LANKA & DEV
[2020] FamCA 910
•30 October 2020
FAMILY COURT OF AUSTRALIA
| LANKA & DEV | [2020] FamCA 910 |
| FAMILY LAW – PARENTING – Application by mother for child to relocate with her to India in circumstances where child was removed from India in December 2017 without her knowledge or consent – father asserts there were circumstances justifying the removal of the child from India to Australia – whether the maternal grandparents facilitated and assisted the father to remove the child – child has remained living in Australia with her father since December 2017 and is well settled – no face to face time with the mother between December 2017 and September 2019 – periods of no contact between child and mother – relationship between child and a half sibling – mother alleges lack of consent of the half sibling’s father restricted her travel to Australia – mother did not adduce expert immigration evidence as to her capacity to remain in Australia –should the child be permitted to travel to India in the future including an examination of the mother’s capacity to promote a relationship between the father and the child – impact of COVID-19 on future travel between Australia and India – parental responsibility where parents live in different countries and limited communication between them |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA Evidence Act 1995 (Cth) ss.140, 144 |
| Jones v Dunkel (1959) 101 CLR 298 Bell & Nahos [2016] FamCAFC 244 Taylor & Barker [2007] FamCA 1246 Cowley & Mendoza [2010] FamCA 597 Heath & Hemming (No.2) [2011] FamCA 749 McCall & Clark [2009] FamCAFC 92 Mazorski & Albright [2007] FamCA 520 Line & Line [1996] FamCA 145 Miles & Miles [2011] FamCAFC 72 |
| APPLICANT: | Mr Lanka |
| RESPONDENT: | Ms Dev |
| FILE NUMBER: | MLC | 9626 | of | 2019 |
| DATE DELIVERED: | 30 October 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Williams J |
| HEARING DATE: | 6 – 10 July 2020 |
| WRITTEN SUBMISSIONS: | Respondent – 31 July 2020 Applicant – 28 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Swart |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| COUNSEL FOR THE RESPONDENT: | Ms Byrnes |
| SOLICITOR FOR THE RESPONDENT: | Vic Rajah Family Lawyers |
Orders
The mother be and is hereby restrained by herself, her servants and/or agents from removing or attempting to remove or causing or permitting the removal of the child, Y Lanka born on … 2012 (“the child”), from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the child’s name on the Family Law Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
The father have sole parental responsibility for Y Lanka (“the child”), born on … 2012 with the father to notify the mother via email of any such decisions within 7 days.
The child live with the father in Australia.
The child communicate with the mother via FaceTime or other electronic communication each Tuesday and Sunday at a time to be agreed and in the absence of agreement at 6:30 pm for a period of not more than 30 minutes on each occasion.
The parties are each hereby restrained by injunction from the following conduct or permitting the child to remain in the presence or hearing of any other person engaging in the following:
5.1Discussing these proceedings in the presence or hearing of the child other than to explain to her the arrangements put in place by these orders;
5.2Questioning the child about any parenting or living arrangements in the other parent’s care;
5.3Using the child to communicate messages between the parties;
5.4Denigrating the other parent (or other members of the extended family) in the presence or hearing of the child.
The parties to communicate regarding the child via Our Family Wizard at their own expense.
Whilst the mother remains in Australia
7.1During school term as follows:
7.1.1Commencing in week one of each term and each alternate week thereafter, from the conclusion of school or 3:30pm on Thursday (or 12:00pm if a non-school day) until the commencement of school on Monday (or 5.30 pm if a non-school day); and
7.1.2Each week from the conclusion of school or 3.30pm on Wednesday (or 12:00pm if a non-school day) until the commencement of school on Thursday (or 12:00pm if a non-school day).
7.2During school holidays as follows:
7.2.1 During school term holidays, for one half of the holiday period for a block of 7 nights at times to be agreed and failing agreement for the first week, with any remaining time to be shared equally;
7.2.2 During the long summer holidays, for one half of the holiday period at times to be agreed, and failing agreement on an alternating weekly basis, with the mother’s time to commence in the first week of the school holidays and each alternate week thereafter;
7.3On the child’s birthday if the child is not otherwise spending time with the mother on that day, for a period of three hours on a school day and from 9:00am to 2:00pm if a non-school day;
7.4For Religious festival 1 from after school Friday to 9:00am on Sunday;
7.5For Religious festival 2 from after school Friday to before school on Monday;
7.6For Religious festival 3 from 9:00am on the first day until 12:00pm the following day;
7.7From 5:00 pm the Saturday evening prior to Mother’s Day until 8:30 am on the Monday morning after Mother’s Day;
7.8During all school term holidays for a period of four nights being comprised of three consecutive nights.
The mother’s time with the child be suspended on the following occasions:
8.1For Easter, from 5pm on Maundy Thursday until 5pm on Easter Sunday;
8.2For Christmas, from 10am on 24 December until 5pm on Boxing Day;
8.3On the child’s birthday if the child is not otherwise spending time with the father on that day, for a period of three hours if a school day;
8.4From 5:00 pm the Saturday evening prior to Father’s Day until 8:30 am on the Monday morning after Father’s Day;
8.5At other times as agreed between the parties in writing.
For the purposes of changeover pursuant to these orders, where changeover is not otherwise at school, changeover will take place at the mother’s residence.
If the mother lives outside of Australia, the child spend time with the mother in Australia as follows:
10.1On at least three occasions each year for at least seven days on each occasion), preferably during term breaks;
10.2The child’s time with the mother pursuant to paragraph 10.1 be subject to the following:
10.2.1The mother give the father not less than 28 days’ notice of her travel, including the intended during of the stay, and if intending to travel within Australia, details of the intended travel;
10.2.2If the mother’s travel to Australia occurs within school term, the mother ensure that the child attend all school and extra-curricular activities during her care;
10.2.3The father to book and pay for accommodation for the mother in the local vicinity. In the event that the mother intends to travel with Y within Australia, she will be responsible for accommodation costs.
Notice and authorities
Each party:
11.1Shall keep the other advised at all times of their residential address, mobile telephone number (capable of accepting SMS), and emergency contact number, and provide the other party with any new information within 24 hours of any change of residential address, mobile telephone number and/or emergency contact number;
11.2Notify the other as soon as is reasonably practical in the event Y becomes seriously ill or sustains a serious injury, requiring medical attention at a hospital whilst in that party’s care and keep the other advised of the details of any private health insurance cover for Y;
11.3Provide the other party with details of any injury or illness suffered by Y requiring medical treatment, and the name(s) of the treating medical practitioner(s) and authorise the other party to attend any medical appointment(s) and otherwise liaise with the treating medical practitioner(s);
11.4Advise the other party of any medication which is prescribed for Y;
11.5Follow all reasonable directions and recommendations of any treating medical practitioners, with respect to the medical care of Y, including prescribed medications, unless the parties both agree not to follow such directions and recommendations;
11.6Authorise, if not already authorised, any school attended by Y to:
11.6.1provide the other party with copies of all notices, newsletters, reports, photographs and other information normally given to parents in relation to Y; and
11.6.2communicate with the other party in relation to the Y’s progress.
Each party be at liberty to provide a sealed copy of these parenting orders to Y’s school.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lanka & Dev has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9626 of 2019
| Mr Lanka |
Applicant
And
| Ms Dev |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the father and the respondent is the mother of the child Y Lanka born … 2012, aged 8 years. Y is a dual citizen of Australia and the United Kingdom and an overseas citizen of India.
Issues in Dispute
The following issues were in dispute in the proceedings:
i)Parental responsibility for Y;
ii)Whether Y should remain living in Australia with her father or live with her mother in India;
iii)If Y lives in Australia, the degree of time/communication she has with her mother when the following occurs:
(a)whilst her mother continues to reside in Australia; and
(b)if her mother returns to India.
iv)If Y returns to India with her mother, the degree of time/communication she has with her father;
v)If Y remains in Australia, whether she is permitted to travel to India to spend time with her mother.
Synopsis
I have determined that:
i)the father should have sole parental responsibility for Y, subject to notification to the mother of any such decisions;
ii)Y should remain living with her father in Australia;
iii)Y should spend time with her mother as follows:
(a)if her mother remains living in Australia, five nights per fortnight, special occasions and one half of all school holidays;
(b)if her mother returns to India, on at least three occasions per annum in Australia;
iv)Y should not be permitted to travel to India.
The reasons for my determination follow.
Background
The father is aged 43 years and is employed as a sales manager. He is a dual citizen of Australia and the United Kingdom. The mother is aged 45 years and is engaged in home duties in Australia. In India, she is a qualified professional. She is an Indian citizen and resides in Australia pursuant to a DFAT visitor visa.
The parties met in the United Kingdom in June 2007, commenced cohabitation in the United Kingdom in June 2008 and married in 2009 in India. Y was born in the United Kingdom on … 2012. She is a dual Australian and British citizen and has rights to reside in India as an overseas citizen.
In November 2014, the mother commenced a relationship with Mr B, the father of Z, who lives in the United Kingdom.
In December 2014, the father and Y travelled to Australia for 2 months with the mother’s consent.
In May 2015, the mother and Y travelled to Bali and India, with the father’s consent.
The parents separated under one roof in the United Kingdom in June 2015 prior to moving into separate accommodation in the United Kingdom in December 2015.
Subsequent to separation, the father and Y moved to India in January 2016 and the mother joined them in India in February 2016. In April 2016, the father moved to Australia as he was unable to secure suitable work in India and had exhausted his savings.
In late 2016, the mother gave birth in India to a half sibling to Y, Z.
Between April 2016 and December 2016, Y lived with her mother and after Z’s birth, with her half sibling in India, prior to travelling to Australia in December 2016.
Between December 2016 and May 2017, Y lived in Australia with her father, prior to returning to live with her mother in India in May 2017. The mother asserts that she consented for Y to travel for three weeks but then agreed to extend the travel to three months. However the father remained in Australia with Y for five months.
From May 2017 until December 2017, Y remained living in India with her mother and half sibling.
In late December 2017, the father travelled to India and returned to Australia with Y. It is agreed between the parties that Y travelled to Australia with her father without her mother’s knowledge or consent. It is disputed whether the maternal grandparents assisted the father to depart India with Y.
Y has remained living in Australia with her father since December 2017 and has had various degrees of communication with her mother.
On 1 January 2018, the mother discovered that Y had travelled to Australia with the father. She asserts she was unable to travel to Australia at that time as she was nursing Z and did not have the consent of Z’s father, for the child to travel to Australia.
In March 2018, the maternal grandfather travelled to Australia to visit Y.
Between September 2018 and March 2019, the mother did not communicate with Y, although the parties disagree as to the reasons why.
In May 2019, the maternal grandfather and his wife visited Australia to spend time with Y.
In August 2019, the father issued these proceedings.
The mother, with her father and his wife, travelled to Australia in September 2019. During that time the mother was served with court documents. The mother returned to India in late September 2019.
The mother returned to Australia between 24 and 30 October 2019 to spend time with Y.
On 26 November 2019, the mother and Z returned to Australia where they currently remain.
Relevant procedural history
The father’s Application was filed in this court on 26 August 2019.
On 9 December 2019, the mother filed a Response.
On 13 December 2019, Orders were made by consent providing for Y to spend time with her mother including overnight each Thursday and Sunday.
On 2 April 2020, further interim consent orders were made providing for Y to spend time with the mother in week one from Friday to Sunday and in week two overnight Wednesday, together with school holiday time and special occasions. The parties also agreed to orders providing for psychiatric assessments by Dr C.
On 1 June 2020, the parties engaged a joint expert in India to provide a summary of the Indian family law system, which is annexed to an affidavit of Ms D filed on 15 June 2020.
On … 2020, a divorce order was granted.
The final hearing commenced on 6 July 2020.
The proposals of the parties
The father’s proposal
The orders which the father seeks from the Court are set out at schedule A of his Case Outline filed 29 June 2020. They are as follows:
1.The mother be and is hereby restrained by herself, her servants and/or agents from removing or attempting to remove or causing or permitting the removal of the child, Y Lanka born on … 2012 (“the child”), from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the child’s name on the Family Law Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
2.The father have sole parental responsibility for Y Lanka (“the child”), born on … 2012.
3.The child live with the father in Australia.
4.The child communicate with the mother via FaceTime or other electronic communication each Tuesday and alternate Sunday at a time to be agreed and in the absence of agreement at 6:30 pm for a period of not more than 30 minutes on each occasion.
5.The parties are each hereby restrained by injunction from the following conduct or permitting the child to remain in the presence or hearing of any other person engaging in the following:
5.1Discussing these proceedings in the presence or hearing of the child other than to explain to her the arrangements put in place by these orders;
5.2Questioning the child about any parenting or living arrangements in the other parent’s care;
5.3Using the child to communicate messages between the parties;
5.4Denigrating the other parent (or other members of the extended family) in the presence or hearing of the child.
6.The parties to communicate regarding the child via My Family Wizard at their own expense.
7.Whilst the mother remains in Australia
7.1During school term as follows:
7.1.1 Commencing in week one of each term and each alternate week thereafter, from the conclusion of school or 3:30pm on Friday (or 12:00pm if a non-school day) until 5:30pm on Sunday; and
7.1.2 Each week from the conclusion of school or 4:00pm on Wednesday (or 12:00pm if a non-school day) until 8:20am or the commencement of school on Thursday (or 12:00pm if a non-school day).
7.2On the child’s birthday if the child is not otherwise spending time with the mother on that day, for a period of three hours on a school day and from 9:00am to 2:00pm if a non-school day.
7.3For Religious festival 1 from after school Friday 21 August 2020 to 9:00am on Sunday 23 August 2020;
7.4For Religious festival 2 from after school Friday 23 October 2020 to before school on Monday 26 October 2020;
7.5For Religious festival 3 from 9:00am on 14 November until 12:00pm 15 November 2020;
7.6From 5:00 pm the Saturday evening prior to Mother’s Day until 8:30 am on the Monday morning after Mother’s Day.
7.7During all school term holidays for a period of four nights being comprised of three consecutive nights
8.The mother’s time with the child be suspended on the following occasions:
8.1For Easter, from 5pm on Maundy Thursday until 5pm on Easter Tuesday;
8.2For Christmas, from 10am on 24 December until 5pm on Boxing Day;
8.3On the child’s birthday if the child is not otherwise spending time with the father on that day, for a period of three hours if a school day.
8.4The father’s birthday if the child is not otherwise living with the father on that day, for a period of three hours at a time agreed and in the absence of agreement from 3:30pm to 6:30pm;
8.5From 5:00 pm the Saturday evening prior to Father’s Day until 8:30 am on the Monday morning after Father’s Day.
8.6At other times as agreed between the parties in writing.
9.For the purposes of changeover pursuant to these orders, where changeover is not otherwise at school, changeover will take place at the mother’s residence.
10.If the mother lives outside of Australia, the child spend time with the mother in Australia as follows:
10.1On at least three occasions each year for at least five days on each occasion (though not necessarily consecutive), preferably during term breaks.
10.2The child’s time with the mother pursuant to paragraph 10.1 be subject to the following:
10.2.1 The mother give the father not less than 28 days’ notice of her travel, including the intended during of the stay, and if intending to travel within Australia, details of the intended travel;
10.2.2 The mother surrender her passport to the father or his legal representative prior to the commencement of any time with the child pursuant to this order;
10.2.3 If the mother’s travel to Australia occurs within school term, the mother ensure that the child attend all school and extra-curricular activities during her care.
10.2.4 The father to book and pay for accommodation for the mother in the local vicinity. In the event that the mother intends to travel with Y within Australia, she will be responsible for accommodation costs.
Notice and authorities
11.Each party:
11.1Keep the other informed of their current address, mobile telephone number and email address;
11.2Notify the other as soon as is reasonably practical in the event Y becomes seriously ill or sustains a serious injury, requiring medical attention at a hospital whilst in that party’s care and keep the other advised of the details of any private health insurance cover for Y;
11.3Provide the other party with details of any injury or illness suffered by Y requiring medical treatment, and the name(s) of the treating medical practitioner(s) and authorise the other party to attend any medical appointment(s) and otherwise liaise with the treating medical practitioner(s);
11.4Advise the other party of any medication which is prescribed for Y;
11.5Follow all reasonable directions and recommendations of any treating medical practitioners, with respect to the medical care of Y, including prescribed medications, unless the parties both agree not to follow such directions and recommendations;
11.6Authorise, if not already authorised, any school attended by Y to:
11.6.1 provide the other party with copies of all notices, newsletters, reports, photographs and other information normally given to parents in relation to Y; and
11.6.2 communicate with the other party in relation to the Y’s progress;
12.Each party be at liberty to provide a sealed copy of these parenting orders to the Y’s school.
Documents relied upon by the father
The father relied upon the following documents:
i)Amended Initiating Application filed 1 June 2020;
ii)Trial Affidavit filed 1 June 2020;
iii)Affidavit of Ms G filed 1 June 2020;
iv)Affidavit of Ms D filed 15 June 2020;
v)Affidavit of Dr C filed 1 July 2020;
vi)Outline of Case filed 29 June 2020;
vii)documents tendered during final hearing; and
viii)Court book.
The father’s witnesses
The father gave evidence and was cross-examined by Counsel for the mother.
The father presented as a cooperative and truthful witness who gave direct responses to questions during cross examination. He did not hesitate in his responses, did not prevaricate, was forthright and made appropriate concessions. He impressed me as methodical and demonstrated considerable insight into the care of his daughter and any difficulties she may face. His account of events was inherently plausible and where his evidence differs from the mother’s evidence, I prefer his evidence. I do not accept the submissions of the mother’s Counsel that his view that the mother was mentally unwell in 2017 was evidence to enhance his case and that he manipulated the evidence to justify his conduct. I refer to my discussion of that evidence and my findings later in these reasons.
Counsel for the mother in her final written submissions, was critical of the father’s failure to call his mother and partner as witnesses. It was submitted that it is open to the Court to draw an inference from his failure to call witnesses closely involved in Y’s care and welfare. Whilst I accept it would have been preferable to call both witnesses, Y’s relationship with both her paternal grandmother and the father’s partner was not integral to the father’s case. Apart from cross-examination of the father about alleged racist comments by his mother, which he denied, there was no extensive cross-examination about Y’s relationship with either of them. There was however, evidence from Ms G, that Y had told her about the paternal family members who were important to her.
The mother’s proposal
The orders which the mother seeks from the court are set out at part E of the mother’s outline of Case document filed 29 June 2020 and are as follows:
1.All previous Orders be discharged.
2.That the parties have equal shared parental responsibility for the child Y Lanka born … 2012 (“Y”).
3.That Y live with the Mother in India.
4.That the Father spend time with Y in India as follows:
a)For the first full week of each visit (not more than once per month), provided that he takes her to school, extra-curricular activities in which she usually participates and any other prior engagements; and then
b)During school term:
i.From after school until 7pm on two (2) occasions per week;
ii.Overnight on one occasion per week; and
iii.From 9am to 6pm on Saturdays;
c)During half of school holiday periods;
PROVIDED THAT Father provides the Mother with five (5) days’ notice in writing of his intention to be in City M.
5.That the Father provide Y’s British and Australian passports to the Mother within 24 hours of the making of these Orders and both parents ensure that Y’s passports are renewed and valid at all times.
6.That the Father be restrained from removing Y from India except for holidays as agreed between the parties in writing from time to time.
7.That both parents be and hereby are restrained by injunction from:
a)Discussing these proceedings with Y or permitting any other person to do so in Y’s presence or hearing;
b)Denigrating the other party and/or their family in Y’s presence or hearing or permitting any other person to do so.
8.That Y may communicate by FaceTime/SKYPE or the like with the parent she is not living with at all reasonable times and no less than twice per week and both parents shall support and facilitate such communication provided the communication be not before school or at her bedtime and Y be afforded privacy during such communications.
9.That each party shall keep the other advised at all times of their residential address, mobile telephone number (capable of accepting SMS), and emergency contact number, and provide the other party with any new information within 24 hours of any change of residential address, mobile telephone number and/or emergency contact number.
10.Each parent must keep the other informed as to any third parties living at his/her residential address, and provide the other with written notice of any change to those details.
11.That each party shall promptly advise the other by text message or telephone call of any medical emergency and/or illness suffered by Y whilst in the care of that party, and the party who has the care of Y shall provide the other with details of the Hospital and/or medical practitioner attended upon, the reason for the visit and details of any treatment or medication prescribed to Y.
12.Each parent is entitled to attend the following:
a)School events to which parents are usually invited, including but not limited to sports carnivals, concerts and parent teacher interviews as may be arranged;
b)Any extracurricular activity in which Y participates; and
c)Any other events as may be agreed to by the parties.
13.Each parent is at liberty to attend any hospital or medical facility to which Y has been taken in a medical emergency.
14.Each parent is at liberty to obtain information from and consult with any medical and/or health professional on whom Y attends.
15.The parents shall each follow all reasonable directives of Y’s treating medical practitioners and ensure that they each comply with all guidelines in relation to management of Y’s health or welfare conditions.
16.In the event that the court orders that Y live in Australia with the Father she be permitted to travel to India to spend time with the Mother, unless agreed otherwise in writing, on no less than three occasions per year, such time be during her school holidays, the parent she is with travel with her and at times nominated by the Mother provides she gives the Father 30 day’s written notice of the travel and the cost of the child’s economy class airfares be paid half by the Father and half by the Mother.
17.The Father do all things necessary to facilitate FaceTime/SKYPE between the Mother and Y on no less than two occasions per week at times and days agreed between the parties and failing agreement at 6.00pm Melbourne time on a Wednesday and a Sunday each week and the Father ensure Y is afforded privacy during those calls.
18.Pursuant to s.65DA(2) and s.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 the 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.
19.That the Father pay the Mother’s costs of and associated with these proceedings.
20.Such further and other orders as this Honourable Court deems to be in the best interests of the child.
Documents relied upon by the mother:
The mother relied on the following documents:
i)Amended Response filed 23 April 2020;
ii)Financial Statement filed 23 April 2020;
iii)Trial Affidavit filed 1 June 2020;
iv)Affidavit of Ms E Dev (maternal grandmother) filed 2 June 2020;
v)Affidavit of Mr F Dev (maternal grandfather) filed 2 June 2020;
vi)reports of Dr C dated 19 and 23 June 2020;
vii)Affidavit of Ms G annexing her family report dated 1 April 2020;
viii)Affidavit of Ms D filed 15 June 2020;
ix)Outline of Case filed 29 June 2020; and
x)documents tendered during the final hearing.
The mother’s witnesses
The mother, maternal grandmother and maternal grandfather all gave evidence and were cross-examined by Counsel for the father.
The mother impressed me as a witness who had very fixed and myopic opinions about the father and past events. Understandably, she was overwhelmingly aggrieved about and fixated on the circumstances of Y’s removal from India in December 2017. She was not direct in her responses to questions, often taking the opportunity to make submissions and rambling comments about her perceived narrative of past events. At times she was illogical and unable to provide reasonable explanations. Her answers to questions were always qualified. An example of this was her evidence about her relationship with Mr B, Z’s father and why she had not taken any steps to be able to secure a passport and visa for Z in a timely manner, which would have enabled to her to travel to Australia prior to 2019 to see Y. She was steadfast in her view that Y should live with her in India and did not seem to understand any nuance in Y’s stability and future care arrangements. Where her evidence differs from the father’s evidence, I prefer the father’s.
The maternal grandmother Ms E Dev impressed me as a dignified and gracious woman who did her best to give a truthful account of past events. However, that must be seen in the context of her obvious desire to maintain a relationship with her daughter after the breakdown of that relationship for over a year, following the events of December 2017. She was understandably cautious about evidence of her involvement in the removal of Y from India. She readily conceded that she had handed the father Y’s passports, but sought to justify that action on the basis that she had implicit trust in the father and was not implicated in any plot or scheme to remove Y. She was candid in her evidence about the improbability of Y ringing the father out of the blue during the night in early September 2017 and conceded it was highly unlikely the father would have coincidently called on that night. It seemed to me that she sought to protect her daughter by not giving a candid account of the mother’s situation which prompted Y’s call to her father on that night. Where her evidence differs from the father I prefer the father’s.
The maternal grandfather was a problematic witness. The manner in which he gave his evidence was strikingly similar to his daughter. He grasped every answer as an opportunity to make a loquacious and rambling speech and rarely answered the question asked. His evidence was tailored to what he mistakenly perceived would be most advantageous to his daughter. As submitted by Counsel for the father, I agree that he also indulged in conspiracy theories and plots. He did not make any concessions and fragrantly denied any involvement in Y’s removal from India. His evidence was highly unreliable and I can place little weight on it. I reject the submissions of the mother’s Counsel that he was an honest witness. Where his evidence differs from the father’s I prefer the father’s evidence.
In her Final Written submissions, Counsel for the father was critical of the mother failing to call Mr B as a witness. The submission is based on the mother’s case, which was reinforced by the maternal grandfather, that Z had a right to have a relationship with her father. This was an integral part of the mother’s case, as was her evidence of her inability to obtain consent from Mr B for Z to travel to or live in Australia. The maternal grandfather, during cross-examination expressed a view that a solution to the dispute about Y’s residence would be for both her parents to live in the UK, so that both Y and Z would live in close proximity to their respective parents. The mother’s evidence about her relationship with Mr B was vague and nebulous. I agree with the submissions of the father’s Counsel that Mr B should have been called and I am entitled to infer that his evidence would not have assisted the mother’s case (Jones v Dunkel (1959) 101 CLR 298).
Single Expert Witnesses
Ms G, family report writer was cross-examined by both Counsel. Neither Ms D nor Dr C were required for cross-examination.
Ms G is a well credentialed and experienced family report writer who gave her evidence in a professional, insightful and concise manner. Her evidence was compelling, properly reasoned and balanced. She clearly had Y’s best interests as the paramount consideration. I do not intend to recite the contents of the family report or her evidence whilst being cross-examined, except where it is referred to in greater detail elsewhere in these reasons.
Counsel for the mother in her final submissions was critical of Ms G as a witness. Her criticisms included that her report was predicated on findings that were not hers to make, including her statements of the events of the night in early September 2017. The statements of her opinion about the father’s account were expressions of her professional opinion as to the manner in which the father recounted this version of events and were not and cannot be construed as definitive findings about what actually happened on that particular night.
Counsel for the mother was also critical of what she asserted was Ms G’s reliance on her observations of the mother’s possible mental health difficulties, which were not substantiated by Dr C and that Ms G is not a clinical psychologist.
Ms G’s professional credentials were not challenged by either Counsel and to do so would have been remarkable, as she was jointly chosen and appointed by the parties themselves.
In terms of Dr C’s observations, he does not consider that the mother is actively mentally unwell, but does opine that her parenting style reflects subtle elements of her personality and learned parenting practices and she could feasibly benefit by working with a psychologist to address her personality based vulnerabilities. I do not consider that Ms G’s report is predicated on an underlying belief that the mother suffers from mental illness. Ms G’s observations and recommendation for a psychiatric assessment were prudent and appropriate.
Criticism was also levelled at Ms G about her description of Y’s relationship with her mother as “anxious and insecure”, which was questioned by Dr C. Dr C did not have the opportunity to observe Y and her mother, unlike Ms G and it was not his role to offer any observation of the relationship. His professional role was to conduct a psychiatric assessment of the mother, not a quasi-family report.
Ms G was vigorously cross-examined by Counsel for the mother and remained steadfast in her assessment of the family dynamic and her recommendations that Y should remain in her father’s care in Australia. I reject the criticisms levelled at Ms G and I accept her evidence.
Ms D is an Indian lawyer, who was appointed as a single expert witness about family law in India. Neither Counsel sought to cross-examine her. Her evidence particularly relevant to the dispute is as follows:
i)India is not a signatory to the 1980 Hague Convention;
ii)A foreign judgment is recognised in India, but must meet certain obvious criteria;
iii)Indian courts are not bound by foreign orders, but what is in the welfare and best interests of the child;
iv)If a child is abducted or held in India in breach of a foreign order, the aggrieved person can bring an action to have the child recovered, but not to enforce the order;
v)The court in India has the discretion to either return the child or embark on a full hearing in India;
vi)If a court embarks on a hearing, the issue of return is based on the bests interests principle;
vii)Considering this case, she was of the view that the court in India would likely return the child;
viii)If a mother took a child from Australia in breach of family law orders from a court to which she had submitted jurisdiction, the court would be unlikely to entertain the mother’s petition in the absence of strong evidence warranting a change of custody.
Dr C is a psychiatrist, who was jointly appointed to conduct a psychiatric examination of the mother. Neither Counsel sought to cross-examine him.
Dr C is a respected professional forensic psychiatrist and I accept his evidence and professional opinion.
The following documents were tendered by the parties and received into evidence:
| EXHIBIT NUMBER | DESCRIPTION |
| F-1 | Email dated 23 September 2018 from the mother to father |
| F-2 | Letter dated 2 April 2017 by mother giving up all rights and claims to Y |
| F-3 | Pages 248 - 249 of the Electronic Court book - WhatsApp exchanges from 29 March to 3 April 2017 between mother and father |
| F-4 | Page 252 of the Electronic Court book – WhatsApp messages between the parties dated 6 April 2017 |
| F-5 | Pages 140 - 141 of the Electronic Court book – family WhatsApp messages dated 5 January 2018 |
| F-6 | Pages 345 - 346 of the Electronic Court Book – WhatsApp messages between April 2018 and August 2018 |
| F-7 | Pages 328 - 331 of the Electronic Court Book - WhatsApp messages between parents dated 29 - 31 December 2017 |
| F-8 | Page 333 of the Electronic Court Book – WhatsApp messages on 1 January 2018 between the parents |
| F-9 | Pages 337 - 338 of the Electronic Court Book – WhatsApp messages between the parents on 1 - 3 January 2018 |
| F-10 | Page 342 - 345 of the Electronic Court Book – WhatsApp messages between parents on 5 - 15 January 2018 |
| F-11 | Pages 23 - 24 of the Electronic Court Book - Letter from Y’s teacher in 2019 |
| F-12 | Pages 143 - 144 of the Electronic Court Book – extracts from the WhatsApp family group chat |
| F-13 | Pages 346 - 350 of the Electronic Court Book – WhatsApp messages between parents |
| F-14 | Pages 351 - 352 of the Electronic Court Book – WhatsApp messages between mother and father dated September – November 2018 |
| F-15 | Pages 393 - 394 of the Electronic Court Book – WhatsApp messages between parents on November 2018 |
| F-16 | Page 405 of the Electronic Court Book – parental WhatsApp messages on 1 February 2019 |
| F-17 | Page 492 - 495 of the Electronic Court Book – WhatsApp messages between the parents on September 2019 |
| F-18 | Copy of application for Y’s passport and emails between mother and Passports Fraud September - October 2019 |
| F-19 | Pages 843 - 845 of the Electronic Court Book – WhatsApp communications between the father and maternal grandmother |
| F-20 | Pages 839 - 840 of the Electronic Court Book – WhatsApp communications between the father and maternal grandmother concerning the events of 8 - 9 September 2017 |
| F-21 | Page 664 - 666 of the Electronic Court Book – WhatsApp messages between the father and maternal grandfather |
| F-22 | Page 676 of the Electronic Court Book – WhatsApp messages between the father and maternal grandfather in August 2017 |
| F-23 | Page 678 - 680 of the Electronic Court Book – WhatsApp messages between the father and maternal grandfather in August and September 2017 |
| EXHIBIT NUMBER | DESCRIPTION |
| M-1 | Page 932 and pages 936 - 938 of the Electronic Court Book – Emails between the mother and Mr B |
| M-2 | Page 845 of the Electronic Court Book – WhatsApp messages between the father and maternal grandmother in late 2017 |
| M-3 | Pages 960 -962 of the Electronic Court Book – WhatsApp messages between Mr B and the father on April and May 2019 and April 2017 |
| M-4 | Photographs at Pages 941 - 948 of the Electronic Court Book |
| M-5 | Page 40 - 41 of the Electronic Court Book – the two medical visits in August 2018 – one on 20 August and the other 28 August |
| M-6 | Page 74 - 77 of the Electronic Court Book – a referral letter and mental health plan |
| M-7 | Page 690 - 691 of the Electronic Court Book |
| M-8 | Emails pertaining to parenting courses with H Group |
Preliminary matters
The trial was heard as an electronic trial via Microsoft Teams due to restrictions on in-person trials, arising from the COVID-19 pandemic. When the matter was listed for a Case Management Hearing on 4 May 2020, both parties agreed that it was a matter suitable for an electronic trial and the relevant procedural orders were made. I would like to express my thanks to both Counsel for the manner in which the trial was run under challenging circumstances.
The Applicable Law
Evidence
The standard of proof in this case is the balance of probabilities (s.140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The father and mother relied upon their respective affidavits. I have examined that evidence and do not propose to repeat it in these reasons.
In Bell & Nahos [2016] FamCAFC 244, Strickland J addressed the obligations of a trial judge in that regard as follows at [28]-[29]:
[28] … [I]t is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
[29] I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.
Statutory Pathway
Relocation cases are determined in the same manner as all parenting cases, namely by following the statutory framework set out in the Family Law Act 1975 (Cth), to determine what orders are in the children’s best interests.
In Taylor & Barker [2007] FamCA 1246, their Honours Bryant CJ and Finn J at [53] said:
[W]hen dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child's future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238 ; (2002) FLC 93–112 and Bolitho & Cohen (2005) FLC 93-224).
In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J stated at [31] as follows:
A "relocation case" is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case.
Referring to relocation cases, His Honour Justice Kent in Heath & Hemming (No.2) [2011] FamCA 749 at paragraph [101] stated:
Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children's best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests" considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of "“best interest” may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's “best interest” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
Part VII of the Family Law Act1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60CC(2) of the Act provides that:
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.
Subsection 60CC(2A) provides that:
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).
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:
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”.
At [117] of McCall & Clark, the Full Court said:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].
The Full Court said there were differing possible approaches to s.60CC(2)(a) of the Act. The Court preferred the “prospective approach”, although the “present relationship approach” may also be relevant.
At [118] of McCall & Clark, the Full Court defined both the “present relationship approach” and “prospective approach” as follows:
…
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
…
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
In Mazorski & Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not a strictly quantitative one”.
There was no doubt that each parent presented their case that at present they both enjoyed such a relationship with their daughter and that in the future it was important for Y to maintain a meaningful relationship with the other parent. The emphasis of this primary consideration is Y’s prospective relationship with each of her parents.
The mother submitted:
i)if she lived in India, she would only be able to see Y in accordance with the father’s primary proposal, and if she is present in Australia, although the father made late offers in the proceeding to meet in the UK or Singapore, subject to him being in a financial position to afford such travel;
ii)on the father’s proposal, Y would not be able to enjoy a meaningful relationship with her mother, although she assumed if the living arrangements were reversed and that Y returned to live in India, the father would be able to enjoy a meaningful relationship with Y.
If the mother chose to live in Australia, there is no issue that Y would be unable to maintain a meaningful relationship with both parents, even if she remains living with her father.
The mother asserts in her Final Written Submissions that her proposal allows contact with the father in both India and Australia. That assertion is contrary to the final orders sought by the mother in her Further Amended Response to Initiating Application filed 23 April 2020, at paragraph 5 where she seeks an injunction that the father be restrained from removing Y from India except for holidays as agreed between the parties in writing from time to time.
The father asserts that the mother’s tendency to elaborate reconstructions of events makes her an unpredictable parent as to the stability of future parenting arrangements. He holds grave concerns that the mother, despite her protestations to the contrary, would not permit Y to spend time with him in India or limit such time.
In order to be satisfied that Y would be permitted to travel to Australia I would need to make findings that the mother would be willing to facilitate the relationship between Y and her father to enable time to take place in Australia. Such proposed travel, on the mother’s proposal, is entirely at her discretion. I address this later in these reasons.
Absent findings in accordance with paragraph 81 hereof, each parent predicates their case on Y living with each of them in a different country and spending time with the other parent in her country of residence. Both parents do however provide for electronic communication with the non-residential parent.
If Y’s parents live in different countries, then axiomatically, her relationship with the non-residential parent will differ substantially to a relationship she would enjoy with both parents living in closer proximity.
However, in the context of Y’s current relationships with both her parents, I consider she would be able to enjoy a relationship with her non-residential parent, which would be important, significant and valuable to her, even if he/she does not live in the same country.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse
The mother has expressed her “concerns” about the father’s care of Y.
These are referred to in her affidavit and include:
i)on 3 November 2019 during a video call, she observed a bruise below Y’s armpit;
ii)at a meeting at a shopping centre she asserts the father yanked Y by the arm and pulled her away;
iii)her concerns that Y’s urinary tract infections are not treated in a timely manner;
iv)on 12 November 2019 she alleges she observed dark bruises above Y’s knees and some bleeding from her earlobe;
v)Y crying that she wants to go to India and wants her mother;
vi)her talents are not being developed and she has little stimulation outside school;
vii)the father does not facilitate relationships with other children outside school;
viii)the father does not have a concrete plan to assist Y in her academic and creative development;
ix)the father has not taken any steps to engage a therapist for Y;
x)lack of control over what she sees on an iPad;
xi)Y has reported that she had a dream whereby her mother was guillotined while her father watched;
xii)Y reports that her father shouts at her when she gets upset and does not comfort her when she feels hurt.
In response to the allegations in paragraph (i) and (iv), the mother refers to the father’s response as follows:
i)Annexure M-5 annexes a letter from the husband’s solicitors to the mother’s then solicitors, stating that the bruise was a result of a playground accident, in the circumstances described by Y to her mother during a video call;
ii)Paragraph 134 of the mother’s trial affidavit refers to a text message she received from the father:
I checked Y’s ear yesterday and today. Y has a tiny dot on her earhole and this doesn’t have pus anywhere. I have checked her today for any bruises that you mention and I can’t see any.
The father was not cross-examined about these incidents and I accept that evidence as a reasonable explanation.
In relation to the other allegations referred to in paragraph 86, I have no doubt that the mother takes every opportunity to interpret events and comments made by Y to accord with her narrative. It is indicative of her parenting style, her readiness to criticise the father and the enmeshment of mother and child which Ms G refers to and which is addressed in subsequent paragraphs. I do not find that Y is at risk from being subjected to or exposed to abuse in the care of her father in any manner whatsoever.
The father’s current concerns about the mother are:
i)her enmeshment with and involvement of Y in the proceedings;
ii)the mother’s attempts to criticise the father, undermine his parenting and micromanage Y’s life whilst in the care of her father;
iii)the mother failing to facilitate time between the father and Y, or failing to return Y to Australia, if Y is permitted to live or travel to India.
He obviously had historical concerns in 2017, which were shared by the maternal grandparents, about the mother’s mental health and her capacity to care for Y.
The father’s concerns are addressed later in these reasons.
The father’s concerns about the mother’s parenting style and her involvement of Y in the dispute are justified in the context of both parents agreeing that Y would benefit from independent counselling. However, I am unable to find that the mother has exposed Y to abuse.
Additional Considerations
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations.
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
Y was born on … 2012 and is aged 8. At the time of the interview for the Family Report she was aged seven years and nine months. The only objective evidence of her views is that of Ms G. Y was observed formally and informally with each of her parents and Z and also interviewed on her own.
In terms of her maturity, at paragraph 36 of the Family Report, Ms G states:
Y presented as a typically developing seven year old. Her skills around language, fine motor and social skills appear to be commensurate with her age. She engaged readily with the writer, maintaining good eye contact, and her mood was noted to be upbeat and positive. … Y appeared to have a basic sense of trust in the writer. She appeared at ease when talking on a range of topics.
During the formal interview with Y, Ms G describes Y’s perception of her three homes, one in Suburb Q (where she is currently based with her father and his partner due to the COVID-19 pandemic), one in Suburb R, and one with her mother, although she did clarify that her mother had homes in both Australia and India.
In relation to any views expressed by Y, Ms G stated at paragraph 37:
Y was able to provide an extensive list of family members important to her and when asked, had no preferred location she wishes to live at.
The mother was most strident in her view that Y wanted to live with her and that Ms G had been neglectful in ascertaining Y’s true views. The submissions of the mother’s Counsel reflect her position that the mother was very strongly of the view that Y’s views had not been taken into account.
Ms G was cross-examined by the mother’s Counsel about the methodology she used to ascertain Y’s views. Ms G’s evidence was:
i)‑‑‑ Look, so the first thing I agree – it’s important for children to have a voice. Sometimes when parents say that the child wasn’t given a voice roughly gets interpreted by us is that the child didn’t align their perspective with that parent’s idea of what the voice would be. That said, what we explore with children in this developmental age is what we know to be important to them. So we explore family life. We explore schooling life. We explore important relationships and then as we make our way through those discussions it very deliberately moves to both positive feeling states and negative feeling states. Now, when – and then we ask children in an age appropriate way about their experience of happy, their experience of sad, their experience of worried, their experience of themselves and how they perceive themselves. Do they have a positive sense of self? We then ask them about their worries. And so we – we make our way through these domains quite specifically and we also in that anchor – it’s, kind of, a conversation tool, and then we anchor around certain points;
ii)I – I can – I can say confidently that I wouldn’t ask a child of seven where they wanted to live. I do not – I – I don’t ask that question. I can talk about perhaps – perhaps I will – I will – I will interpret the question and – and you can interrupt me. What I like about my – one of the questions is “my life”, so this is a – this is a book:…… and I’ve put this in my report that Z gets angry with her. She – what upsets her at the moment is that Mum and Dad are fighting, or – or words to that effect. What she also says is that she – she feels good when Mum and Dad are – are – are getting along. And I’m just seeing if there’s anything here about wanting to be with Mum: so that’s a projected question but it can sometimes elicit, you know, really – really important information about a child’s inner world;
iii)Well, I would also say that generally speaking in conflicted parenting arrangements children say what they think that parent wants to hear. So if – if Y thinks that her – her mum would – wants her to live with her in India, then Y might start shaping her comments to her that align with that perspective. I don’t know whether she says something different when she’s with her dad. I don’t know whether that topic even comes up. I would say as an adjunct to that that the important point is not what Y says to her mum at that juncture. The important point is what the parent says to the child to reassure them. That’s the bit that we often don’t get information about, but I can confidently say she’s not saying that in – in interview with me and if she did say that and if she volunteered that I would not only put that in my report because it’s a significant piece of information, I would be compelled to evaluate that. It just was – it just wasn’t there.
I am comfortably satisfied that Ms G appropriately ascertained Y’s views.
Ms G’s opined that there is some evidence of enmeshment between Ms Dev and Y. In that context, it is not surprising that the mother is unwilling or indeed unable to accept that Y has not expressed a view of wanting or preferring to live with her mother. The description of the mother and Y’s farewell at the conclusion of the assessment, at paragraph 42 of the Family Report, is an example. Ms G describes Y’s anxiety as she reacted to the mother’s overstated sense of grief at their parting.
Counsel for the mother submitted that as Y was only eight years old and according to both parents exhibiting signs of anxiety, the Court should consider whether any weight at all should be accorded to Y’s views. I do not accept that proposition and I am comforted by the observations and comments of Ms G referred to at paragraph 96 hereof as to Y’s maturity. If however, I were to accept that proposition, then I would be unlikely to accept the mother’s evidence as to Y’s views for my reasons as to my assessment of the mother as a witness and Ms G’s evidence about the enmeshment of mother and daughter.
I find that Y has not expressed a preference to live with either parent or that her level of maturity is such that her views should be accorded reasonable weight.
The nature of the relationship of the child with:
(a) each of the child’s parents; and
(b) other persons (including any grandparent or other relative of the child)
Both parents of the view that they have an excellent relationship with their daughter. Notwithstanding Y has been in her father’s primary care for the last two years, the mother asserts that she is Y’s primary attachment figure.
Ms G in the Family Report identifies that Y has a different style of relationship with each of her parents. In relation to Y’s relationship with her father, at paragraph 49 of the Family Report, she states as follows:
In a comparative assessment, Y’s relationship with her father appears to be based on the clear delineation between his role and that of Y. His caregiver style is warm, attuned, and authoritative. Y feels secure in his care and this permits her function competently across other important domains (school and social).
I accept Ms G’s characterisation of the relationship between Y and her father.
Ms G describes Y’s relationship with her mother:
Y monitors her mother’s responses and adjusts hers accordingly. Y appears highly sensitised to her mother’s actions, and she is at risk of subjugating her own feelings in an effort to attend to those of her mother. This type of parentification usually arises when parent child roles become confused and the parents needs become the paramount consideration.
In her trial affidavit, the mother deposes in great detail to her love and affection for Y and her commitment as a mother. I completely accept that the mother’s creative, educational and nurturing endeavours have been of enormous benefit to Y. Her evidence as to her style of parenting impressed me as very different from the more conventional style of the father. However, what was apparent to me from the mother’s oral evidence was her inability to separate and delineate her experiences and needs from those of Y. Her somewhat romanticised version of Y’s idyllic life with her mother in India coloured her perception of her relationship with her daughter.
She did not seem to appreciate that Y also had an excellent relationship with her father and that he too, albeit in a different parenting style, was capable of meeting Y’s emotional needs. Her evidence and views were very much from her perspective and her needs as a mother, rather than prioritising Y’s needs.
Ms G’s reference to a possible enmeshment of mother and daughter, was an apt and succinct description of the mother’s seemingly emotional dependence on her daughter. I accept the evidence of Ms G in that regard and her description of the mother’s relationship with Y.
Subsequent to Y’s removal to Australia and prior to the COVID-19 pandemic, Y lived with her father in the home of her paternal grandmother. Although the father was criticised by Counsel for the mother in failing to have the paternal grandmother as a witness, there was little criticism levelled at the paternal grandmother other that she permitted Y to use her iPad without supervision and that she has prejudices against Indian people.
The mother’s own evidence is that she understands Y has a loving relationship with her paternal grandmother, and that Y is cared for by the father’s partner, Ms J on days off from school. I accept that Y has a loving relationship with her maternal grandmother.
The evidence of both parents is that Y has an excellent relationship with her maternal grandparents and Ms K, the maternal grandfather’s wife. The mother’s evidence is that Y spent significant time with the maternal family members in India prior to December 2017. I accept that evidence and that Y has an excellent relationship with them. The maternal grandfather and his wife have travelled to Australia in 2019 to visit Y and have spent significant time with her.
The mother’s affidavit refers to the relationship between Y and her half-sister, Z. In December 2017, when Y left India, Z was 14 months old. Her evidence at paragraph 89 of her trial affidavit focuses on the distress Z has experienced, rather than on Y, although she does conclude that both children would benefit from spending time with each other.
At paragraph 91 of her trial affidavit she refers to the relationship between the girls as inseparable and both immensely enjoy spending time together. This evidence was not challenged and I accept the children have a loving relationship.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(a) to participate in making decisions about major long-term issues in relation to the child; and
(b) to spend time with the child; and
(c) to communicate with the child
Participation in making decisions about major long-term issues in relation to the children
Prior to Y’s removal to Australia, both parents seemed to successfully cooperate about Y’s welfare, including major long term decisions. There was no evidence to suggest that either parent was critical of the other in regard to matters such as her religion, health or education. The evidence indicated there had been a longstanding ongoing dialogue between the parents about which country they would each reside in and where Y should live.
The mother was understandably highly and relentlessly critical of the father’s removal of Y from India. I accept implicitly that she did not consent to, nor was aware of the father’s removal of Y from India in December 2017. At that time, she was clearly deprived of the opportunity to decide in which country her daughter would live. I discuss in detail the circumstances of Y’s removal from India later in these reasons.
Subsequent to December 2017, the father has effectively made all such decisions. He selected Y’s school and has arranged for medical care and counselling for her, when necessary. The mother’s criticisms are primarily directed at the father’s removal of Y from India, his failure to agree to return her to the mother and in the mother’s eyes, his marginalisation of her role as Y’s mother.
The dispute between the parties is now focused on future parental responsibility, in circumstances where the father seeks sole parental responsibility in his Amended Application and the mother seeks equal shared parental responsibility. I refer to parental responsibility later in these reasons.
Opportunity to spend time with and communicate with the children
Y has lived a somewhat international, fractured and unusual life. She was born in the United Kingdom and remained there, effectively in the care of both parents until after her parent’s physical separation in December 2015. Thereafter, in January 2016 she travelled to India with her father and remained in his sole care until the arrival of her mother in India in April 2016. She remained with her mother in India from April 2016 until December 2016 when she travelled with her father to Australia. She remained in Australia until May 2017, when her father returned her to India. For reasons which I fail to comprehend, on 2 April 2017 the mother wrote an unsolicited email to the father forgoing all rights and claims to Y and granting the father full custody of her. A photo of the letter was forwarded to the father via WhatsApp. Despite that letter, Y returned to India in May 2017 where she lived with her mother until December 2017, when her father removed her to Australia, where she has since remained. The circumstances of her removal from India in December 2017 are referred to in detail in these reasons.
The father asserts that subsequent to Y’s return to India in May 2017, he spoke with Y several times a week, however by September 2017, the mother had reduced his telephone time with Y to once per week or less.
Since December 2017, Y has lived with her father in Australia and he has obviously availed himself of all opportunities to spend time with his daughter.
Subsequent to her removal to Australia in December 2017, the mother did not see Y until September 2019. The mother did not communicate with Y between September 2018 and March 2019.
The father’s evidence is:
i)he attempted to contact the mother hundreds of times during that period without success;
ii)in April 2019 a friend of the mother’s gave him an alternative number for the mother;
iii)the mother told him that it was too painful for her and that she would prefer to have no contact with Y than a long distance relationship with her;
iv)she did not understand how hurtful and confusing the lack of communication was for Y.
The mother’s evidence was that she initially ‘felt it was not to Y’s advantage to have limited ad hoc contact with me via electronic communications. I felt it would be more distressing to Y to have only very limited contact with me via screen, than to have no contact at all.’
I am unable to accept that the mother’s conduct during this period and her resistance to pursue a long distance relationship with her daughter can be regarded as child focused. The impact on Y would have been evident. I also do not accept her explanation to Ms G that her inability to trust the father compromised her efforts to remain connected to Y remotely and that her actions could be interpreted as the father’s inability to facilitate a relationship. I accept that the mother was aghast and adversely affected by Y’s removal to Australia without her knowledge or consent, but that does not adequately explain why some nine months after Y’s arrival in Australia she ceased contact for a six month period. She was only prepared to communicate with Y on her own terms.
The mother did not visit Y in Australia until September 2019, almost two years after Y’s removal to Australia.
The mother offered a variety of explanations why she did not attempt to visit Y earlier, or indeed why she did not commence legal proceedings in Australia to seek Y’s return to India. These included her distress, her concern about the impact of the proceedings on Y, an emphasis on negotiating Y’s return and her inability to travel because of actions of Z’s father.
Paragraph 46 of her trial affidavit refers to attempts to negotiate Y’s return. The letter from the mother to the father which is included in Exhibit M-2 to her affidavit is dated 1 February 2019 and the email from the maternal grandfather, included in the Exhibit is dated 14 March 2019. The email conversation between the father and the maternal grandparents occurred in April 2019. There is no explanation why it took 14 months to attempt to negotiate with the father.
The mother asserted that she was precluded from visiting Australia because Mr B, Z’s father would not sign a consent for his daughter to obtain a visa or passport to travel to Australia. That explanation does not sit comfortably with the reality of Mr B relationship with his daughter nor the comments of the mother during cross-examination to the effect that Indian law vests legal guardianship of a child under five years of age with a mother. That concept is also referred to by Ms D, the single expert witness about Indian family law. Mr B lives in the United Kingdom and has seen his three and a half year old daughter in person on a few occasions in India. One such occasion was for the child’s birth and a period immediately thereafter. During cross-examination the mother did concede that it would be legally possible to commence proceedings pertaining to Z, but that it would not be right for her or Mr B. I do not accept that evidence as a valid explanation for the mother’s delay in travelling to Australia. The reality is that although the mother could have proactively taken steps to overcome that asserted obstacle, she deliberately chose not to do so.
The mother’s explanation for her failure to commence legal proceedings in Australia seeking Y’s return to India is also less than convincing.
The mother eventually travelled to Australia in September 2019 to visit Y. Initially the father was only prepared to consent to supervised time between the mother and Y, prior to formal orders. I accept that at all times during her visits to Australia the mother sought to spend time with and communicate with Y as much as possible and that it was the father who initially imposed restrictions on their time together.
I also accept that currently both parents wish to spend as much time as possible with Y.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
This consideration was not a significant issue in the parental dispute. The father has maintained Y subsequent to her removal to Australia. Prior to that, it seems that the parents had a satisfactory private arrangement for Y’s financial needs, although the mother complains about the father’s tardiness about their daughter’s school fee payments.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(a) either of his or her parents; or
(b) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The father proposes that Y remain living with him in Australia. His proposals address Y’s time with her mother, both if the mother remains in Australia and if she chooses to return to India. He proposes that all time between the mother and Y takes place in Australia. He did not make any proposal about his time with Y, if the court acceded to the mother’s primary proposal and Y lives in India.
The mother proposes that Y live with her and that she be permitted to return to India. Her proposals for Y’s time with her father are for time to occur in India, except for holidays as agreed between the parties in writing. She was opposed to Y visiting Australia, as she does not trust the father.
The mother’s proposal for her time with Y, if Y were to remain living in Australia with her father, is that Y be permitted to travel to India to spend time with her mother on no less than three occasions per year during school holidays, upon the mother providing 30 days written notice of the travel and that the parent she is with travel with her.
The mother did not make proposals about what time she would spend with Y, if she were to remain in Australia. She seemed to run her case on the basis that she would not be able to stay in Australia, because of immigration problems and in particular the lack of consent by Z’s father to Z remaining in Australia.
In the context of the geographical distance contemplated by the parties, there will inevitably be an impact on Y. As both parents are opposed to Y travelling internationally to the country of the non-residential parent, she will have a relationship with one of her parents which will be entirely different to the one she currently enjoys with both her parents living in the same country.
Ms G gave lengthy evidence about the impact on Y if she is permitted to relocate to India and be separated from her father. That evidence is as follows:
‘if she were to relocate to India and in terms of the impact on her relationship with her father, well, my view is that there would be a diminution in that relationship and I think that how that would be – it would be represented by some frustrations around the communication and contact. I think that there might be – there might be a focus on looking at problems rather than solutions. I don’t think at this stage – certainly when – at the time when I assessed the parties I didn’t feel as though Mum’s level of cooperation with the father was at a – at a level that could really assist in the facilitation of these, kind of, arrangements – time spent arrangements that require a high level of logistics. And with that level of logistics comes a need for the parents to be able to be able to cooperate in a way where communication flows relatively easily.
But over the course of time, if she is not frequently connected to him, like any relationship, it will start to fade. She will start to not perceive him as a parent and arguably somebody that she just visits. His capacity to be able to be a parent in – in a more immersive way to be, you know, responsible, to be available to her, is going to be really limited. That ultimately is likely to result in a loss for Y. Quite beyond the relationship with her father, there is a whole other world for Y in the care of her father that’s not just about the relationship with him. She has a wide extended paternal family, and so you would need to think about the consequences of the diminution of those relationships as well, that – all of those people form part of her identity. And she’s at a school age, so she has got friendships. So this is about cumulative loss. It’s not just about loss of relationship with her father which will occur over the course of time. It’s about all of these other losses – to be colloquial – kind of – kind of, piling on top of each other.’
Ms G’s evidence about the effect on Y of her mother’s return to India was:
i)Y’s anxiety is likely to be triggered by her mother’s departure;
ii)she may consider that she was partially responsible for her mother’s return;
iii)it is not uncommon for children of this age to see themselves as having a causal role in their parent’s actions;
iv)Y should be referred for some professional support around her family experiences.
I accept Ms G’s evidence pertaining to the effect on Y of separation from her father and if her mother returns to India and Y remains in Australia.
If Y is to remain in Australia and the mother chooses to return to India, then inevitably the nature of the relationship between Y and Z will change. It will move from a relationship where both girls spend regular time with each other, to one where they will spend less frequent time, but will increase electronic time. The amount of time the children will actually spend together is entirely dependent on the mother’s preparedness to travel to Australia.
My comments in the previous paragraph must be taken in the context of the COVID-19 pandemic and whether the mother is intending to remain in Australia for the foreseeable future and enable the girls to spend further time together, or whether she intends to subject herself and Z to the obvious and inherent risks of international travel.
From the mother’s observations of the children’s relationship, I accept that it is sufficiently developed and consolidated to withstand any physical separation between the two children.
If Y remains in Australia, the nature of her relationship with the maternal grandparents will remain as it has been since 2017 and she will no doubt continue to benefit from that. Similarly, her relationship with her paternal grandmother will remain the same. If she were to be permitted to live in India, then the relationship with her paternal grandmother will change and communication is most likely to be electronic.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
In other words, she considers the father’s parenting style and nature of his relationship with Y to be more beneficial to her future emotional development, than the mother’s enmeshed style and parentification of Y. She concludes that if she were to be placed in the primary care of her mother, Y may not be able to master developmental tasks confidently, which strengthens the need for Y’s primary care arrangements to remain unchanged.
The mother’s proposal for Y would enable Y to further develop her relationship with Z and enjoy unfettered access to her maternal grandparents and a lifestyle which would support her cultural background. I am also confident that she would enjoy a high standard of living, including education. However, such an arrangement necessarily would remove Y from her current environment with her father, her primary care giver, and the stability and benefits of that relationship she has experienced in the past two and a half years.
In terms of both parents capacity to facilitate a relationship with the other parent, I refer to my comments at paragraphs 172-193 hereof. Despite the mother’s criticism of the father imposing supervised time between herself and Y from September 2019, the father has been prepared to increase time between Y and her mother, culminating in the existing arrangements of 5 nights per fortnight. His responses during cross-examination did not raise any concerns for me, that he would do anything other than promote and facilitate a relationship between Y and her mother.
Additionally, the father has continued to actively promote Y’s relationship with her maternal grandparents. Examples of this are agreeing to time between Y and the maternal grandfather in Australia and the establishment and continuation of the family WhatsApp group.
In terms of the mother’s capacity to facilitate a relationship between Y and the father, I have serious reservations that she would not do so, if she were permitted to relocate Y to India. I am not persuaded that she would be capable of putting aside her feelings of the grave injustice she perceives the father has perpetrated against her. I do not accept her evidence of “bridges of peace” being able to be forged between the parents.
Ms G also shares my pessimism about the mother’s capacity to facilitate a relationship between Y and her father. At paragraph 53 of the family report she refers to the mother’s responses to questions about this issue ‘as organised around her feelings toward Mr Lanka.’
Furthermore, she observed her attitude as ‘lacking insight into the importance of Y’s relationship with her father.’ Ms G concludes:
‘There is a risk Ms Dev will engage in restrictive, gatekeeping behaviours around Y’s relationship with her father.’
My assessment of the mother concurs with those observations. Ms G was not challenged about the statement in the preceding paragraphs.
Ms G concludes that if her mother remains in Australia, Y will:
i)continue to benefit from the continuity of care afforded to her living with her father and other paternal family;
ii)continue to enjoy the wide sweeping benefits from her continued school arrangement;
iii)if her mother does not return to India, Y will have access to both parents under an arrangement that promotes her wellbeing.
If her mother remains in Australia, Y will also have superior access to her mother’s cultural heritage as well as her father’s. That would be of benefit to Y. However if the mother is fervent in her desire to return to India, then the extent of Y’s immersion in her mother’s culture will obviously depend on the mother’s preparedness to travel to Australia to spend time with her daughter and the preparedness of her maternal grandparents to travel to Australia. I am confident that the father will value and emphasise for Y the importance of her mother’s cultural heritage, in the event the mother seeks to restrict her visits to Australia in the future.
After considering the two proposals within the framework of the mandated requirements of s.60CC, I agree with the opinion of Ms G, and I am unable to conclude that removing Y from her father’s primary care and placing her in her mother’s care in India, could possibly be construed as in her best interests. Y’s best interests are served by her remaining in her father’s care in Australia.
I am also not persuaded that the mother has to date fully investigated the migration options for her to remain in Australia with Y. I gained the impression that the deliberate lack of enquiry and evidence adduced on her behalf about future possible visas was a tactic she perceived would enhance her case. I refer to paragraphs 250-253 hereof about my findings as to the mother’s visa possibilities. I am also not persuaded that the mother’s explanations about a visa for Z are fulsome. It also suited the mother’s case to refrain from pursuing the legal remedies for Z’s care, which she conceded were available to her. In any event, at no stage did she present her case as being able to remain in Australia and seek primary care of Y.
Conclusion as to spend time arrangements
During the trial and in her Final Written Submissions, the mother did not make any formal proposals about time she would spend with Y if she remained in Australia, including how long she intended to remain in Australia during the COVID-19 pandemic, if her primary application was unsuccessful. However in her Reply Submissions she states at paragraph 11, ‘if the Mother lives in Australia there is no basis for anything other than a (sic) equal shared time order.’
That proposition was not:
i)proposed by either party during the family report interviews;
ii)proposed or advanced by the mother during the trial, except during brief cross-examination of the father, who rejected it;
iii)put to Ms G in cross-examination;
iv)referred to in the Mother’s Written Submissions.
There are no reasons offered in the Reply Submissions why such an arrangement should be considered as being in Y’s best interests.
The father was cross-examined about the time he proposed Y should spend with her mother, whilst the mother remains in Australia. His evidence was that he would be amenable to Y spending five nights a fortnight with her mother, which is more than as stated in his Outline of Case document, however he would not agree to equal time and gave brief reasons. In response to my question, he conceded he was amenable to the mother spending blocks of time with Y in the school holidays, rather than his formal proposal.
Ms G’s recommendations are that the existing arrangements continue. During cross-examination she also agreed it would be appropriate for time to continue with the arrangements in place, as at the date of trial, which was an increase from the time arrangements in April 2020 when she prepared the report.
For holiday time, the recommendations in the report are that until the final determination of the matter, term holidays remain for three consecutive nights in Australia and on a week about basis during the long summer holidays. Additionally, special occasions and celebratory days should be shared equally.
Additionally, both parents proposed liberal electronic communication between Y and the other parent.
There was no evidence to contradict that the existing regime seemed to be working well for Y. Indeed the parties have managed to negotiate a progressive increase in Y’s time with her mother, culminating in the consent orders of 10 July 2020.
In my view, Y’s best interests are served spending time with her mother in Australia in accordance with the existing time together with one half of all school holidays, special occasions and celebratory days. These arrangements will ensure continuity and stability of care and ensure Y has a meaningful relationship with both her parents.. There was no reason offered by the father for limited term holiday time, other than he had sought to propose time which reflected the report recommendations. I did not perceive that he was actively pursuing limiting Y’s time with her mother during the school term holidays, whilst her mother was living in Australia.
The father’s proposals for Y’s time with her mother, if the mother choses to return to India are:
i)on at least three occasions each year for at least five days on each occasion (though not necessarily consecutive), preferably during term breaks and subject to:
(a)28 days prior notice to the father of intended travel dates and duration;
(b)the mother surrender her passport to the father or his lawyers prior to commencement of any time with Y;
(c)if the mother travels during the school term, Y shall continue to attend school and extracurricular activities;
(d)the father book and pay for accommodation for the mother in the local vicinity of the father’s home.
ii)communication via FaceTime or other electronic communication each Tuesday and alternate Sunday.
The mother’s formal proposals for Y’s time with her mother, if Y lives with her father in Australia are:
i)Y be permitted to travel to India to spend time with her mother on no less than three occasions per year during school holidays;
ii)the parent with whom she is with, travel with her;
iii)the times of travel are to be nominated by the mother providing 30 days written notice to the father;
iv)the cost of an economy class airfare for Y is to be shared equally;
v)FaceTime/Skype between the mother and Y on no less than two occasions per week, with a default position if the parents are unable to agree about days and times.
Despite the mother’s formal proposal, at paragraph 33 of the family report, Ms G reported that the mother was opposed to Y visiting Australia as she was fearful that the father would retain her here. On that basis, the mother’s view was that the only option for face-to-face time if Y were permitted to relocate to India, was for such time to take place in India.
I will address Y’s travel to India later in these reasons.
The mother did not make any proposals to spend time with Y in Australia, in the event orders were made which did not permit Y to travel to India.
I intend to make orders that Y spend five nights a fortnight with her mother during school terms, on special occasions and for half the school holidays if her mother remains living in Australia.
If the mother chooses to return to India, I intend to make orders substantially in accordance with the father’s proposals for Y’s time with her mother, including, as proposed by the father that he pay the cost of the accommodation for the mother and Y during the mother’s visits to Australia.
Should Y be permitted to travel to India?
The father opposes permitting Y to return to India for the following reasons:
i)India is not a signatory to the 1980 Hague Convention;
ii)the mother and her family are highly unlikely to return Y to the father in Australia;
iii)the mother had threatened that he would not see Y again;
iv)there is no certainty that any Australian order providing for Y’s return, in the event of an over holding, would be enforced promptly or at all in an Indian court;
v)the Indian court system was slow and expensive;
vi)the maternal grandparents are unlikely to render any assistance to the father to “recover” Y, in the context of their current position that they did not assist the father to remove Y in December 2017;
vii)he no longer trusts the maternal grandparents.
During cross-examination, he did concede that there could be holiday time in Singapore or the United Kingdom, if he could afford it and provided the mother surrendered her passport and Y’s to him during the duration.
The mother submits that, if orders are made for Y to remain in Australia, Y should be permitted to spend time with her in India for no less than three occasions per year during the school holiday period, accompanied by a parent for the following reasons:
i)Y should be provided with the opportunity to visit her mother in her home country, see her maternal family and experience Indian culture which is part of her heritage;
ii)the risk of the mother refusing to return the child to Australia is extremely small;
iii)the evidence of Ms D;
iv)the risk of the mother refusing to return the child has to be weighed against the benefit of the child visiting the mother in her home country.
The principles to be applied in determining whether a child should be permitted to travel overseas are well settled (Line & Line [1996] FamCA 145).
The relevant considerations to assess the degree of risk that the departing parent, despite assurances, will not return are as follows:
i)the existence or otherwise of continuing ties between the departing parent and Australia, such as ownership of real estate, business interests or residence of close family or friends;
ii)the existence and strength of:
(a)possible motives not to return, including the level of conflict between the parents particularly over child related issues;
(b)possible motives to remain in the other country, such as ownership of real estate, business interests, residence of close family and/or personal friends there.
I will address each of the considerations.
Firstly, I will consider the mother’s ties to Australia.
There was scant evidence about the mother’s ties to Australia. Neither she nor her immediate family have any real estate or other assets in Australia. The mother’s evidence is that she is renting her current accommodation. She has little in the way of family in Melbourne, although reference was made to a cousin, Ms P, who is Y’s godmother, living in Brisbane. She did not refer to a circle of close friendships.
Secondly, I will address the motives of the mother not to return the child including:
i)level of conflict between the parents; and
ii)possible motives to remain in India.
Despite the mother’s professed desire to build “bridges of peace” with the father, I was left with the impression that would not happen if she were to remain in Australia, contrary to her preferred return to India. The mother is highly resentful of the father for the perceived abduction of Y to Australia and understandably holds unresolved and deep resentment and distrust of him. The mother’s communications towards the father have been highly acrimonious and at times abusive, although she seeks that be considered in the context of Y’s removal from her.
There are a myriad of possible motives for the mother to remain in India. These include:
i)the possibility of commencing litigation in India which, according to Ms D, would require a fresh examination of the best interests of Y. The mother would have little to lose in instituting family law proceedings in India and pursuing her case that Y had been abducted from her;
ii)the lifestyle she enjoys in India including living at her father’s farm which was portrayed as idyllic;
iii)the proximity and support of the maternal grandparents;
iv)the freedom to travel or indeed relocate to the United Kingdom to enable her to pursue her relationship with Mr B;
v)India is her home with all of the associated benefits;
vi)having Y live with her to the exclusion of the father.
In addition to the considerations in the previous paragraphs, the COVID-19 pandemic has raised other important travel issues, specifically:
i)when travel may be available for people other than returning citizens and those with rights of residence;
ii)the health risks and dangers of contracting COVID-19;
iii)quarantine requirements in both India and Australia for incoming travellers.
Whilst I acknowledge there would be substantial benefits to Y in travelling to India to be immersed in her mother’s culture and family, I must weigh up those benefits with the real possibility that the mother would not return Y to Australia. Such a scenario would undoubtedly adversely affect Y’s relationship with her father and lead to more instability for Y. I also do not have any confidence that if Y were to return to live in India that the mother would permit, let alone facilitate a relationship between Y and her father.
These concerns arise from a number of factors, including the mother’s current perception of Y’s abduction from her and past threats that Y would never see her father again. Whilst the mother seeks to explain away the threats as having occurred in the context of her aguish and grief at Y’s removal, I am not convinced that is an adequate explanation and that those sentiments are historical.
The mother, in her Outline of Case document, the final paragraph in section D of her summary of argument states as follows:
The law in India in relation to parenting orders is similar to that of Australia in that orders from a foreign jurisdiction do not limit the courts assessment of what is in the best interests of the child and no order can prevent a court from making that assessment on the facts before it in any application brought to the court.
That statement causes me significant concern about the mother’s real view of her successful prospects of relitigating in India the issue of Y’s residency.
I also hold significant concerns that the maternal grandparents would, if asked by her, assist their daughter to obstruct the father’s time with Y in India and support a decision to relitigate in India, if Y were to travel there.
Having found that the maternal grandparents were complicit in and assisted the father to remove Y to Australia and their now denial of their involvement, my concerns about the mother’s parents assisting the mother to obstruct a relationship between Y and her father are of considerable relevance and importance.
Subsequent to December 2017, they were estranged from their daughter at her behest. She is their only child and the mother of their two granddaughters. It is inconceivable to suggest that they now would not do all things possible to assist their daughter, should she request it. In my view that would extend to frustrating a relationship between Y and her father, if Y were permitted to return or visit India. The submissions of Counsel for the mother that they are conservative and law abiding, they would not be complicit in any attempt to keep Y in India. I do not accept that submission, as I have found their evidence in this proceeding in relation to their involvement in removal of Y to be unreliable and they are both highly unlikely to again prejudice the relationship with their daughter and granddaughter. I find that there is considerable risk that they would do all things possible to assist their daughter, including preventing the father from spending time with Y even in India, should their daughter so wish.
Having carefully considered all of the relevant issues in the preceding paragraphs, I am not convinced that the mother would comply with orders to return Y to Australia, if she were permitted to travel to India. I am also concerned of the mother’s prospects of commencing proceedings in India, as I do not accept that she will be satisfied with any long-term outcome, other than Y residing with her in India. I am not prepared to risk further dislocation to Y and the possible severing of her relationship with her father.
Counsel for the mother proposes that the court should consider alternative orders to take into account all travel scenarios, or alternatively make an order permitting the parties to have liberty to apply in this regard. Given my conclusion that Y should not be permitted to travel to India, such consideration is not necessary.
Having so determined, the most appropriate orders for Y to spend time with her mother in Australia, are broadly in accordance with the proposals of the father, except that the time should be extended to provide for periods of up to 15 days during school term and term holidays, with a maximum concurrent time of 7 days. That will enable the mother and Y to spend a week together, with a return to her father for one night, then followed by another week. During the long summer holidays, the maximum time should be extended to 24 days, which would enable the time to be spent in three weekly blocks, with a return of one night, in between each block. That configuration of time would enable the mother to spend half of the summer holidays in blocks of one week, as recommended by Ms G, but would reduce the length of her stay in Australia. Hopefully as Y gets older her parents will be able to reach agreement about more flexible arrangements.
I also intend to make an order placing Y on the Airport Watch List, as sought by the father, to ensure there is no prospect of her removal from Australia, for the reasons referred to.
In terms of electronic communication, I intend to make orders for that to occur twice a week, whilst Y is in her father’s care and whilst Y is in her mother’s care, one occasion per week between Y and her father.
COVID-19 Submissions in the mother’s Reply.
The final Reply submissions of the mother purport to provide an update of the world COVID-19 distribution, even going so far as to analyse the infection rate per million in various countries and including a link to a website with relevant information.
As referred to in these reasons, during the trial both Counsel submitted a joint statement about COVID-19 and the impact on travel between India and Australia.
The statements in the submissions are an attempt to introduce evidence which was not adduced during the trial and to lead me into my own investigations, which is impermissible and contrary to authority (s.144 of the Evidence Act (Cth), Miles & Miles [2011] FamCAFC 72).
At [99]-[101] of Miles, the Full Court said:
[99] Andrew Ligerwood & Gary Edmond in Australian Evidence (2010, 5th ed, LexisNexis Butterworths) when discussing judicial notice and the consultation by judicial officers with authoritative works, state (at [6.66]):
Where judicial notice is taken on inquiry the mode of inquiry is left to the courts and the ordinary rules of evidence (for example, the hearsay rule) do not apply. Nevertheless, the court should give the parties the opportunity to comment upon the propriety of taking judicial notice and the appropriate method of enquiry, before it embarks upon an inquiry of is own. And where that inquiry consists of consulting authoritative works or experts, there is authority for the view that this should take place in the presence of parties, allowing opportunity for comment. These principles appear to lie behind the uniform legislation. It allows the court to acquire knowledge subject to notice ‘in any way the judge thinks fit’ but provides in s 144(4) that:
The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced
Only if the court decides that the fact is indisputable and not practicably susceptible to adversary proof in the ordinary way, and that acting on that knowledge will not result in unfair prejudice to a party, can judicial notice be taken… (footnotes omitted)
[100] These writings are consistent with comments made by the Full Court in McCall v Clark (per Bryant CJ, Faulks DCJ and Boland J), in which their Honours observed at paragraph 126:
… Neither party tendered to the Federal Magistrate any of the well recognised peer reviewed research on the establishment of primary and significant attachments of infants and young children, nor did the Federal Magistrate raise with the parties that he could have recourse to such material. Absent such evidence the Federal Magistrate could not have informed himself of such matters since the type of research required would not, in our view, fall within the term ‘common knowledge’ in s 144(1)(a) of the Evidence Act 1995 (Cth). It may have been admissible under s 144(1)(b) after giving the necessary notice prescribed in s 144(4) of that Act.
[101] The importance of notice and procedural fairness was emphasised by this Court in Lamereaux & Noirot (2008) FLC 93-364. We agree where reliance is placed by a judge on evidence other than evidence regularly adduced by the parties to the litigation, procedural fairness issues are particularly significant.
The court is not permitted to gather its own evidence or to conduct research without the specific consent of both Counsel and affording each an opportunity to make submissions as to weight, relevance and admissibility. I have had no regard to those particular submissions.
Parental Responsibility
Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The father seeks an order for sole parental responsibility for Y, if she remains living with him in Australia. If Y lives with her mother in India, the father accepts the mother’s proposal that the parties should share equal parental responsibility for Y.
The mother proposes that the parties should have equal shared parental responsibility for Y. Although the proposed final orders sought by the mother in her Case Outline did not address the issue of parental responsibility if Y remains in Australia with her father, it is evident that the mother also seeks an order for equal shared parental responsibility if orders were made for Y to remain in Australia.
The father’s submissions in support of an order for sole parental responsibility in his favour may be summarised as follows:
i)there has been significant communication problems between the parties, specifically between September 2018 and May 2019, whilst the mother was in India and the child was in Australia, the mother elected not to communicate and changed her phone number;
ii)the parents have divergent views on important issues regarding Y’s long-term care welfare and development and therefore attempting to reach a joint decision on those issues would cause ongoing conflict between the parties;
iii)the mother has engaged in abusive communications with the father which have not been conducive to a respectful co-parenting relationship;
iv)the mother’s entrenched adverse view about the father’s parenting capabilities.
The mother’s submissions in support of an order for equal shared parental responsibility may be summarised as follows:
i)she has always regarded herself as Y’s primary caregiver and the parent with whom Y is most connected and should therefore be included in any decision-making pertaining to Y’s long-term welfare;
ii)she is prepared to make “bridges of peace” with the father and to respectfully communicate with the father;
iii)she will actively encourage Y’s relationship with her father if Y lives in India, and seeking an order for equal shared parental responsibility is indicative of her preparedness to foster Y’s relationship with her father.
I agree with the submissions for the father. Given the mother’s entrenched and strident views about the father it seems to me it would not be possible for any cooperation between the parents about major long-term issues, particularly in circumstances where the mother presented her case on the basis that she would be living in India.
I have no confidence that the mother, despite her evidence to the contrary, has any desire to have any ongoing relationship with the father nor to consult with him given her views about the father’s removal of Y from her care.
Whilst I understand it is a significant step to deprive a parent of parental responsibility, I can only reach the conclusion that it is appropriate for the parent with whom Y will be living, her father, to exercise sole parental responsibility for her. I intend to make an order for the father to have sole parental responsibility for Y, subject to him notifying the mother of decisions which he intends to make. The mother should be kept informed of any proposed major long-term decision-making and have an opportunity to advise the father of her view, prior to any such decision being made. If the mother chooses not to engage with the father, then he will be in a position to make long term decisions on behalf of their daughter.
I therefore find, for the reasons set out in the preceding paragraphs, that the presumption that it is in Y’s best interests for both of her parents to have equal shared parental responsibility is rebutted.
Had the mother presented her case on the basis that if she was not successful with her primary application, she would consider remaining in Australia long-term, an order for equal shared parental responsibility would have been attractive. She did not choose to present such a case.
Having determined that an order for equal shared parental responsibility should not be made, I am not required to address the legislative pathway set out in section 65DAA of the Act.
I intend to make orders in accordance with these reasons.
I certify that the preceding three hundred and thirty six (336) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams delivered on 30 October 2020.
Associate:
Date: 30 October 2020
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