Johar and Johar

FAMILY COURT OF AUSTRALIA

JOHAR & JOHAR

[2012] FamCA 609

FAMILY LAW – CHILDREN – Relocation – Where the mother is seeking to relocate with the child to India – Best Interests - Where relocating to India would be likely to deprive the child of her relationship with the father and it would not be in her best interests – Allegations of violence – Allegations of sexual abuse – Whether the father’s time should be supervised – Where it is found that the father poses no unacceptable risk to the child – Where the parents should continue to exercise equal shared parental responsibility.

Family Law Act 1975 (Cth) – Part VII; s 60B; s 60CA; s 60CC; s 60CC(2); s 60CC(3); s 60CC(4); s 61B; s 61C; s 61DA(1); s 61DA(2); s 61DA(4); s 65AA; s 65DAA(1); s 65DAA(2); s 65DAA(3)

B and B (1993) FLC 92-357; (1993) 16 Fam LR 353
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
M v M (1988) FLC 91-979; (1988) 12 Fam LR 606
McCall v Clark (2009) FLC 93-405; (2009) 41 Fam LR 483
MRR v GR (2010) 240 CLR 461; (2010) FLC 93-424; (2010) 42 Fam LR 531

APPLICANT:

Mr Johar

RESPONDENT:

Ms Johar

INDEPENDENT CHILDREN’S LAWYER:

S P Nasti & Co, Solicitors

FILE NUMBER:

PAC

5738

2010

DATE DELIVERED:

1 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

5, 6 & 7 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Shepherds The Family Law Specialists

COUNSEL FOR THE RESPONDENT:

Ms Winfield

SOLICITOR FOR THE RESPONDENT:

Jacqui Griffin Solicitor & Attorney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Nasti, S P Nasti & Co Solicitors

Orders

That the following parenting orders are made in relation to the child S born on … January 2005 (“the child”).
That all previous parenting orders are discharged.

Parental Responsibility

That the father and the mother shall have equal shared parental responsibility for the child.

Live With

That the child shall live with her father:
(a) During school terms:
(i)each alternate weekend commencing 10 August 2012 from after school Friday until before school Monday;
(ii)each other week commencing 15 August 2012 from after school until 7:00 pm one afternoon as agreed by the parents and failing agreement, on Wednesdays; and
(iii)such other times as agreed by the parents.
(b)For half of all school holiday periods, the child to live with her father during the first half of each period in even numbered years and the second half of each period in odd numbered years;
(c)During the Father’s Day weekend from after school Friday until before school Monday;
(d)On the child’s birthday if not otherwise living with her father that day from 2:00 pm until 8:00 pm or if it is a school day from after school until 8:00 pm;
(e)On the father’s birthday if not otherwise living with her father that day from 9:00 am until 8:00 pm or if it is a school day from after school until 8:00 pm.
That the child shall live with her mother at all other times as well as (notwithstanding the above orders) on the Mother’s Day weekend from after school Friday until before school Monday and on the mother’s birthday if not otherwise living with her mother that day from 9:00 am until 8:00 pm or if it is a school day from after school until 8:00 pm.

Changeover

Except when residence changeover is to occur at school, the parent who is about to have the child live with them during the period is to collect the child from outside the residence of the other parent at the time of changeover.

Unable to Supervise

If either parent should find it necessary to place the child in care or is unable to supervise the child personally or through a relative, that parent shall give the other parent first option of caring for the child during such period.

Overseas Travel

That pending further order the child is restrained from being removed from Australia and all officers of the Australian Federal Police (AFP) are to assist in the implementation of these orders.
That the AFP shall maintain details of the child on the Watch List in operation at all Australian international arrival and departure points pending further order.
That pending further order both parents are restrained from making application for any passport for the child without the written consent of the other.

Education

That both parents do all things and sign all authorities necessary to authorise any school which the child attends to provide each parent with particulars of the child’s schooling, including but not limited to the provision of school reports, notices of school photographs, circulars sent out to parents, notices of school excursions and any other activities in which the child is a participant.
That neither parent shall prevent the other from attending and/or seeing the child at school functions, sporting events or at other public venues.
That both parents are hereby restrained from enrolling the child in any extra-curricular and educational activities without the written consent of the other.

Medical Care

That both parents do all things and provide all authorities necessary in relation to any medical practitioner, specialist, orthodontist and/or any other health professional who the child attends, to enable the other parent to obtain particulars concerning the child’s health.

Communication

That each parent keep the other informed of their address, landline telephone number, mobile telephone number and any change of address or telephone number within forty-eight hours of any change.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5738 of 2010

Mr Johar

Applicant

And

Ms Johar

Respondent

REASONS FOR JUDGMENT

S is seven years of age (“the child”). Her parents are Mr Johar & Ms Johar. For convenience I shall refer to them as the father and the mother.
The child and her parents are citizens of India and they have permanent resident status in Australia.
The family came to Australia in September 2008 and they have lived in Sydney since that time.
The child’s parents have been unable to agree on parenting arrangements for her and have asked this Court to determine such arrangements. The mother is most anxious to be permitted to remove the child from Australia to live with her and the child’s grandparents in India. On the other hand the father has a strong view that the opportunities in Australia for the child far outweigh what is available in India. He is therefore most anxious that the child remain living in Australia.

Applications

The father seeks orders to the following effect:
·That both parents have equal shared parental responsibility for the child;
·That each parent be restrained from removing the child from Australia without the written agreement of the other or order of the Court;
·That the child live with her mother:
(a)During school terms for five nights per fortnight (as particularised in the father’s minute of order);
(b)For half of all school holiday periods;
(c)For the Father’s Day weekend (for specified times);
(d)On the child’s birthday (for specified times);
(e)On the father’s birthday (for specified times);
(f)On the mother’s birthday (for specified times);
·That the child live with her father at all other times;
·Orders in relation to changeover;
·That if either parent is unable to look after the child personally then the other parent have the first option of caring for the child;
·That details of the child be placed on the Watch List;
·That each parent be restrained from making any passport application without the written consent of the other;
·That each party facilitate provision to the other of information about the child’s schooling, medical treatment, addresses and telephone numbers; and
·Certain other orders of a consequential nature.
On the other hand the mother seeks orders to the following effect:
·That the parents have joint parental responsibility for the education and religious upbringing of the child but otherwise the mother have sole parental responsibility for the care, welfare and development of the child;
·The child live with her mother;
·The mother be permitted to remove the child’s residence to India;
·The mother shall return the child to Australia for two months each alternate year, during which times the father and the child shall spend time together each day from 10:00 am to 7:00 pm supervised by the paternal grandparents;
·The mother be permitted to retrieve the child’s passport from the Court and to retain such passport;
·The Australian Federal Police remove the details of the child from the Watch List and consequential orders;
·Whenever the child is in India the child spend time with her father as follows:
(a)By telephone or Skype twice per week between the hours of 6:00 pm to 7:00 pm (Delhi time) Monday and Thursday for up to 30 minutes on each occasion;
(b)In the event the father is in India, from 10:00 am to 7:00 pm each day and at other times by agreement between the parties;
·Not less than one month before any intended arrival in India to spend time with the child the father notify the mother in writing of his intended date of arrival;
·That each parent be restrained from denigrating the other parent to or in the presence or hearing of the child;
·Certain orders in relation to medical care and treatment of the child; and
·Certain orders in relation to the child’s schooling and provision of school information.
The mother also had an alternative position in relation to orders in the event that the Court did not permit her to remove the child to live with her in India, although this was her primary position. In such circumstances the mother would ask the Court to make orders to the following effect:
If the child is living in Australia, the child spend time with her father under the supervision of the child’s paternal grandparents, or such other person as might be agreed by the parties in writing at the following times:
(a)10:00 am to 7:00 pm each Sunday;
(b)Each alternate Saturday:
(i)On the first alternate Saturday from 10:00 am to 7:00 pm; and
(ii)On the second alternate Saturday from 10:00 am Saturday to 10:00 am the next day on the basis that the child sleeps alone in her own bed;
·A changeover order;
·The other general orders as referred to above;
·And that otherwise the child live with her mother.
Mr S P Nasti was appointed to act as independent child lawyer for the child. The independent child lawyer sought orders to the following effect:
·That the parents have equal shared parental responsibility for the child;
·That each parent be restrained from removing the child from Australia without the written agreement of the other or order of the Court;
·That the child live with her father as follows:
(a)During school terms:
(i)each alternate weekend from after school Friday to before school on Monday
(ii)in each intervening week on one school day from after school until 7:00 pm
(b)Half of all school holidays;
(c)On Father’s Day, the father’s birthday and the child’s birthday (during specified times);
·That the child live with her mother at all other times.
The independent child lawyer also supported the remaining orders as sought by the father.

Background

The father, 38 years of age and the mother 40 years of age, married in July 2003 in India. They separated on 30 November 2010 in Australia.
As indicated above, there is one child of the marriage, S born in January 2005 and currently seven years of age.
From July 2003 to February 2004, the parties lived in West Africa to enable the husband to work there in finance. They then returned to India. The wife had become homesick for India. The husband found employment in India
On 15 October 2004, the parties separated temporarily. They reconciled in July 2006 and moved to live in the United States (“US”). An opportunity had arisen for the husband to work in business. The parties were able to obtain three year US visas.
In 2008, the parties returned to India. Then they were successful in obtaining Australian visas.
In September 2008, the parties moved to Sydney. The parties and the child all enjoy permanent resident status in Australia.
Initially they lived in Suburb H, then Suburb W.
In December 2008, the child commenced attending pre-school. The mother undertook some casual work in child care.
In August 2009 the father’s parents came to Australia from India and stayed with the parties until March 2010.
In August 2012 the family moved to Suburb G.
In 2010, the child commenced kindergarten. She has attended five different schools since this time.
In September 2010, the mother informed the father that she was unhappy and wanted to go to India for a holiday. He said that they could all go to India for a holiday after Christmas. The mother then asked her mother to come to Australia to visit the family which she did, arriving in Australia in September. The maternal grandmother commenced living with the parties in Australia.
As indicated above, the parties separated on 30 November 2010. The mother and the child left the family home at that time and commenced living in a refuge. I shall refer to this matter in more detail below.
The maternal grandmother left Australia for India in November 2010.
On 1 December 2012, the father filed an Initiating Application in the Federal Magistrates Court, thereby commencing these proceedings.
On 7 December 2010, the mother informed the father that she wanted to return to India to live. The father told her she could go, but that the child had to stay in Australia.
On 7 February 2011, orders were made providing for the appointment of an Independent Children’s Lawyer, that the child be placed on the Airport Watch List and that the parties be restrained from removing her from Australia.
In March 2011, the paternal grandparents moved to Australia from India. They currently live with the father, although it is expected that they will be required to leave Australia in August 2012.
On 23 March 2011 the maternal grandmother returned from India and commenced living with the mother which she continues to do .
On 15 April 2011, the mother filed a Notice of Child Abuse or Family Violence alleging that the father had inappropriately touched the child. On the same day, the parties entered into consent orders that provided for the child to live with the mother and to spend supervised time with the father each Sunday from 8.30am to 3.00pm and each alternate Saturday for two hours at a children’s contact centre.
On 5 May 2011, a Registrar made orders that the Director-General of the Department of Family and Community Services be requested to intervene in the proceedings and that a Magellan Report be prepared. The Director-General has not intervened.
On 22 June 2011, the parties entered into consent orders that provided for the child to live with the mother and to spend supervised time with the father each Sunday from 8.30 am to 6.00 pm and each alternate Saturday for two hours at a children’s contact centre.
On 8 September 2011, the parties attended upon Family Consultant, Mr P. Mr P’s report was released on 16 September 2011.
On 21 February 2012, the parties entered into consent orders in relation to property matters.
On 7 March 2012 I made an interim order by consent to the effect that the child spend time with her father from 10:00 am Saturday to 5:00 pm Sunday each alternate weekend commencing on 10 March 2012 in the presence of his parents and each other weekend from 10:00 am to 7:00 pm Saturday on the same basis.

Credit

The Father and the Mother

From time to time each of the parents had some difficulty giving responsive answers to the questions during cross-examination. Bearing in mind that English is not the first language for either of them, I think these difficulties were probably mainly a reflection of structural differences between the Hindi and English languages. Generally I thought each of the parents was a truthful witness with the exception concerning their evidence in respect of the allegations of child sexual abuse and violence. I shall refer to these matters below.

Ms B Johar

Ms B Johar is the father’s mother (“the paternal grandmother”). She speaks no English and was assisted by a Hindi interpreter. She said that she can read and write in English.
Taking account of this, in my view the paternal grandmother gave her evidence in a forthright manner. The paternal grandmother said it was the intention of her husband and herself to make an application to become permanent residents of Australia. She said that they wished to live with the father because in Indian culture it is more acceptable for elderly parents to live with a son rather than with a daughter.
There was an allegation by the mother that when she was pregnant with the child the father’s mother wanted her to abort the foetus because she did not want her son’s first child to be female. The paternal grandmother denied this. The mother also said that in 2009 when the paternal grandmother was visiting them in Australia the paternal grandmother indicated that she wanted the mother to bear her a grandson. The paternal grandmother agreed with this but said she thought it would be good for the parties to have another child because an only child can feel lonely.
I must say I am unable to resolve the issue referred to above because I am unable to find a basis for preferring one version over the other.
Generally, I regarded the paternal grandmother as a truthful witness.

Mrs L

Mrs L is the mother’s mother (“the maternal grandmother”). She gave her evidence under cross-examination with the assistance of a Hindi interpreter. The maternal grandmother did not always have a precise recollection of events and particularly with respect to times of occurrence of relevant facts.
I had some reservations about some parts of her evidence in relation to the matters surrounding the mother’s allegations of sexual abuse against the father. I shall refer to these matters again below.
Overall, I thought the maternal grandmother was a witness of the truth.

Agreed Issues

The parents and the independent child lawyer agreed that the issues to be determined in the proceedings were as follows:
1.Whether the mother should be permitted to relocate the child’s residence to India;
2.Whether the parents should enjoy equal shared parental responsibility for the child;
3.Whether the child should spend equal time with each parent;
4.Whether the child’s time with her father should be supervised (and certain factual matters arising from the mother’s allegations of sexual abuse);
5.Whether, in circumstances where a parent was not able to supervise the child personally, the other parent should be given priority to have the child in their care during the relevant time;
6.Whether the parties can agree about the child’s schooling;
7.Whether the parents can agree about the religious upbringing of child;

The Applicable Law in Parenting Proceedings Involving Allegations of Child Sexual Abuse

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).

When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·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
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objectives are that (except when it is or would be contrary to a child’s best interests):
·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
·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
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that 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 abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the children spends with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the children spends with the parent allows the parent to be involved in:
-the children’s daily routine; and
-occasions and events that are of particular significance to the children; and
·The time the children spends with the parent allows the children to be involved in occasions and events that are of special significance to the parent.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
In parenting cases involving allegations of child sexual abuse the fundamental responsibility of the Court remains that it is to arrive at orders which will serve the best interests of the child or children.
In M v M (1988) FLC 91-979 the High Court said as follows at page 77,080:
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
The High Court went on to say at page 77,081 as follows:-
The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
The High Court then referred to a “variety of formulations” by courts in their efforts to define the magnitude of the risk. Then the High Court arrived at the relevant test saying as follows, still at page 77,081:
This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The Full Court of this Court said in the case of B and B (1993) FLC 92-357 as follows at page 79,778:
The “unacceptable risk” test is therefore the standard used by the Family Court to “"achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

Allegations of Violence and Sexual Abuse

The mother has made a number of serious complaints against the father. These relate to the following matters.

Violence

The mother has asserted to the police, in her affidavit and also to the Family Consultant Mr P that when she was approximately seven months pregnant in India the father had hit her on the back. She also said that a couple of months prior to this the father had slapped her on the face. The father denied this.
When the Police interviewed the father on 30 November 2010 following the incident on 29 November 2010 which precipitated the final separation of the parties, the police report recorded that the father had admitted that he had assaulted the mother six years previously. During his cross-examination the father said that this was an error. He said that there had been a second part to what the police were raising with him about this matter. He said that this part was that the mother had subsequently lived with her parents for one and a half years. He said that this is the part that he had agreed with and that he had not agreed with the alleged assault.

Incident on 29 November 2010 (immediately preceding separation)

The mother said that at approximately 7:00 pm on 29 November 2010 the father was standing behind the child and he put both his hands around the rear of her bottom for a few seconds. She said that she heard the child say “Don’t touch my private parts.”. The mother said that the father said to her “Why are you teaching her these things, I just want to hug her.”. The mother said she replied “What’s the harm in teaching her these things.”. The mother said that the father became very angry and went and prepared his own dinner.
She said that after dinner the father and the child were brushing their teeth and the father started shouting at her and asking why was she teaching the child these things. She said that he walked up to her, grabbed her on the left upper arm and moved his clenched hand close to her face three times saying in Hindi “I will kill you, I will give you blows.”. She said that she informed him that she would call the police and that he said “Go call the police, you are threatening me, you want to kill me.”. The mother said that she left home the next day and went to a refuge.
The police attended the mother the following day. The relevant police officer’s notebook contains an account of a complaint by the mother almost identical with the above.
The father’s account is different. He said that on 29 November 2010 he returned home from his office at approximately 5:30 pm. He said that the child rushed towards him, hugged him and he picked her up for a cuddle. He said that after a few moments she said “Papa, don’t touch my private parts.”. He said that he was shocked and put her down on the sofa and said “Who is teaching you all this … ?” and some other questions. He said that she said “Mama told me.”. He said that he was stunned and said to the mother “Why are you teaching her these things …?” and certain other remarks. After a few minutes he asked the child “What are your private parts?”. He said she touched her under arms. He said to the mother “… she does not even know what her private parts are.”.
He said that at approximately 8:30 pm he and the child were cleaning their teeth and the parties had an argument during which the mother tried to pull his ears. He said that he grabbed her hands.
The father was invited to attend at the police station and did so on 2 December 2010. He was served with an interim Apprehended Violence Order (“AVO”). I note that an application to extend the Interim AVO was dismissed in August 2011.
The Joint Investigation Response Team (“JIRT”) became involved. Two officers in the Team interviewed the child several months later in April 2011.
During a course of leading questions, well into the interview, one of the officers asked the child whether she told her father not to put his hands on her private parts and she nodded. The officer asked what did the child tell her father and the child replied “Don’t touch”. She was asked why and she replied that she did not know. She was asked what was meant by private parts and she said “under underwear”.
She was shown a drawing depicting various parts of the body and asked to mark private parts. She marked the bottom. The officer asked whether the child was meaning her bottom and she said yes. She said that her father was touching her private parts with his hand. She said that she was on the sofa with her father when he did this.
Prior to the series of leading questions the child had been shown a drawing of parts of a body and directing her attention to the bottom. The child was asked whether anybody had touched this and the child replied no.
I must say that I have reservations about the accuracy of the mother’s account where it differs from that of the father. In my view, the father was consistent in the answers he gave to the two different cross-examiners (counsel for the mother and solicitor for the ICL) and to the JIRT officers who interviewed him on 28 April 2011 about this matter. He was very responsive to the questions about this matter. The father denied that he had put his hand on the child’s bottom.
At no time did the mother suggest that the father had touched the child inappropriately when they had been on the sofa. In fact the mother agreed that such a suggestion would have been incorrect.
There was no suggestion by the mother that on 29 November 2010 when she alleged the father had put both hands around the rear of the child’s bottom, that he had done this beneath her underwear.

Tongue to tongue

In her affidavit the mother said that (in approximately October or November 2010) she, her mother and the child were in the car and that the child was poking out her tongue. She said that the child’s grandmother said “Don’t do this it is not good manners.”. She said that the child replied in Hindi “My mother to join tongue to tongue.”. The mother said the grandmother asked her “Who said this?” and the child replied “Papa says this to do.”.
The maternal grandmother said in her affidavit that in or about November 2010 the child was coming back from swimming and she was poking her tongue out. The grandmother said that she said to the child in Hindi “No don’t do this, not good manners.”. She said that the child replied in Hindi “Join tongue to tongue.” She said “This is wrong and who says this.” And that the child replied “Papa says this to do.”. The grandmother also said that on a different occasion she heard the father say to the child in Hindi “Let’s give bath to Mama.”.
The mother also said during cross-examination, that once when the child was in bed and her father was sitting on her bed he was poking his tongue out and saying” tongue to tongue”. She said that she thought that this was inappropriate but did not say anything to him about this.
The father said that he had never said anything like this to the child.
During her cross-examination the mother said that when the child said the words “tongue to tongue” she said this in the English language rather than in Hindi as she had said in her affidavit.

Shower

The mother said that in October 2010, when her mother was still staying with them, the father took a shower with the child. The father denied this. He said that he had only showered with the child when she was very young and that the mother had never expressed any objection to him about this. The mother said that the father had a shower with shower in October or November 2010 and that they were both wearing underpants.
In the JIRT interview, it was suggested to the child that her father had put his hands down her underwear once while she was having a shower. The child replied that she could not remember. The mother denied that she had made this suggestion to the police. So it might have been the case that the JIRT officer simply assumed that the father might have done this when she asked the question.

Sleeping arrangements

The mother also alleged that the father had said that he wanted the child to sleep with him so that the maternal grandmother could be accommodated. The mother said that she was concerned about this, the inference being that the father had some sinister motive for this. But in my view this allegation went nowhere because the parents and the child had always slept in the same bedroom. Apparently such an arrangement is common within the Indian culture.
The father explained that prior to the arrival of the maternal grandmother the mother and the child slept in a double bed and he slept on a mattress next to their bed. He said that upon the arrival of the grandmother this arrangement continued and the grandmother slept in a different bedroom. The mother confirmed these sleeping arrangements.

Inappropriate touching

The mother said in her affidavit that on two or three occasions she observed the father putting his hand under the child’s underwear when she was lying down on her back and rubbing her. The mother included the same complaint in the child abuse notice filed by her on 15 April 2011.
The mother did not include any details of this alleged behaviour in her affidavits. And there were inconsistencies between her account in her affidavit and the account which she gave to the child protection officers.
When the JIRT officer first suggested to the child that her father had put his hands down her underwear the child replied that she did not remember. When the officer repeated this suggestion the child said nothing
Having had the benefit of observing the mother tested in cross-examination about these allegations, in my view, if the behaviour occurred at all, it would be more likely than not capable of innocent, rather than sinister, explanation.

Unacceptable Risk

These serious complaints having been made against the father, the Court must determine, in the context of the father’s application for parenting orders, whether orders for the child to be in her father’s care, particularly unsupervised as the mother requires, would expose the child to unacceptable risk.
In relation to the allegations of violence, the father has denied that he has perpetrated any act of violence on the mother.
The allegations of violence fall into two categories. Firstly, there is the mother’s assertion that while she was pregnant in India the father hit her on the back and that previously he had slapped her on the face. Secondly there is the alleged violence on 29 November 2010 particularly the allegation that the father threatened to kill the mother.
With regard to the first allegation, there is no evidence other than the assertions of each of the parties. The father said that the mother commenced dowry proceedings in India and made no mention of any violence in her documents in support, part of which were tendered in these proceedings.
I am unable to find one way or the other about whether this has occurred. But it is the case that the parties subsequently reconciled and then lived together, apparently reasonably happily and without problems, until approximately September 2010 when the mother alleged that difficulties between the parties again started to emerge.
In relation to the alleged violence on 29 November 2010, it is common ground that there was a serious argument between the parties at approximately the time when the parties and the child were preparing themselves for bed. The father said that as he and the child were cleaning their teeth the mother started an argument about the toothpaste they were using. The mother said that the father started shouting at her saying “Why are you teaching her these things.” And, as indicated above, the father said that he thought the mother was going to pull his ears. In any event, it is common ground that the father grabbed the mother’s arm. She said that he was threatening to punch her and to kill her.
There is no question that the child was present. She told the JIRT officer that her father “fighted with Mum.”
The Family Consultant Mr P did not have the benefit of reading the parties’ affidavits in chief before preparing his report. But he read the Magellan Report. And the mother informed him about her version of the events on 29 November 2012. From paragraph 23 of his Report it would appear that the mother gave him a somewhat different account of what she alleged was the father’s violence on that occasion. Apparently she informed Mr P that the father “shoved” her “three times” whereas in her affidavit she said that he had brought his clenched left hand to her face “and brought it back and forward three times about 10 cm from [her] face.”.
At paragraph 57 of his Report, Mr P said:
It is noted that Mr [Johar] denies any family violence. Ms [Johar’s] account appeared more consistent with Separation-Instigated Violence rather than Coercive-Controlling Violence. In the absence of reconciliation between the parents there were no significant indications of risk for future violence between the parents.

I am unable to find that there was no violence by the father perpetrated on the mother.
On the basis of what the child told the JIRT officers during her interview, it would appear to have been more likely than not that the father shouted at the mother during their argument on 29 November 2010 and that he threatened her. This is because the child said during the interview that her father shouted and was trying to hit her mother on the face but he was pretending and her mother put her hands on her face. The officer asked the child whether there had been other times when her parents argued and the child said “No”.
If violence has occurred, which it would appear was likely on 29 November 2010 as the child described, I would accept Mr P’s view about the nature of it and that there were no significant indications of risk for future violence between the father and the mother.
In these circumstances, in my view, the father does not present as constituting an unacceptable risk to the child by reason of allegations of violence.
In relation to the allegations that the father has engaged in sexualised behaviour towards the child, in my view, the evidence could not possibly support any such finding. The highest it rises against the father on 29 November 2012 is that when he arrived home from work he put his hands under the child’s fully-clothed bottom for a few seconds in an act of lifting her up for a cuddle. On the father’s version, he did not place his hands on her bottom but rather he lifted her by placing his hands under her armpits, for a cuddle. There was no issue that the child said “Papa, don’t touch my private parts” but what the child meant when referring to her private parts is quite unclear in my view. And, in my view, it was not made any more clear by the JIRT interview conducted some four months later which, as I have said, included the child having been asked leading questions.
In relation to the allegations about “tongue to tongue” and any impropriety by the father towards the child in the shower, I do not interpret the evidence in a manner which would attribute any sexual behaviour by the father against the child.
Turning to the mother’s allegations that the father sought that the child’s long-standing arrangement of sleeping with her mother would be changed so that she would sleep with him, this allegation has not been established by the mother.
As Mr P said at paragraph 57 of his Report, the possibility of sexual abuse cannot be completely excluded. But as he also said, there were no indications to support a conclusion that it had occurred or that there was a significant risk of abuse of the child in the future based on the available information.
In my view, there are other relevant matters which support he view that there would be no unacceptable risk to the child in being with her father unsupervised. These include the following.
The outcome of the JIRT investigation was that the mother’s allegations of sexual abuse were not substantiated.
When the Family Consultant interviewed the father in the presence of the child, the child greeted him warmly. During cross-examination he said that the child had shown no fear of her father or reluctance to be with him.
The mother conceded that the child had a positive relationship with her father. The mother also conceded that the child had not made any complaint about her father’s behaviour when they had been spending time together since separation.
The child has been doing very well at school, her school reports indicating that her academic achievements have been at a high level.
Furthermore, despite the mother having said that she was extremely concerned about the father’s behaviour towards the child, on two occasions since the events complained of, she approached the father and discussed the possibility of a reconciliation.
In all these circumstances, in my view, it is appropriate for the Court to find that for the father to have responsibility for caring for the child without supervision would not expose the child to an unacceptable risk of abuse.

Parental Responsibility

It was submitted on behalf of the father and also on behalf of the independent child lawyer that there be no disturbance of the current enjoyment by the parents of their equal shared parental responsibility for the child.
On the other hand it was the mother’s position, as indicated above, that the parents continue to enjoy equal shared parental responsibility in respect of the education and religious upbringing of the child but that otherwise the Court order that she have sole parental responsibility for the child. Such was submitted to be in the interests of the child on the basis that the parties had been unable to agree in which country the child should live, matters relating to passports for the child and various matters in respect of the child’s health and medical treatment.
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her. Sub-section 61DA(2) of the Act provides that the presumption does not apply if there are reasonable grounds to believe a parent of the child has engaged in abuse of the child or family violence.
I have considered the mother’s allegations concerning abuse of the child and some family violence above. I have been unable to find that there are reasonable grounds to believe that the father has abused the child. Further, to the extent that there might have been some limited violence perpetrated by the father on the mother, I have accepted the Family Consultant’s view that any violence, if such has occurred, would appear to have been more consistent with what he described as “separation-instigated Violence” rather than Coercive-controlling Violence. While this Court never condones any level of violence, particularly when the persons concerned are parents of children, in my view, even if there has been some violence in this case, it would not be such as to justify setting aside the presumption.
As indicated above, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for her parents to have equal shared parental responsibility for her.
What is in the best interests of the child requires a consideration of the relevant matters in s 60CC of the Act and such other matters as are relevant to the child’s best interests. I shall turn soon to deal with these relevant considerations. But at this point I note that I have taken those matters into account in arriving at the view that it would not be in the child’s best interests for the presumption to be rebutted.
Clearly having the parental responsibility vesting equally in each of the child’s parents is regarded by Parliament as an important matter. It is the case that the child’s parents have a poor relationship and that there has been considerable conflict between them. But they have demonstrated during the course of this hearing that they share many common views about what is in the interests of their daughter despite some major differences. Their commonality, as indicated above, is that each of them is confident that they can agree about the child’s schooling and about her religious upbringing as I have said. In my view this takes them a substantial way towards cooperative decision making. I am not persuaded that, particularly given the importance of them sharing parental responsibility, they would not be able to accommodate differences of views in respect of other important decisions about the child’s parenting. For these reasons I am not persuaded that it would be in the child’s interests to vest sole parental responsibility in one or other parent in respect of these remaining matters.
I propose to make orders about parental responsibility in accordance with the submissions of the father and the independent child lawyer. I note that my conclusion is also consistent with the opinion of the Family Consultant, Mr P, who said that he could see no reason why the parents would not be able to continue to share parental responsibility.

Best Interests s 60CC

How a Court is to determine what is in a child’s best interests is set out in the provisions of s.60CC of the Act.
Sub-section 60CC(2) contains the primary considerations. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I have referred above to the relevant child protection issues, these being the mother’s allegations of child sexual abuse and violence.
Clearly it is in the child’s best interests to be able to have the benefit of a meaningful relationship with both of her parents. I shall consider this matter in more detail below.
The additional considerations are set out in s 60CC(3) of the Act. Those which are relevant are as follows.

Sub-section 60CC(3)(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

During her interview the child was asked by the Family Consultant how she felt about the possibility of going to live in India. She said that she would feel “a little bit good” and then paused and added that she would feel “bad” because “[I] can’t see my dad again”. Mr P asked the child how she would feel if it was decided that she spend the same amount of time with each of her parents and that she responded that she wanted to see her father for “just two days” and to stay with her mother the rest of the time. Mr P said that the child said that this was her idea. He also said that the child said that she did not wish to stay overnight at her father’s house.
Mr P also said that the child was not of an age or apparent developmental level where it could be recommended that the Court give her views significant weight.
I accept this, although I am not of the opinion that what the child has said ought to be disregarded entirely.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

At the time of the child’s birth her parents were separated. They had separated in October 2004 less than three months before the child’s birth. The mother was living with her parents in their home at the time of the child’s birth and for 18 months thereafter at which time the father and the mother reconciled their marriage and resumed living together by the mother joining the father in the US.
During this 18 month period the father did not spend any time with the child nor did he ask to see the child until he initiated the reconciliation.
The mother was attending full time to the child’s needs following her birth, then in the US, then back in India in April 2008 and finally in Australia as from September 2008 subject to some casual work which she performed in the education and child care industry in Australia.
The Family Consultant expressed the opinion that the child appeared on interview and observation to have established and positive relationships with each of her parents. He indicated that there was no sign of any reluctance on the part of the child to engage with her father, in fact anything but, nor any sign of any fear in the child of her father.
The Family Consultant did not express any opinion about whether the child was more closely attached to one or other of her parents. But just looking at the matter objectively, the child has always lived with her mother. She has done so exclusively during the periods from the time of her birth for a period of 18 months until the parties reconciled and then lived together in the United States with the child. She has also done so during the period following the parties’ separation in November 2010 to the present time. In my view, in these circumstances, it would be surprising indeed if the child’s primary attachment was not to her mother.
True it is that the father has had significant involvement in the upbringing of the child. He used to drive her to pre-school. He has been involved with her extra-curricula activities including her various maths activities. He has been a passionate and involved parent in her education. He was very involved in her care at home. But of course he had to commit much of his time to the demands of his full time employment.
The mother said that the child has a very close relationship with her father.
The father agreed that the child has a strong attachment to her mother. But he would not concede that the mother has been the child’s primary caregiver. In my view, on the objective facts, it would be more likely than not that the mother would be regarded as the child’s primary parent.
The child also has a close relationship with each of her grandmothers, they being persons who have been very much involved in her care. The child would also appear to have good relationships with each of her grandfathers.

Sub-section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In my view, the Court can have confidence in the father’s willingness and ability to facilitate and encourage a close relationship in this regard. There is nothing to indicate that he has undermined the mother or her family to the child. He has been compliant with Court orders, notwithstanding that the orders have considerably confined his time and opportunity for furthering his relationship with the child.
On the other hand, in my view, there is cause for serious concern about the extent of the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and her father. It is the case that the mother has been compliant with Court orders. She has also been able to negotiate with the father, particularly in recent times, some change of times spent between the child and him. But she has a strong concern that the father has acted in a sexual way towards the child. She also appears to have a view that the father has perpetrated violence upon her at a level well in excess of what any objective interpretation of the evidence before the Court would indicate about such matters.
In addition, the mother has expressed the view that she does not believe that the father loves the child. And she has maintained this view, not only in the face of assessment by the Family Consultant about the father’s relationship with the child, but also notwithstanding that she has been given ample opportunity during the course of the hearing to question and reassess her view about this matter. The mother continued to maintain her view about this. She said that her reasons for holding such a view were the father’s treatment of her and her interpretation of the manner in which he has behaved towards the child which she regards as having a sinister motive.
What troubles me even more about this constraint on the mother, is that her views were reinforced by similar negative views of the father also professed by her mother.
This was a matter about which the Family Consultant expressed serious concern as not being consistent with the child’s best interests. Mr P indicated that he had the view that there were serious limitations on the mother’s capacity to be able to promote and even to permit a close and continuing relationship between the child and her father.
The mother indicated during her cross-examination that when the child was not spending any time with her father after separation the child never mentioned her father. So the mother had the impression that the child did not miss her father at all. This was in stark contrast to the opinion of the Family Consultant who indicated that the child would be likely to experience separation from her father as an extreme difficulty for her given their apparently positive relationship.
In my view, the mother’s limited ability and willingness in this regard is a serious parenting deficit.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

I have referred above to Mr P’s professional opinion that if the child was to be relocated to India she would be likely to experience the separation from her father as being extremely difficult, given their apparently positive relationship.
One would anticipate that separation of the child from her mother, as her primary parent, would be extremely difficult for the child. This of course would appear to be involved in significant measure in the father’s proposal that in effect primary responsibility for parenting the child and for the child’s residence be shifted from the mother to him. Mr P did not specifically comment on this in relation to the mother. But from the Court’s general knowledge about such matters, one could anticipate that the child would be likely to experience feelings of sadness and loss if she was to spend extended periods away from her primary caregiver.
Of course, if the child was to be living in India, it would be expected to exacerbate the effects which Mr P talked about as likely to be experienced by the child if separated from her father. That is that she would be likely to experience such separation as being extremely difficult. This is of course because against the background where her father was very prominent in her life he would be relegated to electronic communication with her and very occasional face to face contact with her.

Sub-section 60CC(3)(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.

If the parents were both living in Sydney there would be little practical difficulty with respect to these matters. The father indicated that he would be prepared to accept the child continuing to attend her current school. Although the parents are at some little distance from one another at present, the father indicated that he would like to move to an address closer to the child’s school than his present residence is.
If the child was to be living with her mother in India however, this would present very considerable practical difficulties and expense for the child to be spending time with and communicating with her father living in Sydney. As indicated above, the mother would propose that the child’s primary method of communicating with her father would be by electronic means. She proposed that this would be complemented by bi-yearly visits by the mother bringing the child to Sydney for a period of up to two months during which the father and the child could be with each other through the day time on a supervised basis. As also indicated above, the mother also proposed that the father could visit the child in India at any time in which circumstances she would make the child available for direct time with him on a daily basis for most of the day, but again subject to supervision approved by her.
The Family Consultant expressed the view that such practical difficulties would impose serious difficulty for the child in terms of her having appropriate opportunity to maintain her positive relationship with her father and that ultimately this would be likely to become damaging for the child.

In all the circumstances, in my view, it would not be in the child’s interests to be living with her parents in an equal time arrangement.
Having arrived at this determination, s 65DAA(2) requires the Court to consider whether the child spending substantial and significant time with each of her parents is reasonably practicable. In accordance with the guidance in McCall & Clark referred to above, I propose to consider this in the context of the relocation application.

Submissions

Independent Child Lawyer (“ICL”)

Mr Nasti submitted that a relocation of the child’s residence to India would not be in her interests. He did not support the father’s application for a “roughly” equal time arrangement.
It was submitted that the best arrangement for the child would be for her to remain resident in Australia and to live principally with her mother and spend regular time with her father.
The ICL was not initially supportive of the parents sharing equal parental responsibility. He thought some of the difficulties about their communication might make it difficult for them to arrive at appropriate decisions together. But late in his submissions he supported an order for the parents to have equal shared parental responsibility for the child.
In relation to the alleged violence it was submitted that the mother’s complaints about the father hitting her when they were in India happened a long time ago and, in any event, would be low down on the scale of seriousness. He said that if the incidents had occurred at all, both of them appear to have been related to the time when the parties separated. It was submitted that those incidents would not stand as a basis for overturning the presumption under the legislation of equal shared parental responsibility.
In relation to the allegations of sexual abuse, Mr Nasti presented a very detailed analysis of the evidence in respect of these allegations. It was submitted that taking account of all of the evidence about the allegations, this would not amount to an unacceptable risk for the child if she was to be with her father unsupervised.
Finally it was submitted that if the child was permitted to relocate to India the Court could have little confidence that she would maintain a meaningful relationship with her father.

Father

It was submitted that if there had been violence by the father on the mother then its high point was six and a half years ago in India. It was submitted that the Court would not find violence but if it did then the violence would not be at a level which would displace the presumption of equal shared parental responsibility.
In relation to allegations of sexual abuse, learned counsel for the father made a detailed reference to some of the relevant evidence. In particular he challenged the mother’s assertions that the father had rubbed the child beneath her underwear and pointed to the inconsistencies as I have referred to them above. It was submitted that the Court would be unable to make a finding of any abuse based on the evidence and that the Court would ultimately find that for the child to be unsupervised with her father would not be an unacceptable risk. It was submitted that the Court would find that the mother would have difficulty facilitating a meaningful relationship between the child and her father and that this would particularly be the case if the mother was permitted to relocate the child’s residence to India. It was submitted that the Hague Child Abduction Convention does not apply between India and Australia and that there would be practical difficulties in enforcing this Court’s orders in India.
It was submitted that the Court should order equal shared parental responsibility for the child as recommended by the Family Consultant. In particular it was submitted that the father would not have difficulty in deferring to the mother’s preference to continue the child’s enrolment at her current school.
Detailed submissions were made about the primary and additional considerations.
In relation to relocation it was submitted that the mother would be able to obtain employment in Australia, that her English is good and that she would be able to obtain family support for her and the child in Australia. This was contrasted with what was described as the likely serious risk of deterioration in the child’s relationship with her father if she was relocated to India. This was because of the poor view that the mother concedes that she has of the father and the serious risk that the father would be denigrated or ignored by the mother and her extended family if the child and her mother were to relocate to India.

Mother

It was submitted that the mother has a strong preference to return to India, having had such a preference since late 2008. The mother has undertaken courses in Australia but has not been able to obtain employment commensurate with her qualifications. She still considers herself connected with India and her family live in India.
It was submitted that the father has qualifications which would be relevant to employment in India. He conceded that if he did not move his residence to India he would still be able to visit India and spend time with the child. He has accommodation available to him in India. It was submitted that the mother would be able to obtain much better employment in India and that it would take her some years to obtain a similar job in Australia.
In relation to parental responsibility the mother wanted to have sole parental responsibility for decisions about health and passports.
It was submitted that the mother was subjected to violence at the hands of the father and that the child’s interview by JIRT confirmed the mother’s allegations concerning sexual abuse.
It was submitted that the mother acted appropriately to protect the child by not making her available to spend time with her father after separation for some months. The mother has always complied with Court orders and she would be prepared to consider variation of orders from time to time.
It was submitted that the child has a bond with her maternal and paternal grandparents.
Some criticism can be made of the father for placing pressure on the child by enrolling her in too many extra curricular activities.
It was submitted that the mother cared for the child for the first eighteen months alone, that the father visited the hospital when the child was born but otherwise did not see her for eighteen months.
Finally it was submitted that the orders sought by the mother would be the least likely to lead to further proceedings.

Conclusion About Best Interests

There is a certain attractiveness for the child and her mother being permitted to relocate her residence to India. This is, of course, what the mother is most desirous of doing. She wants to return to her parents’ home in her country of origin. She has become quite unhappy living in Australia. She had been employed previously in a professional education position from which she derived considerable satisfaction and status. She does not have that here.
She agreed to support her husband in his ambition to come to Australia to achieve more interesting and more lucrative employment than was available elsewhere. For a few years she was happy. But things deteriorated badly for her in approximately September 2010 when the marriage came under great pressure. The mother has wanted to return to India since that time.
If only the father was prepared also to return to live in India, things would be much less complicated for the child. But he has made it very clear that he does not wish to do this under any circumstances, even if the mother and child were living in India.
I must say I am far from persuaded that things would be as difficult professionally for the father back in India as he would have the Court believe. After all, he has tertiary qualifications and employment experience as referred to above. As learned counsel for the mother submitted, he has shown versatility throughout his career so far, in being able to shift from job to job and change the focus of his work. I would have no doubt that given his evident professional commitment and focus, he would be able to requalify himself readily within a reasonable time in order to obtain appropriate professional employment back in India.
It is also the case that in the event that the mother and the child were living in India, not only would the father have the means to be able to fund his regular travel to India to spend time with the child, but he would not have difficulty arranging accommodation there. This is because his parents live in the same area and the husband agreed that there were other people in the area who would be able to offer him accommodation.
So if this were all there was to the Court’s consideration of its determination about what is in the best interests of the child, the likely outcome would be that those interests would best be served by the mother’s proposal to return the child to live in India.
Unfortunately the matter is more complicated than that. As indicated above the objects of Part VII of the Act include ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. As also indicated above, this is also a primary consideration in the Court’s determination of what is in the child’s best interests.
It is clear that the child has a good relationship with her father. The Family Consultant described it as an “established and positive relationship”. In his Family Report, Mr P expressed the view that if the mother was permitted to relocate with the child to India it would be likely that the child’s relationship with her father would be significantly diminished. He said that the mother did not appear to propose that the father spend time with the child beyond electronic communication.
Pausing here, during the course of the hearing the mother did say that she would be prepared to make the child available for face to face time with her father both in India and every two years in Australia but only on the basis that such be supervised. Mr P went on to say in his Report that the child would be likely to experience the separation from her father as extremely difficult, given their apparently positive relationship.
In my view this matter stands significantly as an obstacle to the Court feeling confident that if the mother were permitted to relocate the child’s residence to India, there would remain adequate opportunity for the child to maintain and develop her relationship with her father. In my view, there are a number of matters which cause concern about this.
Firstly, the mother expressed the view during the hearing that the father does not love the child. This was somewhat surprising because elsewhere she acknowledged that the child loves her father and that they have a close relationship. Even given the opportunity to reflect on this, the mother steadfastly held to her view about this matter.
The mother also had the view that the child really had not missed her father when time spent between the child and her father was interrupted after the parties separated. In addition, notwithstanding all the discussion during the course of the hearing about the equivocal state of the evidence about child sexual abuse, including it being drawn to the mother’s attention on more than one occasion that what the child said could have been the subject of innocent interpretation, and notwithstanding opportunity to read Mr P’s Report about this matter, the mother did not move away at all from her strongly held view that time spent between the child and her father would have to be supervised because of the threat the father presented to the child.
Mr P had some opportunity to observe a significant part of the cross-examination of the mother. He indicated during his cross-examination that his observations of the mother giving her oral evidence did not give him any confidence that she had in any way relaxed her opposition to the child spending appropriate time with her father. In fact his observations reinforced his serious concerns that if the child was to live in India it would be very difficult for the child to have proper opportunity with her father to maintain their relationship. He said that loss of their close relationship would be most unfortunate for the child.
I accept Mr P’s views in this regard, particularly because my own interpretation of the mother’s evidence has brought me to a similar view. This is that there must be very serious reservations about the mother’s capacity and inclination to be able to facilitate a continuing relationship between the child and her father. In my view, the risks about this matter would be all the greater if the mother and child were to live with the mother’s parents and family in India as proposed. This is because it is clear that there is a poisonous relationship between the father’s parents on the one hand and the mother’s parents on the other hand. There was nothing about the evidence given by each of the child’s grandmothers which gave me any confidence that they would be likely to encourage the mother to facilitate a relationship between the child and her father. In fact I had a strong sense that the opposite would be more likely.
In all these circumstances, in my view, despite there being a certain attractiveness in the child’s best interests possibly being served by her being permitted to live in India, such is clearly outweighed by what I regard would be a serious risk to her proper development and overall best interests. This is that relocating her residence to India would be likely to deprive her of her “established and positive relationship” with her father. I accept Mr P’s opinion that such would represent a significant loss for the child.
On the other hand, not to permit the mother to relocate the child’s residence to India would be likely to be a greater detriment to the mother than it would be to the child. After all, the child has now lived in Australia for several years, she goes to school here and is doing extremely well at school, she has a circle of friends including three friends of Indian background. Most importantly she would have both of her parents living in Australia. She would be able to have adequate opportunity to continue the development of her meaningful relationship with each of them.
While her mother will almost certainly be considerably less happy and possibly less fulfilled in Australia, and while this is relevant to her capacity to appropriately parent the child, ultimately it is the child’s best interests which will prevail over the interests of a parent.
As indicated above, I do not regard the father’s proposal to be in the best interests of the child.
This leads the Court to the position where it must consider what the mother proposes on the basis that she and the child would live in Australia. As indicated above, this is that the child would live with her father for alternate weekends, half school holidays, special days and otherwise she would live with her mother.
In my view what the mother proposes for the child in Australia is appropriate and in the child’s best interests subject to one major qualification. Not only would the child remain undisturbed from the primary care of her mother, but she would have appropriate opportunity to live with her father and for him to be able to be involved in a meaningful way in all the significant aspects of her life, including school and cultural matters. When I say appropriate, I regard the mother’s proposal as appropriate but only on the basis that there is no proper requirement for any of the time spent between the child and her father to be supervised.

Answers to Agreed Issues

I refer back to the issues agreed by all parties for determination by the Court and answer these as follows for the reasons set out above:
1.Whether the mother should be permitted to relocate the child’s residence to India;
No
2.Whether the parents should enjoy equal shared parental responsibility for the child;
Yes
3.Whether the child should spend equal time with each parent;
No
4.Whether the child’s time with her father should be supervised (and certain factual matters arising from the mother’s allegations of sexual abuse);
No
5.Whether, in circumstances where a parent was not able to supervise the child personally, the other parent should be given priority to have the child in their care during the relevant time;
Yes
6.Whether the parties can agree about the child’s schooling;
Yes, but this is an aspect of parental responsibility
7.Whether the parents can agree about the religious upbringing of the child;
Probably, but this is an aspect of parental responsibility

I certify that the preceding two hundred and forty-seven (247) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 1 August 2012.

Associate:

Date: 1 August 2012

[2012] FamCA 609

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies