Magar and Rastogi - [2019] FamCA 545

FAMILY COURT OF AUSTRALIA

MAGAR & RASTOGI

[2019] FamCA 545

FAMILY LAW – CHILDREN – With whom a child lives – Where the child has lived in the primary care of the father and the paternal family since birth – Where the mother has asserted that the paternal family kept her prisoner and plotted to kill her – Where the mother left Australia following the child’s birth and consent orders were made – Where the mother has returned to Australia and seeks the child transitions into her full-time care –Where the family consultant considered it likely that the paternal grandmother was more likely the primary carer for the child – Where the father has re-married and there is concern that the stepmother may usurp the mother’s role with the child – Where the family consultant has observed a strong, secure and comfortable attachment between the child and the mother – Where the father does not appear attuned to the child – Best interests of the child – Effect of change and factors pursuant to section 60CC of the Family Law Act 1975 (Cth) – Orders

Family Law Act 1975 (Cth) ss 60B(1) 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DA(4)

Baglio & Baglio [2013] FamCA 105
Champness & Hanson (2009) FLC 93-407
Sigley & Evor [2011] FamCAFC 22

APPLICANT:

Ms Magar

RESPONDENT:

Mr Rastogi

FILE NUMBER:

ADC

3356

2013

DATE DELIVERED:

14 August 2019

PLACE DELIVERED:

Darwin

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

13, 14 & 15 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smith

SOLICITOR FOR THE APPLICANT:

Harry Alevizos
Barrister & Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Horvat

SOLICITOR FOR THE RESPONDENT:

Adelta Legal

Orders

That the mother shall have sole parental responsibility for M born … 2013 (“the child”).
That the child shall live with the mother.
That the child shall spend time with the father as follows:-
(a)Each alternate weekend from the conclusion of school on Thursday until the commencement of school on the following Tuesday;
(b)For one half of all short school holidays as agreed between the parties but in default of agreement from the conclusion of school on the last day of term until 5.00 pm eight (8) days thereafter;
(c)For the long school holidays on a week about basis commencing:-
(i)At 5.00 pm on Friday of the second week of the holidays in 2019 and in each alternate year thereafter;
(ii)From the conclusion of school Friday and concluding at 5.00 pm in 2020 and in each alternate year thereafter.
(d)With the mother at all other times other than as may be agreed between the parties.

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 Magar & Rastogi 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 ADELAIDE

FILE NUMBER: ADC 3356 of 2013

Ms Magar

Applicant

And

Mr Rastogi

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between Ms Magar (“the mother”) and Mr Rastogi (“the father”) relate to the ongoing parenting arrangements for M born in 2013 (“the child”).
By Initiating Application filed 15 March 2016 the mother seeks that the child lives with her and spends time with the father at times that may be agreed between the parties. Her position at trial was that she seeks sole parental responsibility for the child.
The Case Outline Document provided by counsel for the mother lists the orders she seeks at “D”, namely that the child lives with her and spends time with the father on each alternate weekend from the conclusion of school on Friday until 5.00 pm on Sunday evening. She proposes that the child spends time with the father for half of school holidays and for special occasions and birthdays.
By Amended Response filed 20 March 2019 the father opposes the orders sought by the mother and seeks that the mother spends time with the child each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday and for half of all school holidays. He seeks to retain sole parental responsibility.

Background

The mother was born in 1986 in Europe. She moved to Australia in August 2012 and is currently in the process of applying for permanent residency. She has undertaken volunteer work with community organisations in South Australia and completed an online certificate in education. She is not presently employed but is hoping to find employment in the future.
The father was born in 1984 in Country N. He moved to Australia in 2010 and became an Australian citizen in about 2015. He lives in a rental property with his parents and the child. He has professional qualifications from the M University but has not been able to obtain work in Australia relevant to those qualifications. He obtained work as a driver however due to an injury and having the full-time care of the child he is not presently working.
The parties are cousins and their marriage was arranged by their families. The parties had a choice and both were willing to enter the marriage.
The parties had a religious wedding in 2012 following the mother’s arrival in Adelaide and were then married in a civil ceremony in 2012.
Their relationship was strained and the parties separated in approximately August 2013. On 20 September 2013 the parties entered into a consent order before a Registrar which provided that the father have sole parental responsibility for the child and that the child lives with him and spends time with the mother as agreed. The mother was restrained from removing the child from the Commonwealth of Australia.
The mother returned to Europe on a one-way ticket on 26 September 2013. The child remained in Australia with the father and the paternal family.

Litigation history

The mother filed an Initiating Application on 4 February 2014 seeking to discharge the consent orders and relocate the child’s residence to Europe. She was living in Europe at the time and was not legally represented.
The application came on for hearing on 12 October 2015. The application was resisted by the father who sought that it be dismissed pursuant to Rice & Asplund (1979) FLC 90-725. The application was dismissed with ex tempore reasons given and the consent orders continued.
The mother returned to Australia for the hearing and has remained here since that time. It is her intention to remain in Adelaide permanently and to that end she has commenced the process of applying for permanent residency.
On 15 March 2016 the mother filed an Initiating Application commencing the current proceedings. At the time the mother had not seen the child since she departed Australia in September 2013.
On 5 April 2016 it was ordered by consent that the parties enrol in the Suburb C Contact Centre for the purpose of the child spending time with the mother for six supervised visits. The mother was also to undergo a psychiatric assessment.
The Suburb C Centre had a long waiting period so the mother made enquiries and enrolled at the P Contact Centre. There was some delay to the father’s enrolment and supervised visits commenced on 13 August 2016.
The supervised visits took place and on 7 November 2016 it was ordered that two further visits at the P Contact Centre were to occur.
On 13 December 2016 it was ordered that the child spend time with the mother each Saturday from 10.00 am until 4.00 pm with no requirement for supervision.
The mother’s time with the child was again increased on 21 December 2017 such that the child now spends four nights a fortnight in her care, namely from Thursday to Sunday each alternate week and an overnight on the Thursday in the intervening week. Handovers occur at the City X Police Station on K Street.

Documents relied upon

The mother relies upon the following documents:
a)Initiating Application filed 15 March 2016.
b)Mother’s Trial Affidavit filed 20 December 2018.
c)Mother’s Affidavit filed 2 April 2019.
d)Case Outline Document.
The father relies upon the following documents:
a)Amended Response filed 20 March 2019.
b)Father’s Trial Affidavit filed 16 March 2019.
c)Affidavit of Mr Q filed 4 April 2017.
d)Affidavit of Mr Q filed 20 March 2019.
e)Affidavit of Mr R filed 20 March 2019.
f)Affidavit of Ms S filed 24 April 2019.
g)Case Outline Document.

Evidence

The mother

The mother relies upon her Trial Affidavit filed 20 December 2018 and Affidavit in Reply filed 2 April 2019. The current arrangements are such that the child spends four nights per fortnight and half school holidays in the mother’s care. She contends that the child is settled and happy and that she is able to provide appropriate emotional and psychological support she considers will be beneficial to his development.
The mother’s current circumstances are set out in her trial affidavit, but in summary she continues to reside in modest accommodation comprising of one bedroom. The child and the mother sleep in the same room but in separate beds.
Without listing the detail, the mother sets out the range of activities that she undertakes with the child. They regularly attend the local library, spend time in a nearby playground, attend museums and shopping and on occasions watch aircraft take off and land from the airport.
A principal focus is the mother’s continued development of the child’s linguistic skills. The mother encourages the child to read English. The mother appears proficient in the English language and she considers that it is important that the child’s English skills be reinforced.
The mother is also proficient in the T European language and that aspect of the child’s cultural heritage and connection is promoted.
It is an important focus for the mother that the child learn to read and become proficient in the Arabic language. The promotion of the Islamic faith to the child is important to both parties, although the focus is different. The mother considers that the child should read and have an understanding of the Qur’an whereas the father considers that the child should also be engaged in the celebration of the Islamic faith including festivals and holy days.
The mother is engaged in the child’s education and development and regularly attended the child’s kindergarten in 2018 and now the child’s school in 2019.
The father does not take issue with the domestic arrangements in the mother’s home or the activities that the mother seeks to engage the child in.
The mother continues to have concerns as to the level of care for the child in the father’s home.
It has been a constant theme of the mother that the child is predominantly cared for by the paternal grandparents, in particular his grandmother, rather than the father. She does not believe that the father or members of his family focus on the child’s education and in particular his ability to read, become proficient in the English language and develop linguistically and cognitively.
She considers that in the father’s home the child’s development is “stalled”.
A further concern is that the father has recently remarried and the mother considers that the father’s new wife in her role as stepmother to the child will be obligated culturally to take over the child’s parenting, but that it would not be done at the same level provided by the mother.
There is also the mother’s concern that the father’s wife is unknown to the child and her arrival will only further complicate the uncertain arrangements for the care of the child in the father’s home.
The mother staunchly contends that the child should live with her.
The mother’s presentation is largely influenced by her allegations that the oppression and restriction she suffered in the father’s household was the catalyst and cause of her mental health issues.
The mother’s belief in this regard is at the heart of her current presentation and opposition to the father retaining the primary care of the child.
A summary of the mother’s presentation appears in her Affidavit in Reply filed 1 April 2019 as follows:-
4.I maintain that my marriage to the father was entirely oppressive and neither he nor his family supported me or made me feel like a member of their household. I was undervalued and the father and his family were in full control of every facet of my life and this resulted in my experiencing various mental health issues at the time. Those issues which I suffered were the result of the environment I found myself in while living with the father and his family and they were exacerbated following [the child’s] birth given that the father and his family ostracised me from [the child] and would not allow me to care for [the child] in any way or otherwise undertake any duties normally carried out by child’s ‘mother’.
Under cross examination the mother agreed that following her return to Australia she did not respond to the father’s email proposal that she should spend time with the child.
The mother did not do so because she was uncertain as to who was the author of the email was. It is reasonable to find that the mother considered that the email may have come from the paternal grandmother.
The mother was referred to her Notice of Risk filed 4 February 2014 where she asserted that the child was at risk because the paternal grandmother:-
…is diabetic and suffers from blood pressure. Moreover she suffers from arm pain on the right side. My husband’s mother abuses my child because as a diabetic she falls sometimes because of low sugar levels and has to rest. She has arm pain and cannot bear my son all the time when he wishes to be borne by her. She has knee problems and wants to make a surgery whose healing will take four weeks so that she will not be able to stand up all the time and will have to lay in bed. She suffers from blood pressure: when she is too upset she gets very tired and gets dizzy and then cannot care of the family. All in all she neglects my child when she has sugar attacks and can be very very aggressive when she has bad sugar levels so that she screams at the child and grabs him very hard. She has not enough tact, she is also quite old…My son lies isolated and neglected in the room when nobody has time for playing with the child and it cannot get the love a mother can give. Therefore I fear that something will happen to my son, especially that she will poisen him…
The mother was asked whether she still believed that the child was at risk of poisoning by either the paternal grandmother or members of the father’s family. The mother’s response was that she still believed it was possible, but because she has now developed a social network she is less fearful and is more confident that poisoning of either the child or herself is a remote possibility.
The mother was asked to reflect upon her return to Europe. She considered that she had lost her identity as a mother, that her role was not encouraged in the father’s home and that she was concerned that there was also a credible threat by the father’s family to kill her. She gained this belief by allegedly overhearing a telephone conversation between the father and the paternal grandfather.
The mother admitted that she did not tell anybody of this threat.
An important aspect of the mother’s concerns was that she felt she was a hostage in the father’s home. Her marriage was not registered with the community and as such she believed she was under the complete control of the father and his family.
In the period from August 2012 when the mother moved to Australia, their marriage in October 2012 and their separation in August 2013, the mother considered that she was treated like a slave in the father’s home and under a clear and present risk of violence or even that she may be harmed by them.
The mother agreed that, despite her misgivings, nobody had attempted to poison her, nor was there any evidence that the father’s family had plotted to murder her or cause her harm.
The mother’s evidence was unconvincing and I consider that it is easy to find that there was no real or credible threat to cause the mother harm, murder her, or administer poison.
Despite the focus in the early course of the proceedings on the mother’s mental health, this aspect has been given less emphasis at trial.
Neither party called any psychiatric evidence. However, reference was made to a report of Dr D, psychiatrist, dated 14 July 2016 where he summarises the mother’s mental health issues:-
The affidavit completing the original Consent Orders suggests a diagnosis of Disorganised Schizophrenia. This is a severe mental disorder that starts in early adulthood where the person shows, as the name implies, severe disorganisation of speech and behaviour. This form of schizophrenia starts in young people before their personality is well formed, and is associated with a high level of disability. Although it is possible that such cases will have a good prognosis, it is most unlikely, and generally there is a significant deterioration, with repeated hospitalisations and the need for supported care in the community, or prolonged hospitalisation.
Dr D then was required to compare the poor prognosis for a person suffering Disorganised Schizophrenia with the impressive and stable presentation of the mother upon examination.
Whilst not a matter for Dr D to opine as to the accuracy of the mother’s history in the father’s home, he considers it likely that the birth of the child and the general environment may have added a level of stress sufficient to induce a severe Adjustment Disorder with extended disturbance of conduct and mood.
Importantly, Dr D considers that all disorders appear to have now resolved and the likelihood of recurrence is low, particularly if the mother is removed from the stressful environment and has a good support network.
Given the mother’s reliance on Dr D, I do not consider that it is credible to find that the explanation for the significant and rapid deterioration of the mother’s mental health could be explained by the alleged conduct of the father and his family.
The mother is also critical of the father for not providing appropriate assistance when she was in the midst of an adverse mental health episode.
The mother argued that the father did not offer her the possibility of hospitalisation or psychiatric treatment, but when pressed conceded that she did not request it because she was scared of the response of the father and his family.
I accept the mother’s presentation is that she holds a belief that the father and his family pose a threat to her, but in the absence of any evidence I do not find the mother’s presentation credible.
The present consequence is that the mother is not able to communicate or interact with the father or members of his family. The handover arrangements for the child are perfunctory in the parties’ interaction.
The mother also alleges that the father perpetrated sexual violence. She was asked to reflect on the Court documents filed by her and in particular the content of three family reports. She agreed that on no occasion did she raise any assertion that the father had been sexually violent.
The mother agreed that the child had remained in the father’s home and that there had not been any incident between the parties during handover.
It is an observation that despite the evident mistrust between the parties, there has been strict compliance by each of the parties even though the handover arrangements have at times been onerous, in particular for the mother who does not have access to a motor vehicle, does not drive in any event, and has had to conduct her time with the child via public transport.

The mother did not agree that the child was closely bonded with the father or his grandparents.
As the cross examination continued, some more florid examples of the mother’s belief structure became apparent. She considers that if the child remains in the father’s home he will be groomed to be a terrorist or certainly an Islamic extremist.
Inconsistent with that belief, the mother acknowledged the child attends a State school and is progressing well. She is able to attend the school and has access to his school reports.
The father tendered two videos of attempted handover. The first was in answer to an allegation by the mother that the father failed to deliver the child to a handover venue for five weeks during February and March 2017. The video shows the paternal grandfather with the child at the handover venue, with the mother approaching the grandfather but then, without explanation, leaving the venue. There is some history to the father’s denial of interfering with handover.
Following the mother’s return from Europe, the evidence is that it took some time for the relationship between the mother and the child to be restored. There were occasions when the child refused to go to the mother as observed at the Children’s Contact Service.
The mother sought that handover take place in the absence of the father, but when this occurred the mother did not proceed with the handover.
The parties are also in conflict as to who should be credited with the clear achievements of the child at school. For her part, the mother considers that the milestones clearly reached by the child are as a result of her beneficial intervention and educational support.

The father

The father denied that he had ever participated in a conversation with his father and brother with the topic of discussion being an intention or consideration of either killing or harming the mother.
The father had been working as a driver, but had left this position as it was a night time job. He had also sustained a back injury but the restriction and disability has now largely improved.
Notwithstanding his current unemployed status he intends to study for a law related qualification possibly commencing in 2020.
Far from the mother being a prisoner in the father’s home, he contends that she was always allowed to do what she wished. She could leave the home on her own and had the unrestricted use of a telephone.
The father does concede that the mother spoke of returning to Europe and that he would not support the child leaving Australia.
The father paints a different picture of the difficulty that the mother, the father and members of his family had in coping with the mother’s mental health issues.
The father sought assistance from AA Medical Centre and the local general practitioner surgery at Suburb BB.
The mother was spoken to by staff from the Flinders Medical Centre and there were home visits from Family SA workers.
The domestic circumstances in the father’s home was the subject of investigation following the mother’s complaints.
The option of the mother attending the V Clinic was discussed. However, the father did not press the mother’s attendance because she had persuaded him that she did not wish to go.
The mother’s intention to return to Europe was a matter of discussion within the community. Community elders spoke to the mother and attempted to persuade her not to go. The father was aware that the mother had bought a one way ticket. The father contends that the mother told him that she would be in Europe only for a short time and would soon return.
Given that position, the father was unable to explain why orders were necessary if he genuinely believed that the mother would be returning. When challenged on the obvious inconsistency, the father’s response was that there were some allegations that the mother’s parents might try to take the child to Europe, the mother did not speak well of her parents and as a result the father was fearful that the child may be abducted and accordingly sought the safety of an order.
I do not consider that the father’s explanation is credible.
The father still considers that the mother presents as a risk to the child and that she needs ongoing therapy and assistance.
In the father’s home there is an emphasis on engaging the child in sports. The father plays a range of sports and in particular there is an emphasis on cricket given the father’s history of having played at a national level.
The father engages the child in Qur’anic studies and would be content for the current arrangements to remain with the child living primary with the father and spending time with the mother.
The father did agree that the child sleeps in various beds at night and whilst he is the child’s primary carer, it is part of his family’s culture that various generations are engaged in the upbringing of children.
Of particular importance to the father was that the child be permitted to spend specified religious festivals in his care, in particular the celebration of Eid at the conclusion of the period of Ramadan.

Mr Q

Mr Q is the father’s brother. From time to time he lived in the same house as the father but was called not for the observations of arrangements within the household for the care of the child but rather, to refute the mother’s contention that the father was principally engaged in working away from the home and in particular in respect of a family business. Mr Q confirms that the business closed in mid-2018 and denies that the child ever worked in the business as alleged by the mother.
Mr Q was asked to conduct handovers from time to time. On 1 April 2017 he attended the Suburb B Police Station and waited with the child for the mother to attend. She arrived at 10.00 am, she walked up to the front entrance and continued on her way without acknowledging either Mr Q or the child.
He denies that the mother attempted to receive the child and whilst she did return she stood impassively and said nothing to either Mr Q or to the child.
Mr Q was engaged on a second occasion when the mother attended 15 minutes late at the police station. There was no interaction between the mother and Mr Q and without explanation or apology the child left with the mother.

Mr R

Mr R is the paternal grandfather of the child. His evidence was uncontested. He denied that the father had been running a family business as alleged by the mother and in particular that the child had ever been involved or spent significant time at the family business.
In 2017 the paternal grandfather was asked to conduct a handover of the child to the mother. He attended at the Suburb B Police Station on 18 March 2017. He arrived early and observed the mother approach the police station. The mother went to the front of the police station and when it was closed the paternal grandfather pointed the mother out to the child and told him that the mother was there to collect him. The child refused to go with his mother and the paternal grandfather picked him up and carried him to her. There was a discussion in W Language, however the mother refused to receive the child and left the police station.
A similar event occurred on 25 March 2017.

Ms S

Mrs S is the paternal grandmother. Her evidence is that the father and the child have remained living in the family home. She has observed the child’s development and considers that he is “happy and well-adjusted”.
The paternal grandmother has observed that the child was reluctant to see the mother but that the transition from the father’s home to the mother’s home has significantly improved.
As at the date of her Affidavit affirmed on 24 April 2019 the paternal grandmother had returned from six months overseas. She considered that the child was unhappy when she went away and was anxious to understand the duration of her absence.
She concedes that she has a significant role in providing for the child’s day to day care and considers that she and the father are the child’s major carers, although since the father gave up work he now has taken on a more substantial parenting role.
The paternal grandmother concedes that it is important for the child’s development that he have a strong relationship with the mother and she contends that the father’s family support the child’s time with the mother.
She seeks to reassure the Court that the mother’s concerns of a conflict arising from the father’s new wife attempting to take over a major parenting role in respect of the child is not well founded.

The family reports

Ms G (“the family consultant”) conducted three family assessment reports in this matter:
·Family report dated 13 March 2017 (“the first report”);
·Updated family report dated 10 September 2017 (“the second report”); and
·Family report dated 8 April 2019 (the third report”).
The recommendation of the family consultant as reported in the third report recommends that the child should live with the mother.
The first report needs to be considered against the background of the history provided by the mother, but in particular the circumstances leading to her return to Europe and her subsequent return to Australia. The family consultant was advised that the mother was seeking to lay charges against the father and his family based on her allegations that she was a “servant” in the father’s home and that her behaviour was controlled, she was threatened with physical harm and any reasonable contact with her family and possible support networks in Australia was restricted.
For their part, the father and his family denied the allegations and highlighted that at all times the mother had been free to come and go from the family home, that the mother’s medical records showed the level of support for her from the family and that the consent orders which placed the child with the father were made only after the mother had independent legal advice.
The family consultant noted the mother’s narrative was not consistent with her affidavit material and in particular that she “tended to minimise her childhood experiences” as they may relate to a possible source of her mental health issues.
The mother was observed to be hyper-vigilant and took the precaution of attending the office of the family consultant prior to interview to determine the extent of security for her. The mother did not wish to come into contact with any members of the paternal family.
The following observation appears on page 9 of the first report:-
31.It seems that [the mother] found it difficult to reflect upon the impact her past experiences had on her current parenting role and she denied that her capacity for relationship with [the child] was affected at all by her own experiences; this suggested limited reflective capacity. Reflective capacity refers to the capacity to speak about past traumatic or abusive experiences in a coherent and integrated manner, being able to reflect upon the impact they had on the person at the time in addition to how they were currently affected by their first relational experiences. Reflective capacity is positive correlated to providing emotionally attuned parenting, because if one’s childhood experiences remain unintegrated then when the child’s expresses an emotional need then the parent is able to recognise the expression of need as a reflection of the child’s own, distinct and separate emotional state, rather than the expression of need triggering unresolved feelings relating to the parent’s own childhood and the child’s need consequently being seen via the parent by the lens of their own experience. …
The father acknowledged that his mother was the predominant carer for the child. This was occasioned by the father’s absence due to his employment.
He considered that his mother was a positive influence on the child and was heavily reliant upon her continued involvement.
The observations of the child with each of the parties is of assistance.
Given that the father considered the child reluctant to engage with the mother, the observations of the family consultant was that there were moments of shared delight with the mother, that the child hugged her and called her “Mummy”.
The mother was observed to be “child-led, shared delight with [the child] and engaged in play at his pace and in line with his chosen activity…”.
The observations were of a different relationship with the father.
The father tended not to be “child-led in his interaction” and whilst there were moments of “shared delight” and appropriate eye contact between father and the child, the family consultant considered that the child’s reticence may be explained by the primary parenting adult being the paternal grandmother rather than the father.
The first report must be seen in the context of the Court requiring assistance as to the interim arrangements.
The family consultant considered that the child’s relationship with the mother was beneficial and developing. The concern was to ensure that the mother maintained good mental health and subject to therapy with an experienced therapist continuing, the time that the mother spent with the child was increased to include two afternoons per week with a handover at a local police station.
The second report and assessment arises in circumstances where the father alleged that the child was refusing to attend with the mother and following time with her returned to the family unwell and upset.
The mother was again concerned as to her own security and recognised that there had been difficulties in the child’s presentation, but that she attributed the resistant behaviour to the influence of the father’s family.
The family consultant was also assisted by the report of the mother’s mental health therapist that mental health issues no longer should be seen as a barrier to the mother’s ability to parent the child.
The family consultant’s observations of the interaction between the father and the child were not dissimilar to those noted in the previous assessment.
The father was found to have difficulties in directing the child’s play and accordingly, adopted a “passive” presentation. The family consultant was concerned that the child was more engaged with her than with the father.
The family consultant was unable to make any effective observations of the interaction between the child and the mother given the child’s reluctance to engage.
The child’s apparent fear of the mother was difficult to reconcile with his behaviour both in the first assessment but also at the commencement of the second assessment. He was not able to identify the basis of his fear and there was nothing about the mother’s presentation which would explain why the child was frightened of the mother.
The family consultant was generally positive in her observations of the mother. She was found to present “as coherent, reflective, and able to consider [the child’s] perspective”.
The family consultant had less confidence in the father and the grandmother’s ability to be child-focused. There was also a concern that the father’s family may not be supporting the child’s relationship with the mother notwithstanding their protestations to the contrary.
What may have been a precursor for the family consultant’s recommendations in the third report can be seen in the following extract on page 17:-
65.The question before the Court is whether there is value in the child having a relationship with his mother, and if so, how this could be best effected, given the concerns raised throughout the family assessments. As highlighted, the Consultant was not convinced that the father and the grandmother could sufficiently support the child to have a relationship with the mother, and if the Court finds that it would be important for the child to have a relationship with the mother, consideration about how this could occur would be needed. The Consultant assessed that [the child] has demonstrated an ability to engage with his mother when the father and grandmother are not present, and this would suggest that [the child] may need to spend time with the mother without interference from the father and the grandmother.
The family consultant then made the bold recommendation that the father and grandmother’s time with the child should be suspended for the foreseeable future to enable the child’s relationship with the mother to develop.
At the date of the third assessment the child was five years and nine months. He was observed to separate from the father without distress and could verbalise with clarity his living circumstances namely, that he lived with his “dad, grandpa and uncle” whilst his grandmother was overseas.
The child was positive in respect of his mother and whilst it had been hard in the past to go with his mother, the difficulty related to the distance between the parties and the rigor of the mother having to travel long distances.
Whilst the child appeared ambivalent about spending more or less time with each of the parties, the family consultant was uncertain whether the child had been the subject of some influence or coaching.
The observation of the family consultant is important in terms of assessing the weight that should be attached to the child’s views as expressed.
The child was comfortable with both parents but consistent with the father’s previous presentation, he was subdued and was reticent in fully engaging with the child’s activities.
In contrast, when the mother entered the observation room, the child engaged her in a close hug, making eye contact with her and sharing numerous moments of delight.
The child’s interaction with the mother was “noticeably more animated, as was his physicality…”.
The family consultant considered that the mother had been able to build a relationship with the child and was able to meet his emotional needs in a child-focused manner.
The family consultant summarised the contrast between the observed interaction involving the mother and the father at page 16 of the third report:-
71.The quality of the mother’s interaction with [the child] was especially pronounced when contrasted with the interaction between [the child] and the father. Firstly, the father needed prompting to engage in play with [the child]; he did not seem to know how to begin. The father did not seem to consistently take his cues from [the child’s] play, which suggested a lack of insight into [the child’s] focus of interest and a lack of sensitivity. The father’s repeated attempts to introduce other items of play seemed intrusive. He was also less predictable, with very minimal commenting on [the child] or his own activity, with an absence of back and forth discussion that was sparked by their interaction or play. In turn, [the child’s] body language was subdued and muted; he seemed timid. He remained largely silent or spoke in a whisper. [The child] seemed uncertain about his father; he looked to him often for his reaction, to [the child’s] movements in play, and the father’s response was either silence or muted comments or instruction, and there lacked a sense of warmth and natural flow in their interactions. To sum, there seemed an emotional disconnection or distance in the father-son relationship.
The family consultant did not support less time between the child and the mother but rather that there should be a significant extension of time and that the mother provide the child’s primary care.
The family consultant expressed caution as to the future involvement of the father’s wife and considered at [75] that:-
[T]he Court will need to be confident that the primary care and relationship input from this unknown individual will be better than what [the child] is currently receiving from his mother, already noting the emotional disconnect that seems present in relationship with his father.
Concern was expressed as to the lack of confidence in the father’s preparedness to continue the support of the mother’s relationship with the child and given her concerns that the child may have been the subject of undue influence and coaching together with the more muted relationship between the father and the child, the mother should assume the primary care role in order to ensure that her relationship with the child continues.

The family consultant conceded that in the course of the second interview she did not conduct an observed interaction between the child and the paternal grandmother, but did agree that in an informal observation the child sought comfort from her.
The family consultant was not presented with any evidence that the paternal family had wanted to poison the mother and this would be consistent with my findings that there is no credible evidence of any attempt by the paternal family to harm the mother.
The family consultant was asked to consider the implication of the mother’s behaviour when seeing the father or members of his family entering the room.
The reaction was extreme and not capable of easy explanation.
The family consultant was challenged as to the basis of her recommendation that the child should transition to the primary care of the mother. She concedes that it may well be traumatic for the child to move to the mother’s household and an adjustment period will be required, but the change in primary care is justified by regard to the concern expressed by the family consultant that after the Court proceedings the father may not support the child’s relationship with the mother.
The family consultant was unmoved in her opinion that the father did not value the child’s relationship with the mother.

Principles relating to parenting considerations

Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the child as the paramount consideration. The best interests are to be considered by the application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognizant of the primary and additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the mother that the father has engaged in serious family violence.
I propose to adopt the following approach:
a)Give consideration to the proposals put forward by each of the parties;
b)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);
c)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
d)Have regard to the primary considerations under s 60CC(2), namely the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
e)Have regard to the additional considerations under s 60CC(3); and
f)The evidence adduced in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of diminution and comment.
A determination of parental responsibility is informed by regard to the best interests of the child. Section 61DA of the Act provides that there is a presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA(4) provides that:-
The presumption may be rebutted by evidence that satisfies the Court that it would be in the best interests of the child for the child’s parents to have equal shared parental responsibility.

Meaningful relationship with both parents

There is clearly a relationship between the child and both of his parents.
In Sigley & Evor [2011] FamCAFC 22 the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at page 83,513:
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.

Risk that may be posed to the child in the care of either parent

Neither party presents as a physical risk to the child. The family consultant observed a respectful and beneficial attachment between each party and the child.
The family consultant raised as a continuing concern across the three reports a distinct lack of confidence in the father’s preparedness to support the child’s relationship with the mother.
I consider that the family consultant was justified in raising the concern in the first report that the child’s relationship with the mother was not promoted and that the child may well have been coached or influenced to shun the mother. Whilst the father denies that the mother was treated as a servant in his parent’s home, I accept that the father and his family were not well motivated towards the mother once she left Australia.
The father’s explanation of why he needed the consent final order was disingenuous. There was no evidence that the mother’s family posed a risk of child abduction.
If the father genuinely believed that the mother’s absence from Australia was temporary, the extent to which he was keen to put in place final orders was an unnecessary step.
The importance of the father’s conduct towards the mother leading up to her departure from Australia provides some foundation for the ongoing concern of the family consultant that once the proceedings are concluded there is a risk of the father’s support for the child’s relationship with the mother to be diminished.
For her part, the mother appears unable to reconcile her differences with the father. She remains mistrustful of him and finds it difficult, if not impossible, to engage at any reasonable level with the father and his extended family.
The mother’s behaviour when attending upon the interviews for the assessments conducted by the family consultant was difficult to understand in the absence of any provocation by the father. There was no need for the mother’s security to be challenged, nor was there any evidence consequent upon the mother’s return from Europe which would justify her hyper-vigilance.
I specifically reject the mother’s allegation that there was any plot between the father and members of his family to kill or harm the mother. I am not able to say whether it is a genuine belief albeit misguided, or whether a manifestation of the stress of the litigation.
No evidence was presented to support the mother’s fears, nor did the father appear to be malicious, aggressive or demeaning towards the mother.
The father denies that his support of the child’s relationship with the mother is perfunctory. He contends that in his home, whilst the mother is not often spoken of, nonetheless she is referred to in respectful terms.
For her part, the mother’s apparent inability to recognise the father’s role in the child’s life places the child at emotional and psychological risk of harm.
The family consultant observed in the third assessment and subsequent report that the child was not able to provide any substance or any explanation for his seeming ambivalence to the extent of time that he spent in each of the parties’ care.
The family consultant was concerned that the child’s presentation may have been affected by overt influence from the father or his family.
The continued assertion by the mother that the manner in which she was treated by the father and his family immediately following is still a powerful factor in the mother’s presentation and ongoing inability to engage with the father.
I accept the evidence of the father, but more particularly that of his brother and the paternal grandfather of their attendance at handover and the mother’s inability to engage with them.
As such, each of the parties present as a risk to the child in terms of their inability to support and promote the child’s relationship with the other.
The family consultant considers that the mother presents a lesser risk of psychological or emotional harm to the child than does the father. It is the primary basis for the recommendation that the child should transition to the mother’s primary care and spend time with the father. The family consultant has a greater confidence in the mother maintaining the relationship between the child and the father than the converse.
Against that consideration, I do not ignore that the parties are respectful of Court orders and certainly of recent date there has not been complaint regarding compliance by either party.

The nature of the child’s relationship with each parent and other family members

The child is strongly attached to the mother and whilst there is obvious attachment with the father, there remains a question to be answered as to whether the paternal grandmother is the person primarily responsible for the child’s parenting. The father agrees that whilst he was in employment his mother had the primary parenting role. During the paternal grandmother’s absence for six months leading up to the third assessment, the father, paternal grandfather and paternal uncle (to a lesser extent) stepped into the breach.
The relationship between each of the parties and the child is different but nonetheless both loving and appropriate.
The family consultant considers that the mother is more child-focussed than the father which manifests itself in a stronger emotional attachment with the child.
The reports from the child’s school and other indicators of developmental milestones would suggest that the child’s progress is age appropriate. Each of the parties are able to provide for the physical needs of the child, although it is likely that the mother’s financial resources are very limited, whereas the father has the advantage of extended family support.

Any views expressed by the child

Given the age of the child and the concerns expressed by the family consultant, I do not propose to give significant weight to the views expressed by the child.
Whether the intuition of the family consultant is justified in her concern that the child has been the subject of influence by the father and his family is uncertain but that does not appear to be displayed by the child in his interaction with the mother. The current presentation of the child and his interaction with the family consultant to the extent that he was not able to express any clear preference as to whether he should spend more or less time in the care of his parents is to be contrasted with his reluctance to initially engage with the mother and re-establish a relationship with her.
Time, a higher level of maturity, and the advantage of having spent regular time with the mother may in part be the explanation for the more benign approach of the child to the time that he would wish to spend with his parents.

The likely effect of any changes in the child’s circumstances including the effect on the child of any separation from their parents or any other person that they have been living with

The orders sought by the mother would represent a significant change to the current arrangements. The child is in the primary care of the father but is likely to have the paternal grandparents and the paternal uncle as significant persons in his life.
The mother has no family support, but attests to a strong support network outside of her home.
The mother’s accommodation is limited and she is unlikely to be able to replicate the financial security that the child enjoys in his father’s home.
The circumstances of the parties may change. The mother is completing studies which she hopes will lead to remunerative employment. For his part, there is some uncertainty as to whether the father will return to the workforce.
The parties live 26 kilometres apart. The child attends a school at Suburb H. If the child were to live primarily with the mother it is likely that the child would change schools. The mother is constrained by public transport.
Her financial circumstances are modest but I find that she does the best that she can to devote resources necessary to enhance the child’s care in her home.
A change in the child’s primary home, school and a lessening of financial support will not result in an easy transition. However, the family consultant considers that the benefit to the child of maintaining a relationship with his mother outweighs the initial distress that may be occasioned to the child by the different circumstances that would be presented by a move to the mother’s home.

The capacity of the parties or any other relative to provide for the needs of the child including emotional and intellectual needs.

The child is happy, well-adjusted and is meeting developmental milestones.
The father contends that he has properly addressed all of the needs of the child and that he is able to continue to do so. There is no suggestion that the mother is neglectful of these issues and each of the parties have had an engagement in the child’s schooling.
Both parties are closely aligned with the tenets of the Islamic faith. The father takes the child to Qur’an classes and the mother remains actively engaged in community based activities.
The significant uncertainty that remains is the extent to which the father’s wife will interact with the child.
The father advised the family consultant in 2017 that his family were actively seeking that he re-partner. The Court was not presented with any evidence as to when the father’s wife would gain the necessary entry visa to take up residence in Australia.
The mother raises her concern that the involvement of the father’s wife may usurp her role. Whilst that contention is denied by the father and his mother, the family consultant places significant weight on the issue.
The father did not impress the family consultant with any confidence that he was the child’s primary caregiver. Historically he had not been and whilst there may have been more opportunity for him to do so when he ceased employment and in particular during the long absence of his mother from Australia of recent date, the observed connection between the child and the father was tentative.
Observed interaction must always be considered in the context of a difficult and unusual experience for the child and the parties. All participants understand that they are the subject of observation and are keen to be on their best behaviour. For the child, the experience may well be unnerving and without the child necessarily having an understanding of what issues are in play, the Court must treat observed interaction cautiously if it is intended that the observations of the family consultant could or should be extrapolated to the child’s general experience with each of his parents.
The observed interactions do provide some valuable insight into the extent of the emotional attachment between a party and the child. In this case, the family consultant was assisted by having observed the child on three separate occasions spanning a period from the first report in 2017 to the third report in 2019.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

As discussed, both parties are members of the Islamic faith. They are orthodox in their approach to Islam and whilst the mother would seek to label the father and his family as having fundamentalist tendencies, there was no evidence presented in support of that perceived concern.
There was evidence which supports a finding that the parents consider it important that the child be inculcated in the Islamic faith. Attendance for religious service and community based festivals and events are a feature of both parties’ adherence to Islam and the teachings of the Qur’an.
The Court had the opportunity to observe all members of the father’s family but only the mother gave evidence.
The father’s home is nurturing and faith-based in the environment in which the child lives.
The father gave impressive evidence as to his desire that the child be with him for certain religious festivals and celebrations, in particular the celebration of Eid following Ramadan.
The mother’s faith and adherence to holy days and Qur’anic teachings is not diminished by her lack of family support. Her evidence is that she has broad based community support.
I do not consider that any evidence was presented which would inform the Court that the cultural background and traditions relevant to the child would be qualitatively better catered for in the mother’s home or the father’s home.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The Court places considerable weight on the evidence of the family consultant that of the two, the mother is more likely to promote the child’s relationship with the father. The paternal grandmother is highly supportive of the father, but less so in respect of the mother.
Care must be exercised in attempting to separate the father from his family. The manner in which the father resides in his parent’s home should not be considered unusual but rather, may well be a cultural norm. It is not detrimental to the child that he would live in a household of three generations. The advantage of the father’s household is that the child is surrounded by love and ongoing care.
I do not accept that the father has any plan to leave his parent’s home and for he and his wife to take up separate residence with the child. The Court had the advantage of hearing evidence from the paternal grandparents and the assessment is that the child is lucky to have the advantage of a strong relationship with the father’s extended family.

Orders least likely to lead to further litigation

The parties are respectful of the need to comply with Court orders and although the mother remains highly mistrustful of the father and his family and exhibits manifest fear of them, there is no evidence to suggest that either party would not comply initially with orders made. However, the advent of the father’s wife arriving in Australia and the conclusion of the litigation raises the concern of the family consultant that thereafter the father may not support the child’s relationship with the mother. It is that uncertainty and the extent to which the family consultant was impressed by the interaction between the child and the mother that her recommendation is for a change in the primary care of the child to the mother.

Parental responsibility

Each party seeks an order for sole parental responsibility in their favour.
At present the parties do not communicate with each other except by the use of a communication book that travels with the child. They are able to communicate in a civil fashion but only in writing.
The mother concedes that at present she could not envisage speaking to the father personally about any topic. She hopes to be able to move towards a cooperative relationship in the future.
The father considers that it would be very difficult for the parties to reach consensus on major decisions and notes that their communication in the communication book is with respect to day to day matters and not major decisions for the child.
I do not consider that the parties are able to communicate at a level where they will be able to reach consensus.
The stability of the child, which entails a clear understanding of the ability of the party who has the primary care to be able to make important decisions as to the child’s ongoing health, education, welfare and development, must be a paramount consideration.
Accordingly and notwithstanding the provisions of s 61DA an order should be made for sole parental responsibility in favour of the party who retains primary care of the child.

Conclusion

I do not ignore that the child has lived in the effective primary care of the father and his family since birth.
Even though the child was not observed in the presence of the paternal grandparents, I readily accept from their evidence that they are strongly attached to the child.

It is also beyond question that the paternal grandmother has been the significant parental influence in the child’s life. The father looks to his mother to care for the child, particularly when he is unable to do so by reason of employment.
The father is currently unemployed but he appears to be a person of industry and he did not resile from the proposition that he is seeking employment.
The likely scenario upon the arrival of the father’s wife is that she will take on a significant role in caring for the child.
The uncertainty that potentially arises from the changing dynamic within the father’s household must be seen against the evidence of the family consultant of her concerns that the father is not motivated to support the child’s relationship with the mother.
I bring to account that the mother remains mistrustful of the father and his family and it is not an insignificant feature of her presentation that she is unable to deal with the father and his family at any reasonable level other than via the confine of the communication book.
The family consultant has observed the developing relationship between the child and the mother and simultaneously raised a concern that the father was less connected with the child corroborated by the father’s evidence that for the majority of the child’s life the paternal grandmother has been the significant parental influence.
I consider that it is the best interests of the child that he transition to the primary care of the mother. It is however important that the child’s relationship with the father be fostered. The father’s household and his extended family present significant opportunity and benefit to the child.
The child should spend five nights per fortnight with the father and one half of all school holidays.
I do not propose to make orders as sought by the father that the child should live or spend time with him during the Eid festivities, the annual congregational celebration in Sydney and Ramadan.
Those festivals are pivotal to adherents of the Islamic faith.
As discussed, each of the parties place great importance of their faith both in terms of religious observation, but also cultural and lifestyle direction. Each of the parties strongly believe in Islam and Islamic community.
In any event, the festival are determined according to a lunar calendar and it is likely that the child will enjoy those festivals with each of the parties.
I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and twenty eight (228) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 14 August 2019.

Associate:

Date: 14 August 2019