MAGAR & RASTOGI

[2017] FamCA 560

FAMILY COURT OF AUSTRALIA

MAGAR & RASTOGI [2017] FamCA 560

FAMILY LAW – CHILDREN – Interim orders – Application by the mother to spend time with the child – Where the child was previously observed as having a positive relationship with the mother – Where the child subsequently refused to spend time with the mother – Where there appears to be no explanation for the child’s refusal to spend time with the mother – Where it is ordered that the parties undergo a s 62G(2) Family Law Act 1975 (Cth) assessment – Where the child should spend two nights in the mother’s care.

Family Law Act 1975 (Cth) ss 60CC, 67U

Rice & Asplund (1979) FLC 90-725
Langmeil & Grange [2013] FamCAFC 31
Marsden & Winch (2009) 42 Fam LR 1

APPLICANT: Ms Magar

RESPONDENT: Mr Rastogi

FILE NUMBER: ADC 3356 of 2013

DATE DELIVERED: 4 August 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 5 July 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 & Associates

Orders

1. That further consideration of the matter be adjourned to 14 September 2017 at 9.15am.

2. That during the period of the adjournment M (“the child”) born … 2013 shall spend time with the mother as follows:-

   (a)       From 10 am on 18 August 2017 to 4 pm on 20 August 2017.

3. That the father do deliver up the child to the Manager of the Court Childcare Facility in the Family Court of Australia, Adelaide Registry at 10 am on 18 August 2017 and that the Director of Child Dispute Services do cause the said child to be released into the care of the mother.

4. That upon delivery up of the child the father shall forthwith leave the precincts of the Family Court of Australia Registry.

5. That at the conclusion of the child’s time with the mother, the child to be returned to the father at the Suburb B Police Station.

6. That pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties and the child attend upon Ms G, family consultant, or such other family consultant as may be nominated by the Director of Child Dispute Services for the purpose of a family report to be commenced on 21 August 2017 at such times as may be advised.

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

1. On 15 March 2016, Ms Magar (“the mother”) filed an Initiating Application seeking parenting orders in respect of M born in 2013 (“the child”) such that the child would spend time with the mother and an injunction restraining the father from removing the child from the Commonwealth of Australia.

2. On 1 April 2016, Mr Rastogi (“the father”) sought orders that the child spend time with the mother conditional upon it being supervised at a children’s contact service and an observational report to be obtained.  The father also seeks that the mother undergo a psychiatric assessment and be restrained from discussing the proceedings and “her claims to have been enslaved or mistreated by the father and/or his family” with or in the presence of the subject child.

3. There is considerable history to the proceedings.

4. On 20 September 2013, a consent order was made by a Registrar of the Family Court which provided for the father to have sole parental responsibility for the child, that the child live with him and spend time with the mother as may be agreed between the parties.

5. Each of the parties were represented at the time of the orders.

6. The mother left Australia and took up residence in Europe in late September 2013.  She alleged that the father and his family subjected her to duress and coercion to enter into the consent order.  Her departure to Europe was necessary to have the support of friends and family to assist her in dealing with her poor mental health.  Any suggestion that the mother was coerced or compelled to enter into the consent order, or that she was in any way “enslaved” in the father’s family and household was strongly denied by him.

7. On 14 July 2015, the mother filed an Amended Initiating Application seeking to revisit the parenting arrangements.  She sought that the child live with her and be permitted to relocate from Australia to Europe.  The father sought to summarily dismiss the mother’s application.

8. On 12 October 2015, I found that there had been no material change in the circumstances affecting the child.  The mother had not seen the child for two years and remained residing in Europe.  She presented no evidence as to her historical or current psychiatric or psychological state and by application of the principles as set out in Rice & Asplund (1979) FLC 90-725 and further considered by the Full Court in Langmeil & Grange [2013] FamCAFC 31 and Marsden & Winch (2009) 42 Fam LR 1, the mother’s Amended Initiating Application was dismissed. At paragraph 52 of the Reasons delivered the following appears:-

   It may be that matters will transpire in the future where the mother feels that she is in a position to return to Australia, and she seeks to resurrect some form of relationship with the child.  It may be that the mother seeks to do so remotely and electronically.  If she does, and those entreaties are the subject of trenchant rejection by the father and/or appear to be the subject of objection and hurdles, the mother may well have a cause of action in the future.

9. On the return date of the Initiating Application orders were made by consent that the parties enrol in a children’s contact service and following acceptance into the programme the mother was to spend time with the child for six fortnightly sessions at times as may be nominated by the director.

10. The mother was also to undergo a psychiatric assessment and provide a report to the Court and the father.

11. On 13 December 2016 orders were made that provided for the child to spend time with the mother each Saturday from 10 am to 4 pm and a family report to be prepared for consideration at the hearing on 17 March 2017.

12. Given the mother now resides in Adelaide, the father considers that there should be a relationship between the mother and the child, but he remains concerned as to her mental health.

13. The family report dated 13 March 2017 was considered by the Court and following submissions the proceedings were further adjourned to 24 May 2017 with orders that provided for the child to spend time with the mother each Saturday from 10 am to 4 pm with handover to occur at the Suburb C Children’s Contact Service and until acceptance into the service, at a police station.  The handover was to be conducted in the absence of the father.

14. On 7 April 2017 orders were made that required the father to deliver up the child to the Manager of Court Child Care facility on 11 April 2017.  The father complied with the order and the child was released into the care of the mother.  Orders made 11 April 2017 provided for the child to spend time with the mother each Tuesday from 10 am to 4 pm and following acceptance into the children’s contact service, with the mother each Saturday from 10 am to 4 pm.

15. On 22 March 2017 the mother filed an Application in a Case seeking the delivery up of the child, or in the alternative, that a recovery order do issue pursuant to s 67U of the Family Law Act 1975 (Cth) (“the Act”).

16. Notwithstanding the order, 29 April 2017 was the last time the child spent effective time with the mother.

17. The father’s response is to dismiss the mother’s Application in a Case.

18. The mother considers that the father and his family do not promote the child spending time with her.  The father considers that he is doing all that is possible to comply with court orders, but that the mother is effectively a stranger to the child.  In the father’s home the child is part of a family and a big community.  The mother has a different lifestyle and culture and in the absence of a bond with her the child feels insecure.

FAMILY REPORT

1. In the report dated 13 March 2017, the family consultant recommended that the mother engage in therapy to assist her to place into perspective issues of mental health arising from her childhood experiences, but once that process had started then the child could spend time with the mother for two afternoons per week, but consideration of overnight time should not occur until the child is four years of age.

2. The family consultant records that the father acknowledged that the paternal grandmother is in reality the primary carer for the child and that he slept on a bed either in his grandmother’s room or in bed with her.  The father agreed that the child’s parenting was very much undertaken by members of his family.

3. The observations of the child’s interaction with the father were conducted through the lens of the family consultant considering whether the child “did not have the regular, predictable experience of 1:1 interaction with his father…”

4. Paragraph 73 records the observations:-

   [The father] tended to not be child-led in his interaction, rather attempting to introduce new toys and activities when [the child] was clearly involved in something else and their interaction was mostly very quiet.  It was observed, however, that during the brief moments when father and child did seem attuned, that is when [the father] was child led, verbalised [the child’s] actions, and seemed invested in what [the child] was engaged with, moments of shared delight and eye contact between them was noted to increase.

5. When the child was introduced to the mother, the family consultant observed at paragraph 74 that:-

   [The child’s] face was observed to light up upon seeing his mother, he hugged her and called her “Mummy”.

6. The child appeared to be delighted when engaging with his mother and the following summarises the observation:-

   [76][The child] was also noted to engage his mother in frequent discussion or spontaneously initiated narratives about what he had seen, generally in [the mother’s language] and she tended to repeat his questions in English and respond in both languages.  She frequently touched him in an affectionate manner, which he did not appear to be wary or frightened of.  In turn, [the child] initiated physical closeness with her as they played and seemed more animated in his discussion and play than in the previous session.  At one point [the child] indicated a book he would like to read, and they sat snuggled together on the couch as she read to him.

7. The family consultant was concerned to highlight her observations of the positive interaction between the child and the mother and the reports of the child’s reluctance to spend time with her.  The reports of supervised time conducted by the children’s contact service were positive and the concern of the family consultant was whether the paternal family were wholly supportive of the child resuming a relationship with the mother.

MOTHER’S MENTAL HEALTH

1. The mother sought a psychiatric report from Dr D.  The psychiatrist reviewed the mother’s medical notes since 31 May 2013 and following an interview and assessment has provided a report dated 14 July 2016 annexed to an affidavit of the mother’s solicitor filed 18 July 2016 and an addendum report dated 28 July 2016 annexed to the mother’s solicitor’s affidavit filed 31 August 2016.  The psychiatrist was not able to detect signs of psychosis in circumstances where he considered that if present it would be apparent.  He did not agree with an earlier assessment of another psychiatrist that the mother presents with Disorganised Schizophrenia.  Rather, the diagnosis is one of Post-Traumatic Stress Disorder arising from mistreatment inflicted on the mother by her mother and the difficulty she experienced in leaving her home in Europe to live with the father and his family in Australia.

2. His prognosis for the mother is that she has made a complete recovery.  There were no signs of psychosis and he was confident that she will remain well subject to a risk of “decompensation if placed in a situation of continued high stress”.

3. He considered that she had the capacity to be a competent mother without any qualification or concern from a “psychiatric perspective”.

4. Following the recommendation of the family consultant, the mother made contact with a mental health social worker.  Following six sessions commencing 3 April 2017 and concluding 19 June 2017, the social worker considered 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 made were implemented”.

5. During the period of therapy, the mother had not seen the chid since 29 April 2017 and notwithstanding the mother’s upset she had nonetheless maintained a stable mental state.

6. There is no challenge by the father to the assessment of either the psychiatrist or the mental health social worker.

OBSERVED INTERACTION AND HANDOVER

1. As at 29 April 2017 the observations of the children’s contact service was that there were no issues in the child transitioning to the mother’s care.

2. On 6 May 2017 the child was observed to attend in a distressed state clinging to his grandfather.  He is reported to have said to the worker:-

   I don’t want to see Mum.  If you’re going to take me to see Mum I’m not coming with you.

3. The child was then observed to cry and shriek.

4. The child was unwell on 13 May 2017 and further attempts were made on 20 and 27 May 2017 and 3, 17 and 24 June 2017.  On each occasion the child refused to leave the care of either a family member, the father or the worker.

CURRENT PROCEEDINGS

1. The solicitors for each of the parties agree that the orders they currently seek are unlikely to be effective.  The father acknowledges that it is important for the child to have a relationship with the mother, but he is not able to assist the Court in orders that would achieve that stated outcome.  For her part, the orders promoted by the mother’s solicitor are likely to exacerbate and inflame the mistrust that each of the parties has for the other and the uncertainty that the child has in engaging with the mother.

2. In the absence of any clear proposal by either of the parties, it is likely that notwithstanding the current orders the child will not spend time with the mother.

PARENTING CONSIDERATIONS

1. I am required to make parenting orders that promote and facilitate the best interests of the child and in doing so must place substantial weight on the importance of maintaining a meaningful relationship with each parent.

2. The resolution of any allegation to risk is always subservient to a determination of what is in the child’s best interests having regard to the primary and the additional considerations as set out in s 60CC of the Act. In doing so I must give proper recognition to the interplay between s 60CC(2) and s 60CC(2A).

3. Unless satisfied on the balance of probabilities, the Court should be reluctant to make a finding as to the veracity of any allegation that may be made.

4. I am not obliged to consider each and every factor pursuant to s 60CC, but rather, to consider those factors that are relevant to the determination of what would constitute the best interests of this child as against the competing claims of the parties.

5. It is not suggested that the mother presents as a risk to the child other than as may arise from the father’s concern that the child is highly resistant to spending time with his mother.  The father is uncertain as to the effect on the child of orders that may force the child to transition into the mother’s care pursuant to interim orders.

6. The child is now four years of age.  As such, caution must be exercised in respect of the weight that should be placed upon the child’s wishes.  It appears from the observations made at attempted handover that the child does not want to see his mother.

7. The observations at handover are in stark contrast to the favourable observations of the family consultant.

8. The parties agree that it is in the best interests of this child to have a relationship with his mother. 

9. The family consultant was complimentary of the mother’s ability to engage the child and there appeared to be an advantageous emotional attachment and delightful interaction.

10. The breakdown of the relationship in late April 2017 following a number of successful periods with the mother, in the absence of explanation would suggest a reason other than a decision of the child.

11. If the child does not resume a relationship with the mother, the benefit observed by the family consultant will rapidly dissipate and any future attempt to reinstate the relationship between child and mother may well be significantly compromised.

CONCLUSION

1. Accordingly, the interests of this child are best served by orders that would promote and maintain the child having a meaningful relationship with his mother.

2. The observations of the family consultant and supported by the observational reports of the Children’s Contact Service until the apparent refusal of the child to spend time with the mother is such that the Court may be assisted by a further report that will explore an explanation for the child’s behaviour and provide some guidance as to how any distress of the child may be ameliorated.

3. The history of handover reveals a successful transition using the services of the Director of Child Dispute Services to effect handover.  The family consultant considered that it would be appropriate for consideration to be given to overnight time commencing after the child’s fourth birthday.

4. I propose to order that the child transition into the mother’s care for a period of two nights with the parties and the child attending upon the family consultant and thereafter a report being prepared and further consideration adjourned to a date following the publication of the family report.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 4 August 2017.

Associate:

Date:  4 August 2017