Magar and Rastogi (No 2)

[2017] FamCA 1077

FAMILY COURT OF AUSTRALIA

MAGAR & RASTOGI (NO 2) [2017] FamCA 1077

FAMILY LAW – CHILDREN – Interim orders – Best interests of the child – Spend time with – Where the mother seeks a gradual increase of time with the child – Where the father is opposed – Consideration given to the best interests of the child and the effect of an order on the parties’ shared parental responsibility – Order upheld – Orders made for the mother to spend time with the child gradually increasing.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 62G, 65DAC

Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-654 Goode and Goode (2006) FLC 93-286 Keats & Keats [2016] FamCAFC 156 Marvel v Marvel (2010) 43 Fam LR 348 Mazorski v Albright [2007] FamCA 520 MRR v GRR [2010] HCA 4
APPLICANT:	Ms Magar

RESPONDENT: Mr Rastogi

FILE NUMBER: ADC 3356 of 2013

DATE DELIVERED: 21 December 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 15 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alevizos

SOLICITOR FOR THE APPLICANT: Harry Alevizos

COUNSEL FOR THE RESPONDENT: Mr Charman

SOLICITOR FOR THE RESPONDENT: Ian Charman and Associates

Orders

1. That all interim parenting orders are discharged.

2. That until further order M born … 2013 (“the child”) shall spend time with the mother as follows:-

   (a)From Saturday 10 am to Sunday 4 pm for three periods on 23, 30 December 2017 and 6 January 2018;

   (b)From Friday 10 am to Sunday 4 pm for two periods on 19 January 2018 and 2 February 2018;

   (c)From Thursday 10am to Sunday 4 pm commencing 15 February 2018 and each alternate week thereafter;

   (d)From Thursday 10am to Friday 4 pm commencing 22 February 2018 and each alternate week thereafter;

   (e)For one half of all school holiday periods to commence in the 2018 third term school holidays as may be agreed between the parties but in the absence of agreement for the first half PROVIDED that during the Christmas school holiday period for 2018/2019 the mother’s time shall be taken on each alternate week.

3. That the father do forthwith authorize the Principal of Suburb H Children’s Centre to provide all information in respect of the child’s attendance in 2018 as may be requested by the mother to include but not limited to school reports, notes, parent/teacher consultation, concerts and other activities.

4. That the mother be permitted to attend the Suburb H Children’s Centre in respect of all occasions to which parents are normally invited.

5. That the father do all things necessary to ensure that the records of the Suburb H Children’s Centre reflect the mother as being a parent of the child.

6. That the father forthwith advise the mother of the child’s treating health professionals and shall authorize the child’s general practitioner, dental practitioner or any other health professional engaged with the care of the child to enable all information as may be requested by the mother to be released to her.

7. That the place of handover shall be the J Police Station on the corner of K Street and L Street, Adelaide SAVE as may be agreed between the parties.

8. That the parties do utilize a communication book as to matters directly affecting the child when in the care of the other parent.

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 (No 2) 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

1. The parties remain in dispute as to the ongoing parenting arrangements for M born in 2013 (“the child”).

2. There is a considerable history to the proceedings.  The background is adequately set out in judgments delivered 12 October 2015 and 4 August 2017.

3. Orders made on 4 August 2017 adjourned the proceedings to 14 September 2017 and provided for the child to spend time with the mother from 10 am on 18 August 2017 to 4 pm on 20 August 2017 leading up to the preparation of a family report prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”).

4. The lengthy evaluation and recommendations of the family consultant in the updated family report dated 10 September 2017 considered that any observation of reluctance by the child towards the mother may well be as a result of influence by others, in particular the father and members of his immediate family.

5. If the Court did not see the mother as a risk, the observations of the family consultant were consistent with “coherent, reflective and able” parenting, whereas the presentation of the father and the paternal grandmother were not supportive of the child developing and maintaining a relationship with the mother.

6. It was considered by the family consultant that unless the Court could be satisfied that the father and his family were able to promote a meaningful relationship, the Court should consider a change of residence, with the father and paternal grandmother’s time to be suspended to enable the child’s relationship with the mother to develop.

7. The publication of that report prompted the mother to file an Application in a Case on 6 October 2017 seeking that the child be placed with the mother and spend no time with the father until he has undertaken “to assist him in understanding the importance of the said child enjoying a relationship with both parents and their extended families”.  The mother now relies upon her amended Application in a case filed 23 November 2017.  The father filed a Response on 9 November 2017 seeking that the mother’s application be dismissed.

8. On 14 September 2017 orders were made that the child spend time with the mother each Saturday from 10 am until 4 pm.  At present the handover occurs at the J Police Station.

9. Submissions were heard on 15 December 2017 with judgment reserved.

DOCUMENTS RELIED UPON

1. The mother relies upon the following documents:-

   (1)Amended Application in a Case filed 23 November 2017

   (2)Affidavit of mother filed 6 October 2017

   (3)Affidavit of mother filed 23 November 2017

2. The father relies upon the following documents:-

   (1)Response filed 9 November 2017

   (2)Affidavit of father filed 9 November 2017

   (3)Affidavit of father filed 5 December 2017

PROCEDURAL MATTERS

1. The proceedings have been placed in the trial list, but on present indication the matter is unlikely to be listed for trial in 2018.

2. Even the most superficial consideration of the Court file indicates that I have attended to the matter on 12 separate occasions.  Multiple judgments have been delivered and given the matters raised in the most recent family report, the Court needs to consider interim orders that will assist the parties and promote the interests of the child for a relatively lengthy interim period.

3. Given the history of the matter and the premise upon which the recommendations of the family consultant were made, it is notable that the current orders have been the subject of compliance and for two months the child has spent time with the mother on a limited albeit weekly basis.

INTERIM PARENTING

1. In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court considered the caution with which interim applications should be considered:-

   [120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   [122]In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. In Deiter & Deiter [2011] FamCAFC 82 the Court considered the situation where the issue of risk was required to be assessed:-

   [61]…Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

3. In Eaby & Speelman (2015) FLC 93-654 the Full Court said:-

   [18]…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

4. In Keats & Keats [2016] FamCAFC 156 the Full Court said:-

   [9]…the principles that emerge from cases such as SS & AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

THE LAW

1. The principles applicable to parenting and interim proceedings were considered by the Full Court in Goode and Goode (2006) FLC 93-286 and reaffirmed in MRR v GRR [2010] HCA 4.

2. I approach the matter by a consideration of s 60CA namely that the best interests of a child are the paramount consideration and are to be considered by the application of the objects of s 60B(1).

3. I bring to account the primary considerations and the additional considerations in respect of matters as set out in s 60CC(2) and (3) in order to determine what are the best interests of the child and how they will be best served.

4. I am mindful of the directions contained in s 60CC(2A) and have regard to the issues raised by each of the parties, but in particular by the father that a cautious approach should be adopted in circumstances where there may well be a focus on the mother’s history of poor mental health.

MATTERS RAISED BY EACH OF THE PARTIES

1. The mother’s Amended Application in a Case filed 23 November 2017 seeks the introduction of a shared care arrangement but on the basis of each week being split.  Handovers are to continue at the J Police Station and the mother raises the issue of the child being enrolled in a kindergarten close to her home.

2. There is a concession by the mother that the orders sought in the Application filed 6 October 2017 may well have represented a change that may well have been beyond the capacity of the child to accept.  The mother’s first Affidavit filed 6 October 2017 was of little assistance in that it did not inform the Court as to the mother’s current circumstances and the arrangements that she proposed should the Court make orders in terms of her application.  Her subsequent Affidavit filed 23 November 2017 provides information as to the proposed kindergarten near where the mother resides.  She is concerned that the father is not promoting the child’s education and that he (and his mother) have only come to the decision that the child should be in kindergarten with reluctance prompted by the proceedings.  The mother has also considered primary school and her enquiries are that Suburb N School is able to accept the child following the completion of his pre-school attendance.  Both parties anticipate that the child will commence primary school in 2019.

3. The mother resides in appropriate rental accommodation in Suburb O.  She has been there since January 2016 and there is nothing to suggest that she would not be able to remain.  She refers to her home as “neat and comfortable”.  It would appear to have all necessary amenities.

4. The mother does not work and receives financial support by way of Centrelink entitlement together with rental assistance and other concessions.

5. There is a small deduction each month for child support.

6. The mother has not re-partnered.  Her mobility is restricted by her inability to drive and her reliance on public transport. She does however have a strong support network, attends at a local mosque for religious observance and would appear to be closely connected with her community.  The mother does not have family in Australia.  The history explaining the background to her current circumstances is set out in earlier judgments.

7. For his part, whilst the father accepts that time is being spent pursuant to the orders, he considers that handovers remain problematic.

8. A number of different options have been considered in order to promote the child to transition from the father and his family to the mother.

9. Whilst it was not the first option of the mother, the father now argues that it is his attendance that enables the transition of the child to the mother’s care to occur which would appear to be counter-intuitive to the mother’s claim that he is resistive to the child maintaining a relationship with her.

10. The relationship between the parties is effectively non-existent.  The mother is unable to remain in the Court room with the father and whilst they now effect handover personally, it is common ground that the mother is not able to engage at any level with the father.

11. Communication is almost non-existent.  This is potentially a difficulty in respect of the orders that the mother seeks that there be a communication book between the parties and that they have shared parental responsibility at least in respect of matters relating to the child’s education.

12. The more recent affidavit of the father informs the Court (and the mother) that the child has now been enrolled at Suburb H Children’s Centre which is approximate to his family home.  The child has attended at an introductory session on 29 November 2017 and it is expected that he will commence kindergarten in late January 2018.

13. The children’s centre is located on the same campus as Suburb H School and it would be assumed that the child would transition to the campus primary school.

14. The father rejects any suggestion that he has set about to discourage the child having a relationship with the mother and highlights that the background to the child remaining in the care of the father and his family is both unusual and complex.

15. Nonetheless, the child is happy and settled in the father’s home and whilst at present the father is not employed and therefore looks after the child’s needs, upon resuming employment it is reasonable to assume that the paternal grandmother will take on a significant parenting role.

16. The mother argues that she is available to look after the child and accordingly the child should be in her care rather than with members of the father’s family.

17. The father does acknowledge that a move to overnight time could be trialled but should be undertaken with caution.

MOTHER’S MENTAL HEALTH

1. I have given careful consideration to whether the mother presents as a risk to the child arising of her history of poor mental health.

2. That aspect was a significant focus in reasons delivered 4 August 2017.  The mother’s psychiatrist considered that she had made a complete recovery.  There were no signs of psychosis and he was confident that she would remain well.

3. Certain recommendations were made by the family consultant that the mother make contact with a mental health social worker.  She did and completed six sessions between April and June 2017.  The remarks of the social worker gave the Court confidence that the mother had “demonstrated a strong commitment to the therapy process which indicated a commitment to the development of her relationship with [the child] and all suggestions and recommendations were implemented”.

BEST INTERESTS

1. 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.

2. In Mazorski v Albright [2007] FamCA 520 Brown J considered the definition of meaningful and observed:-

   [26]What these definitions convey is that “meaningful” when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitative one…

3. I do not consider that the mother poses a physical risk to the child.  The issue is whether the orders that the mother seeks will best serve the interests of the child in circumstances where he has lived primarily with the father and the paternal family but in particularly the paternal grandmother.

4. Regard has been given to the report of the family consultant dated 10 September 2017.

5. The discussion with the family consultant highlighted the mother’s concerns at that time that the child’s resistance was due to the paternal family’s influence.

6. The focus therefore was on whether the father and the paternal grandmother were able to demonstrate that they were supportive of the mother’s relationship with the child.

7. The family consultant formed the view that the father and his family were not supportive of the mother’s relationship with the child and was concerned at the father’s response of the child to seeing the mother and his remarks to the children’s contact service staff on 4 February 2017 that the child had “no connection” with the mother.

8. The observations between the child and the mother were positive and showed a level of warmth and a pathway to the mother developing a strong emotional attachment with the child in circumstances where they had been separated for the first three years of the child’s life, albeit as a result of the mother’s own actions arising from her poor mental health.

9. The family consultant’s observations of interaction between the father and the child described his engagement as similar to a “spectator”.

1. The summary of the observations and interaction was that the child “did not consistently see his father as an attuned figure”.

2. Whilst the recommendations of the family consultant pointed to a change in residence, at this stage I propose to adopt a cautious approach.  I am uncertain as to how the child would react to such a dramatic change.

3. The amended application of the mother seeking shared care on the basis of a split week is also problematic in circumstances where the parties have no ability to communicate with a focus on the child.

4. I am reminded of the provisions of s 65DAC which considers that if the parties are to share parental responsibility involving the making of a decision about a major long term issue, then s 65DAC(3) should be considered:-

   The order is taken to require each of the persons:

   (a)to consult the other person in relation to the decision to be made about that issue; and

   (b)to make a genuine effort to come to a joint decision about that issue.

5. I do not consider that the parties would be able to fulfil the requirement for effective communication and discourse pursuant to s 65DAC of the Act.

6. I have regard to the additional considerations.  I do not propose to give significant weight to the wishes of the child.

7. I do find that the interests of the child are best served by increased time being spent with the mother and in circumstances where she is able to engage with the child in a range of parenting activities that are currently not open to her under the current order.

8. I do not consider that there is at this stage an advantage to the child in changing his primary care from the father to the mother. To the extent to which the child may be looked after by other members of the father’s family may become a consideration if the father’s work arrangements which may require him to abrogate his parenting responsibilities to other members of his family.

9. If the child attends Suburb H Children’s Centre, the term arrangements are as follows:-

   (a)On Monday between 8.50 am and 3 pm;

   (b)On Tuesday between 8.30 am and 3 pm; and

   (c)On Wednesday between 12.20 pm and 3 pm.

10. The mother candidly concedes that she is not able to assist in the child attending kindergarten given her total reliance on public transport and the substantial distance between the mother’s home at Suburb O and the child’s proposed school at Suburb H.

11. Having considered the provisions of s 60CC, I do not consider that it is in the best interests of the child to change the parental responsibility arrangements currently provided for.  It is however appropriate that the father be required to provide all necessary information and any authority required for the mother to have free and unfettered access to the child’s kindergarten and information in respect of the child’s academic performance and personal development.

12. Given the age of the child, the history of compliance with the current order and the remarks of the family consultant, the child’s relationship with the mother will be enhanced by orders providing for overnight time albeit introduced gradually but falling short of any challenge at this stage to the child remaining in the primary care of the father.

13. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 21 December 2017.

Associate: 

Date:  21 December 2017