Kemal and Sukuraman

[2016] FamCA 444

FAMILY COURT OF AUSTRALIA

KEMAL & SUKURAMAN [2016] FamCA 444

FAMILY LAW – CHILDREN – RELOCATION ORDER – Whether relocating to India is in the best interests of the child - Whether the child should spend time with the father – Whether the father is able to care for the child – Whether the parties should have equal shared parental responsibility of the child - Where the mother wishes to relocate to India with the child – Where the child suffers from Autism Spectrum Disorder–Where the mother has support of maternal grandparents in India – Where the mother would relocate without the child.
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
McCall & Clark (2009) FLC93-405

SCVG & KLD (2014) FLC 93-582

APPLICANT: Mr Kemal

RESPONDENT: Ms Sukuraman

INDEPENDENT CHILDREN’S LAWYER: Ms Catherine Bint

FILE NUMBER: BRC 4849 of 2014

DATE DELIVERED: 6 June 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 24 & 25 May 2016

REPRESENTATION

APPLICANT: Self represented

SOLICITOR FOR THE RESPONDENT: Mr Cooper
Cooper Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hamwood

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bint, C M Bint Family Law

Orders

Live with

1. That the child the child born … 2011 (“the child”) live with the mother.

Parental Responsibility

1. That except as otherwise provided for by these Orders, the parties are to have equal shared parental responsibility for the major long term parenting issues of the child including decisions regarding the child’s:

   (a)       Education, both current and future;

   (b)       Religious and cultural upbringings;

   (c)       Health; and

   (d)       Names.

2. That in respect of decisions about major long terms issues with respect to the child having regard to the provisions of paragraph (2) of these Orders and the provisions of s 65DAC(2) Family Law Act 1975 (Cth):

   (a)       Each shall inform the other party about the decision proposed to be made;

   (b)       Each shall consult with the other with the view to reaching terms upon which they may agree; and

   (c)       Each shall make a genuine effort to come to a joint decision with the other party.

‘Spend time with’ in Australia

1. That whilst the child lives in the Commonwealth of Australia then the child spend time with the father as agreed in writing between the parties and failing agreement as follows:

   (a)       By Skype or Facetime each Wednesday at 6.30 pm Brisbane time with the mother to initiate such communication;

   (b)       From 9.00 am to 3.00 pm Saturday and from 9.00 am to 3.00 pm Sunday in each alternate weekend for a period of three months and thereafter from 9.00am Saturday to 3.00pm Sunday each alternate weekend.

2. That for the purposes of paragraph (4) above, changeover shall occur at the Relationships Australia Contact Centre at H Town save that if the Contact Centre is not available, then changeover shall occur at the Food Court at I Town Shopping Centre.

Relocation

1. That the father and mother forthwith do all such things necessary (including appearing in person) in the Court in India to make a joint petition to the Family Law jurisdiction of the District Court of India or the relevant Court in India having jurisdiction with respect to parenting arrangements to have an Order made in the same terms of this Order by consent.

2. That the mother be responsible for the costs associated with the preparation of the petition, Court costs and travel costs associated with the need for either or both the parties to attend India for any hearing.

3. That upon service upon the father and the Independent Children’s Lawyer of such Order having been made, and not before the conclusion of the 2016 school year, the mother be permitted to remove the child from the Commonwealth of Australia and permanently relocate the child’s residence to City J, India.

4. That prior to relocation the mother:

   (a)       Complete training provided by C in respect of assisting her to select a suitable school environment for the child;

   (b)       Provide to C all information regarding any school at which she intends to enrol the child; and

   (c)       Consider any recommendation C may make in respect of school selection for the child.

5. That upon such relocation, the mother do all acts and things necessary to facilitate the child’s ongoing treatment by a speech pathologist, occupational therapist and a behavioural therapist and continue to facilitate such treatment as recommended by those health professionals.

6. That the name of the male child, the child born … 2011 be removed from the Airport Watchlist as and from 10 December 2016.

7. That upon the mother relocating the child’s residence to City J, India the mother be thereafter restrained and an injunction hereby issue restraining the mother from relocating the child’s residence from City J, India other than to Brisbane, Australia without the prior written agreement of the father.

8. That the mother and father each sign all documents and do all things necessary to enable the child to live permanently in India and to visit Australia from time to time.

‘Spend time with’ in India

1. That upon such relocation, the child spend time with the father as agreed in writing between the parties and failing agreement as follows:

   (a)       By Skype or Facetime each Wednesday at 8.30 pm Brisbane time with the mother to initiate such communication;

   (b)       For no more than two weekends in each month in India from 9.00 am Saturday until 5.00 pm Sunday with the father to provide to the mother not less than 7 days’ notice in writing of his intention to exercise such time;

   (c)       During the Indian summer and end of school holiday periods in 2017 and 2018, over a period of two weeks from 9.00 am until 5.00 pm on each day in the first week and for two consecutive nights on two occasions in the second week as nominated by the father from 9.00 am the first day until 5.00 pm the second day with such time to occur in Australia and with the mother to be responsible for the transport arrangements and costs in 2017 and the father to be responsible for the transport arrangements and costs in 2018; and

   (d)       Thereafter during the Indian summer and end of year school holiday periods in each year for a period of 2 weeks with such time to occur in Australia (unless the father notifies the mother in writing no less than 30 days prior to the commencement of the school holiday period that he will be in India) and with the mother to be responsible for the transport arrangements and costs on the first occasion and the father to be responsible for the transport arrangements and costs on the second occasion and to alternate on each occasion thereafter.

2. That all changeovers occur between the father and mother or a person nominated by the mother at a location agreed to in writing by the parties and if no agreement at the mother’s residence.

‘Spend time with’ in the event the father relocates to City J, India

1. In the event the father also relocates to City J, India the child spend time with the father as agreed in writing between the parties and failing agreement as follows:

   (a)       By Skype or Facetime each Wednesday at 6.30 pm with the mother to initiate such communication;

   (b)       From 9.00 am Saturday to 5.00 pm Sunday each alternate weekend; and

   (c)       For one half of school holiday periods.

Specific provisions

1. That the mother and father shall:

   (a)       Keep the other parent informed at all times of their postal address, contact telephone number and email address and of any changes thereto within 48 hours of any change occurring;

   (b)       Keep the other parent informed of the names and addresses of any treating medical or other health practitioners or educational facility who treats the child or upon whom the child attends and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child; and

   (c)       Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.  The Order authorises any treating medical practitioner to release the child’s medical information to the other parent.

2. That this Order irrevocably authorises any person or institution and school, to release all and any information (verbal and in writing) reasonably requested by the other in relation to the child and in particular any diagnosis, progress, treatment and prognosis.

3. That the parties encourage and not undermine the child’s relationship with the other parent and/or the other parent’s family members, partner or friends.

4. That the parties not discuss these proceedings or any issues surrounding the parties’ dispute in the presence of or within hearing of the child or permit any other person to do so.

Miscellaneous

1. All outstanding applications be dismissed and removed from the list of cases awaiting finalisation.

2. That the appointment of the Independent Children’s Lawyer be discharged on 31 December 2016.

3. Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto.  And these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kemal & Sukuraman 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 BRISBANE

FILE NUMBER: BRC 4849  of 2014

Mr Kemal

Applicant

And

Ms Sukuraman

Respondent

REASONS FOR JUDGMENT

1. The parties to this dispute are Mr Kemal (“the father”) and Ms Sukuraman (“the mother”). 

2. The father is seeking a final parenting order for a shared care arrangement for the child, the child, born in 2011 (“the child”) and for that to occur in Australia.

3. The mother is seeking a final parenting order for sole parental responsibility, for the child to live with her in India and for the father to spend time with the child.

4. The child suffers from Autism Spectrum Disorder (“ASD”).

Issues for determination

1. The parties including the Independent Children’s Lawyer identified the following issues as being of particular relevance at this trial:

   a)Nature and extent of family violence perpetrated by the father on the mother, if any, and any risk to the child thereby arising;

   b)Capacity of the father to provide for the child financially and emotionally in Australia;

   c)Capacity of mother to provide for the child financially in Australia and India;

   d)Likelihood of the mother relocating to India without the child;

   e)Impact on the child if the mother were to relocate to India without him;

   f)Capacity of the father to relocate to India;

   g)Practicability of obtaining ‘mirror’ orders in India of any order made in Australia;

   h)Capacity of the mother to promote the relationship between the child and the father;

   i)Safety of the child in India;

   j)Extent of the need for treatment for the child and whether appropriate treatment is available in India.

Background

1. The mother and father married in 2010 and separated on 16 June 2013.  The parties divorced on 10 January 2016.  Their marriage was an arranged one according to Indian cultural practice and consented to by the parties. At the time of marriage, the father had already been living in Australia but the parties were married in India. The father returned to Australia after the marriage, with the mother arriving in Australia on 31 December 2010. 

2. The child suffers from ASD having been diagnosed in March 2014. He presents with ‘significant delays in areas of his development, particularly his communication, adaptive behaviour and social emotional development’.

3. Since separation the child has lived with his mother and commenced spending time with the father in July 2015. He now spends four hours each fortnight with the father.

4. The mother and father each hold permanent residency visas in Australia and remain citizens of India. They are both originally from City J, India and their respective parents and extended families still live in City J although the father has a sister living in Sydney.

5. Their first language is Tamil but they both speak fluent English. They each hold tertiary degrees, which qualify them for employment in Australia and India. They have each been employed in both countries.

6. The father is 33 years of age having been born in 1982.  He is self employed.

7. The mother is 30 years of age having been born in 1985 and works full time as a manager.

8. The mother supports the child with no financial assistance from the father.

9. Since separation she has been assisted in the physical care of the child by her parents who have taken turns in spending time in Australia pursuant to visitor’s visas.

10. On 16 September 2013, a protection order was made against the father for the protection of the mother.  The order was made by consent without admission by the father. The Order has now expired.

11. The maternal grandfather has been living with the mother and child since October 2015.

12. The mother proposes to relocate to City J, India, preferably with the child but she contends that she will relocate even without the child.

13. The father does not accept that the mother will relocate without the child.

14. The father has no family in Brisbane and his parents have only been to Australia on one occasion since the child’s birth and he has not returned to India since 2012. He has a sister in Sydney but she has only been to Brisbane once since the child’s birth.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth)(as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer. (see Goode & Goode (2006) FLC 93-286; SCVG & KLD Error! Hyperlink reference not valid.; Banks & Banks (2015) FLC 93-637) The Court is not required to make findings of fact on every factual dispute raised by the parties (Baghti & Baghti [2015] FamCAFC 71).

2. Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children;

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.

5. Section 60CC then outlines the primary and additional considerations that the court must consider in determining what is in the best interests of the child.

6. Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence, and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

7. Where the presumption does apply, the court is required to consider s65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

8. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

9. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination (Banks & Banks (2015) FLC 93-637).

Father’s case

1. The father relied on the following material:

   a)Amended Initiating Application filed 27 April 2016 as further amended by leave by substituting the orders sought in his case information document filed 19 May 2016 (the father ultimately adopted many of the paragraphs of the Order proposed by the Independent Children’s Lawyer in exhibit 5 while still opposing the relocation of the child);

   b)Affidavit of Mr Kemal filed 27 April 2016; and

   c)Case information document filed 19 May 2016.

2. Essentially the father’s case is that despite what the mother says she will not leave Australia without the child, and the best arrangement for the child would be for him to remain in Australia and live in a shared care arrangement with the child living with him from Sunday to Wednesday each week and the mother for the balance of the time. As an alternative position, in the event the mother did leave Australia, the father proposes that the child should live with him on a full time basis with the assistance of his parents. Indeed, the father deposed that his parents care “will be vital to [the child]”. In addition he proposes that he will start a new family within the “next 18 months in Australia, where in (sic) [the child] will be in a family environment”. The father is not even in a current relationship and there was no evidence from his parents as to their attitudes or capacity to fulfil the role advocated by him. The father puts forward no proposal for time to be spent with the mother in the event the child stays in Australia without his mother although I do not infer from this that he is opposed to time.

3. It is common ground that the father spent virtually no time with the child from separation until 4 July 2015 when his first supervised time occurred. There were two visits prior to this for which the mother negotiated in return for her agreement the payment of a sum of money to her and provision of some of her personal items. The mother otherwise opposed the father spending time with the child. The father commenced these proceedings on 2 June 2014.

4. Between 4 July 2015 and 15 September 2015 the father spent time with the child at the Contact Centre for two hours supervised each fortnight. Since 15 September 2015 the father has spent fortnightly time with the child for four hours away from the Centre and unsupervised. Changeovers continue to occur at the Contact Centre. He sought to extend the time but the mother did not consent.

1. He contends he was the primary carer for the child throughout the relationship until separation. It is common ground that the mother returned to employment when the child was two months of age. She worked three days a week until the child was eight months of age when she commenced full time work and the child commenced attending day care five days each week from 9.00am to 6.00pm. The father certainly was at home with the child from two months to eight months three days per week and I am satisfied that he cared for him on those days when the mother was at work. The child was twenty-two months old when the parties separated.

2. He contends that the mother and her family engineered the separation with false allegations of family violence and that the mother has kept the child from him without justification. It is not in contention that the mother kept the child from the father and even now it is clear she places no great importance on the child having a relationship with his father. She has however complied with the spend time order since 4 July 2015.

3. It was somewhat difficult to understand exactly what the father does by occupation. As counsel for the Independent Children’s Lawyer aptly put it by reference to a quote from Churchill - the father’s evidence on this topic ‘is a riddle wrapped in a mystery inside an enigma’.

4. That said it appears that he runs some sort of marketing business and consults in some way to various other businesses. He contends that he is about to start a new business. Although working 12 to 14 hour days from Tuesday to Sunday each week, he contends that he earns a modest income of $15,000 to $20,000 per annum from these ventures.

5. He owns (outright) an apartment in City J, India which is rented for AU$2,000 per month. His parents collect this rent in cash and send it to him or keep it for their own expenses. He also has an interest in the property in which his parents live in City J. He estimates that if his interests in these properties were realised he would receive between AU$500,000 – $600,000. He has no current plan to do so.  

6. He contends that he has paid child support in the past of $200 per month (although the mother disputes this). His current assessment is nil and he is in arrears in the sum of $1,139. He has entered into a payment plan with the Child Support Agency although acknowledged that he could pay that sum immediately.

7. The father described the child as very happy and although suffering from ASD, he contends that he is able to manage the child and if necessary, would be able to do so, on a full time basis. I note, however, that during his interview in October 2015 with Mr K, the family report writer, the father was most uncertain about whether he would be able to cope with the child overnight let alone on a full time basis. He acknowledged that he found the child challenging when he first took him out and conceded that the mother knows how to deal with him and how he understands things.

8. To be fair, the father has now spent four hours each alternate weekend with the child and the Contact Centre records provide some limited support for the father coping and managing the child. The father has made only a minimal effort to be involved in educating himself about ASD and how best to manage the child’s condition. This may in part be explained by his rejection of the diagnosis until at least August 2015.

9. Unfortunately, the experience the father has gained in caring for the child for four hours a fortnight falls far short of what would be required to be the child’s full time carer. The father contends that he would initially do so with the assistance of his parents and within the next eighteen months he proposes to ‘start a new family’. He is not currently in a relationship and his parents have only met the child once. His optimism about his ability to be the child’s full time carer is misplaced.

10. The father candidly conceded that he could return to live in City J but did not want to do so. He conceded that he could live in the property he jointly owns with his parents and receive the rent from his investment property until he obtained employment. While he was not optimistic about obtaining employment he said he would opt to be self-employed if he ever did return.

Mother’s case

1. The mother relied on the following material:

   a)Response to Initiating Application filed 8 July 2014 as amended by leave by substituting the orders sought in the case summary filed 19 May 2016 (the mother ultimately adopted many of the paragraphs of the Order proposed by the Independent Children’s Lawyer in exhibit 5 and agreed to remain in Australia until the end of the school year);

   b)Affidavit of Ms Sukuraman filed 28 April 2016;

   c)Affidavit of Mr L Sukuraman filed 28 April 2016;

   d)Affidavit of Dr M filed 3 May 2016;

   e)Affidavit of Dr N filed 28 October 2014; and

   f)Case Summary filed 19 May 2016.

2. Essentially the mother’s case is that she has been the primary carer for the child since his birth and has provided all the necessary support and assistance to her son by relying upon her parents taking it in turns coming to Australia. She contends that it is unrealistic to expect that assistance to continue into the future because of her parent’s age and failing health. She contends that she would be unable to afford to provide all that the child requires without her parent’s assistance as she would have to give up full time work. The mother proposes to return to City J, India to live with her parents in a spacious three bedroom apartment.  She proposes not to work for twelve months but thereafter obtain employment and will have the assistance of domestic help in her parent’s home and from extended family in providing additional care for the child. She has made enquiries about services and treatment available for the child and about appropriate schools which provide ongoing support. She has a nephew in City J with ASD and suggests that the family have some familiarity in dealing with this condition.

3. Ultimately, her proposal for the child to spend time with the father largely accorded with the time proposed by the Independent Children’s Lawyer as amended during submissions. In summary that involved an extension of time for the rest of this year (although not overnight) and upon her relocation for a period of up to two weeks in Australia twice per year and for two weekends in each month in India should the father be in India and communication via Skype or facetime each week.

4. The mother is adamant that she will return to City J even without the child. If her application to relocate with the child is unsuccessful she seeks an order that she spend time with the child for up to a month at a time in Australia and once he attains ten years of age for all the mid-year and end of year holidays in India.  

5. The mother contends that she was, in effect, tricked into the marriage by the father, in that he had significantly misrepresented his financial circumstances. Upon arrival in Australia the mother states that she was shocked to discover that the father lived in shared accommodation. She contends that she did not wish to upset her parents so said nothing of her immense disappointment on their choice of husband.  She contends that she nevertheless did her best to make the marriage work.

6. This was the mother’s first relationship and she moved to a foreign country with a virtual stranger and thereby lost the support of her family, (with whom she lived prior to marriage), extended family, friends and culture.

7. She contended that she was subjected to family violence including daily physical assault during the relationship and contends that by the time of separation she was traumatised as a result of the conduct of the father.

8. She supports the child financially with no assistance from the father. She pays $185 per therapy session for the child which occur fortnightly for an hour and a half and $800 per fortnight for him to attend at the C Centre which is a highly specialised centre providing programs for children with ASD.  He commenced at the Centre in January 2015 and attends each weekday for five hours. The child is cared for outside these times by his mother, his maternal grandfather or his maternal grandmother and for four hours per fortnight by the father. The mother receives some taxpayer assistance in the form of family tax benefit A and B and a carer’s payment.

9. The mother’s father, Mr L Sukuraman has been living with the mother and child since September 2015.  He and the child have a close relationship.

10. The child attends autism therapy sessions and the techniques taught at these sessions are implemented in the mother’s home. The mother contends that despite the child suffering from ASD he has made significant improvements to his general wellbeing as a result of this ongoing therapy.

Evidence from Dr M

1. Dr M, is a paediatrician and specialist in community child health having completed a fellowship in 1999.  She also completed a clinical fellowship in child development in 2000 and a dissertation in Diagnosis of Autism Spectrum Disorder in 2003/04.  Currently she works as a paediatrician at O Hospital in Brisbane and also runs a private practice in child development and behaviour. 

2. In April 2014, Dr M, diagnosed the child as suffering from ASD and opined that he would require speech therapy, occupational therapy, physiotherapy and enrolment in specialised education.

3. Her updated report confirms her initial diagnosis and her initial assessment of his future needs, although some improvement was noted.

4. In her oral evidence Dr M stated that the child has good motor skills equivalent to any other child of his age but that his social skills are ‘clearly impaired as is his communication’. In relation to his speech she stated that he was about two years behind his chronological age.

5. She opined that he did not have any intellectual impairment but would require life long assistance and support and particularly at the time of entering formal schooling.

6. She opined that the child had the capacity to feel emotion and show affection and if he did so this was likely to be as a result of his emotion rather than it being merely a learned response. When asked what the likely impact on the child would be if the mother were to move to India without him she opined that to lose his primary attachment would be a ‘huge thing and would place him at a significant disadvantage’.

7. She considered that the child could make the adjustment required if he moved to City J with his mother and would have the capacity to grasp another language and opined that generally that capacity is greater in younger children.

Evidence from Ms P

1. Ms P gave oral evidence only. She is the child’s teacher at C Centre. She sees him for twenty-five hours per week being five hours per day Monday to Friday. She has been working on an individual program with the child and he has progressed in language from the capacity of a ten month old when he started to the capacity of a two year four month old currently. He can now request to go to the toilet and is no longer in nappies. He is making progress in feeding himself. He needs visual prompts to assist him with transition and once he understands what is going to happen he responds reasonably well. She concurred that he would need lifelong support.

Family violence

1. During submissions, the mother did not press for a finding in relation to past family violence and conceded that there was no future risk of family violence or exposure thereto arising from the child spending time with his father. These were sensible concessions in the circumstances and I find that the child is not at risk of family violence in his father’s care.

2. Before leaving this topic though, I note the following:

   a)In relation to the allegations of  past family violence the mother stated that her parents were a witness to some of the behaviour of the father including  his slamming the mother against walls and observing blood running from an injury sustained by the mother as a result of the father’s conduct. Despite the mother’s father giving evidence on behalf of the mother by affidavit and orally, he gave no evidence to corroborate those allegations.  The mother’s mother was not a witness although having recovered from an earlier serious illness;

   b)The mother admitted that she had lied on one occasion when she alleged to police that she had been assaulted by the father when she had not;

   c)Despite alleging that the father subjected her to daily physical and verbal abuse and describing in her affidavit a dreadfully unhappy existence throughout her marriage, exhibit 2 casts a very different picture indeed. The mother wrote to the father on the occasion of their second wedding anniversary, expressing her deep love, affection and happiness with the father;

   d)Although exhibit 1 included photographs of the mother with some redness on her hand and upper chest there was no medical evidence corroborating that the marks were consistent with any assault allegedly perpetrated upon her by the father;

   e)The father denied absolutely the allegations of family violence made against him;

   f)The protection order was made by consent without admission; and

   g)Mr K opined in his report dated 11 December 2014:

   101. However, following separation, there have been no further instances between the parents, despite at least two informal visits that have already been arranged for the child with his father. I am of the view therefore that separate to what findings the Court may make about previous domestic violence, if the parents can conduct future arrangements for the child at arm’s length, the risk for violence is low.

3. Ultimately family violence was not an issue upon which a finding was sought in these proceedings and I am unable to draw any relevant inference as to the existence of family violence from the making of the protection order.

Relationships between the child and the people in his life

1. Irrespective of the primary care arrangements during the marriage, the mother has been his primary carer since separation in 2013. Prior to that she was at least a significant carer for the child. Mr K opined that ‘[The child] has a primary bond with his mother.’  and ‘the attachment to his mother is quite secure.’ The mother has dealt with all of the challenges arising as a result of the child’s diagnosis of ASD. She has sought out appropriate professional help for the child and educated herself about his condition and how best to support her son. She has an affectionate relationship with the child and has appropriately provided for his needs. The child appears to have a strong attachment to his mother who has developed an effective means of communication with him both verbal and non-verbal.

2. While there has been some development in the relationship between the father and the child, the relationship could not be found to be strong, given the father’s limited opportunity to spend time with the child to date. The child demonstrates affection to the father which is reciprocated. Unsurprisingly, the father does not have any recent experience in providing for the child’s daily needs or routines. It would appear for example that he has not bathed the child since separation and was not confident to do so at least as at 21 November 2015.

3. The child has spent significant time with his maternal grandparents when they have lived with him for extended periods after separation. His maternal grandfather has lived with him since October 2015. If he were to move to City J he would have the opportunity of continuing that relationship.

4. The child does not know his paternal grandparents as they have only met him once.

5. I am satisfied that the child would benefit from having a meaningful relationship with each of his parents. A move by the mother without the child is likely to have a significant detrimental impact on the child as she is his primary source of attachment. The father conceded that such an outcome would “definitely have a major impact on [the child]”.

6. As noted by Mr K:

   40. … [the child] has significant special needs and his attachment to his mother has been a means by which those needs have been assessed and addressed. His bond with his father is undeveloped due to the lack of time he has had with him to date.

   41. Given his restricted time with his father to date, and the nature of his condition, it is not possible to speculate whether the father can assume satisfactory care of the child over the long term. …

   42. It is my view that the effect upon [the child] of separation from his mother would be profound. … the effect upon the child’s progress to date would be significant, even without any consideration of the capacity of his father to replace that role. 

7. A move to City J without the father may well result in a diminution of the quality of the relationship between the child and his father but what the Act aspires to promote in a prospective sense is a ‘meaningful’ as opposed to an ‘optimal’ relationship. (see McCall & Clark (2009) FLC 93-405; Godfrey &Sanders[2007] FamCA 102)  The extent of either relationship will in part be dictated by the child’s development given his condition.

8. I am satisfied that even with a move to City J, the child will have the opportunity to have a meaningful relationship with his father by means of a ‘spend time with’ and communication order. I am satisfied that the father has the means and the motivation to visit his son in City J from time to time and the capacity to relocate himself to City J if he so chose. He has access to the rent from the property he owns in City J and owns property in City J that he estimates is worth up to AUD$600,000.

Will the mother relocate without the child?

1. I have no difficulty accepting that despite the mother being a loving and caring mother to the child she would return to City J without him. She is single minded about her return to City J.  As Mr K opined her stated determination has to be seen in the context of how she perceives the circumstances of her marriage, her culture and her need to be away from the father. In his view she is putting ‘how she feels if she is separated from the child to one side, but she means what she says at this time’.

2. In relation to the context of the mother’s stated intention I have no difficulty accepting that the father misrepresented his financial position and that the marriage was not a happy one for her for much of the time. I accept that the mother found the transition to life in Australia difficult to say the least.

3. The mother has already demonstrated her single mindedness when the child’s interests conflicted with something she wanted to achieve, when she agreed to the father spending time with the child on two occasions after separation in order to obtain money and possessions from the father. This may also of course demonstrate the disingenuous nature of the mother’s then stated belief that the child was at risk from the father.

4. The father points to two matters that he submits would persuade me that despite what the mother says she will not go back to City J without the child. The first is that in December 2014 the mother told Mr K that she would return to City J without the child even if the father was granted supervised time but she did not. The second relates to her change of heart in relation to his spending time with the child, initially stating no time and now proposing overnight and holiday time. 

5. The mother explained that her reason for not relocating before now related to her intention to wait until these proceedings had been finalised. I accept that. I also accept that although she remains less than enthusiastic about the father’s involvement in the child’s life her resolve has weakened over time such that she has now agreed to extend the father’s time by way of interim variation to the existing order. She has also agreed to remain in Australia until the end of the school year which will enable the child to spend more time with his father.

The mother’s capacity to promote the father/son relationship

1. This is perhaps the most difficult issue in these proceedings. But for the child’s condition it may well have been that the mother’s relocation with the child would not have succeeded. It is important that there is an order in place that binds the mother in India. The parties agree that it is possible to achieve that and the order will make provision for that to occur. Each parent has made their own enquiries on this issue and exhibit 4 lends some support for that practical outcome.

2. At this point the mother places minimal value on the child’s relationship with his father. She failed to facilitate time prior to court order and subsequent thereto she refused to increase the time. She refused to accept the gifts the father purchased for the child in July 2015. Her oral evidence conveyed little cause for optimism that she would voluntarily facilitate time. As already noted there is some conduct that affords a degree optimism that her attitude might change in that she ultimately proposed to remain in Australia until the end of the school year rather than press to relocate with the child immediately. That may, of course, have more to do with meeting the child’s needs to complete his year at C but an obvious consequence is that the child will continue to be able to see his father. The mother also consented to an increase in the time on an interim basis and adopted the Independent Children’s Lawyer proposal for equal shared parental responsibility. Accordingly, while I have some reservations, I am ultimately satisfied that the child will be able to maintain a meaningful relationship with his father even with a relocation to India.

Father’s capacity to care for the child – full time/equal/substantial and significant time

1. The father has no recent experience at attending to the child’s daily needs. He was a baby when the parties separated. His needs are significantly different to those at the date of separation. The child’s needs are significant and his mother is adept at meeting those needs.

2. Even on the father’s own case he would be heavily reliant on his parents (as is the mother) but there is no evidence that his parents would be willing or able to fulfil the ‘vital role’ the father sees for them. His proposal that he will have a new family within eighteen months is of no assistance in my determination. 

3. Given the father’s lack of experience and the child’s special needs I am not persuaded that the father has the capacity to care for the child on either a full time basis in the event the mother moved without the child, nor on an equal time arrangement nor for substantial and significant time. I am not persuaded that such scenarios would be in the child’s best interests. I note the father’s concession to Mr K when discussing the father’s proposal for shared care:

   17. As to his proposal, [Mr Kemal] said that ‘I have to be very practical’. Whilst he initially had said shared time because he thought it was fair, he now says ‘I don’t think in his condition it is going to be in his best interests, his mother knows how to deal with him and how he understands things’, [Mr Kemal] conceding that it was ‘challenging when I first took him out but then he understands’. He thought that he might become better with more time unsupervised with [the child].

4. The father was also candid with Mr K about his ability to provide for the child’s needs on an overnight basis:

   18.…

   As for overnights, he said ‘I am not really sure how he would cope, what I have wanted is to progress in the future and to understand how he behaves and thinks and see if his mum can communicate with me.’

   (although, since the family report interviews in October 2015, the father has spent unsupervised fortnightly time for four hours and his capacity to manage the child has no doubt improved.)

5. Both parties and the Independent Children’s Lawyer propose a move to overnight time although the mother does not propose for overnight to occur this year. I am of the view that there should be a move to overnight time and that should occur before the child relocates to India.  

6. Further, the father has historically earned a modest income from his many business activities in Australia and has not contributed to the significant cost of care for the child. I cannot be satisfied that he has the financial capacity to provide for the child’s significant care and therapy needs.

7. As I am satisfied that the mother will relocate without the child a shared care arrangement would not be reasonably practicable, in any event.

Life in India for the child

1. A move to India will obviously involve many changes for the child but he will have the support of his mother and maternal grandparents with whom he has a close relationship. The maternal grandfather gave evidence that he had the capacity and intention to provide financial support to his daughter and grandson should they relocate to City J. The mother will be available full time for at least the first year to assist him with the transition and given her history of providing for all of his needs, I am confident she has the personal and financial capacity to continue to meet his needs. Importantly I am satisfied that she will seek out and obtain appropriate therapy and support for the child. While the detail of what services and support might be available in India was not significant I am satisfied with the evidence to the extent that there are similar services and supports available but more importantly I am satisfied that the mother will continue to ensure that the child receives the best possible care.

2. The child will be living in different surroundings but with people he knows well. He may be exposed to a different language but he has the capacity according to Dr M to develop a second language if needed. He will be exposed to his Indian culture to a greater extent but as both parents are Indian he will have the opportunity to experience that culture whether living in Australia or India.

3. He will be able to see his father weekly via electronic means which, while far inferior to face to face time, will at least afford the child the opportunity for some interaction with his father. In addition, he will see his father in Australia when the child travels to Australia and in India when his father travels to India. Any order I propose to make will ensure that the child has that opportunity on a regular basis. The father is hoping to earn a greater income with the establishment of his new business and this may further enhance his prospects for travel to India. The father also has the capacity to relocate to India and during his submissions he left this open as a real possibility.

4. An order has already been made for a passport to be obtained for the child.

5. There was some suggestion at the commencement of the trial that the child’s safety in India was a relevant issue however no evidence was presented on that issue.

Parental responsibility

1. Although the father did not propose an order for parental responsibility in his amended Application he ultimately adopted the proposed order for equal shared parental responsibility sought by the Independent Children’s Lawyer and also adopted by the mother.

2. I take it from that ‘united front’ that the parties accept that such an order is in the best interests of the child.

3. Although the parents will be living in different countries the responsibility to make joint decisions about major long term issues is one that can be undertaken by email or other electronic means. The fact of their living in different countries is perhaps a strong reason on its own for there to be an order for equal shared parental responsibility.

4. I endorse the view that in the circumstances of this case it is in the best interests of the child for his parents to have equal shared parental responsibility.

Conclusion

1. I have come to the conclusion that it would be in the child’s best interests for him to continue to live primarily in his mother’s care and for the mother to be at liberty to relocate to India with the child. The order I propose to make will ensure that the child has the continuing opportunity to have a meaningful relationship with both parents and for each of them to have a significant involvement in his life.  

Miscellaneous - Motor vehicle

1. There was no application by the mother for any order relating to a motor vehicle or loan in the Response filed 8 July 2014 or the amendment thereto sought at the commencement of the trial. I am uncertain whether that was an oversight given that an Amended Response (not ultimately relied upon) did seek a declaration in relation to the ownership of a car in the father’s possession. However, there was no corroboration provided for the mother’s assertion that she obtained a loan in her name for the purchase of a car retained by the father at separation nor that the loan (if there was one) was used for the purchase of the car. There is no evidence that the car is still in the possession of the father. I am unable to make any relevant findings in relation thereto.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 6 June 2016.

Associate:

Date:  6 June 2016