Malhotra & Divakar

Case [2022] FedCFamC1F 606

Federal Circuit and Family Court of Australia

(DIVISION 1)

Malhotra & Divakar [2022] FedCFamC1F 606

File number(s): PAC 6304 of 2020
Judgment of: SCHONELL J
Date of judgment: 5 August 2022
Catchwords: FAMILY LAW – PARENTING – Where the child has been residing in [Country B] with his paternal grandparents since September 2019 – Where the mother sought that the child be returned immediately – Where the father sought that the child be returned in March 2023 after completing his school year in [Country B] – Consideration of s 60CC primary and additional considerations – Where it was determined that it is in the child’s best interests that he be returned to Australia – Ordered that the child be returned to Australia by January 2023.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 62G, 69E, 69ZL
Cases cited:

Adamson & Adamson [2018] FamCA 523

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Marvel & Marvel(No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Division: Division 1 First Instance
Number of paragraphs: 41
Date of hearing: 5 August 2022
Place: Sydney
Solicitor for the Applicant: Byron & Associates
Solicitor for the Respondent: Juris Australia Lawyers

ORDERS

PAC 6304 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MALHOTRA

Applicant
AND:

MR DIVAKAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

5 AUGUST 2022

THE COURT ORDERS THAT:

1.X born in 2011 (“the child”) be returned to Australia by no later than 12 January 2023.

2.Pursuant to s 62G of the Family Law Act 1975 (Cth), the parties and the child are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (“the Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.

Part 1 of the event will occur by video, using Microsoft Teams, on Monday, 16 January 2023, with:

a.      the Applicant to attend at 9.00 am; and

b.      the Respondent to attend at 10.30 am

Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.

Part 2 of the event will occur in person at the Parramatta registry at 1-3 George Street, Parramatta on the morning of [redacted] 2023. Specific details regarding the attendance of the parties and the Child on this date will be provided to the parties in Part 1 of the event.

3.Each party will do all things necessary to ensure the Child attends upon the Court Child Expert pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that s 62G(3B) applies.

4.The…

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Malhotra & Divakar [2022] FedCFamC1F 606
Case
[2022] FedCFamC1F 606
Decision Date

CaseChat Overview and Summary

In the case of Malhotra & Divakar, the parties were involved in a dispute concerning the care and custody of their child, who had been living in Country B since late 2019. The wife alleged family violence by the father and members of his family, while the father denied these allegations. The wife sought to have the child returned to Australia, while the father opposed this. The Independent Children's Lawyer was also involved in the proceedings. The court had to decide the best interests of the child, taking into account the primary and additional considerations outlined in the Family Law Act. The court found that the child had experienced significant disruption in his life, having been moved between Australia and Country B and between various carers.

The primary consideration of protecting the child from harm and risk was given greater weight than the benefit of the child having a meaningful relationship with both parents. The court accepted the wife's allegations of risk and harm, noting that a proper investigation would take place upon the child's return to Australia. The court also considered the additional considerations, such as the views of the child and the extent to which each party had participated in making long-term decisions about the child. The court found that there was insufficient evidence to make any findings in relation to these matters.

The court concluded that it was in the best interests of the child to be returned to Australia before the start of the 2023 school year. The court ordered that the child be returned to Australia by no later than 12 January 2023, and set a date for a Child Impact Report and a hearing to consider the future living arrangements of the child. The court also directed the parties to file affidavits of any witnesses they intended to rely on for the next hearing. The court had jurisdiction to make the orders, as both parties were present in Australia.

Orders

Orders of the court

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Background

Background to the litigation

I was also assisted by submissions from each of the parties and helpful submissions from the Independent Children’s Lawyer (“the ICL”) who had only just been appointed pursuant to orders made on 17 June 2022.Background There is much controversy on the facts as between the parties. The wife alleges that she has been the subject of family violence at the hands of the father and, it would appear, members of his family. The father denies the mother’s allegations and, it appears to me, seems to allude to some psychiatric or psychological issues. The parties are also in dispute about the circumstances in which the child came to leave Australia and be in Country B. The following chronology is gleaned from the parties’ material. The evidence is less than clear and, as best I can understand it, shortly following the child’s birth, the child was sent to Country B and remained living in Country B for over three years in the care of the mother’s parents. It would appear that the mother and the father then returned to Australia. Sometime in 2015, the mother returned to Country B and stayed there for a period of time, returning to Sydney with the child in or about late 2016. It appears that the child thereafter attended school in Sydney. It appears the child remained in Australia until late 2019 but perhaps returned to Country B towards the end of 2018 for a period of time, measured by at most approximately two months. As I said earlier, the child returned to Country B in late 2019. The mother says that she was assaulted by the father in September 2019. In her affidavit of 5 April 2022, she says the following:43. My husband lied to police and made me lie as well. He told the police that I have cut my own aim and forced me to confirm his version of events.44.I was taken to [a hospital] for a check-up. I was ve1y scared of my husband and lied to the hospital staff that I hurt myself. My husband came to pick me and up from the hospital and the first thing he asked me was if I told the truth to anyone. He would not let me enter the car until I confirmed I had not told the truth to anyone. I confirmed that I lied.45. My husband then booked our tickets to [Country B] and took me and my son to [Country B] on the pretext that we will have a holiday […] and then visit our respective families in [Country B]. He said, "This will help smoothen things between us and give us a change of environment."46. We departed Australia [in late] 2019.47. My husband took my mobile phone so that I could not communicate with anyone.48. Upon reaching [Country B], I was driven straight to my parent's home. When we reached there, my husband disclosed his true intentions and plan. He told me that we are separated as of today and he tried to leave me and my son at my parent's house. My husband was accompanied by his mother and brother who met him at my parents' house.49. I attempted to get back in the car and put my son in the car as well. My husband and his family pushed me out of the car and they drove off with my son.50. On or around [the next day], I departed [Country B] for Australia in the hope that my husband had taken my son back to Australia. However, my husband was still in [Country B].51. On or about [a later date in] 2019, my husband left [Country B] for Australia. Upon his return, I went to meet him at his friend's house in [Suburb C] and enquired about the whereabouts of our son. He told me that my son was in [Country B] and that he will bring my son back after a few days.52. I tried calling my son at my in-law's house, but they would not allow me to speak to him.53. Every time I called, they made up excuses to not allow my son to come to the phone and if I persisted, my mother in law would verbally abuse me and hang up.54. Since [late] 2019, I was only able to talk to my son on 3-4 occasions.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am required under s 60CC(3)(f) and (3)(i) to consider the capacity of each of the parents to provide for the needs of the child and their responsibilities and their attitude to the child and the parental responsibilities. There is just a paucity of evidence that would permit me to make any findings in relation to these matters. I note I also have regard to the allegations of family violence.Conclusion I am of the view that it is in the best interests of this child that he be returned to Australia before school commences in 2023. By necessity, that would require the child’s return to Australia sometime before the end of January 2023. I note the mother clearly would ask that the child be returned as soon as possible. I am not, however, for the reasons I have given earlier, satisfied that further disruption to this child's life is in his best interests. It would appear to me that there has been a significant amount of disruption over the course of this child's life where he has been moved backwards and forwards between Australia and Country B and backwards and forwards between various carers. I am concerned to ensure that the least disruption as possible is occasioned to him. It amounts, at the end of the day, to a balance and I strike that balance by requiring that the child be returned to Australia by no later than 12 January 2023. I will make an order for the child and the parents to attend upon a Child Impact Report to be conducted at the … Registry of the Court, initially by way of Microsoft Teams on 16 January 2023 and then in person on a later date in early 2023. I will list this matter for hearing before myself on 27 January 2023. I will direct that both parties file and serve one affidavit of each witness on which they intend to rely addressing the matters, that they ask that I consider on the next occasion, namely, the future living arrangements of the child. Those affidavits are to be filed by no later than 4.00 pm on 20 January 2023.

Ratio Decidendi

Legal Principle Established

No issue was taken before me as to the Court having jurisdiction to make the orders notwithstanding that the child is in Country B. Both parties are present in Australia. The Court has jurisdiction arising pursuant to s 69E of the Act.Primary and Additional Considerations In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the parents is subservient to the need to protect the child from the risks and harms identified in the subsection. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439). It would appear to me that both parties consider it important that the child has a meaningful relationship with the other parent. In that respect, I note that the father’s case is that the child should spend time with the mother, day time only, albeit his solicitor indicated that if the mother travels to Country B, she can spend time with the child. The mother for her part, also, presumably, contends that the father should have a relationship with the child and in her application she seeks orders that she will facilitate reasonable requests by the child to communicate with the father and that she will provide time for the child to spend time with the father. As stated above, I am required when applying primary considerations, to give greater weight to the need to protect the child from risk and harm than to the benefit of the child having a meaningful relationship. The wife has made very serious allegations. I am unable in these interim proceedings, to resolve the competing allegations but accept that I cannot ignore the allegation of risk. There will be a proper investigation of the mother's assertions upon the child’s return to Australia. I can do no more at this stage other than to note the allegations. I now turn to consider the additional considerations. There is no evidence before me as to the views of the child and how he might otherwise view the requested application by each of the parties. I note, however, that clearly they are both of the view that the child should be returned to Australia. There is little evidence before me as to the nature of the child’s relationship with each of the child’s parents. I note that the mother has not physically had anything to do with the child for now nearly three years, whilst the father seems to have travelled between Australia and Country B. I am required under s 60CC(3)(c) to consider the extent to which each of the parties has taken or failed to take the opportunity to participate in making long-term decisions about the child. I am concerned on the factual matters to which I have alluded that it would appear that the child has been left in the care of persons other than the child’s primary carers, namely, the child’s paternal grandparents. It is unclear to me why that has been the case. This of course will be all that much clearer when the matter is before the Court on the next occasion.