GAVDE & KADAM

[2009] FamCA 1029

FAMILY COURT OF AUSTRALIA

GAVDE & KADAM [2009] FamCA 1029

FAMILY LAW – CHILDREN – Application to remove child under two to USA for the purposes of a five week holiday

Family Law Act 1975 (Cth)

APPLICANT: Ms Gavde

RESPONDENT: Mr Kadam

FILE NUMBER: SYC 6982 of 2008

DATE DELIVERED: 23 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le  Poer Trench  J

HEARING DATE: 23 September 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Winn

Winn Legal

SOLICITOR FOR THE RESPONDENT:

Mr Willis

Willis Lawyers

Orders

1. The mother’s Application in a Case filed 9 September 2009 is dismissed.

2. Pending further order, the father is to spend time with the child S (a female) born … November 2007 each Saturday from 9.00am to 5.00pm. At the commencement of this time the father is to collect S from the mother’s residence or such other place as she may nominate from time to time provided that the site does not increase the amount of travel the father will have to undertake from his residence to the mother’s residence. At the conclusion of this time the mother is to collect S from the father’s residence or such other place as he may nominate from time to time provided that the site does not increase the amount of travel the mother will have to undertake from her residence to the father’s residence.

3. S is to spend any other time with the father as may be agreed between the parties.

4. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

5. The orders sought by the father pursuant to the Response filed 18 September 2009 seeking extension of time to spend with S is adjourned to a date to be fixed by the Court upon application of the father for re-listing having first provided notice to the mother. In the event of the Response not having been re-listed prior to the conclusion of this calendar year the Response will stand dismissed.

6. The parties are to attend upon a Family Consultant at a time to be arranged with her and not prior to the beginning of December 2009 to enable her to complete the Child Responsive Program Memorandum and to assist the parties, if possible, in reaching agreement in relation to the time S is to spend with the father.

7. Upon completion of the Child Responsive Program Memorandum the matter is to be expedited and allocated to a Judge’s docket as time permits in 2010.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6892 of 2008

MS GAVDE

Applicant

And

MR KADAM

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the mother filed on 9 September 2009.  The mother is Ms Gavde and she seeks an order which would enable her to remove the child S, born in November 2007 (and not yet two years of age), from Australia between 18 October 2009 and 24 November 2009. This is a period of about five weeks.  The father opposes that order being granted and in his response to the mother’s application, he seeks specific orders to spend time with the child.

Background Facts

1. The parties married in January 2006 and separated in October 2008.  S was born in November 2007.  The marriage between the parties was an arranged marriage.  They are both of Indian descent.  The father, Mr Kadam, is an Australian citizen.  The mother is an Australian resident.  She becomes eligible for citizenship in 2010.  Court Orders were made on 3 December 2008 preventing the child from being removed from Australia.  Those orders include notation by the Federal Police on the register of children who may not be removed from Australia.

2. Since January 2009 and until about July 2009, the father had been seeing S each Saturday from 9.00am until 5.00pm.  The arrangement was that he collects S from the mother and returns her to the mother at the conclusion of that time.  The mother lives at P and the father lives at W.  It is about a 45 minute drive between the residences.  The father pays a child support assessment of $473 per month.  Both parents work and, although it is not specifically stated in the mother’s evidence, it is implicit that her work is on either a full-time basis or almost full-time basis.

3. To support the application which was filed on 9 September 2009, the mother filed an affidavit of that same date.  She detailed that she was proposing to take a holiday in the United States of America between 18 October 2009 and 24 November 2009.  She is a full-time employee at C Company.  She has been there since August 2006.  She attached a letter from her employer.  She has been able to obtain annual leave for the time of her trip to the USA and on 26 August 2009 she purchased, from Best and Less Travel at Parramatta, tickets for herself and S to make the proposed trip.

4. She has been able to obtain visas.  The visa for S was granted on 23 August 2009, being prior to the time the tickets were purchased on 26 August 2009. 

5. The mother leases a property at P. She has paid a rental bond of $320.  In her oral evidence she told me that the lease has now expired; however, she continues occupying the unit on the same terms and conditions.

6. The mother is proposing to visit her brother, J.  She proposes that whilst in America she would maintain telephone contact between S and her father.  In a further affidavit of 18 September 2009 the mother told me she had obtained a B1-B2 visa to enter the United States of America.  She did not set out when that visa was obtained so I infer it was at the same time as she obtained the visa for S, namely 23 August 2009.  She said she had to provide strong evidence to prove that her intention is just to visit the USA on a temporary basis.  She submitted documents to prove that she has a strong base in Australia and will return from the USA.

7. Although not specifically stated, it is inferred in the mothers’ affidavit that there was some time involved in the process of obtaining the visa because of these requirements. 

8. The child is an Australian citizen and as such, the mother says, she can enter the United States on a tourist visa for a maximum of 90 days.  She told me that S has uncles, aunties and grandparents in the United States of America.  Given that her parents are residing with her in Australia it is difficult to see how she could have grandparents in the USA however, overlooking that, the mother would like to introduce S to her close relatives who live in the United States of America.

9. Into the mix came an invitation to attend a housewarming ceremony for a cousin who is living in California. The mother would like both she and S to participate in that event.   

10. The mother told me she has a car registered in her name.  Her parents have been with her for the past nine months living in Australia to support her and she says they have invested considerably in supporting her application to settle in Australia.

11. The father’s evidence is contained in an affidavit filed on 18 September 2008.  He told me that between March and June 2009 and again between July and September 2009, the parties had attended different counselling organisations.  He says that on 11 August 2009, the applicant mother said to him, “Would you send me and [S] back to India and whenever you want to see [S] come to India and visit her.”  The mother, in the oral evidence today, denied that she said those words to the father on that occasion.  However, she agreed that she has said similar words to him at an earlier time following their separation in October 2008.

12. The significance of the date (11 August 2009) is that on that day the father says the mother and a friend visited his house at W, without invitation and without prior warning. On that occasion and at that time he told the mother that he would no longer consider any reconciliation with her.  Although each party has been cross-examined on a limited scale today, the nature of that cross-examination and the limited view of the case does not enable me to determine where the truth may be about the issue as to when those words (relating to the mother’s possible return to India) were said by the mother.

13. However, if they were said on 11 August 2009, it does add an additional complexity and dimension to the case. This is because shortly after 11 August 2009 the mother put in place the arrangements to be able to take S and herself to the United States of America and that, at least, has given the father some considerable concern, as to whether the mother proposes to in fact return to India to live in that country rather than continue to live in Australia.

14. The father said that the mother has no immediate family members living permanently in Australia. He says there is very little to hold her here in Australia.  It appears reasonably clear that from about the beginning of 2009 until about the middle of 2009, the father was seeing S, as I have said earlier, each Saturday between about 9.00am and 5.00pm.  Around about the middle of this year, the parties endeavoured to effect reconciliation.  The father’s evidence, which I accept for this application, is that on about three occasions, usually on a weekend, the mother stayed with him with a view to seeing if it was possible to reconcile their marriage.

15. Following 11 August 2009, when the father told the mother he was no longer interested in that proposal, the father said he has experienced some difficulty in seeing S.  The mother’s oral evidence, on that subject, was that there has not been any difficulty at all.  If anything, there was some confusion between them as to what the arrangement was for the father to see S.  In any event, the parties agreed that today an order should be made to set the bare minimum of time that the father should spend with S to each Saturday from 9.00am until 5.00pm and such other time as the parties might agree upon.  Although the father says he has great concern for the mother not returning to Australia if she is allowed to take S to America, no particular reasons are set out in his affidavit other than the fact that she does not have any great ties to Australia. 

16. At an earlier time in November 2008, the father filed an affidavit which he relied upon today.  The only potentially relevant evidence therein is that having separated, the wife did not immediately tell him where she was living nor did she give him notice of her proposed separation.  In the circumstances of the case I do not see that information and that evidence as being particularly impactive. In this affidavit the father raised a concern about the mother’s lack of ties to Australia and the possibility that she might leave Australia. 

17. As part of the child responsive program, a memorandum was prepared by Ms A, a Family Consultant attached to the Court.  In that assessment she details, at some length, aspects of the parties parenting.  She detailed the levels of dispute and concluded by setting out a summary as follows:

    This assessment provides preliminary expert advice to the family and to the court about the issues and the children’s needs.  Given that both parents have indicated their wish to pursue the possibility of reconciliation it was not appropriate to develop a permanent parenting plan based on the parents living separately.  The parents did talk about interim arrangements and came up with a plan that they agreed on.  Both parents should be commended on their commitment to their daughter.  The parents appeared to find speaking to one another very difficult and until they have had the opportunity to resolve some of the underlying pain that each feels regarding past events, such communication is likely to remain difficult for them.  Because of the way each parent is feeling they respond to one another cautiously.  The support of an experienced relationship counsellor may assist them to develop different more positive ways of responding to one another, particularly contentious issues, whether they remain married to one another or not.  If reconciliation does not occur, [S] will need to live predominantly with her mother and spend significant and substantial time with her father until she is emotionally capable of spending longer periods of time away from her primary attachment figure.  Such an arrangement will help her to maintain her current attachments.

18. It appears, on the evidence, that the parties have followed the advice of the Family Consultant and have used the services of community based organisations to consider reconciliation and also to consider matters relating to the care of their child.

19. The mother made submissions in support of her case which included the following.  The reasons for the trip which touch on the best interests of S include the following:

    ·That she will have an opportunity to meet close relatives;

    ·That she will have the opportunity for special time with her mother whilst on a holiday.  This extended to the fact that the mother would not be working, would be available full time to spend with S and would be living in an enjoyable and casual/holiday type environment, all of which might be expected to benefit S and the development of her relationship with her mother.

20. It would also give any opportunity for the relatives to be able to experience some tactile relationship with S and expose S to, hopefully, happy and contented relatives. It was submitted that S has not experienced harmonious relationships within her immediate family.  This is particularly so in relation to her post separation time with her parents who are still said to be grieving the breakdown of their relationship, the loss of their marriage and everything that flows therefrom.

21. It was further submitted that the mother will ensure that S does have some contact with her father by telephone, Skype or whatever means might be available.  It was submitted that the mother would, if required, be able to produce a cash deposit of $10,000 as a guarantee for her return.  She also submitted that it would be appropriate for there to be some extra time for S to spend with her father to make up for the approximately five weeks absence when she would not be seeing him at all.

22. Submissions were made on behalf of the father.  Those submissions included the following:

    ·The trip does not appear to be one of essential travel;

    ·The mother has had the support of both her parents here in Australia since the separation and therefore, the necessity for additional family support might be put in context as being not immediately required;

    ·There is a concern that the mother will return to India.  India is not a signatory to the Hague Convention. That reference is to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”).

23. It was submitted that $10,000 would be entirely insufficient to fund any action on behalf of the father in India to either require the mother to return S to Australia or to seek any orders in relation to spending time with S. 

24. It was further submitted that any benefit which might accrue to S through spending time with her mother on the holiday and the other aspects of the benefit flowing to her as submitted by the mother are completely lost by the detriment of the separation between S and her father for a period of in excess of five weeks.

25. The father submitted the mother has no real ties to Australia. 

26. The father does not have access to Skype facilities and therefore communication would be restricted to telephone; the inference being that telephone communication with a child under two is hardly meaningful. 

27. The father’s response, which was filed on 18 September 2009, seeks a series of orders in relation to spending time with S.  This is in effect a gradual progression of time overnight and alternate weekends.

28. The matter was transferred to my Court by the Judicial Registrar because of the mother’s application to take S out of Australia, not for the purposes of considering this application of the father’s to extend the time for him to spend with his daughter. Those issues have not really been canvassed in the hearing before me.  However, there is an entirely unsatisfactory state of affairs for S that currently exists and for that purpose, and in recognition of that fact, the parties have agreed that I should make an order for S to spend time with her father each Saturday from 9.00am to 5.00pm and at such other times as may be agreed.

29. The parties are in dispute about the travel arrangements to implement those orders and I will deal with that shortly.  In the course of submissions I suggested to the father that some short period of time, at least, should be given to explore how the proposed orders in fact might work; whether it is possible for the parties to agree on additional time and if so, what that time might be.  I also suggested that after a period of time the parties might again meet with the Family Consultant to allow the Family Consultant to finalise the report and to provide any assistance to the parties in being able to extend the arrangements for S to spend time with her father, should that be appropriate.

The Relevant Law 

1. I am required to make an order which is in the best interests of the child. To determine what those best interests are I am required to have regard to section 60CC of the Family Law Act 1975 (Cth). In a case such as this, the Court is often not able to make findings in respect of all the matters that are referred to in section 60CC but I propose to consider those which are relevant to today’s application and in relation to which there is some evidence.

2. The relationship between S and her parents is reasonably apparent at this stage.  She is primarily bonded to her mother.  Her mother is her primary caregiver.  However, her father is a very significant person in her life and that is recognised by the arrangements the parties themselves have put in place.  In the report of the Family Consultant, she says that:

   [S] appeared to be a healthy active toddler.  She demonstrated attachment behaviour with her mother, father and maternal grandparents but her primary attachment is to her mother.

3. At this stage she has been assessed by a qualified expert witness to have an attachment to her father.  Clearly, given the degree of care that the mother’s parents have been providing, she has an attachment to them.  The history provided by the parties provides considerable evidence of the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child, S, and each of her parents. 

4. In fact, it seems to me that until such time as the father delivered the ultimatum that the marriage would not be capable of being revived, the parents have been doing a very good job of arranging for S to continue her relationship with each of them.  They each seem to recognise the harmful impact on S of the conflict between them and seem to have been able to shield her from that conflict since their separation.

5. I am required to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of the separation from either of his or her parents.  This is a particularly important matter as S is not yet two years of age and, as such, frequent contact with each of her parents is a very important aspect of her being able to maintain those relationships.  The proposal of the mother to put five weeks of distance between S and her father, so that there is no face to face contact during that time, has real implications for the relationship between S and her father.

1. As will be referred to later, I do not have any expert evidence to assist in relation to what might reasonably be predicted to be the impact on S of separation from her father for a period of five weeks.  However, the Court has general experience in matters of this nature and I will refer to those later.  One of the matters that I am required to take into account is any family violence. 

2. The evidence of the parties provides no details of any family violence. However, the Family Consultant’s report refers to each of the parents describing conflict between them, including pushing and shoving and an allegation by the mother that she had been hit by the father. No other details are provided, although it appears clear from what the parties themselves have said that S was exposed to, at least, the verbal conflict between them during the period of their living together. One of the matters I am required to take into account under section 60CC(2) is the benefit to the child of having a meaningful relationship with both of the child’s parents. A separation of five weeks for S from her father raises concerns about the possible impact on her relationship with her father thereafter.

Conclusion

1. This application is made at a time when the Court has not had an opportunity to properly explore the concerns of the father that the mother will abscond to India if she is permitted to remove S from Australia.  I therefore need to work with the non contentious facts and assess the benefits and detriments to S of accompanying her mother on the proposed trip to the United States of America.

2. As best I can, I identify some of the benefits as follows:

   ·The trip will probably be an enjoyable trip for the mother.  Thus, anything which provides the mother with enjoyment is likely to make her a more congenial and effective parent and support her in her role as a mother to S;

   ·The re-establishing of close familial ties, I accept, is an important matter for the mother and will be beneficial to her and therefore indirectly beneficial to S;

   ·S spending time in a harmonious and happy family environment will probably benefit her and will provide a contrast to what she has experienced in the breakdown of her own parent’s relations;

   ·Given that the mother will not have to work during the holidays, S will have additional time with her mother and would be expected to consequently benefit from that exposure and that time;

   ·The mother will make arrangements for S to speak to her father by phone whilst she is away, thereby at least giving S the clear message that her mother actively promotes the relationship between S and her father.

3. Some of the possible detriments I can identify are as follows:

   ·There will be a period of five weeks without any face to face contact between S and her father.  There is no specialist evidence available to assist the Court as to the impact upon the relationship between S and her father of such a situation;

   ·There is objectively some risk the mother may not return to Australia. 

   ·She has no family in Australia other than her parents who are here solely for the purpose of being with her but are not residents, nor are they citizens of Australia.

   ·The mother does have a job in Australia, however, her employment, qualifications and skills appear easily transportable to another country. 

   ·The mother’s assets in Australia consist of one car together with her personal belongings.

   ·Her lease has expired.

   ·The mother has offered to provide a fund of $10,000 as security for her return.  However, if she was to return to India and not to return to Australia, India being a non-convention country under the Hague Convention, then the father says $10,000 would not be adequate or sufficient to enable him to pursue her return in the Indian courts or any other orders in the Indian courts.  I accept that submission is probably correct.

4. A consequence of the mother not returning to Australia would be an entirely different type of relationship between S and her father to that being contemplated by the parents at this time.  The impact upon the mother of not being permitted to travel to the United States of America at this time is unknown.  However, the mother is not isolated from her family.  She has each of her parents staying with her here in Australia.  Her father can stay until the middle of next year.

5. No evidence has been provided to suggest that any of the mother’s close siblings now living in America do not have the capacity to travel to Australia and to spend time with the mother here in Australia at this time.

Balancing

1. The timing of the trip gives me reason for concern.  The agreed history has the father ending any hope for the mother of reconciliation of the marriage on 11 August 2009.  The mother paid for her air ticket to the United States of America on 26 August 2009.  Prior to that, she pursued visas for herself and for her daughter to travel to the United States.  The father asserted that on 11 August 2009 the mother had raised with him the prospect of her residing in India and him visiting her there.

2. As I have said earlier, the timing of the mother’s request to reside in India was denied by the mother and I am not in a position to make a determination one way or the other as to whether the conversation took place on 11 August 2009 or at an earlier time.  The child is very young and it is difficult to see what direct benefit she will obtain from the trip.  The benefits that I have been able to identify are indirect benefits, largely flowing from direct benefits to the mother.  The mother has bought a return ticket to the United States of America,  however, it was conceded, that a return ticket was probably a requirement before the USA would provide a visa to the mother to allow her enter the country.

3. The impact upon S of a five week break from any face to face contact with her father is not known.  Nor is there any evidence from a properly qualified person to assist the Court in assessing that impact.  The Court can only draw on general experience which shows that the Court should be cautious in sanctioning such a long break for a child not yet two.  The possibility of the mother not returning to Australia obviously, if it were to occur, would be expected to have a far reaching effect on S.

4. The Court is not in a good position to judge the likelihood or otherwise of the mother failing to return given the limited type of hearing which can be afforded to the case today.  The parents are both of Indian origin.  The marriage was an arranged one.  The Court has not been provided with any real insight as to the cultural significance for the parties of the separation.  This fact impacts upon the ability of the Court to assess the risk of the mother failing to return to Australia.

5. It may be that, in the fullness of time, the Court would determine that the benefits which might flow to S of a trip such as that proposed by the mother would outweigh the detriments.  However, at this time I do not accept that it is the case and I therefore decline to make the orders sought by the mother.

Time for S to Spend With Her Father

1. As stated earlier, I propose to make orders for the father to have time with S each Saturday from 9.00 am to 5.00 pm and such other time as agreed.

Travel

1. At this stage the father has been doing all the travel involved in spending time with S.  He seeks an order that the mother share in that travel.  I propose that the mother should participate in the travel.  The mother’s reasons for not participating in the travel include that “the father was the one who moved so far away.”  I do not accept that as a valid reason for excluding her from any obligation to actively participate in S spending time with her father.

2. The mother’s participating in the travel has the potential to give S the clear message that her mother supports her spending time with her father.  After the parties have trialled the orders I propose to make today, for about eight weeks, I suggest the parties should see the Family Consultant again and then consider if there should be any increase in the time S should spend with her father.

3. I cannot, and will not, prevent the father from pursuing his application contained in the Response filed by him on 18 September 2009 in relation to the increase of time to spend with S so I propose to make orders that give him the ability to relist that application at a time of his choosing. However, I would caution against that occurring before the parties have had an opportunity to again meet with the Family Consultant and consider what arrangements might then be best for S.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice le Poer Trench

Associate: 

Date:  2 November 2009