Nadig and Iyar
[2018] FCCA 709
•27 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NADIG & IYAR | [2018] FCCA 709 |
| Catchwords: FAMILY LAW – Application for final parenting orders – child almost 5 years – parties consent to order for equal shared parental responsibility – Court’s obligation to consider child spending equal time – Court’s obligation to consider child spending substantial and significant time – whether reasonably practicable and in the child’s best interests – father seeks an order for week about – mother seeks an order for the child to live primarily with her – child has developmental delay – issue regarding school holidays – mother seeks an order permitting her to travel to India with the child – father opposes international travel to India – order made for child to live with the mother and spend substantial and significant time with the father including school holiday time – child to remain on the Airport Watchlist until 2023. |
| Legislation: Family Law Act 1975, ss.60B (1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CC(3), 61DA (1), 61DA(2), 61DA(4), 65D, 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DAC |
| Cases cited: Gin v Hing [2010] FamCA 617 Kaur & Kaur [2014] FCCA 2843 |
| Applicant: | MR NADIG |
| Respondent: | MS IYAR |
| File Number: | CAC 1222 of 2016 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 26 February 2018 |
| Date of Last Submission: | 26 February 2018 |
| Delivered at: | Canberra |
| Delivered on: | 27 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Counsel for the Respondent: | Self-Represented |
ORDERS
All previous orders are hereby discharged.
By consent the parties shall have equal shared parental responsibility for the child X born (omitted) 2013 (“the child”).
The child shall live with his mother.
The child shall spend time with his father as agreed between the parties and failing agreement:
(a)Week 1: Commencing March 30 2018 from Friday at the conclusion of preschool or school (or afterschool care) until the commencement of preschool or school (or before school care) on Tuesday and each alternate weekend thereafter; and
(b)Week 2: Commencing 4 April 2018 from Wednesday at the conclusion of preschool or school (or afterschool care) until the commencement of preschool or school (or before school care) on Thursday and each alternate week thereafter; and
(c)For half of all school holiday periods at the end of Terms 1, 2 and 3 with the father in the first half in the years ending in an odd number and for the second half in the years ending in zero or an even number; and
(d)Until December 2021 for half of the long Christmas summer holidays in a week about arrangement commencing on the Saturday immediately following the conclusion of the school year at 9.00 am for the first, third and fifth weeks of the school holiday period in the years ending in an odd number and for the second, fourth and sixth weeks of the school holiday period in the years ending in zero or an even number; and
(e)Commencing in December 2021 for the first half of the long Christmas summer holidays in the years ending in an odd number and for the second half of the school holidays in years ending in zero or an even number.
(f)The first half of all school holidays periods shall commence at 9:00am on the first Saturday of such holidays.
(g)The second half of all school holidays periods shall commence at 9:00am on the mid Saturday of such holidays and conclude the day before the next school term commences in the event the children are with the father during that period.
(h)The Christmas/New Year end of term school holiday period as gazetted shall end at 4:00pm on the Saturday immediately preceding the new school term in the event the children are with the father in the second half of that holiday period.
(i)In the event that the father spends time with the child in the:
(i)first half of the school holidays his Week 2 time with the child shall resume on the Wednesday of the first week after school resumes; and
(ii)second half of the holiday period his Week 1 time with the child shall resume on the Friday of the first week after school resumes.
(j)Subject to order 5 hereof the child shall spend all other times with his mother.
Notwithstanding these orders the child shall spend time with the parties as follows:
(a)In years ending in an odd number from 11.00 am Christmas Eve until 11.00 am Christmas Day with his father and from 11.00 am Christmas Day until 11.00 am Boxing Day with his mother; and
(b)In years ending in zero and an even number from 11.00 am Christmas Eve until 11.00 am Christmas Day with his mother and from 11.00 am Christmas Day until 11.00 am Boxing Day with his father; and
(c)With his mother from 6.00 pm on the day immediately preceding Mother’s Day to 5.00 pm on Mother’s Day; and
(d)With his father from 6.00 pm on the day immediately preceding Father’s Day to 5.00 pm on Father’s Day;
(e)On the child’s birthday with each parent at times to be agreed but failing agreement:
(i)if the birthday does not fall on a school day from 12 noon to 3.30 pm with the parent he is currently not spending time with; and
(ii)if the birthday does fall on a school day from after school until 5.30 pm with the parent he is currently not spending time with.
The child shall communicate with the parties as follows:
(a)With the father when the child is spending time with the mother each Tuesday and Thursday evening between 7.00 pm and 7.15pm with the father to initiate such calls;
(b)With the mother when the child is spending time with the father each Tuesday and Thursday evening between 7.00 pm and 7.15pm with the mother to initiate such calls.
No later than three days prior to any interstate travel with the child, each party shall advise the other in writing of that party’s intention to travel and provide all contact and accommodation details for such travel.
The parties shall keep each other informed of their current residential address and contact telephone number with each party to notify the other of any change to this contact information within 48 hours of such change.
The parties shall keep each other informed of, and as soon as reasonably practicable, notify each other of any serious illness or injury sustained by the child during any time he is in the care of that parent, including any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is hospitalised if applicable.
Each party will ensure that both parties' details and contact information is provided to the child's school.
Each party shall inform the other as soon as practicable of any significant health or educational issue that arises relating to the child.
These orders authorise any school or preschool attended by the child to provide to each parent with copies of any information and/or report relevant to the child.
Each party is restrained from denigrating the other party in the presence of the child and/or permitting any other person (including the maternal and paternal relatives) from denigrating the other party in the presence of the child or at all.
The parties shall use a Communication Book that will be conveyed to the parent receiving the child on each occasion the child changes between his parents such Communication Book to include all relevant matters relating to the child in particular any health issues, any medication prescribed for the child, any attendance by the child at any medical or dental practitioner, any dietary or sleep issues for the child and any educational issues including any difficulties observed by either parent regarding the child’s speech, hearing, or other developmental progress.
The parties MR NADIG born (omitted) 1978 and MS IYAR born (omitted) 1982 are hereby restrained by injunction from removing, permitting or attempting to remove or causing or permitting the removal of the child X born (omitted) 2013, male, from the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.
Either party is at liberty to apply for the removal of the child from the Airport Watchlist after 1 May 2023 for the purposes of travelling with the child internationally provided that the parties have attended mediation in an attempt to resolve any dispute regarding international travel.
IT IS NOTED that publication of this judgment under the pseudonym Nadig & Iyar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1222 of 2016
| MR NADIG |
Applicant
And
| MS IYAR |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was listed for final hearing on Monday 26 February 2018. Both parties were self-represented. There is one child of the relationship X born (omitted) 2013 soon to be 5 years old. The dispute between the parties was of narrow compass. From the outset the parties agreed to an order for equal shared parental responsibility. That order was recommended by the Family Consultant who indicated “the parties’ current attitudes and joint focus on X indicates a positive capacity for them to continue building an amicable and cooperative co-parenting relationship.[1] Having heard the parties’ give evidence the Court formed the view that each parent focused on the child and demonstrated an ability to work cooperatively with the other for X’s benefit. However, undercurrent was a high level of mistrust between them particularly with respect to whether X should travel to India.
[1] Report of Ms L 19 May 2017 at [36]
The mother proposed that X live with her primarily and spend time with his father from Friday after school until before school on Monday each alternate week and if Monday was a public holiday then until Tuesday before school. In addition she sought that X spend time with his father each other week from Wednesday after school until before school on Thursday. The mother opposed X spending any school holiday time with the father until he was in Year 1 which would not occur until 2020. Further she sought an order that X be removed from the Airport Watch List and she be permitted to travel with the child to India so that X could meet his large extended family.
The father sought a week about arrangement with changeover on Mondays after school. He sought an order that the parties share equally school holiday periods. He opposed the removal of the child from the Airport Watch List and opposed international travel to India.
The parties filed Minutes of Orders as follows:
Father’s proposal
1. That all previous orders be discharged
2. That the parents shall have equal shared parental responsibility for the child X, born (omitted) 2013
Residence and Time with Arrangements
3. That the child shall spend time and with the father as agreed between the parents, and failing agreement, commencing 01 March 2018 as follows
(a) On alternate weekends from Friday at the conclusion of school or afterschool or from Thursday at the conclusion of school or afterschool in the event that Friday is a public holiday in ACT until the following Friday at the commencement of the school or before school or the following Thursday at the commencement of the school or before school in the event that Friday is a public holiday in ACT
(b) By the father communicating with the child by telephone when the child is spending time with the mother between 7.00 to 7.15 pm each Tuesday and Thursday evening and the father shall initiate such calls.
4. The mother communicates with the child by telephone when the child is spending time with the father between 7.00 pm to 7.15 pm each Tuesday and Thursday evening and the mother shall initiate such calls.
5. The child shall spend school term holiday time with the father at all times as agreed between the parents and failing agreement as follows
(a) for the first half of all school term holiday periods in odd numbered years commencing 5.00 pm on the last Friday of the school term, for a period of eight days until 6.00 pm at the conclusion of time spent on the seventh day; and
(b) the second half of all school term holidays in even numbered years, for a period of 7 days ending on the commencement of the school or before school;
6. The child shall spend holiday time during the long summer holiday period with the father for all times as agreed between the parents and failing agreement as follows:
(a) During the long summer holidays which commence in 2018 and in each alternate year thereafter, commencing 5.00 pm on the last day of school, for a period of 21 days excluding Christmas Eve and Christmas Day until 6.00 pm at the conclusion of time spent on the twenty-first day;
(b) During the long summer holidays which commence in 2019 and in each alternate year thereafter, for a period of 21 days ending 6.00 pm on the last Saturday of the long summer holidays.
7. In all odd numbered years:
(a) The child shall spend time with the father from 11.00 am Christmas Eve until 11.00 am Christmas Day; and
(b) The child shall spend time with the mother from 11.00 am Christmas Day until 11.00 am Boxing Day.
8. In all even numbered years:
(a) The child shall spend time with the mother from 11.00 am Christmas Eve until 11.00 am Christmas Day; and
(b) The child shall spend time with the father from 11.00 am Christmas Day until 11.00 am Boxing Day.
9. The child shall spend time with the father from 6.00 pm on Father's Day Eve to 5.00 pm on Father's Day and that any provision for time under this order that is inconsistent with this paragraph be suspended.
10. The child shall spend time with the mother from 6.00 pm on Mother's Day Eve to 5.00 pm on Mother's Day and that any provision for time under this order that is inconsistent with this paragraph be suspended.
11. The child shall spend time with the parents on his birthday; at times to be agreed between the parents, but failing agreement, the child shall spend time with the father on his birthday if such birthday does not fall on a day when the child spends time with the father as follows:
(a) from conclusion of school at 5.30 pm until 7.30 pm in odd numbered years and from 3.30 pm until 5.30 pm in even numbered years if a school day and in the event that the father is unable to spend such time with the child, the father shall communicate with the child by phone between the hours of 7.00 pm and 7.15 pm.
(b) 12 noon until 4.00 pm on a non-school day.
Communication
12. Not later than three days prior to any interstate travel with the child, the pa rents shall advise each other in writing of all contact and accommodation details for such travel.
13. The parents keep each other informed of their current respective residential address and contact telephone number, with each parent to notify the other parent of any change to this contact information within 48 hours of such change.
14. The parents keep each other informed of, and as soon as reasonably practicable, notify each other of any serious illness or injury sustained by the child during any time he is in the care of that parent, including any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is hospitalised if applicable.
15. That the parents will ensure that both parties’ details and the contact information is provided to the child's school.
16. Each of the parent shall inform the other as soon as practicable of any significant health or educational issue relating to the child
17. That these orders authorise any school or preschool attended by the child to provide to each parent copies of information, reports to both parents in relations to the child’s health and medical treatment
International Travel
18. Until further order, the applicant father and the respondent mother are restrained by injunction from removing, permitting or attempting to remove or causing or permitting the removal of the child X born (omitted) 2013, male, from the Commonwealth of Australia.
19. The applicant father request that the Australia n Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child 's name on the Watchlist for a period of 5 years, or until the Court orders its removal.
Mother’s proposal
1. That all previous orders be discharged.
2. That the parents shall have Equal Shared Parental Responsibility for the child X, born (omitted) 2013.
3. That the child shall live with the mother.
4. That the·child shall spend time and with the father as agreed between the parents, and failing agreement as follows:
(a) From the date of these orders until the child commences kindergarten:
i. Every second weekend from Friday at the conclusion of preschool, afterschool care, or 5:30 pm to Monday at the commencement of childcare or 9:00 am; and
ii. In the alternate week, on Wednesday from the conclusion of preschool, afterschool care, or 5:30 pm to Monday at the commencement of childcare or 9:00 am.
(b) From the commencement of the child attending kindergarten as follows:
i. Every second weekend from Friday at the conclusion of preschool, afterschool care, or 5:30 pm to Tuesday at the commencement of childcare or 9:00 am;
ii. In the alternate week, on Wednesday from the conclusion of preschool, afterschool care, or 5:30 pm to Monday at the commencement of childcare or 9:00 am; and
iii. During the school holiday periods, on a week about basis, with the father's time to commence on Friday of his weekend time.
5. For the purposes of these orders, changeover shall occur at the child's school, preschool, or after/before school care. If those locations are not available, the parent with care of the child will deliver the child to the other parent's residence.
Communication
6. That the parents will ensure that both parents' details and contact information is provided to the child's school, preschool and childcare.
7. That these Orders authorise any school or preschool attended by the child to provide to each parent copies of information, reports and notices ordinarily sent to parents.
8. That these Orders authorise any medical practitioner the child attend upon to provide to both parents information and reports to both parents in relation to the child's health and medical treatments.
9. Each of the parents shall inform the other as soon as practicable of any significant health or educational issue relating to the child.
International Travel
10. That the mother be permitted to take the child outside of the Commonwealth of Australia between for a period of not longer than 21 days in any 12 month period for the purposes of a holiday to India, and to any transit points in between such destination and Australia ·notwithstanding the consent of the father has not been obtained to such travel.
11. That, in order to facilitate the travel envisaged in order (10) hereof the father shall forthwith do all acts and things necessary to allow the issue of an Australian passport for the child.
12. That the mother is directed to obtain comprehensive travel insurance for the child to cover the entire period during which the child s outside of Australia pursuant to order (10) hereof and is directed to provide the father with a copy of the resulting insurance premium twenty-one (21) days prior to the date scheduled for the child's departure from Australia.
13. That the father have telephone and video communication with the child during the period he "is outside of Australia pursuant to order (10) hereof as agreed between the parents and failing agreement on at least two occasions per week for a period of no less than 15 minutes on days agreed and failing agreement each Wednesday and Saturday to coincide with 8:30 pm Australian Eastern Standard time with the mother to initiate the call to the father's designated landline telephone number, Skype account, Imo or equivalent at her expense.
14. That the orders for the father to spend time with the child be suspended whilst the child is outside of Australia.
15. That In lieu of the time the father_ would otherwise have spent with the child, by way of make-uptime the father spend time with the child on four additional days prior to the travel envisaged in order (10) or following of the child's return to Australia, at times as agreed and failing agreement the child shall spend make up time with the father from the conclusion of after school care on the Thursday preceding the mother's weekend to the commencement of preschool the following Monday.
Legal Principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with orders relating to children. Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper. Section 60CA provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.” The matters the Court is required to consider (in so far as they are relevant) are set out in section 60CC of the Act. Those matters include primary considerations and additional considerations. There are two primary considerations (section 60CC (2) of the Act) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Subsection 60CC (2A) of the Act directs the Court in applying the primary considerations, to give greater weight to subsection 60CC (2) (b) which relates to the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Pursuant to section 60CC (2A) it is necessary to consider the objects of the legislation pursuant to section 60B (1) which include the following:
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The principles that underpin the objects are set out in section 60B (2) of the Act namely:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Both parents agree that there is benefit to X having a meaningful relationship with each of them. The ambit of this dispute is about the time X should spend with each parent, whether school holiday time should be delayed and whether the child should travel to India.
The other primary consideration pursuant to section 60CC (2) (b) of the Act is:
(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The evidence before the Court indicates that there had been in the past a significant level of conflict between the parties with the mother being exposed to abusive messages from the father. The father for his part raised issues about the mother’s psychological health which may have presented as a risk to the child. These matters are explored more comprehensively in the body of this judgment, however, at the time of the hearing the parties did not raise these matters as a continuing concern. Both parents had come to prioritise X’s interests above their own. Nevertheless a high level of mistrust pervaded the parenting relationship.
Additional considerations
When determining what order is in a child’s best interests, the Court is required to consider the additional considerations under section 60CC (3) of the Act in so far as they are relevant. These matters are addressed later in this judgment.
Although the best interests of a child is the paramount consideration, it is not the sole consideration for the Court. Each parent’s proposals for the future are also matters the Court is required to take into account in making a determination but the latter does not override the best interests of the child.
Background
X is the only child of these parties. The father is an Australian permanent resident having moved to Australia in 2007. The parties met in India through family members. Their marriage was arranged. They were married in India in (omitted) 2010. The mother came to Australia sometime in 2011. X was born on (omitted) 2013. The mother’s parents arrived in Canberra in (omitted) 2013 and lived with the parties until (omitted) 2013 to assist with the care of the child.
The parties travelled with X to India on (omitted) 2013. The father returned to Australia on (omitted) 2013. X remained with his mother in India until (omitted) 2014. The parties separated on 31 May 2015. The father moved out of the home on 3 July 2015 when he was served with an interim Domestic Violence Order. He did not see X for a period of 4 months. He commenced proceedings in November 2015 and interim orders were made for the child to live with the mother and spend time with the father. In June 2017 the parties agreed for X to spend time with his father from Friday evening until Monday morning alternate weeks and from Wednesday evening until Thursday morning in alternate weeks.
Care of X
The mother said that she primarily cared for X. She took time off work for the first 15 months after X’s birth until (omitted) 2014 whilst the father worked full time. She was primarily responsible for caring for X, feeding and bathing him and caring for him when he was ill. The father was also an involved parent according to the mother. He was present at X’s birth and would collect X from child care after work.
The father said he had been a very involved in X’s care since birth. He deposed to a high level of engagement with the child when in his father’s care feeding, bathing and caring for him on a regular basis. He said he readily cared for X when he was ill taking time off work. On 11 April 2017 he took X to the hospital for his vaccination. On 2 June 2017 he cared for X when he was ill and on 18 June 2017 when he had a cold. On 11 August 2017 the mother requested the father take leave to care for X who was then ill. He did so. On 9 October 2017 the father took time off work to take X to the doctor for sore eyes. He was prescribed eye drops which he applied to his eyes. He passed information to the mother on each occasion he cared for X regarding his progress.
The parties agree that both are very involved parents. I am satisfied that both parents have a close and loving relationship with X. X currently lives with the mother and spends four nights a fortnight with the father.
Separation
The mother said the parties separated under one roof on 31 May 2015. She said in June 2015 the father advised her he would move out of the property. The mother said on 2 July 2015 there was an incident when the parties argued about who would take X to child care. The mother alleged the father indecently assaulted her and used offensive language in X’s presence. On 3 July 2015 she obtained an interim Domestic Violence Order and placed X on the order. The father was served with the interim Domestic Violence Order (“DVO”) on 3 July 2015. After being served with the DVO he left the home. He did not spend time with X for 4 months.
According to the father on 30 June 2015 the mother alleged to the father’s friend that the father had assaulted her. He left the home having been served with the interim DVO on 3 July 2013. The DVO prevented him from spending time with X. In August 2015 the father through his lawyer requested that the mother remove X from the DVO. When the matter came before the Court the mother withdrew her DVO application.
In September 2015 the father requested that the mother permit him to spend time with X. He said she ignored his request. The father said the mother would not agree to him spending any time with X so he commenced proceedings. The mother claimed she tried to facilitate the father and X spending time however the parties could not agree. The mother agreed however that X did not spend time with his father until interim orders were made by the Federal Circuit Court allowing the father to spend time with the child each alternate weekend from Saturday morning until Sunday evening, on alternate Tuesdays from after child care until before child care on Wednesday.
The parties attended a child dispute conference in February 2016. Further orders were made for the father to spend time with X from 5.00 pm to 8.00 pm on Fridays.
The parties settled their property dispute amicably on 1 March 2016 and the father transferred to the mother $125,000. A superannuation splitting order was also made and the mother retained a Mitsubishi (omitted) motor vehicle.
The father said the parties engaged in further conferences with the father requesting more time and the mother refusing to increase that time. In June 2017 the parties agreed for X to spend time with his father from Friday evening until Monday morning alternate weeks and from Wednesday evening until Thursday morning in alternate weeks.
Developmental issues
Both parties have been substantially involved in X’s care. X attended (omitted) Childcare Centre at (omitted) and the father picked him up from child care each day. He would bathe him, prepare dinner for him, feed him, play with him and read him stories. Sometimes he dropped X to child care in the morning. In 2015 the parties moved X to the (omitted) Child Care Centre.
The father said that he had noticed when X was two he was not speaking as other children of the same age were. He took X to a paediatrician who confirmed his language was relatively low. At age three the father again approached a doctor who advised that X should have his ears and speech checked. The father discussed this with the mother and she agreed and took X to have his speech assessed whilst the father took him to an auditory specialist. The parties discussed X’s lack of motor skills when raised by X’s teacher.
In February 2017 X underwent a child development assessment which both parties attended. Attached to the father’s affidavit is a Developmental Assessment of X dated 28 February 2017 from (omitted) Childhood Psychologist. The report indicated “at 45 months X presents with skill levels between 36, 35 months (Gross Motor and Fine Motor) and 27, 28 months (Foundations of Learning and Language and Communication). His overall general development score was calculated at 30 months and in the very low range (1%ile) for his age level and indicates significant developmental delay.” She said “at this point intervention is urgent in alleviating the impact on his functional capacity and to monitor progress……Speech Therapy, Occupational Therapy and Psychology is required with an intensive multidisciplinary intervention approach as he is due to start school next year.”
During cross examination the father suggested to the mother that he initiated the enquiry into X’s development when he took X to his G.P. raising these concerns. The mother generally agreed that the father took the child to the G.P. however she said she was aware that X was not keeping up with other children his age through the Family Day Care provider.
Since the assessment the parties have both been substantially involved in supporting X’s early interventions. The father said he booked the child into (omitted) Therapy to undergo occupational therapy in August 2017. In September 2017 the mother took the child to (omitted) Therapy for a speech assessment and he accompanied her. He said he and the mother were able to work together and book therapy sessions for the child. X has attended all appointments and shown good progress. His language has significantly improved. The parties are working together to get a NDIS approval.
The mother deposed that in March 2017 X’s teacher indicated that he should stay in preschool next year to try and bring his development up before starting primary school. His paediatrician supported this advising that X was “18 months behind developmentally.”
In January 2018 the father booked X into occupational therapy each alternate Thursday to improve his fine motor skills. The mother booked X into speech therapy sessions at the (omitted) Speech Centre every alternate Monday to improve his speech. The parties have agreed to enrol X in tuition on a weekly basis to improve his fine motor skills and communication.
Co-parenting
The father deposed that there is a high level of co-operation between the parents regarding X’s care. He gave some examples including the mother’s request that he care for X on 24 June 2017 to which he agreed, the parties exchanging X’s scooter and helmet during school holidays to facilitate X’s play, the mother allowing the father to spend additional time with X on Father’s Day, the parties swapping days in November 2017 at the mother’s request and many other examples that these parents work in a co-operative and cohesive manner placing X’s needs at the forefront.
Both parties have suitable accommodation for X. The mother lives in a two bedroom house in (omitted) and the father lives in a three bedroom house in (omitted). According to the mother the father earns about $180,000 p.a. working for the (employer omitted). She earns about $37,000 p.a. as an (occupation omitted). The father pays child support of $1,233.92 per month.
Communication
In the past there was a significant amount of conflict between the parties in the form of hostile communication between them, arguments and disagreements. The mother provided some examples of text messages the father had sent her for example “I got a job to do and things are good for X. If you want to do anything good for X msg me Although I doubt it.” The mother complained that the father sent her messages insulting her family. On one occasion the father blocked her number. She said there was then no communication for three weeks and the parties did not talk about X. She said she was extremely upset by this.
To their credit the parties have been able to put their differences behind them for the benefit of X. They have worked co-operatively since X’s diagnosis with developmental delay. The father regards the parties’ communication is satisfactory, whilst the mother says it is sometimes effective and at other times difficult. Both parents agree they would be assisted if a Communication Book passed between them at changeover setting out any matters relevant to X’s care, welfare and development during the time he has been with the other parent. I propose to make that order. In addition I propose to give the parties an opportunity to use an “app” to assist them with communication if they prefer.
Both parties have large extended families. The father’s relatives live in Canberra and Melbourne. He and the child travel to Melbourne from time to time to visit relatives. The father complained that the mother restricts the time he is permitted to travel to Melbourne. In (omitted) 2015 the father said he wanted to travel to Melbourne with X to attend his sister’s communion ceremony. He obtained the mother’s consent and booked tickets to Melbourne. He said the mother then withdrew her consent. She booked a doctor’s appointment for that weekend and the father cancelled his trip and cared for X and took him to the doctor. The mother said on one occasion she accompanied the father and X to Melbourne to participate in the baptism of the father’s nephew. In my view if an order for X to spend school holidays with each parent is made X will have an opportunity of accompanying his father to Melbourne to spend time with relatives.
Cross examination
The mother cross examined the father at the hearing. She suggested that X had significant developmental delays. He agreed. She suggested that it was in X’s best interests to have stable living arrangements. He said he partially agreed. He said X had shown progress and as far as he was concerned that a week about arrangement was in his best interests.
The mother suggested to the father that his application for a week about arrangement was primarily to reduce his Child Support liability. He disagreed.
The mother asked the father questions about an incident that occurred on 21 December 2017. She suggested that X did not want to go with his father. She said that demonstrated that X had a closer relationship with his mother. The father disagreed. He said he was due to pick up X from the mother’s home that day and the mother changed the arrangements and advised him to collect X from the Canberra Centre, which he did. He said the child observed that his mother and father were together on this occasion and the child started to cry and became upset. X said to his father that he wanted his mummy and daddy to be back together again. This was the reason the child was upset. He disagreed that X was reluctant to spend time with his father. When the father gave this evidence he became quite tearful. I accept his evidence.
The mother asked the father about the events of 2 February 2018 when she dropped X off at the father’s home. She told the father X had not brushed his teeth. She said when she received the child back he had not been showered and his undies had not been changed. She said the father told her X had slept in the afternoon. The mother suggested to the father that X was not properly cared for by him on this occasion.
The father said he did not agree. He accepted that the mother told him X had not brushed his teeth so he took the child to brush his teeth and gave him breakfast. The child was distracted as his aunts and uncles were at the father’s home at the time and he was playing with them. The father said that he sent a text to the mother and told her that the child did not have a shower. The mother agreed the father advised her of this and she had in fact showered the child on his return. I don’t put any weight at all on this incident.
The mother suggested to the father that communication between the parties is variable. Sometimes it works well and sometimes they don’t communicate well at all. The father said he did not agree with that proposition. The mother alleged that the father on one occasion had blocked her number. He agreed that he had done that. He said there was an argument between the father and the mother’s maternal family and he said he was very sorry that he did that on that occasion. He said “it certainly will not happen again.” The father volunteered that it was very bad for X to be exposed to any conflict between his parents. I agree. I accept the father’s evidence that he will attempt to ensure that X is not exposed to further conflict between the parties.
As to the week about arrangement the mother suggested to the father that such an arrangement would provide an opportunity for even more conflict between the parties because there would be many other things that they would need to discuss. The father disagreed. He said he was ready to work with the mother and as far as he was concerned there had been significant development for X over the last 6 to 8 months. He agreed that there were times that he did not respond to the mother’s requests for information. He said he always responded in an emergency but at other times when he regarded the matter as not urgent, he may take two days to respond. He denied he took four to five days to respond.
With respect to the mother’s proposal to travel with X to India, he agreed it was in X’s best interests to spend time with his extended maternal family. He accepted that the mother allowed him to take X to see his family in Melbourne. He accepted that all the mother’s extended family lived in India. The mother suggested to the father that she could not bring them all here as she had 25 to 30 relatives in India and there were various numbers of people that she wanted X to meet. He suggested to the mother that the maternal grandmother and her sister could visit Australia.
The mother suggested that her mother could not visit because she had diabetes and she had a minimal grasp of the English language. She said her sister could not take leave from her job in India to visit Australia. When questioning the father about this topic the mother volunteered that her mother had in fact started to apply to come to visit Australia in 2015 when her father died suddenly. She then decided not to come.
The father said he was concerned that the mother would not return with X should she visit India and there was no way he would be able to get X back because India was not a Hague Convention country. He said the incident between the two sets of families in 2013 traumatised him and he had no confidence at all that should the mother travel to India that she would return.
The father made reference to the time the mother took out a Domestic Violence Order against him which she subsequently withdrew. X was placed on the order and he didn’t see X for 4 months. He said he did not trust the mother and did not agree to the mother travelling with X to India.
The mother indicated that she would guarantee the child would return to Australia. She offered a surety of $170,000. She said she would agree to place that money in Court for her return. She said she would provide the father with all relevant documents and would allow the father to speak to X over the telephone and provide him with an itinerary if the Court permitted her to go.
The mother asked the father about the incident that occurred on 29 October 2013. He agreed that he returned on 2 November 2013 to Australia. He agreed to the mother staying in India for Christmas. He said he had great difficulty getting the child back to Australia in 2014 and he actually had to communicate with the mother over a period of time about the child’s return. The mother required him to visit the parish priest in India before she would agree to returning to Australia with the child. He did so. The parties were still in a relationship at this time.
The father cross examined the mother. She said she was employed as an (occupation omitted) and had two contracts one from 12:00 pm to 3:00 pm each day and the other from 3:00 pm to 6:00 pm assisting in after school care.
The father suggested that he was the first person to take X to the G.P. regarding his developmental delays. He observed X was falling behind. The mother disagreed. She said after she took out the Domestic Violence Order she took care of X exclusively for 4 months and noticed that he wasn’t keeping up with other children. She said the family daycare educator told her that he was not involving himself with other children and he wasn’t at the other children’s age and stage of development. However she did agree that on 6 August 2016 it was the father who consulted the G.P. (Dr W) and asked for a developmental assessment for X. She agreed that thereafter the parents have worked together for the benefit of X ensuring that he gets as much assistance for his developmental delay as possible.
The mother agreed that the father took the child to an Auditory Specialist on the advice of the doctor that the child may have some hearing difficulties. She agreed that both parents have followed up Occupational Therapy and Speech Therapy for X.
The father enquired of the mother why she opposed the week about arrangement. She said she relied on the recommendations of the Family Consultant. Further she said she was not comfortable with the co-parenting communication because of the father’s inconsistency and because X is still very young and as far as she was concerned he was 18 months behind his developmental age.
The father suggested to the mother that it was his idea that X be taught swimming. She accepted that she did not agree to take X swimming because she did not feel comfortable. She accepted that the father had organised swimming for X and he was now learning to swim. The father suggested that because X does not feel comfortable swimming on his own he wanted his dad to swim too, so the father has decided to learn to swim as well. The mother accepted this to be the case.
The mother agreed that the father takes X to Occupational Therapy every Thursday to develop his fine motor skills and social skills and the mother takes him to Speech Therapy on alternate Mondays. The father said he had also booked in some additional hours for Occupational Therapy.
The mother said her main concern is that she does not get a timely response from the father with respect to each and every issue she raised through communication and she feels anxious about this.
The father asked the mother why she would only agree to half school holidays in 2020 when she had previously said that school holidays should commence when X commences Kindergarten which was in 2019. She said that as far as she was concerned there was far too much pressure on X and “everything should be gradual and continue at a slow pace.”
With respect to travel to India, she agreed that her mother and sister could come to Australia. Her mother had actually applied to visit in 2015, however her father died. She agreed that if her mother was to come to Australia she could stay for 12 months. She accepted there was no real impediment to the maternal grandmother coming to Australia to visit her grandson.
Travel to India
The mother’s extended family live in India. She was born in India and grew up there. She wishes to travel to India with X for a period of three weeks on one occasion each year commencing 2018. Her plan is to travel to India on 15 December 2018 and to return on 12 January 2019. Her mother and sister live in India. Her grandmother, uncle and aunts and their children all live in India. The mother said there would be an advantage for X travelling to India to spend time with his extended family. He has a close relationship and speaks with his grandmother via Google chat every Sunday. She indicated that X would benefit from experiencing (omitted) culture in that he could learn to live as a “joined family”. He would experience the place that his mother came from, the school she attended and her family and friends.
She proposed that if she was permitted to travel with X to India, she would lodge a surety with the Court of her savings of $170,000, provide the father with an itinerary and offer him chat time during the period she was away. She indicated she has ties to Australia. She became an Australian citizen on (omitted) 2016, she works in the (employer omitted) as a (occupation omitted) five days a week from 12 noon to 6.00 pm. She plans to purchase property in the future.
The father opposed the mother taking X to India. He deposed in his affidavit that a disagreement arose when the mother’s parents wanted the mother and child to travel to India. The purpose was to find a suitable groom for their daughter. When he expressed his concerns about travel he said the mother tried to jump out of the car and later that night drank toilet cleaning liquid. He took her to the emergency section of the (omitted) Hospital. She was advised to attend counselling however she refused claiming that a counsellor would not understand the Indian culture and their needs.
He said in August 2013 the mother started hitting her head against the wall to get his consent for X to travel to India. The mother denies she hit her head against a wall. The father said following numerous approaches by the mother and her family he eventually consented to X travelling to India. They travelled on (omitted) 2013.
The father deposed that on the third day in India the mother’s sister and her father came to the home where X and the father were staying and demanded to take X to their home. He refused. The father said they returned with the police “and gangster” and snatched X from his lap. He said the police didn’t know he was the child’s father and were surprised when he told them. The police advised him he had no option but to let the child go. The incident happened at midnight and X was 6 months old at the time.
He said the following day he enquired of lawyers regarding his rights to see the child. He was advised that Indian law did not allow the child to see the father without the mother’s consent and the child would remain with the mother if the parents separated. He was advised not to contact the mother as criminal proceedings may be commenced to stop his travel and he may never see his child again.
He said he travelled back to Australia and on his return he could not find any documents for the child. In addition, the mother had forwarded to her sister in India his PAYG summary. He said he concluded that the mother wanted a divorce from him and wanted to take the child to India permanently.
He said he contacted Centrelink and the Department of Human Services and sought assistance but they were unable to help.
In January 2014 he contacted the mother and asked her to return to Australia. She agreed on the condition that the father travelled to India to meet the parish priest. He did so. He, the mother and X returned to Australia together in (omitted) 2014.
Regarding the incident that occurred in India in (omitted) 2013, the mother said the parties and X travelled to India on (omitted) 2013 and stayed with the paternal family. The mother argued with the paternal grandmother about a dowry. She said the paternal grandmother grabbed X from her arms. He was 6 months old at the time. She attempted to take him back and was told “you don’t deserve him.” She called her father and sister who attended the property with police. She said the grandmother was told to return the child to the mother and X was returned. They then left the property.
She said the father left for Australia on (omitted) 2013. According to the mother he did not tell her he was returning home. They had planned to spend Christmas with their extended families. On 27 November 2013 the father sent the mother a number of highly offensive text messages for example “my cock is ready….ur dad can come n suck it…” She said he also attempted to call her “about 300 times.” She said despite the father’s conduct the mother sent him emails and pictures of X. The mother agrees that the father travelled to India in (omitted) 2014 and they all returned to Australia and the parties reconciled. She said the relationship deteriorated with the parties arguing over a number of matters.
I find there was an incident in India in late 2013 when the mother involved her family and police to remove X from the paternal family home. Both parents agreed that their respective families engaged in conflict on this occasion. This incident has had a significant impact upon the father who has a deep rooted sense of mistrust for the mother and fears that if X travels to India he will not see his child again and will not be able to secure his return to Australia.
The father said in August 2014 he discovered that X’s passport was missing. When he asked the mother about it, she said she didn’t know anything about the passport. He reported the passport was lost to the Australian Passport Office. He told the mother that he had cancelled the child’s passport. He said the following day the mother wrote to the passport office advising them that the passport was not lost. He was not informed of this but discovered this from her affidavit filed in November 2015.
The mother said in May 2014 the father yelled at her asking where X’s passport was. She told him she had his passport “because I am his mother.” She said the father then started pulling things out of the cupboards and smashing them. She said she told the father “I’m happy to give you the passport but I’m worried that you will destroy it because you’re so angry.” She said she called a friend and then stayed with her friend and his wife due to the father’s conduct.
In (omitted) 2015 the mother wanted to travel with X to India. The father did not consent to the travel. He said he received a letter from the mother’s lawyer Legal on London seeking his consent to the travel. He did not respond. He engaged a family lawyer and advised the mother’s solicitor that he did not consent to X travelling to India. According to the father “the mother’s father and sister had bribed the parish priest and police to get a fake letter about the father’s conduct.” He formed the view that the mother’s family “were plotting to take X away” from him. The mother agreed that her family contacted the father requesting that the mother be permitted to take X to India. She denied they bribed a priest or police.
The mother agrees that she wanted to travel with X to India in (omitted) 2015 while the parties were still together. According to the mother the father initially agreed to the travel saying “I understand that it is important for (X) and for you to spend time in India.” She said she travelled to Melbourne with the father and X for his nephew’s baptism. She said there was tension between her and the paternal grandmother whilst there and the parties argued on their return. She said it was after this that he withdrew his consent for her to travel.
In early March 2015 she engaged lawyers to make an application to travel with X to India. She said the father was furious and said to her “we have to divide up everything in our house. You cannot come near my room or bathroom or eat my food.”
In May 2015 the father received a passport application for X. The mother had filed the application and one of the father’s friends had signed the application as “grantor.”
The mother said her father passed away on 7 November 2015. She wanted to travel to India to attend his funeral. She sought the father’s agreement and he refused. She made an application to the Court which was dismissed. She said the judge indicated “I am concerned that you may not return to Australia…” She then travelled to India on (omitted) 2015 without X and returned on (omitted) 2015. X was cared for by his father.
During the hearing the mother had indicated that her mother could not travel to Australia as she had diabetes. In her affidavit the mother denied that her mother has any severe medical or family issue.
The father said he has no confidence that the child will return to Australia. India is not a signatory to the Hague Convention. Though the mother offers a surety he is not confident that she will return with the child.
Legal principles with respect to international travel
In Gin v Hing [2010] FamCA 617, Cronin J made the following remarks about cases in which the court is asked to adjudicate on international travel arrangements:
“[64] Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The court determines discretionary matters within the framework of the evidence that it is presented.
[65] It is obvious that I cannot do more than balance the evidence of the parties and determine what I think is best for the child in the context ... It is an exercise of doing the best that one can.”
In Kaur & Kaur [2014] FCCA 2843, Judge Brown summarised the well-known authorities from Line & Line (1997) FLC 92-729 and Kuebler & Kuebler (1978) FLC 90-434 regarding matters to be taken into account when determining whether to make an order for travel:[2]
“[118] In Line & Line the Full Court of the Family Court indicated that there are a range of circumstances which the court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia. These factors include the following:
the existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;
the existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child related issues;
the existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; business interests; and the existence of familial and personal ties.
[2] Noting that a judge is not required to refer to and discuss each and every of these considerations underpinning a decision: Thomason & Malhotra [2010] FAMCAFC 85 [49] – [50] (Thackray, Strickland and Murphy JJ)
[119] In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
in fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
the degree of risk that the departing parent will not return to Australia.
whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country.
the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased”.
These considerations exist alongside and may be subsumed by those contained in the statutory provisions. The principles enunciated in Goode & Goode [2006] FamCA 1346 (2006) FLC 93-286 at pages 85,006-85,007 apply.
The mother owns no real estate in Canberra and currently has part time employment. She indicated she had savings of $170,000 which she was prepared to offer as security for her return to Australia. India is not a Hague Convention country. According to the father, if the child returns to India with his mother it is unlikely he will be able to secure the child’s return through the legal process. Notwithstanding each parent’s commitment to the child in ensuring that his developmental needs are met, there exists between them a high level of mistrust. This mistrust is against a background where the parties’ respective extended families have previously engaged in open hostility both when the child first travelled to India and later in attempting to convince the father to agree to travel.
The mother indicated that she wanted the child to visit her mother and sister however in 2013 the maternal grandmother visited Australia for a significant period and assisted in the care of the child. Both parties and the child then travelled to India with the mother remaining there for several months. The mother indicated that her mother intended to visit Australia in 2015 however her father died and she decided then not to travel. There appeared to be no impediment on the maternal grandmother travelling to Australia. The mother agreed that her sister could accompany her mother however she had work commitments in India. The mother has sufficient funds to travel to India without the child and return with her mother to Australia. I understand the maternal grandmother could apply for a visitor’s visa that would allow her to remain in Australia for 12 months. The Family Consultant did not support the mother’s travel to India with the child. She said given the level of mistrust between the parents and the difficulties between their respective extended families it is not in X’s best interests to travel to India at this stage. He is not yet 5 and has developmental delays. He requires the support of both parents to get him through this difficult stage and ensure a smooth transition to school in the coming years. X will be 10 in (omitted) 2023. Unless the parties agree, each of them will be at liberty to apply for X to travel internationally after 1 May 2023 provided that they have engaged in mediation in an attempt to resolve any dispute regarding such travel. I consider that order to be in X’s best interests.
Family Consultant’s report
Both parties were interviewed by the Family Consultant. The father advised the Family Consultant that the mother used emotionally manipulative behaviours attempting suicide and/or claiming to make suicidal attempts in order to influence him to allow her to travel with X to India. The account given by the father regarding the incident in India in 2013 largely accords with the evidence above. He told the Family Consultant that he found the incident very distressing, “the child was on his lap and drinking milk when he was snatched.” He said the police were not aware that he was the father of the child and appeared to be surprised when he told them. They told him that they had no option other than to let the child go with the mother’s sister. He said the incident occurred at midnight and the child was only 6 months old. He contacted lawyers in India and enquired about his rights to see X. He learnt from his lawyers that he could not see the child and Indian Law did not allow the child to see the father without the mother’s consent. He was advised not to contact the mother as criminal proceedings may be instituted against him. He returned home upset and distressed.
He said when he returned home he couldn’t find any of the child’s official documents. He observed that the mother had moved her belongings from the home. She had also organised to forward his pay summary to her sister in India. He was concerned that he would never see X again. He contacted Centrelink and the Department of Human Services and sought assistance but they were unable to intervene.
The mother advised the Family Consultant that the father was at times controlling of her and would break items when he was angry. She felt restricted about money matters and about X’s needs not being met. She said she went to hospital on one occasion after feeling emotionally overwhelmed by the father swearing at her.
The mother said that prior to separation the father became increasingly controlling in what she could eat and access in their home and she alleged that when he requested that she perform a sexual act on him she made a decision to apply for a protection order. She was granted an interim protection order.
Both parties indicated that there were stressors within their relationship influenced mainly by their extended family members. They initially enjoyed a positive relationship until X’s birth in (omitted) 2013. The father said that conflict emerged after he reconnected with his family after X’s birth and the mother’s family was staying with them around the same time. He alleged that the maternal grandparents created issues for the parties, this lead to tension and pressure within their relationship.
In August 2015 there was a hearing of the Domestic Violence Application and the father requested that X be removed from the Order. The mother eventually withdrew the Domestic Violence Application and in September 2015 the father sought to spend some time with X and filed an application seeking parenting orders. His application was heard on 2 November 2015 and interim orders were made for X to spend time with the father each week from after childcare on Tuesday until childcare on Wednesday and each alternate weekend from 9.00am Saturday until 4.00pm Sunday. On 3 February 2016 the alternate weekend time was increased however the child was to spend time with the father from 4.00pm to 6.00pm on Friday and then 9.00am Saturday until 4.00pm Sunday. Following the withdrawing of the protection order by the mother in mid-2015 no other family violence orders have been applied for.
At the time of the Family Consultant’s report in May 2017, X was spending time with his father from after childcare Monday until about 8.00pm each week in addition to Tuesday after childcare until Wednesday morning in the off week and from 4.00pm to 6.00pm Friday and 9.00am Saturday until 4.00pm Sunday. Otherwise X was living with the mother.
The parties advised the Family Consultant that they agreed to an order for equal shared parental responsibility. The mother sought an order that X spend time with the father alternate Mondays overnight and concluding at 8.00pm in the alternate week, she said as far as she was concerned it was too early to establish whether or not X would adjust to an equal time arrangement given his developmental needs. The father sought equal time. He also sought an order that X remain on the Airport Watchlist and not be permitted to travel overseas.
At the time of the interviews the father was living alone in a 3 bedroom rental property in (omitted). His brothers and mother live in Melbourne and he spends time with them regularly. He was born in (country omitted), however grew up in India and moved to Australia in 2007. He has lived there since. He is employed by the (employer omitted) as a (occupation omitted) and works full time.
He said that he observed that X was not achieving at the expected milestones for his age, he noted that X’s speech was delayed and he advised that he believed that X learning more than one language as a young child contributed to his difficulties. He said that he was not happy with X’s previous childcare arrangements but that has now been resolved. X has been assessed by the ACT Child Development Service with both parties attending this appointment. The father said that both parents work together to promote X’s needs and in particular make a conscious effort to increase X’s opportunities to socialise which the father says are not as frequent when X is in his mother’s care. He said X is below expected levels in a number of areas however he is making positive progress and improving his functioning. He advised he is aware that the mother is now only speaking with X in English however she was speaking only in (language omitted) to him and the father indicated that he thought that this brought about the child’s speech delay. According to the father the child’s speech has improved.
The father said he wanted to enrol X into the best school in Canberra. He currently attends (omitted) Preschool and the father wishes he would attend (omitted) School. He did not foresee that the parents would be in dispute about this in the future. According to the father communication has improved between the parties and he described communication as decent. He said that they did have some dispute around Christmas time as he was seeking holiday time arrangements however communication between the parties is effective and amicable. He said that they communicate by email and text and sometimes in person and there is currently a positive focus on X. He said X presents as a very happy boy, shows no difficulties transitioning into his care, he plays with toys in his home and they enjoy going outside and to the park. He said he also sleeps well. He said that it is his belief that X living equally between his parents is in his best interests. X could transition into the arrangement immediately and it would assist to reduce the travel requirements of the current arrangements between the parties. He advised that the current arrangement requires X to travel up to 30 minutes each Monday evening to his home. He feels that without the overnight time the travel back to the mother’s home that same night is tiring for him. He believes that a change in the structure of the time specifically establishing an equal time arrangement will allow X to experience living with both parents with a reduced need for changeovers and frequent change.
Regarding overseas travel he said there should be no travel for X overseas, yet there should be no restriction on travel for X within the Commonwealth. He wants X placed on the Airport Watchlist which I understand he is currently on. He said that there was no treaty between Australia and India and his previous experience of the mother withholding X in her care in India divested him of any confidence that she would return if permitted to travel. He expressed his position that he had no objection to the maternal family engaging with X if they were to travel to Australia to spend time with him.
At the time of the interviews, the mother was employed as an (occupation omitted) in an (employer omitted) and works from 2.00pm to 5.30pm Monday to Friday. She had just finished a diploma in (omitted). She was born in India and her sister and mother remain living there, her father passed away in 2015. Her primary language is (language omitted). She communicates with X in English however she said that previously until late 2016 she spoke to him exclusively in (language omitted). With regard to her past hospital admission and suicide attempt, she advised that she once fainted when the father used flighty language at her and this lead her to go to (omitted) Hospital where she was assessed by a psychiatrist. She reports having no ongoing mental health issues or diagnosis. She agreed that X’s development is delayed in a number of areas and that the parties are both on board with the assessments as well as the recommendations to promote his developmental needs. She advised that the parties have agreed that X will repeat preschool in 2018 and his paediatrician will review his progress on October 2017 to confirm if a repeat is still required.
Although she did not identify any direct concerns for X in his father’s care in the interviews, it became apparent during cross examination that communication between the parties was an issue for the mother. She told the Family Consultant that X is very happy with both of us, he likes both of us and he is a very happy boy. She complained that communication between the parents varied. She said sometimes the father is forthcoming with communication about X and accompanies her to appointments for the child and at other times he doesn’t respond to her enquiries for 2 to 3 days at a time. She said his communication is inconsistent. He makes comments about the quality of the clothes she purchases for X in comparison to the clothes he purchases and refers to her lower wage. She said that she finds such comments denigrating to her and she holds less confidence in their co-parenting and communication being amicable on a sustained basis as a result of her perceived inconsistencies in the father’s attitude.
She advised the Consultant that she sometimes feels a bit uncomfortable with the father and this limits her confidence to express her views on X’s needs. She proposed X commence spending each Monday overnight in the father’s care to increase his involvement and responsibilities with X’s schooling. She does not believe that an equal time arrangement is reflective of X’s best interests, advising that in light of X’s developmental delays he requires a high level of stability. She advised that she is not opposed to the idea of equal time as X ages however she feels it is too early to determine whether or not that arrangement will be best for X and how he will adjust. She would also like longer to establish whether or not the father’s behaviour and attitude within their co-parenting would remain consistent and amicable.
Regarding travel, she said she has not agreed to X travelling with the father to Melbourne as he did not agree to X travelling with her to India. She advised she does not have an issue with X seeing his paternal family, she “just wants the father to consider X travelling with me too”. She has a large family in India and would like to be able to take X to India to see where she grew up as well as to learn more about his Indian culture. She facilitates X video calling her family and she advised that X’s relationship with his maternal grandmother is very close.
X was observed by the Family Consultant. He presented as a happy child and was playful throughout the day. The developmental assessment of X indicated that he had significant developmental delays and speech issues. Occupational Therapy, speech therapy and psychology was recommended for him. He was assessed as being expected to respond well to those interventions. X was observed with each of his parents. He was engaged and showed confidence and security with his relationship with both parents.
The Family Consultant noted that X’s needs and intervention requirements were not areas of dispute between the parents and they were both assessed as possessing a positive capacity to uphold unity towards promoting X’s care needs in this regard. She said their ability to participate in joint sessions and appointments about X further demonstrated their ability to place their own needs and interpersonal issues as a couple aside to ensure their son’s needs are paramount. She said the party’s current attitude and joint focus on X indicated a positive capacity for them to continue an amicable and co-operative co-parenting relationship for X. Should this continue X’s ability to transition between the parties’ homes and to be at reduced risk of being exposed to adult conflict will improve. The parties’ consistent approach to addressing X’s developmental needs will also promote his capacity to achieve developmental milestones.
She observed that the parties had not always negotiated stress within their relationship without conflict. The mother reported some vulnerability within the co-parenting interactions remain current. She said that should the mother’s accounts of the father’s behaviours be accurate, this would suggest that a level of power imbalance exists between them and she perceives this diminishes her co-parenting and role at times. I note that during cross examination there was no suggestion by the mother that the father exerted any level of power imbalance or control upon her currently. She complained about some derogatory remarks that the father’s family had made about her in 2016 but I formed the view that these matters were historical, in the past and not a present concern for the mother.
The Family Consultant concluded that “the available information does not indicate that the parties’ current dynamics are such that misuse of power occurs however it is noted that a vulnerability to this occurring could occur should the parties be under consider[able] pressure or hold strongly opposed parenting views for X at some time in the future.” She remarked that should this occur, the use of the Marymead services to support the parties to remain child focused would be appropriate.
Regarding the father’s proposal for equal time she said:
“The co-parenting capacity and communication is one area that has been explored. Practicality is also a consideration and it does not appear that the parties’ living arrangements would preclude an equal time arrangement from being appropriate for X.” However she said “the key consideration for X at this time is his developmental needs and capacity. The professional literature widely accepts that the formative views of a child’s life are integral with regards to promoting a child’s emotional and developmental capabilities for life. For X his developmental delays indicate that whilst he is chronologically 4 years of age, his development is below the expected capabilities of a 4 year old. In this regard it is assessed that X should be provided with the stability and security of the structure of a primary care arrangement at this time with future decisions around this changing being influenced by his personal capacities and progress to achieving his developmental milestones as these are better known in the future.”
She said it is assessed as being in X’s best interests that minimal changes occur to his parenting arrangements within the foreseeable future so as to allow him to not be required to navigate the changes associated with such a change whilst his primary needs remain focused around promoting his developmental achievements. In her view X’s capacity to continue sharing a meaningful and positive relationship with each of his parents will not be negatively diminished by the continuation of substantial time arrangements, versus equal time, and that both parents demonstrated willingness and ability to be involved in his care needs and intervention supports. This provided X with the opportunity to experience them both fulfilling active and substantial parenting roles.
She recommended that X spend time with the father from Friday to Tuesday each alternate week and from after daycare/school on Monday until 8.00pm and from after daycare/school on Wednesday to the commencement of daycare/school on Thursday in the intervening week. She was of the opinion that X’s school holiday times could be equally shared with this occurring on a week about basis during the summer holidays to reduce the time he is away from the mother as his primary parent.
Regarding travel she indicated there were no social science reasons assessed to limit X’s travel within Australia with either parent. She recommended that this not be restricted within either party’s specified time with him.
Regarding overseas travel to India, she observed there had been a long standing dispute between the parties even during the time they were in a relationship together. In her view there existed a high level of mistrust regarding this issue which lead to the parties’ communication deteriorating and conflict emerging. In her view the elimination of the Airport Watchlist for X was likely to lead to greater insecurity and instability within the co-parenting relationship and subsequently X’s sense of insecurity and risk of exposure to conflict will increase. In her view the mother presented with the capacity to facilitate X’s connection to his culture and extended family in Australia and as such X’s cultural needs were not being unmet.
The father cross examined the Family Consultant. She confirmed she was not recommending any overseas travel to India. She agreed with the father that given the level of mistrust between the parties, such travel could have a negative outcome on the co-parenting arrangements. In her view the mother was currently meeting X’s needs to have a cultural connection with his maternal family if only remotely.
The mother cross examined the Family Consultant and suggested to her that leaving X on the Airport Watchlist would likely increase the mother’s stress and affects the co-parenting arrangement. She said “well it may do if you hold a grudge against the father”. The mother suggested that the strong bond with the maternal family needed to be facilitated. The Family Consultant agreed but said this was being done by the mother in any event. She said she did not change her view and would not agree that overseas travel for X to India at this stage was in his best interests. The mother suggested that the father’s opposition to the travel “was an act of revenge on the father’s part preventing her from going to India.” The Family Consultant said there was no evidence before her about that. The mother suggested if she travels once and then returns the trust may be enhanced between the parents. The Family Consultant responded “potentially” however she maintained her view that travel to India was likely to undermine the co-parenting arrangement rather than have a positive impact.
Submissions
The father said there was a gap of 10 days during which he does not see X and that this was not in X’s best interests. A week about arrangement was to be preferred. He has cared for X four nights in a row and in his view X would certainly benefit spending more time with his father. Regarding travel to India he would not oppose the Airport Watchlist being removed when X turns 13 but opposed the child travelling to India before then.
The mother opposed any week about arrangement. She said X was very young, he had significant developmental delays, he was repeating preschool, his primary attachment was to her, “everything should be gradual for him, he won’t cope with too many changes”, he is under pressure and he is very happy living with his mother. She did not oppose week about theoretically if X formed the view that he wanted to spend week about with his father. She adhered to her position that there should be no change for X until 2019 and that school holidays should not start until 2020. She said X’s developmental delay and the parties’ poor communication were her main concern.
Discussion
The primary considerations have been referred to above.
Additional considerations
The Court is required to consider the additional considerations under section 60CC (3) of the Act in so far as they are relevant when determining what order is in a child’s best interests.
(a) Child’s wishes
X is 4 years old and will be 5 in (omitted) 2018. It is common ground that X has some significant developmental delays. Both parents describe X as a happy boy who enjoys time with each of his parents. X has not expressed any particular wish about the time he spends with either parent.
(b) Child’s relationship with each parent and other persons
X has a close and loving relationship with both his parents. Though he has been in his mother’s primary care since birth his father has been substantially involved in his care. No issues of significance were raised regarding the care each parent provides for X.
There are members of X’s extended paternal family with whom he spends time in Canberra and in Melbourne whilst in his father’s care. He also has a close relationship with his maternal grandmother. He initially spent time with her as an infant and for a period of about 4 months whilst in India in 2013. The mother has fostered and encouraged a close relationship between X and the maternal grandmother and the pair Google chat on a weekly basis. X has not yet had an opportunity to develop a relationship with other members of the maternal family who live in India.
(c) Whether the parents have taken or failed to take the opportunity to participate in making major long term decisions in relation to the child, and/or taken the opportunity to spend time and/or to communicate with the child
Early in the child’s life a high level of conflict existed between the parties. X was removed from his father’s care when the parties visited India in late 2013 and police were apparently involved. The tension was caused by the involvement of the parties’ extended families. X did not spend time with his father between 2 November 2013 and February 2014. There were disputes between the parties regarding the mother’s attempts to obtain a passport for X. On 3 July 2015 the mother placed X on an interim protection order. X did not spend time with his father until interim orders were made by the Court some 4 months later.
Since X was diagnosed with developmental delays, the parties have commendably joined to support X’s needs and have participated in accessing a high level of intervention supports for X however the issue of travel to India remains a point of contention where the parties cannot agree.
(ca) The extent to which the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The mother raised some criticism of the father regarding financial support suggesting his application for week about was centred around his desire to reduce child support. He disagreed. Currently the father pays child support as assessed. The amount is significant. He also provided for X’s needs whilst in his care.
(d) The likely effect on the children of any changes in their circumstances including separation from a parent or any other child
X has repeated pre - school and is currently developmentally behind his peers. The Family Consultant indicated that “the key consideration for X at this time are his developmental needs and capacity……given he is below the expected capabilities of a 4 year old ……… X should be provided with the stability and security of the structure of a primary care arrangement at this time with future decisions around this changing being influenced by his personal capacities and progress to achieving his developmental milestones as these are better known in the future.” The Family Consultant recommended that X remain in his mother’s primary care and spend time with his father from Friday to Tuesday on alternate weekends and from Wednesday to Thursday the following week. I consider such an arrangement to be in X’s best interests. I do not intend to make an order for time on Monday afternoons. In my view having regard to X’s current delays and the need for predictability and stability the recommendations for time with the father are in X’s best interests. I agree with the Family Consultant that X should commence spending school holidays with his father. This is likely to be an enjoyable time for X without the pressure of preschool and will provide him with an opportunity to enjoy a more relaxed time with his parents.
(e) The practical difficulties and expense of the children spending time and communicating with each of their parents
The parties live within fairly close proximity of each other so practical difficulties are not apparent save that the mother contends the parties’ communication could improve. Both parents have agreed to implement a Communication Book to enhance communication between them about X’s needs.
(f) The capacity for the parties to provide for the children’s emotional and educational needs
Both parents have demonstrated that they have the capacity to care for X emotionally and educationally. Both parents impressed as being child focused with the ability to prioritise X’s needs above their own. Both are committed to supporting X to the maximum extent with respect to his developmental delays and impressed with respect to their commitment to addressing X’s difficulties. I formed the view that the father displayed particular insight into the negative impact of parental conflict upon the child.
(i) The attitude that each parent has demonstrated to the responsibilities of parenthood
Both parents have embraced parenthood and the responsibilities that brings for each of them. The father has readily cared for X when ill at the mother’s request.
(j) Family violence
As indicated in this judgment (above), the parties have a history of conflict with the father sending the mother abusive and offensive messages and the mother allowing her family members to remove the child from the father whilst in India. Notwithstanding the history the parties have managed a co-parenting arrangement for X’s benefit with the father careful to ensure that the child is not exposed to any further conflict through the parties’ interactions.
However, a deep level of mistrust exists between the parties centred around the mother’s wish to travel with the child to India. I agree with the comments made by the Family Consultant that this issue has been of long standing even during the parties’ relationship and has impacted on the parties’ ability to communicate and has created conflict. In her view, allowing the mother to travel to India was likely to lead to greater insecurity and instability within the co-parenting relationship and subsequently impact on X’s sense of insecurity. It may heighten the risk of X being exposed to conflict. I agree.
Equal shared parental responsibility
Both parents seek an order for equal shared parental responsibility. Pursuant to section 61DA (1) of Act the Court is required to consider whether it is in the best interests for parents to have equal shared parental responsibility for a child. Under subsection 61DA (2) of the Act the presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in (a) abuse of the child; or (b) family violence. Under subsection 61DA (4) of the Act the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility.
Section 65DAC of the Act provides that an order for equal shared parental responsibility requires the parties to consult with one another about major long term issues and to make a genuine effort to come to a joint decision about any relevant issue. “Major long term issues” is defined in section 4 of the Act and includes issues relating to a child’s education, health, name and changes to a child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.
Both parents consent to an order for equal shared parental responsibility. Both are child focused and well able to consult each other about matters concerning X. In my view it is in X’s best interest that an order that the parties have equal shared parental responsibility be made.
There are a number of consequences that flow from the making of that order. Section 65DAA (1) of the Act provides that subject to subsection (6) if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide for the child to spend equal time with each of the parents.
Whether it is “reasonably practicable” is to be determined by reference to matters set out in section 65DAA (5) of the Act. That section provides that in determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The father is seeking an order for the child to spend equal time with him. The mother opposes that order. The Family Consultant did not recommend an order for X to spend equal time with his parents. X is repeating preschool. He has significant developmental delays. The parties have developed a co-operative approach to ensuring X attends his intervention supports. The father works full time and the mother part time. X currently requires a high level of assistance in a number of areas. Though the parties’ practical living arrangements would not preclude an equal time arrangement from being appropriate for X, the Family Consultant indicated that “minimal changes should occur to X’s parenting arrangements within the foreseeable future” so as to allow him to not be required to navigate significant change when his developmental needs and achievements should be the focus for X. In her view, “X’s capacity to continue sharing a meaningful and positive relationship with each of his parents would not be negatively diminished by the continuation of substantial time arrangements versus equal time.” I agree. In my view it is in his interests to have a secure, predictable stable base with his mother as primary carer in addition to spending substantial and significant time with his father. I propose not to make an order for equal time.
In the event that the Court does not make an order for equal time (having considered making that order) under section 65DAA (2) of the Act the Court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide for the child to spend substantial and significant time with each of the parents.
Pursuant to section 65DAA (3) a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spend with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spend with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spend with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The Court is required to consider under section 65DAA (5) of the Act whether it is reasonably practicable for the child to spend substantial and significant time with each parent and in doing so take into account the matters referred to in paragraph 132 above.
Both parents have demonstrated a willingness and ability to be involved in X’s care needs and intervention supports. This provides X with the opportunity to experience both his parents fulfilling active and substantial parenting roles. Both parents are significantly involved in supporting X’s occupational and speech therapy. Both have been heavily involved with X’s preschool and this is likely to continue in the future. X needs an opportunity to redress his developmental delays with the assistance of both parents whilst being provided with a secure, safe and predictable environment. It is in X’s best interests that he live primarily with his mother and spend substantial and significant time with his father from after school on Friday until before school on Tuesday each alternate weekend and from after school Wednesday until before school on Thursday in the following week. X will spend five nights a fortnight with his father and the remainder with his mother. In addition X will spend half of the school holidays with each parent. I make orders accordingly.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 27 March 2018
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