Gallo and Gallo
[2012] FMCAfam 601
•22 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GALLO & GALLO | [2012] FMCAfam 601 |
| FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – child aged 4 years and 3 months – whether equal time with each parent in child’s best interests – substantial and significant time – whether equal time or substantial and significant time reasonably practicable – whether removal from Australia should be permitted – extended family reside in India – India not a Convention country – Airport Watch List – the “preferred role of the mother” does not represent the law in Australia – Family Reports considered. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 62G, 65DAA, 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth), Sch 2 |
| Epperson v Dampney (1976) 1 Fam LN 29; FLC 90-061 not followed In the Marriage of Hall (1979) 5 Fam LR 609; FLC 90-713 Line & Line (1997) FLC 92-729 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424 |
| Applicant: | MR GALLO |
| Respondent: | MS GALLO |
| File Number: | SYC 6726 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 8 and 9 May, 1 & 7 June 2012 |
| Date of Last Submission: | 7 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tockar |
| Solicitors for the Applicant: | John R. Quinn & Co |
| Counsel for the Respondent: | Mr Sansom |
| Solicitors for the Respondent: | Sarah Bevan Family Lawyers |
ORDERS
All previous parenting Orders are discharged.
The Applicant father and the Respondent mother are to have equal shared parental responsibility for the child of the marriage X born (omitted) 2008 for all major long term decisions concerning the child including but not limited to the child’s health, education, religion and extra-curricular activities.
The child X is to live with the mother.
Until the child X commences school, she is to spend time with the father as follows:
(a)Each alternate weekend from 9:00 am on Saturday until 2:00 pm on Sunday;
(b)from 6:30 pm each Wednesday until the commencement of child care or pre-school on the Thursday morning;
(c)from 9:00 am to 5:00 pm on Father’s Day;
(d)from 2:00 pm to 7:00 pm on (omitted) the (omitted) Festival of (omitted);
(e)from 3:00 pm to 7:00 pm on the father’s birthday; and
(f)at such other times as the parties shall agree.
Once the child X commences school until she attains the age of 8 years, she is to spend time with the father as follows:
(a)Each alternate weekend during the school term from 9:00 am on the Saturday until 5:00 pm on the Sunday, extending to the commencement of school on the Monday morning from the commencement of the second school term in 2013;
(b)From immediately after school each Wednesday until the commencement of school on the Thursday;
(c)For half of the Autumn, Winter and Spring school holiday periods, being the first half in 2013 and all odd numbered years and the second half in all even numbered years;
(d)For two weeks in the Christmas/January school holiday periods from 9:00 am on 10 January to 5:00 pm on 25 January in each year;
(e)On the child’s birthday if that day should fall on a day when the child would not otherwise be spending time with the father as provided by these Orders:
(i)from 3:00 pm to 7:00 pm if on a day when the child is not attending school; and
(ii)from 5:00 pm to 7:00 pm if on a day when the child is attending school;
(f)From 9:00 am to 5:00 pm on Father’s Day in each year;
(g)From 2:00 pm to 7:00 pm on (omitted) the (omitted) Festival of (omitted) if that day should fall on a day when the child would not otherwise be spending time with the father as provided by these Orders; and
(h)At such other times as the parties shall agree.
Once the child X attains the age of 8 years she is to spend time with the father as follows:
(a)Each alternate weekend during the school term from immediately after school on the Friday until the commencement of school on the Monday PROVIDED THAT if the Monday is a public holiday then the time spent will conclude at the commencement of school on the Tuesday;
(b)From immediately after school each Wednesday until the commencement of school on the Thursday;
(c)For half of the Autumn, Winter and Spring school holidays in each year being the first half in all odd numbered years and the second half in all even numbered years;
(d)From 9:00 am on 2 January until 5:00 pm on 25 January in each year;
(e)on the child’s birthday if that day should fall on a day when the child would not otherwise be spending time with the father as provided by these Orders:
(i)from 3:00 pm to 7:00 pm if on a day when the child is not attending school; and
(ii)from 5:00 pm to 7:00 pm if on a day when the child is attending school;
(f)From 9:00 am to 5:00 pm on Father’s Day in each year if that day should fall on a day when the child would not otherwise be spending time with the father as provided by these Orders;
(g)From 2:00 pm to 7:00 pm on (omitted) the (omitted) Festival of (omitted) if that day should fall on a day when the child would not otherwise be spending time with the father as provided by these Orders; and
(h)At such other times as the parties shall agree.
For the purposes of Orders (4), (5) and (6), in the event that changeover does not take place at the child’s child care, pre-school or school, changeover will take place at the ticket counter of (omitted) Railway Station or such other place as the parties shall agree.
For the purposes of Orders (5)(c) and (6)(c) the first half of the school holidays will commence at 9:00 am on the Saturday after school term finishes and will conclude at 5:00 pm on the middle Saturday whilst the second half of the school holidays will be deemed to commence at 9:00 am on the middle Saturday and conclude at 5:00 pm on the day before the child is required to commence school at the start of the school term.
The time that the child would spend with the father as provided by Orders (4), (5) and (6) is suspended as follows:
(a)On the child’s birthday as follows:
(i)from 3:00 pm to 7:00 pm if on a day when the child is not attending school; and
(ii)from 5:00 pm to 7:00 pm if on a day when the child is attending school.
(b)From 9:00 am to 5:00 pm on Mother’s Day in each year; and
(c)On the mother’s birthday as follows:
(i)from 3:00 pm to 7:00 pm if on a day when the child is not attending pre-school or school; and
(ii)from 5:00 pm to 7:00 pm if on a day when the child is attending pre-school or school.
The father and the mother are each permitted to communicate with the child by telephone on one occasion each day at any reasonable time when the child is in the care of the other parent.
Each parent is to permit the child to telephone the other parent at any reasonable time if the child requests to do so.
Upon the child commencing school, each parent must authorise the school to provide to both parents copies of all school reports, newsletters, information about school photographs and other documents or electronic communications normally forwarded to parents of children attending the school.
Each parent is at liberty to attend activities at the child’s school which parents would normally attend including sporting activities, prize-giving ceremonies and parent-teacher interviews.
The father and the mother must provide to each other a telephone number and an address where they can be contacted no later than seven (7) days prior to taking the child away for a holiday outside the Sydney Metropolitan Area.
The father and mother must advise each other of any change to their landline telephone or mobile telephone number or their email address or residential address within forty-eight (48) hours of such change taking place.
The father and mother must promptly advise each other of any illness or injury sustained by the child requiring treatment at a hospital or by a medical practitioner at any time when the child is in their respective care.
Neither party is to abuse or denigrate the other party or any member of the other party’s immediate family in the presence or hearing of the child or permit any third party to do so.
The father MR GALLO born (omitted) 1978 and the mother MS GALLO born (omitted) 1979 their servants and agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X born (omitted) 2008 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child X on the Airport Watch List otherwise known as the PACE Alert System at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until 3 March 2018 or further Order of the Court.
IT IS NOTED that publication of this judgment under the pseudonym Gallo & Gallo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6726 of 2009
| MR GALLO |
Applicant
And
| MS GALLO |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father for parenting orders relating to the parties’ daughter X, who was born on (omitted) 2008 and is now four years old. The child lives with the mother and spends time with the father.
The father wants orders increasing the amount of time that X spends with him until, when the child reaches the age of six, she spends equal time with each parent on a week about basis.
The mother does not agree with this proposal. She proposes that X continues to live with her and that her time with her father should increase in graduated steps at various points:
a)when the child attains the age of four years and six months;
b)the commencement of the first school term in 2013;
c)the commencement of the third school term in 2013; and
d)when the child attains the age of eight years.
It is not the mother’s proposal that the child would ever spend equal time with each party. At best, she proposes that the child should spend alternate weekends with her father, overnight on the Wednesday of the off week, and half of each school holiday period.
The mother also seeks orders that each parent would be able to take the child out of Australia for up to four weeks in each year, on certain conditions to ensure her return to Australia. The father opposes this proposal, as he fears that the mother would take the child to her native India and never return her to Australia.
Background
The parties were born in India. The father was born on (omitted) 1978 and the mother was born on (omitted) 1979.
The parties were married in (omitted) by arrangement on (omitted) 2005.
The father relocated to Australia in April 2007. The mother reluctantly followed him two months later. They both obtained work in the IT industry.
The mother became pregnant in about June or July.
The father’s parents travelled to Australia in February 2008 to assist the parties with the forthcoming birth of the child.
The child X was born on (omitted) 2008.
The mother returned to work in May 2008. She worked as a (occupation omitted), working from 9:00 am to 5:00 pm five days a week. In her absence, the paternal grandmother cared for the child.
The mother was made redundant from her employment in November 2008. She then remained at home caring for the child.
The father’s parents returned to India in December.
Relations between the parties deteriorated in January 2009 and they commenced sleeping in separate rooms.
In February of that year the parties travelled with X to India. The mother stayed with her parents.
The father returned to Australia on 22 March 2009. The mother remained in India with the child until late May or early June 2009. However, relations between the parties did not improve and they continued to sleep separately.
The parties separated on 8 August 2009, when the father moved out of the apartment at (omitted) which the parties had been renting and went to live with his brother at (omitted).
The maternal grandmother travelled to Australia on 30 August 2009 to assist the mother with the care of the child. She remained in Australia until 21 March 2010.
The mother recommenced employment on 9 September 2009. Later that same month the mother left the (omitted) apartment and moved into an apartment in (omitted) with her mother and the child X.
The paternal grandparents returned to Australia in October 2009 and remained until October 2010.
The father commenced proceedings in the Family Court on 6 November 2009 seeking both parenting and property orders. On 14 December 2009, after attending a Child Dispute Conference with a Family Consultant, the parties entered into interim Consent Orders about parenting. Those Orders provided that:
a)The parties would have equal shared parental responsibility for X (who was then aged only one year and nine months);
b)The child would live with the mother;
c)The child would spend two hours with the father each Tuesday and Thursday and from 10:30 am to 7:30 pm each Sunday;
d)Changeover was to take place at Westfield (omitted); and (inter alia)
e)The parties were restrained from removing the child from Australia and her name was to be placed on the Airport Watch List.
The parties attended a further Child Dispute Conference and on 17 February 2010 Judicial Registrar Loughnan (as his Honour then was) made interim Orders by Consent varying the times the child spends with the father, which would increase to overnight on Wednesdays after six months. The parties also agreed that changeover would henceforth take place at the ticket counter at (omitted) Railway Station.
The maternal grandmother arrived in Australia on 15 June and stayed until 28 October 2010 to assist the mother.
On 28 June 2010 the parties entered into Consent Orders resolving the property issues between them.
The parties were divorced in this Court on 30 September 2010.
The maternal grandmother arrived in Australia again on 9 February 2011 and stayed until 5 January 2012 to assist the mother with X.
On 30 March 2011 the proceedings, now consisting only of the parenting proceedings, were transferred to this Court.
Issues
The parties are in dispute about the amount of time that the child is to spend with the father. The mother argues that the parties’ level of communication is poor, which militates against the Orders sought by the father. For his part, the father seeks a significant increase in time with the child, leading up to an equal time arrangement by the time the child turns six.
The parties are in fervent disagreement about whether each parent should be able to take the child out of the country. The father opposes the idea, because he fears that the mother would not return the child to Australia. India is not a party to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (known as “The Hague Convention”).
Orders Sought
Both parties seek an Order that they have equal shared parental responsibility for the child. There appears to be no reason why that Order should not be made.
The Orders that the father seeks are that the child should live with the mother until she turns six, and that she should spends alternate weekends and every Wednesday night with him. That time would increase by increments until the child would spend equal time with each parent.
The mother seeks a more gradual increase in the amount of time that the child spends with the father. She does not envisage there ever being an equal time arrangement between the parties because of the poor level of communication between them.
Evidence
The father relied on the following affidavits:
a)his affidavit of 20 April 2012;
b)the affidavit of the paternal grandmother, Mrs Gallo, sworn 19 April 2012; and
c)the affidavit of his brother, Mr Gallo, sworn 20 April 2012.
The mother relied on the following affidavits:
a)her affidavit of 1 May 2012; and
b)the affidavit of the maternal grandmother Mrs G of 1 May 2012.
The father gave oral evidence and was cross-examined by Mr Sansom of counsel, who appeared for the mother.
The father’s brother, Mr Gallo, was available for cross-examination but was not required. The paternal grandmother was not required for cross-examination.
The mother gave oral evidence and was cross-examined by Mr Tockar of counsel, who appeared for the father. The maternal grandmother, Mrs G, gave oral evidence with the assistance of an interpreter. She was subjected to a brief cross-examination by counsel for the father.
The Family Report
A Family Report was prepared for the purposes of this Application by Ms M, a Regulation 7 Family Consultant. Ms M’s qualifications and experience are in the filed of social work.
For the purposes of her Report, Ms M interviewed the following:
a)the father;
b)the mother; and
c)the father’s brother, Mr Gallo.
Ms M also observed the child:
a)with her parents and uncle in the waiting room at (omitted) Child and Family Centre in (omitted);
b)with her father;
c)with her father and paternal uncle; and
d)with her mother.
Ms M said that the father described the mother as a “nice mother” who was, however, “overprotective” of the child. He said that he was unhappy about the limited time he had with her and felt that the mother was attempting to prevent him from developing a relationship with X.[1]
[1]Family Report page 6, paragraphs [15]-[16]
The father referred to his communication between the mother and himself, saying that:
…he and Ms Gallo communicate only email and a communication book and have considerable problems communicating face to face or by telephone.[2]
[2] Family Report page 7 paragraph [16]
He expressed a concern that the mother might not return the child to Australia if her mother were permitted to take her to India. He said that he had taken the child’s passport from the mother for that reason. He also said that he feared that the mother would be influenced by her family in India to ensure that the child remained there. He did not believe that payment of a financial security would make any difference to whether or not the child would be returned to Australia.
The mother told the Family Consultant that X should live predominantly with her and not in a “week about” arrangement. Her reasons were that:
a)the child has a close relationship with her; and
b)she and the father are not able to communicate well about X.
It is noteworthy that the mother told the Family Consultant that the child had a good relationship with her father; she described him as “a good, fun Dad”.[3] She believed that she and the father should share parental responsibility for the child despite the parties’ communication difficulties:
She said that they have never been able to communicate well and now, according to Ms Gallo, Mr Gallo becomes defensive when she mentions any issues concerning X. She said that neither she nor Mr Gallo has any trust in each other and this makes communication very difficult and tense. She advised that they communicate about X via email or a communication book.[4]
[3] Ibid page 9 paragraph [25]
[4] Ibid
The mother also told the Family Consultant that she would not consider returning to live in India with the child because:
a)her life as a single mother would be very difficult as there would be considerable pressure for her to marry again, which she does not want to do;
b)she feels safe living at her home in a Sydney suburb which would not be the case if she were to live in India as a single woman with a child; and
c)she has a good job in Sydney with a good boss who understands her position.
However, the mother wishes to be able to visit India with X, as she believes that X should have contact with her maternal extended family and experiences Indian culture in India.
The father’s brother was interviewed. He lives with the father. He said that in India the uncle plays an important role in the life of the firstborn child. He has spent a lot of time with X and believes that she is “pretty much attached”[5] to him. He confirmed that his brother and the mother do not get on very well although they do communicate about X.
[5] Family Report page 10 paragraph [28]
The Family Consultant reported that the child X appeared to be very happy to see her father and her uncle. The Family Consultant observed the child and stated that:
X clearly enjoyed interacting with both her parents and her uncle. Both her mother, father and her uncle interacted with her in an age appropriate and sensitive manner.[6]
[6] Ibid page 11 paragraph [31]
In her evaluation, Ms M noted that the major issues between the parties are the poor parental relationship and the child’s attachments and care history. She stated that:
X appears to have an attachment to both her parents and also to her uncle. There are indications, however, that she has a stronger attachment to her mother.[7]
[7] Ibid page 12 paragraph [33]
Disturbingly, Ms M noted that the child’s attachment may have been negatively affected by her early care arrangements. The reasons for this appear to be the fact that she has had a number of carers from an early age, including both grandmothers, and also the fact that there has been a degree of conflict over her care arrangements almost since birth.
Ms M expressed the view that:
The parents have never been able to communicate well, even prior to Ms Gallo’s pregnancy and it is not surprising that they have not been able to develop a positive communication about their daughter since their separation. Both view each other with considerable suspicion and clearly have little trust if any trust in each other.[8]
[8] Family Report page 13 paragraph [37]
Ms M came to the firm conclusion that an equal time arrangement between the parents could not be recommended, despite the father’s apparent commitment to such an arrangement as the only way that he could have a meaningful relationship with his daughter.
However, Ms M was of the view that the child should spend more time with her father than she currently does. She said:
Given the level of attachment that X seems to have to her father, it would seem appropriate that she spends alternate weekends with him and some time in the other week…The time that she spends with him on the weekend should commence with her spending one night with him and increase with her spending time with him from Friday afternoon until Monday morning.[9]
[9] Ibid page 14 at [38]
The Family Consultant expressed the view that it would be in the child’s interests to be permitted to travel to India with each parent to spend time with the parents’ families.
Ms M expressed mild support for the parents to have equal shared parental responsibility for the child, noting that they had shared parental responsibility since their separation and no major issues had arisen other than the question of travel to India with the child. However, she foresaw difficulties in the future if the parties’ relationship did not improve.
The Family Consultant recommended that:
a)The parties should share parental responsibility for the child;
b)The child should live with her mother;
c)The current arrangements should remain in place until the child attains the age of four years and six months (on 3 September);
d)The child should spend alternate weekends with her father from Saturday morning until Sunday morning, commencing when she is four years and six months old, extending to Sunday afternoon after three months;
e)The child should spend time with her father from after school or childcare one day in the alternate week once she begins to spend alternate weekends with her father;
f)The child’s alternate weekends with her father should extend from Saturday morning until the commencement of school on the Monday morning from the beginning of Term 2 in 2013;
g)Once the child commences school she should spend half of the mid-year school holidays with each parent and two one week periods in the Summer school holidays (presumably with the father);
h)Once the child reaches the age of eight she should spend half the Summer school holidays with each parent; and
i)If the Court should determine that the child would be returned to Australia if she were to travel to India with each parent, she should be permitted to go for one month each year with each parent.
Ms M gave oral evidence and was cross examined in some detail by counsel for the father, Mr Tockar. She confirmed that the child has an attachment with her mother, her father and her uncle. Her attachment to her mother is stronger than that with her father and her uncle. Children can form more than one attachment at a time.
If the child were to spend equal time with both parents she could maintain a secure attachment with her mother. She spends ten hours a day in childcare, which needs to be considered.
Ms M said that the child would benefit from having a meaningful relationship with both parents. Whilst the child is too young for much weight to be given to her views but she shows she is happy and comfortable with both her mother and her father.
In her oral evidence, Ms M reiterated her view that there are issues about the parents’ ability to work together and communicate with each other. The parties’ lack of ability to communicate with each other “stands out like a beacon” and each views the other with considerable suspicion. It was for this reason that she was not recommending an equal time arrangement. The nature of the conflict between the parents and the age of the child are both relevant. As Ms M put it:
“If you have to go to communication books there is clearly a communication problem.”
Ms M said that it was very positive for the child to see her father twice a week at her age. She had made it clear that the child should spend more time with her father. Frequency of contact with a parent is important for a young child because of their relatively limited memory, as to how long a child can hold the father’s image in his or her mind.
Ms M denied the suggestion put to her by Mr Tockar that she was following the old “maternal preference” theory.
In cross examination by Mr Sansom of counsel, who appeared for the mother, Ms M said that the father was looking at proposed parenting orders with a parental focus rather than a child focus. Both parents had commented to her about the lack of effective communication between them. The parents do not have a background of shared experience or a residue of shared belief because this was an arranged marriage. If the parties have never had a co-parenting relationship it is very difficult for them to form one. Ms M said that the most important thing is for the parties to develop trust in each other over the care of their daughter.
On the subject of the child’s travelling to India with one or other of her parents, Ms M said that it would be in the child’s best interests that she should experience the real India because it is the source of her culture. It would be a very positive thing for her to travel to India with either parent.
In answer to a question from the Bench as to an appropriate age, Ms M said that the time when the child would gain a benefit in learning about her culture by travelling to India would be when she reaches her early teens. She agreed that it would not be particularly beneficial until the child was about ten or eleven years old.
Submissions
For the Applicant, Mr Tockar submitted that the following matters were not in dispute:
a)Both parties have a good and positive relationship with the child;
b)Both parties are responsibly, caring, capable parents;
c)Both parties are well-educated, intelligent and sophisticated people;
d)The child is comfortable and content in the care of both of her parents;
e)There are no family violence issues, even under the extended definition that now applies since the recent amendments to the Family Law Act; and
f)Children benefit from having a meaningful relationship with both parents.
Mr Tockar went on to submit that the orders sought by the father accord with accepted legal and psychological principles. However, the orders sought by the mother perpetuate the discredited “maternal preference rule”.
It was submitted for the father that the Court should consider making orders in due course that would provide for the child spending equal time with each parent. The conflict between the parents is seen by the Family Consultant and by the mother as an obstacle to an order for equal time.
Mr Tockar submitted that the mother’s attitude is one of dislike of the father. The orders that she seeks are “somewhat bizarre” in that the orders sought in the Amended Response filed earlier in the proceedings offered more time than the mother is proposing now.
Whilst the mother would submit that the communication between the parties or the lack of it militates against shared care, the evidence of the emails between the parties shows that the emails are lengthy but contain mainly civilised communication.
It was further submitted that the Family Report is a positive report but the “substantial and significant time” that Ms M is suggesting smacks of tokenism. The orders that she proposes are illogical.
Mr Tockar took issue with the statement made by the Family Consultant that if a parenting matter goes to court it shows that the parties lack the capacity for cooperation.
Attachment theory states that once a primary secure attachment is in place the child can develop good relationships with other people. The child has the capacity to develop a good attachment to her father.
It was also submitted that if the Court was not disposed to make an equal time order then there should at least be greatly increased time with the father. Whilst the Family Consultant may take the approach that three nights a fortnight with the father is “good enough”, it is not sufficient.
The father maintains his opposition to an order being made allowing either parent to take the child out of Australia to India. The mother has not applied for Australian citizenship. She wants to retain her Indian citizenship. She has no fixed property in Australia and little in the way of ties in this country.
Mr Tockar submitted an article by A. Malhotra and R. Malhotra entitled “Conflict of Jurisdictions in Interparental Child Custody Disputes – The Indian Experience”, a paper presented to the Fourth International Conference on Private International Law, New Delhi, 2-3 December 2006. That article points out that India is not a signatory to the Hague Convention on the Civil Aspects of International Child abduction. Accordingly, there is no parallel Indian legislation enacted to give the force of law to the Convention:
Hence, in India all interpretations of the concept of child removal are based on judicial innovation in precedents of case law decided by Indian courts in disputes between litigating parents of Indian and/or foreign origin.[10]
[10] Malhotra Conflict of Jurisdiction in Interparental Child Custody Disputes – The Indian Experience page 3.
The learned authors state that questions regarding the custody of children in those circumstances are now considered by the Indian Courts on the merits of each case bearing the welfare of the child to be of paramount importance while considering the order made by the foreign court to be only one of the relevant factors in such a decision.[11]
[11] Ibid
Counsel for the Respondent mother submitted that the mother and her family are not “persons of means” as the Applicant contends. Further, the consequences of the child travelling to India are not horrifying and the Court should give little weight to the Malhotra paper. It was conceded that India is not a party to the Hague Convention.
Mr Sansom submitted that the Family consultant had noted some insecurity in the child’s attachment. However, she did not express support for the “maternal preference rule”.
The Court does not have to go along with the views of the Family Consultant but should not ignore the recommendations of a highly qualified person.
Mr Sansom referred the Court to the provisions of subsection 65DAA(5) of the Family Law Act, which says:
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Mr Sansom also relied on the decision of the High Court of Australia in MRR v GR[12], where their Honours said at [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order…[13]
[12] [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424
[13] (2010) 42 Fam LRE 531 at 535 [14]
Mr Sansom also referred the Court to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu[14].
[14] (1999) 197 CLR 611.
He submitted that the father’s own evidence to the Family Consultant and the emails sent between the parties themselves might speak to a high level of communication between the parties but they do not resolve anything.
It was submitted that there are significant level of distrust between the parties and significant communication difficulties. The Family consultant did not see any prospect that in the future relations between the parties might get better.
It was further submitted that when the mother’s proposed orders were put to the Family Consultant she approved of them.
On the subject of overseas travel with the child, Mr Sansom submitted that the child has a need to explore and discover her own heritage. Given the ages of her grandparents common sense would dictate that overseas travel needs to start sooner than when the child is in her early teens. The parties both have good jobs in Australia and they are both well settled. The Court would not see the mother as a flight risk.
The Relevant Law
In deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration (Family Law Act, s. 60CA). The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s. 60CC of the Act. The recent amendments to the Act include a new subsection (2A) to s.60CA, which provides:
In applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).
When making a parenting order, the Court is required by subsection 61DA(1) to apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility for the child. However, the presumption does not apply in cases of abuse or family violence (s. 61DA(2)) and it may be rebutted by evidence that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) of the Act to consider whether it is both in the best interests of the child and reasonably practicable for the child to spend equal time with each parent.
If the Court does not make an order for the child to spend equal time with each parent, then subsection 65DAA(2) provides that the Court must consider whether it is both in the best interests and reasonably practicable for the child to spend substantial and significant time with each parent. The term “substantial and significant time” is defined by subsection 65DAA(3).
I have considered all of the matters contained in the above sections insofar as they are relevant.
In any case where a party may seek to take a child out of the jurisdiction temporarily, the Court must consider whether there is a risk that the child will not be returned to Australia. The Full Court of the Family Court of Australia has considered this issue in Line & Line[15], which concerned an application by the mother to take two children out of Australia to the United States for a holiday. The Trial judge had ordered that the mother should lodge as security a sum sufficient to provide for the cost of a return economy class adult airfare to the United States, such sum not to exceed the sum of $3,000.00.
[15] (1997) FLC 92-729
The children’s father appealed. The Full Court held that in fixing an appropriate level of security for the return of the children, a trial Judge should, in the exercise of the Judge’s discretion, have regard to a number of relevant factors, including:
a)the purpose of the security, to provide a sum that would realistically entice the person removing the children to return and adequately provision the party remaining in Australia to take action for the return of the children;
b)the degree of risk that the departing parent will not return;
c)whether the country of travel is a signatory to the Hague Convention on International Child Abduction, and the likelihood of deviation to a non-convention country; and
d)the financial circumstances of both parties, and any hardship to either party if the level of security was increased or decreased.
Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 sets out a list of countries who are parties to the Convention. India does not appear on the list (see also Family Law Act, s. 111B).
Conclusions
Despite their differences, and the warnings by the Family Consultant of the possibility of difficulties in the future if the parties’ relationship does not improve,[16] the parties each seek an order that they have equal shared parental responsibility for the child X. The Family Consultant recommends that they share parental responsibility.[17]
[16] Family Report page 15 paragraph [40]
[17] Ibid at [41]
There are no issues of family violence or abuse that would negative the presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility, nor is there any evidence that satisfies me that it would not be in the child’s best interests for her parents to have equal shared parental responsibility for her. Accordingly, I propose to make that Order. In making that decision, I have not had any regard to the allocation of parental responsibility made in the earlier interim Orders made in the Family Court (see section 61DB).
That being the case, I am required to consider whether equal time with each parent would both be in the child’s best interests and reasonably practicable. If I am not satisfied that I should make such an order, I must then consider whether spending substantial and significant time with each parent would both be in the child’s best interests and reasonably practicable. I propose to do so after considering the matters required to be considered by subsections 60CC(2) and (3).
It is clear from the Family Report and from the oral evidence of the Family Consultant that the child X has a good relationship with each of her parents and with her paternal uncle. The parties’ own evidence supports that finding. I am satisfied that the child will benefit from having a meaningful relationship with each of her parents.
It is agreed between the parties that there are no issues of violence in this case that would require an Order to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (see paragraphs 60CC(2)(b) and 60CC(3)(j)).
There are a number of additional considerations set out in subsection 60CC(3) of the Act, not all of which are relevant. The recent amendments to the Family Law Act have seen some changes to various paragraphs of subsection 60CC(3).
The child is too young for her views to be sought, at the age of four and three months. However, she appears to be happy and comfortable with both parents.
The child has a positive and loving relationship with each parent. Her relationship with her paternal uncle, Mr Gallo, also appears to be a positive and happy one.
The child has also been cared for by both of her grandmothers and there is no evidence to suggest anything other than that she has a good relationship with each of them.
Paragraph (c) of subsection 60CC(3) now says, after the recent amendments to the Act:
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child.
The parties are concerned and responsible parents who both wish to be involved in making decisions about their daughter, in spending time with her and communicating with her. However, the father’s view is that the mother chooses to make unilateral decisions about the child and unnecessarily restricts his time with her.
There is a new paragraph (ca) of subsection 60CC(3), which provides an additional consideration:
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
This is not an issue.
In considering the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent, or any other person, it should be made clear that neither party is of the view that X should be separated from either parent. X is an only child. She has spent time with each of her grandmothers and it is envisaged that this will continue.
Each parent proposes orders that would gradually increase the amount of time that the child would spend time with the father, but the mother’s proposals are much more limited than those of the father. The Family Consultant has recommended in the Family Report that X should spend more time with her father than is currently the case.[18] Whilst the Family Consultant does not recommend an equal time arrangement, she does recommend increasing amounts of time with the father at various steps in the child’s life:
a)When she attains the age of four years and six months;
b)From the time the child commences school;
c)From the commencement of Term 2 in 2013; and
d)Once the child attains the age of 8 years.[19]
[18] Family Report page 14 paragraph [38]
[19] Ibid paragraphs [44], [46], [47] and [48]
For all practical purposes, the changes at the commencement of school and the commencement of Term 2 in 2013 will occur at about the same time.
There is no practical difficulty or any issue of significant expense in the child spending time with and communicating with each of her parents, as they live in nearby suburbs.
It appears clear that each of the parties has the capacity to provide for the child’s needs, including her emotional and intellectual needs. The only qualification to this statement is the father’s concern that the mother does not fully appreciate the importance of the father’s role in the child’s life.
The child X is a little girl who was born on (omitted) 2008. She is four years and three months old and has been described by the Family Consultant as:
…healthy looking and energetic pre-schooler who appeared to be meeting her developmental milestones.[20]
[20] Family Report page 11 at [30]
The child is of an Indian cultural background and both of her parents were born in India. They have sought orders that would take their (omitted) culture into consideration.
The Court is required to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. They both love their daughter and appear to be responsible parents who were observed to interact with their daughter in an age appropriate and sensitive manner.[21] Again, the father considers that the mother is dismissive of his parenting capacity and downplays the importance of his role as X’s father.
[21] Ibid
The recent amendments to the Family Law Act have brought about a new paragraph 60CC(3)(k) which says:
if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any relevant matter.
In this case, however, there have been no family violence orders.
The Court is required to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child (s. 60CC(3)(l)). Mr Tockar has submitted that if the orders sought by the father are granted, it is unlikely that those orders would lead to the institution of further proceedings, but the same cannot be said for the orders sought by the mother.
In my view, the orders that are least likely to lead to the institution of further proceedings in relation to the child are orders made after a proper consideration of all the relevant evidence and regard the best interests of the child as the paramount consideration.
It is clear that the best interests of the child require Orders to be made that would allow her to spend more time with her father, increasing over time. The Family Report and the oral evidence of the Family Consultant make that quite apparent. However, the Family Consultant does not recommend orders that would provide that the child should spend equal time with each parent.
The father seeks an order that would increase the amount of time that his daughter spends with him until, when the child attains the age of six years, she would live equally with the father and the mother. The father does not believe that he will be permitted by the mother to play a proper role in his child’s life until such an order is made.
The Family Consultant does not recommend that the child should spend equal time with each parent, because of the poor level of communication between the parents, which she fears may not improve even after the litigation between them has ceased. It was put to her in cross-examination that she was still following the old “maternal preference” theory, which she denied.
The theory of the “preferred role of the mother” was articulated in the 1976 decision of the New South Wales Court of Appeal, Epperson v Dampney[22], which was an appeal from the decision of Carmichael J, who awarded custody of the parties’ two young children, a boy aged four and a girl aged two, to their father. In finding that the trial Judge had given too much weight to the expert evidence of a psychiatrist and a psychologist, Glass JA, with whom Street CJ agreed, said:
I am directed by authority to apply the common knowledge possessed by all citizens of the ordinary human nature of mothers…That knowledge includes an understanding of the strong natural bond which exists between mother and child. It includes an awareness that young children are best off with both parents, but if the parents have separated, they are better off with their mother. The bond between a child and a good mother (as this applicant was found to be) expresses itself in an unrelenting and self-sacrificing fondness which is greatly to the child’s advantage. Fathers and stepmothers may seek to emulate it and on occasions do so with tolerable success. But the mother’s attachment is biologically determined by deep genetic forces which can never apply to them.[23]
[22] (1976) 1 Fam LN 29; FLC 90-061
[23] (1976) FLC 90-061 at 75,302
The decision was subject to criticism at the time, not least from the Editor of the Family Law Notes, who said of their Honours decision:
…the majority was willing to override the opinion shared by both experts called for each side as regards the possibility of permanent harm resulting from the disturbance of the status quo in favour of an ancient, but entirely unscientific judicial presumption in favour of the impeccable mother. It is submitted that this bit of accumulated wisdom of the ages is based on an idealized version of upper middle class family life in the late 19th century and bears no relation to present family relationships in the real world, see the remarks of Muirhead J in Maxwell v Maxwell, supra No 27.[24]
[24] (1976) 1 Family Law Notes 29 at 12,019
This philosophy was speedily disavowed by the Full Court of the Family Court in a number of decisions, including In the Marriage of Hall[25]
[25] (1979) 5 Fam LR 609 at 621; FLC 90-713 at 78.824
The “preferred role of the mother” does not represent the law in 2012, whether or not the Family Consultant holds that view (and I am satisfied from her evidence that she does not). The principle to be followed is clearly set in s. 60CA of the Family Law Act:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
As I mentioned in paragraphs [92] and [100] above, having decided that it is in the child’s best interests for her parents to have equal shared parental responsibility for her, the Court must consider whether it is in her best interests and reasonably practicable for the child to spend equal time with each of her parents (s. 65DAA(1)). The Court must be satisfied as to both paragraphs (a) and (b) if it is to consider making an order for the child to spend equal time with each of her parents.
I am not satisfied that it is reasonably practicable for the child to spend equal time with each parent.
The Court must have regard to the matters set out in subsection 65DAA(5) to determine whether such an arrangement would be reasonably practicable. The evidence shows that there is no shortage of communication between the parties. This is done by means of a communication book and by numbers of emails between them.
There are two strings of emails annexed to the mother’s affidavit of 1 May 2012. The emails at annexure “A” consist of an exchange between the parties on the subject of a change of times for the father to spend time with the child on Christmas Eve 2009. They start with the mother’s email dated Wednesday 23 December 2009 at 4:06 pm and consist of another five emails between the parties about use of the communication book and the mother’s complaints that the father does not wait to collect the child’s toys and other things that she might need whilst she is with her father. This email discussion continued until 8:14 pm on Christmas Eve.
Annexure “B” consists of nine emails from 4:32 pm on Boxing Day until 9:39 am on Monday 28 December 2009 on the subject of the child having a mild ear infection which required a visit to a general practitioner.
The parties communicate in great detail, but the emails annexed to the mother’s affidavit show that they could not, on those occasions at least, exchange information about their child on relatively minor matters without bickering for two or three days. They do not speak directly to each other. They use a communication book, and argue about it, or argue interminably with each other by email. Their communication seems to be long on quantity but short on quality.
It may well be the case that the parties do not live very far away from each other, but the matters in paragraphs (b) and (c) of subsection 65DAA(5) must also be taken into account:
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents: and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
The parties have been engaged in litigation in the Family Court and this Court since November 2009. Interim parenting Orders were made on 14 December 2009 and 17 February 2010 but the parties still cannot agree on final Orders. They managed to agree on property Orders on 28 June 2010 but they have continued to litigate about parenting matters.
The likelihood that the parties will be able to communicate about arrangements for their daughter without bickering or recriminations seems remote. The parents have not demonstrated the capacity to implement arrangements for equal time or to communicate with each other and resolve difficulties that might arise.
The evidence before the Court shows that it is not reasonably practicable for this child to spend equal time with each parent.
The Court must then consider whether it is in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each parent. Counsel for the father cross-examined the Family Consultant on what she considered to be substantial and significant time and whether her recommendations amounted to substantial and significant time.
Two points need to be made.
First, the Family Court of Australia Report contains recommendations about the child spending increased time with the father but does not refer to the term “substantial and significant time” per se. Substantial and significant time is defined by subsection 65DAA(3) of the Act, and it is for the Court to determine whether a parent’s time with a child meets that definition or not.
The Family Consultant has made recommendations, and has conceded in cross-examination that some small increases could be made in the child’s time with the father over and above those recommendations:
“…I think it[26] could start earlier…
[26] i.e. the father’s time with the child
…I think if she were to spend an extra night with the father that would be acceptable.”
It should be remembered that the Family Report does not decide the case; it is a matter for the trial Judge. Family Reports are “valuable and relevant material to assist a judge” and the Family Consultant’s views “will normally have weight” (In the Marriage of Hall[27]), but the trial Judge will decide the matter on all the evidence, regarding the best interests of the child as the paramount consideration.
[27] (1979) 5 Fam LR 609 at 615
The Orders that I propose to make will allow more time to the father than either the mother submits or the Family Consultant recommends, but I have taken the matters in subsections 65DAA(2), (3) and (5) into account. In the short run, it appears to me that the father’s time with the child will not amount to “substantial and significant time” as defined by s. 65DAA(3), but the Orders to be made are intended to be in the child’s best interests.
Turning to the question of the mother’s wish to take the child for holidays to see extended family members in India and experience Indian culture, which is opposed by the father, I am not satisfied that this should be permitted before the child attains the age of ten years, on 3 March 2018.
There are several reasons why I do not consider that the parties should be permitted out of Australia at this stage.
First, there is evidence that in March 2009 the mother exhibited considerable reluctance to return to Australia from India with the child. The mother may be persuaded by her parents not to return, despite her protestations that she has no intention of returning to India permanently and considers herself to be settled in Australia.
It is most relevant that India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. If the mother were to take the child to India and decide not to return her, there is no guarantee that a Court in India would decide that a Court in Australia would be the proper court to decide the issue.
The child is not yet four and a half years of age. The Family Consultant conceded that she would not stand to gain very much by exposure to Indian culture in India at this stage of her life, although that situation would be likely to change once she is in her early teens.
Although the mother argues that it would be beneficial for the child to travel to India to se extended family members, there does not appear to be a pressing need for that to happen at this stage. The paternal grandparents and the maternal grandmother have travelled to Australia on occasions since early 2009 and have stayed for several months at a time. The child has had the opportunity to spend time with her grandparents and there is no evidence before the Court that they will not be able to visit Australia again.
In my view the mother’s application for Orders permitting each parent to take the child out of Australia for holidays in India is, at best, premature. The evidence does not support the application. The child’s name should remain on the Airport Watch List until 3 March 2018.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 22 June 2012