Mehra and Bose
[2011] FMCAfam 263
•11 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MEHRA & BOSE | [2011] FMCAfam 263 |
| FAMILY LAW – Children – Parenting Orders – one child living with mother – best interests of the child – where there is conflict between the child’s parents – whether the child will suffer harm by being exposed to parental conflict – equal shared parental responsibility – equal shared parental responsibility – substantial and significant time – Airport Watch List – Security Deposit. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA |
| Bose & Mehra [2010] FMCAfam 353 |
| Applicant: | MR MEHRA |
| Respondent: | MS BOSE |
| File Number: | SYC 4358 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 March 2011 |
| Date of Last Submission: | 10 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Solicitor for the Respondent: | Ms Tin |
| Solicitors for the Respondent: | Marsdens Law Group |
ORDERS
All previous parenting orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child [X] born [in] 2008.
The child [X] is to live with the Mother.
The child [X] is to spend time with the Father:
(a)Until [date omitted] 2011:
(i)From 5:00 pm to 7:30 pm each Tuesday;
(ii)From 5:00 pm to 7:30 pm each Thursday;
(iii)From 8:00 am to 4:00 pm each Saturday;
(b)From [date omitted] 2011 to [date omitted] 2012:
(i)From 7:30 am on Friday to 12 noon on Saturday;
(ii)From 7:30 am to 7:30 pm each Tuesday;
(c)From [date omitted] until [X] commences school:
(i)From 7:30 am on Friday until 5:30 pm on Saturday;
(ii)From 7:30 am to 7:30 pm each Tuesday;
(d)From the time that the child [X] commences school until she attains the age of 18 years:
(i)Each alternate weekend from after school Friday until the commencement of school on Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on Tuesday;
(ii)For one half of each of the Autumn, Winter and Spring school holidays being the first half in each odd numbered year and the second half in each even numbered year;
(iii)From 9:00am on 2 January until 5:30pm on Australia Day in each year;
(iv)From 9:00 am to 5:30 pm on Father’s Day in each year;
(v)During the Diwali festival in each odd numbered year;
(vi)From 5:00 pm on Christmas Eve until 5:00 pm on Christmas Day in each even numbered year; and
(vii)At such other times as the parties shall agree.
The child [X] is to live with the Mother at all other times.
Changeover between the parties is to be at the [A] Childcare Centre at [address omitted] or at such other place as the parties shall agree.
The Father must submit his work schedule to the Mother at the commencement of each year within forty-eight (48) hours of receiving the work schedule.
The Father must submit a copy of his [work] roster to the Mother at the commencement of each month within forty-eight hours of receiving the [work] roster.
Each party must advise the other of their home address, landline telephone number if any and mobile telephone number within fourteen (14) days of the date of these Orders.
Each party must advise the other of any change to their home address, landline telephone number or mobile telephone number within forty-eight (48) hours.
Each party is to continue the nutritional plan ordered for [X] by her dietician or paediatrician.
In the event that the Mother is unable to take the child [X] to any medical appointment, vaccination, immunisation or hospital attendance than the Father must do all things necessary to take the child.
Each party must advise the other of any illness or injury requiring medical or hospital treatment suffered by the child [X] as soon as is reasonably practicable.
The Mother is restrained by injunction from removing or attempting to remove the child [X] born [in] 2008 from Australia until 31 March 2013.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and the Police Forces of the various States and Territories of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said child [X] from the Commonwealth of Australia on any date prior to 31 March 2013.
The Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship are to do all things necessary to place the name of the child [X] born [date omitted] 2008 on the Airport Watch List also known as the PACE Alert System at all points of arrival and departure from Australia and maintain the child’s name on the said Watch List until 31 March 2013.
The application by the Mother for the return by the father of the sum of $5,000.00 security is dismissed.
The application by the Mother for the return by the Father for the return of items including but not limited to a nursery cot, changing table, mattress and bed linen is dismissed.
Each party must do all necessary things to permit the child to practise the Hindu culture and the Hindu religion whilst in the care of that party as provided by these Orders.
Upon the commencement of the child at school each party is to be entitled to receive from the school copies of all school reports, newsletters, invitations to school functions, information about school photographs and all other information normally provided to parents of children attending that school and each party is to provide to the child’s school a copy of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Mehra & Bose is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4358 of 2009
| MR MEHRA |
Applicant
And
| MS BOSE |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for final parenting orders. The application relates to the parties’ daughter, [X], who was born [in] 2008. [X] lives with the Mother.
Orders Sought
The Father originally sought orders as set out in his Amended Application in a Case, filed on 28th January 2011. However, in cross-examination, he told the Mother’s solicitor that he agreed with several of the recommendations contained in the Family Report.
The Mother seeks a number of detailed orders in her Response to an Application in a Case.
Despite the use of those documents, the parties are in fact seeking final orders, not interim orders.
Background
The Father was born [in] 1975. The Mother was born [in] 1978.
The parties were married in India in a Hindu ceremony [in] 2004. There is one child of the marriage, [X], who was born [in] 2008. The parties separated on 7th April 1979. The child remained living with the Mother and continues to do so.
After the marriage, the Mother arrived in Australia in September 2004 on a tourist visa. The parties commenced living in Melbourne.
The Father became a permanent resident of Australia on December 2004. The Mother returned to India in February 2005 as her visa had expired.
The Father remained living in Australia and joined [employer omitted] in May 2005.
The Mother returned to Australia in September 2005. The parties were married according to the law of Australia [in] 2005.
The parties relocated to Sydney in March 2006 as the result of the Father being posted to Sydney by [his employer]. The Mother obtained employment in Sydney as an [omitted].
The child [X] was born [in] 2008.
In December 2008, after disagreements between the parties, they travelled to India with the child. On 31st December, when they arrived at Mumbai airport, the Father left the mother and the child. The Mother stayed in Mumbai with her family.
Over January and February 2009 there were altercations between the Father and his family on the one hand and the Mother on the other. The police became involved and the Father and his father were arrested.
The Mother and the child returned to Australia on 28th February 2009. The parties resumed cohabitation. They separated on 7th April 2009 and remained living apart.
On 24th July 2009 the Father commenced proceedings by filing an application for orders that;
a)the parties should have equal shared parental responsibility for the child [X];
b)the child should spend overnight time with the Father on Tuesdays and Thursdays of each week and on alternate Saturday and Sunday nights;
c)the parties be restrained from removing the child from Australia; and
d)the child’s name be placed on the Airport Watch List.
On 7th September 2009 Altobelli FM made interim orders restraining the parties from removing the child from Australia and placing her name on the Airport Watch List.
On 18th December 2009 Altobelli FM made interim orders by consent providing that the child would spend time with the Father:
a)each Saturday from 8:00am to 2:00pm until 14th May 2010;
b)thereafter, each Saturday from 8:00am to 4:00pm until 25th October 2010; and
c)each Tuesday and Thursday from 5:00pm to 7:00pm.
In 2010, the Mother sought to travel to India with the child between 11th and 30th May. The reasons that she gave were to attend to ongoing court proceedings in India relating to the Father and his family. She told the Court that she had been requested by the Assistant Public Prosecutor to attend at the Office of the Prosecutor for the purpose of proceeding with the court matters.
The Father opposed the Mother’s application to leave Australia with the child, fearing that the Mother might not return her to Australia. The Mother denied that she had any intention to leave Australia permanently and submitted that the length of time she planned to be away was necessary, not only because of flight schedules, but also to allow the child to rest after travelling.
On 20th April 2010 I made orders permitting the Mother to take the child out of Australia for a limited period of time (Bose & Mehra[1]). The relevant orders were:
(2)The name of the child [X] born [in] 2008 is to be removed from the Airport Watch List also known as the PACE Alert System with effect from 10 May 2010.
(3)The Mother is permitted to take the child [X] born [in] 2008 out of the Commonwealth of Australia for the purposes of visiting India between 11 May and 30 May 2010.
(4)The Australian Passports Office is requested to issue to the Mother an Australian passport for the child [X] born [in] 2008 without the consent of the Father.
(5)The Mother is to deposit the sum of FIVE THOUSAND DOLLARS ($5,000.00) with Receiver of Public Moneys at the Registry of the Federal Magistrates Court in Sydney by 30 April 2010 to be held as security until the child returns to Australia.
(6)If the said child is not returned to Australia by 1 June 2010 the Father is permitted to apply on 2 June 2010 for the said sum of $5,000.00 to be paid out to him.
(7)After the said child is returned to Australia the Mother is to deliver the child’s passport to the Registry of the Court in Sydney by 1 June 2010 and upon doing so she is permitted to apply for the said sum of $5,000.00 to be returned to her.
[1] [2010] FMCAfam 353
The Mother and the child flew to India on 10th May 2010. They did not return to Australia on 30th May 2010. The Mother did not return to Australia with the child until the end of July 2010.
The Father spent time with the child on various occasions.
In the meantime, on 18th June 2010 the Father filed an application for the Mother to be dealt with for contravention of the orders of 20th April 2010. The Father later withdrew the contravention application, on 6th December 2010.
There was an incident between the parties on 17th October 2010 which led to an application for an Apprehended Domestic Violence Orders against the Father. An Apprehended Violence Order was made on 2nd February 2011.
The Father’s application for parenting orders was originally listed for final hearing on 11th February 2011. A Family Report was ordered and released on 25th January 2011.
The final hearing did not proceed on 11th February, as the Father had been served with a late affidavit and an amended response. The hearing proceeded on 10th March 2011.
Matters in Dispute
The orders sought by the Father are contained in the document entitled “Amended Application in a Case” which is, as was mentioned earlier, really an amended application for final orders. This document was filed on 28th January 2011.
The application seeks orders to this effect (summarised):
i)that the parties have equal shared parental responsibility for the child;
ii)that the parties attend a post-separation parenting program and an anger management program;
iii)that the child spend time with the Father in a graduated arrangement, in steps increasing on [date omitted] 2012, 2014, 2015, 2016, 2018 until [date omitted] 2026, when the child attains the age of 18 years;
iv)the Father to submit his work schedule to the Mother at the start of each year and his [work] Roster to the Mother at the start of each month;
v)the Mother to confirm her permanent address to the Father by 31st March 2011;
vi)the parties to comply with ‘court procedures’ for any overseas holiday with the child and in the case of any contravention the defaulting parent would be liable for prosecution for child abduction and would not be permitted to claim maintenance or child support from the other party;
vii)the parties to alternate spending time with the child at Christmas and the Hindu festival of Diwali;
viii)changeover between parents to take place outside [N] Police Station;
ix)the parties to notify each other of any illness of the child whilst in their care;
x)an injunction against removing the child from the Commonwealth of Australia; and
xi)the child’s name to be placed on the Airport Watch List otherwise known as the PACE Alert System.
The Mother seeks orders as set out in her Response to amended Application in a Case filed on 9th February 2011. The orders that she seeks are (summarised):
i)that the parties have equal shared parental responsibility for the child;
ii)that the child live with the Mother;
iii)that the child spend time with the Father in a graduated program, increasing on the child’s birthday in 2011, 2012, 2014, 2016, 2018 and 2020.
iv)that the Father provide his sailing schedule to the Mother within 24 hours of receipt;
v)if the Father is unable to have the child in his care because of his work commitments he must advise the Mother and also pay the Mother’s child care expenses;
vi)changeover is to take place at [N] Police Station or at the child’s school;
vii)the Father is to continue the nutritional plan for the child as notified by her dietician or paediatrician;
viii)the Father is to attend parenting and anger management courses;
ix)the Mother to be permitted to take the child out of Australia for four to six weeks on condition she notify the Father and provide make up time;
x)the child is to continue to practise the Hindu culture and religion;
xi)the Father is to return to the Mother items purchased for the child; and
xii)the Father is to return to the Mother the $5,000.00 security deposit arising from her failure to return the child to Australia within the time specified by the earlier orders of this Court.
Evidence
The Father relied on his affidavit of 27th January 2011, filed in support of his amended application. He also relied on his earlier affidavits:
a)24th July 2009;
b)6th April 2010;
c)25th October 2010; and
d)3rd December 2010
The Mother relied on six affidavits filed in these proceedings on:
a)15th February 2010;
b)26th February 2010;
c)6th April 2010;
d)3rd December 2010;
e)5th January 2011; and
f)9th February 2011.
The Father commenced to give oral evidence. In cross-examination, he said that he had changed his position somewhat as a result of the recommendations in the Family Report. In particular, the Father said that he agreed with the recommendations that:
a)the parties have equal shared parental responsibility for [X];
b)[X] should live with the Mother;
c)That [X] spends one evening a week and one day on the weekend with her father; and
d)That once [X] is three years old she could spend overnight time with him.
The Mother gave oral evidence. She said that she sought the return of items such as a changing table and some bed linen. As to the $5,000.00 security deposit that she paid before tasking the child out of Australia, she said that she was aware that she had to return by 31st May 2010. She said that the child had suffered from chicken pox and could not travel. She also said that she decided to return to Australia after the most recent court event in India. She said that she had extended her stay for reasons that were out of her control.
The Family Report
On 3rd August 2010 I directed that a Family Report be prepared. The Report was completed by Ms M, a Family Consultant, on 23rd January 2011 and was released two days later.
The Family Report is a comprehensive document, prepared after interviews with each of the parties and observations of the child with each parent. Ms M noted the following issues in dispute:
a)How much time [X] should spend with each of them.
b)Whether the Father should pay some of [X]’s child care expenses so that the Mother may obtain full time work.
c)Whether the child should be permitted to travel overseas to India and whether each parent should seek the permission of the Court for any overseas travel.
The Father told the Family Consultant that his work [employer omitted] involved his being [away] for a total of about four months during the year 2011, in two blocks of about eight weeks each. He also said that he hoped that [X] would be able to spend overnight time with him from the time she is about three years old (which will be on [date omitted] 2011).
The Father gave a history of a relationship that was “difficult from the beginning” and marked by violence and threats of suicide by the Mother.[2] He expressed warm feelings about the child and conceded that the Mother was a good mother to her.[3]
[2] Family Report page 7 at paragraph [14]
[3] Ibid page [17]
The Mother told the Family Consultant that the Father and his family had not been honest with her and her parents prior to the marriage. She also complained that the Father’s financial situation was not as favourable as she had been led to believe.
The Mother went on to describe the incident in India that resulted in their separation:
According to Ms Bose when she, Mr Mehra and [X] travelled to India in 2008, Mr Mehra abandoned her at the airport and that an incident occurred which led to Mr Mehra and his parents being charged in relation to dowry issues and Mr Mehra being charged with assaulting her. She said that she is obliged to attend Court in India in relation to these charges.[4]
[4] Family Report 8 [20]
Whilst the Mother initially said that she wanted the Father to care for the child half the time, she later telephoned the Family Consultant to say that she wanted [X] to spend time with the Father by agreement between them.
The Mother said that the communication between the parties was poor. However, she said that when [X] did see her father after not having spent time with him for some months she was happy to see him and she conceded that he was “a lovely father to [X]”.[5]
[5] Ibid 9 [24]
The child currently attends child care three days a week and would attend for five days a week once the Mother commences full time work.
The Family Consultant observed the child to have a positive relationship with each parent:
When [X] saw her father she immediately held her arms up to him. Their interaction seemed easy and relaxed and [X] made frequent eye contact with her father. At one stage [X] became upset when she fell over and her father comforted her appropriately and she was easily settled by him. Mr Mehra played with her in an age appropriate manner.[6]
[6] Ibid 10 [30]
Similarly:
When her mother entered the room [X] seemed comfortable being with both her parents and drew her mother’s attention to the activity she had been engaged in with her father. She stood for a few moments resting her arm on her father’s leg and when he left she said ‘bye bye Daddy’. Her interaction with her mother was also comfortable and relaxed and her mother interacted with her in a manner appropriate to [X]’s age.[7]
[7] Ibid 10-11{30]
The Family Consultant noted that the child had a history of separation anxiety but nevertheless described her as “a reasonably secure child who has attachments to both parents”.[8]
[8] Ibid 10 [31]
The Family Consultant made critical comments about both parents:
Unfortunately both parents seem very focused on their own conflict rather than on [X]’s needs. It seems that both parents have very little understanding of the needs, especially the emotional needs, of a child of [X]’s age…
The parents’ conflict does not seem to have lessened as evidenced by Ms Bose’s application that an Apprehended Violence Order be taken out against Mr Mehra…This continuing litigation is clear evidence of the difficult relationship between the parents.[9]
[9] Ibid 11 [32]-[33]
The Family Consultant made the following recommendations:
a)That the parties share equal joint parental responsibility.
b)That the child live with the Mother.
c)That when the Father is [home] [X] should spend one evening a week for two or three hours and one day on the weekend for eight hours with him.
d)That overnight time with the Father commence once [X] is three years old and has had at least three months spending time with him.
e)That changeovers take place at a contact centre (rather than at a police station).
f)That if the Court determines that each party is likely to abide by any orders about taking the child to India, then consideration should be given to allowing the parties each to take [X] to India for two to three weeks.
g)That the parents contact Unifam to arrange an intake assessment regarding their suitability for inclusion in a parenting program.
Submissions
The Father submitted that when the Mother travelled overseas and had not asked for the return of the items such as the changing table, he gave them away to friends. He also said that he did not have the $5,000.00 as he had spent it.
The Mother’s solicitor submitted that the Mother had purchased these items for the baby and was in a limited financial position. She had just started a full-time job with [omitted].
As to the parenting orders, Ms Tin submitted that the Mother was offering the Father more time with the child than the Family Report recommended. If the Father were to spend that time with [X] then she would feel more comfortable starting overnight contact with him when she turns three years of age.
The Mother’s solicitor also submitted that a suitable changeover venue would be the child care centre that [X] attends, which is the [A] Centre in [address omitted].
The Relevant Law
In deciding whether to make a particular parenting order in relation to a child, Section 60CA of the Family Law Act 1975 provides that the Court must regard the best interests of the child as the paramount consideration.
The Court determines what is in the child’s best interests by considering the matters set out in subsections 60CC(2) (the primary considerations) and 60CC(3) of the Act (the additional considerations). The court must also consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (see s.60CC(4)) and, where the parents have separated, as they have in this case, any events that have happened or circumstances that have existed since the separation occurred (see s.60CC(4A)).
When making a parenting order, the Court is required by s.61DA(1) of the Act to apply a presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility for her. This presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in:
a)Abuse of the child; or
b)Family violence.
In making a final parenting order, the Court must disregard the allocation of parental responsibility made in the interim order (see s.61DB).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by s.65DAA(1) of the Act to consider whether:
a)the child spending equal time with each parent would be in the child’s best interests; and
b)whether it would be reasonably practicable for the child to spend equal time with each parent.
If the Court does not make an order for equal time with each parent, subsection 65DAA(2) provides that the Court must consider whether:
a)spending substantial and significant time with each of her parents would be in the child’s best interests; and
b)whether such an arrangement would be reasonably practicable.
Substantial and significant time is defined by s.65DAA(3) to include not only days that fall on weekends and holidays but days that do not fall on weekends and holidays. The time must also allow the parent to be involved in the child’s daily routine and in occasions that are of particular significance to the child or of special significance to the parent.
I have considered all of those matters in some detail.
Conclusions
Turning first to the question of equal shared parental responsibility, I note that the Local Court of New South Wales at [suburb omitted] made a final Apprehended Violence Order against the Father on
2nd February 2011[10]. The Order names the Mother as the protected person and the operation of the orders has been extended to cover the child. The orders made by the Court are the standard orders:
a)The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person;
b)The defendant must not engage in any other conduct that intimidates the protected person; and
c)The defendant must not stalk the protected person.
[10] A copy of the Order is annexed to the mother’s affidavit sworn on 8th February 2011.
A copy of the Police Report of the incident that led to the institution of the proceedings is annexed to the Mother’s affidavit of 8th February 2011. According to the report, the Father attended at the Mother’s residence on 17th October 2010 to return the child. The report says that the Mother did not wish to see the Father at the home, even though she was home at the time, and suggested that the Father meet her at a nearby café to return the child. The report goes on to state:
The accused proceeded to bang very loudly and aggressively on the front door. This caused heavy dents to the front door and broke the bar on the front door lock. This behaviour done by the accused alarmed the neighbours and they proceeded to come out and speak with him.[11]
[11] Affidavit of Ms Bose 8.2.2011 annexure “M2”
The report also notes that the Mother did not wish to proceed with any charge of malicious damage against the Father. The report also states that:
Police have no immediate concerns for the child(‘s) welfare…Police observed that the child was not (in) any distressed state and was of good health.[12]
[12] Ibid
Regrettable though this incident is, it appears to be at the lower end of the spectrum of violent behaviour, as the behaviour was directed at an inanimate object rather than a person. It could not be classified as abuse of the child.
It is also relevant that the parties consent to the Court making an order for the parties to have equal shared parental responsibility. In all the circumstances I am satisfied that such an order is appropriate.
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of her parents; and
b)The need to protect her from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The Family Report makes it clear that it is of benefit to this little girl to have a meaningful relationship with both of her parents. The observation of her by the Family Consultant when she was with her parents, both separately and together, shows that she appeared comfortable and relaxed with each of them.[13]
[13] Family Report page 10 [30]
There is nothing to suggest that either parent would abuse or neglect this child. They obviously both love her very much. Where a risk of psychological harm might arise is if [X] were to be exposed to acrimony between her parents at changeover, as witness the events on 17th October 2010 which led to the Apprehended Violence Order.
The Family Consultant expressed concern in the Family Report about the harmful effect on [X] of being exposed to conflict between her parents:
[X] is a very young child and she had already been exposed to conflict between her parents and needs to be protected from any future inter-parental conflict, as such exposure is likely to have long term negative effects upon her. Although she presented as a reasonably secure child on the day of the interviews, information supplied by the [suburb omitted] Health Service and included in some of the mother’s affidavit material, suggests that she may be a very vulnerable child and if she is, she is likely to (be) more adversely affected by her parents’ conflict than a less vulnerable child.[14]
[14] Ibid 12 [34]
However, there is now an Apprehended Violence Order in place and the father would be very unwise not to comply with it. It is also appropriate for this Court to make orders that provide for changeovers between the parties to take place somewhere other than the Mother’s residence, where that is reasonably possible. The Mother’s suggestion of the child care centre in [suburb omitted] is useful. A child care centre is a more appropriate venue than the [N] Police Station. The need to avoid or, at the very least, to reduce, acrimony between the parties at changeover is important.
There are additional considerations. [X] is too young for the Court to consider her views. However, when she was observed by the Family Consultant for the purposes of the Family Report, [X] demonstrated a warm relationship with both of her parents.
The nature of the relationship between [X] and each of her parents appears to be comfortable and relaxed. Her parents each appeared to act towards her in a loving and age-appropriate manner. The Father expressed to the Family Consultant a strong love for his daughter, saying that just looking at her made him feel much happier.[15]
[15] Ibid at 7 [16]
It is to the parties’ credit that each one told the Family Consultant that the other was a good parent. The Father said of the Mother:
“when it comes to [X] she is a good mother.”[16]
[16] Family Report 8 [18]
The Mother conceded that the Father was “a lovely father to [X]”.[17]
[17] Ibid 9 [24]
There is no evidence about the nature of the child’s relationship with any other family members.
There must be a question mark over the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between [X] and the other parent. The parties’ communication is poor and neither of them appears to be particularly child-focused. They are still enmeshed in their mutual hostility.
That said, the Mother has suggested orders that would permit the Father to spend more time with his daughter than the Family Consultant recommended. The orders sought by each party envisage an arrangement that would see each one of them involved in [X]’s life throughout her childhood until she becomes an adult.
The likely effect of any changes in the child’s circumstances, especially one that involved a separation from either parent, would be that she would be unhappy and distressed. The Mother states that the child suffers from separation anxiety, and any prolonged separation from either parent would exacerbate such an anxiety.
There is no other child. The child’s grandparents live in India and have played no part in these proceedings.
The practical difficulty and expense for this child in spending time with her father and communicating with him is not insurmountable. The poor relationship between her parents does not assist. It is relevant that the Father is a [occupation omitted] and is required to [be away] for up to eight weeks at a time. Clearly, this is a limiting factor on his spending time with his daughter and communicating with her. Otherwise, the parties live in suburbs of Sydney, so the Father should not have any difficulty in seeing his child when he is [at home].
The Family Consultant was quite critical in the Family Report of the parents’ lack of understanding of [X]’s needs, especially her emotional needs. The Mother’s expressed desire for the Father to look after [X] for half of the time, a position from which she has now resiled, was seen by the Family Consultant as being motivated by the Mother’s desire to obtain full time work.[18]
[18] Family Report 11[32]
Again, the Father was criticised by the Family Consultant for not realising how important it is for him to be involved in the child’s life when she is young.[19]
[19] Ibid
[X] is a little girl who will turn three years of age in [omitted] 2011. Although she was born in Australia, she comes from an Indian background, as both her parents have lived in India for most of their lives. The Mother has a desire that she should be able to participate in the Hindu religion and culture, with which the Father does not disagree. The parties wish to come to an equitable arrangement for [X] to spend time with them both at Christmas but also during the Hindu Diwali festival each year.
I propose to make orders to cover that situation. It would appear to be in this child’s best interests for her to be involved in cultural activities from her parents’ homeland.
Quite obviously, [X] is not a child Aboriginal or Torres Strait Island background, so the considerations in paragraph 60CC(3)(h) do not apply.
Each parent has a positive attitude to [X], although their focus on their own conflict rather than [X]’s needs does not show the parties’ attitude to the responsibilities of parenthood in a very good light. The parties need to measure their words when they speak to each other in [X]’s presence and consider the adverse effect on her of any acrimony between them.
I have previously mentioned the Apprehended Violence Order made by [N] Local Court on 2nd February 2011, which is in force for twelve months.
It would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. The orders that I propose to make are designed to ensure that the Father spends time with [X] in a way that will increase over time. If arrangements go well, then there would seem to be no reason why the child should not spend overnight time with the Father once she reaches the age of three years.
The parties agree that [X] should continue to live with the Mother.
The exercise of the parties’ responsibilities as parents has been clouded by the continued conflict between them. Once they can reduce their mutual antagonism the parties will be more able to concentrate on their role as parents.
The parties have separated. It appears likely that this separation will be permanent. There is no evidence that either party has re-partnered.
An order will be made that the parties will have equal shared parental responsibility for [X]. This leads to the consideration of whether it is in her best interests to spend equal time with each of her parents, and whether such an arrangement is reasonably practicable. Whilst the Mother originally suggested such an arrangement, she has since abandoned that position.
It does not appear to be reasonably practicable for the child to spend equal time with each of her parents. The Father is a full-time [employee] of [omitted] which involves his spending as much as four months of each year [away].
The level of communication between the parties at present is so poor that an equal time arrangement would hardly seem to be in the child’s best interests.
The Father’s time with the child should increase. Overnight time from the child’s third birthday would appear to be desirable, and the time with the Father can steadily increase. The parties’ proposals of a graduated increase every one or two years until this child is in her mid-teens seems to be unnecessarily cumbersome and complicated, and I intend to make somewhat simpler orders.
The orders to be made will lead to an increase until the child starts school, which would appear to be at the beginning of the school year in 2014. Clearly, there will need to be changes when that milestone is reached. Once [X] becomes a teenager, she will be more likely to want to make her own arrangements about spending time with her father.
The orders to be made will not at this stage be capable of being characterised as “substantial and significant time” with the Father. At this stage, it appears that such an arrangement would not be in [X]’s best interests. It would not be reasonably practicable at this time in the child’s life, noting her young age and the impact on the Father’s time of his [travel] commitments with [employer omitted].
The Mother seeks orders that she be permitted to take the child out of Australia for four to six weeks each year. I am most reluctant to make an order permitting this to happen at present whilst the parties’ level of conflict is so high and their communication is so poor. There have already been proceedings between the parties about the Mother’s desire to travel to India, and further travel at this stage runs the risk of further litigation.
That is not to say that the child should not be permitted to travel out of Australia until she turns eighteen, but the parents need to bring some stability into this child’s life and some improvement in their communication about the child until further overseas travel should be considered. In my view, there should be a restraint on the parties taking the child out of Australia for a period of two years, up to the end of March 2013.
The Mother seeks an order requiring the father to return to her the sum of $5,000.00 paid as a security deposit when she was permitted to leave Australia with the child in 2010.
It is unclear on what basis this order is sought in a parenting application. It is a financial order, of sorts, but no financial statements have been filed. If it is some sort of appeal against earlier orders of this Court, then the application is not competent.
The orders made by this Court on 20th April 2010 required the deposit by the mother of the sum of $5,000.00 as security until the child returned to Australia. The orders required the mother to return the child to Australia by 1st June 2010. Upon the Mother returning the child to Australia by that date, she was permitted to apply for the refund of the money. If the child was not returned, the Father was permitted to apply for the money to be released to him on or after 2nd June 2010.
The Mother did not return to Australia with the child by 1st June 2010. she did not return until 30th July. In her affidavit of 7th October 2010 the Mother claims that she did not intentionally decide not to return to Australia in breach of the orders of this Court. She deposed that she was not able to return on 31st May 2010:
…for the following reasons, each of which arose after my arrival in India:
a) illness of my daughter [X] (“[X]”);
b) illness of myself; and
c) the requirement that I attend further Court proceedings in the Metropolitan Magistrates Court, Mumbai India.[20]
[20] Affidavit of Ms Bose 7.10.2010 at paragraph [3]
The Mother annexed to her affidavit dated 5th May 2010 a copy of a medical certificate stating that she was suffering ten days previously from chicken pox “which has now resolved and is fit for travelling by air from 5/05/2010”.[21]
[21] Affidavit of Ms Bose 7.10.2010 Annexure “A”
The Mother deposed that, whilst they were in India, the child “started getting sick” on about 18th May 2010. surprisingly, the Mother did not take the child to a paediatrician until 24th May 2010. The paediatrician issued a certificate stating:
Baby [X] was examined on 24/5/10 for chicken pox. He/she is recommended treatment and rest at home from 24/5/10 for 10 days…[22]
[22] Ibid annexure “C”
The Mother deposed that on 8th July she became sick with a viral infection and attended a Dr S for treatment. She saw Dr S again on 12th July. Dr S provided her with a medical certificate on that date, a copy of which forms annexure “D” to the Mother’s affidavit. The handwritten certificate is hard to read but appears to say:
This is to certify that she was under my (indistinct) for viral infection and (indistinct). She was (?) on antiviral medication and rest for 2 weeks from 8/7/2010 onwards.
The Mother deposed that:
…on the 9th July 2010 phoned Singapore Airlines and requested a booking back to Sydney. I was advised that I could not travel until the 26th of July due to congestion in the Singapore hub by overseas students travelling to Australia for the new semester beginning on 19th of July 2010 in most of the universities in Australia.[23]
[23] Affidavit of Ms Bose 7.10.2010 at [25]
The Mother set out the situation about the court proceedings in India, which were the ostensible reason for her visit to India in the first place. She attended court in Mumbai on 14th May 2010, but the magistrate was on sick leave, so the matter was adjourned to 3rd July she was required to meet the Public Prosecutor on 3rd July.
She was then required to attend Court in Mumbai on 9th June in relation to the domestic violence matter. The matter was adjourned to 21st June because the Magistrate was on leave and neither the Father nor his father attended court. The matter was subsequently adjourned to 1st July and then to 29th July. A copy of a court record forms Annexure “G” to the affidavit. It is noteworthy that the parties were legally represented and at no time does the Court record indicate that either party was required to give oral evidence. On 21st June 2010 the Court “heard Advocate for Applicant” and on the 1st July the respondent’s advocate was present. The matter was adjourned to 29th July 2010 “for arguments”.
The Mother claims that she was obliged to stay in India for a further period of almost two months because of circumstances beyond her control. Her own evidence contradicts that assertion.
On the Mother’s evidence, the child became ill on 18th May and was taken to a paediatrician on 24th May. The paediatrician prescribed medication and rest for ten days from 24th May, which would have taken the child up to 3rd June.
The Mother did not become ill until 8th July. She was prescribed medication and rest for two weeks from 8th July, covering a period up to 22nd July 2010. Not withstanding that, the Mother deposed that on 9th July she attempted to book herself a flight back to Sydney, but was unable to travel because of heavy passenger demand. The medical certificate does not say that the Mother would be unfit to fly in an aircraft for two weeks.
However, the fact is that, on her own evidence, the Mother did not have a flight booked back to Australia before the 9th July, when she knew that the order of this Court required her to be back in Australia by the end of June. Neither the child’s illness nor her own provides an explanation for the Mother’s remaining in India with the child until the second week in July. The only reason that the Mother remained in India for that length of time was to further the court proceedings against the Father. Quite clearly, the Mother was aware that she would not be required to attend court on 29th July, because the court record shows that the matter was adjourned to 29th July for “arguments” by the respondent’s lawyer. That the Mother was aware that she would not be required on 29th July is shown by her own decision on 9th July to book a flight back to Sydney.
The Mother’s own evidence clearly shows that she elected to remain in India, at least until 9th July 2010, of her own volition.
The Mother has shown no reason at all for any order that the security deposit should be returned to her. It is an application without any merit whatever.
The Mother also seeks the return of certain items of equipment for the child, which the Father says that he has already given away. The basis for this application is unclear, as it is not any sort of parenting order. That application will also be dismissed.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 24 March 2011