Jatasra and Khosla

FAMILY COURT OF AUSTRALIA

JATASRA & KHOSLA

[2016] FamCA 865

FAMILY LAW – CHILDREN – Relocation– Where the mother seeks an order to relocate the child to India – Where the father opposes the relocation order – Where the mother seeks to continue to be the primary carer of the child irrespective of the outcome of the relocation and the father seeks to be the primary carer – Where the mother has symptoms consistent with a Major Depressive Disorder and if she is forced to remain in Australia, she will function poorly and remain emotionally impoverished – Where the proposals as to relocation are finely balanced and risks to the child’s relationship with the father are to be weighed against the ability of the mother to act as primary carer in her current mental state – Allegations of violence - Where the best interests of the child will be met by allowing the relocation – Where orders are made providing for the father to spend time with the child in Australia prior to the child’s departure - Where orders are made providing for the father to spend time with the child in India – Where the mother will have sole parental responsibility for the child – Where the mother’s application for relocation is allowed

Family Law Act 1975 (Cth) s 60CC

A v A: Relocation Approach (2000) FLC 93-035
B v B Family Law Reform Act 1995 (1997) FLC 92-755
East v Loewe [2015] FamCA 517
Taylor & Barker (2007) 37 Fam LR 461
U v U (2002) FLC 93-112

APPLICANT:

Ms Jatasra

RESPONDENT:

Mr Khosla

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

TVC

1147

2012'

DATE DELIVERED:

11 August 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

10 & 11 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Howes

SOLICITOR FOR THE APPLICANT:

Rrr Lawyers

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ebejer and Associates

Orders

All previous parenting orders in relation to B born … 2011 (‘the child’) are discharged, and this discharge order specifically includes the discharge of the following orders:-
(a)Order 2 of orders made 8 September 2014 in the Federal Circuit Court that the passport of the child be held by the Melbourne Registry of the Court;
(b)Order 3 of the orders made 8 September 2014 in the Federal Circuit Court restraining the removal of the child from Australia; and
(c)Order 4 of the orders made 8 September 2014 in the Federal Circuit Court that the child be placed on the Australian Federal Police Watch List.
Ms Jatasra (‘the mother’) shall have sole parental responsibility for the child including:-
(a)permission to remove the child to and from Australia in her absolute discretion;
(b)obtaining a passport for the child in either Australia or in India; and
(c)all matters of education, health, welfare and development for and of the child.
The mother shall keep Mr Khosla (‘the father’) informed of any major parenting decisions she proposes to make in relation to the child and, where reasonably practicable, the father is to be informed in advance and the mother shall seek the father’s views in relation to her exercise of such parental responsibility and consider his views.
The mother shall be permitted to relocate the child’s place of habitual residence from Australia to City C, India.
The child shall live with the mother.
The passport for the child to be forthwith released by the Family Court Melbourne to the mother.
The father shall spend such time with the child as is agreed in writing between the mother and father and, in the event that the parties are unable to agree, then as is set out in these orders or otherwise ordered by a court of competent jurisdiction.
The mother shall arrange for the child to speak and/or communicate with the father by telephone, Skype, FaceTime or similar electronic communication at least one (1) day per week on a Saturday or Sunday at a time and date reasonably provided by the mother to the father, the notification of such time to be provided at least seven (7) days in advance, and such communication shall be for up to fifteen (15) minutes or such other time as is agreed between the parties.
Should the father travel to India or live in India, the father shall spend time with the child each alternate Saturday from 9.00am until 4.00pm during school term (commencing on the second Saturday after the start of each school term) and a Saturday and Sunday for each two (2) weeks of school holidays, being 9.00am to 4.00pm on that Saturday and/or Sunday.
Such times referred to in order 9 above are to be supervised by an independent supervisor employed and paid for by the father or in the absence of such supervisor a member of the mother’s family, reasonably nominated by the mother. Such contact to take place in City C.
Each party shall notify the other of contact telephone numbers, email addresses and postal addresses within seven (7) days of this order and shall keep the other informed of any changes of those particulars.
Pursuant to s 65DA(2) and s 62B, 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 person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications be dismissed, except as to costs.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS REQUESTED

The Australian Federal Police forthwith remove the name B born … 2011 from the Airport Watch List at all points of international arrivals and departures within Australia.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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 Jatasra & Khosla 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 MELBOURNE

FILE NUMBER: TVC 1147 of 2012

Ms Jatasra

Applicant

And

Mr Khosla

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

These are proceedings between Ms Jatasra (‘the mother’) and Mr Khosla (‘the father’). They relate to parenting proceedings in respect of the parties’ son whose full name is B, born in 2011 (‘the child’) and who is currently just over four and a half years of age.
The mother is seeking orders that she:-
(a)have sole parental responsibility for the child;
(b)she have the child live with her, or continue to live with her, she has been the primary carer of the child, but most contentiously that the child be permitted to return with her to live in City C; and that
(c)the father spend time and communicate with the child as arranged between the parties.
In addition she seeks orders that the child’s name be removed from the Airport Watch List and that the child’s passport which has been held by this Court be released to her. The case outline on behalf of the mother was tendered in evidence and I have had regard to that in these reasons.
The father was unrepresented, and I was very conscious of that circumstance when the matter came before the Court. The Court has endeavoured to meet its obligations as to the guidelines and believes that it has done so. It made available to the father a copy of s 60CC of the Family Law Act 1975 (Cth) (‘the Act’) and some fundamentals in relation to the law regarding relocation, and endeavoured, throughout the course of the hearing, to provide guidance as to the process, and the independent children’s lawyer seemed to be doing likewise. However, appearing for yourself is always hard and in the context of these reasons I have had regard to that circumstance. The mother was, of course, represented by competent counsel.
An independent children’s lawyer was appointed and she instructed counsel to appear and the submissions by counsel for the Independent Children’s Lawyer, both oral and in written form, have been taken into account. The case outline was provided to me, and insofar as it relates to the submissions, have been treated as submissions.
The father seeks orders that the child live with the mother primarily, but that it develop over a period of time to equal time. He seeks orders for equal shared parental responsibility and, of course, most relevantly for the father, he objects to the return of the child to India and says Australia should be the primary residence of the child.

BACKGROUND

The father was born in 1978 and is soon to celebrate his 38^th birthday. He is a professional by occupation and has, for the last essentially three years, worked in D Town. He has, for the last two and a half years or so, spent time with the child, sometimes supervised, sometimes unsupervised. It is an agreed fact that the father has a good, but developing relationship, with the child. The father in evidence said that he proposes to move to Melbourne and spend more time with the child. I will refer to that later in these reasons.
It does not seem an issue that the father migrated to Australia in 2004. He is now an Australian citizen and it seems from his evidence the effect of that means that he is no longer a citizen of India, although, on his evidence, which I accept, he says he is able to travel to India whenever he chooses to and he can work in India.
The marriage between the parties was an arranged marriage which is apparently a culturally acceptable thing to do in the community from which the parties come, and I offer no criticism of that, as that was an arrangement into which the parties entered. The parties married in 2009, and this has been, on the evidence of both parties, a terrible marriage for each of them. It was not what each of them had anticipated.
About two weeks after the parties were married, the father returned to Australia. The mother remained in India whilst she endeavoured to obtain a spouse permanent residence visa and was required to live in the home of her husband’s family. It is clearly not what she wanted to do and as a consequence she lost her employment. Both parties are highly qualified and each are professionals. The mother described her employment as something that she had dreamed of as a child.
The mother came to Australia in about February 2010 and remained living in Australia until about March 2011. She describes in her affidavit, to which I will refer later, very unhappy circumstances. She returned to her family in India in March 2011 and during that time suspected she was pregnant, undertook tests, and discovered on the way back to Australia that she was pregnant and informed the father.
When she returned to Australia the mother was employed by a company and she says that the father forced her to leave that employment. The father denies that and said that the mother wished to leave that employment. The mother then applied for jobs. She says that she sought the father’s consent in respect of applying for employment in Melbourne and in Sydney, however, the father said he was told afterward that the mother had taken up employment in Melbourne. This was initially to commence in May or June, but that was delayed until 1 August and then 15 August. The mother went to live in Melbourne and the poor relationship between the parties continued.
In October of 2011 the mother flew back to Perth and then on to India. It was intended that in India they would have a baby shower. On the evidence of both parties it appears that that baby shower was a disaster. It further alienated the parties from each other and their families from each other. After that, the mother returned to her parents’ home in City C, and later in 2011 the child was born some five or six weeks premature. The mother’s evidence was that he was due on 26 December. The father’s evidence was that he was due on 16 December. On balance, I prefer the evidence of the mother in that regard. In any event, this child was a very tiny child and needed significant treatment.
The mother gave evidence, and it appears unchallenged, that she was not in a position to contact the father for at least three days after the birth of the child. The father had a conversation with the child’s maternal grandfather and, unsurprisingly, in the context of the disputes between these parties, that was an unhappy conversation. I make no findings in relation to it, except that it was unhappy.
The mother gave evidence that she felt isolated and abandoned by the father over that period of time. The father gave evidence that under the culture from which they came, he either had to be at the birth or some two or five months afterward.
On 25 February 2012, when the child was just over three months old, the mother returned to Australia without the child. She did so, so that she could arrange for the child’s citizenship and passport in Australia, there being no option, as I understand it, for the child to become an Indian resident, as the father was a citizen of Australia. I am not clear on the law on that, but that seems to be part of the reason, but it also seems that the mother at that stage was endeavouring to resume, or endeavour to resume, her relationship with the father.
In March of that year the father went back to India and says it was to see the child. He made no arrangements with the mother, but made arrangements through the maternal grandmother, and when he arrived he says time was refused and he did not meet his child. I am troubled by that evidence because it seems that he had all sorts of communication with the mother, both before and after that time, and it is inherently implausible that he would not have made some arrangements in advance of that trip.
The mother was endeavouring to regularise the child’s citizenship and obtain a passport for the child throughout most of 2012. At the end of that year she managed to obtain travel documents for the child, but not a passport. She went to India and her parents’ home and reconnected with the child, although I think her evidence was that she spoke to the child on a daily basis, and then came out to Australia with her parents who remained with her, as I understand it, until May of 2013. The father’s first contact with the child occurred in December 2012 and it was fleeting, at least. He had not met the child prior to that time.
In July 2014, the mother commenced proceedings, and I will deal with the proceedings a little later, and from that time the child has seen the father on irregular occasions. This arises for a number of reasons, including the father working away from Melbourne and the need for him to travel to Melbourne, the mother’s insistence upon supervision, and the mutual distrust and dislike each party has for the other.
The proceedings were transferred to the Family Court and eventually were listed for hearing in June of this year, at which time the father was represented. Unfortunately, the child’s paternal grandfather passed away at that time. The father went to India from about mid-May to about mid-July. The matter came back before the Court. The proceedings in June had been abandoned. They were listed for November this year, but with a notation that they ought to be heard earlier if judicial resources became available, and I did become available.
In these proceedings orders were made by Jones J in the Federal Circuit Court on 8 September 2014 to:-
(a)enable the passport to be obtained for the child and that the passport be placed with the Court;
(b)restraining each of the parents from removing the child from the Commonwealth of Australia;
(c)having the child placed on the Airport Watch List; and
(d)transferring these proceedings to the Family Court of Australia.
The matter came before Senior Registrar FitzGibbon on 19 November 2014, and the learned Senior Registrar:-
(a)directed the parties to attend the Child Responsive Program;
(b)ordered an s 11F report;
(c)appointed an independent children’s lawyer; and
(d)dismissed an application by the mother for permission to return to India.
The matter came back before the learned Senior Registrar on 13 January 2015 and orders were made that the child have supervised time with the father.
The matter then went into the docket of Thornton J and wound its way through to the proposed hearing before her Honour. A family report was obtained by the same person who initially prepared a case assessment, and a single expert report was prepared.

RELOCATION LAW

With regard to cases involving relocation, B v B: Family Law Reform Act 1995 (1997) FLC 92-755, A v A: Relocation Approach (2000) FLC 93-035, and the High Court in U v U (2002) FLC 93-112 set out that relocations are no special category of parenting cases and the same statutory path ought to be followed. In the case of A & A: Relocation Approach (supra) the Full Court set out the following matters:-
· The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
· A court cannot require the applicant for the child's relocation to demonstrate ''compelling reasons'' for the relocation of a child's residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.
· It is necessary for a court to evaluate each of the proposals advanced by the parties.
· A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ''permitted''.
· The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
· It is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975 (Cth). The wording of s 68F(2) makes clear that the Court must consider the various matters set out in (a)-(l) of that subsection.
· The object and principles of s 60B provide guidance to a court's obligation to consider the matters in s 68F(2) that arise in the context of the particular case.
· It is to be expected that reasons for decision will display three stages of analysis and:
1.     A court will identify the relevant competing proposals;
2.     For each relevant s 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s 60B;
· As one, but only one, of the matters considered under s 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC ¶ 92-755 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
· Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3.     On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.
· The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
· In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
· In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s 92 of the Constitution, where applicable.
· In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
· In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss 60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
· In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.

This approach was somewhat ameliorated by U & U, but is essentially the situation of the law as it is today.
Watts J in East & Loewe (2015) FamCA 517 referred to the Full Court decision of Taylor & Barker (2007) 37 Fam LR 461 which described the mother’s happiness and contentment as a significant matter because of its impact on the child’s happiness and contentment. Obviously each case is based upon its own facts in any particular determination.

THE EVIDENCE

The mother

The mother relied upon her affidavits filed 12 April 2016 and 7 March 2016. She was cross-examined in relation to those affidavits. Her earlier affidavit, that is, the March one, is the trial affidavit. As I indicated earlier, her case outline was tendered and set out the orders which she sought. I watched the mother give evidence. She gave evidence frankly and carefully and at times tearfully. At times, she made concessions against interests. There was, however, some degree of exaggeration from a subjective point of view. She is desperate to go back to India, and her evidence was coloured by that desire and desperation.
It seems that initially in 2012 she was open to remaining in Australia, but was shocked by what she described as an angry husband. However, underlying it all, she was unhappy in the marriage from day one, the loss of her job and the anger which she felt she needed to endure from the father. That conflict between the parties continued and was added to by the influence of each of their families and clearly their friends.
The mother was clearly distressed at the lack of support from the father at the time the child was born. She gave evidence of the father’s controlling behaviour, his verbal abuse, his complaints about her association with her family, his regard of her as behaving as a beggar, because she drank coffee, and that she was not a particularly attractive woman. She said the husband treated her like a toy. He decided who could be friends with her and called her “lazy”.
There were two significant issues of violence which I do not believe the Family Court in the current times can ignore or turn its head away from. The first is the allegations of spousal rape. The mother gave evidence as to the father requiring intercourse even if she said “no.” The father disputed this and asserted that he had difficulty providing intercourse for the mother. On balance, I prefer the evidence of the mother; however, it needs to be seen in the context of the culture in which these parties were involved.
The second is the allegations by the mother that the father had said to her, on at least one occasion, possibly more, that he intended to harm the child or kill the child so as to drive her to suicide. As I discussed with the father and with counsel when the evidence was being given by the Family Consultant, I have to deal with this, and there are a number of outcomes. The first is that I prefer the evidence of the father to that of the mother. The second is that I prefer the evidence of the mother to the father, but I am satisfied that these are words used without any intent or meaning. The third is that the father made those threats without intending to carry them out, but in a context where intended to terrify the mother, and finally that he intended to carry out his threat.
On balance, I am satisfied that those threats were made. I am not convinced that they were made with the intent to do what was said, but I am convinced that they were made in the context of his controlling and abusive behaviour to the mother.
After the child was born and came to Australia the mother endeavoured to arrange for a passport for the child. The mother says that she endeavoured to enlist the assistance of the father in relation to that matter. It is clear that the only emails that came from the father were after the mother had returned to India in October of 2012 and after the child had returned to Australia. I am not satisfied that the father provided any meaningful assistance in solving the needs of the child at that time. The father had little to do with the child until 2013.

The father

The father gave evidence in accordance with his affidavit, filed and sworn 16 June 2016, and his trial affidavit, sworn 21 March 2016 and filed 29 March 2016. The earlier affidavit was quite lengthy, containing some 207 pages. The father was not an impressive witness, and I repeat in coming to this conclusion I was very cognisant that he was unrepresented and endeavouring to be both advocate and a party.
He seems to have little insight into the needs of this child. His approach in his email to the mother in March 2012 where he suggests that the mother should just simply leave the child with him and come and visit the child from time to time seems to be more focused on the conflict between he and the mother, rather than the needs of the child.
The father has proposed that a number of time since, and even now in the context of this, having seen a family report where the Family Consultant says this child has been well-parented by the mother and that, in essence, she is a good mother, he still proposes that the child live with him. He has not seriously engaged with the child since the child’s birth. That is not to say I do not believe that he loves the child. I find that he does, but it is simply on his terms.
I read the affidavits of the father’s two witnesses. They were read in uncontested. They are, in many ways, character references. They are unchallenged. I accept that they are what they are, for what they are worth.

Dr E

In Australia, the mother is suffering terribly from mental health issues. The report of Dr E[1], a single expert psychiatrist, was read in to evidence without opposition. There is no issue about his qualifications. I accept that many of the facts upon which he relied in his report were based upon the material provided by the mother but, given the findings of fact, I am satisfied that his opinions are well-based. The mother suffers, and I quote:-[2]
[The mother] reported experiencing characteristic symptoms consistent with a major depressive disorder, including depressed mood, feeling emotional fragility, sleep disturbance, appetite suppression, feelings of helplessness, anxiety and demoralisation. These depressive symptoms continued from 2013 until her referral to [a psychiatrist]… .
[1] Exhibit 1 - Report dated 1 June 2016.
[2] Ibid at page 6.
He goes on to say that the mother was treated and there was some improvement, but that her mental health, and I quote:-[3]
has improved in 2016 with support as evidence of an improved mood and reduction in severity of depressive symptoms.
[3] Ibid.
He goes on to say:-[4]
She remains anxious and emotionally brittle. She continues to feel trapped and helpless while living in Australia. She has struggled to cope living in Australia, particularly whilst she has remained unemployed. Her mental health would likely improve if she were able to secure employment. She is also missing her family, and whilst she is unable to visit with [the child], I anticipate this will contribute to chronic stress that erodes her mental health and mental stability.
[4] Ibid.
I am satisfied that if she does not return to India the primary carer of this child faces deterioration of her mental health and the likelihood that her capacity to meet the needs of this child are diminished.

The Family Consultant

The reports of the Family Consultant, the Children and Parents Issues Assessment and the Family Report were tendered in evidence and these are Exhibits 4 and 5. The Family Consultant made it clear in her evidence that the mother was unhappy and isolated in Australia, that this was not good in terms of the parenting for the child, and that she was likely to be happier in India.
The Family Consultant said that the child would benefit from the mother being well, and that the mother felt isolated and alone. She did say that to the mother’s credit she had enabled the child to have a relationship with the father, notwithstanding those circumstances. The Family Consultant said that the parties have shown no ability to co-parent in the past and, given the distrust, conflict, poor communication, that joint parental responsibility was not, in her view, a serious option. I can only agree with her in that respect.
Her view was that the mother should continue as a primary carer and noted that the father has not spent overnight time with the child at this stage. She conceded, on questioning of the father, that if he had lived in Melbourne the relationship, which the Family Consultant noted was in its infancy, would grow and develop. Therefore, I find that the mother had the opportunity to undermine the father’s relationship with the child but has not done so. I am satisfied that the mother will, despite her dislike of him, continue to support a relationship between the child and the father.
The mother’s care of the child was undermined by the father when he called the police to attend her place of residence. It has caused her to lose that accommodation. I am satisfied that, at least in terms of his relationship with the mother, the father is an angry person who makes threats and those threats are designed to control and manipulate the mother.
I am also satisfied that the mother is genuinely scared of the father, and scared for the wellbeing of the child in the father’s care. Given those circumstances, it is likely that the child being placed in the continual unsupervised care of the father will continue to adversely impact on the mother’s fragile mental health.
I am satisfied that the father has sought in the past to be dominant of the mother during the course of the marriage, including in terms of financial circumstances, and his pressure upon her to work and his complaints about her costing money. It is significant that this father did not pay child support for this child for some time. It seems more likely than not that the father has hacked the mother’s electronic records, and I accept the mother’s evidence in that respect.
Further, I am satisfied that the mother has tried to find employment in Australia but has not been successful in the area in which she has her qualifications. I am satisfied that she is likely to find employment in India if and when she returns there. The mother doubts the father is sincere in wanting a long term relationship with the child, given the history. I am not that confident. I am satisfied that, whilst the father does not like nor respect the mother, he wants a relationship with the child.
I have read and accepted the versions given by the mother in her trial affidavit as to abuse set out at paragraphs 20 to 30, although I treat that as given through the subjective eyes of the mother and in the light of her desire to return to India.
The mother was very effectively cross-examined by the father yesterday. And, although seen through the light that I talked about before, the mother gave cogent and sensible answers to the father in terms of those differences some of those, as I said, where the mother has at times ‘gilded the lily’ a little to persuade the Court and others to her way of thinking. However, her evidence is generally all preferable to that of the father.

THE LAW

The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(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).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a 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 that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The torturous terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(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.

In this case both parties agree that it is important that the child have the benefit of a meaningful relationship with both parents, and I am satisfied that there ought to be a meaningful relationship. However, there is a need to protect the child from physical or psychological harm and being subject to or exposed to abuse, neglect and family violence. This is where Mr Howes, at the commencement of this case, set it out quite succinctly in terms of the balance the Court has.
If the child is not permitted to return to India, it is clear that the mother’s capacity to parent is likely to be significantly compromised, if it is not compromised already. The objective evidence of the experts sets that out. Yet if the child is permitted to return to India, it is possible, if the father does not return, the child will not have a meaningful relationship with his father.
The father is well able to return to India and work if he chooses. There are no visa restrictions or other restrictions about which I have been which would prevent him from doing so, but if he stays here, there will be a diminution of the fledging relationship between he and the child. Of that, there can be no doubt.
At the same time, if the mother is left here and time goes to unsupervised time and an increase in time as submitted by the father, that will have the capacity to undermine, as I said earlier, the mother’s parenting of the child.
I have had the benefit of observing the parties being cross-examined, and I have had the benefit of the objective reports from the psychiatrist and from the Family Consultant, which gives me a better and more objective way to deal with the parties and assess the parties. I have also had regard to the evidence of the supervisor, and that evidence was admitted without controversy, and I have had regard to that, although it is not really significant in terms of the outcome of these proceedings. The child’s views are such that I should give no weight to them, bearing in mind his age and maturity.
The mother is the primary carer of the child and has been focused on that care and is what can be only described as a good mum. The father has, at least for the last two and a half years, developed a relationship with the child, but it has some distance to go. The child does not know his broader family because they are in India.
The mother has taken all of the steps in relation to the proper parenting of the child. The father seeks to do likewise, although it is troubling that when he had the opportunity to do so, that is, to enable the child to have Australian citizenship and a passport in 2012, he chose not to be involved. He left the field, and the child needed to be brought to Australia under emergency circumstances.
I am asked to consider the extent to which the child’s parents have fulfilled or failed to fulfil their obligations to maintain the child. The father has, it seems, fulfilled his obligations to maintain the child but has not provided the support, at least for the first two years, that one would have thought was appropriate in the circumstances.
As to the effect of the change in the child’s circumstances on separation from either of his parents or any other child, the effect on the father if the child goes to India will be profound. He will probably only see the child once or twice a year, if that, unless he moves to India. It will not have any meaningful effect in relation to the child’s contact with his broader family, as that will become easier for him rather than more difficult. The father, in his submissions, said that I should consider the friends that the child has in Australia at the moment. The child is four and a half, starting school next year. The friends are neither here nor there in the context of a child this age. He will be well able to make other friends. The real issue is, as I have highlighted elsewhere and earlier in these reasons, that with his father.
There will be practical difficulty and expense with the child spending time with the father. He will need to travel either from Melbourne or D Town to India, which, by any stretch of the imagination, is significant.
As to the capacity of the parents, the mother has shown profoundly strong capacities, as I said earlier. She is a good mother. The father has, at times, endeavoured to be close and has been prevented from being close but at other times has not sought to do so.
I am conscious that this family married in the Hindu culture. That seems to be very significant to both of them. The father gave evidence as to the reason for his delay in seeing the child in March. The mother gave clear evidence as to the importance of that to them. Each of them gives significant respect to their parents. The fact that the father went back and spent such time in India with the passing of his father was indicative of that. They are a very Indian family living in Australia.
I have concerns about the father’s attitude to the child. He has, it seems at times, little insight into what his proposals mean or do to the mother. At least, that would be the best way to consider it. It may well be that his insight is greater and it may have been negative, but I have not formed that view in this matter on the evidence so far. The mother has shown a strong attitude to parenting, parenthood and the child. I have discussed the issues of family violence, and I have had regard to those and the current order and the circumstances under which that order was made.
The father suggests that this matter remain in Australia and the mother could apply some time later. That would inflict another four or five years of conflict in Australia with this child. That would mean most of his childhood would be chewed up in litigation in this country. As to parental responsibility, I am satisfied, giving regard to all of the circumstances, facts and factors combined with section 60CC of the Act, that there ought not to be an order for equal shared parental responsibility, and I will not make that order. I will make an order for sole parental responsibility in favour of the mother.
I have considered the father’s application for equal time. It is, in many ways, naïve but reflective of his deep desire to have a relationship with the child, but it would not have been practical within the immediate time. If it was going to occur, it would have occurred over years to come and would have needed a lot more work undertaken by the father in the past years, but I have considered that and I have considered significant substantial time. It is not in issue that the child should live with the mother, and I determine that that should, in fact, occur.
I have weighed the various proposals between the parties, including the mother’s deep desire to go to India, her employment opportunities, her need for her family, her depression, her somewhat fragile emotional and psychiatric health, and her openness to a relationship between the child and the father despite her own scathing views of the father. On the other hand, there is the father, who, if he remains in Australia, will not have any meaningful relationship with the child, and I am not persuaded that the mother is going to enable his family to have a relationship with the child without him being involved.
It was submitted to me that the mother would have a better lifestyle in Australia. I disagree with the father in respect of that. The mother is likely to obtain paid employment in India and have the satisfaction of earning income herself. I am not sure how much she can rely on financial support from the father. Weighing all of the factors, I am satisfied that the mother should be permitted to return with the child to India.
The child’s relationship with the father should continue. Initially, I am going to make an order for telephone calls on a weekly basis and for the child to spend time with the father on a fortnightly basis during the day and part of the school holidays if the father comes to India. Initially, I am going to require that this is supervised by someone outside the family if that can be arranged by the father, but with members of the mother’s family if not, given the controlling matters to which I have referred earlier and the questions of family violence.
I make it clear to the mother that once she has settled into India and once the father has demonstrated that he wants to continue a relationship with the child, that this needs to move on. It does not need to be stuck in that arrangement for perpetuity, and I say this in these reasons as I anticipate if the parties do not move on and do not discuss things, then you will end up in an Indian court having the same dispute again. It is my hope that if you are in an Indian court, the comments I am making to you today about the need to move on with that relationship to enable the father or, more importantly, the child to have a relationship with his father will be read to that Indian court and that it will be taken as a significant step.
Whilst we do not have any international conventions in place with India at the present time, I am fully aware that Australian judges deeply respect the Indian justice system and likewise respect us. So I am sure my words will be heard and taken into account. I intend to provide for you to make your own arrangements, if you can, and set in place arrangements as a fallback position. For what it is worth, I will address each of you now, which is a bit outside the scope of that which judges normally do because we write judgments to comply with the law.
You have had your fight. It is over. Each of you has had probably the most awful experience in a marriage that I could imagine. I read each of your affidavits and I thought I was talking about different things. The father had great expectations in marriage, which he felt were not met, rightly or wrongly. The mother had a deeply distressing experience of marriage, from her eyes. So most of the fighting that went on was about the relationship between you two. My certain knowledge is that the child does not care about the fights between you two.
He wants to be able to cuddle and be warm to his mother and have the deep relationship that continues. I am equally certain that he wants to know who his father is and have a relationship with him. Each of you have great ambitions for your child, I have no doubt. Each of you is highly educated. You do not get degrees and jobs at the level that you have unless you are intelligent and articulate. I have no doubt that each of you wants your child to do exactly the same. Each of you want him, when he turns 18 or 19, to go to university and become a professional , perhaps not a lawyer, given your experience with courts, but to have a career of his own.
If your conflict continues, I can guarantee that he will not meet his potential. I can absolutely guarantee that. If you two can find some way to minimise that conflict to allow him to safely, and I express the word safely, have a relationship with each of his parents and know each of his parents and their families, then this child will grow up the way you dream he should grow up. He will be someone who you can be proud of, and more importantly, he will be proud of you. So, for what it is worth, I convey those views to you.

I certify that the preceding seventy eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 11 August 2016.

Associate:

Date: 10 October 2016

[2016] FamCA 865

11 August 2016

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Family Law

Legal Concepts

Jurisdiction

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Procedural Fairness