Gould and Chaudhary

[2016] FamCA 1036

FAMILY COURT OF AUSTRALIA

GOULD & CHAUDHARY [2016] FamCA 1036

FAMILY LAW – CHILDREN – International travel – Where previous consent orders that the mother have sole parental responsibility for the child and that the child live with the mother – Where father residing permanently in Country D and unable to re-enter Australia – Where father objects to the child travelling internationally with the mother – Where mother long-term Australian resident with significant ties to Australia – Where in the child’s best interests it is appropriate to facilitate the child being able to travel internationally with the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 61DA(2), 61DA(3), 61DA(4), 65DAA, 65DAA(6)

Goode and Goode: [2006] FamCA 1346
MRR v GRR [2010] HCA 4

APPLICANT: Mr Gould

RESPONDENT: Ms Chaudhary

INDEPENDENT CHILDREN’S LAWYER: Ms Rowley

FILE NUMBER: SYC 1091 of 2015

DATE DELIVERED: 2 December 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 17 November 2016

REPRESENTATION

APPLICANT – SELF REPRESENTED LITIGANT: By Phone

COUNSEL FOR THE RESPONDENT: Ms Kaiti

SOLICITOR FOR THE RESPONDENT: CBD Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rowley & Associates

Orders

1. That the father Mr Gould born … 1975, his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child B born … 2015 from the Commonwealth of Australia.

   AND IT IS REQUESTED that the Australian Federal Police give effect to this order as to the father by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.

2. That the child B born … 2015 is permitted to have an Australian travel document and to travel internationally.

3. That the mother Ms Chaudhary born … 1981 may apply for an Australian travel document for the child B born … 2015 without first obtaining the consent of the father Mr Gould born … 1975.

4. That otherwise all applications before the Court be dismissed.

5. That proceedings be removed from the Pending Cases List.

6. Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gould & Chaudary has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 1091  of 2015

Ms Chaudhary

Applicant

And

Mr Gould

Respondent

REASONS FOR JUDGMENT

1. In these parenting proceedings final orders were made by consent on 14 September 2016.

2. Those final orders provided:

   a)that all previous parenting orders are discharged;

   b)that the mother had sole parental responsibility for the child B born in 2015;

   c)that the child live with the mother.

3. It was otherwise ordered on the same day that in the event that the father seeks arrangements for contact with or time with the child that the father do so by appropriate application to the Court for orders supported by affidavit.

4. A remaining discrete issue for determination was adjourned for hearing on 17 November 2016. The discrete issue related to whether the mother would be able to travel internationally with the child and for that purpose obtain an Australian passport for the child.

Context

1. It is of some utility to consider the background context in respect of which the discrete issue for determination arises.

2. The mother is an Australian citizen having lived in Australia for the last 26 years. The father was born in Country D and resides in Country D.

3. Since the child’s birth the mother has been the primary carer of the child and the father has had no time with or contact with the child.

4. The mother and father met on an online dating website in April 2014. The father informed the mother that he had a work contract with an Australian company and it was his proposal to relocate to Australia.

5. In May 2014 the father came to Sydney for a three week period and proposed marriage to the mother. She accepted.

6. The mother fell pregnant with the subject child in May 2014. She and the father holidayed in Country E at that time for a short period and thereafter the father returned to Country D.

7. Subsequently, the mother travelled to Country D in July 2014 for a three week period and whilst in Country D she and the father married. The mother returned to Australia after the marriage and the father remained in Country D.

8. Thereafter the mother asserts the father’s conduct became controlling dominating and abusive. The father sought to have the mother give birth to the child in Country D and when the mother refused the father and his parents became aggressive towards her.

9. The mother remains fearful of the father by reason of ongoing threats to her made over the phone by the father from Country D. The mother expresses reservations as to the father’s mental health. Consequently in December 2014 the mother ended the relationship with the father.

10. By reason of her apprehension as to the father’s conduct the mother was admitted to hospital for the birth of the child under an alias and hospital security was alerted. The mother’s assertions as to family violence perpetrated on her by the father are well documented in her hospital admission notes at the time of the birth of the child.

11. The mother later became aware that whilst she was in hospital the father had entered her family home looking for her.

12. Subsequent to the mother’s discharge from hospital with her new baby, the father entered the mother’s home. The mother fled with the child. An interim apprehended violence order was made on 20 February 2015 for the protection of the mother and the child.

13. The mother asserts that the father thereafter sought to influence the mother’s family against her and at present she remains estranged from her family. She presently resides in circumstances not known to the father for her own protection.

14. On 2 February 2015 the father made application to the Local Court at Suburb C seeking orders that the mother and child be placed on the airport watch list and that the child spend defined time with the father. The father’s application was made without notice to the mother and the Court made orders placing the child’s name on the airport watch list and for the father to spend time with the child. The proceedings were on 6 February 2015 transferred to the Federal Circuit Court.

15. On 25 March 2015 the father and mother attended separately for the purposes of a Child Dispute Conference.

16. The Child Dispute Conference memorandum highlighted various risk factors including:

    a)family violence;

    b)the father and paternal grandmother’s controlling and threatening behaviour with the father threatening to kill the mother and take the baby from her;

    c)fears as to the father’s mental health;

    d)the father’s abuse of alcohol and drugs;

    e)the risk of the child’s International abduction by the father.

17. The family consultant was concerned that if the risk factors were substantiated there would be little benefit to the child of commencing to spend time with the father and indeed there may be a significant risk of harm to the mother and the child. The family consultant noted that the father had agreed to supervision of his time with the child, if any, and to undertake any drug and alcohol testing. It was further noted that the mother and father agreed that the father was the biological father of the child and thus no relevant testing was necessary.

18. On the same day the Court ordered that the child spend supervised time with the father, requesting that the contact centre, if at all possible, enable the father to complete the intake process by email or other electronic media as the father resides in Country D. The father had returned to Country D at an earlier date and the Court noted his intention to relocate back to Australia to spend time with the child. He has not done so.

19. Notwithstanding the concession made by the father to the family consultant as to paternity, the issue was then again raised by him through his legal representative and an order for paternity testing was made on 2 July 2015. On 25 August 2015 proceedings were transferred to this Court and an Independent Children’s Lawyer was appointed to represent the interests of the child.

20. On 13 October 2015 the matter was listed before a registrar who noted that the father remained resident in Country D and that there had been no time between himself and the child. It was otherwise noted that paternity testing did not proceed as parentage was conceded by both parties.

21. The proceedings were before the Court on 14 December 2015 for the purposes of an interim hearing. It was ordered by consent in summary:

    a)that the child live with the mother;

    b)that the father spend time with the child on a supervised basis between 23 December 2015 and 11 March 2016;

    c)that the father within 48 hours of any request received from the Independent Children’s Lawyer undertake supervised urinalysis and CDT testing;

    d)proceedings were adjourned to 15 March 2016 for directions before a registrar.

22. On 15 March 2016 it was noted by the registrar, with the father attending before the registrar on the phone, that the father had not spent any supervised time with the child since 12 February 2016 and had, in fact, returned to Country D having been removed from Australia as a consequence of the expiration of his visa. An incident occurred nearby to the child contact centre on 12 February 2016 where the mother was threatened by her own brother who acted, she infers, on behalf of the father. As a consequence it appears that the contact centre suspended the father’s time.

23. Otherwise, it was noted that the father had failed to undertake urinalysis and CDT testing on the two occasions when requested by the ICL. The registrar stood the matter over to 26 April 2016 on which day there was no appearance by or on behalf of the father. The matter was stood over to 24 May 2016 on which date again there was no appearance by or on behalf of the father. The matter was then adjourned to the judicial case management list on 19 July 2016.

24. The father remains unable to travel to Australia by reason of his previous visa breaches and is unaware as to when he may be able to travel to Australia, if at all, in the future.

25. On 19 July 2016 there was no appearance by or on behalf of the father and proceedings were adjourned to 14 September 2016 with directions made for the father to be notified.

26. On 14 September 2016 the father appeared by phone link from Country D and final orders and other orders were made as referred to above.

The present issue

1. As referred to above, the present matter for determination relates to the discrete issue of the mother’s ability to travel internationally with the child particularly to Country E where she has family.

2. The mother’s ability to do so with the child is supported by the ICL.

3. The mother relies upon her affidavits filed 6 September 2016 and 2 November 2016 where relevant to the discrete issue.

4. The mother seeks orders that an Australian passport be issued for the child so as to facilitate the child accompanying the mother on holidays overseas. The mother has travelled extensively in the past.

5. The child’s maternal grandmother, aged 77, resides in Country E. She is in poor health and has travelled frequently between Australia and Country E.

6. Country E is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction as is Australia. In the event that the father obtains orders for time with the child in Australia and the mother removes the child to Country E, the father will have remedies under the Convention.

7. The mother, otherwise, is a long-term government employee working in the health industry. She is presently studying for a postgraduate qualification.

8. The mother receives no child support for the child from the father nor has the father, she says, made any enquiries as to the child’s ongoing health circumstances.

9. It is the mother’s contention that the father’s wish to preclude her and the child being able to travel internationally is simply another manifestation of his controlling and abusive behaviour.

10. At hearing on 17 November 2016 the father appeared by phone.

11. The father, who conceded that the mother was a good mother to the child, outlined to the Court four main reasons why the mother should not be allowed to travel internationally. Firstly, he contended that he was concerned that the mother had threatened to travel to live in Country E with her grandmother. In relation to this contention, the father was reminded that Country E was indeed a Hague Convention country.

12. The second contention was that the father needed to know that the child had been properly vaccinated. The immediate relevance of this issue to the issue of travel is not clear but in the mother’s evidence she says that she has attended to the child’s proper vaccination in accordance with government protocols.

13. The father thirdly contended that he was not confident that the mother, should she leave Australia, would return.

14. Finally, he contended that it was appropriate in all the circumstances that he be entitled to sign all necessary documents that would facilitate the child’s travel with the mother. This notwithstanding that he was permanently resident in Country D and at present precluded from returning to Australia.

15. As referred to above the ICL supported the orders sought by the mother.

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode: [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that 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.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (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 married or have never lived together; and

   (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); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)].

   b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].

   c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

6. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].

7. In the context of this matter there has been an order by consent that the mother have sole parental responsibility for the child and thus a consideration of the s 61DA provisions of the Act is not required.

   Best Interests:

   The Primary Considerations: s 60CC(2)

8. The primary considerations are:

   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.

9. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

   The Additional Considerations:

10. Section 60CC(3) sets out the additional considerations:

    a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

    b)the nature of the relationship of the child with:

    (i) each of the child's parents; and

    (ii) other persons (including any grandparent or other relative of the child);

    c)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;

    ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

    d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

    (i) either of his or her parents; or

    (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

    f)the capacity of:

    (i) each of the child's parents; and

    (ii) any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

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

    h)if the child is an Aboriginal child or a Torres Strait Islander child:

    (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii) the likely impact any proposed parenting order under this Part will have on that right;

    i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

    j)any family violence involving the child or a member of the child's family;

    k)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 other relevant matter;

    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;

    m)any other fact or circumstance that the court thinks is relevant.

1. By reason of the discrete issue for determination much of the statutory pathway is of little or no assistance in the context of this present application.

2. The child is of tender age and clearly there are no relevant wishes, although it must be inferred that should the mother travel, the child’s attachment to the mother as the child’s primary carer would lead to the conclusion that the child should travel with her.

3. The nature of the child’s relationships with both parents is referred to above briefly. There is no relationship with the father who has at the present little prospect of resuming any relationship with the child by reason of his visa difficulties. The mother is clearly the child’s primary caregiver and it must be inferred that the child is primarily attached to her.

4. The father provides and has provided no financial support for the child and it appears there is little prospect that he will do so into the future.

5. Issues as to parental capacity and the practicability of spending time with each parent are of no relevance to the present application as are issues as to any likely effect on the child of any change in the child’s circumstances.

6. There are assertions by the mother as to the father’s coercive and controlling behaviour. Serious concerns remain as to the nature of the father’s behaviour as they are reflected in her complaints to the police, her complaints to her maternity hospital and her complaints particularised in her affidavit evidence.

7. It is preferable to make an order that would bring an end to these proceedings between the mother and father in relation to this outstanding discrete issue.

8. The mother is well settled in Australia and has strong ties by reason of family (although at present somewhat estranged) in Australia and her employment and ongoing studies. She has been in this country now for some 26 years and during that time has travelled extensively. She evidences no intention whatsoever of seeking to relocate internationally with the child and there is no objective evidence that would be indicative of such intention.

9. Her intention appears in the short term to travel to Country E to visit family and that country is a signatory to the relevant Hague Convention.

10. The father’s concerns in the light of the above circumstances appear to be completely unfounded and expressed in circumstances where he has historically sought to coerce and control the mother. He continues to do so.

11. In all of the circumstances orders as sought by the mother and as supported by the ICL are in the best interests of the child and will be made accordingly.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 2 December 2016.

Associate: 

Date:  2 December 2016