Jagi & Gaba (No. 2)

Case [2021] FamCA 454

FAMILY COURT OF AUSTRALIA

Jagi & Gaba (No. 2) [2021] FamCA 454

File number(s): PAC 1407 of 2017
Judgment of: MACMILLAN J
Date of judgment: 29 June 2021
Catchwords: FAMILY LAW – RELOCATION – where the mother relocated to Melbourne with the child and the father sought orders for the child’s return and that the child live with him – where the mother alleged that the child had been sexually abused by the father – where notwithstanding the allegations of sexual abuse the parties agreed to engage in family therapy and the reintroduction of the child spending time with the father, including overnight time – where the father seeks orders for equal shared parental responsibility and final orders for the child to spend time with him –where orders made that the mother have sole parental responsibility, the child live with the mother and spend time and communicate with the father.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC,102NA
Cases cited:

Donnell & Dovey [2010] FLC 93-428

Keane & Keane [2020] FamCA 99

M v M (1988) 166 CLR 69

Mulvany & Lane [2009] FLC 93-404

Number of paragraphs: 85
Date of last submission/s: 1 March 2021
Date of hearing: 17th – 20th February 2020 and 4th September 2020
Place: Melbourne
Solicitor for the Applicant: Adam Jones Solicitor
Counsel for the Respondent: Ms O’Connell from 17 – 20 February 2020
Self-represented on 4 and 16 September 2020
Solicitor for the Respondent Cathleen Corridon and Associates from 17 – 20 February 2020
Self-represented on 4 and 16 September 2020
Counsel for the Independent Children's Lawyer: Ms Mansfield
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

PAC 1407 of 2017
BETWEEN:

MR JAGI

Applicant
AND:

MS GABA

Respondent
AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MACMILLAN J

DATE OF ORDER:

29 JUNE 2021

THE COURT ORDERS THAT:

1.All previous Orders be discharged.

2.The Mother have sole parental responsibility for the child and in the exercise of sole parental responsibility:

(a)the Mother advise the Father by email one (1) month prior to any proposed change to the children’s respective schools and/or any proposed medical treatment unless it is an emergency treatment in which case the Mother shall notify the Father by email or text as soon as practicable after the said treatment;

(b)As soon as practicable and in any event not more than seven (7) days after being so advised the Father provide a response by email to the proposal to the Mother;

(c)That the Mother, having considered the Father’s response to the proposal or in the event that the father has not provided the Mother with a response within the  seven (7) day period in accordance with Order 2(b) hereof may make the decision; and

(d)As soon as practicable and in any event not more than twenty-four (24) hours after making her decision the Mother advise the Father by email of her decision.

3.The child X born … 2011 live with the Mother.

4.The child spend face…

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AGLC
Jagi & Gaba (No. 2) [2021] FamCA 454
Case
[2021] FamCA 454
Decision Date

CaseChat Overview and Summary

The case of Jagi & Gaba (No. 2) involved a dispute between Mr Jagi, the father, and Ms Gaba, the mother, over the custody and visitation arrangements of their child, X. Mr Jagi initially sought orders for X to live with him in Sydney and for visitation rights, while Ms Gaba moved to Melbourne with X without his knowledge or consent. The case was marked by allegations of sexual abuse by Mr Jagi, which were later found to be unsubstantiated. The court was tasked with determining the best interests of the child, considering the allegations and the subsequent family therapy agreement between the parties.

The primary legal issues before the court included whether there was a risk of sexual abuse by the father and what arrangements would be in the child's best interest under Section 60CC of the Family Law Act. The court had to assess the credibility of the allegations, the risk posed by each parent, and the appropriate parenting arrangements that would foster the child's relationship with both parents. The court considered the parties' commitment to family therapy, the child's benefit from her relationship with the father, and the impact of the COVID-19 pandemic on the visitation arrangements.

The court found that there was no substantiated risk of sexual abuse by the father and that the child had benefitted from her relationship with him. Despite the initial allegations, the court was satisfied that the risk, if any, was not unacceptable. The court also noted the parties' agreement to family therapy and the successful reintroduction of the father to the child's life, including unsupervised and overnight visits. The court concluded that sole parental responsibility should rest with the mother, while the father would have extensive visitation rights, including overnight stays and participation in school and extracurricular activities.

The final orders of the court were that Ms Gaba would have sole parental responsibility for X, who would live with her. Mr Jagi would have detailed visitation rights, including specific times during school terms and holidays, and communication via phone or electronic means. The court also included provisions to protect the child from exposure to parental conflict and to prevent the removal of the child from Australia. The Independent Children’s Lawyer was discharged, and all other pending applications were dismissed.

Orders

Orders of the court

PAC 1407 of 2017

BETWEEN:

MR JAGI

Applicant

AND:

MS GABA

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MACMILLAN J

DATE OF ORDER:

29 JUNE 2021

THE COURT ORDERS THAT:

1. All previous Orders be discharged.

2. The Mother have sole parental responsibility for the child and in the exercise of sole parental responsibility:

(a) the Mother advise the Father by email one (1) month prior to any proposed change to the children’s respective schools and/or any proposed medical treatment unless it is an emergency treatment in which case the Mother shall notify the Father by email or text as soon as practicable after the said treatment;

(b) As soon as practicable and in any event not more than seven (7) days after being so advised the Father provide a response by email to the proposal to the Mother;

(c) That the Mother, having considered the Father’s response to the proposal or in the event that the father has not provided the Mother with a response within the seven (7) day period in accordance with Order 2(b) hereof may make the decision; and

(d) As soon as practicable and in any event not more than twenty-four (24) hours after making her decision the Mother advise the Father by email of her decision.

3. The child X born … 2011 live with the Mother.

4. The child spend face to face time and communicate with the Father as follows:

(a) On 3 occasions from the conclusion of school or 3.00 pm if not a school day commencing on Friday 9 July 2021 until 5.00pm on Sunday 11 July 2021 and each alternate weekend thereafter;

(b) From the conclusion of school or 3.00 pm if not a school day on Friday 20 August 2021 until the commencement of school or 9.00 am if not a school day on Monday 23 August 2021 and each alternate weekend thereafter;

(c) From after school or 3.00 pm if not a school day on Thursday 15 July 2021 until the commencement of school or 9.00 am if not a school day on Friday 16 July 2021 and each alternate Thursday thereafter;

(d) From after school on the last day of school term at the commencement of the 2021 Term 3 school holidays until 5.00 pm on the fifth day of those holidays;

(e) For the second half of the 2022 school term holidays and each alternate year thereafter from 12.00 noon on the middle Saturday of the holidays until 5.00 pm on the last day of the holiday period;

(f) For the first half of the 2023 school term holidays, commencing at the conclusion of Term 3, and each alternate year thereafter commencing at the conclusion of school on the last day of school term until 12.00 noon on the middle Saturday of the holidays;

(g) During the long summer school holidays commencing in 2021/2022 on a week about basis commencing on the first day of the holiday period with the child to be back in the Mother’s care 48 hours prior to the commencement of the school year;

(h) For the first half of the 2022/2023 summer holidays and each alternate year thereafter from the conclusion of school on the last day of school term until 12.00 noon on the day that falls in the middle day of the summer school holiday period;

(i) For the second half of the 2023/24 summer holidays and each alternate year thereafter, from 12.00 noon on the day that falls in the middle of the summer holiday period until 5.00 pm on the Father’s half of the summer holiday period to be calculated based upon the number of days excluding the day before school recommences;

(j) On the child’s birthday:

(i) If the child is not in the Father’s care from after school until 6.00 pm on the child’s birthday if it falls on a school day or from 10.00 am until 3.00 pm on a non-school day; or

(ii) If the child is in the Father’s care the Father’s time with the child be suspended from after school until 6.00 pm if it falls on a school day or from 10.00 am to 3.00 pm on a non-school day.

(k) On Father’s Day, should the child not be in the Father’s care, from 10.00 am until 6.00 pm, and should Mother’s Day fall during times the child is otherwise spending time with the Father then the Father’s time be suspended from 10 am on Mother’s Day;

(l) For the Diwali festival from the conclusion of school or 3 pm on the day before the Diwali Festival until 5.00 pm in odd numbered years;

(m) By way of telephone or Skype or such other electronic means with the Mother to initiate the call and the child to be afforded the privacy to speak and interact with the Father as follows:

(i) During school term from 6.00 pm to 6.30 pm each Sunday and Wednesday when the child is not in the Father’s care; and

(ii) During school holidays when the child is not in the Father’s care from 6.00 pm to 6.30 pm each Sunday and Wednesday.

5. For the purposes of the child spending time with the father pursuant to paragraph 4 hereof changeover is to occur at the Child’s school at the conclusion and commencement of school or on a non-school day at E Shopping Centre McDonald’s in Suburb G.

6. The Mother and Father keep the other informed of their residential address, telephone numbers and email addresses at all times.

7. The Father be at liberty to attend all school and extra-curricular events that parents are invited to attend, save that he inform the Mother in advance of his intention to attend, if possible no later than 48 hours prior to such an event.

8. The Father be at liberty to obtain, at his own expense, copies of all school reports, access to the school portal/platform, school photographs, newsletters and the like, and he be at liberty to provide a copy of these Orders to the child’s school/s.

9. The Father and Mother communicate via Smartphone App or email with respect to any issues pertaining to the child, and not pass messages or information to the other via the child.

10. The Mother and Father and their servants and agents be and are hereby restrained from:

(a) criticising, insulting, belittling, abusing, or otherwise denigrating the other parent or a member of their immediate household, or allowing any person to do so in the presence or hearing of the child; and

(b) discussing these proceedings in the presence or hearing of the child, or allowing any other person to do so.

11. The Father MR JAGI born … 1982 and the Mother MS GABA born … 1983 by themselves, their servants and/or agents, be and are hereby restrained from removing the child X born … 2011 (female) from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child name on the Watch List for a period of three (3) years from the date of these orders or until further order of the Court.

12. As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

13. The Independent Children’s Lawyer be discharged.

14. That all extant applications be otherwise dismissed and the matter removed from the list of cases awaiting hearing.

15. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

It became clear during the hearing in February 2020 that the evidence would not support a finding that the child had been sexually abused by the father as alleged by the mother or that there was an unacceptable risk that the father would sexually abuse the child if orders were made for her to spend time with him. It was in that context that the father and the mother agreed to engage in family therapy with a view to re-establishing the child’s relationship with the father. The matter was otherwise adjourned for further hearing on 4 September 2020.BACKGROUND The father was born in 1982 and is 38. The mother was born in 1983 and is 37. Both parents were born in Country H. The parties were married in 2010. Their marriage was arranged by their respective families. In October 2014 the family immigrated to Australia initially living in the western suburbs of Sydney. In April 2015 the mother relocated to Canberra with the child to take up new employment. The father remained in Sydney and visited the mother and child on weekends. The mother and child lived in Canberra for approximately one year. In May 2016 the mother and the child returned to live with the father in Sydney. The parties separated finally in August 2016. The father says that following separation the mother failed to facilitate the child spending time with him and as a result, on 29 March 2017 he commenced proceedings in the Federal Circuit Court of Australia at Parramatta (“the Federal Circuit Court”). On 28 April 2017 the mother relocated to Melbourne with the child. The father’s case was that she did so without his prior knowledge or consent. This does not appear to be disputed by the mother. On 9 May 2017 Judge Newbrun made inter alia interim orders by consent in the following terms:(a)For the child to spend time with the father every third weekend alternating between Melbourne and Sydney and the parents to share the costs of travel;(b)The mother to facilitate video calls between the child and the father at least twice a week at a time suitable for the child and the father to be permitted to telephone the child; (c)The parties to immediately inform the other by telephone or text of an illness, hospitalisation or emergency experienced by the child;(d)The mother to keep the father informed by email of any change to the child’s school; and(e)The parents to advise the other by text, telephone or email in relation to changes in residential address, phone number or email; (f)Restraining the father and mother from removing the child from Australia; and(g)Placing the child on the Airport Watch List. On 7 June 2017 the mother filed a Response to the father’s Initiating Application. Although the mother sought to be excused from particularising any final orders, she sought orders on an interim basis, including that the child spend time with the father during the day, increasing to overnight time. On 3 July 2017 the father filed an Amended Initiating Application seeking orders that the child live with him in Sydney, instead of with the mother as per his original application, and spend time with the mother every second weekend during school term and for half of each school term holidays. On 28 July 2017 the father filed an Application in a Case seeking orders that the child be returned to Sydney and live with him pending the final hearing. The father’s case was based upon his evidence of the mother’s failure to comply with the orders that the child spend time and communicate with him.

Evidence

Evidence Before The Court

Having assessed the allegations and what if any risk either parent poses, whether that is the risk of sexual abuse or as the father submits the risk of the child being psychologically abused by the mother, the Court must then determine what orders will be in the child’s best interests having regard to that risk and the matters it is required to consider pursuant to s 60CC of the Act. THE EVIDENCE The applicant father relied on the following documents:(a)Initiating Application filed 4 July 2017;(b)Affidavit of Mr Jagi filed 19 December 2017;(c)Affidavit of Mr Jagi filed 31 August 2020;(d)Case Outline document filed 14 February 2020;(e)Case Outline document filed 3 September 2020; and(f)Written Submissions filed 1 March 2021. The respondent mother relied on the following documents:(a)Amended Response filed 6 November 2019;(b)Affidavit of Ms Gaba filed 6 November 2019;(c)Affidavit of Ms Gaba filed 2 September 2020;(d)Case Outline document filed 11 February 2020;(e)Case Outline document filed 3 September 2020;(f)Affidavit of Ms Gaba filed 2 October 2020; and(g)Affidavit of Ms Gaba filed 16 October 2020. The ICL relied upon a Case Outline filed 14 February 2020 and Written Submissions filed 2 October 2020. All parties including the ICL relied upon the following documents: (a)Affidavit of Dr J filed 25 November 2019;(b)Magellan Family Report dated 9 December 2019;(c)DHHS Magellan Report dated 27 February 2019;(d)DHHS Addendum to Magellan Report dated 18 July 2019; (e)Report of Ms B dated 10 February 2020 (EXHIBIT ICL 1);(f)Affidavit of Ms B filed 31 August 2020; and (g)VARE tape of X recorded at Suburb L SCOIT on 3 May 2018 by Senior Constable Ms M. Both parties and the expert witnesses were cross-examined. ALLEGATIONS OF SEXUAL ABUSE In her trial affidavit the mother deposed as follows:230.The Applicant would constantly kiss X on the lips, which I found strange, as he never would kiss me on the lips during our relationship and men do not kiss women on the lips in our culture.231. The Applicant would lick X on the face and neck.232.On approximately six occasions from 2015, X had cuddled me and licked my face. When I questioned why she has done this, X said, “Father does it to me and has taught me”. When I asked X why she did not tell him to stop, she replied, “Mamma, I like it when he does it to me.”233.Whilst we were living together in Australia, the Applicant would walk around the house in torn underpants only. He would allow his private parts to be visible and hang out from the worn places of his underpants. I would have to ask the Applicant to put on more clothes, as I did not believe it was appropriate for X to see him like that. On one occasion, X pointed to the Applicant’s genitals that were exposed from the torn parts or his underwear and asked me “Mamma what is this?”.234.When the Applicant was to bath X, she would tell me that he would get in the bath with her.235.I do not believe it is appropriate to bathe naked with X, particularly as she was six years old at the time.236.In February 2018, X raised concerns that the Applicant was touching her inappropriately.237.X said to me, “Daddy touches my private parts when he showers me and I don’t like it. 238.When I asked X to elaborate further, she said that the Applicant tells her he needs to clean her private parts which made her feel uncomfortable. 239.X said the Applicant holds the shower nozzle on her private parts which made her feel uncomfortable.240.I told the Applicant that it was not OK that the Applicant touched her private parts and if he ever tried to do so again or shower her, then she should tell him strictly ‘no’. 241.I then showed X a video on YouTube about what is acceptable and not acceptable touching. I wanted X to be aware of good and bad touching and about safe circles, where children can name the people who they can rely on.242.X told me of a program she watches at school called ‘N Program’ which focuses on making children aware of their private parts and teaching them about appropriate and inappropriate touching. 243.I believed it was due to watching this program that X raised her concerns with me.244.I am not sure of the exact date when X told me that the Applicant puts his fingers inside her private parts. 245.When X first told me, I was very upset, I asked X why she did not tell him no and try to stop him. X replied, “Mamma, Papa does not listen to me”.246.I regretfully did not report the allegations at this time, as I was scared and did not know what to do.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Even if the Court is not satisfied that the child has been sexually abused by the father it is required to assess what if any risk there is of sexual abuse in the event that the child is to spend time with the father in the future and the magnitude of that risk. In circumstances where I have found that I am satisfied that the father’s actions were not sexual in nature I am not satisfied that there is any risk of the child being sexually abused in the father’s care. Even if there was a risk in my view, given the circumstances in this case, that risk would not be unacceptable. I am supported in this view by the fact that the child has been spending unsupervised time with the father for some time and there have been no issues raised with respect to the child in his care. SECTION 60CC CONSIDERATIONS As previously referred to at the commencement of the case on 20 February 2020 the father gave evidence as to his intention to relocate to Melbourne in order to develop his relationship with the child. For various reasons including the impact of the COVID-19 pandemic the father was unable to relocate to Melbourne until September 2020. As a result of the restrictions on face to face appointments following his relocation by the time of the hearing on 4 September 2020 the child had only spent face to face time with the father on two occasions. I am satisfied that the child has in the past benefited from her relationship with the father and his decision to move to Melbourne demonstrates a significant commitment to that relationship and insight into her needs. The parties, as demonstrated by them having agreed upon a process designed to reintroduce the father to the child, have acknowledged the importance of the child having a relationship with the father and demonstrated their commitment to that relationship. They were also able to agree upon a move to face to face time with the father, including unsupervised and overnight time albeit they did not agree upon how much time the child should spend with the father. Pursuant to the orders made on 16 September 2020 the child has now been spending unsupervised and overnight time with the father since late 2020. Although the orders provided for an urgent listing on short notice if required neither the father nor the mother or the ICL have sought to reopen the matter to adduce further evidence. I accept as submitted by the father, that in these circumstances, it is reasonable to infer that the arrangements for the child to spend time with the father have proceeded smoothly. The issues the Court must determine are now limited to whether the parties should have equal shared parental responsibility for the child or whether the mother should have sole parental responsibility and whether the time the child spends with the father should be as the mother submits two nights per fortnight during school terms and four nights per fortnight during school holidays or be as the father submits increased to five nights per fortnight over a twelve month period during school terms and after two shorter holiday periods for half of all school holidays.