Kumar and Krishnam

[2016] FCCA 447

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR & KRISHNAM [2016] FCCA 447

Catchwords:
FAMILY LAW – Interim parenting – father wants young child to live with paternal grandmother in India for 6 months – mother has not seen her child for 6 months – reasons for this are disputed.

Applicant: MS KUMAR

Respondent: MR KRISHNAM

File Number: MLC 8004 of 2015

Judgment of: Judge Harland

Hearing date: 23 February 2016

Date of Last Submission: 23 February 2016

Delivered at: Melbourne

Delivered on: 23 February 2016

REPRESENTATION

The Applicant: Appeared in person

The Respondent: Appeared in person

ORDERS

1. The proceeding is adjourned for directions on 26 July 2016 at 9.45am.

2. The child X born (omitted) 2014 (‘X’) remains in Australia.

3. The mother spend time with X in Sydney between the hours of 9.00am and 12.00pm on the following dates:

   (a)Friday, 26 February 2016;

   (b)Tuesday, 1 March 2016; and

   (c)Friday, 4 March 2016.

4. On Tuesday, 8 March 2016 the mother will collect X from the father’s residence and return with him to Melbourne, and thereafter the child will live with the mother in Melbourne.

5. The father will give the mother notice of his intention to travel to Melbourne and he will spend time with X for 8 hours on the days that he is in Melbourne.

6. Each party is to inform the other of their respective residential addresses and where they will spend time with X.

7. The mother and the father are to have equal shared parental responsibility for X.

8. Pursuant to section 68L(2) of the Family Law Act1975 (Cth), X be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

   (a)forthwith upon appointment by Victoria Legal Aid or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the Independent Children’s Lawyer copies of all relevant documents relied upon;

   (c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

   (d)the Independent Children’s Lawyer prepare a minute of the orders he or she will recommend be made as final orders.

IT IS NOTED that publication of this judgment under the pseudonym Kumar & Krishnam is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8004 of 2015

MS KUMAR

Applicant

And

MR KRISHNAM

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for interim parenting orders.  The mother commenced the proceedings on 25 August 2015 seeking an urgent watch list order as she was concerned that the father and his family were going to take the child to India and as India is not a member of the Hague Convention against Civil Aspects of Child Abduction, she was concerned that she would not see her child again.  That order was made on 26 August 2015.  The mother then filed an application in a case on 31 August 2015 seeking that the child’s name be removed from the watch list, however on the return date, asked that that application be dismissed and said that she had been under pressure from the father’s family to remove that restriction.

3. That application was returnable on 5 October 2015.  I dismissed the application and I directed the mother to file and serve an amended application and further affidavit material within 21 days setting out the parenting orders that she sought.  On 5 November 2015, when the matter was next in Court she had not done that.  She had not complied with that order and therefore the matter had to be adjourned until

   
   

   4 February 2016.  On that occasion, the father attended Court but had not yet filed material and he raised the issue of seeking that the child live in India with his mother, the paternal grandmother, for six months. 

4. I directed that the father file material which he has since done and the matter was listed before me today.  As will be apparent, there has been some delays in this matter, which has been due to the mother not filing appropriate material within time.  Both parties are self-represented and I acknowledge that it is difficult for lay people to work out what material is required. 

5. I directed that the parties attend upon a family consultant today for a section 11F conference because I  had concerns based on the material I have read and remained concerned that the parents appear to have a limited understanding of their child’s developmental needs and limited insight into the impact of their competing proposals.  None of which, I think, serve this child in the best way he could be.  This child is very young; he is not yet two years old. X was born on (omitted) 2014. 

6. There is much that is in dispute in this matter and it is not possible for me to determine contested issues of fact at an interim hearing.  The father says that the mother essentially abandoned the child, and left the child in his care and says that even before they separated that she did not show much interest in being his carer.  The mother denies this and says that she was subjected to verbal violence and a toxic environment with the father and his extended family.  She says that she was prevented from spending time with the child since they separated.  Though it has to be said the mother did move to Melbourne after separation, whereas the father and child remain in Sydney. 

7. It is the father’s case that his mother, the paternal grandmother, is in fact the primary carer and that his mother is subjected to visa restrictions and needs to leave Australia for a six month period.  He proposes that the child live in India with his mother for six months.  The mother opposes that and says that she is concerned that the child will not be returned.

8. The family consultant identified the very issues that concerned me.  She raised the concern about the child going to India for six months and any prospect of renewing the child’s relationship with his mother being delayed for six months, and the impact that that would have on X given his age and stage of development.

9. She indicated that there was no history of mental health, drug or alcohol use or any child protection concerns with respect to either party and that the primary issue was the risk of overseas abduction and the issue of X’s attachments. She said that certainly the paternal grandmother has been a significant source of support to this child and would be a significant attachment figure.  She said that there are other members living in the household including the father and she felt that the father was minimising his son’s attachment to him.

10. The mother described pressures from the extended family.  The mother had been seeking that the child be returned to her care immediately, which raises concerns about her insight into the child’s developmental needs.  The family consultant said that once this was explained to the mother, she appreciated the need to develop the relationship more slowly.  She was proposing that she fly to Sydney once or twice a week to re-establish that relationship.  That proposal seems somewhat unrealistic given the costs and travel involved.  I have no doubt that she is sincere about that however, I query the practicality of that continuing on a long term basis.

11. The family consultant expressed concern that if the child was allowed to go to India, then the absence of the mother from his life would be solidified and that may be very difficult to re-establish and certainly she recommended against there being that delay in establishing the relationship and conveyed that the mother was willing to travel to Sydney weekly.  If that was the case, she was recommending that she have three-hour weekly periods to be increased to a day after a few weeks.

12. I have indicated during the hearing this afternoon that I am concerned that it is not in this child’s best interests for him to travel to India with the paternal grandmother for six months as it means there is no prospect of re-establishing his relationship with his mother for another six months, which is a vital development period given that X is not yet two years old. That would also involve taking him away from familiar environments and from the father’s household.  There is also a real concern about whether or not X would be returned to Australia because it is clear that the father’s family have very strong connections there and if the father is content to have X live in India for six months not seeing either parent, then the real possibility of this child not returning cannot be discounted.  Given that India is not a member of the Hague Convention, if that becomes the case, then there is no readily available mechanism to secure his return and that is a significant factor.

13. What also strikes me as somewhat concerning is the father’s position.  He now tells me that if his mother is not allowed to take the child to India, then he will place the child in the mother’s primary care and visit the child on his days off since he is a shift worker.  That indicates to me that none of what the family consultant had to say has really sunk in.  Neither situation is ideal and X is likely to suffer some confusion, distress and insecurity, but this child is entitled to have a meaningful relationship with both parents. 

14. There are no risk issues raised by either parent except for the issue of possible overseas abduction.  The fact that the father is now saying he will relinquish the child’s care if his mother is not allowed to take him to India, does not change my view that it would not be in X’s interests to have the child travel to India with his paternal grandmother.  The preferred outcome would be this child remaining in Sydney with his father and spending significant time with the mother. Given that the father is saying this is not possible, then it leaves me with no option but for the child to be placed in the mother’s care.

15. That is not an optimal outcome because the mother has not seen this child for some six months. Given that the father’s mother does not leave Australia for another couple of weeks, it would be important that before there be a change in residence that the mother spend time with the child in Sydney.  To that end and bearing in mind the mother has said that she can afford to go to Sydney twice a week, I am going to make the orders set out above.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  3 March 2016