Prasad and Shan
[2015] FCCA 2801
•22 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRASAD & SHAN | [2015] FCCA 2801 |
| Catchwords: FAMILY LAW – Parenting, property and spousal maintenance – where the Father had previously unilaterally taken the children to India without the Mother’s knowledge or consent – where the Father is found to have serious personality dysfunction – where no contact and limited communication is ordered – where the Father is found to have dissipated assets and engaged in non-disclosure – whether the Father should be restrained from leaving Australia until he complies with order for payment. |
| Legislation: Evidence Act 1995, s.128 Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65ZA(4), 68B, 75(2), 79, 114(3) |
| Bevan & Bevan [2013] FamCAFC 116 Stanford & Stanford [2012] HCA 52 Willett (1976) FLC 90-022 |
| Applicant: | MS PRASAD |
| Respondent: | MR SHAN |
| File Number: | WOC 581 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 1-4 December 2014, 10-11 September 2015 |
| Date of Last Submission: | 30 October 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 22 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Verekers Lawyers |
| Counsel for the Respondent (1-4 December 2014): | Mr Steward |
| Solicitors for the Respondent (1-4 December 2014): | LN Legal |
| The Respondent appeared in person 10-11 September 2015 |
| Counsel for the Independent Children's Lawyer: | Ms Sproston |
| Solicitors for the Independent Children's Lawyer: | Helen Volk Lawyers |
ORDERS
PARENTING
That all prior parenting orders be dismissed and discharged.
Parental responsibility
That the Mother have sole parental responsibility for the care, welfare and development of the Children of the relationship namely, X born (omitted) 2010 and Y born (omitted) 2012 (“the Children”).
Living Arrangements
That the Children live with the Mother.
That the Mother be at liberty to relocate with the Children, within or outside of the Commonwealth of Australia.
Provided the Mother complies with the provisions of s.65ZA(4) of the Family Law Act 1975, that the Mother be at liberty to take or send the children, or either of them, outside the Commonwealth of Australia.
Spending time Arrangements
That the Children spend no time with the Father until they each attain the age of 18 years.
Communication
That the Children have no contact or communication with the Father, face to face, or through voice, typed word, internet or other media, until the children reach adulthood, with the exception of the following:
(a)that the Mother facilitate the children communicating with the Father by letter, on two occasions in each year, which shall include photographs, school reports, and relevant news about the Child’s development and life;
(b)that the Father be at liberty to forward to the Children, communication by letter, responding to the communication received from the Children, and in time for each Child to receive such communication around their respective birthdays, and Christmas time in each year, which communication may include photographs;
That the Mother be at liberty to peruse any correspondence from the Father, received on behalf of the Children pursuant to Order 7(b), and provide such communication to the Children as she, in her discretion, sees fit.
That each parent keep the other informed of their current postal address and advise the other, in writing, of any change to such address, within 7 days of such change occurring.
Restraints
That each of the parents, their servants and agents be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent, or any member of that parent’s family or household; and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.
That the Father, including by his servants, agents, or employees, be restrained by injunction from attempting, taking or removing the children from the Commonwealth of Australia, or from the Mother’s care.
That the Father be restrained by injunction from communicating with the Children by any means, except pursuant to Order 7(b) above.
That the Father be restrained from assaulting, molesting, harassing, interfering, stalking or intimidating the Mother, or any member of her household or family, or entering any place at which she may work or live, or attending upon any school or other educational facility attended by the Children.
That the preceding order is an order for the personal protection of the Mother and any member of her household or family pursuant to s.68B of the Family Law Act 1975, to which a power of arrest without warrant, attaches.
Specific Issues
That the Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the children on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, when travelling with any person other than the Mother, or authorised by the Mother, and to maintain the Children’s names in the watch list.
Therapeutic Intervention
That the Mother continue to attend on her treating medical practitioner, and any specialist, to whom she is recommended, to manage her Takayasu Arteritis, as required, during the Children’s minority.
That each parent be granted leave to provide a copy of these Orders, and any reasons for Judgment, to any psychiatrist or clinical psychologist providing therapeutic assistance to them, or either of the Children.
PROPERTY
Spousal Maintenance
That pursuant to Section 74(1) Family Law Act 1975, the Father pay to the Mother the sum of $650 per week on the following conditions:
(a)Such payment to be made by electronic bank transfer to a bank account nominated by the Mother;
(b)Such nomination to be made within 3 days of the date of these Orders;
(c)The first payment to be made on the first Monday after an account has been nominated by the Mother and to continue to be made for 150 weekly payments.
Adjustment of Property Interests
That pursuant to Section 79 Family Law Act 1975, the Father pay to the Mother or as she directs the amount of $154,688 with such payment to be made within 28 days of the date of these Orders.
If the Father shall fail to pay the amount as set out in above Order 19 within 28 days of the date of these Orders he shall, in addition thereto, pay interest on such sum as may be outstanding at the rate specified in the Family Law Rules 2004, as varied from time to time and calculated on a daily basis from the due date for payment until the actual date of payment.
That:
(a)the Court allocates, as required by Section 90MT(4) of the Family Law Act 1975, a base amount of 100 percent to the Applicant Mother out of the Respondent Father’s superannuation interests with (omitted) Super ("the fund") known as member Mr Shan .
(b)That the specified percentage of all splittable payments made to Ms Prasad as required by Section 90MT (1) (b) out of the interest held by Mr Shan in (omitted) Super is 100%.
(c)That whenever the Trustee of (omitted) Super makes a splittable payment to Mr Shan, the Trustee shall pay Ms Prasad the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement Mr Shan would have had but for these Orders.
(d)That Order 20(a) has effect from the operative time.
(e)That the operative time is 4 days from the Trustee receiving a sealed copy of the Orders.
(f)That this Order binds the Trustee of the (omitted) Super.
A declaration be made that the Mother is the owner, to the exclusion of the Father, of the Holden Barina registered number (omitted).
A declaration be made that the Father is the owner, to the exclusion of the Mother, of the Chrysler motor vehicle registered number (omitted).
That the Mother be liable, to the exclusion of the Father, for any liabilities in her name or incurred by her, including any debt owed to the Australian Taxation Office, and the Mother indemnify the Father in respect of such liabilities.
That the Father make arrangements for collection by the Mother of the jewellery currently held in his possession or control within 14 days of the date of these Orders, which were previously held in the safe custody deposit box with the (omitted) Bank as detailed in Annexure A hereto.
That the Mother otherwise be entitled to all assets in her possession, in her name or under her control.
That the Father otherwise be entitled to all assets in his possession, in his name or under his control.
Security
That the passport of the Father be held at the Sydney Registry of this Court until the Father makes the payment set out in Order 19 and the passport only be released to the Father upon the Solicitors for the Mother confirming to the Court in writing that he has made such payment in accordance with these Orders.
That the Father be restrained from applying for a further passport or travel document until he has complied with Order 19 above.
That the Father be restrained from travelling outside of the Commonwealth of Australia until such time as he has made the payment required by Order 19 of these Orders.
Leave be granted to the parties to relist the matter on 14 days notice as regards the interpretation, implementation or enforcement of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Prasad & Shan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 581 of 2013
| MS PRASAD |
Applicant
And
| MR SHAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the final Orders that the Court has made in this case. It is a complex case, that was heard over six days, and then came back before the Court for interlocutory matters which are relevant to the final Orders made. The first part of the case related to two children, X, born (omitted) 2010, 5 years old, and her brother, Y, born (omitted) 2012, currently 3 years old. The parents are in dispute about whether, and if so on what terms, the children should spend time with their father. The second part of the case deals with financial and property matters.
Background
Both parents are (occupations omitted), with the Mother in (employer omitted) and the Father in training to be a (occupation omitted). She is 33 years old, he is 38 years old. Theirs was an arranged Indian marriage, which took place on (omitted) 2005. The parents then relocated to (country omitted). In 2006, the parents moved to Australia. The Father started working as a (occupation omitted) in rural New South Wales, whilst the Mother commenced studies to have her (omitted) qualifications recognised in Australia. By about 2010, the parties moved to Sydney. X was born in Australia. The Mother commenced part-time work as a (occupation omitted). Y was born in 2012, again in Australia.
The Mother says that separation took place in 2013, when she moved to (omitted), whilst the Father remained in Sydney, close to where he was then working.
In June 2013, the Father took the children to India, without the Mother’s knowledge and consent. He commenced proceedings in the Indian courts for the children to remain with him. The Mother travelled to India and eventually was successful in having an Indian Court order the return of the children into her care in Australia. The present proceedings were commenced in 2013. After the return of the children, on 5 September 2013, Judge Scarlett made Orders for the children to live with the Mother, and spend time with the Father. Judge Kemp later appointed an Independent Children’s Lawyer. The Father commenced spending time with the children on a supervised basis. An expert report was ordered and Dr K, the single joint expert, released his report on 1 May 2014. A number of interim proceedings followed. The Father was charged and convicted of giving false/misleading information in relation to an Australian travel document, and placed on a good behaviour bond.
Throughout the course of the relationship, the Father asserts that the Mother struggled with her mental health, and the Mother asserts that the Father was violent, abusive and controlling. It is common ground that the Mother has at all relevant times, and on an ongoing basis, suffered from a disease known as Takayasu arteritis. This is a heart condition involving the inflammation of blood vessels, and it requires the Mother to be on medication, and medication compliant.
By way of further background, each parent asserts that members of the other’s family became, and remained at times, inappropriately involved in their affairs.
On either account of the relationship, it was a turbulent one at times. What trust there was between the parents vanished once the Father took the children to India, and sought to retain them there, without the Mother’s knowledge or consent. This is an important event, which will be considered in detail in these reasons, and it is common ground that it is an event that casts a giant shadow over these proceedings. The parties, however, are widely divergent on the consequences of this.
The matter was listed for final hearing, commencing on 1 December 2014. It ran for four days that week until 4 December 2014. The matter then resumed on 10 September and concluded on 11 September 2015.
Throughout the hearing, the Mother was represented by her solicitor and her Counsel, Mr Alexander. For the first four days of the hearing, the Father was represented by his solicitor and his Counsel, Mr Steward. When the matter resumed on 10 and 11 September 2015, however, he represented himself. The children in this case were at all times represented by the Independent Children’s Lawyer, Ms Volk, and Counsel, Ms Sproston.
It will be convenient in these reasons for judgment to deal with the parenting aspect of the case first, and the financial aspect last.
PARENTING PROCEEDINGS
Competing proposals
By the time of closing submissions, both the Mother and the Independent Children’s Lawyer advanced a common proposal, the effect of which was that the Mother would have sole parental responsibility, the children live with her, and the children spend no time with the Father until they turn 18. He would, however, have limited communication with the children via letters. The precise Orders sought by the Independent Children’s Lawyer are reproduced in the first schedule to these reasons. The Mother’s proposal differed in only a very minor way. In Order 15, she proposed that reference to the period “six monthly intervals” be replaced by the words “as required”.
The Father’s proposal continued to be as set out in his Counsel’s case outline document that had been prepared on 25 November 2014. In effect, he sought Orders for equal-shared parental responsibility, for the children to live with their mother, but spend time with him each alternate weekend from Friday to Sunday and during school holidays and special days. Whilst that appears to have been the Father’s formal proposal, the strong impression formed by the Court whilst listening to the Father’s closing submissions is that he would accept as much time with the children as the Court was prepared to give him, noting that he saw no need for supervision. The formal Orders proposed by the Father are reproduced in the second schedule to these reasons.
The evidence
The Mother’s case relied on the following Affidavits:
·Affidavit of Ms Prasad, affirmed 14 November 2014;
·Affidavit of Ms E, affirmed 14 November 2014;
·Affidavit of Mr M, affirmed 18 November 2014;
·Affidavit of Ms Prasad, affirmed 18 August 2015;
·Affidavit of Ms Prasad, affirmed 3 September 2015; and
·Affidavit of Mr M, affirmed 3 September 2015.
The Father’s case relied on the following affidavits:
·Affidavit of Mr Shan, sworn/affirmed 5 August 2013;
·Affidavit of Mr Shan, affirmed 14 November 2014;
·Affidavit of Dr G, affirmed 14 November 2014;
·Affidavit of Mr Shan, sworn/affirmed 12 August 2015; and
·Affidavit of Mr Shan, sworn/affirmed 3 September 2015.
In the Independent Children Lawyer’s case, reliance was placed on a report prepared by Dr K, a consultant child, adolescent and family psychiatrist, dated 30 April 2014.
A very useful chronology was prepared by the Independent Children’s Lawyer’s Counsel, dated 28 November 2014. This helpful document is reproduced in the third schedule to these reasons.
Both the Mother and Father gave evidence, and were extensively cross-examined. The maternal grandmother and maternal uncle were also cross-examined. Dr G, a witness in the Father’s case, was cross-examined. Dr K was extensively cross-examined. A significant volume of documents were tendered in evidence.
Whilst the Father represented himself during the last two days of the hearing, including in submissions, it is clear that he is a highly intelligent and articulate man.
This is a case where it is necessary to make credit findings. This will be dealt with as the first issue, after setting out the applicable law in the parenting proceedings. The credit findings, however, of course permeate all aspects of this case, both parenting and financial.
It is then proposed that the expert evidence of Dr K will be dealt with. His is the only independent and expert evidence in this case, and that is the only reason why it is being dealt with separately. The evidence of the remaining witnesses, including both parents, will then be discussed in the context of the relevant considerations under s.60CC of the Family Law Act 1975 (hereafter referred to as ‘the Act’).
It is important to record the Orders that have been made since these proceedings commenced, about the father spending time with the children. Orders were initially made on 5 September 2013 for the children to spend time with the Father as agreed with the parents. On 18 March 2014, the parties agreed that the children would also have Skype contact with the Father twice each week. Following the release of Dr K’s report, Orders were made on 16 May 2014 for the children’s time with the Father to be supervised by Care South. These Orders were again varied by the Court on 16 July 2015 after it came to light that the Father had sold the former matrimonial home and dispersed some of the sale proceeds, with the Father’s time to be supervised at a contact centre. These Orders were suspended on 5 August 2015 and remained suspended as at the conclusion of the hearing.
The applicable law
In determining parenting matters under Part VII of the Act, the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B 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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) 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 (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
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 (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends 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 spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) 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 parents’ 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 parents’ 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.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) 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 (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(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 (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Credit findings
Both the Mother and the Independent Children’s Lawyer submit that the Father’s evidence was either unreliable, or plainly untruthful. The effect of their submission was that the Court should find that wherever the Mother’s evidence is inconsistent with that of the Father’s, unless there is independent corroborative evidence, the Mother’s evidence should be preferred. As it turns out, the Court’s findings about credit cannot be expressed in such general terms. For example, and for reasons that will be discussed below, some of the Mother’s evidence about her financial dealings with her brother is very opaque. Indeed, the more the Court heard evidence from either the Mother, or her brother, about the nature of their financial dealings, the less the Court was able to understand what, in fact, was going on. The Court will therefore hesitate in unequivocally accepting the evidence of either the Mother, or her brother, about their financial dealings. This does not necessarily mean that other evidence that either the Mother or her brother gave cannot be accepted. Taking this issue into account, however, the Court accepts the submission made. For the most part, the Court prefers the Mother’s evidence over that of the Father. The reasons for this are set out in the following paragraphs.
Findings of credit based on demeanour are unreliable in their own right. When these findings are consistent with other evidence that raises concerns about the credibility of a witness, then even demeanour findings can play a significant role. The Father was evasive in cross-examination on a range of topics. By using the term evasive, the Court means that the way in which he gave the evidence, the timing of his answers, the tone of his voice, and the very nature of the replies that he gave, all created a lasting impression of a witness who was not being entirely faithful in his response.
Thus, for example, the Father was evasive in cross-examination about what his actual income was, as opposed to that disclosed in his sworn Financial Statement. He was evasive when questioned about what his future income might be, once he qualified as a (occupation omitted). He was evasive about the circumstances of his fraudulent signing of the Mother’s signature on the children’s passport and visa applications. He was evasive on this topic, notwithstanding that he had asked for, and was granted, a certificate under s.128 of the Evidence Act 1995 in this regard. When challenged about his allegations in relation to the Mother self harming, her mental health issues, and even her physical health, he was once again evasive, and gave the impression of seeking to avoid the consequences of his evidence in this regard being found to be exaggerated, indeed grossly exaggerated, at times. The Father was once again evasive when he was cross-examined about his plan to remain in India with the children once he had taken them, insofar as that plan involved the Mother. In his criminal proceedings in Australia, the Father relied on a doctor’s report which asserted that he suffered from depression, but when challenged about this issue, he seemed to retreat from this, at a great rate of knots. He seemed to blame the doctor who provided the report, rather than accepting responsibility as the person who provided the history to the doctor. He was plainly evasive in cross-examination when challenged about his assertion that the Mother had agreed to come to India when he had taken the children there. Indeed, if the Father’s story were taken at face value, his taking the children to India was merely the consummation of a plan that the Mother was not only involved in, but had agreed to. The challenge to this evidence created much discomfort for the Father in the witness box. He was evasive when challenged about a number of aspects of his financial evidence, e.g. a loan application made to (bank omitted) in 2014 which, whilst not bearing his signature, appeared to be referrable to no one but him.
In a separate category of demeanour evidence is the Court’s impression of the Father as frequently being unresponsive in cross-examination, as distinct to being evasive. He was cross-examined a number of times, for example, about text message communication between the Mother and himself, and his answers were often unresponsive.
In addition to the above impressions formed by the Court, relevant to the Father’s credit, both Counsel for the Independent Children's Lawyer and the Mother directed the Court’s attention to a number of other clear inconsistencies, indeed falsehoods, in the Father’s evidence, whether in this case, or in the Indian proceedings.
In evidence before this Court, was the Father’s affidavit filed in the Indian High Court of Judicature at Madras, a document that is clearly an affidavit, and which was affirmed by the Father on 30 July 2013 before an Advocate of the Court. With the benefit of hindsight, and hearing six days of evidence in this case, this affidavit could quite properly be described as an interesting piece of fiction. Be that as it may, the Father was perfectly willing to rely on this sworn evidence in order to attain the children in India. There are a number of very significant problems with the Father’s affidavit. For example, the reasons that he deposes to for taking the children to India are inconsistent to the reasons he gives in the Affidavits filed in this Court. Moreover, the reasons he proffers seems to be different to what he told the Court appointed consultant psychologist in India, Dr N, whose report of 22 July 2013 is in evidence. A slightly different version is given to Dr K, the Court appointed expert in the present proceedings. For example, at paragraph 3(n) of the Indian affidavit, he deposes to the Mother accepting his request to come back to India, but then she later refused, having changed her mind, and so he was constrained to bring the children with him. That is not the evidence he gives in the present proceedings. At paragraph 9, he asserts that the Mother was fully aware “that we’re all going to come to India and, in fact, a ticket was also booked for her.” That is clearly not the case.
At paragraph 10 of the Indian affidavit, he boldly deposes: “I have neither forged nor fabricated anything to get passport and visa to my son.” The Father, nonetheless, pleaded guilty as charged in relation to these offences, in the Australian Court. The Father’s silence about this issue in the present proceedings was also interesting. The first the Court was informed about the charge and guilty plea, was in the Father’s trial Affidavit filed 14 November 2014. The guilty plea was entered on 28 October 2014. The existence of the charge appears not to have been disclosed in these proceedings before then. Moreover, the Father characterised his act of forgery of the Mother’s signature in his Affidavit of 14 November 2014 at paragraph 29 as a “mistake”. That is a colourful way of describing the Father’s ex post facto rationalisation of this event.
At several points in the Father’s Affidavit in the Indian Court proceedings, he raised issues about the Mother’s capacity and mental health. It was clearly a means to attain an end. Dr K’s comprehensive assessment of the Mother’s mental health raises no issues. The same criticism arises in relation to his allegations about the Mother’s physical ill health. He used it in the Indian proceedings, but not in the Australian proceedings, and in any event the objective evidence suggests that it was neither now, nor at any recent time in the past, a disability that affected her ability to work, let alone to care for the children.
The Father’s willingness to engage in gross distortions of the truth in the Indian proceeding reflects very poorly on his credit. If he is prepared to blatantly lie before the High Court of Judicature at Madras, surely it would not surprise him to learn that this Court will pay very close attention to his evidence, and judge his credibility as wanting, especially if there are other objective facts supporting this. The Father did himself no favours when, both in his Affidavit and in cross-examination, he sought to externalise responsibility for the affidavit to his Indian lawyers and their tactics. The Father is ultimately responsible for what he tells others, be it his lawyers, or doctors, or anyone else for that matter. He bears responsibility for any distortions of the truth.
The act of forgery was, in itself, a dishonest act which is directly relevant to one of the risk issues in this case. The Mother is almost overwhelmingly concerned about the possibility that the Father will once again kidnap the children. The Court shared this concern in circumstances where there was other evidence to indicate that the Father had acted contrary to some financial Orders that had been made. This will be discussed below.
In short, a real cloud hangs over the Father’s evidence as to its credibility. It is far more likely than not that where the Father’s evidence differs from that of the Mother, the Mother’s should be preferred. The matters set out above are by no means an exhaustive list of the evidence pointing towards this finding by the Court. Where relevant, further examples will be given.
As foreshadowed earlier in these reasons, the Court does have some concerns about the Mother’s credit as well. For example, the Court finds that it is far more likely than not that she sought to minimise the contribution that the Father made during their relationship, both in a financial, and non-financial sense, particularly in terms of his involvement with the children. Minimising, however, is not quite the same as rejecting her evidence entirely. It is a matter of degree. Where the Court has the greatest concerns about the Mother’s evidence, however, is in relation to all of her financial dealings with her brother, Mr M. Clearly he was a very significant financial resource to her. Indeed, it is probably the case that without his assistance she could not have funded the Indian legal proceedings or the present proceedings, or some of her current property investments. Her evidence about these matters was vague, however. Whether Ms Prasad was cross-examined about these issues by the Father himself, his evidence was unclear. The issue before the Court is what was the basis, and conditions, on which monies were advanced by Mr M to his sister? Was it a loan? If so, what were the terms of the loan? Was it an advance made out of generosity, but without the expectation of return, either in the short term or long term? How were these monies actually advanced? How were the monies repaid? The significance of all this is because the Mother seeks to include substantial liabilities to her brother on the balance sheet. The evidence about these issues will need to be considered in further detail below. At this stage, all that can be said is that the Court is far from satisfied that it has a clear picture of what in fact took place, and what is expected to take place in the future.
The evidence of Dr K
Dr K’s report dated 13 April 2014 was annexed to his Affidavit sworn 1 May 2014 and filed on the next day. It is a comprehensive report. As his report is an important contribution to the evidence and played a significant, albeit not determinative role in the Court’s assessment of the evidence, it is necessary to set out parts of it quite extensively. With the benefit of hindsight, and having regard to all of the evidence before the Court, many of Dr K’s observations and opinions were prescient and, in particular, the Father in evidence demonstrated many of the attributes that Dr K ascribed to him.
It should be recognised that there were parts of Dr K’s report that were successfully objected to when the hearing commenced. As it turns out, when these matters were put to Dr K in cross-examination, he confirmed that he was able to exclude these matters from his mind, but his recommendations did not ultimately change.
Dr K deals at paragraphs 26-32 of his report with an issue that the Father considered to be an important one in this case – the Mother’s physical health. He states:
Physical health
26. The mother has a chronic medical condition, Takayasu Arteritis [referred to by Dr F, cardiologist, in his letter of March 2014 as “Takayasu’s disease Grade IV aortoarteriosis”], which is a form of vasculitis, that is auto-immune inflammation of blood vessels.
27. The mother told me that this was first diagnosed in 2000, when she was a (omitted) student.
28. The mother has been treated with the steroid anti-inflammatory medication prednisone, with high doses up to 30 or 40mg per day when she was first diagnosed, but in more recent years has had periods off this medication, or has been on a lower dose such as her current dose of 5mg per day. When on higher doses, she developed the serious side-effect of cataracts in the lens of the eye.
29. Prednisone is a medication which can have altered mood states as a side effect, but the mother did not feel that she had experienced such side effects.
30. The mother is also treated with the anti-inflammatory medication azathioprine.
31. The mother gave her current treating specialists as Dr J, rheumatologist in (omitted), and Dr F, cardiologist.
32. The mother told me that over time she has been aware of different medical opinions about the treatment of her illness. Her understanding is that current recommendations are to treat symptoms and to maintain monitoring of health, but not to treat unless there are symptoms.
The reference to Prednisone was raised with Dr K by the Father in cross-examination. It was suggested, for example, that the Mother’s consumption of Prednisone might have contributed to the Mother’s erratic and sometimes aggressive moods which the Father describes in his evidence. Dr K agreed in cross-examination that at a sufficiently high and consistent dose of Prednisone, this was a possibility, but he did not believe that the Mother’s dosage was at a level where this might occur and thus rejected the Father’s proposition.
The impact of the Mother’s physical health in terms of her parenting capacity is dealt with by Dr K at paragraphs 184-196 of his report. In these paragraphs Dr K acknowledges that he lacks expertise in the disease, but did have professional expertise with regard to the neuropsychiatric effects of physical illness and of medication, and in relation to a person’s psychological adjustment to and to management of chronic illness (para 185). His view was that based on all the medical records and correspondence relating to the Mother, the Mother’s illness did not appear to be a current disability. Indeed, there was scant evidence to suggest that it affected her parenting capacity at any relevant time. Dr K acknowledged the Father’s concern that there was evidence that the Mother was non-compliant with medication and follow-up treatment of her illness. The Mother did not deny this. She eventually later sought a review of her condition. The records suggested that, certainly since 2013, the Mother has been complying with treatment and monitoring. Dr K suggested that an order requiring her to continue to monitor and treat her illness might be of assistance.
The Court is satisfied from Dr K’s evidence, and his cross-examination, that no aspect of the Mother’s physical health impacts on her parenting capacity. Moreover, the strong impression formed from all the evidence before the Court is that the Mother’s chronic illness was at no time an issue affecting her parenting capacity, and that this was a matter reasonably known to the Father. Thus, when he raised the Mother’s physical health in various context both in the Indian and Australian proceedings, it was done opportunistically and disingenuously.
At paragraph 73, Dr K records an aspect of the Father’s presentation:
The father told me that he was recovering from operative removal of his appendix on 14th March 2014, 21 days prior to the interview date, and that he had experienced the post-operative complication of a wound infection, for which he had received two courses of antibiotics. He clarified that whilst he was not fully recovered, he felt well enough to engage competently in the interview. The father did not present as systemically unwell, sedated, or distracted by pain, and appeared able to competently engage in the interview process, and subsequently in the interview with the children.
This became significant in cross-examination when the Father attempted to argue, albeit tentatively, that the report was tainted by his recovery from the appendix operation three weeks earlier, and the post-operative infection he suffered. The only inference the Court can draw from this line of questioning by the Father was that some of his responses to Dr K, and thus the impression that Dr K formed of him, were quite unfair, and did not reflect who he really was. It was an argument only tentatively advanced. There is no basis to it. Dr K’s observations and paragraph 73 stand. Indeed, paragraph 74, which need not be reproduced here, clearly suggests that the Father was both prepared, and fit and well to argue his own case before Dr K.
In paragraph 75, Dr K makes this observation of the father:
His own prepared narrative was one of himself in an agent, gallant self-sacrificing role, taking on the role of husband scaffolding and looking after an undercompetent and dependent wife, then of himself seeking to protect the children from neglect and abuse in the maternal household.
The Court makes this observation – the Father’s narrative continued as such throughout the hearing and was reflected even in his closing submissions. For example, he emphasised how he tried to be a responsible father, providing financial and moral support for the Mother as she sought to advance her career despite her chronic illness.
The Mother’s mental state was an important issue in these proceedings, and indeed in the Indian Court proceedings, from the Father’s perspective. Dr K deals with this at paragraphs 104-109 of his report:
104. This appears to be a central issue regarding the matters before the court. The father raises serious concerns about the mother’s mental state and parenting capacity, and presents these concerns as the motivator for and justification of his actions in taking the children to India in June 2013 without maternal knowledge or consent.
105. I formed the view that the mother does not have a current or ongoing mental disorder or substance misuse disorder.
106. The mother experienced symptoms of anxiety and depression at times during her relationship with the father, particularly since 2011. I formed the view that these symptoms were reactive to and proportionate to her experience of adversity, disappointment and a pattern of family violence within the parental relationship. In addition, the mother lost the maternal grandfather in 2011, with her grief amplified by her experience of the father’s lack of empathy about this loss, and his unwillingness to facilitate her spending time with the maternal grandfather during the final period of his life.
107. It is likely that during some of the periods of greatest struggle, the mother met criteria for an adjustment disorder with anxious and depressed mood, the identified stressor being the father’s behaviour towards the mother during these periods. Symptoms of anxiety included fear and uncertainty about personal and financial security, about paternal coercion and aggression, and about parenting matters. Symptoms of depression included sadness and loneliness, some slowing of thought and action, and some loss of pleasure, motivation and energy.
108. The mother may have been distressed and demonstrative during some of these periods, though I formed the view that she was not irrational or aggressive. I observed the mother to be quite reflective and emotionally contained, but I note that the psychologist in India in her report of July 2013 at Annex G to the father’s affidavit of August 2013, described the mother using “expansive gestures and mannerisms”.
109. The mother’s symptoms were lifting from January 2013, when she took some agent steps towards greater independence and separateness from the father by moving to (omitted). Despite the distressing experience of the removal of the children in June 2013, and the subsequent ongoing legal process, the mother has maintained a positive and functional mental state over the past year. She has continued to work and study, and has re-engaged with netball and with church attendance.
It was interesting to observe how, by the final hearing, the issue of the Mother’s mental health and its impact on her parenting capacity had diminished so significantly in the Father’s case. For example, the Orders that he proposed were quite inconsistent with any genuinely held concern by him as to the Mother’s mental health. The issue did not rate a mention in the Father’s closing submissions. In the Indian proceedings, for example, at paragraph 6 of his affidavit sworn 30 July 2013, he described her as “mentally instable”.
Dr K goes on to observe that the adjustment disorder with anxious and depressed mood that he identified was, more likely than not, reactive to external adversity rather than representing an intrinsic vulnerability in the Mother (para 111).
At paragraphs 114-119, Dr K deals with the Father’s perception of the Mother’s mental health. He states:
114. If the father’s reports of the mother’s symptoms are accurate, then the mother may have a mood disorder or a psychotic disorder. But, the father retreated from some of his written assertions when challenged with them by me at interview, and I see no evidence outside paternal reports for the presence of these symptoms or of such a disorder.
115. With regard to the father’s assertion of “moodswings” and “rages”, the father appeared to minimise the context of the mother’s distress on the occasions when he claims that the mother had a “rage”. He presented these as episodes of disease. He said, “she’s suddenly emotional, aggressive, doesn’t know what she’s doing… [she tries to] control me, bangs her head, [says] ‘you spoil my life’… she gets these outbursts, [and I] hold her hands”.
116. The mother was able to provide a context to her distress at these times (that she felt blocked from visiting her dying father, disrespected as the father had gone out to dinner with his sister without telling her, and that he was verbally and physically aggressive to her). The mother also described a significant interpersonal stressor prior to the episode in India when the mother was briefly admitted to hospital after a collapse.
117. With regard to the father’s assertion of maternal self-harm or suicidal behaviour, these appear to have been made only in response to maternal accusation of paternal assault, and in the lead-up to and after the father taking the children to India.
118. With regard to psychotic symptoms, at interview, I challenged the father on the assertion in his email to family of July 2011 (at Annex D to his affidavit of August 2013), that “Ms Prasad has lot of delusion… that I am beating her, holding her neck etc”, and in his affidavit of November 2013 that the mother accused the father of being “responsible for the tsunami”. The father retreated from both assertions, of the former saying, “Oh… I was just venting to my parents” then diverting onto other issues, and of the latter looking awkward, averting his eyes, saying “she said… 2 or 3 times… everything… is because of you… the tsunami… is because of you… on that day”. When I sought other observations that might have made him worry about psychotic illness, he was not able to provide any.
119. I note that the mother appears to have maintained occupational function adequate to receive positive supervisors’ reports such as those at Annexes G (undated), H (January to July 2013) and I (June to August 2009). Her friend and the maternal grandmother had not observed concerning symptoms. The mother showed initiative and capacity by engaging in study, examinations, moving to (omitted), setting up her training there, engaging the nanny, and balancing her work/home life.
It is interesting to observe that in paragraph 114, the Father retreated from some of his previous assertions, which became a recurrent phenomena in this case. A further example is given at paragraph 118 of Dr K’s report. It is further interesting to note the Father’s use of medical terminology in the context of the Mother, e.g. at paragraph 118 of the report, his use of the word “psychotic”. He was later criticised for using the word “catatonic” in relation to the Mother. Just as he seems to have retreated from this contention with Dr K, in closing submission he retreated from his use of the word catatonic in relation to the Mother, explaining that whilst he was a (occupation omitted), he did not understand the proper use of the term.
Overall, Dr K found the Mother to have sound personal and interpersonal functioning, and not demonstrating any significant personality dysfunction. He thought she had strong reflective functioning, i.e. the ability to take a step back, and to think about her own thoughts and behaviours, and the thoughts and behaviours of others. Overall, he found her account of events and her expressed views quite consistent and stable over time, notwithstanding the different contexts of her Affidavits, her reports to police, and her statements to third parties, including, for example, the Court in India, and to Dr K. The Court interposes here to make the observation that, after hearing all of the evidence, and apart from the already stated concerns in relation to the Mother’s evidence of her financial dealings with her brother, the Court would reaches a similar conclusion as that of Dr K in relation to the Mother’s mental health.
Dr K sets out some important caveats to his report. At paragraphs 144-146:
144. I have put forth a view that the mother is a woman of sound personality functioning, observed under stress of adapting to a pattern of family violence perpetrated by the father, personality vulnerabilities in the father,
and dysfunction in the paternal extended family.145. If the court finds that the mother holds genuine beliefs
and concerns about the father and about his extended family, but that these beliefs and concerns are ill-founded (being based on distorted, amplified or selective recollection of events) , then this would be suggestive of greater personality dysfunction in the mother, of borderline or histrionic type.146. If the court finds that the mother does not hold genuine beliefs and concerns about the father
and his extended family, but that she has deliberately fabricated these beliefs and concerns (and her account of events in her relations with these persons) for her own advantage, then this would be suggestive of greater personality dysfunction, of antisocial type.From paragraph 197 of Dr K’s report, the focus turns to the Father. His opinion was that the Father did not have a current or ongoing mental disorder or substance misuse disorder. He records at paragraph 198 that the Father told him that he had not experienced depression or anxiety. This is curious. In cross-examination he agreed that he did experience a lot of stress between 2012 and 2013. It was put to him in very specific terms that he had suffered fluctuating chronic depression. He would not accept this proposition, saying that he was not an expert, but admitting that there was lots of stress. He agreed, however, that he went to see a Dr C, a forensic psychiatrist or psychologist who prepared a report to assist the Father in his criminal proceedings. The Father agreed. He agreed that he was aware of its contents. He agreed that the report said that the Father suffered fluctuating chronic depression. He cavilled with the description of it being chronic, but acknowledges this is what Dr C said. He agreed that Dr C’s report referred to desperate times when the Father contemplated suicide, but asserted that, at most, he was very upset by the case, may have contemplated suicide more than once, and in any event disagreed with the diagnosis. It was then pointed out to the Father that he was relying on Dr C’s report in the criminal proceedings. He asserted that Dr C got it wrong, but the report was nonetheless submitted, after the Father had told his Counsel of the errors. However, he maintained, he did not disagree with the whole report.
Whether or not the Father in fact suffered fluctuating chronic depression, and whether or not he did in fact contemplate suicide more than once, perhaps reactive to the stress of the criminal proceedings, as well as the family law proceedings, the significance of the above evidence is to demonstrate aspects of the Father’s personality and character. He was willing to put a document before a Court that was dealing with criminal matters even though it contained clear errors. He cavilled with his own forensic psychiatrist’s report.
Returning to Dr K’s report, at paragraph 201, Dr K diagnoses prominent antisocial and narcissistic personality traits. It is important to set out some lengthy extracts from the report. At paragraph 202-214, Dr K states:
202. It is unclear to me whether these aberrant attitudes and behaviours have existed mostly in the domain of his intimate relationship with the mother, as part of a dysfunctional model of intimate partner relations and a pattern of family violence, or whether they are present also in other spheres such as in his occupational, friendship and broader family relations. If the latter is the case, the father may have a personality disorder.
203. The differentiation between personality traits and disorder is one of degree, and is not central to the matters before the court. In order to make the differentiation, a clinician would need to see the father over a period of time, with input into the assessment from persons with whom he relates, and appraise the father’s functioning in broader contexts beyond the focus of this report on functioning in family relationships. Even if the father’s aberrant behaviours have been limited to the sphere of relations with the mother and children, this is predictive of the continuation of similar behaviours within those relationships and future partner and parenting relationships.
204. Reflecting his antisocial personality style, the father has demonstrated in his family relations a pattern of disregard for and violation of the rights of others, in particular of the mother and the children. In terms of antisocial personality traits, the father can behave unlawfully, be deceitful, irritable and aggressive, and irresponsible. The father lacks remorse, being indifferent to or rationalising having hurt or mistreated another.
205. Reflecting his narcissistic personality style, the father has demonstrated in his family relations a pattern of grandiosity, need for admiration, and lack of empathy. In terms of narcissistic personality traits, the father demonstrates a grandiose sense of self-importance, claims a “special” status in particular as a (occupation omitted), requires excessive admiration and attention, has a sense of entitlement, is interpersonally exploitative, and lacks empathy, being unwilling to recognise or identify with the feelings and needs of others.
206. My impression of the father’s personality style is drawn from others’ account of their experience of him (specifically the mother, the maternal grandmother,
and the mother’s friend), from his own account of his experiences, from the documents, and his presentation at interview.207. The overtly antisocial behaviours in the father described by the mother, the maternal grandmother
and the mother’s friendwere mostly denied by the father. I formed a view, however, that the father’s presentation was consistent with their description, and with a pattern of deceitfulness, denial and minimisation in the father.208. If the court forms the view that the mother, maternal grandmother,
and mother’s friendhave fabricated, exaggerated or amplified paternal dysfunctional behaviour, or that the mother’s degree of dysfunction and incapacity is greater than is my impression, then the father’s personality dysfunction may be less severe than I have opined.209. I am concerned about the father’s propensity and willingness to be deceitful, in order to defend his actions, enhance or preserve his reputation, or to further his own ends.
210. In my view, the father was deliberately and strategically deceitful in attempting to “cover his tracks” [my words] and explain away his violence to the mother by painting her as mentally ill and describing her injuries as self-harm, for example in his email to family in July 2011 (at Annex D to his affidavit of August 2013) and at his visit to the doctor on 17th May 2013.
211. In a similar way, the father was deliberately, strategically and in this case pre-emptively deceitful in planting the (I believe) fake email from the mother to himself dated 7th May 2013 which is at Annex C to his affidavit of August 2013. This email paints the mother as at risk of homicidal behaviour towards the maternal grandmother and children, and has her requesting that the father take the children to the paternal grandparents in India, whilst painting the father in a supportive role.
212. The father’s actions in taking away the children to India were a continuation of this pattern of carefully planned and purposeful deceit and may have included the illegal act of forging the mother’s signature on Y’s passport.
213. Subsequent to his taking the children to India, it is my impression that the father has engaged in deceitful and disingenuous attempts in the courts in India then in Australia to paint the mother as incapable to parent on the basis of physical and mental illness, and alleged abuse of the children.
214. Whereas I observed the mother’s account of events and her expressed views to be quite consistent and stable in the different contexts of her affidavits, her reports to police, her statements to the psychologist and court in India, to the family court report writer, to Dr V (general practitioner in (omitted)) and to myself, the father’s account of events and expressed views appeared to alter with context in a manner that suggested to me a willingness in the father to utilise information strategically in his own interest with disregard for the truth or for the impact of any mistruth on others outside of himself.
Referring to Dr K’s description of the Father as someone who “can behave unlawfully, be deceitful” the evidence set out above in relation to Dr C’s report, and the Father’s reliance on this in his criminal proceedings, is an example. The blatantly false representation in the Father’s affidavit before the High Court of Judicature at Madras is another example. There are other examples of the Father’s willingness to be deceitful, that will be discussed in these reasons, including in relation to property and finances.
The assertion by Dr K at paragraph 211 about the Father faking an email from the Mother to himself dated 7 May 2013 is a serious assertion to make. Dr K says that in his opinion, the Father was both deliberate and strategic in doing so. Does the actual evidence support Dr K’s contention? The email in question is annexed to the Father’s Affidavit filed in this court on 7 August 2013. At paragraph 14 of the said Affidavit the Father deposes, “Ms Prasad, on several occasions, without provocation has shown rapidly shifting and shallow expression of emotions and become excessive emotional and raise threats of self-harm.” He then annexes the email that he alleges the Mother sent to him on 7 May 2013.
It is useful to reproduce the email in full:
Dear hubby Mr Shan,
I am writing this from my heart. I want to thank u and say sorry for:
Thank u- u gave me life. Married me with my medical. Condition. I was not rich. I showed me luxury, education, residence etc. all I m now is because of u. U r gentle and sober. U tolerated all my tortures in the past yrs. thanks for giving me life&lovely kids.
Sorry- I tortured u past years. I should say its all because of my depression episodes and medical condition. U supported the whole our family financially on ur own hard work.. Even u supported my parents when they needed financially. But The depression is overcoming me.. I will get sychologist support as u suggested many times. Don’t know when.. I even felt u as my enemy with no reason and also felt killing my on mother at times in the last one yr. I too feel like hurting kids sometims as my current work is stressful.. I am scared that I might do something to kids and hence request u to take them to ur parents for a few months plsss. I need some time for my own and will undergo counselling. U been tolerant to me so far … Sorry for all the trouble I have given u and spoiling ur life!
Yours only
Ms Prasad
The Father was cross-examined about this email. It was put to him that his allegations about the Mother self-harming seemed to coincide in a chronological sense with the Mother’s allegations about the Father’s abuse. He did not know, was his response. He confirmed that he had concerns about the Mother self-harming as at September 2011. He provided no satisfactory explanation why, however, in an important email exchange with the Mother’s brother on 27 September 2011 he did not mention that she had been self-harming, even though, as he acknowledged, the Mother’s brother had categorically said to him not to use physical violence. This is a curious omission.
The Father agreed that he (fraudulently) applied for passports after receiving what he agreed was a disturbing email from the Mother dated 7 May 2013. He agreed that he read that email, perhaps the next day, but probably the same day. He said that he discussed it with her, but was unsure whether if this was by telephone, or in person. He was asked whether he thought the Mother’s email unexceptionable, because he often received statements like that from her. He agreed. He eventually conceded that he certainly would have discussed the email from the Mother no later than the following day.
The Father was then taken to the Annexure M of the Mother’s trial Affidavit affirmed 14 November 2014. This is a record of the text conversation between the Mother and Father on 8 May 2013 starting at 2:32pm and ending at about 10:36pm. What is striking about the text message exchange is the total absence of any reference to the Mother’s email of 7 May. There was no reference to “the depression is overcoming me”. There is no reference to the Mother feeling like killing her own mother. There was no reference to the mother “feel like hurting kids sometimes…”. There was no reference to “I am scared that I might do something to kids and hence request you to take them to your parents for a few months…”.
The Father could not provide to the Court a satisfactory explanation as to the absence of any reference whatsoever to what could only be described as an alarming email which the Father agreed he must have read sometime on 8 May 2013. Instead, the Father prevaricated, raising the possibility that the message had not been received on the day or he might not have seen it or they might have discussed it by text message etc.
It was put to the Father that, in fact, he had sent the email, and not the Mother. It was suggested to him that he had, in effect, manufactured this evidence to support his subsequent actions in taking the children to India. The Father disagreed. The Court does not accept his evidence. It is plainly inconceivable that the Father would, in effect, ignore this email in subsequent communication with the Mother, but then opportunistically use it in the Indian proceedings. The Mother’s evidence on this issue, set out in her trial Affidavit of 14 November 2014, explained that the Father certainly had the opportunity to send an email in her name. She asserts that he would have had access to her iPad between returning home at 6:14pm on 7 May, and then leaving on 8 May at 3:45pm. She had no password for her iPad. The motive in sending the email is plainly apparent – to support his actions in taking the children to India, and then seeking to retain them there.
When one has regard to the evidence, Dr K’s description of the Father as being deliberate, strategic, and deceitful in planting the fake email is entirely borne out.
Dr K compared the Mother’s narrative to the Father’s narrative, and observed that his account of events and views appeared to alter with context in a manner that suggested a willingness to utilise information strategically in his own interest with disregard for the truth or for the impact of any mistruth on others outside of himself (para 214).
At paragraphs 215-216, Dr K observed the inconsistencies already recorded in these reasons for judgment between the Father’s claim in the Indian proceedings about the Mother travelling to India with him.
At paragraph 226-230, Dr K moves to issues of lack of empathy and insight:
226. At interview, the father showed a profound lack of empathy for the mother and failed to consider or recognise her emotional responses. He lacked remorse regarding his actions towards her, and denied or justified those actions.
227. In his discussions of his actions in deceptively taking the children to India, the father made no reference at all to the mother’s inner experience of the same, or to any distress or uncertainty that the children may have felt. Instead, he presented himself as the hapless victim of maternal lack of insight into mental illness then of subsequent misunderstanding by Indian courts, and as the gallant protector of his children.
228. The father’s one comment about the mother’s reactions to his action was to state that the mother not having rung him for 14 days after he took the children was evidence of her lack of commitment to the children.
229. When the father justified his actions in taking the children to India with the stated fear that the mother may have “jumped off a balcony with the children and said ‘Mr Shan is responsible’”, I asked him what precautions he had taken to mitigate against the risk of this suicidal woman acting on her impulses when she discovered that he had taken away her children. He appeared awkward, and said, “I left… money, and the taxi number,and a ticket… her room-mate was there”, then changed the subject.
230. The father appeared to disregard what might be the mother’s current fears as a result of his actions in taking the children to India, and to take no responsibility for his actions or those consequences. The father presented himself as the hapless victim, put his hands up in despair and pathos, and asked [of the current requirement for supervision of contact] “Did I do any mistake? I feel like a criminal”.
It bears recording that Y was only one year old at the time that his father took him away from his mother.
At paragraphs 234-236, Dr K continues on the theme of the Father’s lack of empathy, and at 237 states: “the father’s lack of empathy and of remorse increases the likelihood of persistence or recurrence of his antisocial behaviour.”
Dr K then turned to the question of whether the children had been exposed to family violence, from paragraphs 252 onwards. At paragraph 252-256 he describes the view that he has formed:
252. I formed the view that the relationship between the parents was characterised by a pattern of family violence perpetrated by the father against the mother.
253. It is important to note that in using the term “family violence” I am not speaking only or even primarily of physical violence towards the mother, though it is my impression that at least 2 acts of such violence did occur. I am using this term as it is commonly used in clinical practice and in the clinical and social sciences literature (interchangeably with the term “domestic violence”) to denote a pattern of behaviour within a family relationship that is coercive, intimidating, disrespectful, and harmful to the other.
254. The mother described a pattern of controlling, critical, demeaning, and cruel behaviour by the father towards her over time, dating back from early in the couple’s relationship, amplifying when the couple became parents, and then extending to overt demeaning, aggressive and violent behaviour later in the relationship as the mother challenged and drew away from the father.
255. At interview, the mother described the father as temperamental, irritable and aggressive. She said, “He’d talk bad about my father… crashes a bowl… throws the cordless phone”. I noticed that the mother’s body stiffened as she spoke, and she shifted into the present tense, consistent with a traumatic memory. In her affidavit, the mother describes the father as frequently angry, aggressive and deliberately frightening or intrusive. He would say, “I’ll divorce you”.
256. The mother found the father to be controlling and limiting of her engaging with friends and community activities outside the home and work. He took her to church once, but dropped her off and she had to walk home. She took this as a signal of disapproval, and did not continue to attend.
At 267-268 and 270-271, he refers to specific matters:
267. The mother described an incident in September 2011 when the father was violent to her when she was becoming angry and upset about his wanting to limit her time with the dying maternal grandfather. She threatened to call her brother, and the father subsequently sent two explanatory and self-justifying emails to the brother.
268. The mother described an incident on 14th May 2013 when the father was verbally abusing her, and grabbed her around the clothes and neck, and was holding her up against the fridge for half an hour, saying “there’s no difference between you and a prostitute… [you’re] after my money”, then later, “we should have sex now”.
…
270. At Annex G and H to the mother’s affidavit of September 2013 are emails from the mother’s brother to the mother and to the father after this violent incident. The brother in his email to the father makes reference to him having spoken to the father after a previous violent incident, saying “No physical abuse. I have spoken to you last time very clearly about this”.
271. The maternal grandmother lived in the parental home from May 2012 to April 2013, and from September 2013 to the present. The maternal grandmother said to me, “[The father expressed] verbal abuse… ‘[you’re a] beggar’s family’”, and “[the father had] uncontrollable anger… [he] ran at her… wanted to beat her… [he was] egocentric…”. She paused and tensed in her body as she appeared to be describing a vivid recollection of a moment in time: “He was jumping from the staircase to beat her… about Ms Prasad’s sister-in-law… his mother… in (omitted)”. The maternal grandmother said, “he said, a thousand times, ‘I want a divorce’”.
In relation to the Father, Dr K says at 272-273:
272. In my view, the father has demonstrated over time attitudes and behaviours typical of family violence perpetrators, these being Superiority, Entitlement, Control, Possessiveness, Externalisation of Responsibility, Selfishness and Self-Centredness, Denial, minimization and victim-blaming, Manipulativeness, Contradictory statements and behaviours, Confusion of Love and Abuse. [Reference: List based on a literature review in Bancroft L, Silverman J & Ritchie D (2012) The Batterer as Parent 2nd Edn. SAGE: Los Angeles. The one remaining item on the list is that of “serial battering”].
273. The father minimised any aggression that he had shown to the mother, but held her responsible for the aggression to which he did admit. In his email to family of July 2011, at Annex D to his affidavit of February 2014, the father says, “I agree I am short-tempered (for some reason only with Ms Prasad… at same time no one else could be patient with her than me”.
The family violence allegations are, once again, very serious ones, and the impression formed by Dr K is important evidence. Does the other evidence before the Court support the view that he formed? In short, the answer is yes. Even if the Court were to hypothetically put aside other aspects of the lack of credibility of the Father’s evidence, his denials of the family violence allegation were unconvincing. The evidence of the Mother, the maternal grandmother, and the maternal uncle on the issue of violence was far more convincing. Indeed, an overview of the evidence about family violence strongly suggests that that which was put to the Father in cross-examination by Counsel for the Mother was in fact correct i.e. that whenever the Mother raised issues about family violence, the Father raised issues about her self-harm and mental health. The Mother’s assertions were corroborated by other evidence. In short, Dr K’s view of the family violence that characterised the parental relations is, more likely than not, what took place.
Schedule Two
Minute of Order proposed by the Respondent Father
That the parties have equal shared parental responsibility for the long term care, welfare and responsibility of the children with the following provisions to apply:
a.That the parties are to keep each other informed in relation to the following:
i.Extra-curricular activities such as sporting events;
ii.School reports, events, awards etc.;
iii.Any arising medical issues;
iv.Any changes to address and contact details.
v.That such consultation is to take place in a timely fashion with each party to provide reasonable consideration of the views of the other party;
vi.That in the event that the parties are unable to reach an agreement as to decisions concerning the long term care, welfare and responsibility either or both of the children that the Applicant Mother have the responsibility for that decision in those circumstances.
That the child lives with the Applicant.
That communication between the Applicant and Respondent be restricted to that reasonably necessary to give effect to these orders and is to be limited to email and telephone text messages only.
That to give effect to order 3, the parties will keep each other informed of their current contact details for email and telephone text messaging.
TIME WITH EACH PARTY
That the children spend time with the Respondent father as follows;
a.Each weekend apart from the last weekend of the calendar month from 5:00pm Friday to 5:00pm Sunday, changeovers to occur at (omitted) McDonalds (omitted);
b.At other times as agreed.
CHRISTMAS EVE AND CHRISTMAS DAY
That Order 5 and 8 be suspended to enable the following Orders to apply;
a.That the father is to spend time with the children 5:00pm Christmas Eve to 10:00am Boxing Day in each odd numbered year and from 10:00am Boxing Day to 5:00pm 28 December in each even numbered year.
CHRISTMAS SCHOOL HOLIDAYS
That Order 5 be suspended to enable this Order to apply;
That the father is to spend time with the children for the first half of the Christmas school holiday period as agreed;
That this Order temporarily be suspended to enable Order 6 to occur.
ALL MID YEAR SCHOOL HOLIDAYS
10.That Order 5 be suspended to enable this Order to apply;
11.That the father is to spend time with the children for the first half of all school holidays as agreed.
EASTER
12.That Orders 5 and 10 be suspended to enable this Order to apply;
a.That the children are to spend the entire duration of Good Friday, Easter Saturday, Easter Sunday and Easter Monday with the father.
MOTHER’S DAY
13.That, where necessary, these orders be temporarily suspended to enable this Order to apply;
a.That the children are to spend time with the Applicant from 10:00am Sunday to 5:00pm Mother’s Day.
FATHER’S DAY
14.That the children are to spend time with the Respondent from 10:00am Sunday to 5:00pm Father’s Day.
THE CHILDREN’S BIRTHDAYS
15.That, where necessary, these orders be temporarily suspended to enable this Order to apply;
a.That the children are to spend time with the Father from 3PM to 6PM where either of their birthdays fall on a school day
b.That the Respondent is to spend time with the children from 10AM until 2PM where either of their birthdays fall on a non-school day.
OTHER BIRTHDAYS & SPECIAL OCCASIONS (SUCH AS HINDU FESTIVALS)
16.That the parties foster open communication in regards to various special occasions and other birthdays and to come to mutual arrangements in relation to time spent with the child as agreed.
COMMUNICATION WITH THE CHILDREN
17.The parties will have reasonable communication with the children by telephone and other electronic means, and the party with whom the children are living will arrange that communication.
INJUNCTION AND THE FAMILY LAW WATCHLIST
18.That until further order each party, their servants or agents, be and are hereby restrained removing or attempting to remove or causing or permitting the removal of the children from the State of New South Wales without the other party’s consent.
19.That until further order each party, their servants or agents, be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders its removal.
PROPERTY ORDERS SOUGHT
20.That the orders sought by the Applicant for a division of matrimonial property be dismissed.
21.That the Application for spousal maintenance be dismissed.
22.That each party retain all assets and liabilities currently held in their respective names.
23.That the Applicant pay the Respondent’s costs of and incidental to this Application.
Schedule Three
Chronology prepared by the Independent Children’s Lawyer
| Date | Event | Reference (parties trial affidavits) |
| (omitted) 1977 | Father born (37 years) | Father para 1/Mother para 3 |
| (omitted) 1982 | Mother born (32 years) | Father para 3/Mother para 2 |
| 2000 | Mother says she is diagnosed with Takayasu Arteritis | Mother para 223 |
| (omitted) 2005 | Father and Mother marry in India (arranged marriage) | Father para 5/Mother para 5 |
| (omitted) 2005 | Father and Mother relocate to (country omitted) Father says he works as a (occupation omitted) Mother says Father starts to be verbally abusive and says words to the effect, “Because of your status you have to sleep on the floor, not in the bed” Mother says that after she and the Father relocate to (occupation omitted) she is subjected to acts of violence by the Father including the Father throwing a cordless phone at her, bashing a glass bowl against a wall and kicking his foot close to her face | Father para 6 Mother para 51 Mother paras 60 to 63 |
| March 2006 to May 2013 | Father says he observes the Mother self-harming on many occasions Mother denies that she has ever self-harmed | Father para 45 Mother para 94 |
| (omitted) 2006 | Father says he and the Mother relocate to Australia Father says he works as a (occupation omitted) Mother says Father only comes to Australia and works at (employer omitted) as a (occupation omitted) | Father paras 6 and 13 Mother paras 251 and 252 |
| (omitted) 2006 | Mother says she is brought to Australia by her brother Mr M as the Father is already living in (omitted) Mother says parties live in (omitted), NSW and that she studies for her (qualifications omitted) | Mother paras 9, 34, 251 and 252 |
| Early 2007 | Mother says that the Father does not talk to her for a period of a month | Mother para 35 |
| 2007 | Mother says that whilst living in (omitted) the Father pulls a chair from under her causing her to fall to the ground Mother also says that the Father throws a half filled water bottle at her stomach which is painful | Mother paras 64 and 65 |
| 2007 | Father says the Mother is admitted to hospital in India “for managing her depression” | Father para 48 |
| 3 February 2007 | Mother says she leaves for India because the Father wants her to assist teaching his sister study for year 12 | Mother paras 44 and 224 |
| 3 February 2007 to 24 March 2007 | Mother says she is constantly harassed and intimidated by the Father’s family, she believes they will not let her attend her brother’s wedding and she is not permitted to eat “before doing the Pooja” | Mother paras 47 and 48 |
| March 2007 | Father says the Mother informs him that his Mother and sister are closely monitoring her moves | Father para 44 |
| March 2007 | Father says Mother is admitted to (omitted) hospital for depression and is looked after by his parents Mother says she goes to (omitted) hospital after suffering a panic attack after being frightened by the Father’s family dog Mother says she is later admitted to (omitted) hospital in Chennai (a hospital run by the Father’s Uncle) to rule out the possibility of a stroke. Mother denies that she is admitted for depression | Father para 52 Mother para 224 |
| 24 March 2007 | Father says Mother is diagnosed with depression by Dr S in India | Father para 50 |
| 25 March 2007 | Mother says she is only permitted by the Father’s family to attend her brother’s wedding 30 minutes before the wedding starts which she believes is “to restrict my interaction with my family” | Mother para 50 |
| 2008 | Mother says that her cardiologist, Dr R, confirms that she has burnt out Takayasu Arteritis (inflammation of the blood vessels) and that she takes steroids and immune suppressants for a time before being weaned off them Mother says that since late 2008 she has only taken aspirin and iron tablets for her condition | Mother para 225 |
| November 2008 | Mother starts work as a (occupation omitted) Mother says that the Father obtains employment at (employer omitted) as a (occupation omitted) and she obtains employment as a (occupation omitted) at (employer omitted) | Father para 16 Mother paras 253 and 254 |
| 2009 | Mother says she transfers to (employer omitted) as a (occupation omitted) | Mother paragraph 255 |
| 2009 | Mother says that she has a PET Scan and there is no active arteritis in her body | Mother paragraph 243 |
| January 2010 to January 2011 | Mother says she does not work outside the home | Mother paragraph 258 |
| July 2010 | Father commences some casual work as a (occupation omitted) at (employer omitted) | Father para 13 |
| March 2010 | Mother works on a part-time basis as a (occupation omitted) | Father para 17 |
| (omitted) 2010 | X born (4 years) | Father para 9/Mother para 6 |
| Late July 2010 | Mother says she travels to India for a few months after the birth of X Mother says that on one occasion when she is feeding X she and the Father have an argument. She puts the baby down and the Father strikes her on her back twice with an open hand and says words to the effect, “I don’t want to listen to you” | Mother para 71 Mother para 72 |
| 2011 | Mother says that the Father’s verbal abuse gets worse and that on one occasion while she is getting ready to go to work the Father says words to the effect, “You have to feed the child” and yells at her despite the fact she has already fed X | Mother para 56 |
| January 2011 | Father says Mother works part-time as a (occupation omitted). Mother says she is employed at (employer omitted), as a part-time (occupation omitted) | Father para 17 Mother paras 259 and 260 |
| 26 September 2011 | Mother says the Father picks her up by her collar, holds her around her neck and she says, “I am going to call my family”. Mother says that she does not do so but the Father sends an email to her brother who subsequently calls her and says words to the effect, “Mr Shan has said to me that he was sorry for what he had done to you.” Mother says that she believes the Father emailed her brother to “pre-empt my actions” | Mother paras 75 to 78 |
| November 2011 | Father says whilst having a discussion with the Mother about visiting her parents the Mother becomes agitated, pulls his shorts, slaps him twice and calls him names in front of X | Father para 43 |
| February 2012 | Mother says her Father dies and that she is not allowed to stay at her Mother’s house and is forced to return to the Father’s home when she is still “actively grieving my father” | Mother para 31 |
| (omitted) 2012 | Y born (2 years) Mother says that whilst pregnant with Y the Father points to her stomach and says, “I hate the baby in your tummy” Mother denies that she has post-natal depression following Y’s birth and that she is referred to (omitted) Unit by the Father to help with sleep deprivation and to set a routine for the children | Father para 9/Mother para 6 Mother para 57 Mother paras 231 to 236 |
| 23 January 2013 | Mother says separation occurs Mother says that she moves to a rental unit in (omitted) and the Father moves to a unit at (omitted), Sydney | Mother paras 5, 98 and 308 Mother paras 98 and 111 |
| February 2013 | Father says he observes the Mother to become furious when X is refusing to eat food and to pull X’s clothes and scream at her resulting in X crying and running to him | Father para 63 |
| March 2013 | Father says that he and the Mother hire nanny, Ms V, to look after X and Y | Father para 64 |
| April 2013 | Mother says she hires a nanny, Ms V, after her Mother returns to India in April 2013 | Mother para 101 |
| Mid 2013 | Father says that he comes to the view the Mother’s physical and mental health is deteriorating and that the children’s development could be affected as a result. Father says that he forms the view that the only way he can persuade the Mother to get proper and adequate professional help is to return to India | Father paras 25 and 26 |
| May 2013 | Father says he “imitated” the Mother’s signature “in the application for our son’s passport” | Father para 29 |
| 7 May 2013 | Mother says that an email the Father alleges was sent by her was not written by her and that she believes the Father has manufactured the email to support his allegations that she suffers from mental ill health | Mother paragraphs 153 to 161 |
| 14 May 2013 | Mother says that the Father says to her that he wants her to go to Sydney and then India. Mother says she refuses to do so Mother says during an argument about purchasing a property the Father says to her words to the effect, “What is the difference between you and a prostitute as you are after my money”. Mother says that she is then physically assaulted by the Father digging his hand into her clavicles and pulling her by her clothes and necklace. Mother says her necklace breaks and that the Father restrains her for about half an hour. Mother says she tries to grab the telephone to call her brother but the Father will not allow her to move. Mother says the Father restrains her against the fridge and that he says words to the effect, “We should have sex now”. Mother says she has red marks on her neck as a result of the attack Mother’s brother, Mr M, says that he receives a telephone call from the Mother and that she subsequently sends him a photograph of bruises on her neck. Brother says that he advises her via email not to “enrage Mr Shan while I came up with something that would stop his abuses” | Mother para 87 Mother paras 89 to 91 Mother’s brother para 11 |
| 16 May 2013 | Mother’s brother says that he has a telephone conversation with the Father’s father and sends an email to the Father urging him not to physically abuse the Mother Mother’s brother says that he is threatened by the Father’s father during the telephone call | Mother’s brother paras 14 and 15 |
| 17 May 2013 | Mother says Father attends a medical practitioner after receiving an email from her brother on 16 May 2013 in which he alleges, “Difficulties with wife, wife engages in occasional self-harm activities, blames husband, possibly some depressive elements to her behaviour…” | Mother para 92 |
| 18 May 2013 | Mother’s brother says he receives an email from the Mother in which she details that the Father has physically abused her | Mother’s brother para 13 |
| June 2013 | Father says he activates bank accounts for the children and is depositing $400 every month in both accounts | Father para 135 |
| 21 June 2013 | Mother says Father text messages her to arrange to take the children on a day trip to (omitted) the following Monday (24 June 2013) and agrees to return the children by 3.30pm that day | Mother paras 113 and 114 |
| 24 June 2013 | Father says he “takes” the children to India having purchased three return tickets Father says that when he arrives in (country omitted) he telephones the Mother and tells her where the children are and where they are heading. Father says that he does not tell her he is leaving for India with the children because he does not want her to stop him Father says that after arriving in India he seeks legal advice and files and obtains interim orders granting custody of the children to him Mother says that she receives a text message from the Father which reads “no charge” Mother says she subsequently receives a phone call from a blocked number at 4.32pm by a man who identifies himself as “Mr J” and says that the Father cannot reach her, that the kids are fine, the Father plans to stay in (omitted) and will call her soon | Father paras 31 to 39 Mother paras 115 to 132 and 134 |
| 25 June 2013 | Mother says she seeks legal representation and is advised to seek legal representation in India which she does Mother says she receives a text message from the Father in which he alleges that the trip to India was planned Mother says that she had never agreed to travel to India and had no knowledge that the Father intended to take the children until he told her on the phone on 24 June 2013 Mother finds out from the Indian embassy that the Father applied for an emergency visa on 18 June 2013 and was granted the visa on 19 June 2013 | Mother para 133 Mother para 135 Mother para 136 |
| 27 June 2013 | Mother says she seeks advice from a solicitor, Mr N, who subsequently indicates that he assisted the Father in a property matter | Mother para 140 |
| 28 June 2013 | Mother says she receives a telephone call from Ms J of the All Women’s Police Station in (omitted) in which she is informed that the Father has made a complaint that she had taken the children away and that he wants to live with her in India | Mother para 142 |
| Late June 2013 | Father says the parties separate | Father para 7 |
| Late June 2013 | Mother says that she and her family receive death threats from the Father’s family after the Father removes the children from Australia | Mother para 58 |
| June 2013 | Mother’s brother says that he flies to India and during a telephone conversation with his elder brother’s father-in-law and the Father’s father about the “release of the children” he is threatened by the Father’s father | Mother’s brother para 17 |
| 1 July 2013 | Mother says she attends (omitted) Police Station | Mother para 144 |
| 3 July 2013 | Mother receives from the Australian Passport Office a copy of the application for Y’s passport showing her forged signature. Mother says she is informed the application was made on 10 May 2013 | Mother paragraphs 147 and 148 |
| 5 July 2013 | Mother says she receives a threat by the Father’s solicitor in India Mother’s says her Initiating Application is filed seeking urgent recovery orders in the Wollongong Registry of the Federal Circuit Court | Mother para 59 Mother para 145 |
| 8 July 2013 | Mother says she flies to India to attend the Madras High Court despite the death threats she has received | Mother para 166 |
| 10 July 2013 | Mother says she attends Court and is able to spend a few minutes with the children | Mother para 167 |
| 11 July 2013 | Mother says that she attends before the Court again and is instructed to attend marriage counselling with the Father Mother says that she is allowed to have Y live with her for a while, but X remains with the Father | Mother paragraphs 168 to 171 |
| 11 July 2013 | Mother’s Initiating Application filed in the Wollongong Registry of the Federal Circuit Court | |
| 30 July 2013 | Mother says that she attends the Family Court in Chennai after the Father files an injunction restraining her from taking the children from his care and for sole custody | Mother paragraph 173 |
| 6 August 2013 | Father says Indian High Court rules it is appropriate to allow Australia to decide upon custody and related issues and that the children should be returned to the Mother Mother says the High Court at Madras makes orders that the children (and their passports) be returned to her care and that the issue of which parent the children should live with/spend time with be left to the Australian Courts | Father para 40 Mother paras 175 and 176 |
| 7 August 2013 | Orders of Kemp J adjourning the matter to 4 September 2013 for mention | |
| 26 August 2013 | Mother’s brother says that the Madras High Court orders the Father to “hand over custody of the children as well as the passports … He did not comply with the passport order and it was necessary for us to commence proceedings for contempt of Court Orders to recover the children’s passports” | Mother’s brother para 25 |
| 4 September 2013 | Father says he “got carried away too far by all the legal tactics of my lawyers in India” and applies for special leave to the Supreme Court which is subsequently dismissed on 4 September 2013 | Father para 41 |
| 5 September 2013 | Orders of Scarlett J for the children to live with the Mother and spend time with the Father as agreed by the parties. Restraints imposed on the Father from removing the children from the Mother’s care and children’s names added to the Airport Watch List | |
| November 2013 | Father says Mother is seen by rheumatologist, Dr J and commenced on treatment for Takayasu Arteritis | Father para 54 |
| 8 November 2013 | Father’s Response filed | |
| 13 November 2013 | Orders of Kemp J (by consent) and orders for the appointment of an ICL | |
| 16 November 2013 | Mother says the Father commences spending time with the children for 4 hours supervised by Dr G Mother says that Dr G supervises time on a further two occasions and a family friend called D also supervises time on one occasion | Mother paras 192 to 197 |
| 6 December 2013 | Father commences spending supervised time with the children each week for 4 hours supervised by CareSouth | Father para 19 |
| 22 January 2014 | Father says he starts to pay child support | Father para 131 |
| 6 February 2014 | Orders of Altobelli J adjourning the matter to 18 March 2014 for interim hearing | |
| 18 March 2014 | Mother says that following her attendance at Court her brother calls her to indicate that there had been threats against the life of her family | Mother para 182 |
| 25 March 2014 | Father unable to spend supervised time with children due to undergoing/recuperating from surgery | Father para 20 |
| 2 April 2014 | Father unable to spend supervised time with children due to undergoing/recuperating from surgery | Father para 20 |
| 16 April 2014 | Mother says she is visited by a police officer from (omitted) Police who indicates he has received a complaint that the children’s nanny has allegedly been drinking whilst caring from them Mother says the police interview the nanny, Ms V, that evening | Mother paras 184 and 185 |
| 22 April 2014 | Father says he makes a formal report to (omitted) Police Station against the nanny, Ms V “concerning my children’s safety” | Father para 67/Mother para 187 |
| 24 April 2014 | Mother says that she is telephoned by the police who indicate that it is not considered necessary to come and see the nanny | Mother paras 188 and 189 |
| 6 May 2014 | Orders of Altobelli J releasing the report of Dr K sworn 1 May 2014 | |
| 13 May 2014 | Mother says that when X returns from spending time with the Father that she says the Father had said words to the effect, “Daddy said we are all going to Chennai”. Mother says that she understands from the supervisor that the Father had spoken to X in Tamil Mother says X is withdrawn and that she had spoken to “(omitted) and (omitted) today” | Mother paras 179 to 181 |
| 15 May 2014 | Father’s Amended Response filed | |
| 16 May 2014 | Orders of Altobelli J for the children to live with the Mother and spend supervised time with the Father not more than once each month from 10am until 2pm supervised by CareSouth or such other agency as agreed by the parties | |
| June 2014 | Father says he starts spending supervised time with children for 4 hours each month | Father para 21 |
| 13 June 2014 | Mother’s Amended Initiating Application filed | |
| 24 July 2014 | Orders of Altobelli J providing directions for final hearing | |
| 27 October 2014 | Father and Mother’s divorce application granted | Father para 8 |
| 28 October 2014 | Father pleads guilty at Downing Centre Local Court to a charge of give false/misleading information re Australian travel document and is ordered to give security in the sum of $1,000, be of good behaviour for two years and attend upon Dr A for counselling and/or treatment | Father para 30 |
| 1-4 December 2014 | Matter listed for final hearing (time estimate 4 days) |
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Jurisdiction
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Costs
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Remedies
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Procedural Fairness
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Appeal
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