DHARAM & GARG

[2020] FCCA 2384

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHARAM & GARG [2020] FCCA 2384

Catchwords:
FAMILY LAW – Parenting – interim – unilateral relocation – allegations of family violence – mother ordered to return to Adelaide.

Legislation:

Family Law Act (1975), ss.60B, 60CA, 60CC, 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
Morgan & Miles [2007] FamCA 1230

Applicant: MR DHARAM

Respondent: MS GARG

File Number: ADC 1448 of 2020

Judgment of: Judge C Kelly

Hearing date: 15 June 2020

Date of Last Submission: 15 June 2020

Delivered at: Adelaide

Delivered on: 17 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Bowler

Solicitors for the Applicant: Douglas Hoskins Legal

Counsel for the Respondent: Mr Glezakos

Solicitors for the Respondent: Rigoli Lawyers

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The child X born in 2016* live with the mother.

2. The mother return X to live in the Adelaide metropolitan area no later than 25 July 2020.

3. The father meet the mother’s rental accommodation expenses for the first three (3) months after her arrival, with payment to be facilitated through the parties’ legal representatives.

4. Upon X returning to live in the Adelaide metropolitan area, he spend time with the father each Saturday from 10.00am until 4.00pm (or on such other day each week as may be agreed between the parties).

5. Handovers take place at a Children’s Contact Centre or neutral public location to be agreed between the parties and confirmed in writing by their legal representatives.

6. The father is restrained from:

   (a)threatening, intimidating, assaulting or harassing the mother at handover  or at any other time;

   (b)taking any action to locate the mother’s residential address or instructing any other person to do so on his behalf.

7. Each party is restrained from abusing criticising or denigrating the other parent in X’s presence or allowing any other person to do so.

8. The mother is restrained from changing X’s principal place of residence from the metropolitan area of Adelaide.

9. The mother is permitted to travel with X to Melbourne for a period of up to five (5) days each calendar month, subject to Covid-19 travel restrictions on interstate travel.

10. The mother deliver up X’s passport and Overseas Citizenship of India Card to the Adelaide Registry of the Federal Circuit Court by 27 June 2020.

11. Until further order each party, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child X born in 2016 from the Commonwealth of Australia.

12. IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child X born in 2016* 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 until he turns eighteen or until the Court orders its removal.

13. The matter is adjourned to 30 September 2020 at 9.30am for directions.

* Pursuant to Regulation 16.05(2)(e) of the Federal Circuit Court Rules 2001 this order is amended on 19 June 2020 *

IT IS NOTED that publication of this judgment under the pseudonym Dharam & Garg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1448 of 2020

MR DHARAM

Applicant

And

MS GARG

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read.

1. These proceedings relate to the parties’ child, X, who was born in 2016. He is now three and a half years of age.

2. The parties married in 2014 and separated on 25 January this year, when the mother left Adelaide with X and moved to Melbourne. The father now seeks that the mother return X to live in Adelaide, and that the child commence spending regular time with him. The mother seeks to remain living in Melbourne with the child.

3. In interim parenting disputes there is often conflicting information before the Court, and this case is no different. Counsel for each party have acknowledged that the Court cannot make findings of fact at this early stage, unless specific matters are agreed between the parties.

4. In accordance with the relevant authorities referred to by Counsel, the Court generally adopts a cautious approach at this early stage of proceedings.[1] The Court has limited information and allowing a unilateral relocation by one parent on an interim basis may cause unnecessary disruption to the child. Nonetheless, the Court’s focus always remains on the best interests of the child, in accordance with s.60CA and the Court must determine X’s best interests in accordance with the relevant family law legislation, particularly s.60B and s.60CC.

   [1] Morgan & Miles [2007] FamCA 1230

5. Relocation disputes are no different to any other parenting decision. While the stakes are very high for both parents, the Court’s obligation is to determine X’s best interests at this time, taking into account the limited information available, and following the pathway set out by the Full Court in Goode & Goode[2] and subsequent decisions.

   [2]Goode & Goode [2006] FamCA 1346

6. Given the factual issues in dispute between the parties, it is too early to determine whether an order for equal shared parental responsibility will be in X’s best interests. The issue is not addressed at all in the mother’s Response, and I am not in a position to make any formal findings today.

7. Certain background matters are agreed.  Both parties were born in India, and practice the Sikh religion, as do their extended families. The father first travelled to Australia in 2014.  He and the mother met in India later that year and were married in India in 2014. The father then returned to Australia in 2015 and the mother followed in 2015. The father has since obtained Australian citizenship, and the mother now has permanent resident status.

8. The parties maintained contact with extended family over the subsequent years. The father’s step-mother travelled to Australia in mid-2016 to support the mother, as the mother had been diagnosed with epilepsy during her pregnancy. The mother says that the step-mother was hostile and critical towards her, but that is disputed by the father.

9. The parties returned to India later in 2016 for the father’s sister’s wedding, but the mother again says the paternal family were hostile towards her and she returned to Australia in 2016, accompanied by her mother and brother. The child X was born four weeks premature, which was undoubtedly a stressful experience for both parties.

10. Following the child’s birth, it is acknowledged that the mother took on the role of X’s primary caregiver, and the parties lived a reasonably traditional marital relationship, with the father working full-time.  I accept that the father played a role in X’s care when he was available, although the extent of his parenting contribution is disputed by the mother.

11. The mother’s brother moved to live in Melbourne in 2017, and the maternal grandmother followed in 2017. The paternal grandparents travelled from India in early 2018 and stayed with the parties until late 2018.  In 2018 the father’s brother, wife and infant child also moved from India to Adelaide and moved into the family home.

12. The mother says there were difficulties between the parties during this time and she says that she experienced a high level of hostility from the father and his family. The parties agree there was significant conflict between them in November 2018, which led to the mother leaving the family home with X.  She and the child travelled to Melbourne, where she stayed with her brother and mother until May 2019.

13. During that time the parties’ extended families intervened to assist them in resolving their difficulties, including extended family members in India.  The parties reconciled and the mother and X returned to Adelaide.  The father’s brother and family, who had been living with the parties, moved into their own accommodation.

14. The mother says that the father’s cousin and two friends then travelled from India and moved in with the family which created further tensions.  Both parties concede that there were tensions within their relationship in late 2019, although they disagree as to the extent of those difficulties. Nonetheless, on 7 January 2020, the mother again left the family home with X, as she felt fearful for her safety.

15. The father and his friends tried to locate the mother’s whereabouts and eventually found her and X at the Adelaide Airport.  The parties’ accounts of this incident differ, but the mother and X returned home with the father for approximately two weeks.  The mother says that the conflict within the relationship continued and she again left and travelled to Melbourne with the child on 25 January 2020.

16. Following the mother’s relocation to Melbourne, both parties instructed lawyers.  The father filed an Initiating Application in Melbourne in February 2020, but discontinued that Application and commenced these proceedings in Adelaide.

17. The father seeks orders for X to be returned to live in the Adelaide metropolitan area. He concedes that the child should remain in the mother’s primary care, but seeks to spend regular overnight time with X twice each week, overnight on Wednesdays and Saturdays. He acknowledges that there are practical issues in relation to the mother’s and X’s accommodation arrangements, and offers to assist in that regard, either by paying the mother’s accommodation for a period of three months, or alternatively, he will vacate the former family home for the mother to return to those premises.

18. The father also seeks orders in relation to handovers and for the child’s passport to be delivered up, but neither party made extensive submissions on these ancillary matters. The submissions were focused much more on the issue of where X should be living, whether in Melbourne or in Adelaide, and the consequences that would flow from that decision.

19. The mother proposes that she and X remain living in Melbourne. She acknowledges that X has a right to a relationship with the father, despite her concerns about the father’s previous behaviour. She proposes that X spend time with the father in Melbourne, supervised by the father’s sister, who also lives in Melbourne with her family. The mother has been facilitating electronic communication between X and the father, and she proposes that this continue each Tuesday and Friday via Skype.

20. Clearly the parties are significantly at odds in terms of the interim parenting orders that they are each proposing.

21. Turning to the primary considerations s.60CC(2), both parties agree that X has a right to a meaningful relationship with both of his parents. The father says this can only realistically occur if X returns to live in Adelaide, because it will be impossible to re-establish and maintain a meaningful relationship with such a young child if X is living in a different state. He argues these difficulties would exist in usual circumstances, but the situation is made even more difficult with the present COVID-19 restrictions.

22. The concept of “a meaningful relationship” has been discussed in many authorities, most significantly the decision of Justice Brown in Mazorski & Albright.[3]  Those authorities establish that “a meaningful relationship” is a qualitative concept.  The relationship is not measured simply by the amount of time the child is spending with each parent, but the quality of the relationship that exists between the child and parent.

    [3]Mazorski & Albright  [2007] FamCA 520

23. Having said that, it is much more difficult for a young child to maintain a meaningful relationship if he is unable to spend time with both parents on a regular basis. Electronic interaction via Skype or Facetime is better than no communication, but it is no replacement for personal interaction, physical affection and for a child being able to communicate freely with his parent.

24. The second primary consideration is to ensure that X is not exposed to abuse, neglect or family violence.  The mother argues that this is a prime issue in dispute between the parties. The mother makes numerous allegations that the father subjected her to verbal abuse, threats, social isolation and excessive financial control, all of which fall within the definition of family violence within the Family Law Act.

25. The father argues that the mother’s allegations are overstated and that the conflict between the parties cannot be categorised as family violence, but I disagree.  I cannot make findings about specific incidents that occurred between the parties prior to separation, but I am satisfied that the environment within the family home was very difficult, and that this continued in the six months leading up to the parties’ final separation in January 2020.

26. On the Affidavit material before me, I am satisfied that the mother felt intimidated, threatened and isolated by the father and by his extended family.  In November 2018, and again in January this year, the father arranged for family and friends to be out searching for the mother and X which would have been intimidating for the mother. Upon locating the mother at the Airport in January, he removed X from her care.  Whether the father removed the child aggressively, as the mother says, or simply picked X up and placed him in the car, as the father says, his actions indicate a level of oversight that adds weight to the mother’s allegations of controlling behaviour by the father.

27. The mother has not made formal complaints to the police in relation to these events, however there may be significant cultural constraints that would make it very difficult for her to take such public action against her husband.  The mother’s allegations are concerning, and must be taken into account when considering X’s best interests at this interim hearing.

28. In terms of the additional considerations in s.60CC(3), X is too young to express a view. There is no doubt that he has a strong relationship and connection with his mother, who has been his primary caregiver for his whole life. I am satisfied that the child has an established relationship with his father, but this relationship is less developed, given that the father was working full-time during the relationship. X has also spent two six-month periods living in Melbourne during the past two years, which has further limited the development of his relationship with his father over the last two years.

29. It is very early in the Court process to be making any significant comment in relation to parental responsibility and the parties’ attitudes in this regard.  In the context of a reasonably traditional marital life, it is likely the mother took on primary responsibility for decisions regarding X’s day-to-day care. This is not to suggest that the father was not involved, but he is likely to have played a much more limited role.

30. The father describes himself as a hands-on, caring parent, and says that he looked after the child on occasions when the mother was attending TAFE courses, but this was in the context where there were also extended family members in the home.  The father’s work commitments meant that his parenting role was inevitably much more limited than the mother’s parenting role, but I am satisfied that there is an established relationship between X and the father and he is able to meet the child’s basic care needs.

31. When considering the impact of any changes upon X’s care arrangements, the mother’s move to Melbourne has had a huge impact upon X’s capacity to maintain a relationship with his father.  Prior to moving to Melbourne, X had a settled life here in Adelaide. He was living with both of his parents and attending child care.  There would have been no practical difficulties in the child’s living arrangements at that time, however he may have been exposed to the conflict and tension between his parents, which would have had a negative emotional impact upon X.

32. X has been living in Melbourne for the last six months and I accept that he would have settled into these new arrangements and into new childcare. The mother’s move to Melbourne has meant that X is now living a considerable distance away from his father, however.  This has caused a substantial disruption to their relationship, and that is a significant factor in these considerations.

33. The mother is very settled in Melbourne. She has obtained employment. She is living with family and has their strong support, including financial support, as it seems that she is not required to meet accommodation expenses in Melbourne. I accept that this family support, both emotional and financial, would increase her capacity as primary caregiver to be meeting X’s care needs.

34. The Court must also consider the option of the father relocating to Melbourne. The father does not wish to move away from Adelaide, where he has employment and family support. He is living in the former family home that is familiar to X, and if the child returns to live in Adelaide, then he may be able to return to the child care centre that he had previously been attending.  

35. The mother argues that the father has extended family in Melbourne, and that his work experience and skills would be easily transferrable to Melbourne, whereas she has only recently entered the workforce and would find it harder to obtain a new position in Adelaide. I take these matters into account, but the tyranny of distance remains a significant factor at this interim stage of the proceedings.

36. It is difficult for children to maintain a relationship with a parent living interstate at the best of times. There are costs associated with airfares and accommodation and inevitably, time-spending occurs less frequently.  These difficulties have arisen due to the mother’s unilateral actions in moving to Victoria.  The present COVID-19 travel restrictions make it even more difficult for X to spend time with his father.  

37. There are no concerns regarding the mother’s parenting capacity, and the father concedes that X should remain living in the mother’s primary care.  By contrast, the father’s parenting capacity is largely untested at present.   

38. In terms of X’s maturity and other factors relevant to his background, he is still a young child and does not have any experience of extended overnight time away from the mother’s care as yet.  X and his parents and extended family all practice the Sikh religion. Both parties appear committed to their faith, even though they both accuse the other of not prioritising their religious practice. On the evidence before me, I am satisfied that both parents will support X’s religious development within the Sikh faith, and I do not consider there is any need for a specific interim order in that regard.

39. I have already addressed the concerns in relation to family violence as raised by the mother (and denied by the father). I am satisfied that the mother felt harassed and intimidated within the family home, but in the event the mother is to return the child to live in Adelaide, then she would be living separately to the father, and orders can be made to ensure the mother’s safety and security.

40. The decision facing the Court today is finely balanced. Both parties have strong arguments for the position they are putting before the Court. The father is proposing, that X spend overnight time in his care each week and weekend, which amounts to substantial and significant time in each parent’s care, to the extent that this is relevant. I have not made an interim order for equal shared parental responsibility and therefore s.65DAA does not strictly apply, but the Court should consider whether either party’s proposal is reasonably practicable, nonetheless. The father does not wish to live in Melbourne and cannot be expected to relocate on an interim basis, at this early stage.

1. In turn, the mother asks the Court to accept that she will feel unsafe, isolated and fearful if she is required to return to Adelaide.  She may struggle to obtain further employment in Adelaide, given that she is only recently qualified and has limited experience.  

2. I accept the mother’s concerns are genuine.  However, if the mother returns X to live in Adelaide, she will not be residing with the father, so she will not be immediately exposed to his abuse or intimidation. The mother will certainly not be required to disclose her home address to the father.  Orders can be made to restrain the father from abusing or intimidating the mother and for handovers to take place at a Contact Centre, which should further guarantee her safety. 

3. I accept that X has spent 12 months of the past two years in Melbourne, but this was not a situation that arose with the father’s agreement.  I consider that other factors relied on by the mother, such as the strong family support available to the mother in Melbourne, or employment options, are more relevant when making decisions in relation to X’s long term care arrangements, rather than this interim hearing. 

4. It will be virtually impossible for X to re-establish and maintain a meaningful relationship with his father on an interim basis, if his parents are living in different cities. The cost of flights and the amount of travel involved will inevitably limit the frequency of any visits, which is a significant factor for a child who is only three and a half years old.

5. Taking into account all of these considerations, I conclude that the appropriate outcome at this interim hearing is that X should return to live in the Adelaide metropolitan area, pending a final hearing. This will enable X to spend regular time in the father’s care, not necessarily to the extent sought by the father today, but regularly.

6. It may be that the final hearing will conclude that relocating to Melbourne with his mother will be in X’s long-term best interests. If so, it will also be in X’s best interests to have re-established a meaningful relationship with his father over the coming months, which may ultimately support the mother’s proposed re-location to Melbourne. X will be a little older, and will have adapted to his new reality of living between separated parents, before factoring in extensive travel as well.

7. The mother will need time to make arrangements to return to Adelaide, and I conclude that a reasonable timeframe will see the mother and X returning to Adelaide by 25 July 2020, taking into account the additional complications around Covid-19 restrictions, and her need to locate rental accommodation.

8. I conclude that X should live with his mother until further order and will commence spending regular time with his father once he is living in Adelaide. I am not prepared to put in place regular overnight time at present.  X has never spent significant time overnight away from the mother’s care and the father’s parenting capacity is untested in that context, as opposed to daytime care.  I will order that X commence regular weekly daytime visits with his father on Saturdays, or any other day that the parties may agree.

9. It is in X’s best interests that handovers take place through a Contact Centre, to ensure the mother is not required to interact directly with the father.  As I understand it, those services will be operating by late July.  The parties may also choose to nominate a neutral public venue to be agreed between them, provided this agreement is confirmed by their legal representatives.

10. The father sought to restrain the mother from travelling overseas with X and an order that the child’s passport and Overseas Citizen’s Card be delivered up to the Adelaide Registry.   I am satisfied to make that order on an interim basis, given that there is very limited trust between the parties at present. Longer term, of course, both parties have strong connections with extended family in India and would no doubt want to be able to travel to India with X into the future.

11. I will further order that X be permitted to travel with his mother to visit extended family in Melbourne on a regular basis.  These family relationships are important and he should not be denied the opportunity to maintain those relationships, pending the resolution of these proceedings.  

12. It is unreasonable to expect the mother will return to the former family home, but the father’s offer to meet her first three months rental is appropriate and I will so order.

13. I now make orders as published at the commencement of these Reasons.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge C Kelly

Associate:

Date: 27 August 2020