a room with an en suite reserved for the mother if she were permitted to relocate with X to Adelaide; (that may mean that X would share a bedroom with his twin cousins);
b)the mother and X could stay with her rent free for as long as they liked; and
c)Ms B and her husband work flexibly, and could assist with child care drop offs and pick ups for X.
In her cross-examination, Ms B said that:
a)she and her husband both work full-time, and each earned about $1,000 per week net;
b)they rented their house for $420 per week;
c)her visa required her to live in Adelaide until May 2020;
d)her children were enrolled in a school in Adelaide to commence in 2022; and
e)she and her husband are very fond of Adelaide and have strong support there from family and friends.
In re-examination, Ms B said that, if it were just herself, she would move to Melbourne in a heartbeat, but that she could not move without her husband and he did not wish to live in Melbourne.
The thinking seems to be that, because the mother could live rent free in her sister’s house until X starts school, the mother would be better placed to afford childcare if she lived in Adelaide, and could thus seek paid employment. Moreover, with two additional adults available, there would be more scope for the mother’s work to not be impeded by child care drop offs and pick up, or the occasional day when X had to stay home due to ill health. The same would apply after X starts school, albeit by then, the mother might have found her own home in the vicinity of Ms B’s home.
That all makes sense, although, with the COVID-19 pandemic impacting on employment levels, there may be some difficulty in the mother finding work, even with the support of her sister.
However, the father noted that:
a)even prior to her marriage, the mother did not work, but was studying or supported by her father;
b)during the marriage, she worked in health care because she was nagged by the father to contribute to the family finances;
c)between September 2014 and July 2018, she had four holidays in India;
d)when working in health care, she earned $25 per hour, so could earn $48,750 per year gross if she worked full time;
e)the mother could have worked on two to three days per week when the father was caring for X; and
f)Ms K was not qualified to give the opinion that the mother could not work because she was not an expert in returning to work.
I do not accept Ms K’s evidence on the mother’s work capacity. I have rejected her evidence about the mother’s psychological condition. Ms K is not an expert in returning to work. Much of her opinion was based on the mother’s life circumstances in any event, which I can assess for myself.
In any event, the father’s point seemed to be that the mother was not working now because she did not want to.
I accept that the mother does not have a work history that suggests that she is keen to work. However, the father’s suggestion that the mother could have worked while X was in his care was largely impracticable.
X’s time with his father was:
a)from 1 November 2019, each Monday, Wednesday and Friday from 10am until 4pm; and
b)from 1 February 2020, each Wednesday, Saturday and Sunday from 10am until 4pm.
Therefore, the period when X was spending three days a week with his father was only three months. There would not have been too many jobs that would have been available for such a short period within such restricted hours. In theory, the mother could now be working on a Wednesday, between about 10:30am and 3:30pm, to allow time for changeovers. However, the father did not point to any real world jobs that would accommodate those hours.
All in all, I consider that the mother, while not a person with a huge work ethic, has had a reasonable basis for not working since X was born, and may find it easier to return to paid employment if she lived in Adelaide.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The parents agreed that it is in X’s best interests for them to have equal shared parental responsibility for him. I also agree, and that order will be made by consent.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1)… if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)… if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Unfortunately, the parents in this case did not arrange to obtain an updated family report. Consequently, the only family report before the court dates from when X was eight months old. A lot has changed since then, in terms of X’s development, and in terms of the times that he is spending with his father. The court does not have the benefit of recent expert evidence in X’s particular case.
However, Ms L was very clear that equal time would not be in X’s best interests when he is three years and six months old, contrary to the father’s proposal. While people in family law proceedings sometimes make ambit claims, it reflects poorly on the father, and his insight, that he would even suggest equal time at such an early age.
The mother proposed that she would fund X’s travel to and from Melbourne once per month. Until X is four years old, he could not travel as an unaccompanied minor on Qantas. I assume therefore that the mother intended to pay for an adult to travel with X at least until then. It seems to me that it would be in X’s best interests for the mother to pay for one of the father’s trips to Adelaide every four weeks, until X starts travelling to Melbourne when he turns three years old.
To avoid arguments, the amount the mother should be required to pay should be the same as the amount that the father paid on his two previous return flights to and from Adelaide.
I consider that it is in X’s best interests for his parents to share equally the cost of X’s travel to and from Melbourne during school holiday periods. As the mother will presumably be arranging for someone to accompany X, it makes sense for her to book X’s flight and the accompanying person’s flight, and for the father to reimburse her half of the cost of X’s flight. If and when X travels unaccompanied, it would be preferable for the parents to alternate the booking and paying for the flights.
The father’s proposal to spend three straight weeks in the long summer holidays with X when he is five or six years old is patently not in his best interests. Spending such a long time away from his primary attachment at such a young age is potentially damaging. Similarly, a full week away from his mother in each term holiday when he is in his first year of primary school is not in X’s best interests.
In my view, the arrangements outlined above are in X’s best interests.
In relation to his and X’s birthdays, the father proposed that:
4.[X] shall spend time with the Father on [X’s] birthday if [X] is not already spending time with the Father then as follows:
a)From 8am to 3pm for 2020, 2021 and 2022;
b)If on a weekday then from afterschool or 3pm to 7pm; [and]
c)If on a weekend then from 8am to 3pm.
5.[X] shall spend time with the Father on the Father’s birthday [if] [X] is not already spending time with the Father as follows:
a)From 8am to 3pm for 2020, 2021 and 2022;
b)If on a weekday then from afterschool or 3pm to 7pm; [and]
c)If on a weekend then from 8am to 3pm.
In relation to X and the father’s birthdays, the mother proposed that:
8.In the event the [father] travels to Adelaide, and subject to [the father providing four weeks written notice], [X] shall spend time with the [father]:
…
(b)on [X’s] birthday, in the event [X’s] birthday falls during time [X] would have otherwise been in the [mother’s] care: -
i. In the event the birthday falls on a non-school day, from 9.00am until 2.00pm; and
ii. In the event the birthday falls on a school day, from the conclusion of school until 6.30pm.
(c)on the [father’s] Birthday, in the event the [father’s] birthday falls during time [X] would have otherwise been in the [mother’s] care: -
i. In the event the birthday falls on a non-school day, from 9.00am until 2.00pm; and
ii. In the event the birthday falls on a school day, from the conclusion of school until 6.30pm.
In my view, the rider proposed by the mother, that time on birthdays only occur when the father is in Adelaide, is sensible and in X’s best interests, unless of course the birthday falls on a weekend when X is in Melbourne. It is also sensible and in X’s best interest that the father give the mother four weeks written notice of his intention to exercise time on birthdays with X.
However, in my view, the times proposed by both parties are not in X’s best interests. In my view, it is in X’s best interests to spend time with his father for X’s and the father’s birthdays:
a)if the birthday falls on a non-school day, from 10am until 3pm; and
b)if the birthday falls on a school day, from the conclusion of school until 5:30pm.
The father did not make any proposal in relation to the mother’s birthday. However, the mother proposed that X spend time with her on her birthday, if he was not already with her:
a)if her birthday fell on a non-school day, from 9am until 2pm; and
b)if her birthday fell on a school day, from after school until 6pm.
I consider that, given that X will spend relatively little time with his father, and much of that will be in Adelaide, it is preferable that any such time not be interrupted for the mother’s birthday, which she can celebrate with X another time.
In relation to Parsi New Year and Navroze, the father proposed that:
6.That the Child shall spend time with the Father on Parsi New Year if the Child is not already spending time with the Father as follows:
a)From 6pm on Parsi New Year to 10am the following day
7.That the Child shall spend time with the Father on the occasion of “Navroz” if the Child is not already spending time with the Father as follows:
a)From 6pm on day of “Navroz” to 10am the following day
In relation to Parsi New Year and Navroze, the mother proposed that:
8.…
(d)On Parsi New Year, in the event the child is not already in the Applicant’s care:
(i)In the event the Parsi New Year falls on a non-school day:
(A)From 9.00am until 2.00pm in even years; and
(B)From 2.00pm until 6.00pm in odd years.
(
Bii) In the event the Parsi New Year falls on a school day:(A)From the conclusion of school until 6.00pm.
(e)On Navroze, in the event the child is not already in the Applicant’s care:
(i)In the event the Navroze falls on a non-school day:
(A)From 9.00am until 2.00pm in even years; and
(B)From 2.00pm until 6.00pm in odd years.
(ii)In the event the Parsi New Year falls on a school day:
(A)From the conclusion of school until 6.00pm.
(f)Any additional or alternative time as agreed between the parties in writing...
There was no evidence about how or in what part of the day these special events are celebrated. However, it is extraordinary that the father’s proposals did not alternate the overnights of Parsi New Year and Nawroze between the father and the mother, and the mother’s proposals made no allowance for overnights at all, even though the father seems to think that is the critical time.
In the absence of any evidence or submissions, I consider that it is in X’s best interests to divide up the two festivals on an overnight alternating basis. Obviously, any orders will be subject to X’s school commitments, and subject to the father being in Adelaide, and giving the mother four weeks written notice of his intentions. Also, X is too young to have an additional overnight at present, so this arrangement will not start until he is four years old.
For Christmas, the father proposed that X spend time with him:
a.For Christmas 2020 from 6pm on Christmas Day to 6pm the following day and to continue each year ending in an even number
b.For Christmas 2021 from 6pm on Christmas eve to 6pm on Christmas Day and to continue each year ending in an odd number
For Christmas, the mother proposed that X spend time with the father:
(i)From 9.00am Christmas Eve (24 December) until 2.00pm Christmas Day (25 December) in even numbered years;
(ii)From 2.00pm Christmas Day (25 December) until 5.00pm Boxing Day (26 December) in odd numbered years …
The father’s proposal would mean that X spent all of the special times at Christmas with one parent in any given year, which is not ideal. In my view, it would be preferable for X to spend the evening and morning with one parent, and lunchtime until the following morning with the other parent. This would allow X to spend the significant time at Christmas with both of his families.
For New Year’s Eve, the father proposed that:
a)For New Years Eve 2020 from 6pm on New Years Eve to 6pm on New Years Day and to continue each year ending in an even number
b)For New Years Eve 2021 from 6pm on New Years Day to 6pm the following day and to continue each year ending in an odd number
The mother did not make any proposals for New Year’s Eve.
It seems to me to be unnecessary for there to be any orders concerning X spending time with his father on New Year’s Eve. There is sufficient provision for special occasions without adding the complication of New Year’s Eve.
In relation to changeover, the father proposed that the mother deliver X to the father’s home at the commencement of X’s time with his father and the father return X to the mother’s home at the conclusion of time. That proposal could only work for the period prior to when the mother and X relocate to Adelaide. For that period, the mother proposed the opposite arrangement.
It is generally considered preferable for the parent who the child is with to deliver them to the other parent, because it signals very powerfully that the first parent is supportive of the child spending time with the second parent. There will be an order to that effect, to apply to the period before X moves to Adelaide.
The father did not make any proposal for changeover in the event that X and the mother were permitted to relocate to Adelaide. The mother proposed that, after she and X relocate to Adelaide:
12.For the purposes of Orders 5 through 10, changeovers shall occur as agreed between the parties and failing agreement as follows: -
(a)At the commencement of time between the child and the Respondent: -
(i) In Adelaide, at the Respondent’s residence;
(ii) In Melbourne, at the relevant arrival gate for child’s flight;
(b)At the conclusion of time between the child and the Respondent: -
(i) In Adelaide, at the Respondent’s residence;
(ii) In Melbourne, at the relevant departure gate for the child’s flight.
The arrangements for Melbourne make sense. However, the arrangements proposed by the mother for Adelaide would require the father to do all the travelling between Melbourne and Adelaide, and also do all of the travelling within Adelaide. That is not in X’s best interests.
The usual arrangement should apply, where the mother delivers X at the commencement of X’s time with his father to the father’s accommodation in Adelaide, and the father returns X to the mother’s residence at the conclusion of that time. The only rider to that is that the mother should only be required to deliver X if the father’s accommodation is within 15 kilometres of the mother’s home. Otherwise, the father should do the collection and return.
Also, the mother’s proposal did not take account of the fact that some changeovers will occur at school times. In those cases, changeover should occur at school. This will give the father the opportunity to meet X’s teachers and school friends and their parents. All of that is in X’s best interests.
The father also sought an order for make-up time, in the following terms:
13.In the event that the Child does not spend time with the Father under these orders for any reason, the Child is to spend time with the Father on the next available day and on subsequent days until the contact time lost has been made up. This time is to be by way of “Make-up” time and such time is in addition to the time in Orders 2 – 11 above
That proposal strikes me as being pre-emptive. It may be unsuitable for the make-up time to be on the very next day. X may have missed out on time with the father due to the father’s choice, and then the father could in effect re-write the orders to have make-up time at a time of his choosing.
It does not seem to me to be in X’s best interests to impose such an order. Whether there should be make-up time depends on the circumstances. When make-up time should occur, if ever, also depends on the circumstances. It seems to me to be preferable to make no order about make-up time. However, the parents will understand that make-up time might be required in certain circumstances, which the parents should endeavour to work out themselves. Failing that, no doubt, an appropriate application could be made to the court.
The mother also sought an order that:
19.Both parties are at liberty to attend the child’s sporting, or extra-curricular activities and any assemblies or gatherings at the child’s school to which the parents are usually invited, irrespective of which parent the child is living with pursuant to these Orders.
The father did not oppose that order. I do not understand why he did not consent to it. Clearly, it is in X’s best interests and will be made.
There will be parenting orders accordingly.
Spousal maintenance
In the event that the wife were permitted to relocate to Adelaide, she proposed orders that the husband pay her spousal maintenance of $624 per week until she relocates, presumably on 1 January 2021, a period of about five months. The wife would have sought the same amount of weekly spousal maintenance for three years if she had not been permitted to relocate to Adelaide. As she will be permitted to relocate, the second part of her application is superfluous.
The husband opposed any orders being made for spousal maintenance.
Section 72(1) of the Act provides that:
A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
The matters referred to in s.75(2) of the Act are as follows:
The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The court is required under s.74(1) of the Act to take into account the specified matters and then make such order as it thinks proper.
The first issue in relation to spousal maintenance is whether the wife is unable to adequately support herself. The court is not required to consider the question of whether the husband is reasonably able to pay the wife spousal maintenance unless and until the wife establishes that she is unable to adequately support herself.
The wife is not working, but her financial statement dated 20 April 2020 does not disclose that she is in receipt of Centrelink benefits. By virtue of s.75(3) of the Act, the court is required to disregard the wife’s entitlement, if any, to Centrelink benefits. Nevertheless, it is mystifying that the wife would not have claimed Centrelink benefits, if she is in fact under financial pressure.
The wife disclosed in her financial statement that her only income is the $404 she receives from the husband for child support. The wife also said in her financial statement that she pays weekly rent of precisely that amount, and in total has weekly outgoings of $1,210.
The wife disclosed in her financial statement that she has a half share in the former matrimonial home, a share in a property in India that she holds on behalf of her mother, about $5,000 in bank accounts, about $500 worth of shares, a car worth $16,300, about $40,000 worth of jewellery, and about $10,000 in superannuation.
As mentioned above, the parties resolved their property dispute by consent. The effect of the property orders was that the wife would receive $151,129 by about 20 July 2020, all of her jewellery by about 8 July 2020, and a superannuation split of $46,475. She would also keep her car and money in her bank accounts and any property in India.
When explaining to the court the justice and equity of the proposed property orders, neither party drew to the court’s attention the fact that the wife had received $37,500 which was to be characterised at trial as either a part-property settlement or as spousal maintenance.
In closing submissions relating to spousal maintenance, the husband submitted that the court could now treat the $37,500 as lump sum spousal maintenance. I am not sure that is correct. One way or another, according to the wife’s financial statement, she no longer has much if any of the $37,500 and, according to her trial affidavit, has spent it on living expenses. That goes some way to explaining how the wife has managed to live when her only income is $404 per week in child support, which is the same amount as she pays in rent.
It is well-established that, in assessing an application for spousal maintenance, the court should disregard a property settlement received by the applicant, because the property settlement is notionally flagged for use in buying another home.
In the present case, the wife has indicated that she has no present intention to buy another home. On the contrary, her case was that she plans to live with her sister for largely emotional reasons. Also, in her trial affidavit at paragraph 57, the wife said that she intended to:
supplement my living expenses with the property settlement I receive from these proceedings.
Arguably, that means that the wife has her property settlement of about $150,000 to use for living expenses. However, in case the wife did not mean what she said, I will consider the matter further.
The husband’s case was that the wife actually has plenty of money and property in India and also has access to vast sums of money from her father. While the wife’s father is not obliged to support the wife, his money could be regarded as a financial resource under s.75(2)(b) of the Act.
The wife’s case mostly focussed on how much money the husband earns. However, as mentioned above, the question of the husband’s capacity to pay spousal maintenance does not arise unless and until the wife has established that she is not able to adequately support herself.
The wife also noted that the father offered to pay spousal maintenance of $300 per week in his amended application filed on 25 January 2019 but never did, and now opposes paying any spousal maintenance at all.
However, the husband explained that he consented to an order on 31 January 2019 that he give the wife $7,500 to be characterised at trial, and consented to an order on 18 June 2019 that he give the wife $30,000 to be characterised at trial. The husband paid those sums.
Moreover, the husband explained, at the time of his offer on 25 January 2019 to pay $300 per week spousal maintenance, he had not been assessed to pay child support. Since then, he has been assessed to pay child support. Also, there has been a property settlement.
In these circumstances, the husband’s initial concession that he was liable to pay spousal maintenance has been overtaken by events, and can no longer be regarded as an acknowledgement of his present obligations.
The husband’s case devoted a huge amount of time and effort to attempting to undermine the wife’s credibility and showing that she was personally well off, and her father was very well off.
In relation to the wife’s credibility, the husband submitted that:
a)the wife conceded in cross-examination that she had falsely claimed in a resume that she provided to a Country W university to satisfy the entry requirements for a Masters’ degree course that she had worked for her father’s company, AA Company, as a trainee for about one year and as an executive assistant for about three years;
b)the wife sought to justify her deceit by saying that it was to obtain admission to a university course, thus implying that she would lie to achieve any desired outcome;
c)the wife failed to clearly explain in her affidavit that she had three trips to India between June 2016 and February 2017;
d)the wife said in her affidavit that she earned $20,000 per year when in fact, in the year ended 30 June 2016, she earned $42,363 and in the year ended 30 June 2018, she earned $32,993;
e)Ms B, the wife’s sister, transferred a total of $19,975 to the wife during 2017 and the wife transferred a total of $45,000 to Ms B during 2018, leaving Ms B owing the wife $25,000;
f)nevertheless, the wife said that Ms B lent her $16,500 on 6 December 2018 to buy a car, although at that point Ms B was apparently $25,000 in debt to the wife;
g)the car “loan” was a sleight of hand, to make it look like the wife was in straitened financial circumstances;
h)the wife claimed that her sister, Ms B, had lent her $109,000 for legal fees, but Ms B and her father said that Ms B had lent the wife $60,000 to $65,000 from her savings for legal fees and the wife’s father had lent the wife $40,000 to $45,000 for her legal fees;
i)it was implausible that Ms B, who rents her home, and earns about $50,000 per year, would have sufficient savings to lend $60,000 to the wife, let alone the $109,000 that the wife alleged;
j)the records of AA Company indicate that the wife was employed by that company and earned a salary from 2011, although in cross-examination, her father, who runs the company, confirmed that the wife had never worked for AA Company, but was only appointed “on paper”;
k)there were various transactions with AA Company’s employee provident fund and the public provident fund that can only be understood as tax avoidance;
l)there were various “loan” transactions between the wife, her mother and AA Company that can only be understood as money laundering;
m)AA Company has over 100 employees and numerous properties;
n)the wife signed a sale of shares agreement in City C in the presence of two witnesses that was dated 25 February 2017, although her passport showed that she was in Australia on that date, having left India on 4 February 2017;
o)the wife was unable to explain the discrepancy;
p)the wife’s father said that the wife had actually signed the transfer of shares on 2 February 2017, even though it is witnessed as being signed on 25 February 2017;
q)the transfer of shares was supposedly from the wife to her mother, but the bank records supposedly showing the deposit of the proceeds of the sale of the shares in the wife’s account was actually a deposit in her mother’s account;
r)the supposed share transfer can only be understood as an attempt divest the wife of assets to make her appear less wealthy for the purposes of this proceeding;
s)the wife’s father admitted that the funds of AA Company were intermingled with the funds of the wife, her sister and her parents;
t)the wife’s father conceded that a property in City BB, which had been in the name of the wife and her mother, was sold and at least some of the proceeds were transferred to AA Company;
u)the wife attached to her affidavit a record of the husband’s Indian bank accounts which the husband did not give her and which were confidential and should only have been accessed by the husband and bank employees;
v)when asked in cross-examination, the wife said that she did not know where the record of the husband’s Indian bank accounts came from;
w)the wife’s father initially said in cross-examination that the record of the husband’s Indian bank accounts had been provided by the husband, but later claimed that he had found it among some papers;
x)in answer to a call for production, the wife’s father produced an email from him to the wife’s solicitors, copied to the wife and her sister, to which the wife’s father attached the record of the husband’s Indian bank accounts;
y)the wife’s evidence that she did not know where the record of the husband’s Indian bank accounts came from was patently false; she must have known the record came from her father;
z)the wife’s father must have obtained the record of the husband’s Indian bank accounts through an unlawful means;
aa)the wife’s father claimed that he was the director of two companies in India;
bb)when pressed, the wife’s father conceded that he has been disqualified from being a company director for five years;
cc)the wife’s father gave various sums to the wife, including $47,178 towards the purchase of the former matrimonial home;
dd)this money was recorded in official documents as a “gift” from Mr CC via the DD Bank;
ee)this appears to be tax avoidance;
ff)the $40,000 to $45,000 given by the wife’s father for her legal fees has not been supported by documentary evidence; and
gg)it was presumably transferred via the hawala route, and involved money laundering.
The wife’s position about these matters was that she could not answer many questions because her father handled all the financial matters and the cross-examiner would have to ask him. The wife’s closing submissions were to the effect that the wife’s father controlled all of the family assets in India, even assets that appeared to be in the wife’s name.
I obviously have not conducted a full audit of the wife’s and AA Company’s financial affairs, and cannot verify the husband’s allegations of tax avoidance and money laundering. However, a few points from the husband’s complaints stand out.
Firstly, the wife unashamedly conceded that she falsely claimed in her application to a Country W university that she had worked for AA Company. Her attitude appeared to be that lying on a resume was nothing. I disagree. The wife’s deceit gave her an advantage that she wanted and to which she was not entitled. One can only conclude that the wife would lie to secure any other advantage that she wanted, such as an advantage in this proceeding.
The share transfer was also alarming. At best, it means that the wife signed whatever her father put in front of her, without regard to its veracity. That suggests a dangerously negligent attitude towards the truth. However, the more likely explanation is that the share transfer was a complete fabrication designed, as the husband suggested, to conceal the wife’s true asset position.
The obtaining of the record of the husband’s Indian bank accounts goes to another level. It suggests not only unlawfulness, but also perhaps corruption of an officer of the bank. While the wife may not have been privy to the unlawfulness and possible corruption, she was its beneficiary. Her claim under cross-examination to not know where the record came from was patently false, in circumstances where it was emailed to her by her father and she attached it to her affidavit.
All in all, I am not satisfied that the wife is a credible witness, or that her financial position is as she claimed. The wife has not persuaded me that she is not able to adequately support herself. Consequently, it is not strictly necessary to consider the husband’s ability to pay spousal maintenance.
The application for spousal maintenance will be dismissed.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 5 August 2020
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