Malhotra & Divakar
[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 parties and the Child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
5.Not later than 28 days after the orders the parties must provide their contact telephone numbers and email addresses to …
6.Pursuant to Order 2 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the children. and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the child;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
7.Upon completion, the Child Impact Report shall be provided to the Registrar for release to the parties, including by way of order made in Chambers.
8.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Registrar to list any relevant material presently before the Court in admissible form (may require consideration of status of material from child welfare department or police).
9.I list this matter for hearing before myself at 10.00 am on Friday, 27 January 2023.
10.Both parties are to 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 Friday, 20 January 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Malhotra & Divakar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings in relation to the parties’ child X born in 2011. X is currently in Country B in the care of his paternal grandparents and it would appear to be an agreed fact that he has been residing in Country B since late 2019. Since that time, the applicant mother (“the mother”) has not spent any physical face-to-face time with him but, as best as I understand from the facts, she has spent some time communicating with him by either telephone or some audio-visual means.
Before the Court is the mother’s application that the child be returned to Australia forthwith and thereafter live with her. The respondent father (“the father”), for his part, says that the child is well settled in Country B and should remain in Country B until he completes his Year 5 schooling, and so proposes that the child return to Australia at the end of March 2023. The father’s position thereafter is that the child should remain in his care and spend time with the mother each alternate Sunday from 9.00 am to 4.00 pm. Therefore, the only issue before the Court today is when the child should be returned to Australia and what arrangements should be made for the child’s living arrangements thereafter.
The mother relied upon the following documents:
(2)Amended Application for Final Orders filed 5 April 2022;
(3)Affidavit of mother filed 5 April 2022;
(4)Affidavit of mother filed 4 August 2022; and
(5)Case Outline document.
The father relied upon the following documents:
(1)Amended Response for Final Orders filed 24 June 2022;
(2)Affidavit of father filed 24 June 2022;
(3)Notice of Child Abuse, Family Violence or Risk filed 24 February 2021; and
(4)Case Outline document.
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.
The father says:
52. When we reached my in-laws house, [Ms Malhotra] got aggressive and I heard her say words to the effect of, “I do not want to solve any problems, take your son back and get lost”.
53. The child had witnessed this and in order to make him feel better, I took him with me to my parents’ house at […].
54. The next day, after giving it a days' break, I went to [Ms Malhotra’s] house in order to reconcile and try to talk out our problems in front of our families. When I reached her parent's home, they told me they did not know where [Ms Malhotra] was and that they did not want to deal with our problems.
55. On or about [a later date in] 2019, [Ms Malhotra’s] close friend, [Ms D], told me that [Ms Malhotra] had left the country and has gone back to Australia. I was shocked as she left without taking [X]. I had to once again, take care of [X’s] emotional and mental wellbeing.
56. A few days later, I left for Australia. At that point, I took full responsibility of [X] and decided that he would be better cared for by my mother. I left him with my mother, in [Country B]. He was [8] years old. I decided to do this, as [X] needed a more stable environment than [Ms Malhotra] and I could give him in Australia. It was the best decision I could make at this time.
57. It is unfortunate that our relationship broke down, but it is even more saddening that [X], our son, was subjected to witnessing his mother having an affair. After settling down in [Country B], [X] became more open and talkative. It is then that he told me stories over the phone, that, “Mama was sitting in the balcony with [Mr E] and he was holding her legs”. Another time, [X] told me that, “Mama locked me in another room when [Mr E] came over”.
58. I believe that [Ms Malhotra] neglected her maternal responsibilities. When [X] was living with us, he was slow in learning, and [Ms Malhotra] did not have the skills to help him. [X] stopped speaking in English and was ‘slow’.
I cannot resolve these contested assertions.
The mother first commenced proceedings in the Court seeking the child’s return by way of application filed 24 November 2020. It is a mystery to me as to why it has taken so long for these proceedings to be heard, in circumstances where there was clearly an urgency to them. They should have been heard and determined well before today.
Before me today, the mother presses for the child’s immediate return. The father’s solicitor said the child is well settled in Country B and that he should finish his Year 5 at school before returning to Sydney. The father says that in the period since the child has been in Country B he has returned to Country B on a number of occasions:
18. Since [X] left Australia, I have travelled to [Country B], several times, to visit and spent time with him.
Date Departure Arrival Period in Australia Period in [Country B] […]/09/2019 Sydney [City F] ([Country B]) 3 days […]/09/2019 [City F] ([Country B]) Sydney 3 months […]/01/2020 Sydney [City F] ([Country B]) 3 weeks […]/01/2020 [City F] ([Country B]) Sydney 2 months […]/03/2020 Sydney [City F] ([Country B]) 7 days […]/03/2020 [City F] ([Country B]) Sydney 1 year 1 month […]/04/2021 Sydney [City F] ([Country B]) 7 months […]/11/2021 [City F] ([Country B]) Sydney 7 months
The father says that the child is well settled in Country B, is cared for by his family members, attends school and is doing well at school. In that respect he says:
The Child’s current Education
59. Ever since [X] has been in [Country B], [X] has been doing well personally and in his studies. [X] is now well settled in [Country B]. He goes to [School G] and is in Grade 5.
60. He is doing well academically and is in good company of his grandmother, uncle, aunty and cousins. He has made friends and is happy in [Country B]. Annexed hereto marked with letter “D” a copy of [X’s] 2020/21 School Reports for year 3 and 4.
61. I intend to bring him back to Australia in 2023 so that he can begin high school here and be afforded the opportunity of Australia's higher education.
Extra-curricular activities
62. [X] plays [many sports] with his friends. As the pandemic is going on he plays on the roof with his family. He also plays [other activities].
Health
63. [X] is currently in good health and does not have any health issues. His development while staying in [Country B] surrounded by a nurturing environment has been very beneficial for his mental and cognitive health.
64. He has greatly benefited from staying in [Country B] with my family and it would be in his best interest to remain there to finish his current school year there.
Current living arrangements
65. [X] lives in [Country B] at [H Street, City J] with me and his paternal grandmother. He has his own room in the house.
66. He has full support from his [uncle, Mr K] (aged 55 years), his [aunt, Ms L] (aged 48 years), and his cousins [Ms M] and [Mr N], aged 24 and 21 respectively.
67. [X] is living in [Country B] for over 33 months. He is happy and settled in his community and school.
The mother does not challenge much of this evidence but given she has had little to do with the child, realistically I presume, there is not much that she could say about it.
The ICL for her part contends that the child should be returned to Australia, certainly to ensure the commencement of school in January 2023, and indeed somewhat earlier than that to enable the child to settle into life in Australia. I am clearly unable to resolve, in the absence of any expert evidence, what the arrangements should be for the child upon the child’s return to Australia. There is much factual dispute in the material and I am simply, in the absence of any expert evidence as to how the child may cope unable to deal with that aspect of the matter today.
Applicable law
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts of which there are many.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] 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 [100] their Honours amplified their comments and said:
[100] 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.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50. It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
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.
Section 60CC(3)(d) of the Act requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the child’s parents or anybody else significant to the child.
The evidence does not permit me to make any findings about how the child might perceive being returned to Australia straight away. I accept, however, that the child probably is settled in Country B where he has been for the last three years.
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.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 24 August 2022
2
0