Goel and Darsha

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOEL & DARSHA

[2017] FCCA 234

Catchwords:
FAMILY LAW – Parenting – parental responsibility – infant child – high conflict parents – order for sole parental responsibility in the mother – family violence – consideration as to whether child’s time with the father be supervised.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, (1), (2), 60CA, 60CC(2), (3), 61DA(1), (4), 65DAA, (3), 65DAC(2), (3)

The Evidence Act 1999 (Cth), ss.140(1), (2)

Cases cited:

Champness v Hanson

M v M [1998] 166 CLR 59
Re L [2000] 2 FLR 334
McCall v Clark [2009] FLC 93-405

Applicant:

MS GOEL

Respondent:

MR DARSHA

File Number:

MLC 11725 of 2011

Judgment of:

Judge McGuire

Hearing dates:

1, 2 & 3 November 2016 & 27 January 2017

Date of Last Submission:

27 January 2017

Delivered at:

Burnie

Delivered on:

21 February 2017

REPRESENTATION

Counsel for the Applicant:

Mr G Richardson

Solicitors for the Applicant:

Levis Stace & Cooper

Counsel for the Respondent:

Ms M Smallwood

Solicitors for the Respondent:

Lander and Rogers

ORDERS

That all extant Orders in respect of the child X born (omitted) 2015 (“X”) be discharged.
That the mother have sole parental responsibility for X save and except that this Order does not allow the mother to obtain an Australian passport for X or to remove X from the Commonwealth of Australia without the express consent of the father or an Order of a competent Court.
That the mother keep the father prudently advised of all decisions in respect of X’s education or medical matters and that these Orders will specifically permit the father the usual access to schools and medical practitioners normally accorded parents and obtain access to and copies of any documents normally provided to parents by schools and medical practitioners and to attend any school meetings or events normally open to parents.
That MS GOEL and MR DARSHA and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2015 a male child (“X”) from the Commonwealth of Australia.
That it is requested that the Australian Federal Police give effect to the preceding order by placing the name of X on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia (“the Watch List”) and maintain X’s name on the Watch List until 29 September 2028.
That upon expiration of the period referred to in Order 6 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal X’s name from the Watch List.
That X live with the mother.
That X spend time and communicate with the father as follows:
(a)until 30 April 2017 each Monday, Tuesday and Thursday between 12.00 noon and 6.00 p.m.;
(b)thereafter until 30 September 2017:
(i)each Monday, Tuesday and Thursday between 12.00 noon and 6.00 p.m.; and
(ii)each Saturday between 10.00 a.m. and 4.00 p.m.;
(c)thereafter until 30 September 2018:
(i)each Monday, Tuesday and Thursday between 12.00 noon and 6.00 p.m.; and
(ii)each alternate weekend from 10.00 a.m. Saturday until 10.00 a.m. Sunday;
(d)thereafter until the child commences preparatory class at school:
(i)each Monday, Tuesday and Thursday between 12.00 noon and 6.00 p.m.; and
(ii)each alternate weekend between 9.00 a.m. Saturday and 6.00 p.m. Sunday;
(e)from when the child commences preparatory class at school:
(i)each second weekend from Friday at the end of school until Monday at the commencement of school (or Friday at 3.00 p.m. and/or Monday at 9.00 a.m. if not a school day); and
(ii)on the other week from Monday at the end of school (or 3.00 p.m. if a student free day or a public holiday) until Tuesday at the commencement of school (or 9.00 a.m. if not a school day);
(f)from when the child commences grade 1 at school:
(i)each alternate weekend from Thursday at the end of school until Monday at the commencement of school (or 6.00 p.m. if not a school day): and
(ii)on the other week from Monday (or 3.00 p.m. if a student free day or public holiday) at the end of school until Tuesday at the commencement of school; and
(iii)for one half of each Tasmanian gazetted school holiday periods being on a week about basis during the long summer holidays and that time on weekends and Mondays be suspended during all school holidays;
(g)on special days of religious and cultural significance and including the child’s and the father’s birthdays as agreed between the parties but in any event being for periods of not less than 4 hours on each day and should X otherwise be with the father on days of religious and cultural significance or X’s or the mother’s birthday then for periods of not less than 4 hours with the mother on such days; and
(h)at such other times and variations of the above as agreed between the parties in writing from time to time.
That within 28 days of the date of these Orders the mother provide the father with a signed application for an Australian passport for X and within a further 7 days the father execute the application and return it to the mother for lodging and that within 2 working days of receipt of X’s passport the mother lodge that passport with the Registry of the Federal Circuit Court of Australia at Launceston and provide the father with a receipt of lodgement and the parties be and are hereby restrained from removing the passport from the Registry without the express written consent of the other or a Court Order.
That the parties or either of them have liberty to apply in respect of Order 9 hereof.

AND IT IS NOTED:

That if after the expiration of the period set out in Order 6 above any parent seeks that the X’s name remain on the Watch List for a period beyond the period specified that party must file and serve an application in this Court or the Family Court of Australia together with an affidavit setting out the evidence which supports that application.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

MLC 11725 of 2011

MS GOEL

Applicant

And

MR DARSHA

Respondent

REASONS FOR JUDGMENT

Applications

These are parenting proceedings in respect of the parties’ only child X born (omitted) 2015 (aged 16 months).
The applicant is the mother. She commenced proceedings on 15 March 2016. She seeks the following orders:
a)The mother have sole parental responsibility for X;
b)That X live with the mother;
c)That X spend supervised time with the father at the (omitted) Children's Contact Centre twice per week but with a graduated process with X coming to spend overnight time with the father when he turns three years of age;
d)That the Registrar be enabled to sign a passport application on behalf of X and that the passport remain in the Launceston Registry of the Federal Circuit Court and not to be released to the father without the mother’s signature;
e)That the mother give the father not less than 28 day’s notice of any proposed overseas travel with X.
The father argues for an order for equal shared parental responsibility. He proposes an earlier and perhaps immediate move to X spending overnight time with him. The father opposes any condition of supervision. His proposed orders culminate when X commences primary school on a fortnightly regime of:
a)Each alternate week from the conclusion of school on Thursday to the commencement of school on Monday;
b)In the off week from the conclusion of school on Monday to the commencement of school on Tuesday.
The father’s case outline also proposes detailed orders in respect of X’s time between his parents on numerous religious feast days.
The father seeks an injunctive order in respect of the parties mutual denigration of the other. He suggests an order that 'both parties be at liberty to apply for a passport for the child, provided that full particulars of the application be first be given to the other party whose consent shall not be unreasonably withheld'.

Background

Both parties are from India. The mother is 36 years of age. The father is 35 years old.
The parents married firstly on (omitted) 2008 by way of an arranged marriage. The consequent chronology shows a volatile relationship with lengthy periods of separation necessitated by the father’s employment as an (occupation omitted) in the (country omitted), (country omitted) and Melbourne together with the mother moving to Devonport to work as a (occupation omitted). The parties apparently first separated in 2011, were divorced in March 2012, but remarried in (omitted) 2012 after further intervention from their parents. Their personal relationship is highlighted by mutual vitriol, argument, criticism, blame and suspicion. Both parties presented in the witness box as intelligent, educated, articulate, assertive but transparently self-interested. To put it mildly, the entrenched caustic conflict between these two parents is so evident and to the fore that their objectivity and insight into their infant child’s needs was clouded. Further, and despite both parents being well-educated, well-travelled and cosmopolitan, remnants of cultural and religious issues compounded this dispute. It is against this background that the Court is required to determine the parenting arrangements and best interests for the infant X.
Both parents now live in Devonport. The mother works three afternoons a week as a year (occupation omitted). She has the assistance of her own mother to care for X or, alternatively, X spends time with the father when the mother is working.
The mother has not re-partnered.
The father lives in a two-bedroom unit in Devonport. He does not currently pursue his career as a (occupation omitted) although his evidence is that he is confident of returning to the workforce but being able to do 80-90% of his work from home with minimal travel. He currently receives a Centrelink benefit and contributes limited child-support accordingly.
There is no evidence that the father has re-partnered.
In keeping with my comments above as to the parties own relationship, matters of alleged family violence feature heavily in the affidavit material and in the evidence in Court. Essentially, the mother alleges that she has been the victim throughout the relationship of physical, emotional and controlling violence from the father. These allegations are met by blanket denials from the father.

Issues

The issues between these parents can be summarised as follows: –
a)Whether or not the presumption of equal shared parental responsibility should not apply by reason of family violence and/or be rebutted as being contrary to X’s best interests and that there be an order for sole parental responsibility in the mother;
b)The immediate and short term 'time-with' relationship between X and the father leading to overnight time;
c)Issues of credit and relevance in respect of the mother’s allegations of family violence; and
d)The preferred arrangements for the issue of a passport for X and the holding of such passport.

Current Arrangements

Interim orders were made by consent on 11 May 2016 providing:
i)That X live with the mother;
ii)That X spend time and communicate with the father as follows:
(a)on Tuesday and Thursday of each week between the hours of 1.00 p.m. and 5.00 p.m.; and
(b) such other times as agreed between the parties from time to time;
iii)That for the purposes of X spending time with the father, the changeovers take place at (omitted) childcare centre, Devonport or otherwise as agreed between the parties in writing;
iv)An Airport Watch List and consequent injunctive order preventing X’s removal from the Commonwealth of Australia.

Evidence

Family Report

The Court has the benefit of a Family Report by Mr J dated 5 August 2016 prepared from interviews and observations of 22 July 2016. Mr J is a Regulation 7 consultant and psychologist very experienced in assisting Family Courts.
Mr J was not required by either party for cross-examination on the contents of his report, his observations and/or recommendations.
Relevant to the issues set out above and noting that X has enjoyed unsupervised time with the father since May 2016, Mr J makes the following recommendations at [53] – [55]:
i)That X live with the mother;
ii)That X spend supervised time with the father at the (omitted) Contact Centre once each week and unsupervised time in a second visit with the father each week;
iii)That the question of overnight time be deferred until X is at least two years old and formally evaluated again at that time.
In respect of the issue of X spending overnight time with the father, Mr J concludes at [52]:
On the basis that X did not have a pre-existing secure attachment with the father prior to separation (because he was too young for that to have started), X’s developmental need for a secure base and secure attachment means that it will not be in his best interest to spend any overnight time with the father until he is at least two years old, and even then such regular overnight time should probably not commence until he is at least three years old.
A [50] Mr J details his thinking in respect of the issue of supervision. He says:
Limitation of this assessment is that the opportunity to observe parent-child interaction was brief and restricted because X fell asleep. Those health professionals and others who have observed the father’s parenting in the past have noted concerns about his understanding of X’s developmental needs and his parenting responses. It may assist the Court, and safeguard X’s well-being, if X’s time with the father could be supervised for a period of time to enable objective observations to be made. The Court may consider that the mother's proposal for all visits to be supervised until it can be objectively confirmed the father has sufficient capacity to ensure X’s well-being is a reasonable proposal in the short-term. An alternative approach or second step might be for alternate visits to be supervised, taking into account X is already spending quite lengthy time with the father twice a week and such would not be possible at a Contact Centre. Such observation should probably be made over an extended period of time of at least six months to be meaningful.
At [51] Mr J espouses the commonly held notion that a high-frequency of contact albeit not for lengthy periods of time is desirable in young children forming attachments with non-primary parents. He does, however, recognise the Courts requirement to balance the considerations of a child’s safety with those of establishing a meaningful relationship in noting:
At this stage of care planning ensuring safety is more important than facilitating the time necessary for X to establish an attachment to the father. The mother’s anxiety about X’s safety and her apprehension of risk is considerable and must be taken into account. X’s attachment with the mother, who is likely to be his primary care giver for the next few years, is critical and any undue stress that she suffers could impact adversely on his well-being and attachment to her. For that reason any progression of X’s time with the father should not exceed the mother's capacity to cope.
Mr J observes and notes that the father is compliant with current Court orders, that he loves his son, and seeks to have an active role in in his life. The Family Report also notes the mother’s competent capacity to meet X’s needs.
Mr J has enquired into and considered the issue of family violence. Although equivocal in his conclusions, it appears that Mr J tends towards plausibility in the mother’s accounts and then turns to consider any consequent rigid personality traits of the father 'underlying his control and coercive behaviour'?
The mother’s reporting of alleged family violence including coercion and control in the relationship is consistent with her affidavit material. Similarly, Mr Darsha’s denials are also consistent with his affidavits and evidence in Court.
Mr J's report assisted me by his observations of the parties, their personalities, and their histories and generally was in accord with my own observations of the mother and the father. With the benefit of hindsight, it is perhaps unfortunate that I did not have the advantage of hearing Mr J cross-examined as to some of his conclusions and recommendations. In particular, those recommendations imply that the Court make further interim orders for X with a later review. Mr J also recommends a return to supervision for X’s time with the father against a situation where, despite the mother first insisting on supervision resulting in a stand-off between the parents and no contact between child and father, X has experienced unsupervised time with the father since at least May 2016 on two occasions per week.
It is abundantly clear to me that the personal relationship between these parents is toxic and un-trusting. They are each overly vigilant towards the other’s failings as a parent. They are each critical of the others attitude and capacity to parent. It follows, in my view that an end to litigation can serve as a relief for X and his parents from the evidence - gathering process and the parents can move forward in their parenting without each being guarded and vigilant under the spectre of litigation. I will not, therefore, be making interim orders for X and Mr J’s report, as valuable as it is, must be read in this and its untested context.

The Relevant Law

Relevant to the mother’s application for sole parental responsibility, section 61DA(1) of the Family Law Act 1975 (“the Act”) offers a presumption that it be in the best interests of a child for parents to have equal shared parental responsibility for the child. Nevertheless, the presumption does not apply if the Court is satisfied that there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or in family violence. Alternatively, s61DA(4) provides that the presumption may be rebutted by evidence satisfying the Court that it would not be in the child's best interests for the parents to exercise parental responsibility.
Suffice to say that the definition of family violence in s4AB of the Act is a wide one including derogatory, coersive and/or controlling behaviour.
S65DAC(2) provides that the effect of a parenting order for equal shared parental responsibility is that those parents are required to make decisions jointly in respect of further of the child. Further, in s65DAC(3) an order from equal shared parental responsibility explicitly requires the parents to 'consult the other person' and 'to make a genuine effort to come to a joint decision about that issue'. Within this context, matters involving the exercise of parental responsibility are usually seen to involve long-term decisions for children in issues such as education, religion, medical procedure and the like.
Should the presumption of equal shared parental responsibility apply and not be rebutted or should the Court, in any event, make an order for equal shared parental responsibility then the Court is mandated to enter upon a course of statutory and intellectual consideration following s65DAA of the Act. Firstly, the Court is to consider whether the child spending equal time between the parents is both in the child's best interests and reasonably practicable. If the answer to either of those questions is in the negative then the Court must turn to the next statutory consideration being whether the child spending 'substantial and significant time' between the parents is both in the child's best interests and reasonably practicable. 'Substantial and significant time' is defined at s65DAA(3) as:
a) the time the child spends with the parent includes both:
i)days that fall on weekends and holidays; and
ii)days that do not fall on weekends or holidays;
b)the time the child spends with the parent allows the parent to be involved in:
i)the child's daily routine; and
ii)occasions and events that are of particular significance to the child;
c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

S60CA of the Act provides a fundamental proposition for trial courts that in deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration. The child's best interests are determined firstly by having regard to the objects and principles of the Act set out in s60B as follows:
s60B(1) - the objects of this Part are to ensure that the best interests of children are met by:
a)ensuring the children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
c)ensuring the children receive adequate and proper parenting to help them achieve their full potential; and
d) ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
s60B(2) - the principles underlying these objects are that (except when it is or would be contrary to a child's best interest):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together;
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d) parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including a right to enjoy that culture with other people who share that culture).
A child's best interests are then determined by the Court referencing the probative evidence and the parties’ proposals to the many mandatory considerations set out in s60CC (2) and (3). The former subsection provides two 'primary' considerations being:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Unsurprisingly, these two primary considerations are often the major focus of dispute and the balancing of those considerations is a primary task for the Court. That is clearly the situation now before me where the mother places emphasis on the protective considerations in sub-paragraph (b) whereas the father emphasises the meaningful relationship consideration at (a). Recent amendments to the Act provide that the Court is to place 'greater emphasis' on the considerations set out in paragraph (2) (b). Despite such legislative assistance, it still falls to trial judges to attribute weight on a case-by-case basis on the probative evidence relevant to both considerations.
Importantly, the task for the Court is a balancing one and neither of the primary considerations (nor the numerous additional considerations) are determinative of the issue of a child’s living and parenting arrangements. That issue was settled by the full Court in Champness and Hanson where their Honours observed:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make orders most likely to ensure the children had a 'meaningful relationship’ with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child's best interests. In seeking to achieve that objective, s60CC(2)(a) directs the Court to consider 'the benefit to the child' of having a meaningful relationship with those parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
The numerous 'additional considerations' which must be referenced will be relatively relevant on the basis of each factual platform. In the matter now before me, the mother squarely raises the issue of the father’s capacity to attend to X’s physical, intellectual, emotional needs. The father argues that the mother’s attitude towards her parenting responsibilities and specifically that her capacity to facilitate and encourage his relationship with X is lacking.
The standard of proof for the Court in making findings of disputed fact and credit is on the balance of probabilities and in accordance with s140 of The Evidence Act 1999 (CTH) which provides as follows:
s140(1) - in a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
a) the nature of the cause of action or defence;
b) the nature of the subject - matter of the proceedings;
c) the gravity of the matter alleged.
The strength of evidence necessary for a party to establish a fact pursuant to the requisite standard may vary according to the nature of the fact or issue to be proved or its gravity.
It is proper that I reference the issue of 'unacceptable risk’ as this was raised by counsel for the mother in his helpful final submissions where counsel referenced the well-known decision of the High Court in M v M[1]. The mother argues that unsupervised time for X with the father poses an unacceptable risk as to his physical and/or emotional safety. That submission is, on my understanding, based on argument as to the father’s propensity for violence and lack of anger management control. Courts, of course, make orders intended to operate in the real world. As such, there will always been an element of risk and the question therefore can be as subtle as what causes an unacceptable risk to be distinguished from an acceptable risk? It follows that considerations such as, insight and acknowledgement of a parents behavioural traits or, alternatively, a consideration of whether a parent will respect and adhere to Court orders are matters which might convert an unacceptable risk into an acceptable risk.
[1] [1998] 166 CLR 59
The orders that the Court make are prospective in their operation and, whilst the best indicator of future behaviour might be past behaviour, this is not a punitive Court which makes orders as a form of punishment for past behaviour. Rather, it is a balancing of evidence and findings leading to orders which, on the balance of probabilities, result in a child's best interests which occupies the mind of these Courts as was observed in N v M (supra) at [20] where their honours said:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way that the disputed allegation of (sexual) abuse as a Court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression… In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because is prima face in the child's interest to maintain the filial relationship with both parents.
As Dame Elizabeth Butler-Sloss put it in ReL (contact - domestic violence)[2]:
In cases of proved domestic violence, and in cases of other proved harm to the child, the Court has the task of weighing in balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, if any, of contact between the parent found to be violent and the child. In this context, the ability of the offending parent to recognise his past conduct, to be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration.
[2] [2000] 2 FLR 334

Section 60CC Factors

s60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child's parents

It is now being well-established that the task for the Court here is to make orders for a child of a qualitative, rather than qualitative, nature in circumstances where the consideration is a prospective one but where evidence of current or past behaviour is obviously relevant.[3] The Act offers no definition of 'meaningful' but, in my view, should be synonymous with 'successful' and ‘beneficial' for a child.
[3] McCall v Clark [2009] FLC 93-405
It is clear on the evidence that X’s primary attachment is to his mother. The child is still an infant. He has always lived with his mother. His relationship with her is a meaningful and beneficial one.
The issue for this Court, however, is the relationship between X and his father. There was an important hiatus in that time for a number of months from December 2015. At this time the mother was demanding a condition of supervision on X spending time with the father. He was not accepting of that condition. The result was no contact between X and his father. Time has continued at least since May 2016 for X with the father on a twice-weekly basis for a number of hours on each occasion. It is reasonable to assume that the relationship for X has therefore become a familiar and more comfortable one. There is no evidence of any probity to the contrary. Again, it is unfortunate that Mr J did not have the opportunity to observe X with his father in any active sense. The experts in the field are in general agreement that attachments for children with non-primary parents are best achieved by high-frequency but not necessarily long periods of time between the child and parent and increasing on a graduated process. At [51] of his report, Mr J opines:
A 10 months of age (as he then was) X is commencing attachments. That process and attachment formation will be mostly completed by the time he is two years old. If he is to form an organised attachment with the father, then it will be necessary for him to spend frequent time with him to preserve and consolidate a working representation of him. Frequency of visits is probably more important than lengthy visits for this purpose and twice-weekly visits is probably a minimum requirement.
Mr J goes on to suggest at [52] that:
X’s developmental need for a secure base and secure attachment means that it will not be in his best interest to spend any overnight time with the father until he is at least two years old, and even then such regular overnight time should probably not commence until he is it at least three years old.

s60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The matters relevant to this consideration are at the crux of the mother's arguments for both sole parental responsibility and supervised time for X with the father. They also ground more general findings of credit between these parties where the mother asserts generally a climate of violence, being physical, collusive, threatening and controlling from the father throughout the relationship and where the father makes blanket denials. The evidence before me highlighted two particular allegations by the mother and which were denied by the father.
Firstly, there was an incident in February 2012 during the parents’ first separation. It is agreed that the father, his brother and his parents visited the mother at her then home. The mother alleges that the father entered the home uninvited, grabbed her, and attempted to drag her out of the home. The father’s version of events is simply that he and his family members remained outside the home whereupon there was a discussion between he and the mother outside the property. He says that he at no time entered the home. The father's brother, Mr G, filed an affidavit sworn 27 October 2016. He gave evidence in Court. His version supports that of the father. The brother was not challenged specifically as to his evidence in respect of February 2012. He was, however, cross-examined extensively about the second incident and I ascertain his credit accordingly.
The mother adduced evidence from a friend Ms M. She swore an affidavit on 13 October 2016. She gave evidence and was cross-examined. At [11-12] she says:
The next thing I recall is hearing Mr Darsha barge through the door, and scream. I was still in my room. I could hear him yelling – it was clear to me that (sic) was furious. He was telling her to come out and at that point I came out of my room.
I saw Ms Goel on the floor, and I saw Mr Darsha had hold of her arm. I went to the floor and took Ms Goel’s hand - she was crying. Mr Darsha was still yelling at her. He kept hold of her arm, and I took hold of her other arm, preventing him from taking her.
The mother also adduced evidence from another friend, Ms W. She affirmed an affidavit on 23 September 2016 and gave evidence and was cross-examined. At [12] of her affidavit she says:
The first incident occurred approximately three years ago. Ms Goel rang me and was very upset. She said to me that Mr Darsha was 'angry, violent and I need your help’. I was working at the hospital on this day, and Ms Goel was staying in hospital accommodation just across the road. I went over to her accommodation, and I saw Mr Darsha with his arm raised at Ms M, who I know to be a friend of Ms Goel’s. I gained the immediate impression that he was about to hit Ms M. Ms M was cowering from him – Ms Goel was in the opposite corner of the room.
The mother and her witnesses were both cross-examined in minute detail as to their recollections which, of course, were of events of some years past. Generally, however, I found them to be impressive witnesses and witnesses of the truth. I do not consider minor discrepancies in their recollections to be of any import and, indeed, I find such discrepancies to argue against any recent invention or collusion between these witnesses. I prefer the evidence of the mother and her witnesses in respect of this incident and find that the father entered the mother's home uninvited and assaulted her as detailed by the witnesses.
A second incident occurred at the (omitted) Hospital on 23 February 2016. The father's evidence is that coincidentally on that day his brother Mr G had flown from Melbourne into Devonport airport. It seems that he had arrived without luggage and without a return ticket. The father says that he collected his brother, they travelled to (omitted) ‘to talk' and then came back via the vicinity of Devonport airport to the (omitted) highway whereupon they travelled away from Devonport towards (omitted) and intending to take coffee at a (omitted) on the eastern side of (omitted). The father says that he coincidentally came up behind the mother’s car on the highway in the vicinity of the hospital. He says that the mother proceeded towards the hospital and that he followed her believing that some illness may have inflicted either the mother or the child. He says that he allowed the mother and the child to enter the hospital without approaching them but then waited for more than an hour for their return to the mother's car. The best evidence is that the father had parked his vehicle perhaps 50 metres from the mother's car. The father says that he then approached the mother on her return to her car. His first evidence in Court was that the mother ‘handed X to him'. His evidence varied to a degree in that he then said that he removed X from the mother's car. He concedes that he held on to the child and moved with X towards his own car. He says that the mother commenced screaming but that he retained possession of X until Tasmania Police arrived and the child was returned to the mother. The best estimate is that the police took some 10-15 minutes to arrive. The father says that he did not act aggressively. He indicates that the mother initially consented to him taking hold of the child. He claims there was no sinister motive to remove the child from the mother in either the short or long term.
The father's brother Mr G again gave evidence corroborating the father's version of events. He denies that the father was in any way aggressive. He denies that he was a party to the taking of the child or that he himself acted aggressively. He denies visiting Tasmania in the circumstances set out above in order to abduct X from the mother's care.
The mother says that she had attended the (omitted) hospital. She says that she returned to her car and was assaulted and pushed to the ground. She says that X was taken by the father without her consent and retained by the father. She says that fortunately the father’s exit was blocked by the intervention of people in another vehicle. She says that other people intervened to assist her. She agreed that she was screaming for help.
The mother adduced evidence from Ms E who is a medical administrator at the hospital. She swore an affidavit on 17 October 2016 and annexed to that affidavit her statutory declaration to the police made on 23 April 2016 being two months after the event. She gave evidence and was cross-examined. Noting the two months delay in her statutory declaration, I generally accept the evidence of Ms E which corroborates the mother's version of events. She corroborates the mother being assaulted and the mother screaming. She corroborates the baby being removed by a male person from the car. She corroborates another vehicle blocking the father’s vehicle’s exit. There is no indication that she is a witness other than completely independent.
Ms W also references this incident her affidavit. She says that she was telephoned by the mother who was 'hysterical'. She says she travelled to the hospital and was told by the mother that she had been assaulted and thrown to the ground. She corroborates the mother’s statement that other people had assisted her.
Annexed to the mother’s affidavit is an incident report of 23 February 2016 by Ms D who is a duty manager at the hospital. No objection was taken to the form of her evidence and, of course, she was not cross-examined. Nevertheless, Ms D’s evidence corroborates the particulars of the mother's version, including the intervention by the witnesses with whom she spoke. There is no suggestion that Ms D was a witness partisan to the mother.
The father’s brother Mr G was not an impressive witness when cross-examined in respect of this incident. He prevaricated in his responses. He looked to the father in the back of the Court for assistance. There were inconsistencies in particulars of his evidence. He did not give evidence with a confident demeanour. I did not generally find him to be a witness of the truth. Further, I find the evidence of both the father and his brother to be unsatisfactory and, indeed, untruthful in respect of the non-appearance of the brother at the State Court restraint order proceedings which followed the incident.
In respect of this incident, I have no difficulty in preferring the version of events by the mother and corroborated by her witnesses. I find the father and his brother to be untruthful. I do not accept the coincidences referred to above and prefer that the father and his brother intended to remove X from the mother's care and probably motivated by the fact that the mother had withheld time for X with the father for some two months since separation with an ongoing argument as to whether time be supervised. I am satisfied that the mother was assaulted in this incident.

The mother in her evidence refers to other incidents of violence during the relationship and the father’s controlling and coercive demeanour generally. I generally accept the mother’s evidence in this regard.

s60CC(3)(a) - any views expressed by the child

X is an infant and is not capable of expressing views as to his living and parenting arrangements.

s60CC(3)(b) - the nature of the relationship of the child with each of the parents

X’s primary attachment to with his mother. X’s bond and attachment with the father is a work in progress simply by reason of his young age and the limited time that the father has thus far spent with X. I repeat that the experts unanimously suggest the bonding attachment is achieved through frequency of time and preferably for short periods with the non-primary parent.

s60CC(3)(c) - the extent to which each of the children's parents is taken, or failed to take, the opportunity to participate in making decisions about long-term issues in respect of the child and to spend time and communicate with the child and extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The father currently receives Centrelink benefit despite his qualifications and international experience in his profession. As such, he currently contributes only the statutory minimum of child support but I am satisfied that he has a far greater potential.
The father's participation in X’s day-to-day life has been limited but by reason of the mothers strict attitude to the father-son relationship. The mother demanded supervision as a condition to X spending any time with the father following separation. That dispute continued until interim orders for non-supervised time made in May 2016.
I had the advantage of seeing and hearing both parents give evidence and be cross-examined in Court. I observed the mother to be an assertive, empowered and somewhat entitled parent in respect of X. My impression of her is that she ' parents as a right' with little regard to the need for X and the father to establish a relationship and attachment. I expect that the mother’s personal opinions and suspicions of the father ground her views of him as parent. Whereas the father’s credit is seriously impeached in respect of his evidence in relation to allegations of violence, the mother’s credit also suffers to a degree in that she, from my observations, is at pains to criticise the father. I found her to be selective in her evidence and at times capable of embellishment or exaggeration in order to shore up her own case and to criticise the father. Generally, the mother was not consistently an impressive witness. At play here are obviously also matters of culture and religion impacting on male and female roles in the traditional family unit and underpinning a dispute between two worldly and educated individuals.

s60CC(3)(d) - the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his parents

The changes anticipated in this matter are an assimilation of X to spending more time with his father and leading to overnight time. Unsurprisingly, the mother takes a more conservative and cautious approach to the process where the father urges a more adventurous course. The change that needs to occur for the benefit of X is that his parents learn to focus primarily on his needs rather than their own personal conflict.

s60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with a parent

This consideration does not feature at this stage, although I am mindful of the fact that both parents hold tertiary and internationally mobile qualifications. I expected that it is unlikely that both parents will live in Devonport or even in close geographical vicinity throughout X’s minority. Therefore, should matters of geography and travel logistics enter this debate then it is even more important for the parents to learn to cooperate and respect the others relationship with X or, perhaps more relevant, is the need to avoid further reasons for dispute.

s60CC(3)(f) - the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs

The mother says that the father does not have the capacity to care for the child on a day-to-day basis. This is a part of her argument for supervision. She says that he assumes control and possession of X and is insensitive to the physical needs of an infant. She suggests that he acts this way so as to undermine her own bond with X. She particularises things such as excessive massaging of the child. She says that the father will hold X constantly and seems reluctant to put him down or allow anyone else to do so. The Family Report notes evidence from a gynaecologist suggesting that the father was 'dominating’ at the time of X’s birth, making major decisions during the mother’s labour, holding onto X excessively, managing his feeds when it may have been more appropriate to allow mother-baby bonding. This, however, is a first-time father and, on my observations, keen to be involved in his son’s care. Again, I also suspect some cultural aspects to be at play together with what had been an unusual personal relationship between these two parents.
The father says that the mother is unreasonably restrictive in allowing him both time and involvement with X.
The Family Report was not instructive as to the father’s capacity given the lack of observation time.
The father, however, adduced evidence from Ms S whose affidavit was sworn 7 October 2016. She was engaged by the father to observe his time with X in anticipation of the mother’s challenges to his capacity. In summary, Ms S was complimentary of the father and whilst, as suggested by the mother’s counsel, his behaviour must be seen in the course of him being observed, I generally accept Ms S’s evidence as indicative of the father's progress in his parenting capacity. Ms S’s report annexed to her affidavit at page 3 says:
Mr Darsha is articulate and well informed regarding child development (especial (sic) neural development) and tries to incorporate this knowledge into his play and physical contact with X.
Although it is clear that Mr Darsha would like to have more time with X, he is quite clear that any decision regarding frequency and duration of access visits should be based on X’s needs and best interest and not what he or Ms Goel want as adults.
Ms S’s evidence is generally of X acknowledging and being comfortable with his father and the father showing appropriate insight and skills.

s60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child's parents, and any other characteristics of the child that the Court thinks are relevant

Both parties are of Hindu religion and culture. In the Family Report at [13] the father is reported as:
Asked if there were any cultural factors as to the responsibilities of a husband and wife that were important to understand in the conflict between them, the father said no. He denied any sense of entitlement, cultural or otherwise, to have authority over his former wife. In support of this he pointed to the fact he would not have allowed the mother to live in Devonport if he had the power to prevent it; but he claimed no such power.
The same report at [36] in respect of the mother states:
Ms Goel was contacted after the assessment for further information. Asked if there were any cultural factors she considered important to understand the dynamics in the relationship and/or X’s care needs, Ms Goel responded that she wants X to embrace Hindu culture. She also indicated that Hindu attitudes towards marriage and the place of women in the family are broadly consistent with Australian culture. She said Hindu culture highly values the role of women in the family and child care. She expressed her belief that the father's attitude towards her of his parenting behaviour was not consistent with such cultural values. She claimed the father and paternal grandmother each expressed strong negative views about women after marriage and daughters, in contrast to the value they placed on them and sons. She worries the father will impart such misogynistic attitudes to X.
Annexed to the mother’s affidavit is her letter to Mr J 27 July 2016. She says this:
I agree that there are cultural factors which are important for Court to consider in understanding my former relationship with Mr Darsha and X’s future care needs.
In Hindu culture we take 7 vows at the time of marriage which bounds (sic) spouses to consider each other equal and respect each other's feelings.
Moreover in Hindu culture and literature, women are given high regard and are considered building blocks of the family.
In Indian society, mother is given the right for the upbringing of child in case of separation/divorced. I accept the fact that in some lower socio-economic class and uneducated and backward minded people, males consider themselves superior to females and are domineering and controlling which is considered unacceptable and bad practice in society.
Mr Darsha and his family have abused me (and my ex-sister-in-law) and they have absolute disregard for women.
Mr Darsha told me after conception that if we have girl child we should forget about her after her marriage, which was disagreed by me being a mother who will not differentiate between a son and a daughter. Mr Darsha’s mother once said that females are equivalent to rubbish which is thrown into someone else's house after marriage which sounded inhuman. Mr Darsha never treated me as his wife and left no opportunity to hurt my feelings. He treated me as a slave and commanded to do as he said or I would be punished (physically, verbally and emotionally abused).
In Indian culture males are expected to be responsible and caring husband and father and Mr Darsha has proved to be contrary by not being with me for the whole of my pregnancy and not caring for the well-being of our child. He only wanted to see X on Skype and wanted to have his pics when he was in the (country omitted) after his birth. He never asked about his growth/vaccine/well-being/how we were coping. He never fulfilled his duties of being a responsible and caring father but is fighting for his rights because of his ego and social status to show the world that he is the father of a boy. He would not have bothered if it was a girl child.
His behaviour and thinking will be highly condemned in our culture and society. Presently Indian society encourages females to end abusive relationship and raise children on their own if needed so that they come (sic) good citizens.
In her affidavit at [11] the mother says this:
I did not have a good relationship with Mr Darsha’s family (his parents and brother), and particularly his mother. His mother was very dominating of everyone, including myself, Mr Darsha and his entire family. She always held very orthodox Hindu beliefs about the role of a wife and daughter-in-law (which is essentially that they must submit to their husbands and his family and follow orders and have no say in any family issues). I felt that they made me feel worthless, and treated me like a slave. I was required to do all the domestic duties when I was with them.
I am satisfied that there are inconsistencies in the mother’s exposition of her religion and culture and that these are deliberate in order to shore up her case. Her evidence in Court as to the father's alleged preference of a male child was confused and erratic. I am satisfied that this evidence is indicative of the mother’s capacity generally for selective evidence and I consider her credit generally accordingly.

s60CC(3)(h) - if the child is aboriginal or Torres Strait Islander

Not relevant

s60CC(3)(i) - the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child's parents

As indicated above, I am satisfied generally that each of these parents prioritise their own personal conflict over X’s needs.

s60CC(3)(j) - any family violence involving the child or a member of the child's family

This consideration is dealt with above.

sS60CC(3)(k) - family violence orders

This was dealt with above.

s60CC(3)(l) - 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

Contrary to the implications from the Family Report, I am of the view that X’s best interests are best provided by way of final orders thereby removing this Court as a forum for his parents’ personal battles. It is easily apparent that these parents suffer from the interventions of family and culture in their relationship and now in their conflict. My observations of them, however, are that both are intelligent, independent, cosmopolitan and assertive individuals. They, therefore, have much to offer X if only they are able to temper their own disputes. It is hoped that this litigation and these orders and reasons provide a framework of objectivity for the parents to move forward with some modicum of respect for each other and to beneficially parent X. If, however, they continue to highlight their personal dislike of each other then it is inevitable that X’s welfare will suffer and further litigation will result.

Findings and Considerations

X is yet an infant. I am easily able to find that his primary and important attachment at this stage is to his mother. I am satisfied that his attachment to his father is developing but not yet a firm bond. This is not a criticism of the father. Rather X’s time with the father has been limited to short periods of daytime contact. The mother’s personal dislike of the father and suspicious nature together with her conservative approach to X’s relationship developing with his father have contributed to this state of affairs. The evidence of Ms S, however, is positive and optimistic in respect of the development of this important relationship for X. I place some considerable weight on her evidence.
I am satisfied that there has been family violence in this relationship and within the broad definition of Family Law Act 1975. I am satisfied that there have been instances of physical altercation. I am satisfied that X has been used as a tool of control and coersion on occasions. As such, I am persuaded that the presumption of equal shared parental responsibility pursuant to s61DA of the Act does not to apply. In any event, I am equally satisfied that X’s best interests would not be served by his parents having equal shared parental responsibility. My observations of these two parents are that their conflict is entrenched and caustic. They are overly critical of each other and unable or reluctant to identify any positives in the other. They are each assertive and entrenched in their positions in respect of X. They are each suspicious of the other’s motives and agenda. This is best exampled by the mother’s response (or lack of response) to the father’s reasonable requests during an adjournment of this trial over the recent festive period for time with X on some important religious or cultural festival dates. The mother is entitled and jealous of her primary parenting role. The father is yet suspicious and misunderstanding of the mother's primary parenting role. They are unable to agree on day-to-day issues in respect of their young son. I find the credit of each of them in this Court to be impeached. To my mind, matters involving parental responsibility and therefore important decisions in respect of their son will simply ignite further argument. Put simply, they are not able to compartmentalise their own personal relationship in favour of their son’s needs. They do not show a modicum of co-operation or civil communication. As such, the mother is undoubtedly the primary parent for X. It follows in my view that she should exercise sole parental responsibility for him but I will impose obligations on her to notify and give notice to the father of such decisions.
The mother continues to seek a condition that X’s time with the father be supervised at least in the immediate short-term. She says that he has a propensity for violence and lacks control of his anger. X, of course, is not of an age where he can self-protect. Nevertheless, I found Ms S’s evidence to be impressive in respect of the father and prefer that the father’s tendencies are more a result of his frustrations and personal animosity towards the mother. He undoubtedly feels repressed in his parenting of X because of the mother’ perceived ‘ownership' of the child and her gatekeeping of his relationship with X. Whilst it does him no credit to react violently towards the mother, I am not of the view that he presents any physical danger to X. X has enjoyed unsupervised time with the father twice-weekly since May 2016 without incident. He has complied with Court orders.
The mother, of course, comes to Court armed with the report of Mr J which supports a period of supervision. I am not persuaded that this is the right course. I prefer that these parties will benefit from an end to litigation and that this benefit will accrue to X. Interim orders and reviews by Courts will, in in my view, likely lead to further suspicions, evidence gathering, vigilance and dispute on the part of both parents. I am satisfied that X will be safe in the care of the father. I am satisfied that the father has the capacity to care for X on a graduated process leading to overnight time. As such, I do not accept the recommendations of Mr J. There is no evidence that X has come to any harm, physically or emotionally in the short periods of time that he has spent unsupervised with the father. Supervision brings with it certain connotations which should not, in my view, be imposed in this matter. I will not place any condition of supervision on X’s time with the father.
I intend to make orders which graduate the father’s time with X to spending overnight time after X’s second birthday and continuing to a final regime by the time of X starting grade 1 at school. This will allow the father to develop his skills and to assist the process of attachment. It should also serve to give the mother objective confidence that her son is safe and cared for when with the father. Whilst the acrimonious relationship does not allow me to find that they come anywhere near the levels of respect, trust, co-operation and communication needed for X to live in an equal time arrangement between the parents, I am satisfied that upon a sympathetically graduated regime then X can spend substantial and significant time with his father which allows both father and child the opportunity to fully participate in each other’s lives but also for this father to discharge the responsibilities of parenthood which he says he craves. That regime will culminate in X spending each second weekend with his father from Thursday after school until Monday at the start of school and a night on the off-week resulting in him being with his mother for nine nights per fortnight and with his father for five nights. I am of the view that school holidays should take place on a week-about basis as from the time that X commences grade 1 at school. The initial daytimes between X and his father are intended to coincide with the mother’s work commitments on three afternoons each week. Finally, the father’s case summary lists a number of special days of religion and cultural significance. I prefer that some discretion be left to the parents rather than having the Court dictate every discrete time of X’s life but with the intention that X spend time with each parent on such important days.
Finally, there is a specific issue for my determination in respect of X’s passport. There is a current Airport Watch List order valid until 11 May, 2017. I intend to make a further order to remain in force until X turns 13 years of age. I accept that this is lengthy period. I am not confident however, that these parents are yet near any level of cooperation and communication so as to allow X’s international travel to be solely a matter of parental discretion and agreement. Both parties are from India. Their connections to Australia are tenuous. Their extended families on both sides remain in India. Their personal dislike and suspicions remain at a high level. It is in X’s best interests that he is secured in Australia unless the parents or a Court decides otherwise.

I propose to make an order that the parties both sign all documents necessary for the obtaining of an Australian passport and that the passport be lodged with the Registrar of the Federal Circuit Court at Hobart and not to be released to either party without Court order. I intend to have the issue of the child's passport made an exception to the mother’s otherwise sole parental responsibility and in this respect the parties will have joint parental responsibility.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 21 February 2017

[2017] FCCA 234

21 February 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Injunction

Remedies

Consent