Misra and Yendrambam

[2016] FamCA 718

FAMILY COURT OF AUSTRALIA

MISRA & YENDRAMBAM [2016] FamCA 718

FAMILY LAW – CHILDREN – Interim – International relocation – Whether the mother should be permitted to relocate to the United States of America with the child until August 2017 – Where there are interim orders in place for equal shared parental responsibility and the child to live with the father – Where the father has failed to facilitate contact with the mother pursuant to the orders – Where the father has unilaterally changed the child’s school and address without informing the mother – Matter listed for expedited trial.

Family Law Act 1975 (Cth)

APPLICANT: Ms Misra

RESPONDENT: Mr Yendrambam

INDEPENDENT CHILDREN’S LAWYER: Ms Nielsen, Berk Solicitors

FILE NUMBER: BRC 11174 of 2012

DATE DELIVERED: 25 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 25 August 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Salvos Legal Humanitarian

SOLICITOR FOR THE RESPONDENT: Self represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Berck Solicitors

Orders

1. The Order dated 12 June 2015 remain in force.

2. The child, V, born … 2008 (“the child”) spend time with the mother as follows:

   (a)       From 3.00 pm on Friday, 26 August 2016 to 12.30 pm on Monday, 29 August 2016; and

   (b)       From 3.00pm on Friday, 2 September 2016 to 8.30 am on Monday, 5 September 2016

   with the mother to collect the child from school on Friday at the commencement of time and return the child to school at the conclusion of time. 

3. The mother and father attend upon Mr W on Monday, 29 August 2016 at times as advised by the Independent Children’s Lawyer or such other date and times as advised by the Independent Children’s Lawyer and shall ensure that if the child is with them, they facilitate her attendance upon Mr W as advised.

4. The father forthwith advise the mother and the Independent Children’s Lawyer of the school that the child is attending and her current residential address by 2.30 pm on Friday, 26 August 2016 and be restrained from making any further changes without the written consent of the mother.

5. The father advise the mother by 5.00 pm on Monday, 29 August 2016 of the names and contact details of any treating medical practitioners that the child attends upon and keep her informed.

6. This Order authorises the mother to obtain information as requested and as lawfully able to be given from any school and treating medical practitioner and other health practitioner as may be requested by her at her cost.

It is further ordered that

1. This matter is set down for final hearing before the Honourable Justice Tree commencing 10:00am on Tuesday, 30 August 2016 for 2 days.

2. Any further material to be relied upon by the mother shall be filed and served by 5.00 pm on Friday, 26 August 2016.

3. Any further material to be relied upon by the father shall be filed and served by 5.00 pm on Monday, 29 August 2016.

4. The parties are to have available for tendering on the first day of trial a case summary including chronology, a list of documents they intend to rely upon, a precise minute of orders sought by them and a summary of argument addressing in particular all of the relevant s 60CC Family Law Act 1975 (Cth) matters with reference to any relevant authorities.

5. It is requested that Mr W, the family report writer, provide a written outline of his report including any recommendations by the commencement of trial on Tuesday, 30 August 2016 and be available to give his evidence in chief and to be cross examined on either Tuesday, 30 August 2016 or Wednesday, 31 August 2016.

6. The father shall file a Notice of address for service setting out his current residential address by no later than 5.00pm on Friday, 26 August 2016.

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 Misra & Yendrambam 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 BRISBANE

FILE NUMBER: BRC 11174 of 2012

Ms Misra

Applicant

And

Mr Yendrambam

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me today pursuant to an Application in a Case filed by the mother on 10 June 2016 in which she seeks, by way of interim order, that she be at liberty to remove the child, V born 5 December 2008, from Australia to live wither her in the United States of America for the period up to and including August 2017 whereupon her working visa will expire and she will return to live in Australia.

2. When this matter came before me at the call over this morning, the father indicated that he wished to confer with the duty lawyer. He did so, and when the matter was due to come back before me after lunch, I was informed that the father had left the precincts of the Court. With the parties’ consent, I received a short note from the father which became ‘Exhibit 1’ in which he indicated that he could not wait because he had to pick up his daughter.

3. Obviously, he has been aware of these proceedings for some time and the Application arises in circumstances where despite an Order being made on 12 June 2015 for:

   a)The child to live with her father;

   b)For the parties to have equal parental responsibility; and

   c)For the mother to be able to communicate with the child by telephone, Skype or FaceTime at all reasonable times and failing agreement each Saturday and Sunday at 9:00am Brisbane time and each Wednesday and Thursday at 8:30pm Brisbane time,

   the mother alleges that she has had very little communication with her daughter since that Order was made, such that, this year she has had virtually no communication with her daughter other than one brief exchange in April when the child was at school and since then only one other communication by FaceTime on the 19 August 2016 for a period of about two and a half minutes.

4. When she telephoned the school in May to speak to her daughter, she was initially told that the child was absent from school and when she called back on another occasion in May she was told that the child no longer attends that school.

5. Despite the father not being in attendance this afternoon, it was agreed by the mother’s representative and the Independent Children’s Lawyer that I should read his Response and Affidavit filed today.

6. Indeed it is confirmed in that affidavit that the father, despite the order for equal shared parental responsibility, has changed his residential address and the child’s school and has not informed the mother.

7. The father says that he has not informed the mother of the change of residence and school because:

   I have grave concerns that she will resort to same behaviour and try and abduct the child again.

8. He refers to an effort made by the mother, he says, to remove the child from Australia around 6 December 2013 and he alleges that the Australia Federal Police had to intervene and stop her at the C Airport immigration when she presented herself with a one-way ticket for herself and the child to move overseas.

9. There is in place, I am informed by the mother’s solicitor, an Airport Watchlist notification in respect of the child currently. The father also refers to its existence at paragraph 32 of his affidavit.

10. The father also refers to a Temporary Protection Order that was made against the mother preventing her from coming near his place of residence.  That Order is annexed to his Affidavit and requires the mother to be of good behaviour and not commit domestic violence against the father and prohibited her from remaining at, entering or attempting to enter, or approaching within 100 metres of where the father lives. The Order is subject to the usual exemption to the extent that it is necessary for the parties to attend an agreed conference, counselling or mediation session. I note that at the time of the Order the mother had already moved to the United States of America to take up her employment position. It is not clear whether a final Protection Order was made. In any event, the existence of a Protection Order of itself does not excuse the father from failing to inform the mother where the child is living or from changing her school.  He does not, for instance, make any allegations of the mother being in breach of that Protection Order.  On its face it would appear that he has failed to comply with the equal shared parental responsibility order in circumstances where he does not set out evidence that would justify that course.

11. The mother is only in Australia until 10.00am on Monday 12 September 2016 and she wishes, at the very least, to be able to see her daughter while she is in Australia. The Independent Children’s Lawyer proposed certain orders to be made and those are supported by the mother.  These orders were provided to the father this morning and he made some hand written notes on a draft apparently but I did not receive that into evidence given it would appear that those communications occurred during the process of negotiation between the parties and are likely to be privileged. 

12. The proposal by the Independent Children’s Lawyer provides that the Order made on 12 June 2015 remain in force. Indeed the father’s own response seeks a continuation of that Order. The father disputes the allegation that he is not complying with it.

13. The proposal further provides:

    a)That the child spend time with the mother for three weekends, which will coincide with her presence in Australia.

    b)That the parties and the child attend upon Mr W on Monday for the purposes of interview.

    c)That the father advise the mother and Independent Children’s Lawyer of the school that the child is attending and her current residential address by 5.00pm today. 

    d)That the father provide information about the child’s treating medical practitioners and school and authorising the mother to obtain such information directly from any medical practitioner or school.

14. Prior to the mother’s departure from Australia in June last year, the child had lived with her mother and spent alternate weekends with the father.  The parties separated in 2010 so the change that occurred in June of last year when the mother relocated to USA represented a significant change for the child and she has had no physical time and allegedly very limited communication with her mother since her mother’s departure.

15. There is no suggestion in the material before me that the child is at risk in either parent’s care and it seems that what prompted the litigation was the mother’s wish to relocate with her daughter last year.  She was unsuccessful on an interim basis but relocated in any event and this matter was then transferred from the Federal Circuit Court to the Family Court of Australia.

16. Given the ability of the Court to accommodate the matter next week, it is my intention to list it for a final hearing commencing on Tuesday given that the mother is currently in Australia. The Independent Children’s Lawyer has arranged for interviews to be conducted on Monday.

17. As to the proposal that she spend some time with the child while she is in Australia I note that she has previously been a significant person in the child’s life and there being no evidentiary basis to suggest that the child would not be well cared for by her mother if she were to spend weekend time with her mother I propose to make the orders in terms of the draft as amended by me in paragraph 1 by changing the date to 2015, paragraph 4 changing the date to 26 August and providing that the mother is to collect the child from school on the Fridays and return her to school on the Mondays. I will order weekend time for two weekends only given the changeover on Sunday 11 September cannot occur at school. The issue of further time while the mother is in Australia can be raised again next week.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 25 August 2016.

Associate: 

Date:  25 August 2016