Dalavi & Panja (No 2)
[2023] FedCFamC1F 92
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dalavi & Panja (No 2) [2023] FedCFamC1F 92
File number(s): SYC 3199 of 2021 Judgment of: CHRISTIE J Date of judgment: 22 February 2023 Catchwords: FAMILY LAW – PARENTING – Where the applicant mother chose not to give evidence or participate at the final hearing – Where the child lives with the father – Where the father lives in Sydney Australia – Where the mother lives in Country E – Where the father holds fears that the mother will retain the child if the child is permitted to travel with the mother – Where the mother has tried to remove the child without the father’s consent previously – Where the father’s evidence in unchallenged – Where the child is 13 years old – Where the child’s views are that she wishes to remain with her father – Where a relationship with both parents would be in the interests of the child – Where the mother is permitted to spend time with the child in Sydney, Australia. Legislation: Family Law Act 1975 (Cth), Part VII 60CC, 61DA Cases cited: McCall & Clark (2009) FLC 93-405 Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 22 February 2023 Place: Sydney The Applicant: No appearance Solicitor for the Respondent: Ms Robb, Lander & Rogers Solicitor for the Independent Children's Lawyer: Ms Lam, Christina Lam & Associates ORDERS
SYC 3199 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DALAVI
Applicant
AND: MR PANJA
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
22 February 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.Mr Panja (“the father”) shall have sole parental responsibility for X born 2009, provided that the father shall advise the mother in writing as soon as reasonably practicable of any long-term decisions made concerning X.
3.X shall live with the father.
4.X shall spend time with Ms Dalavi (“the mother”) during the school holiday periods in Sydney, Australia, on dates and times notified to the father by the mother in writing provided that:
(a)the time does not take place during any period in which the father has provided notice of his proposed travel with X pursuant to Order 11;
(b)the mother shall provide the father with no less than 90 days notice in writing of her proposed dates to spend time with X during the school holiday period;
(c)the period of time does not exceed two weeks in the short school holidays or three weeks in the long school holidays;
(d)the mother is to provide the address at which X will reside at any times X is in her care; and
(e)the mother is restrained from removing X’s communication devices, including but not limited to her mobile phone, Apple Watch and iPad, from X’s possession at any time X is in her care.
5.X shall spend time with the mother during school term for periods of up to two weeks as agreed in writing between the parents and provided the mother ensures that X attends school and extra-curricular activities during this period.
Travel
6.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the father is permitted to apply for and have issued an Australian travel document for the child or renew any such Australian travel document in the absence of consent of the mother. The father is permitted to provide a copy of these orders to the minister, referred to in the Australian Passports Act 2005 (Cth), including but not limited to a delegated officer of the minister.
7.The father is permitted to make arrangements for the issue of Citizenship documentation for X born 2009 and, for the purpose of this order, the father may apply for Citizenship documentation for X without first obtaining the consent of the mother, Ms Dalavi.
8.X's Passport and Citizenship documentation of Country J shall remain in the father's possession at all times.
9.The mother, Ms Dalavi, and/or her agents are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the said child X born 2009 from the Commonwealth of Australia until late 2027;
AND IT IS REQUESTED THAT the Australian Federal Police give effect to this order by placing the name of the said child X born 2009 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, or until the Court orders its removal.
10.Notwithstanding Order 9 above, the father, Mr Panja, or his nominee, which shall include but not be limited to teachers accompanying overseas school excursions, be permitted to travel outside the Commonwealth of Australia with X born 2009.
11.In the event the father or his nominee seeks to travel with X during any school holiday period, the father shall provide the mother with written notice as soon as reasonably practicable after booking the holiday advising of the dates X is unavailable to spend time with the mother pursuant to Order 4 but the father shall not be entitled to give such notice if the mother has already provided notice that she will be spending time with X.
Communication
12.The mother be at liberty to send cards and presents to the child by post on her birthday and at Christmas to a residential address of the father.
13.The mother be restrained by injunction from:
(a)discussing these proceedings or any parenting disputes or issues in the presence or hearing of X, save to explain the effect of these parenting orders to X;
(b)discussing any aspect of the parenting arrangements including alteration of those arrangements during telephone or other electronic means of communication with X;
(c)doing or saying anything to X or in X's presence or hearing that is derogatory of the father, paternal and maternal grandparents or members of X’s extended paternal and maternal family, or detrimental to the relationship the father has with X;
(d)posting material on Facebook or other social networking sites that refers to these proceedings, the father or any issue or allegation raised in this proceeding;
(e)removing X from the care of the father without the father's written consent; and
(f)removing X from K School without the father’s written consent.
14.Each party be restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent including on any social media platform; and
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child and from permitting any other person to do so.
15.The father shall use his best endeavours to facilitate X communicating with the mother via WhatsApp, Facetime or other electronic communication at any such time as is reasonable.
16.The father and mother advise each other of any change in telephone or mobile number or residential address within one week of such change occurring.
17.The father shall sign all documents and do such things to authorise the principal, directors and/or staff of any school that X may from time to time attend to supply to both parties all school reports, school photographs, school counsellor’s notes, memos, school newsletters and any other information in relation to X as requested.
18.Both parties are granted leave to provide a copy of these orders to any school that X may, from time to time, attend.
19.Each party notify the other as soon as reasonably practicable of any accident or emergency involving X, which involves medical treatment or hospitalisation whilst X is in their respective care.
20.The father shall sign all documents and do such things necessary to authorise and direct any medical, health, developmental, dental, behavioural and counselling professionals treating or otherwise involved with X to communicate with and provide information and copies of documents to both parties.
21.In the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the party before making any further application to this Court shall participate, with the other party, in family dispute resolution with a person accredited, or a person authorised to act on behalf of a designated organisation under s 10G of the Family Law Act 1975 (Cth).
22.The independent children’s lawyer is discharged 14 days after the date of this Order.
23.There is no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dalavi & Panja has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for final parenting orders in respect of the child X (“X”). X was born 2009 and accordingly, she is 13 years of age. At the time of hearing, X lives with her father in Australia. Her mother lives in Country E and has done so since mid-2021.
On 6 February 2023 the father filed a Further Amended Response to Initiating Application setting out the final orders he seeks in respect of X’s care.
X is represented in these proceedings by an independent children’s lawyer.
The mother had been involved in the proceedings; indeed she was the applicant for orders. In April 2022 the mother brought an interim application seeking orders for X to spend the term 4 school holidays in Country E, which application was dismissed.
Since that time, the mother has not substantially engaged in the proceedings and accordingly, the matter was listed for an undefended hearing and the father directed to provide the mother with notice of the orders listing the matter for undefended hearing to her last known email address.
I am satisfied on the basis of exhibit 1 that the order that the father’s lawyers provide notice to the mother via email has been complied with.
The mother’s solicitors filed a Notice of Ceasing to Act on 2 December 2022. On that day they indicated they would confidentially provide contact details to the Court for the mother as a litigant in person. They supplied such details and the Court has, independently of the orders made directing those who act for the father to convey the details of the undefended hearing to the mother, done so to the address provided by the mother’s former lawyers.
The mother did not appear at the hearing nor did she instruct lawyers to appear on her behalf and I was satisfied that the matter should proceed undefended as against her, in particular to bring the proceedings to an end for X.
THE LAW
The Court has the capacity to hear and determine proceedings on an undefended basis. The parenting proceedings still fall to be determined according to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). I need to be satisfied that any orders which are made for X are orders which will operate in her best interests.
Section 60CC(2)(a) of the Act directs the Court to consider the benefit to the child of having a meaningful relationship with each parent. However, Meaningful does not mean optimal: McCall & Clark (2009) FLC 93-405.
Meaningful is measured by assessment of the evidence as to how the relationship will be experienced by the child. It is a measure of quality as opposed to quantity – although it is accepted that there may be a correlation between the amount of time and the significance of the relationship.
I need to consider the provisions of s 60CC(3) of the Act as they apply to this child.
In making parenting orders I must apply the presumption in s 61DA of the Act.
BACKGROUND
The husband and wife married and commenced cohabitation in early 1999. X was born 2009. The parties separated on 5 December 2014 when X was five years old.
Between 5 December 2014 and early 2016, X lived with the father in Melbourne. The parties had been living in Melbourne at the time of separation and the mother moved to Sydney when the parties separated. The mother spent time with X each month. In 2016 the father and X moved to Sydney and on 8 April 2016 the parties entered into consent orders which provided that X divide her time equally between her two parents.
In mid-2016 the husband and wife divorced.
In late 2020 the father says in his affidavit that the mother asked him to care for X because she had work commitments in Brisbane and would be away for a period of days. Following that request, the father received a message from the mother saying that she was travelling overseas and may not be returning in accordance with her original advice to him.
In late 2020 the mother left Sydney and travelled to B City, Country E. It was her intention at the time to be in B City for a period of two weeks but because of COVID-19 restrictions, she says she was unable to return to Sydney. At some point she made the decision to remain living in Country E where she runs a business. X has remained in the care of the father.
On 4 May 2021 the mother commenced proceedings seeking orders for X to live with her in Country E.
In the period October 2020 to July 2021 the mother and X did not see one another but spoke on the phone most days.
On 22 October 2020 the father says he received a text from the mother indicating she was purchasing an apartment in Country J and would be dividing her time between B City and Country J.
In mid-2021 the mother came to the father’s home. The father was not expecting her and indeed believed she was overseas. On that day she attempted to remove the child without the father’s consent.
The father says he received a call from the mother saying she was outside his home. He went to the gate to speak with her and their daughter followed him. The father says he told X to go back inside and the mother screamed at him “you can’t do this” and threatened to call the police. X started crying and told the father she didn’t want him to get arrested. The father and X spoke to the mother at the gate. The father says the mother asked for X’s passport and when he refused to provide it to her, she threatened to call the police. The mother then left.
On 4 August 2021 the parties entered into consent orders providing that the child live with the father and each of the parties were restrained from removing her from Australia.
CONSIDERATION
I turn first the making of orders for parental responsibility. The father asks that I make an order for sole parental responsibility. The Act says I should apply the presumption in s 61DA 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.
(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.
…
(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 presumption is not rebutted here by evidence of violence. While I am aware that the mother made allegations to the family report writer those matters are denied by the father on oath and the mother has chosen not to give evidence. Accordingly, I cannot find that there has been violence.
The presumption is rebutted by the evidence which satisfies me that an order for equal shared parental responsibility would not be in the interests of X.
I am concerned that the lack of effective communication between the parents would not support an order for equal shared parental responsibility. The father attaches some Whatsapp correspondence which demonstrates the communication difficulties. The message from the mother in the context of discussing X’s proposed relocation “As of today I will stop responding to messages from you regarding this matter” means the Court could have no confidence the mother can engage in a dialogue with the father if she does not agree with the position he takes on an issue relating to X’s welfare.
The incident in mid-2021 also raises concerns about the parties’ capacity to make joint decisions for X.
If I were to apply the presumption, X may be placed in a situation where decisions are delayed because of both geographic distance and non-functional communication.
The father has agreed to communicate important long term decisions to the mother as is appropriate. There are also a suite of orders which give the mother the right to access information. These orders are child focused and I will make them.
It follows that I am satisfied that an order that the father have sole parental responsibility is appropriate. It also follows that he should be able to obtain travel documents (including a passport for X) so that she can have the opportunity for school trips or a holiday with the father without the need for the mother’s signature. It is appropriate, having regard to X’s cultural heritage, that the father be permitted to make any application as may be required for recognition of Country J Citizenship. Should that occur then he would be obliged to provide notice to the mother under these orders.
I now turn to consider the orders for time and other parenting orders in light of the evidence contained in the father’s affidavit and the Child Court Expert report of Ms L.
Primary considerations
As discussed above the mother alleged in an interview with Ms L (and in interlocutory affidavits) that the father had perpetrated coercive and controlling family violence against her and consequently, had exposed X to this. Further, she contended the father had hugged the child inappropriately so that she felt his genitals. The father denies both allegations.
The mother has chosen not to participate in the litigation. She entered into consent orders for equal time and subsequently, consent orders for X to live with the father. These actions are inconsistent with her maintenance of an allegation that X is at risk in the father’s care.
I take into account Ms L’s view that X’s most significant risk factor arises out of exposure to parental conflict and to being exposed to the adult dispute. Ms L said “[X] would be vulnerable to a heightened level of psychological injury and range of concerning psychosocial problems if they [the parents] are unable to manage this.”
An end to litigation will assist to address this issue. It will give X, and the parents, certainty about ongoing arrangements.
It will be important for X for the mother to exercise time but the father’s concerns about the mother retaining X were heightened by the mother’s attempt to remove her in mid-2021. Time between the mother and X should take place in Australia, which is X’s home, for the foreseeable future. This is not a case where the mother cannot live in Australia or where the child has extended family in B City. I am conscious of the content of the Smart Traveller entry for Country E dated early 2023 (which became exhibit 5) which creates concern about the risks of travel to that country which are separate and additional to the risk of retention by the mother.
While X would no doubt benefit from spending additional time with her mother over and above that which is provided for in the orders I propose to make that is impractical while the mother lives outside Australia.
As the child court expert commented “[X] would possibly benefit from opportunities to shares aspects of her life in Sydney with [Ms Dalavi], and introduce her to people and places significant to her.”
The mother should be permitted to spend time with X in Australia provided she gives the father notice. If the mother has given notice then she should be permitted to spend periods of time up to and including the whole school holidays. If the mother gives notice then the father should not be permitted to travel with X during that school holiday period.
Given her age the electronic communication between X and the mother should be liberal but the mother would do well to remember that she should not discuss the father or these proceedings with X given the comments of the child court expert and I will make orders to that effect.
In making the orders, the father and ICL have asked me to make, I have had as one of the most significant considerations, X’s wishes. X is 13 years old. She has experienced living with both parents. She has experienced living in the sole care of her father. She does not want to leave Australia. That is not a rejection of her mother. However, it represents the wishes of a child based on her experience. Given her age and experience I will give them important weight.
Ms L said “If [X] is forced to relocate to [Country E] against her wishes (as she may see it), she would possibly feel that she has not been heard by her parents and the Court, and her self-esteem may become depleted”.
I need to make orders that are least likely to result in further proceedings. On balance, making the current interim order (in a modified form) final seems most likely to achieve this goal.
I take into account the fact that the orders will mean that X is not living with or substantially spending time with her mother. This is unfortunate but there is no real solution given the geographical restraints. It is plain that she enjoys a good relationship with her father which will assist her to deal with this loss.
The Court has been provided with school records (exhibit 6) which demonstrate that X is well settled in the educational setting while in the father’s full time care – she is achieving well and demonstrating commitment to studies and extra-curricular activities.
The father has sought a number of injunctions. They are designed to provide a measure of comfort and protection that X’s living and schooling arrangements are not disrupted. They also deal with posting comments to social media (or preventing the posting of comments to social media). It is in X’s interests that details of her arrangements are not the subject of public comment by either parent and it is not in her interests that she be exposed to one parent denigrating the other. I will make those orders.
The father seeks that the airport watch list order remain as it relates to the mother removing X. Given his concerns about the mother trying to remove X in mid-2021 and the mother’s failure to participate in these proceedings his concerns appear consistent with the evidence. The contents of exhibit 4 which are documents produced by the Department of Home Affairs demonstrate that the mother made an application and received an exemption from travel restrictions to remove X from Australia in mid-2021. It is plain that such a removal would have been contrary to her views and would have removed her from her home, her school, her friends and her father. I will make the airport watch orders as sought in the father’s application.
The father acknowledged that previous costs orders remain unpaid and did not press his costs application before me. There will be no order as to costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 22 February 2023
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