Dhar & Gupta
[2021] FedCFamC2F 56
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Dhar & Gupta [2021] FedCFamC2F 56
File number: PAC 3155 of 2017 Judgment of: JUDGE OBRADOVIC Date of judgment: 16 September 2021 Catchwords: FAMILY LAW – Parenting – undefended hearing – application for the child to spend no time with the father – allegations of family violence – impact of violence on the mother’s capacity to parent – mother unwilling to facilitate a relationship between the child and the father – change of name – best interests of the child. Legislation: Births, Deaths and Marriages Registration Act 1995 (NSW) s 28(5)
Family Law Act 1975 (Cth) ss 60CC, 61DA, 86B.Cases cited: Banks & Banks [2015] FamCAFC 36
Chapman & Palmer [1978] FamCA 86
Howard & Howard [2016] FamCA 455
Jepson & Fleming [2018] FCCA 400
Mayes & Denning [2017] FCCA 1754
Sander & Hearn [2012] FMCAfam 812
Slater & Light [2011] FamCAFC 1Division: Division 2 Family Law Number of paragraphs: 61 Date of hearing: 12 May 2021 Place: Parramatta Appearing for the Applicant: No appearance Counsel for the Respondent: Ms Kaiti Appearing for the Independent Children's Lawyer: Mr MacDiarmid Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Specialist ORDERS
PAC 3155 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DHAR
Applicant
AND: MS GUPTA
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
16 SEPTEMBER 2021
THE COURT ORDERS THAT:
(1)The child X (female) born in 2016 shall be henceforth known as X.
(2)The child, X born in 2016, shall live with the mother, Ms Gupta.
(3)The mother shall have sole parental responsibility for the child.
(4)The child shall spend no time with the father, Mr Dhar.
(5)The mother Ms Gupta is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X (female) born in 2016 be now registered as X.
(6)Pursuant s.28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the child’s name in the form specified in Order 5 herein.
(7)The Court directs that the mother forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.
(8)X born in 2016 is permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X born in 2016.
(9)The mother shall be the only person with ‘parental responsibility’ of the child X born in 2016 for the purposes of applying for, and being issued with, an Australian passport for X born in 2016.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Dhar & Gupta is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
Introduction
These are parenting proceedings that were commenced by the applicant father Mr Dhar on 27 June 2017. The respondent mother is Ms Gupta. The subject child is X born in 2016. She is currently five years old.
In his Amended Application filed on 21 September 2018 the father sought equal shared parental responsibility and that the child live with the father and spend short periods of time with the mother, with the mother’s time increasing as the child grows older. The mother fervently opposes the orders sought by the father and has maintained a position throughout the proceedings that she have sole parental responsibility, that the child live with her and spend no time with the father.
On 23 April 2021, the father sought to withdraw from the proceedings, conceding that the mother is unwilling to facilitate time or a relationship between the father and their child. Leave was granted for the father to withdraw and the matter was set down for undefended hearing on 12 May 2021. The application for determination before the Court therefore proceeds on an undefended basis. In addition to sole parental responsibility and no time with the father, the mother is also seeking to change the child’s name and for broad injunctive relief under s.86B of the Family Law Act 1975 (Cth) (“the Act”).
Application before the Court
The mother moves the Court for an order that the father have no time with the child.
The mother submits that due to the violence perpetrated on her by the father, she is unwilling to facilitate a relationship between the child and the father. She says that she continues to hold grave fears of the father and that the child has also exhibited distress in the presence of the mother during multiple supervised visits.
The mother says that she has the capacity to meet all of the child’s needs including physical, emotional, psychological and financial needs. She asserts that facilitating a relationship between the child and the father may exacerbate her anxiety and affect her capacity to adequately parent the child. The mother submits that the father therefore poses as a risk to the child by virtue of causing distress to the primary care giver and also by exposing the child to family violence. Furthermore, the mother submits that the father’s violence demonstrates a lack of insight into the physical and emotional needs of the child.
The mother also raises concerns about the potential influence of the paternal grandparents on the child if they were to have contact with her. The mother says that they would undermine her as a mother and impact their mother-daughter bond.
On that basis the mother submits that it is in the best interest of the child for the Court to support her in her capacity to parent by making an order for no time against the father.
The mother also seeks injunctive relief pursuant to s.86B of the Act, such that would prevent the father from being within 100 metres of the mother, the child, their place of residence and their place of worship, the child’s day care centre, school, before/after school care and any venue of any sporting activity the child is involved in. It is asserted that this will protect the mother and the child’s safety. In her trial affidavit, the mother says that she felt most safe during the period in which the father was subject to an interim Apprehended Domestic Violence Order (“ADVO”). When pressed, the mother informed the Court that at most she was willing to consent to an order that would allow for the father to contact the child’s medical practitioner for health updates and for the mother to communicate to the father about any emergencies via email.
The mother is seeking to have the child’s name changed from X to X. She informs the Court that this will enable the child to relate to the maternal side of the family. The mother does not want the child to question why her surname is different to her primary care giver. It was submitted on behalf of the mother, that for the child to have the name Gupta it promoted women as individuals with value, which exists independently of their relationship with men.
There is no contest between the Independent Children’s Lawyer (“ICL”) and the mother about where the child should live. The ICL supports the mother’s application for sole parental responsibility, submitting that the s.61DA presumption is displaced due intractable dispute between the parties and their inability to agree on major long term issues. Shared parental responsibility is, in the ICL’s submission, contrary to the child’s best interests.
However, the ICL is not in agreement with a number of other orders sought by the mother. The ICL submitted that, whilst he does not seek to minimise the family violence which the mother alleges, the s.68B injunctions sought by the mother are extremely onerous and will expunge the father from the child’s life in every respect. Similarly he submits that changing the child’s name will empower the mother to remove all trace of the father from the child’s life and developing identity.
The ICL proposes orders which provide that the mother shall keep the father advised of matters of the child’s well-being, health, education or extracurricular activities; the father shall be entitled to communicate with the mother about any concerns or any suggestions he wishes to make for the progress and well-being of the child and the mother shall give due regard to such matters raised by the father but that the mother shall be the person to make the final determination or decision; and the child shall spend time with the father as agreed in writing between the parents and failing agreement as the mother determines. The ICL submits that such orders still give the mother the final call in regard to all aspects of the child’s life, but are intended to create a “limited prospect of a door being left open for this child to, sometime before her 18th birthday, engage with her father”. He submits that the possibility of contact between the father and the child is important to protect the child’s nascent sense of identity. The ICL also submits that this is in accordance with the recommendations of the Family Consultant.
The father, in disengaging from the proceedings, has in one sense acquiesced to the orders sought by the mother and is certainly not providing any opposition to the orders being made.
Short Chronology
The father was born in India in 1985. He is currently 35 years old. The mother was born in India in 1986. She is currently 34 years old. In or around 1994 the mother with her family, migrated to Australia.
The parties met online in 2014. Shortly thereafter the mother travelled to India to meet the father. Two weeks later in 2014, they were married. The parties had a Hindu marriage ceremony. In 2014, the parties also had a Sikh marriage ceremony in India.
In 2015, the father moved to Australia, sponsored by the Mother on a spousal visa.
Their only child X, was born in 2016.
The parties separated on a final basis on 16 April 2017 when the mother left the former-matrimonial home with the child. At the time of separation the child was only 8 months old.
On 31 May 2017 the mother made a statement to NSW police and an application for an ADVO was filed. An Interim ADVO was issued on 6 July 2017, protecting the mother from the father.
The father initiated proceedings in this Court in June 2017. On 30 October 2017, interim orders were made for the child to spend at least two hours a fortnight with the father at a supervised contact centre.
The ADVO application was dismissed on 22 November 2017. The mother asserts that it was dismissed because the police failed to file the appropriate evidence in support of the application.
Supervised contact between the father and the child commenced on 17 February 2018, however, time was reduced to twenty minutes as the child was distressed. The following visit scheduled on 25 February 2018 was cancelled due to the child’s distress and on 7 March 2018 the contact centre placed all future visits on hold.
The parties were granted a divorce on 4 October 2018.
A Family Report was ordered by this Court on 21 November 2018. During the interviews conducted by the Family Consultant it was observed that the child was unwilling to leave the mother’s side to be observed with the father.
On 30 July 2020, further interim orders were made providing that the father spend time with the child at an alternative contact centre. Again, the child exhibited signs of distress.
The parties again changed contact centres in September 2020. Between October 2020 and December 2020 only three visits occurred between the father and the child. The last time the father saw his daughter was 11 December 2020.
On 23 April 2021, the father sought and obtained leave to discontinue the proceedings, and an undefended hearing was set down for 12 May 2021. The father then advised the Court through his affidavit, that “I am extremely sad about having to do this, though I believe the mother is not willing to facilitate my time or relationship with X”.
CONSIDERATION
Even in circumstances where a matter proceeds on an undefended basis, the Court is still to be satisfied that the orders it makes in parenting proceedings are in the child’s best interest. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations (see for example Slater & Light [2011] FamCAFC 1 at [45]).
Consideration does not mean discussion (Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal).
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
It is the allegations of family violence and the mother’s capacity to foster a relationship between the child and the father that are central to the Court’s determination of what orders are in the child’s best interest, including orders for parental responsibility.
Allegations of Family Violence
The mother informs the Court that her relationship with the father was riddled with family violence, which was perpetrated by the father. She states she was exposed to intimidation, taunts, verbal and mental abuse, physical violence, financial control and death threats. The mother’s allegations are summarised as follows:
a.When the mother was 8 months pregnant the father attempted to punch the mother in the stomach. The mother was able to block the father’s fist and shield her unborn child.
b.On multiple occasions, when the mother was outside hanging out laundry, the father would lock the door of the house and refuse to let the mother back in. This would cause the mother to panic and cry. The father would taunt the mother and say “one day I am going to make you go crazy” and “I’m going to make you look like a crazy mother and then I’m going to take X from you”. The father would film the mother’s reaction and the mother had concerns that he would use this against her to allege she is suicidal.
c.The father would argue with the mother in the presence of their friends, their family and the child.
d.In July 2016, the mother and the father had an argument about the mother choosing to talk to a friend over the phone for one hour instead of watching a movie with his parents. The argument escalated. The mother called the police but hung up before the call was answered. She received a call back from the police and informed them “I had an argument with my husband, but I think I will be okay, please do not come”. The police attended the property.
e.The father paid close attention the parties’ finances and would calculate the cost of food eaten by the mother and nappies used by the child and suggest to the mother that she needs to pay him for using such items.
f.The father would pretend to have meetings with his family and a lawyer in India about filing a lawsuit against the mother’s family.
g.On 23 January 2017, the father “deliberately and callously kissed” the mother. Annexed to the mother’s affidavit is a text message condemning the father for this behaviour.
h.The father would argue with the mother if she wished to visit or communicate with her family. On 25 February 2017, the mother and the child sat with the maternal grandmother and maternal aunt during a congregation at Suburb B Temple. This was despite the father instructing the mother not to do so. The father then left the mother and the child at the temple without any money or a way home. The father eventually returned to collect the mother and the child. Annexed to the mother’s trial affidavit is a chain of text messages whereby the mother requests the father to collect her from the temple.
i.On 26 March 2017, the mother says that the father physically assaulted her by grabbing her leg and twisting it. Attached to an affidavit filed on 25 August 2017 is a transcript of a video recording of the incident.
j.The father says that on 15 April 2017 she overheard the father on the phone to the paternal grandmother. She recall’s hearing him say “as soon as I get my permanent residence, I’ll get rid of her”. Annexed to the mother’s affidavit are screenshots of messages from the father to the paternal grandmother stating “I will kick her away as soon as I get what I am waiting for and as soon as your tickets are booked”.
k.After the parties separated the father attended the mother’s place of worship and informed other members of the temple that she is suicidal.
The mother states that the paternal grandparents also inflicted family violence. The mother provided the following examples:
a.Since the child was about three months old the paternal grandparents would threaten to take the child and give it to the paternal aunt in India as punishment for “being a bad wife”. The paternal grandparents would also threaten to relocate to Melbourne with the child where the mother would not be able to find them. The father would part-take in this threatening behaviour as well. This would cause the mother significant anxiety.
b.On 30 September 2016, the paternal grandparents with the support of the father were denigrating the mother by informing her that she was a bad wife, telling her that they were going to take the child to India and threatening to arrange someone to kill her. The paternal grandparents also had the child in a very tight grip, refusing to give her back to the mother. Distressed, the mother told a friend who subsequently notified the police. The police attended the former-matrimonial home to check on the mother who reassured them that everything was okay. Once the police left, the mother was abused by the father and the paternal grandparents, calling her an idiot for notifying the police. The father slapped the mother across the face while the child was in the mother’s arms.
c.The paternal grandmother would dictate how the mother should care for the child.
d.The paternal grandmother was critical of the mother for working and not sharing her income with the extended family.
e.The paternal grandparents would undermine the mother’s relationship with the maternal grandmother stating “forget about your mum, you’re married now. We are your parents”.
As noted earlier the father has withdrawn from these proceedings and there is no sworn evidence from the father before the Court.
The Family Report notes that the father’s evidence is that he came from a traditional Indian family where the father has “absolute responsibility” and “parents are revered and obeyed”. The Family Report writer noted that during the interviews, the father complained that the mother did not respect him and his parents. The Family Report writer also noted that the mother indicated much of the dispute occurred between the parties when she did not show reverence towards the father’s parents or abide by customs that put her into a subjugated role.
The Mother’s Capacity to Facilitate a Relationship between the Father and the Child
The parents have been in an intractable dispute throughout much of the child’s life. Despite interim orders being made by consent on 30 October 2017 for the child to spend supervised time with the father for two hours every fortnight, the father has had very limited contact with the child in the past four years. There is currently no relationship between them. As noted earlier above the mother tells the Court she is unwilling to facilitate a relationship between the father and the child.
The child has demonstrated a strong attachment to the mother. The child has also been apprehensive to engage with the father, in the absence of her mother, both during supervised visits and during the Family Report interviews. This is not necessarily a reflection of the father and his capacity to parent the child. It should be noted that at the time of the family report interviews the child had only spent 15 minutes with the father since separation. In the Family Report Mr C stated:
35. Mr Dhar application, for the child to live with him, [was] not realistic, given that X has lived with her mother during her formative years, and it is she to whom X is attached. The attachment process begins when a child as about six months old and continues until she is about five and beyond and grows from the nurturing offered by a primary carer. It is a process where the child develops security and confidence and the ability to function as a socially competent adult. If the process is interrupted, or the nurturing parent withdraw, then the child may suffer emotionally.
36. While X may be attached to her mother, a relationship with her father should not be excluded and continuing involvement with him would be in her best interest… Mr Dhar is a stranger to [the child], and like any child not yet three years old, she is wary of leaving her mother and comfortably interact with her father. Her unwillingness to participate in an observation session during this assessment is appropriate given her age.
37. For X to become comfortable with her father it would be useful if Ms Gupta could cooperate in achieving that objective. The mother would have to introduce the child to Mr Dhar and remain present while X becomes familiar with him. The child needs her mother’s “permission” and encouragement to develop a relationship with her father. For X, Ms Gupta is the nurturing parent to whom she looks for security, confidence and protection.
38. Given Ms Gupta’s comments when interview, and in her affidavit, it is unlikely that she would personally facilitate X’s involvement with the father. But, as the child grows and her awareness increases, a relationship with her father, provided he is not a violent man, is in her interest. If Mr Dhar is unwilling to personally enable contact, X’s knowledge of her father should be created before a contact centre is used. Accordingly, Ms Gupta might inform the child that she has a father who wants to see her. X might be give (sic) his photograph; and Ms Gupta might provide Mr Dhar with X’s photograph …
In the mother’s affidavit evidence she describes the child’s distress before, during and after the supervised visits at multiple contact centres from early 2018 to early 2021. She recounts occasions where visits were cut short or cancelled due to the child’s continuous crying and screaming. The mother believes the child is now traumatised as a result of the supervised visits.
The ICL raises concerns about the mother’s conduct detailed in the D Contact Centre Supervised Contact Reports which were tendered in these proceedings and marked as ‘Exhibit 1’. The reports detail three visits on 13 November 2020, 27 November 2020 and 11 December 2020 when the child, while apprehensive, gradually warmed to the father. On the final visit, which occurred on 5 February 2021, the contact centre manager describes the child arriving highly distressed and attributes this distress to the behaviour of the mother rather than in response to spending time with the father. The ICL submitted to the Court that this demonstrates the mother’s unwillingness to facilitate any relationship.
The family report writer recommended therapeutic intervention to facilitate a relationship between the father and the child. The mother is clearly not prepared to engage in this process and neither is the father, noting that he has disengaged from the proceedings.
DETERMINATION
Parental Responsibility
The Court accepts the submissions of the ICL and those made on behalf of the mother that it is in the child’s best interest for there to be an order for the mother to have sole parental responsibility.
Given the mother’s stated position that she cannot support a relationship between the child and the father, an order requiring the mother to consult with the father prior to making any decisions in respect of the child in the exercise of parental responsibility is likely to be futile. It is also likely to be highly distressing to the mother and as such is contraindicated on the evidence. It is in the child’s best interest that the mother have sole parental responsibility for the child.
Should there be an order for no time?
The uncontested evidence of the mother of the family violence perpetrated by the father and his family is appalling. It speaks of some physical violence but it speaks more strongly of coercive and controlling behaviour. It speaks to a life of servitude for no other reason than being female.
The Court accepts the mother’s evidence that she remains frightened of the father, of his threats and that she has been impacted by his and his family’s violent behaviours towards her.
The Court accepts that the mother will not at present or in the foreseeable future facilitate any form of relationship between the child and the father. This may in itself carry some long term risks to the child.
The ICL submits that there should be a door left open, ever so slightly, for the child to be able to know her father and re-establish a relationship with him in the future.
The mother has acted protectively towards the child to date. It is the Court’s view that if the mother in the more distant future deems it safe and in the child’s best interest that she spend time with the father that she will reach out to the father for this to occur.
An order as sought by the mother for no time is a protective order not only for the child, but also for the mother. On the evidence it is in the child’s best interest that there be an order for no time.
Section 68B Injunction
The evidence does not support the injunctive orders sought by the mother. They are draconian and unnecessary and will not be made.
Change of Name
The principles regarding a change of name for children were explained by the Full Court in Chapman & Palmer [1978] FamCA 86.
In a helpful summary, which the Court respectfully adopts here, Judge Turner in Sander & Hearn [2012] FMCAfam 812 (and which has previously been adopted; see Mayes & Denning [2017] FCCA 1754; Jepson & Fleming [2018] FCCA 400) held that consideration must be given to:
(a)The welfare of the child being the paramount consideration;
(b)Any short or long term effect of any change in the child’s name;
(c)Any confusion of identity which may arise for the child of a name change if a name change does or does not occur;
(d)Any embarrassment that the child may experience if their name is different to that of the primary carer;
(e)The effect that any change of name may have on the child’s relationship with the parent whose name the child bears; and
(f)The effect of frequent or random changes of name.
The child while still very young, has been known by the surname “Gupta Dhar” for the entirety of her life. It is both her mother’s and her father’s surname. To change her name to Gupta, in the circumstances of this case and noting what the mother’s case is, could arguably be a step taken by the mother to completely wipe away any trace of the father from the child’s life.
The Court does not accept that the child would be confused about her identity if her name is not changed. She should know that she has a father and a paternal family, and what her father’s name is. The same is said of the mother’s surname and her connection to the mother and the maternal family.
While there may be a suggestion that the child would in the future be embarrassed by having a surname different to that of her primary carer, we live in a society where many children have different surnames not only to their primary carers but at times to their siblings.
However, it is accepted by the Court that for a young child who will be spending no time with the father pursuant to these orders and who will be living with the mother, that it would be in her best interest to have the same surname as her primary and only carer.
This is the first time that the name change application is made.
In all of the circumstances, it is in the child’s best interest that her surname be changed in the manner pressed for by the mother.
International Travel
Noting the orders that will be made herein, and that the mother has previously indicated her intention and wish to travel with the child overseas, notwithstanding the current border closures due to the COVID-19 pandemic, the Court is satisfied that an order made now for the mother to be permitted to travel in the future with the child, without having to engage with the father for his permission for such travel, and for the issuance of a passport for the child, is in the child’s best interest and consistent with the other orders made herein. This order is made notwithstanding that it was not pressed by the mother at the final hearing, due to lack of evidence of any planned travel.
Conclusion
For all of the reasons explained above, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 16 September 2021
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