Nehru and Nehru

[2018] FamCA 1131

FAMILY COURT OF AUSTRALIA

NEHRU & NEHRU   [2018] FamCA 1131

FAMILY LAW – CHILDREN – FINAL ORDERS – With whom the children live - application for children to live with father and that he have sole parental responsibility - where the mother was aware of proceedings but lives overseas – where the mother made allegations of family violence against the father – where the mother consistently failed to make appearances and rarely engaged proceedings - where the orders made as sought by the applicant – orders made ex-tempore.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA

Mazorski & Albright [2007] FamCA 520

APPLICANT: Mr Nehru

RESPONDENT: Ms Nehru

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: PAC 2265 of 2017

DATE DELIVERED: 20 December 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 5 December 2018

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

Orders

1. That all previous parenting orders in respect to the children X born … 2005 and Y born … 2008 be discharged.

2. That the father have sole parental responsibility for the children.

3. That the children live with the father.

4. That the children spend time and communicate with the mother in Australia as agreed between the mother and the father.

5. That all applications be otherwise dismissed and removed from the list of cases awaiting determination.

6. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

7. That the appointment of the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nehru & Nehru has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: PAC 2265 OF 2017

Mr Nehru

Applicant

And

Ms Nehru

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The father, Mr Nehru, seeks final parenting orders in respect of the two children, X and Y, aged 13 and 10 respectively.  The mother is Ms Nehru and she resides in India.  She filed documents in response to the father’s application in February and October 2018.  However the mother has only appeared in the proceedings on one occasion, and that was by telephone.  She does not appear before me today.

2. In circumstances where the mother has not actively participated in these proceedings since their inception, the father seeks leave to proceed with his application for final parenting orders on an undefended basis.  These are my reasons for judgment with respect to that application. 

3. The background to the matter is as follows. 

4. The father is the applicant in the proceedings.  He is aged 41 years, and the children live with him. 

5. The father is employed by B Pty Ltd, which is located in Suburb C.  The father is a permanent employee with that company and works from Monday to Friday, usually from 7 am to 4 pm. 

6. The father has re-partnered with Ms D.  They have cohabited for a period of approximately nine months.  Ms D does not work; she is currently in Australia on a visitor visa with an intention to seek permanent residency in Australia.

7. The mother is the respondent in the proceedings.  She is aged 40 years and resides in India.  She is engaged in home duties. 

8. The parties commenced cohabitation and were married in 2004.  They separated on 23 February 2017. 

9. As I have noted, the two children of the relationship are X, who is aged 13 years, and Y, who is aged 10 years.  X has just completed Year 7 at E School.  Y is at F School, having completed Year 4.  I am told that both children are making good progress at school.  Further, they are engaged in a range of extra‑curricular activities outside of school, which they both enjoy.

10. The matter has had a long procedural history.  The father commenced proceedings by Initiating Application filed in the Parramatta Registry of this Court in May 2017.  The father deposes in his affidavit material that his application was prompted by the mother’s decision to remain in India following a family holiday there, and her desire that the two children be returned to her in India.  The father deposes that the mother has had significant mental health issues and that she has failed to engage in appropriate treatment for her condition.

11. As a consequence of that background, the father seeks orders that he have sole parental responsibility for the children, that they continue to live with him, and that the children spend time and communicate with the mother in Australia as agreed between the mother and the father. 

12. The matter was listed before the Registrar in the Parramatta Registry on 4 July 2017.  The mother did not appear at that hearing and filed no documents in response to the father’s application.  That day, orders were made for the mother to file and serve a response by 23 July 2017.  The matter was otherwise adjourned to 25 July 2017. The father was required to inform the mother of the orders made that day. 

13. The mother did not file documents in compliance with the orders made 4 July 2017.  She did not appear at the adjourned date on 25 July 2017.  That day, orders were made for the appointment of an Independent Children’s Lawyer.  The matter was otherwise listed on 23 August 2017, and it was then foreshadowed that the matter may proceed on an undefended basis in respect of the interim application made by the father. 

14. The mother again did not appear before the Court on 23 August 2017.  That day, interim orders were made on an undefended basis, that the children live with their father, that he have sole parental responsibility for them, and that the children spend time with the mother in Australia as agreed between the parties.  Those parenting orders have continued since that time.  I note that the orders now sought by the father are final orders in almost identical terms.

15. The matter was next listed before the Court on 19 September 2017.  Again, the mother failed to appear.  Further orders were made for the mother to file responding material within 14 days.  The matter was listed for a telephone mention on 18 October 2017.  Orders were made giving notice to the mother that if she failed to comply with the orders, or failed to appear on the adjourned date, that the matter would be listed for an undefended hearing with no further notice to her. 

16. It seems that the mother did attempt to file a response in an affidavit in the aftermath of those orders, but the registry rejected the documents.  The mother did not attempt to re-file documents.  At the hearing on 18 October, the mother appeared by telephone.  The matter was adjourned to 21 November 2017.  Again, orders were made for the mother to file material.  Again she was given notice that if she did not comply with those orders, the matter may proceed on an undefended basis. 

17. On 21 November 2017, the matter was listed before a registrar.  The mother did not appear.  Orders were made listing the matter to 23 January 2018 for a judicial case management hearing.  On 23 January 2018, the matter came before Hannam J.  The mother did not appear.  Her Honour made orders and a notation to the orders that the mother has not generally engaged with the proceedings, and noting that it is anticipated that final orders will be sought on an undefended basis.  The mother was again ordered to file a response, the deadline for the filing of that document being 16 February 2018. 

18. Affidavits were ordered to be filed by 9 March 2018, and the matter was relisted on 22 March 2018.  The mother did file a response on 27 February 2018.  She sought final parenting orders, including an order for sole parental responsibility and for the children to live with her in India.  The mother also filed an affidavit on 27 February 2018.  She there deposes that she has filed proceedings in India, in particular a habeas corpus petition requiring the production of the two children before the High Court in City G, India.

19. In her affidavit, the mother deposed that the father had removed her passport and travel documents, thereby preventing her from visiting the children or attending these proceedings. 

20. At the hearing before Hannam J on 22 March 2018, the mother did not appear.  In light of the material filed by the mother, an order was made for the preparation of a section 11F memorandum.  The notation to the orders made that day provides as follows: 

    The mother has filed an affidavit raising a number of allegations of risk in relation to the children in the father’s care which will require some investigation. The Independent Children’s Lawyer is to issue subpoenas to the Department of Family & Community Services and the equivalent department in Western Australia, the hospital to which the wife was admitted in 2015 and to which apparently made the diagnosis as to her health, the children’s school and police.

21. The Court file discloses that no less than seven subpoenas were issued by the Independent Children’s Lawyer in accordance with the directions made by Hannam J.  The subpoenas issued included those directed to New South Wales Police, West Australian Police, H Hospital, schools at which the children attend, and the New South Wales equivalent of the Department of Health & Human Services.

22. The child-responsive program memorandum was prepared by Family Consultant J and is dated 28 June 2018.  The mother did participate in the preparation of that memorandum, albeit by telephone.  During interview for the preparation of that memorandum, the mother made serious allegations against the father, including allegations of family violence.  She also alleged that the children were afraid of their father.

23. The father denies the allegations of family violence.  He raises concerns as to the mother’s capacity, noting her history of mental illness.  The father alleges that the mother has been diagnosed with paranoid schizophrenia and obsessive/compulsive disorder, a diagnosis which he says was made in 2015 by medical practitioners in Western Australia.

24. The mother denies that she has been diagnosed with that illness, or any other mental health condition. 

25. The Family Consultant interviewed both children for the purposes of the preparation of the memorandum.  The observations made by that Family Consultant are important insofar as they inform the Court as to the children’s views of their parents and provide some insight as to their relationship with their parents. 

26. X, who was then aged 12 years and 9 months, was reported as presenting as a friendly, sociable child who engaged in conversation with the Family Consultant on a range of topics including her family, schooling and interests.  X informed the Family Consultant that she had not spent time with the mother since 2017, stating that she had last seen her in India.  X reported to the Family Consultant that their mother would do strange things, stating that the mother would make the children stay in their bedrooms, and that she really loved God.  X denies feeling fearful of the mother.

27. X stated a clear preference to remain living with the father in Australia.  She denied that she was fearful of him, and she reported a positive relationship with him.  At that time, it was anticipated that the family would be moving from Sydney to Melbourne, and X was reported as being excited about the proposed move to Melbourne. 

28. Y was aged 9 years and 11 months at the time of interview.  The observations of the Family Consultant are that Y presented as a polite child who engaged easily, although he was noted to appear a little hesitant to discuss the family in any detail. 

29. As to his mother, Y was reported as saying, and I quote:

    Mum was restrictive.  We couldn’t wear black, eat meat or hang out with our father.

30. He denied feeling fearful of his mother.  He described a positive relationship with the father, stating that they play soccer together.  He denied feeling fearful of his father.  He too expressed a preference to remain living in Australia with the father.  Both children reported positively as to their experience of school. 

31. The recommendations made by the Family Consultant under the heading “Future Directions” included that the parties might benefit from engaging in post-separation programs to assist them developing a more cooperative parenting relationship, otherwise it was noted that the children might benefit from counselling to assist them with any difficulties associated with their parents’ separation. 

32. On 10 August 2018, Hannam J made orders transferring the proceedings to the Melbourne Registry of this Court.  That order was made on the basis that the father and children had relocated to Melbourne to live, and that the matter otherwise had no connection with the Parramatta Registry of the Court. 

33. Following those orders, the matter was listed in this registry before Registrar Sudholz on 3 October 2018.  That day, the Registrar made orders listing the matter on 7 November 2018.  The mother was ordered to attend Court on the next occasion, or to file documents indicating why she could not attend. 

34. On 27 October 2018, the mother filed an affidavit deposing that she seeks that the court dismiss the father’s application.  The mother made a series of allegations against the father in that affidavit.  Many of the allegations made were scandalous.  The mother alleges that the father has stolen her passport and travel documents, preventing her from attending Australia or attending these court proceedings.  The matter came before Registrar Sudholz on 7 November 2018.  The mother did not attend that hearing.

35. As a result, the matter was listed before me in the Judicial Duty List, on 5 December for an undefended hearing.  When the matter came before me on 5 December, the mother did not appear.  At that stage it was unclear as to whether or not the mother had been provided with notice of the final orders sought by the father. 

36. In the circumstances, I made orders requiring the Independent Children’s Lawyer to serve the mother with a minute of proposed orders, together with the orders made adjourning the matter to this day, service to be effected on the mother by email at her email address, as well as the email address of her Indian lawyers.

37. The proceedings were otherwise adjourned to this date.  The mother was called at the commencement of this hearing.  She did not answer the call.  She has filed no further material in Court since the documents to which I have already referred, being the affidavit material filed by her on 27 October 2018.  On 17 December 2018, the Independent Children’s Lawyer, Ms Lonergan, filed an affidavit confirming that she had effected service of the minute of proposed order (which is ICL 2) and a covering letter informing the mother of the hearing this day, and giving her notice that the matter would likely proceed in her absence. Those documents having been served upon her by emails dated 7 December 2018.  I note that the covering letter to which I have referred is ICL 1. 

38. I am satisfied having regard to the affidavit of Ms Lonergan that the mother has been afforded procedural fairness.  The long procedural history which I have noted satisfies me that the mother has had ample opportunity to engage in these proceedings.  She has on occasions filed documents or communicated with the Court by telephone.  She has been on notice of the final orders that the father seeks for more than a year.  The final orders he seeks are almost identical to the interim orders which have now been in place for a period of more than a year.  In those circumstances, I am satisfied that it is appropriate that the matter proceed on an undefended basis.

39. I should note that there have been concurrent proceedings on foot issued by the mother before the High Court in City G, India.  On the last occasion the matter was before this Court, being 5 December 2018, the Independent Children’s Lawyer tendered the judgment of the judges who determined the Habeas Corpus writ filed by the mother in that Court.  That judgment notes the allegations made by the mother against the father; that he had stolen her travel documents and passport, engaged in criminal conduct in India, that the father had taken the children away from her, and that the parties’ daughter may be abused sexually by the father.

40. At paragraph 14 of that judgment, the Court there noted that:-

    The documents produced by the State clearly depicts that the respondent husband has obtained custody of their children legally from the Family Court of Australia, till today the petitioner has not filed any application to take any necessary legal steps for the custody of her children, instead of taking appropriate legal steps before an Australian court, the petitioner has filed the present petition before this court – is nothing but misuse of powers of this Court in habeas corpus petition which is impermissible. 

41. The application made by the mother was described by the Indian Court as frivolous, that she had come to the Court in India with unclean hands and had misused the Court processes in that jurisdiction.  The Court there noted that the mother is an Australian citizen and it was open to her to participate in these proceedings in order to pursue any application she may have in respect to the parenting arrangements for the children.  At paragraph 22 of the judgment, the Court noted that the mother should have sought to invoke the legal remedies available to her before the Family Court of Australia.

42. The mother’s application was dismissed.  As I have noted, that determination was made in late 2018.  It is clear from that judgment that the mother has been given notice not just by this Court but also by the Indian Court, that the appropriate manner in which to pursue any parenting order was through the remedies available in the Family Court of Australia.  Therefore, having regard to all those matters, I am satisfied that the application should proceed in this Court on an undefended basis.

43. In determining parenting proceedings, I have regard to section 60B(1) of the Family Law Act (1975) (Cth) (“the Act”) which sets out the objects of Part VII, to ensure the best interests of the children are met by:-

    (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

44. I also note that section 60B(2) of the Act sets out the principles underlying those objects, being that:-

    (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).

1. In deciding a particular parenting order, the best interests of the children is the paramount consideration. 

2. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the court in determining what is in the children’s best interests.  I will return to the primary and additional considerations shortly.  There is a presumption that it is in children’s best interests for parents to have equal shared parental responsibility, in accordance with section 61DA of the Act. The presumption relates to the allocation of parental responsibility.  It does not relate to the time children spend with their parents. 

3. In circumstances where the mother continues to live in India, and the father in Australia, I am satisfied that it is appropriate and in the children’s best interests that there be an order for sole parental responsibility.   Practicalities in terms of future parenting indicates that the father should have that responsibility.  He has the day-to-day care of the children.  He lives with them.  He is the only parent of the children who lives in this country.  Any decisions in respect of their long-term care, welfare and development, having regard to those circumstances, in my view, are most appropriately dealt with by the father.

4. The first of the primary considerations is the benefit to the children of having a meaningful relationship with both parents.  The question of what is a meaningful relationship was considered by Brown J in the decision of Mazorski & Albright [2007] FamCA 520. At paragraph 26 of that judgment, her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the children.

5. The reality for these children is that they have had no communication or contact with their mother since 2017.  The mother has been afforded every opportunity to participate in these proceedings.  The mother alleges that her travel documents were stolen by the father prior to his departure from India in 2017.  There is no explanation proffered by the mother as to why it is that she could not have obtained duplicates or renewed travel documents in the period that has passed since the time when she alleges those documents were removed.  The mother has filed affidavits in these proceedings; she has not addressed that issue in her affidavits. 

6. In the circumstances, I am not satisfied there is any benefit to the children in attempting to craft orders to provide opportunities for them to have a meaningful relationship with the mother in circumstances where it appears that she has done little, if anything, to foster or promote her relationship with the children. 

7. Section 60CC(2)(b) of the Act addresses the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  The father, in his affidavit material, has deposed to the mother having had a long history of mental illness.  It was as a result of the father’s concerns with respect to those matters that the parties originally travelled to India so that the mother could engage with health services there.

8. The mother denies those allegations.  The children have expressed concerns to the family consultant with respect to the mother’s behaviour towards them. 

9. The mother has made allegations as to family violence. She has alleged that the parties’ daughter, X, is at risk of sexual abuse by the father.  Those matters have been thoroughly investigated by the Independent Children’s Lawyer.  The Independent Children’s Lawyers raises no concerns in this regard.  By all reports, the children are thriving in the care of their father, they are progressing well at school and are meeting all of their appropriate developmental milestones.

10. The children have been interviewed by the Independent Children’s Lawyer and she expresses no concerns in terms of their welfare or in terms of them being exposed to any risk in the father’s care.  Having regard to the evidence of the Family Consultant and the submissions of the Independent Children’s Lawyer I am satisfied that there is no risk of harm should the children remain in the father’s care.

11. Turning then to the additional considerations.  Section 60CC(3)(a) goes to any views expressed by the children.  At interview with the Family Consultant in June 2018 both children expressed a desire to continue living in Australia with their father.

12. Section 60CC(3)(b) goes to the nature of the relationship of the children with their parents and other persons significant to them.  The children are reported to enjoy a close and loving relationship with the father.  The father in his oral evidence today describes the children’s relationship with his partner as a developing relationship.  He is positive in terms of that relationship continuing to develop appropriately.  I note that the father’s new partner plays a significant role in the children’s lives. She lives with them, and is responsible for their care both before school and in the period immediately following school. Neither child has expressed any concerns to the Independent Children’s Lawyer with respect to those arrangements.  

13. At this time, the children have no relationship with the mother.  As I have noted she does not communicate with them, and the last occasion upon which the children communicated with her was in 2017. 

14. Section 60CC(3)(c) addresses the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions relating to the children, to spend time with the children or to communicate with the children. 

15. As I have noted, the father has attended to all of the children’s needs.  He lives with them, and has a close and loving relationship with them.  Notwithstanding the conduct of these proceedings and the opportunities, of which there have been many, afforded to the mother to participate in the proceedings to advance her relationship with the children, she has not availed herself of those opportunities.  The father has been wholly responsible for the financial support of the children since the parties’ separation.  The mother has provided no support or assistance to the father in that regard. 

16. The orders that are sought by the father will represent a continuation of arrangements which have been in place since August 2017.  The children are thriving under those arrangements.  They have transitioned from Sydney to Melbourne well, and are reported to be enjoying their new schools and new living environment.  In all respects, I am satisfied that the father has demonstrated an appropriate and positive attitude to the children and to his responsibilities for their care. 

17. In contrast, the mother seemingly has disengaged from the children’s lives, notwithstanding the very serious complaints and criticisms she levels at the father with respect to his care of the children.  She has not filed material.  She has not attended Court.  She has not engaged a lawyer to appear and represent her interests or to pursue those matters.

18. Having regard to all of those matters, I am therefore satisfied that the orders sought by the father are appropriate and in the children’s best interest.  Those orders are supported by the Independent Children’s Lawyer, who as I have noted, has conducted all necessary inquiries as to the history of the matter in terms of the subpoenas issued and directed to the authorities in Western Australia where the parties previously lived, the children’s schools in Western Australia, and the health services there.  Similarly those inquiries have extended to and include interviews with the children. 

19. Having regard to all of those matters, I will make orders in the terms sought by the father and as set out in ICL 2. 

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 20 December 2018 by Johns J.

Associate:

Date:  20 December 2018