Dalal and Dalal
[2018] FCCA 33
•12 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALAL & DALAL | [2018] FCCA 33 |
| Catchwords: FAMILY LAW – Parenting – father lives in India – father has not seen children in two years – mother alleges significant family violence. |
| Legislation: Federal Circuit Court Rules 2001, rule 6.01(3)(a) |
| Cases cited: Redmond & Redmond [2014] FamCAFC 155 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR DALAL |
| Respondent: | MS DALAL |
| File Number: | MLC 2803 of 2017 |
| Judgment of: | Judge Harland |
| Hearing date: | 18 December 2017 |
| Date of Last Submission: | 18 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 12 January 2018 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondent: | Ms Said of Trapski Family Law |
| Solicitors for the Independent Children's Lawyer: | Ms Romer of Cathleen Corridon and Associates |
ORDERS
All previous orders be discharged.
The mother have sole parental responsibility for X born (omitted) 2006 and Y born (omitted) 2011 (“the children”).
The children live with the mother.
The father’s time with the children be reserved.
The mother is authorised to apply for and receive an Australian passport for the children X born (omitted) 2006 and Y born (omitted) 2011 passport pursuant to section 11 of the Australian Passports Act2005 without first obtaining the written consent of the other parent.
The Independent Children’s Lawyer be discharged.
NOTATION:
In the event the father returns to Australia to live, he may bring a further parenting application. The mother agrees that this would be a significant change of circumstances.
IT IS NOTED that publication of this judgment under the pseudonym Dalal & Dalal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2803 of 2017
| MR DALAL |
Applicant
And
| MS DALAL |
Respondent
REASONS FOR JUDGMENT
This is a parenting matter concerning X born (omitted) 2006 (“Y”), aged 11, and Y born (omitted) 2011 (“X”)[1] aged 6 (“the children”).
[1] “X” and “Y” are the names used by Family Consultant A in reference to the children in the Child Inclusive Conference Memorandum dated 13 November 2017.
This case has been before me on four occasions. Unfortunately little progress has been made. The issue currently before me is whether or not the proceedings should be finalised or remain on foot to give the applicant father a further opportunity to fully engage with proceedings and advance his case.
The father has not seen the children since December 2015 when the parties separated. Currently he lives in India.
The father commenced the proceedings on 23 March 2017 seeking that he be allowed to spend time with the children. He also sought that a registrar urgently abridge the matter. His request was denied.
The father’s first affidavit is written as a letter addressed to “My Lord”. He refers to the Magistrates’ Court of Victoria (“Magistrates’ Court”) proceedings where the mother took out an intervention order against him. He emailed the Magistrates’ Court seeking time with his children. He was advised to make an application with the family courts and to seek legal advice. He annexes several emails which show he attempted to get legal advice but had great difficulty understanding the process which he was trying to navigate from India. He provided an Australian address in compliance with rule 6.01(3)(a) of the Federal Circuit Court Rules 2001 (Cth) when he filed his initiating application. He does not currently have an Australian address for service.
The father says that he attempted Family Dispute Resolution in January 2016, but that after the mother refused to participate he went to India.
The father returned to Australia in March 2017 for two weeks for the purpose of filing his initiating application. He had not returned to Australia since he had left in January 2016.
The first return of this matter was on 17 May 2017. Although the father had again returned to Australia, he was unaware that he was required to serve a copy of the application on the mother, and only served the mother the day before. The mother appeared on that day and was assisted by the duty lawyer. The matter was adjourned to 10 August 2017 and an Independent Children’s Lawyer was appointed.
In the mother’s response, filed 14 July 2017, she seeks that the father’s time be reserved, that the parties attend a child inclusive conference with a family consultant, and that the father be psychiatrically assessed. She also sought the ability to travel overseas and that the father complete a men’s behavioural change program. In her notice of risk, the mother says that the father exposed children to family violence and has caused psychological harm to the children, including telling them that he would take them to India and they would never see the mother again. She said that the children are afraid of their father. In her supporting affidavits, the mother describes controlling and isolating behaviour by the father throughout the relationship. She also describes the father physically assaulting her and isolating her. She says the father denigrated her to the children.
In her affidavit sworn 13 July 2017, the mother describes an incident in December 2015 where she alleges the father assaulted her in front of their youngest child. She called the police and the father left the house. She says he returned the following night banging on the door and that she and the children were confused and afraid. She obtained an intervention order against the father on 4 December 2015. She says the children were afraid after separation and that she sought counselling assistance for herself and the children.
The mother says she was contacted by a lawyer acting for the father in late December 2015 but did not hear from the father again until 26 January 2017 when he emailed her wishing her a happy Australia Day and attempted to discuss parenting arrangements. She reported this as a breach of intervention order. The father was charged with contravening the intervention order.
The father filed an affidavit on 3 August 2017 with the assistance of a lawyer he engaged at the time. He said he was heavily involved in the children’s lives before separation and has strong relationship with them. He says he was running a (omitted) business in Australia but had to close it due to difficulties with his marriage and the separation.
In his further affidavit sworn 2 August 2017, the father says that after separation he sought to arrange a family dispute resolution conference through Victoria Legal Aid in January 2016 but after the mother refused to attend, he left Australia for India on (omitted) 2016. Since that time he says he has returned to Australia twice. Once in March 2017 for the purposes of filing an initiating application seeking an urgent listing and secondly in May 2017 for the first return date. The father denied having any mental health issues. He said that as he had engaged lawyers he was not intending to return to Melbourne for the next court date and that his medium to long term plan was to return to Melbourne and establish permanent residence. He said he did not believe he would be able to return to Australia for three months due to needing major dental surgery and eye treatment in India. The father said he did not consent to the children travelling overseas and noted that the mother had not made any specific proposal with respect to overseas travel.
The husband denied the allegations of family violence and denied that he was controlling. He referred to there being some cultural issues that “inherently discriminated against the female in the relationship”. He went on to deny the allegations that the mother made in her affidavit.
The matter returned to Court on 10 August 2017. All parties were represented on this occasion and agreed to interim consent orders which included the father attending a Men’s Behavioural Change Program and engaging with the ‘Tuning into Kids’ program, and that the father be permitted to send cards and gifts to the children via the Independent Children’s Lawyer. I further ordered that the parties and the children attend a Child Inclusive Conference on 13 November 2017, and that the father file and serve an amended initiating application before 28 November 2017. In the lead up to the Child Inclusive Conference the father sought to attend by phone. This was refused and he was told he was required to attend in person. It would have had limited value and would have been difficult to be conducted by telephone. It was difficult to have the father attend court via telephone from India on 18 December 2017, as he had difficulty focusing on answering questions and at times was difficult to understand.
The father did not attend the Child Inclusive Conference on 13 November 2017. The Family Consultant contacted his solicitor who advised that, to the best of his knowledge, the father was still in India. Given that the Child Inclusive Conference was scheduled to take place in mid-November, that allowed for the three month delay the father had referred to in his affidavit dated 3 August 2017 regarding returning to Australia.
The mother and children did attend the conference. The family consultant identified the issues in dispute being parental responsibility, whether it was in the children’s interests to spend any time with their father, such as via Skype, whilst he was still in India, and whether the mother should be permitted to visit India or travel outside Australia with the children. The family consultant identified family violence as a risk factor and recorded that the mother “cited unrelenting, long-standing family violence across every domain by the father towards her with the children being present”. She recorded that both parties made allegations about the other party’s mental health.
The family consultant observed that the mother had demonstrated a good capacity to provide to the children’s everyday needs and the affection and trust between the mother and children was palpable.
Insightfully, the family consultant commented that their parenting relationship needed to be understood in its cultural context. Both parents are (omitted) immigrants from India. She refers to the father’s affidavits and annexures and says:
[I]t is evident from those that [the father’s] expectations of the children and his relationship with them at least partly informed by his particular culture of which the writer has limited understanding. He presents in affidavits as aspiring to mentor and guide the children according to his high expectations of academic achievement but as having little attunement towards their developmental needs.
The mother has no family in Melbourne and expressed a yearning to travel to India to spend time with family.
The family consultant recorded that both children were highly anxious about the prospect of seeing their father that day and both had been engaged in therapeutic counselling. She observed that Y, the 11 year old daughter, was somewhat parentified having developed a role as comforting or reassuring her mother, as well as being a quasi-parental figure to her younger sibling. She was courteous and intelligent. She says she was unable to recall any positive memories of her father. She said that he was rude and bossy and abusive to the mother and her, and that he did not like women. She was adamant that she did not want to spend either face-to-face or Skype time with the father. She also wanted to go to India to see her maternal grandmother, whom she missed, and blamed the father for not being able to travel. She was worried about the father’s reaction to reading the memorandum.
X, aged 6, was also interviewed. She was friendly and articulate. She spoke about being afraid of the father and being afraid that the father would kidnap her from school and prevent her from seeing her mother. The family consultant was of the view that she was parroting what she had heard from her mother and sister. The family consultant noted that she was four and a half years old when the parents separated so “it is likely that she would have been able to have stored few positive memories about her father if indeed there were any”. The family consultant expressed the view, based on the information available, including how the father presented himself in his affidavits, that it was suggested that X did not experience a nurturing relationship with her father before her parents separated.
The family consultant referred to the children’s “high level of articulation about their fear of their father”, which has been reinforced by the extended therapeutic counselling they have had which they spoke positively about. She said that the mother could benefit from continuing to obtain counselling assistance to help her protect the children from the adult disputes and her uncontained fear. Quite properly she notes that the assessment was incomplete and could be unbalanced because of that.
She said the children would be highly resistant to any form of communication, including Skype, and said that no communication should occur until the father complies with all the Court Orders. She recommended that any reintroduction of time with the father should occur in a professionally supervised setting. She also recommended that there be a psychiatric assessment of the father to assess whether he represents an unacceptable psychological risk to the children.
The mother filed an amended response and affidavit in support on 21 November 2017. She sought orders that she have sole parental responsibility, the ability to obtain passports for the children without the father’s consent, and that the father be restrained from contacting her and the children.
The matter came before me on 27 November 2017. On this occasion, the father’s lawyer was granted leave to withdraw. I ordered that the father file an affidavit explaining his nonattendance at the Child Inclusive Conference and noted that if the father did not attend on the next occasion, either in person or via telephone, the matter would proceed on an undefended basis.
The father filed an affidavit on 12 December 2017. Although there was a section of that affidavit titled “Reason for not attending Court Events”, the father did not address why he did not attend the Child Inclusive Conference.
The father’s affidavit was not prepared with the assistance of a lawyer. He says that he agrees to the children having a passport and travelling with the mother. He says he agrees to the children living with the mother. He requests that he be permitted to attend Family Counselling via telephone and the ‘Tuning into Kids’ and Post Separation parenting program online. I am not aware of those courses being available online and put to doubt their efficacy being conducted in that format.
The father repeats his request to speak to the children via phone, email and video. He refers to the fact that he made the same request two years ago through the Werribee Magistrates’ Court. He says that the mother’s fear of him is unwarranted and that he wants to assure her and the Court that he does not want to separate the mother and children. He talks about being prepared to stay thousands of miles away to enable her to feel secure. The language in his affidavit is very emotional and refers to begging for the Lord’s mercy and seeking “family harmony”. I accept that some of this expression may well be due to cultural differences and the fact that the father was preparing this affidavit without assistance and in his second language.
The father says he is undergoing medical treatments and that his mother has serious health issues and is dependent on him for assistance. He refers to his mother missing the children and asks the Court to consider his emotional health in granting his request. He refers to being distressed by reading the family consultant’s memorandum. He complains about being charged for breaches of the intervention order, which he thinks are unfair, and complains about his previous lawyer. He talks about various other issues.
His claim that he never opposed the children obtaining passports and travelling contradicts his earlier affidavits. The father attempted to attach videos to his affidavit which he referred to as “happy life videos” which would show his bond with his children.
He also referred to subpoenaed material from Victoria Police. He had asked my Chambers to email him the documents produced under subpoena. During the hearing on 18 December 2017, I explained to the father that is not possible to email him subpoenaed documents and that he would have to arrange to inspect the documents at the registry.
What is clear from the father’s affidavits, and from his comments in Court by telephone from India, is that the father does not understand the Court process and cannot separate the children’s needs from his own.
The father told the Court that he plans to return to Australia to live in a few months’ time. He said that in his August affidavit as well. Yet he remains living in India.
It is clear from the summary I have provided above that there are many factual issues in dispute. There are serious family violence allegations made against the father. The court cannot ignore these allegations. The comments by the Full Court of the Family Court of Australia (“Full Court”) in Redmond & Redmond [2014] FamCAFC 155 at [21] and [22] are salient here:
… there appeared to be misapprehension by the father as to the place of disputed issues of fact as between the parties which remained untested on an interim hearing. In purported reliance upon Goode & Goode (2006) FLC 93-286 the father’s arguments seemed to proceed on the footing that the trial judge ought to have ignored or disregarded any allegations of fact which were adverse to the father by reason of his disputing them and which could not be determined in an interim hearing.
This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.
In Goode & Goode (2006) FLC 93-286 at [82] the Full Court discussed the principles which apply to interim parenting orders.
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act 1975 gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act 1975 indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). The father does not currently have a meaningful relationship with the children.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. There are issues of family violence in this case.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
In this case the presumption is rebutted because of the allegations of family violence. I am mindful that the father denies these allegations and that the evidence has not been tested. The reality is that the mother has been exercising sole parental responsibility since separation.
The father has not seen the children for two years. The children were nine and four at the time. This, combined with the observations in the Child Inclusive Conference memorandum, lead me to conclude that it would not be in the children’s best interests to make orders enabling the father to have telephone email or Skype contact with the children. It is likely that therapeutic intervention would be needed for the father’s relationship with the children to be recommenced and that cannot happen remotely. The father would also benefit from undergoing a men’s behavioural change course and the parenting course that he has been previously been ordered to do.
I canvassed with the parties whether the proceedings should be finalised, subject to the father being able to bring an application if he returns to Australia to live, or should I keep the proceedings on foot. The mother and the Independent Children’s Lawyer sought that final orders be made. Neither objected to there being a notation to the effect that in the event the father seeks to commence further parenting proceedings and was living in Australia that they would not argue that there is no change in circumstances.[2] This may seem obvious, but it is for the father’s benefit to make it clear that he would not face the argument, which is to the effect that it would not be in the children’s best interests for there to be a further proceeding as there has not been a significant change of circumstances.
[2] See Rice v Apslund (1978) 6 Fam LR 570.
It is clear that the father cannot understand why the orders cannot simply be made for him to communicate with the children. I suspect that this is not only because of cultural issues.
Having considered these matters in my view it is not the children’s best interests to have these proceedings remain on foot when there is no certainty as to when, or even if, the father will return to Australia permanently. The father will need to be in Australia for an extended period of time for there to be any chance of rekindling of his relationship with his children.
I note that the father now, contradicting his earlier affidavit, says he did not object to the mother and children travelling overseas and the children obtaining passports for that purpose. He says he will sign any documents and assist however he can. However, given that he is living overseas at the moment, in my view it is impracticable to require the mother to send passport applications to the father in India and have him return them. In all the circumstances, I will make the orders that appear at the beginning of these reasons.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 12 January 2018
Key Legal Topics
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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