Joshi & Balik

Case [2022] FedCFamC1F 571

Federal Circuit and Family Court of Australia

(DIVISION 1)

Joshi & Balik [2022] FedCFamC1F 571

File number(s): SYC 3082 of 2018
Judgment of: REES J
Date of judgment: 9 August 2022
Catchwords: FAMILY LAW – PARENTING – Application by the father to spend unsupervised time with the children – The mother seeks sole parental responsibility and permission to relocate interstate – Where the mother has experienced family violence perpetrated by the father – Where the father has undergone rehabilitation – Discussion of ‘meaningful relationship’ – Whether the child is able to maintain a relationship with their father that is important, significant and valuable even if the child is relocated – Orders made for the father to spend increased time with child until the end of 2023 – Orders made to permit the mother to relocate interstate at the end of 2023 – Orders made for the child to spend time with the father on the first weekend of every month and one weekend of every school holiday period.
Legislation:

Acts Interpretation Act 1901 (Cth) s 15AA

Family Law Act 1975 (Cth) s 60CC(2)
Cases cited:

Godfrey & Sanders (2007)  208 FLR 287

McCall & Clarke (2009) FLC 93-405

Moose & Moose (2008) FLC 93-375
Division: Division 1 First Instance
Number of paragraphs: 172
Date of hearing: 4-6 July 2022
Place: Sydney
Counsel for the Applicant: Mr Gardiner
Solicitor for the Applicant: Cordoba Legal
Counsel for the Respondent: Mr Cairns
Solicitor for the Respondent: Stanfords Solicitors & Mediators
Counsel for the Independent Children's Lawyer: Ms Rebehy
Independent Children's Lawyer: JLM Family Lawyers Pty Ltd

ORDERS

SYC 3082 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR JOSHI

Applicant
AND:

MS BALIK

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

REES J

DATE OF ORDER:

9 August 2022

THE COURT ORDERS:

1.That the mother have sole parental responsibility for the child X born 2017 (“X”) and that X live with the mother.

2.That the mother and the father do all things required to set up a private WhatsApp account to be used only for the purpose of communicating with one another about X.

3.That 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.

4.That the mother shall advise the father as soon as practical of any serious illness, injury or proposed surgery for the child including a diagnosis and prognosis and provide any and all reasonable updates and the mother shall authorise any treating practitioner to provide to the father any information about X’s diagnosis, treatment and prognosis that he seeks.

5.That 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 children and shall remove the children…

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AGLC
Joshi & Balik [2022] FedCFamC1F 571
Case
[2022] FedCFamC1F 571
Decision Date

CaseChat Overview and Summary

In the matter of Joshi & Balik, the Family Court of Australia considered the dispute between the parents of a child, X, regarding the arrangements for X’s residence and time spent with each parent. The primary issue was the allocation of parental responsibility and the determination of an appropriate parenting arrangement that would allow X to maintain a meaningful relationship with both parents while ensuring his safety and well-being. This included assessing the mother’s application to relocate with X to Melbourne and the father’s request for increased time with X, including overnight stays.

The court was required to determine whether the father’s past violent behaviour towards the mother warranted restrictions on his time with X and whether the proposed relocation to Melbourne would be in X’s best interests. The court also had to consider the evidence from the family consultant regarding the nature and quality of the relationship between X and each parent, and the impact of any changes in the parenting arrangement on X’s stability and well-being.

The court acknowledged the father’s efforts to rehabilitate himself and his willingness to engage in supervised visits with X. However, it recognised the mother’s ongoing fear of the father and the need to protect X from any potential harm. The court concluded that while the father’s behaviour was unacceptable, it was not necessary to restrict his time with X entirely. Instead, the court ordered that X should begin spending overnight time with the father and the paternal grandmother to facilitate the development of their relationship. The court also permitted the mother to relocate with X to Melbourne at the end of the fourth term of school in 2023, with arrangements for the father to spend time with X in Melbourne and during school holidays. The court emphasised the importance of ensuring that X maintains a meaningful relationship with both parents, as defined by the statutory objects and principles of the Family Law Act 1975.

The court’s reasoning was grounded in the statutory objectives of promoting the meaningful involvement of both parents in a child’s life and protecting children from harm. By allowing the father to spend increasing amounts of time with X, under supervision, the court aimed to foster a significant and valuable relationship between them. The decision reflected a careful balance between the competing interests of both parents and the paramount consideration of X’s best interests, ensuring his safety, stability, and emotional well-being. The final orders reflected a pragmatic approach, recognising the need for a gradual transition to a more independent relationship between X and his father, while safeguarding X’s attachment to his mother and other family members.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I also accept that he has no real understanding or appreciation about the effect of his violence upon the mother and that she, reasonably and genuinely, remains fearful of him and fearful about what he will do.evidence of the family consultant Ms J did not support the father’s sharing parental responsibility. She said:…there’s also concerns about how the parents would even commence communication to discuss such issues and to ensure that they be able to reach agreement in a timely and effective manner for [X]. I know from reading some of the other material that was forwarded onto me, I understand that [X] has been diagnosed with ADHD last year, and has been approved for NDIS and is engaged in speech and language and OT, and it would seem that he’s going to be a young boy that will have engagement with specialists and will need reviews and appointments and decisions being made, and it would not be helpful if these decisions were going to be delayed because parents could not communicate effectively. In relation to X’s relationship with his father, Ms J said:It seems that he seems to have developed a relationship with them and is excited to see them and to wave them off at the end as well. So it gave me the sense that he has established a relationship with them too…At [X’s] current age of five, it would seem that he has an idea of who his dad is and has established a relationship. So in terms of the reoccurring frequency, that would be more important for younger kids to remember, attach, consolidate the attachment. Whereas for older children, they can hold it in their mind and remember it and I suppose embrace it without having the – such increased frequency. But yes, additional time does allow for further, I suppose, progression and experiences between a parent and a child. Ms J said that a scheme of weekend time with morning and evening routines would be a suitable arrangement to maintain solid attachment and the relationship between X and his father. She said that X is now used to seeing his father frequently and that seeing him less often could be difficult for X, especially having regard to the additional needs of a child with ADHD such as stability, routine and security which are crucial. She suggested that if X were getting appropriate support from both his parents around not seeing his father frequently, “he might be able to weather that”. She said:In terms of when is it best to occur, I would be saying not any time kind of in the build up before kindergarten, and probably not any time in his kindergarten year. Just really delicate times for a child to adjust, so I’d be just really cautious, really kind of around any changes if they’re not going to happen imminently, that they don’t happen until at least he’s in year 1. Ms J outlined the risks of severing that relationship to include X potentially having difficulties with trust, with rejection, with conflict resolution and with his ability to maintain solid relationships and friendships.

Decision

Reasons for decision

It is commendable that the father has realised that his behaviour was not acceptable and that he has engaged with Mr C over a considerable period of time and on a continuing basis to rehabilitate himself but that does not detract from the seriousness of the father’s violent behaviour towards the mother and the ongoing consequences for her of that behaviour.conclusion The mother should be permitted to relocate with X to Melbourne after the end of fourth term of school in 2023. In the meantime, X should start spending over night time with the father and the paternal grandmother so that, by the time he moves to Melbourne, he might be ready to spend more than one night with his father. I accept the evidence of the Family Consultant that the changeovers should continue to be supervised until the end of 2023 but I do not consider that supervised changeovers are necessary once the mother moves to Melbourne. Changeovers can then take place at a public place or can be facilitated by Mr G or another member of the mother’s family. The orders will provide for the father to spend time with X in Melbourne on one weekend in each month from Saturday morning until Sunday evening and for the mother to bring X to Sydney to spend time with the father in each school holiday period. I accept that this arrangement is not optimal but I am also conscious that I am required to give priority to X’s having a “meaningful” relationship with his father. The question of what is meant by the term "meaningful relationship" was considered by the Full Court in the decision of McCall & Clarke (2009) FLC 93-405 where their Honours said, commencing at [109]:The Act does not contain a definition of "meaningful", nor does it provide any specific criteria to assess how parents either have, or should have, a "meaningful involvement" in a child's life. It does not give guidance to the interpretation of the phrase "meaningful relationship". It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material. The Macquarie Dictionary defines the adjective "meaningful" as "full of meaning, significant. Significant is defined as "important; of consequence" The Shorter Oxford English Dictionary defines "meaningful" as "Full of meaning or expression; significant …" "Significant" is defined as "Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ..."We turn first to the objects clause (s 60B(1)). The purpose of an objects clause is "to indicate the intended purpose of the legislation" (Pearce, D C & Geddes, R S, Statutory Interpretation in Australia, 6th ed, Lexis Nexis, Australia, 2006) The learned authors further note at 4.42… "objects clauses are used as an aid to the construction of words of legislation. Gleeson CJ referred to the legislative declarations of the objects of an Act as giving practical content to abstract terms such as 'reasonable', 'justification' and 'satisfactory' in Russo v Aiello (2003) 215 CLR 643 at 645". Section 15AA of the Acts Interpretation Act 1901 (Cth) provides for a purposive construction of a statute. The phrase "meaningful relationship" in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J, after setting out the definition of "meaningful" and "meaning", said at paragraph 26: What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

Ratio Decidendi

Legal Principle Established

That proposition was not put to the Family Consultant and was not endorsed by her.consideration The facts of this case bring starkly into focus the primary considerations in s60CC(2) of the Family Law Act 1975 (Ch) (“the Act”):(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.(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). X has now been spending supervised time with his father for over three years. He has commenced to develop a relationship with his father but it is likely that, having regard to the severely curtailed time they have spent together, that the relationship will develop further if they continue to spend time together. At this stage, X has never spent a whole day with his father and has never stayed overnight with him. The competing proposals of the parents, including the application of the mother to relocate with X to Melbourne, fall to be considered bearing the primary considerations in mind.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; X has expressed no views.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); It is not in dispute that X’s closest attachments are to his mother and, it is likely, to Mr G with whom he has lived since he was about nine months old. The ICL tendered the supervision reports from B Contact Centre between January and May 2021 and the reports of supervised changeovers between July and September 2021. The reports of the supervisors up to the time of the hearing were tendered in the father’s case. I have not summarised each and every occasion but the examples set out below demonstrate that the father and X, and X’s paternal grandmother and aunt, have been building a close and loving interaction. The father is reported to have listened to advice from the supervisors and adopted their suggestions. On a number of occasions, X did not want to leave and was appropriately managed by the father. The supervisors report a loving and appropriate relationship between X and his father and with his grandmother and aunt. They do not report that X had any difficulty separating from his mother to go to his father but they do note that, on occasions, X was reluctant to leave his father. On 24 July 2021, the report of the supervised changeover notes that X referred to Mr G as “dad” and to the father as “other dad”. The paternal grandmother was present and X hugged his father. When it was time to go, the supervisor asked X how his day was and X said “Good. I was with my Dad and Grandma”.