Joshi & Balik
[2025] FedCFamC1F 418
•15 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Joshi & Balik [2025] FedCFamC1F 418
File number(s): MLC 5917 of 2024 Judgment of: JOHNS J Date of judgment: 15 May 2025 Catchwords: FAMILY LAW – CHILDREN – Ex Tempore Reasons –Minute of Consent – best interests – live with – decision-making – where the father sought a variation of final parenting orders – where the mother alleged that the father used court processes to intimidate and harass – where there was a history of family violence perpetrated by the father – where the parties reached agreement during the course of proceedings – the mother to have sole decision-making authority – the child to live with the mother – the child to spend time with the father once a month and to have video call communication with him – passport to be issued to the child without the consent of the father Legislation Family Law Act 1975 (Cth) ss 60CA, 60CC Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 15 May 2025 Place: Melbourne Counsel for the Applicant: Mr Kaufman Solicitor for the Applicant: Cordoba Legal Counsel for the Respondent: Mr Whitchurch Solicitor for the Respondent: Michelle Moloney Family Lawyers ORDERS
MLC 5917 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JOSHI
Applicant
AND: MS BALIK
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
15 MAY 2025
BY CONSENT THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The Mother has sole parental responsibility and sole decision-making authority in relation to all decisions concerning major long-term issues as defined by s 4(1) of the Family Law Act 1975 (Cth) for the child X born 2017 (“X”).
3.X live with the Mother.
4.X spend time with the Father once a month from Saturday 10am until Sunday 4pm on the first weekend of each month:
(a)All changeovers to occur at McDonalds City T .
(b)The Mother be permitted to have an agent attend changeover on her behalf.
5.X have video time with the Father:
(a)Once per month on the third Sunday of each month from 5:30pm to 6:30pm on Sunday; and
(b)At other times as agreed in writing.
6.The Mother and the Father do all things required to set up a AppClose Parenting App to be used only for the purpose of communicating with one another about X’s changeovers or video time.
7.The Mother shall provide to the Father within 14 days of receipt, a copy of the child’s school reports and the Mother shall be at liberty to redact or omit any information from those reports which might be used to reveal the child’s address or the location of his school.
8.The Mother shall advise the Father as soon as practical of any serious illness, injury or proposed surgery for X.
9.The Mother be entitled to travel with X out of Australia at any time.
10.For the purpose of any such travel in the preceding Order and the issue of any Australian Passport or travel document in the name of X so as to enable travel, the Mother have liberty to make application to the Department of Foreign Affairs and Trade Passports Office for issue of the child’s passport without the consent of the Father AND IT IS REQUESTED that the Passports Office give effect to this Order.
11.The Mother ordinarily hold X’s passport.
12.Should the Mother wish to take X overseas, she provide to the Father 30 days written notice of her intention to do so, and:
(a)Verification of the purchase of return flights tickets;
(b)An itinerary of travel including places of stay and contact details.
13.Both parties are hereby restrained from speaking about the other parent or a member of the other parent’s household in a derogatory fashion in the presence or hearing of the child and shall remove the child from the presence or hearing of any third party seeking to do so.
14.The parents are hereby restrained from speaking to the child about these proceedings or showing the child any document in relation to these proceedings.
15.All extant applications be otherwise dismissed.
16.Pursuant to s62B and s65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
AND THE COURT NOTES
A.The Mother represents that she has no intention of relocating outside of the Commonwealth of Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Joshi & Balik
has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).EX-TEMPORE REASONS FOR JUDGMENT
This matter commenced its final hearing before me on 14 May 2025 in relation to the future parenting arrangements for the child, X, who is aged seven years. The parties have been in conflict as to what time, if any, X ought to spend with his father, who is the applicant in these proceedings.
That that is in issue is as a result of a history of significant family violence perpetrated by the father against the mother, particularly in the latter phase of the parties’ relationship when X was aged only a few months old. As a result of the father's conduct towards the mother, he was the subject of a number of criminal charges which culminated in periods of incarceration.
The matters of family violence, which were the subject of criminal proceedings against the father, included charges of assault, stalking, intimidating, use of carriage service to menace and harass, and charges relating to breaches of intervention orders. Those issues were first considered by this Court in the context of competing parenting applications before Rees J, in a final hearing that was conducted in the Sydney Registry of this Court in 2022.
At the conclusion of those proceedings, Rees J made final parenting orders on 9 August 2022 (“the 2022 orders”) and published reasons for judgment which set out in detail the terrible history of family violence perpetrated by the father against the mother. The orders made by Rees J included orders permitting the mother to relocate from Sydney to Melbourne with X.
Subsequent to the making of those orders, the father brought an Application – Contravention for alleged breaches by the mother of the final parenting orders. At the hearing of that Application – Contravention in 2023, it was found that the mother had committed two breaches of the 2022 orders. From those findings, orders were made delaying the date at which the mother could relocate to Melbourne, to ensure that X had sufficient opportunity to establish his relationship with the father. The consequence of those orders is that the mother did not relocate to Melbourne until early 2024.
Immediately upon the mother's relocation to Melbourne, she was informed that the father had also elected to relocate to Melbourne. Within weeks of the father giving the mother notice to that effect, he caused an application to be filed in this Court seeking additional time with X. The mother perceived the father's behaviour towards her in the aftermath of the final hearing and the 2022 orders to be threatening, intimidating, and harassing. The father challenged those assertions and maintained that the actions taken by him were simply to ensure his opportunity to spend time with X.
The final hearing of those matters commenced before me yesterday. During this hearing I have had the opportunity to observe the father giving oral evidence over one and a half days. I have also had the opportunity to hear evidence from the father's treating psychologist, Mr C.
Much of the cross-examination of the father related to his communication with the mother since 2022, which has occurred by SMS text message, and by messages sent through WhatsApp and other parenting apps. Those communications were tendered during the hearing. I am satisfied that those lengthy and numerous messages, which included persistent threats of further court proceedings, from the father to the mother are of such a volume and nature as to constitute harassing, and at times threatening, communication.
The impact of the father's conduct was raised by the mother in her interview with Family Consultant Ms W, undertaken for the preparation of the final Family Report dated 28 November 2024. In that report, Ms W expressed her concerns as to the father’s conduct, noting at [134] of the Family Report that if the Court were to accept the mother's account as to the father's communication and behaviour towards her:-
…it would indicate that [the father] continues to engage in abusive and coercive controlling behaviours. These [behaviours] reportedly include persistent threats of legal action, actions designed to instil fear and intimidation, and repeated contact with [the mother], including during inappropriate hours.
In light of those concerns, Ms W, made a series of recommendations as to the time that X ought spend with the father in the Family Report.
I am satisfied, having regard to the volume and nature of the father’s written and oral communication with the mother, about which he was cross-examined, that the mother’s account of the father’s behaviour is accurate and that her concerns are genuine and based in fact.
The parties have had the opportunity to reflect and consider the evidence as it has unfolded. It is to the credit of the parties, and particularly to the credit of the father, that they have come to a compromise and have embraced the recommendations made by the Family Consultant. They have presented to the Court a signed Minute of Consent Orders, the effect of which is to preserve the existing arrangements in place between the parties relating to decision-making relating to X. The proposed orders provide that the mother will continue to have sole decision‑making authority for X, that X will continue to live with the mother, and that he shall spend time with his father on one occasion each month, from 10am on Saturday to 4pm on Sunday, on the first weekend of each month. Pursuant to the proposal, there is also opportunity for X to communicate with his father via video call on one occasion per month.
The parties’ proposal provides for sensible and safe arrangements in relation to handover of X, as well as for regulation of how the parties are to communicate in relation to parenting issues. It also provides for the father to receive information about X's school progress, and further that he shall have notice of any serious illness or injury affecting X.
Section 60CA of the Family Law Act 1975 (“the Act”) provides that the children's best interests are the paramount consideration in making parenting orders.
Pursuant to section 60CC(1) of the Act, in determining what is in the child's best interests, the Court must consider the matters set out in section 60CC(2). Those matters are outlined as follows:
(a)What arrangements would promote the safety, including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm of the child and each person who has the care of the child, whether or not a person has parental responsibility for the child;
(b)Any views expressed by the child;
(c)The developmental, psychological, emotional and cultural needs of the child.
(d)The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
(e)The benefit to the child of being able to have a relationship with the child's parents and other people who are significant to the child where it is safe to do so; and
(f)Anything else that is relevant to the particular circumstances of the child.
Section 60CC(2A) provides that in considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
In light of the evidence that I have heard, and having regard to the observations and recommendations by the Family Consultant, I am well satisfied that the proposed orders are in X's best interest. They will promote X’s ongoing safety in the mother's care and will also afford him the opportunity of an ongoing relationship with the father within a safe setting.
The orders will ensure that the mother’s role as primary carer of X is not undermined or threatened by the father’s communication with her or conduct. In light of the history of this matter, and particularly the history of family violence perpetrated by the father towards the mother, I am satisfied that it is in X’s best interests that the mother’s position as primary carer be protected.
I will therefore make Orders in the terms of the Minute of Consent Orders signed by the parties. The Minute will be marked with the letter “A” and it will remain on the Court file. I direct that the solicitors for the applicant engross and file the Orders at Court within seven days.
I know that it has been a very difficult period for both parties, and particularly for the father, in the last few days. His conduct and decisions have been the subject of criticism and scrutiny. That criticism is warranted. However, the father has shown a capacity to reflect and consider, for which he must be commended. I sincerely hope that this self-reflection will enable him to seek appropriate guidance and counselling, so that he can be the best parent possible to his young son.
I sincerely hope that the making of these final Orders will bring this chapter of the party's shared parenting history to an end, eliminating any future need to return to this Court.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex-tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 20 June 2025
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