Gulshan & Gulshan
[2024] FedCFamC1F 53
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gulshan & Gulshan [2024] FedCFamC1F 53
File number: MLC 11608 of 2023 Judgment of: HARTNETT J Date of judgment: 8 February 2024 Catchwords: FAMILY LAW – PARENTING – Airport Watchlist Order – Application to discharge restraining order in respect of children departing the Commonwealth of Australia dismissed – Matter transferred to another Registry – Previous orders to remain in full force and effect. Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 18 December 2023 Place: Melbourne, via videolink The Applicant: Litigant in person Solicitor for the Respondent: King & York Lawyers ORDERS
MLC 11608 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GULSHAN
Applicant
AND: MS GULSHAN
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Application for interim orders as sought by the mother in her Response to Final Orders filed 23 November 2023 is dismissed.
2.This proceeding be transferred to another Registry of the Federal Circuit and Family Court of Australia (Division 1) to be listed before a Judicial Registrar on 22 January 2024 at 10.00am.
AND THE COURT NOTES THAT:
A.The Orders made 8 October 2023 remain in full force and effect.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gulshan & Gulshan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
BRIEF BACKGROUND
This proceeding commenced with an oral ex parte application by the father to the After Hours Service on a weekend. The matter was transferred from Division 2 to Division 1 and heard by me on Sunday, 8 October 2023.
I made orders on that day as follows:
IT IS ORDERED EX PARTE THAT:
1. Leave be granted to the Applicant Father (“father”) to make an oral application for the orders that are made this day.
2.The father file and serve an Initiating Application for parenting orders (which shall include the orders sought by him and made on this day) together with an accompanying affidavit in the Melbourne Registry of the Federal Circuit and Family Court of Australia (Division 2) for immediate transfer to the Federal Circuit and Family Court of Australia (Division 1). Such material to be filed close of Registry Filing within five days of this order.
3. Until further order each party, [MR GULSHAN] born […] 1983 and [MS GULSHAN] born […] 1988, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated by Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the children:
[X] born […] 2013 a male; and
[Y] born […] 2021 a female;
from the Commonwealth of Australia for a period of six months from this date,
pending further order of the Court.
4. It is requested that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period or until the Court orders its removal.
5. The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
6. The father is to immediately provide a 24 hour contact number to the Australian Federal Police.
7. This order is not intended for any already departed aircraft or vessel.
8. In the event an Initiating Application is not filed at the Melbourne Registry of the Federal Circuit and Family Court of Australia within five working days of this order, the said children will be removed from the Family Law Watchlist.
9. The father is to arrange service of the Initiating Application and a sealed copy of these orders as soon as practicable.
10. Otherwise, all extant applications are adjourned to 10.00 am on 24 October 2023 before Her Honour Justice Hartnett.
11. The costs of both parties are reserved, including any loss sustained as a result of the making of these orders.
THE COURT NOTES that a party may be ordered to pay compensation to any person restrained or affected by the injunction granted in this order.
The father complied with the above orders.
Prior to and on the return date of 24 October 2023, the parties were of the view that they may be able to reach agreement as to whether the orders made in respect of the children on the 8 October 2023 should remain in full force and effect. Ultimately, they failed to reach any agreement. The matter was required to be further adjourned to an interim hearing before me on 18 December 2023.
The father had filed an Application for Final Orders and an affidavit on 13 October 2023, being prior to the first return date of 24 October 2023. The mother filed a Notice of Response to Final Orders and an affidavit on 23 November. The father filed a further affidavit on 7 December 2023. On the hearing of 18 December 2023, the parties each relied on their respective material filed.
The evidence before the Court on the 18 December 2023 went to whether the parties’ children, X born 2013 and Y born 2021 (collectively “the children”), now aged 10 years and 2 years respectively, should continue to be restrained from departing the Commonwealth of Australia and in pursuit of that restraint, whether their names should remain on the Airport Watchlist.
The parties separation was recent and neither wished, for their own reasons, to further exacerbate their conflict. Whilst each of the parties affidavits contained a history of the parties’ relationship and a history of the care of the parties’ children, neither party sought parental responsibility or live with parenting orders. The then pending applications were wholly contained to the issue of travel for the mother and the children to Country B.
The father confirmed at the commencement of the interim hearing on 18 December 2023 that he sought retention of the orders made 8 October 2023 and thus their continued operation. The mother sought a discharge of those orders to enable her and the children to travel to Country B to spend time with her family.
The mother asserted that the relationship between the parties was acrimonious. The mother submitted that the parties did not trust each other. Their lack of trust is evident on the material.
It is an agreed fact that the parties and their children have travelled together to Country B. On occasion, the mother has remained in Country B whilst the father has returned to work in Australia. The children have also travelled to Country B with just one parent, the mother, and remained in Country B for varying periods of time, ranging from weeks to months.
RELEVANT HISTORY
The mother was born in 1988 and is currently 35 years of age. The father was born in 1983 and is currently 40 years of age. The parties met in 2011 through family in Country B and became engaged soon after in 2011. The parties married in 2012 in Country B and separated on 14 September 2023.
In late 2023, the New South Wales Police applied for an Apprehended Domestic Violence Order (“ADVO”) for the protection of the mother. An ex parte order was made on that date which had the effect of preventing the father from residing in the former matrimonial home.
The former matrimonial home is a rental premises in Suburb C, where the mother and children continue to reside. The father continues to pay the rental in respect of the mother and the children’s occupation of the home. The mother claimed to be unaware of where the father currently resides. The father has, in fact, moved his residence on occasion and was residing with friends (on the hearing date) in a shared house. His accommodation is not, he considers, particularly suitable for the children to spend regular overnight periods, and he presently feels constrained financially in obtaining independent accommodation wherein he can appropriately accommodate the children. One of the children, X, who is 10 years of age, is significantly disabled.
The parties resided in Country B until 2012.The father then obtained an Australian working visa through his employment with a consulting company. The father moved into a shared rental property in Suburb C in Australia. The mother, upon his departure, moved into the paternal grandparents’ residence in Country B. The child, X, was born in 2013 in Country B. Shortly after his birth, in 2013, the father visited the mother and the child in Country B for a period of two to three weeks before returning to Australia.
The mother obtained a spousal visa in 2013 and moved to Australia. She and the father moved into the rented former matrimonial home.
When the child X was approximately three and a half years of age, he was diagnosed with Autism. At four years of age, the parties discovered that the child had a rare condition. His condition has involved the mother’s engagement with occupational therapists, speech pathologists, and a range of other medical personnel. The mother’s need to care for X has meant she has been unable to engage in full-time or part-time work since arriving in Australia. She is in receipt of a carer’s pension.
In 2015, the parties returned to Country B for a holiday. The father remained in Country B for approximately three or four weeks, then returned to Australia due to work commitments. The mother stayed with the paternal grandparents for a total of six months. During that time, she also spent a few weeks with the maternal grandparents at their residence.
In 2017, each of the mother and father became permanent residents of Australia. The father was granted Australian citizenship in 2017, whilst the mother was granted Australian citizenship in 2019.
In 2018, the mother’s parents came to Australia for a holiday and stayed at the former matrimonial home for approximately 10 weeks duration.
In late 2019, both parties travelled to Country B separately, with the father failing to confirm with the mother that he had, in fact, travelled to Country B at the time she was there with X. After his arrival and approximately one week later, he informed the mother that he was in Country B. This caused a dispute between the parties.
In 2021, the parties’ daughter, Y, was born.
In 2022, the parties again travelled to Country B to celebrate Y’s birthday with their respective families. They stayed in Country B for approximately two to three months. Disputation occurred between the parties during this trip.
In late 2022, the parties had a verbal disagreement. The mother alleged the father became increasingly aggressive in his tone and body language. The mother deposed that:[1]
[Mr Gulshan] was standing very close to me and headbutted me on the nose with his forehead. I instantly felt pain in my nose and started bleeding. [Mr Gulshan] immediately became apologetic and attempted to assist in stopping the bleeding. The children were not present at the time of this incident. I regrettably did not contact police at this time as I was shocked and confused as a result of [Mr Gulshan’s] physical assault.
[1] Mother’s affidavit filed 23 November 2023, paragraph 37.
In mid-2023, the mother’s brother, his wife and their child came to Australia to visit the parties. They stayed in Australia for one month. They resided at the former matrimonial home. The mother alleged the father’s verbal abuse of her continued throughout that period and onward, and that in late 2023, during a disagreement, the father threw her phone at the wall and damaged her phone.
In late 2023, the mother alleged the father engaged in a verbal disagreement with her in the home. She deposed that, the father then:[2]
…grabbed my hair from behind, pulled my hair, and pushed me in […]. [Mr Gulshan] then spat in my face […]. I then attempted to retreat into the living room, while [Mr Gulshan] followed me. I picked up […] one of the children’s toys, and hit [Mr Gulshan] with an attempt to stop [Mr Gulshan] from advancing toward me. [Mr Gulshan] continued to walk towards me and in an attempt to defend myself, I picked up my son’s [toy] and held it in front of me. [Mr Gulshan] then grabbed the [toy] and swung it with force at my […] hand. I immediately felt severe pain in my hand.
[2] Mother’s affidavit filed 23 November 2023, paragraph 41.
Following the incident as described above, the mother attended at D Hospital to have an X-ray of her hand. The X-ray indicated she had fractures in her hand.
The father was charged with offences which are before the Suburb C Local Court for determination on a subsequent date.
Following the incident of late 2023, the mother asked the father if he could provide the children’s passports to her so she could visit Country B for approximately four weeks in order to spend time with her family and for them to assist her with the care of the children. She expressed that as a result of the injury to her hand and the father’s offending, she was struggling mentally and wanted to spend time with her family to receive support.
The father refused the mother’s request for she and the children to travel to Country B.
The parties separated on 14 September 2023 and have been living separately.
Following separation, the mother’s brother, his wife and their child, again, travelled to Australia and have again taken up residence in the former matrimonial home. The father is meeting the rental payments. This is a small home of two bedrooms, which is now accommodating the mother, her two children, her brother, his wife and their child. The intention of the mother’s family is to remain in the home ongoing until mid-2024. They will, at that point, determine whether they will remain or move to other accommodation. They make no contribution to the rent.
Since separation, the father has spent time with the children, usually on weekends, and at the hearing date, that time had included overnight time despite his accommodation difficulties.
The father’s affidavit evidence contained considerable detail about his involvement with the children and the special needs of the parties son. Whilst the mother is acknowledged by him as the primary caregiver to the children, the father’s evidence is that he has a close bond with them and has been significantly involved in their care. He wishes to be able to continue his frequent and close interactions with the children.
Both parties agree that X requires considerable assistance from his occupational therapist, speech therapist, paediatrician and other practitioners in Australia. It is agreed by the parties that this care and/or level of care is not available to the child when they travel to Country B.
The mother asserted that it was very difficult for her to manage the children with the limited family support she has in Australia. She has however, had the constant support of her brother and his family since, at least, late 2023. In submissions received on the hearing, the mother confirmed that her brother and his family have a 12 month visa, such that they can provide assistance to the mother until approximately late 2024. By that time the current order will have expired.
The mother also argued that the parties have, in the past, made regular trips to Country B to spend time with their respective families, and to receive assistance with the care of both children. She wishes to continue that pattern. The mother’s affidavit is some 74 paragraphs long, but she only provided probative evidence as to she and the children’s need to travel to Country B at the present time from paragraphs 72 to 74, inclusive. She stated in support of her application the following:[3]
72. I want the airport watchlist order to be removed in order to allow both myself and [Mr Gulshan] to attend [Country B] for the purpose of short-term holidays with the children, as we have regularly done throughout the duration of our relationship. I have no intention of permanently residing in [Country B] as this would be detrimental to my sons ongoing progression through his treatment. I wish only to visit [Country B] in order to ensure my children can maintain a relationship with their extended family, and to receive support from my parents during this extremely difficult period in my life.
73. I request that the Court make orders that I be allowed to travel to see my family so that I can have some support with the children but am more than happy to provide evidence to [Mr Gulshan] of return tickets, as my intention is to always come back to Australia.
74. I believe that [Mr Gulshan] is concerned about me going back to [Country B] with the children is because he believes I will tell the family and others about the incidents that occurred of violence and believe that this is an attempt to further control me.
[3] Mother’s affidavit filed 23 November 2023, paragraphs 72-74.
The mother seeks the flexibility to travel to Country B at will, for such duration as determined by her. There are no concrete plans. Whilst acknowledging that X’s ongoing treatment in Australia is necessary for the advancement of his welfare, she puts before the Court no reason for X to be presently taken to Country B which would justify a cessation in his treatment during that period of time.
The father’s evidence is that the diagnosis of X with a rare condition has necessitated support for him in all aspects of his life. His current medical plan, as described by the father, “includes focus on improving behaviour, especially impulse control […]. In addition, his plan is also geared towards [independent function, speech and motor development] includes focus on improving behaviour”.[4]
[4] Father’s affidavit filed 7 December 2023, paragraph 34.
It was the father’s evidence that, during the parties’ family trips to Country B in previous years, their son’s condition and behaviour has experienced a notable regression and that it takes several months following their return to Australia for him to exhibit signs of progress. Such pattern the father asserts has also been recognised by his health professionals.
In the context of the distrust between the parties, there is also no compelling basis to support the children’s travel to Country B, a non-Hague Convention country. The father’s distrust of the mother’s intentions is in the context of their now separation, criminal legal proceedings pending against him, and a conversation he alleges he had with the mother’s brother on 7 October 2023. The father notes that the mother’s brother said words to the effect, “I will be taking [Ms Gulshan] and the children to [Country B] very soon. I am going to take them to live with my family and they may not come back to Australia.” [5] The mother’s brother is alleged to have also mentioned that “he wanted to take my children to [Country B] on several occasions before this.”[6] The father’s evidence is that he responded to the mother’s brother indicating that he did not consent to his children travelling to Country B.
[5] Father’s affidavit filed 7 December 2023, paragraph 52.
[6] Father’s affidavit filed 7 December 2023, paragraph 52.
The father, because of the above verbal exchange, became very concerned that the mother and children would be flown out of Australia to Country B almost immediately, and facilitated by the mother holding Australian passports for the children who do not require visas to travel to Country B. It is the father’s belief that, “permitting the children to travel to [Country B] at this stage would inevitably lead to [X] being placed in a disability home or in an orphanage in [Country B], and I would consequently lose access to both our children.”[7]
[7] Father’s affidavit filed 7 December 2023, paragraph 65.
The father comprehensively addressed his opposition to the children’s removal from the Airport Watchlist in paragraphs 85 to 91 of his affidavit of 7 December 2023.
The Court concludes that the children’s best interests are served at the present time by the continuing restraint on the children’s departure from the Commonwealth of Australia with their names remaining on the Airport Watchlist.
CONCLUSION
The mother’s interim application should be dismissed. If circumstances change, the mother is clearly at liberty to bring a further application.
The proceeding should be transferred to another Registry of the Court, the parties and the children residing in Suburb C. Both parties support the transfer of the proceeding to that Registry.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 8 February 2024
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