PLANK & JAVKAR

[2017] FCCA 3270

FEDERAL CIRCUIT COURT OF AUSTRALIA

PLANK & JAVKAR [2017] FCCA 3270

Catchwords:
FAMILY LAW – Final parenting – children’s best interests – where the mother sought orders to travel with the children to (country omitted) – where the father stridently opposed the application – where the mother was permitted to travel with the children to (country omitted) for a specific period of time subject to certain terms and conditions – where the mother failed to comply with the terms and conditions regarding travel – where the mother has failed to return the children to the Commonwealth of Australia and continues to reside in (country omitted) – findings of credit where mother’s evidence on oath of future intent contradicted by and entirely inconsistent with her subsequent actions.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65Y

Cases cited:

Allesch v Maunz [2000] HCA 40

Applicant: MS PLANK

Respondent: MR JAVKAR

File Number: PAC 3552 of 2016

Judgment of: Judge Harman

Hearing date: 14 November 2017

Date of Last Submission: 14 November 2017

Delivered at: Parramatta

Delivered on: 14 November 2017

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms Nixon of Blackman Legal Pty Ltd

ORDERS

1. Leave is granted to the Respondent to file in Court an Affidavit.

2. The children, [X] born (omitted) 2010 and [Y] born (omitted) 2013, shall live with their father, Mr Javkar.

3. Mr Javkar shall have sole parental responsibility for major issues decisions with respect to each of the children.

4. All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3552 of 2016

MS PLANK

Applicant

And

MR JAVKAR

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to parenting arrangements for two children:

   [X], born (omitted) 2010; and

   [Y], born (omitted) 2013.

2. The parties to the proceedings are the children’s parents, their father, Mr Javkar, the Applicant and their mother, Ms Plank, the Respondent. 

3. The proceedings have an unusual history. 

4. The Initiating Application in these proceedings was filed by the children’s mother on 2 August 2016.  That Application sought certain Orders to facilitate the children’s travel from Australia to (country omitted) for a period that was described by the mother as “6-7 weeks”. 

5. That Application was heard and determined in expeditious fashion and on 21 November 2016 Orders were made that permitted the mother’s departure with the children from the Commonwealth of Australia, pursuant to section 65Y of the Family Law Act 1975, subject to certain terms and conditions. 

6. It has since transpired that none of the terms and conditions were complied with by the mother, who nonetheless travelled.  

7. The mother has refused to return herself or the children to the Commonwealth. 

8. Following that travel and the children’s retention in (country omitted), the father brought an Application seeking the children’s return to Australia. That Application was filed on 23 February 2017 and came before the Court on short notice on 27 February 2017. 

9. On 27 February 2017, the attorneys for the mother, then still on the record, were contacted by the Court by telephone. They had not appeared initially when the matter was called. There was no appearance by the mother. 

10. It was indicated by the solicitors for the mother that they did not hold instructions. Accordingly, the matter was adjourned for a short period and an Order made for the mother to appear before the Court, failing which, as was noted, certain Orders would, in all probability, be made. 

11. When the matter next came before the Court on 2 March 2017, a solicitor appeared on behalf of the mother, but indicated, again, that they did not hold instructions and appeared merely as a courtesy to the Court. In those circumstances, those solicitors not having had sufficient time to file a Notice of Ceasing to Act, leave was granted for the solicitors to withdraw from acting. 

12. A number of Orders were then made requiring that the children be returned to the Commonwealth and, importantly, at Order 5, an Order made that, as and from 10 March 2017, that should the mother not return the children to the Commonwealth that the children would live with their father, who would have sole parental responsibility for them. 

13. The Orders, as they are expressed on 2 March 2017, are not suggested to be Orders pending further Order. Accordingly, on one view, the Orders made 2 March 2017 might well be seen as and interpreted as Orders on a final basis. That is not necessarily the interpretation that has been taken of the Orders by either the mother, the father nor the High Court of (country omitted). Accordingly, the proceedings, being again before the Court today, are sought to be concluded by Orders made on a final basis and with no uncertainty left in that regard.

14. In the intervening period, a further set of Orders were made on 12 April 2017, with respect to child support arrangements, largely in the nature of Notations, particularly as to the living arrangements for the children, pursuant to Orders earlier made by this Court. 

Material considered in dealing with the proceedings today

1. I have read and considered each of the documents that are filed by the Applicant, comprising two Applications in a Case filed 23 February and 2 April 2017 respectively together with the Affidavits filed in support thereof. 

2. In addition, a further Affidavit is filed in Court today, sworn by the father 14 November 2017.  Whilst that Affidavit has not been served upon the mother, I am satisfied that it is appropriate to proceed and to rely upon that evidence, notwithstanding an absence of service and notification of the mother.  It is unlikely that service upon her would engage her in these proceedings and, in any event, the Affidavit does little more than to particularise the efforts that have been taken by the father, through the High Court of (country omitted), to seek Orders with respect to the children, their return and in lieu thereof, at least to date, having some interaction with the children for the brief periods he has been able to visit (country omitted).  

3. I have also had regard to the Affidavit that had been filed by the mother in these proceedings, being that sworn or affirmed 26 October 2016 and filed 27 October 2016. That Affidavit goes to great lengths to stridently resist any basis, rational or otherwise, for concerns which had been expressed by the father as to the mother’s prospective failure to return the children to Australia in the event that she were permitted to travel.  Clearly, the mother’s evidence on oath, whilst accepted at the time, many aspects of it being unchallenged, has proven to be anything but accurate. In fairness, it may be that circumstances have arisen since the Affidavit was sworn which has caused a change in attitude by the mother. However, it remains the simple reality that the mother’s assertion, for example, that “I do not intend to remain in (country omitted) to live or for any extended periods.  I have no reason to remain in (country omitted)”, is far from accurate. 

4. In dealing with the Application, that is the evidence relied upon.  I do not propose to enumerate it more specifically. Aspects of the evidence will be referred to in a discussion of the legislative provisions to which I now turn. 

Legislative provisions

1. I must commence with section 60CA of the Family Law Act 1975, which reminds the Court, in all that is done, the child’s best interests are the paramount consideration. 

2. It must be acknowledged, from the outset, that there is no evidence at all by the mother, post-dating her departure with the children to (country omitted).  The mother has had, I am satisfied, a more than abundant opportunity to participate and is, I am satisfied, fully aware of the proceedings having been personally served with process and the various Orders made at different points in the proceedings together with the evidence relied upon by the father.  Thus, by reference to Allesch v Maunz [2000] HCA 40, I am satisfied that the mother has had a reasonable opportunity to participate. She has simply chosen not to do so.

3. I must have regard to the objects and principals in section 60B of the Act and which I incorporate herein.

   Objects of Part and principles underlying it

   (1) The objects of this Part are to ensure that the best interests of 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.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (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. The Court is required to ensure that the best interests of children are met by ensuring that they have the benefit of both (emphasis added) of their parents having a meaningful involvement in their life and that they are protected from physical and psychological harm. 

2. The father does not assert that the children are exposed to physical or psychological harm as a consequence of abuse, neglect or family violence, but he does most assuredly suggest issues of concern with respect to the children’s emotional harm.  Those concerns particularly relate to the cessation of the father’s time and communication with the children.  It is not put in those terms to hyperbolise the issue or to suggest that the mother should be in any way punished for that action. 

3. However, the mother’s own Affidavit material, as previously filed, suggests that the children enjoy a closeness and warmth of relationship with their father, even though the practice of time was less than abundant for a variety of reasons, not the least of which was the parties’ residence in separate States for a significant period. The father gives clear evidence that, in the brief periods he has been able to negotiate to spend time with the children whilst visiting (country omitted) that the children have warmed to him and returned to a similar degree of interaction to that which they previously enjoyed. Concerningly, however, he described that the children have indicated to him, “We are not allowed to talk to you or any of your family.” 

4. The father indicates that one of the children indicated that their iPad had been removed from them at a time when they were attempting to communicate with their father and instigate communication. Such termination of relationship, it would seem on an acceptance of the father’s evidence as more probably correct than not, represents active attempts to undermine and damage the relationship between the children and their father.  Those attempts have carried through to and including the children’s enrolment in schools in (country omitted) under the mother’s surname, eschewing even the father’s name. 

5. The concerns that thus arise with respect to both the children’s protection from such behaviours and, importantly, attempts to erode the meaningful involvement of both parents in the children’s lives, have some force and meaning in this case. 

6. The mother would appear, with some degree of chicanery, to have engaged in a course of conduct designed to be and purposive of a reduction of the father’s involvement in the lives of these children, so as to render that involvement anything but meaningful.  Why a parent who has raised no complaint with respect to that parent would do so is inexplicable if not inexcusable.  It is abusive of the children. 

7. In seeking the Court’s permission to travel, the mother asserted her acceptance and understanding of the relationship of these children with their father and then has taken it upon herself to seek to do all within her power to undermine and interfere with that relationship. The mother’s evidence to this Court could not be seen, in those circumstances, as other than false and misleading.

8. The Court must ensure that the children receive adequate and proper parenting.  There is no evidence as to the children’s arrangements in (country omitted). Indeed, on the mother’s own evidence, within the Affidavit filed in the earlier proceedings and to which regard was had, the mother was clear that the arrangements that could be made for the children in (country omitted) were disadvantageous and far from ideal compared to that which was available for the children here in Australia. That is no criticism by this Court. It was the mother’s evidence that arrangements in (country omitted) were disadvantageous to the children compared to arrangements in Australia.  The mother’s evidence as to the disadvantage to the children arising from removal from Australia, was one of the reasons that the Court, upon an acceptance of the mother’s evidence, given on oath, that the children were permitted to travel.  It was the mother who asserted that the children were advantaged by living in Australia and were disadvantaged by permanent removal.

9. In the above circumstances, the objects provide some support to the father’s position. 

10. The principles underlying the objects create certain rights for these children.  Those rights are not absolute.  Those rights are subject to the caveat that they are not enlivened and are not practiced, when to do so would be contrary to the children’s best interests. Those caveats aside, however, the children have a right to know and be cared for by both of their parents and to spend time and communicate on a regular basis with both of their parents.  Children have a right to have their parents share duties and responsibilities and agree on future parenting. They also have a right to enjoy culture. 

11. The latter right was to the fore in the earlier determination permitting the mother to travel, albeit based upon an acceptance of the mother’s evidence, on oath, as to her reassurances that the children would be returned.  It seems such reliance upon the mother’s evidence was misplaced. 

12. The balance of principles, however, favour the father’s position. 

13. The mother has clearly demonstrated that she cannot be given any faith or confidence, as regards her capacity to support the children’s right to know and be cared for by both parents, let alone spend time or communicate with both, and the mother has very much treated as irrelevant any right these children might have to either a relationship with the father or for the parents to share duties and responsibilities for the children, having terminating unilaterally the father’s role and engagement. 

14. I must then turn to section 61D, the presumption of equal shared parental responsibility. 

15. The presumption would apply as there are no allegations of family violence or abuse that would cause it to be otherwise.  The mother’s evidence, filed in these proceedings, raises no such allegations.  However, I am satisfied the presumption would be rebutted as contrary to the children’s best interests, on the basis of practicality.  It is not possible for the parents to communicate and resolve difficulties, and in those circumstances, I am not satisfied the presumption could or should apply. 

16. Whether the presumption applies or not does not dictate the Order that might be made with respect to parental responsibility, although, the basis upon which it is rebutted would be, of itself, a basis to support an Order for sole parental responsibility in favour of the parent with whom the children were to live. 

17. In addressing that issue, in the case at large, I turn to section 60CC of the Act.

18. I must commence with the primary considerations, being the benefit to the child of a meaningful relationship with both parents as well as the need to protect these children from physical and psychological harm through exposure or subjection to abuse, neglect or family violence. 

19. Abuse and family violence are not alleged and could not be made out on the evidence available in the case. 

20. Neglect is undefined by the Act.  The actions that the mother has taken in returning the children to living arrangements which, on her own evidence, are suggested to be inadequate and insufficient to meet the children’s needs, and in then seeking to terminate the father’s relationship with the children, might well fall within a broad umbrella of neglect.  That would lend some support to the father’s position.

21. These children cannot have a meaningful relationship with both parents in the current circumstances. The mother has, again, demonstrated, through her actions and behaviours, including her acting in complete contradiction of her own sworn evidence, as to that which is best for the children, (being to continue to reside in Australia and to continue to practice a meaningful relationship with their father through substantial time), support for the father’s position. 

22. The father is able to support, promote and encourage the children’s relationship with both parents. The mother is not. Thus, the children will be denied, as they have been, the benefit of a meaningful relationship with both parents, if the children continue to live with the mother. The father can do better. The father is candid and frank in his evidence whereby the mother has given, at least prima facie, false evidence to this Court to secure the children’s removal from the Commonwealth.

Additional considerations

Views

1. There is no evidence of the children’s views, thus they cannot be taken into account.  The ages of the children are such that evidence of their views would, of itself, be far from dispositive, even if available. 

The nature of the children’s relationship with each of the parents and other persons

1. These children enjoyed and practiced a meaningful relationship with both parents prior to their removal. The children continue a relationship with their father, notwithstanding the difficulties that have been faced by the children’s improper removal from the Commonwealth that removal, or permission therefore, having been obtained by deceit. 

2. The father’s evidence that the children were, at the first meeting, after quite some months, somewhat reticent in his company, is to be expected.  It is no criticism of him.  It is an unfamiliarity that the children might have expressed, particularly when in combination with the latter statements made by the children, as set out above, as to the active interference in his relationship suggested from their mother.  The children’s relationship with their father is clearly of importance to the children, as indeed is the children’s relationship with their mother.  Both relationships can be practised. 

3. The mother has a right of residence in Australia.  There is nothing to preclude her return and thus a regularisation of arrangements for the children’s time where they spend time with each parent. 

1. However, on the evidence presently available, the father’s attitude regarding the support of such relationships is superior to that of the mother and it is more probable that the children will have a relationship with both parents if they are living in the father’s care in Australia. 

2. The children have also been removed by the mother from the entirety of their social capital. These two children have been used to and familiar with the arrangements that were in place for them until the end of 2016. The eldest lad had commenced school, no doubt he had a circle of friends and peers and was used to the education system in which he was enrolled.  All of that has been brought to a shuddering halt by the mother’s actions, which appear to be focused on herself and with very little consideration of, let alone insight into, the impact of her actions upon these children and their relationship with the father and others. 

The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time with or communicate with the children

1. The father cannot be criticised in this regard.  The mother can. The mother has failed to participate in these proceedings.  It has taken a significant effort to have her involved with and engaged in the proceedings which the father had initiated in the High Court of (country omitted).  Those proceedings are ongoing and will reach some conclusion in due course.  However, at this time, the assessment of the extent to which the mother has failed to participate supports the father’s case. 

2. Prior to the June 2012 amendment, subsection (c) was contained in subsection (4), which also required that the Court consider the extent to which each parent had interfered in the capacity of the other to spend time or communicate with children.  Clearly, the mother has so intruded.  The father has not.  This factor also supports the father’s case. 

3. Also prior to the June 2012 amendments, subsection (c) had provided that the Court must have regard to the extent to which each parent had supported, encouraged and facilitated the children’s relationship with the other. 

4. What is striking with respect to the mother’s earlier Affidavit material is the absence of criticism of the father.  There are no allegations of abuse, neglect or family violence made of the father.  The mother gave evidence that he was a good father and she wholly supported the children’s ongoing relationship with the father. It certainly was suggested by the mother that communication between the parties was less than ideal.  Some context is given to that in hindsight.  The father’s distrust of the mother’s stated intentions has been demonstrated to be well-founded.  In those circumstances, the mother would be assessed poorly as regards her capacity to have insight into or demonstrate any support or encouragement of the children’s important relationship with the father. The father is not similarly criticised. This factor also supports the father’s Application.

The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. When the children lived with the mother, the father paid child support as assessed.  Since the children have been ordered to be with the father, the mother has contributed not a cent towards their support, (although, in fairness to her, the children have been in her care, albeit impermissibly, as Orders were made some six months ago which provided for the children to live with the father, and the mother, aware of those Orders, has chosen to ignore them and to retain the children). 

Likely effect of change, including separation from either parent or any other child or person with whom the children were living

1. The children have been completely separated from their father. They have not been separated from their mother.  They have been taken to live with the maternal grandparents. A very important part of the mother’s case, as set out in her earlier Affidavit, had been that the children had little or no relationship with those grandparents, who were elderly, described as being over 75 years of age, in very poor health and the maternal grandfather suffering dementia. Those relationships are not as important as the children’s relationship with the father which the mother has unilaterally terminated and based upon her having obtained the benefit of Orders from this Court based upon an acceptance of her, in retrospect, false evidence.

2. Whilst the mother expressed that she considered it her responsibility to spend time with her elderly parents, as an only child of her parents, she has done so at the expense of these children having any relationship with their father. One would think a similar responsibility, if not a more grave responsibility, might be felt by the mother as regards the children’s relationship with their father. The children have been removed from all with which they are familiar. Their social capital has been completely dispersed to the winds. The mother has uprooted these children who have lived their whole lives in Australia with no apparent regard for the disruptions caused thereby.

Practical difficulty and expense

1. Practical difficulty and expense is manifest.

2. The parties live in different parts of the world, the mother in (country omitted), the father in Australia. 

3. The parties have difficulty communicating. They cannot practice any arrangement for time on any regular basis with the present arrangements.  If the children lived with their father, the mother may well then deign to return to the Commonwealth, where she has a right of residence, and the children could have a relationship with both parents. 

Capacity of each parent to provide for the children’s emotional and intellectual needs

1. The father’s capacity is superior.  The mother has, bluntly, lied through her teeth to obtain the very Order which she sought and which she denied was motivated, in any sense, by a desire to remove the children permanently from the Commonwealth.  She clearly cannot be taken on her word, based upon that misrepresentation alone. 

2. In any event, this is not an issue of judgment of the mother or her punishment.  The relevance of the mother’s actions and her deceit and chicanery is that it demonstrates a lack of insight by the mother into the emotional needs of these children and a lack of insight by the mother into the children’s need for a relationship with a variety of people, importantly, the father, but also the remainder of their social capital in Australia, with whom they had begun to develop quite important relationships.  It also suggests an inability of the mother to differentiate her own needs from those of the children, conflating her needs with the children’s.

Maturity, sex, lifestyle and background of the children and the parents

1. Whilst both parents are from (country omitted), both had determined, jointly and individually, to live their lives within Australia and for these children to do so as well.  The mother reaffirmed that intent and desire on oath in her earlier Affidavit, to the extent that one places any reliance upon that evidence as accurate. 

2. These children have spent all of their life living in Australia until December 2016. Australia is their habitual residence, as it were, although that term is of little relevance, as (country omitted) is not a signatory to the Hague Convention. Hence the difficulties the father faces. The children’s background in that regard supports the father’s position. The children are Australian citizens and the joint decision made by these parents was for their children to live in Australia and practice a relationship with both parents.

Aboriginality

1. Clearly, neither parent nor the children are Aboriginal or Torres Strait Islander. 

The attitude to the children and the responsibilities of parenthood demonstrated by each parent

1. Attitude is addressed above.

Family violence and family violence orders

1. There are no allegations of family violence and no family violence Orders, nor have there ever been. 

Avoidance of future proceedings

1. As to whether it is preferable to make Orders that will least likely lead to the institution of future proceedings, I am satisfied the best that can be done is to conclude these proceedings, to make Orders that are final and in the father’s favour. 

2. It will be a matter for the mother, should the children be returned to Australia or pass into the father’s care as a consequence of Orders made by the (omitted) High Court, to take such action as she desires to pursue a relationship. 

3. However, for those reasons, I am satisfied that the appropriate Orders to make to conclude these proceedings on a final basis are as follows (see Orders).

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 21 December 2017