Perreira and Gopal

[2009] FamCA 511

FAMILY COURT OF AUSTRALIA

PERREIRA & GOPAL [2009] FamCA 511

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

Family Law Act (Cth) 1975

APPLICANT:  Mr Perreira

RESPONDENT: Ms Gopal

FILE NUMBER: NCC 1213 of 2009

DATE DELIVERED: 22 May 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 22 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Craney Family Solicitors

SOLICITOR FOR THE RESPONDENT: Jennifer Blundell and Associates

Orders

1. The proceedings are adjourned to the Judicial Registrar’s Duty List at 10:00 am on 6 July 2009 at Newcastle.

2. That until 6:00 pm on 6 July 2009 the child … born … April 2007 live with the mother.

3. That until 6:00 pm on 6 July 2009 the child … born … April 2007 spend time with the father unless the parties agree to the contrary in writing between 10:00 am and 4:00 pm each Saturday and between 5:00 pm and 7:00 pm each Tuesday and the first occasion of that time with the father is to commence on Tuesday, 26 May 2009.

4. Unless the parties agree to the contrary in writing handover is to be effected by an officer associated with J Organisation delivering the child to the father at the commencement of each occasion at W Police Station and by the father delivering the child back to such an officer at that same place at the conclusion of each occasion.

5. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child … born … April 2007.

6. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child.

7. The solicitor for the mother is to advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order within 24 hours.

8. Each party make available to the Legal Aid Commission of New South Wales, within 14 days from today’s date, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

IT IS NOTED

1. The father may instruct a different solicitor for the interim hearing.

2. That the father appears on his own behalf today.

3. That he may seek to review the orders made today.

IT IS FURTHER ORDERED

1. Leave to the parties to restore the proceedings to the list by arrangement with Judicial Registrar Loughnan’s associate and each other on giving 48 hours’ notice AND leave is granted to the parties if necessary to attend by telephone.

1. That Ms P or some other officer of J Organisation give notice to the solicitor for the mother immediately upon the mother seeking to re-locate from accommodation arranged through J Organisation without the agreement of that agency.

2. That the solicitor for the mother forthwith notify the Independent Children's Lawyer and the associate to Judicial Registrar Loughnan in the event that notice is given to her of an attempt by the mother to leave that accommodation.

3. It is a condition of the orders made today that the mother remain living at her current accommodation or at some other accommodation organised under the auspices of J Organisation at which there will be a level of supervision of her care of the child.

4. The Court noted that Ms P of J Organisation attended at Court this day and indicated her consent to these orders.

5. That any further documents on which either party seeks to rely be filed and served not later than 30 June 2009.

6. 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.

IT IS NOTED that publication of this judgment under the pseudonym Perreira & Gopal is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 1213 of 2009

MR PERREIRA

Applicant

And

MS GOPAL

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a female child, born in April 2007. She is a bit over 2 years of age. The father and mother are 30 and 29 years of age.  They started to live together when they were married in April 2006.  They separated on 8 May this year. This child is their only child.  The matter came to the Court on 15 May 2009 on the father's application.  He told the Court that he was an Engineer working at an enterprise at T; that he, his wife and the child had come to Australia from India in April 2008; that the family had visited India for four weeks in April of this year.

2. He reports that soon after the child was born the mother ingested poison and was hospitalised in India. He says that since then the mother has struck the child on many occasions. On the recent trip to India he says that the mother hit the child on 2 May 2009 and then after making sure the child was safe, tried to jump from a train. The family returned to Australia with his parents. The father said that after they arrived back, on 5 May the mother grabbed a knife and tried to stab his mother and she smashed a glass sliding door.

3. He says that on 7 May the child was taken to Dr S.  The mother hit the child again and banged her own head on a wall.  He says that the mother hit the child again on 8 May. The father told the Court that he went off to work and later that day he was arrested for assault. He was taken to a police station and charged and then bailed.  He does not say what happened with the mother and child during that period. He says that on 13 May he was before the Local Court, being the first return date of the criminal proceedings. He pleaded not guilty. On 15 May 2009 he brought an application before this Court and orders were made ex parte for a recovery order and for the child to be placed with him. That order was executed and the child is with the father and his parents.

4. The father's case is that the mother has been well treated by him; that she has acted in a very strange way over the last few years; she has been violent to the child on many occasions and that the child is not safe in her care.

5. The mother gives an entirely different version of events.  She says that this was an arranged marriage. She says an extensive dowry was paid to the father's family.  The father completely denies that, as does his father.  She says that she was treated as a sex slave and a servant in the father's household, including by members of the father's family, throughout their time in India.

6. She says that she was treated in an unsatisfactory fashion in the family life in Australia.  She says that she has been bruised on many occasions.  She says that leading up to 8 May she was beaten unconscious on an occasion and ultimately she took action to leave the relationship.

7. There is no much in the way of independent material but, in effect, it all favours a return of the child to the mother. 

8. We have the fact that the father was before the Local Court. That is a Court that has the same powers as the Family Court in relation to children, and yet there was no action by that Court to issue a recovery order in relation to the child. Indeed nothing was done between 8 May and 15 May in circumstances where, on the father's case, he was afraid for the child's safety. There are authorities, in particular the Police and the Department of Community Services who could have checked on the safety of the child. I have not been told of any attempt to have such a check done.

9. The material from the medical authorities is from a Dr S and another person in that same practice, and the best you can say is it is not inconsistent with the mother's case.  There is a report from that practice.  It probably would not pass muster in the terms of the normal evidentiary requirements but for the purposes of today, as I say, it is not inconsistent with the mother's case. 

10. Then the parties attended on a Family Consultant on 18 May and the events of that attendance greatly disturbed the Family Consultant. Very unusually, in my experience, on the formal memorandum that is usually limited to recommending further case management steps (more mediation, expedition, the appointment of an independent child lawyer etc) there comment about what occurred and a recommendation about living arrangements. Family Consultant, Mr C, notes that the father wanted to talk to the mother about reconciliation, but the mother did not want to discuss anything with the father that day and Mr C observed that despite being told about that the father ignored the mother's wishes and the father and the paternal grandparents attempted, as Mr C says, to bail the mother up in the waiting room to talk to her. 

11. Mr C also noted that there are serious cross allegations and denials that the 2 year old child is not safe in the care of either parent; that mother is staying at a refuge with a number of adults around, including staff, who are able to ensure the child's short term safety.

12. This is a very worrying case and I do not dismiss the concerns that are raised by each of the parents. It is possible, of course, that what the father says is true and that there is an explanation for him leaving the mother as the primary care giver of this child based, perhaps, in him making every effort, as a loving father and husband to keep the family together, to support his wife, and to support his daughter. It is possible that the mother has suffered episodic psychological or psychiatric problems, whether they are related to some particular incident or not.

13. It is also possible that the mother is right in her version of events. I am not allowed to just pick a version as being true. However, the bare facts suggest that the child will be safe with the mother for periods of time.  That must have been in the father’s mind, for example, on a daily basis, on a week day basis, before the parties went to India in April of this year. Presumably, on most week days the child was left in the care of the mother during the day. That scenario is consistent with the father taking no urgent action through the authorities from 8 May until an application was made to this Court on 15 May. It is consistent with there being no order made or sought, apparently, from the Local Court on 13 May. 

14. As I have indicated, I will make an order that the child be returned forthwith to the mother.  There was to be some discussion about the child spending some time with the father, and I indicated that I thought there should be some time. It would sensibly be on a weekend because the father is in paid employment. I said that was not going to be overnight.  I have not yet been told what hours would be suitable. We are not completely at large with this because we are relying on the good offices of the organisation where the mother is staying to facilitate the transfer of the child. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Judicial Registrar Loughnan

Associate: 

Date:  17 June 2009