Rangan and Chopra
[2007] FMCAfam 755
•28 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANGAN & CHOPRA | [2007] FMCAfam 755 |
| FAMILY LAW – Child aged 12 – presumption of equal shared parental responsibility – whether in child’s best interests or reasonably practicable for child to spend equal periods of time with each parent. |
| Family Law Act 1975 – ss.60CA; 60CC; 61DA; 65DAA |
| Applicant: | MS RANGAN |
| Respondent: | MR CHOPRA |
| File number: | DNM183 of 2006 |
| Judgment of: | Brown FM |
| Hearing date: | 18 September 2007 |
| Date of last submission: | 18 September 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 28 September 2007 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS
The parties have equal shared parental responsibility for the child of the marriage R born in 1995, hereinafter referred to as “the child”.
The child live with the mother.
The child spend time with the father as follows:
(a)During school terms on each alternate weekend from after school on Friday until 6:00pm the following Sunday;
(b)For half of each school period, the halves to be agreed between the parties and failing agreement to be the first half in 2007 and each odd ending year thereafter and the second half in 2008 and each even ending year thereafter;
(c)In the event that Father’s Day does not fall on a weekend which the child would otherwise spend with the father from midday until 9:00pm on Father’s Day;
(d)At any other times as may be agreed between the parties.
Each party to be at liberty to attend or visit the school attended by the child from time to time for events, activities or functions routinely attended by parents.
Each party to be at liberty to attend all sporting activities, in which the child is involved, which are routinely attended by parents.
The mother and father each keep the other informed of any major illness or accident suffered by the child when in his or her care and inform the other of the names of any medical practitioner attended by the child.
The parties be free to communicate liberally with the child by telephone at all reasonable times when he is in the care of the other.
The parties communicate information regarding the care arrangements for the child, including his sporting commitments and fixtures, his homework and other scholastic information, including piano lessons, details regarding the celebration of the festivals set out in orders 11 and 12 hereof and the times scheduled for parent teacher interviews by electronic emails.
The parties provide to the other at all times their respective residential and postal addresses and electronic contact details including contact telephone numbers, both mobile, home landline and work landline and email addresses and inform the other of any changes of those details within two days of such change.
In the event that either party wishes to take the child interstate within Australia during any holiday period when the child is with him or her that party shall give the other party fourteen (14) days notice in writing of such travel and provide the other with an itinerary of proposed travel including anticipated dates of departure and return and contact details for the child including details of telephone contact numbers.
In the event that the father wishes to spend the Indian Festivals of Ramanavami and Krishna Jayanti with the child and the child is not otherwise with him, he shall inform the mother of this in writing seven (7) days in advance of the festival. If such festival falls on a school night the mother will make the child available to have a meal with the father on each such occasion. If the festival falls on a weekend the child shall spend between 11:00am and 8:00pm on the day of the festival with the father.
In the event that the father wishes to spend the Indian festivals of Sankranti, Maha Shivratri, Diwali and Ganesha Chaturthi with the child and the child is not otherwise with him, he shall advise the mother of this in writing seven (7) days in advance of the festival. If such festival falls on a school night the mother will make the child available to the father to have a meal with him provided that the child did not spend the festival with the father in the year preceding. If the festival falls on a weekend the child spend between 11:00am and 8:00pm on the day of the festival with the father provided the child did not spend the festival with the father in the year preceding.
All other applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Rangan & Chopra is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM183 of 2006
| MS RANGAN |
Applicant
And
| MR CHOPRA |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Chopra and Ms Rangan are the father and mother respectively of S born in 1990 and R born in 1995.
These proceedings are concerned with arrangements for the care of R. S is in his final year at school. He plans to go to Canberra next year to study. He has provisionally qualified for a scholarship from the RAAF to assist him financially with his studies. Accordingly neither party seeks any formal orders in respect of S.
The parties married in India in 1989. They immigrated to Australia in 1992 and came to Darwin about two years later.
The parties finally separated in November of 2005. At this stage, Mr Chopra left the parties’ former family home at Lxxx. He has been living in rented accommodation in the period since.
On 8 May 2006, Dr Rangan commenced proceedings in this court. At that stage, she sought orders only in respect of the division of matrimonial property. Mr Chopra responded to this application on 1 June 2006. At this stage, he sought orders that would allow him to spend “substantial and significant time” with R. He also sought orders in respect of property.
On 1 August 2006, I was required to determine interim arrangements for the care of the two children, particularly R. I determined that the two children should live predominantly with Dr Rangan and that S should spend time with his father at times to be agreed.
More importantly, I decided that R should spend time with his father on alternate weekends and overnight on each Wednesday during school terms and for some other periods during school holidays. At this stage, I decided that the presumption of equal shared parental responsibility was not rebutted.[1]
[1] See Ramakrishna & Chondur(N0. 1) [2006] FMCAfam 412
Mr Chopra has changed his position. He now seeks orders that would see R living with him and the mother in what is commonly called a shared care arrangement, moving between his and Dr Rangan’s households on a week about basis.
Dr Rangan opposes such an arrangement. It is her position that the current arrangement is not working well, particularly the mid week overnight period, which currently runs from 6.00pm on Wednesday until school recommences the following Thursday. She proposes that R should spend time with his father on alternate weekends, during term time, as well as for fixed periods during school holidays.
Mr Chopra believes that an equal time arrangement is in R’s best interests because it will ensure that he has the most meaningful relationship possible with his father. Mr Chopra has deposed that he wants to be as involved as possible with R and to be able to provide him with a positive male role model.
In his view, this will become more important from next year onwards, when S moves to Canberra. Mr Chopra also wishes to be as involved as much as possible in R’s education and other extra-curricular activities, particularly cricket. R is a gifted cricketer.
Dr Rangan does not believe that an equal time arrangement would be in R’s best interests. She believes that Mr Chopra has not as yet come to terms with the emotional consequences of the end of the parties’ marriage.
As a result, he has a propensity to criticise her openly to R, particularly in terms of the financial consequences of the end of the marriage between the parties. She believes that this is emotionally detrimental to R and creates a burden for him, which he cannot easily bear, given his tender years.
It is common ground between the parties that they do not currently communicate well. In such circumstances, Dr Rangan does not believe that the parties will be able to make a shared parenting regime work for R. In addition, she does not believe that, notwithstanding his professed intentions, Mr Chopra is capable to commit, for the long term, to the rigours such a regime would inevitably entail.
In order to assist the court in determining this matter, a family report was prepared. The report was prepared by Ms Helen Pavlin, an experienced social worker, who has an extensive background in working in the court system, advising on issues to do with children’s views and their relationship with their parents.
Ms Pavlin does not support a shared care arrangement for R. She is concerned that Mr Chopra is likely to become emotionally dependent on R to sustain him following the end of the parties’ marriage. She is concerned that R will become an “emotional care-taker” for his father and this is likely to be psychologically damaging for R.
Of equal importance to Ms Pavlin is her concern that Mr Chopra is currently incapable of hiding his negative view of the mother from R and has said things to him, about Dr Rangan, which are highly inappropriate.
In short, Ms Pavlin believes that Mr Chopra needs to be better adjusted to the end of the parties’ marriage, before any consideration is given to the time R spends with his father being extended.
However, at the same time, Ms Pavlin endorses the strength and importance of the relationship between R and his father. Ms Pavlin believes that this relationship needs to be preserved, in what she sees as currently difficult circumstances. She supports the court making orders which will create a structure which supports and respects this paternal relationship but does not subject it to excessive stress.
In time, Ms Pavlin believes that R will be happy to spend time with his father, once Mr Chopra has moved on in his reaction to the end of the marriage. However, at present, she believes that R is coming hesitantly to spend time with his father and out of a sense of duty to him.
It is inherent in Ms Pavlin’s opinion that she believes that any extension of the current arrangement will add to R’s sense of emotional burden and so cannot be justified as being in his best interests. Accordingly, Ms Pavlin recommends the maintenance of the current status quo.
Background
The father was born in 1960. The mother was born in 1965. Both have tertiary qualifications. The father is currently is employed as a research officer by a Northern Territory Department.
The mother is a university lecturer. Currently, she is a lecturer at a University.
The family has lived in Darwin since 1994. Both parties have significant family connections in India. The father’s father in particular lives in India. He has been diagnosed with cancer. He requires medical treatment. The father is assisting with the payment for this treatment, which is a significant financial burden for him.
The cultures and traditions of India are important to both parties. Although, both are well educated, sophisticated and acculturated individuals, it is my view that there are significant cultural factors at play in this case.
As Ms Pavlin noted, the parties are products of a culture which expects marriages to last for life. Accordingly, the end of the marital relationship between the parties was of enormous significance to them both and unleashed powerful emotions, which still reverberate, particularly for the father.
The parties were able to resolve the property issues between them by way of a consent order, which was made by the court on 27 November 2006. Mr Chopra transferred his interest in the parties’ former family home to Dr Rangan. In return, he received a payment of $30,000.00. He is also entitled to receive a further payment of $18,000.00, in around five years time.
It is Mr Chopra’s position, which I accept, that he compromised the proceedings in order to ensure that the mother and children were able to retain the family home, particularly so that S and R should maintain a sense of stability, so far as their living arrangements were concerned. However, up to this stage, he has not been able to purchase alternative accommodation for himself.
Until around the middle of this year, he was living in a share house, near to the children’s school. More recently, he has been forced to move to other accommodation in Pxxx, which he shares with a friend. It is Mr Chopra’s plan to seek either property to rent or buy, which will be nearer to Dr Rangan’s home and R’s school. However, it is his position that his budget is limited and such a property has been difficult to find. Dr Rangan challenges Mr Chopra’s commitment to this plan.
Currently, the mother is sharing her household not only with the children concerned but also with her brother, Mr N. He is 29 years of age and has lived in Australia since around 2001.
Like S, R and indeed Mr Chopra, Mr N shares a passion for cricket. He has been driving the children to and from cricket matches and practice from time to time. He was interviewed by Ms Pavlin for the purposes of the family report, but did not give evidence in the proceedings before me.
Mr Chopra has been assessed to pay child support in respect of the children. He estimates his annual income as being around $69,000.00. He pays child support of $498.00 per fortnight. His other major expense per week is rent of around $100.00 per week. He describes himself as an indulgent parent, who provides pocket money to the children to compensate them for not having as much time with their father as he believes is appropriate.
R is in his final year of school at Lxxx Primary School. Next year, it is expected that he will go on to middle school at Dxxx High School, as S did..
R is described by both his parents as being a reserved child. He is doing well at school, particularly in regards to mathematics and science. His mother has some concerns about his writing. R is also a gifted cricketer. He currently plays cricket on most weekends. In the off-season, he plays indoor cricket. Cricket training takes up at least two afternoons a week. R also learns the piano.
At present, Mr Chopra works fulltime. He works from around 8.30am to 5.30pm on Mondays to Fridays. It is his position that, if the court endorses his shared care proposals, he will be able to leave work earlier to ensure that R meets his extra-mural commitments.
Dr Rangan is dubious regarding this undertaking. She deposes that her working hours are more flexible and she is able to work them around R’s sporting and scholastic activities. She concedes that she may from time to time wish to attend conferences both interstate and sometimes overseas. However, it is her position that these conferences will almost certainly be held to coincide with school holidays and she will make arrangements for the children to be cared for by their father or some other appropriate adult. Mr Chopra does not accept this assertion.
It is common ground between the parties that S is a self-assured teenager, who has no difficulty making friends and expressing his opinions. He has made it clear to both parties what he believes are the appropriate arrangements for him to spend time with his father. It seems clear that, from Mr Chopra’s perspective, S has not spent as much time with him, as he would have wished. However, given S’s age and strong views, he does not wish to force the issue, so far as S is concerned.
It is the overall flavour of Mr Chopra’s case that he believes that Dr Rangan has both subtlety and directly attempted to influence both children to have a negative view towards him. Given R’s age, at the present time, he is particularly concerned that R may lose his paternal relationship, if the court does not take immediate steps.
Dr Rangan does not accept this. It is her position that she strongly supports R having a relationship with his father, so long as it can take place in an emotionally safe environment and Mr Chopra is willing to commit to it for the long term.
In this regard, it is common ground between the parties that Mr Chopra has not fully utilised the time with R, which is potentially available to him as a result of the orders of 1 August 2006. He has not utilised the overnight Wednesday period regularly, since moving to Pxxx. It is also the position that he has returned to R to his mother, on weekends, when he has had other commitments.
To her credit, Dr Rangan has been willing to accommodate these changes and there has been some flexibility about the current arrangements. Although, it is also the case that both parties accuse the other of being inflexible and putting their own emotional needs before those of the children.
There have been disputes between the parties regarding how R should spend special occasions, particularly Father’s Day. Mr Chopra has felt excluded from these occasions. Having heard some evidence about Father’s Day, both in 2006 and 2007, I am satisfied that the failure of Mr Chopra to spend time with the children on these days, is largely a result of miscommunication between the parties and the expectation that R could carry information about the necessary arrangements between his parents. This has miscarried.
The parties, and so the children themselves, are heirs to a rich Hindu tradition. Accordingly, there are a number of Indian festivals, which are of importance to the parties. Neither party alluded to them specifically in their affidavit material or applications. However, I arranged for them each to mark a calendar of Indian festivals with the ones which are significant to each of them.
The parties agreed that, in future, it would be useful for them to communicate with one another, about arrangements for R via email. Both have access to computers, as indeed does R. The use of written communications would avoid conflict between the parties. It is Dr Rangan’s evidence, which I accept, that Mr Chopra finds it difficult to communicate civilly with her, when the two speak directly.
The evidence
This is not a case which depends on findings of credit. Both parties are devoted parents and honest citizens. I am satisfied that both focussed in their evidence on what they thought was the best outcome from R’s point of view. I do not think that either party has adopted the positions, which they have, for any other reason than they each think it will be the best outcome for R.
Mr Chopra acknowledges that he is an emotional person. He also candidly said that he had been angry with the mother in the past and had used inappropriate language towards her. These emotions have come about because of his feelings of attachment to Dr Rangan.[2]
[2] See father’s affidavit filed 3 January 2007 at paragraph 27
However, it was Mr Chopra’s evidence that he was now capable of putting his emotions behind him and focusing on the children’s best interest. Although it is likely that Mr Chopra has made some progress, in my assessment, he is still some way from being fully resolved in his emotions towards his former wife.
I reach this view for the following reasons. Firstly, it is Ms Pavlin’s opinion, which I accept. Secondly, Mr Chopra asked Ms Pavlin why this was her view and he reacted extremely to what she told him in answer to his question. His response confirmed the accuracy of
Ms Pavlin’s note taking and demonstrating his powerful feelings.
Out of deference for Mr Chopra’s feelings, Ms Pavlin had not enumerated every aspect of her discussions with Mr Chopra, about his current level of emotional functioning. At Mr Chopra’s invitation, she read from her notes, the things he had told her.
This recounting caused Mr Chopra to break down too such a degree that the proceedings had to be adjourned. The level of Mr Chopra’s distress was extreme. I have little doubt that Mr Chopra currently finds it difficult to both hide his feelings and function well emotionally. This is no criticism of him. It is however a circumstance highly relevant to R’s well being.
Dr Rangan has an assertive manner. She struck me as being well organised and assured. It is undoubtedly the case that she has come to terms with the end of the parties’ marriage. It was she who petitioned the court for a divorce order. An application which was opposed by the father, although granted by the court on 20 March 2007.
On the other hand, Mr Chopra is not well organised. Although I accept that his financial difficulties are extreme, he has not as yet been able to obtain reliable and permanent accommodation for himself. It was my impression that his plans are fluid. In particular, until recently, he was investigating the possibility of moving to live in Canberra.
Mr Chopra continues to maintain a significant level of grievance against Dr Rangan for ending the marriage and personally humiliating him. Although, he agreed to the property orders, on the basis that they were likely to serve the best interests of S and R, he remains aggrieved at their financial consequences for him.
In this regard, it is of concern to me that Mr Chopra indicated to Ms Pavlin that a shared care arrangement would “wipe out child support” and enable him to get on his feet financially.[3] In addition, I am concerned at several comments, which Mr Chopra acknowledges he made to the children, which Ms Pavlin recorded in her notes, but again, out of deference for the parties’ feelings, did not record in her report.
[3] See family report at paragraph 20
These comments included reference made to the children that
Dr Rangan would come back from a conference she attended with a “step-dad” for the children and a comment he made to S that the mother had given him a divorce as a present for his seventeenth birthday.
Ms Pavlin considered these comments as highly inappropriate, as do I. Ms Pavlin went so far as to say they could amount to child abuse. Regrettably, I am not persuaded that these are isolated incidents. The father seemed to me to be both emotionally vulnerable and volatile.
The proceedings before me occupied about a day. Neither party was represented. This was regrettable but it enabled me to see each of the parties, without the filter of a legal representative. It was highly regrettable that former partners should be required to cross-examine each other in what can only be described as volatile circumstances.
The cross-examination quickly took the form of an argument between the parties, in which they exchanged mutual recriminations.
Dr Rangan often interrupted Mr Chopra. The cross-examination served little purpose, other than to show how poorly the parties communicated.
However, notwithstanding these significant criticisms, both parties acknowledged that R loved the other parent concerned and was loved in return. Mr Chopra acknowledged that Dr Rangan was a devoted and competent parent.
Dr Rangan deposed that she wanted R to have a good relationship with his father and believed that he needed a strong male role model, which Mr Chopra was best placed to provide. However, Dr Rangan’s assertive personality and the obvious fact that she has come to terms with the end of the parties’ marriage has the propensity to cause
Mr Chopra great emotional distress. It cannot be Dr Rangan’s responsibility to tend to Mr Chopra’s emotional feelings. He perceives this disinterest in him as disdain and exclusion, particularly so far as R is concerned.
For her part, Dr Rangan has no time for Mr Chopra’s feelings and is often frustrated by what she perceives as Mr Chopra’s unreliability. She forcefully gets on with things and can see little point in consulting with Mr Chopra, particularly, as from her perception, this is likely to end in an argument.
Family reports are often central in assisting the court to reach an appropriate outcome in proceedings involving children. Report writers have an advantage, which the court does not. They are able to see the parties interacting with the children concerned and inform impressions of the nature of child/parent relationships in a first-hand setting.
Ms Pavlin’s impressions of the parties accorded with my own. She was concerned at the possibility of R being placed in a position where he was his father’s only source of emotional support. She considered that this had the potential to be extremely detrimental to R’s emotional development and so not in his best interests.
In these circumstances, I accept Ms Pavlin’s view of the family dynamic in this case. In my view, her family report was thorough and well considered. There can be no doubting her extensive experience in the field. I accept her recommendations.
One potential criticism of Ms Pavlin’s report is that she did not directly ask R what his preferences were, so far as his living arrangements were concerned. In a joint conference with the children, S took the lead and indicated his opinion to Ms Pavlin that Mr Chopra needed to resolve his issues with their mother, find himself suitable accommodation for himself, near to where R lived, before giving any consideration to extending the time he spent with R.
S further indicated that he felt he had to speak up on R’s behalf because of his (R’s) reticent. S proffered the opinion that Mr Chopra’s proposal of a 50/50 arrangement, in Pxxx, where R did not know anyone was “ridiculous”.[4]
[4] See family report at paragraph 22
Ms Pavlin took R’s silence for agreement. In addition, at a later stage, Ms Pavlin asked R an open-ended question as to whether he had anything further he wished to say to her. R elected not to reply. I accept R is an introspective child, who internalises many of his emotions. However, I do not think that it can be said that Ms Pavlin has not attempted to canvas his views. In my view, she did so in a way which was sensitive to the difficult circumstances prevailing.
The legal principles to be applied
The service of R and S’s best interests is the most important consideration in the outcome of this case [Family Law Act 1975 section 60CA].[5] The aims and principles of the Part of the Family Law Act 1975 [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child.
[5] References hereafter in [ ] are to the Family Law Act 1975
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their children [section 61DA]. In this case, I applied the presumption at the interim stage.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him to family violence. The present case is not one which involves allegations of family violence or abuse.
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility. In this case, both parties seek that an order for equal shared parental responsibility be made. In my view, notwithstanding the obvious difficulties between the parties, it is appropriate that such an order be made.
In addition, Dr Rangan conceded that the parties should have joint responsibilities for making decisions concerning all major long-term issues to do with the children [section 4]. These matters are likely to relate to R’s education; health; and religious and cultural upbringing. At this stage, there are no major issues in contention between the parties in respect of these issues.
The presumption itself does not determine the extent of time the children concerned spend with each of their parents. This is determined by section 65DAA. The court is required to consider firstly whether the children should live with their parents for equal periods of time and if this is not considered to be either likely to be in the children’s best interests or reasonably practical, the court is then required to consider the children living with each of their parents for “substantial and significant” periods of time.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
In this case, issues of abuse and family violence do not arise. Accordingly, the issue of the desirability of R having a meaningful relationship with both his parents comes to the fore. Mr Chopra points to this consideration and the general theme of the legislation in support of his application for a shared care arrangement for R. It is implicit in his position that he sees this as the optimal outcome for R.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
R’s best interest – the section 60CC matters
a) The primary considerations
This is not a case involving specific allegations of family violence, neglect or abuse, although Dr Rangan does assert that a shared care arrangement is likely to have the potential to cause R some significant level of emotional distress. Accordingly, the court is required to give significant consideration to the benefit of R having a meaningful relationship with both his parents. In this context, the use of the word “meaningful” is interesting.
The emphasis in the legislation is not only the quantity but also the quality of time the child concerned spends with each of his parents. This follows from section 65DAA and the definition of “substantial and significant time”. It is time which falls on weekends and holidays, as well as during the week. It is time which is defined as including that which would enable a parent to be involved in the child concerned’s daily routine and occasions and events that are of particular significance to him or her [section 65DAA(3)].
If the presumption of equal shared parental responsibility is not rebutted, the court is required to consider first the children concerned spending equal time with both their parents, if this is both likely to be in the children’s best interests and reasonably practicable. If equal time is ruled out, then the court is required to consider “substantial and significant time” [section 65DAA(1) & (2)].
The implication of the legislation is that children benefit if their parental relationships are given depth and dimension by being able to interact with their parents in a variety of roles and settings, which are not artificially confined to either weekdays or weekends and school holidays.
As I indicated in the reasons for judgment of 1 August 2006, the rationale behind my decision to allow Mr Chopra to spend overnight on Wednesday with R was to allow him to be involved in R’s life on a school night. I hoped that this would allow him to be involved in the supervision of R’s homework and also the more mundane aspects of his life. At that earlier stage, Mr Chopra did not seek an equal time arrangement.
I am satisfied that R has a meaningful level of relationship with his father. It is clearly currently not the optimal outcome, which the legislation recognises. The central issue in this case is whether it is likely to be in R’s best interests for the court to attempt to imbue this relationship with more meaning by extending the time R spends with his father. Or whether, on the other hand, such an extension will not be in his best interests because of the psychological consequences which will flow from it.
It Ms Pavlin’s opinion, with which I agree, that R’s relationship with his father needs to be maintained in an emotionally safe framework. She does not believe that Mr Chopra will be able to provide for R’s needs in a meaningful way, until he is able to cope with his own emotions.
Ms Pavlin believes that the shared care arrangement could only come about at a cost to R’s own emotional and developmental needs.[6] I agree. There was ample evidence led before me to indicate that
Mr Chopra is not currently coping emotionally. I do not believe that he is currently able to provide R with the optimal level of relationship, which a shared care arrangement envisages and requires.
[6] See family report at paragraph 33
b) Additional considerations
There is nothing to indicate that R is in favour of the shared care arrangement [section 60CC(3)-(a)].[7] The only proponent for the arrangement is Mr Chopra himself. Although Dr Rangan has a forceful personality and no doubt has some influence on R, I do not think that she is currently attempting to shape R’s views. I accept she wants R to maintain his paternal relationship, provided it does R no harm.
[7] Subsequent references in [ ] are to the various criteria provided by s.60CC(3)
S has elected not to spend extended periods of time with his father. I accept that R is somewhat resentful that he is not accorded the same latitude because of his more junior status. It does seem to be the case that R is spending time with his father because of a sense of responsibility. I am concerned that this may in time translate into “emotional caretaking”. In my view, there is nothing to indicate that R is in favour of spending significantly more time with his father.
R has a significant relationship with both his parents and with S [(b)]. However, since the parties separated, and on Dr Rangan’s case this was significantly before their physical separation in November of 2005, the father has been emotionally absent from the children and has left their primary care to her. Certainly, it seems to be the case that she has done significantly more of the “nuts and bolts” parenting for the children, with the assistance of her brother.
Mr Chopra is concerned that when S goes to Canberra, next year, R will be emotionally isolated and more in need of guidance from him. This may be so. Obviously the two brothers are very close indeed. However, I do not consider that it is a significant factor in favour of the proposed shared care arrangement.
Mr Chopra is highly critical of Dr Rangan’s willingness to facilitate a close and loving relationship between him and the children [(c)]. I do not accept that this is the case. Although Dr Rangan is not currently well disposed towards Mr Chopra, she did not strike me as a bitter person. Certainly, I do not think that she would utilise either child against their father, to satisfy her own emotional needs. I am satisfied that she does want R to have a worthwhile relationship with his father. However, at times, she looses patience with what she sees as his unreliability and emotional neediness.
To Mr Chopra’s great credit, he has made considerable financial sacrifices to maintain the children. He regularly ensures that child support payments are made. However, in my view, he has been unable to hide his bitterness from the children, at the obvious adverse implications of the parties’ separation for him, in a financial sense. This is not likely to help him to foster easily a strong relationship between the children and their mother.
R has not been separated from his father, for any significant period of time since the parties separated, apart from an extended visit to India at Christmas time. He is not likely to be separated from his father in the foreseeable future. However, the father’s proposal for his care represents a significant change of circumstances for him [(d)]. For the reasons provided, I am not satisfied that such a change of circumstances is likely to be in R’s best interests at this stage.
Ms Pavlin hoped that R would be able to spend more time with his father in future, once his father had come to terms with the end of the parties’ relationship. Dr Rangan also expressed a hope that R would naturally want to spend more time with his father in future. She indicated that she would not stand in the way of such an arrangement.
In the difficult circumstances of the parties, I do not think that a shared care arrangement can be forcefully brought into play by court fiat. One size does not necessarily fit every family and, in considering the applicable section 60CC(3) criteria, the court is required to take an individual approach to each case.
The parties are well educated people, who each hold responsible positions. Clearly, they are focussed on R and S achieving their optimal educational potential. S’s achievement in obtaining a scholarship with RAAF is to their mutual credit. They must be very proud of him. In addition, they have both ensured that R pursues his cricketing interests.
At present, in addition to his cricket, R is learning the piano. He has a piano at his mother’s home. He also has a computer. At this stage,
Mr Chopra is not able to provide him with a piano or a computer. However, he indicated that he would rectify these deficits, if orders were made for R to live with him on an equal basis.
I am satisfied that both parties are devoted to ensuring that R’s educational and intellectual needs are met [(f)]. I am however concerned that Mr Chopra is not currently well placed to provide for R’s emotional needs. I accept Ms Pavlin’s evidence that it is potentially very detrimental for R to feel that he is his father’s only confidant, given his (Mr Chopra’s) isolated and somewhat bitter presentation. This is a major factor which militates against the shared parenting regime.
As I have already indicated, R is heir to a rich cultural and religious tradition [g]. Both parties observe significant Hindu celebrations, particularly the Festival of the Lights (Diwali); Ganesha Chaturthi; Sankranti and Maha Shivratri. Many of these celebrations include the preparation of special foods, which are shared with family and friends.
Mr Chopra feels unhappy that he has not been able to prepare food for his children on any of these special occasions. In the Australian context, these festivals are difficult to celebrate, particularly when they fall on weekdays. In this case, I am not in a position to find that one or other of the parties is better able to accommodate the children’s cultural traditions. Both seem to me to be equally committed.
In my view, it is more important that the court makes arrangements to facilitate the children spending these important religious festivals with each of their parents on a roughly equal basis. The parties need to be encouraged to exchange information about these festivals and their respective plans in regards to them. The best means seems to be electronically. Accordingly, arrangements can then be made for the children to celebrate these occasions, without the possibility of conflict occurring between the parties.
I found Dr Rangan to be an impressive parent. She is obviously a high achiever and a positive role model for the children, who each seem to have a scientific bent, as she does herself. Mr Chopra also has much to offer the children. I accept Mr Chopra’s view that it is important that R have a positive male role model.
The court is required to consider the outcome which is least likely to lead to the institution of further proceedings in relation to R [l]. The level of conflict between the parties has been high. Inevitably therefore, the prospect of further litigation must be high, whatever is the outcome.
Mr Chopra said that for a shared care arrangement to work, it would have to come “from the heart”. At this stage, Dr Rangan would not be able to put her heart into such an arrangement. In all the circumstances of this case, at this point to impose the shared care arrangement in the hope that it will somehow or other work out, is an outcome which will quite probably lead the parties back to court.
In my view, the best prospect of avoiding future litigation is to allow Mr Chopra time to regain his emotional equanimity. During this period, it is important that he maintains his relationship with R. If those two preconditions are met, it seems likely that the relationship between the two will grow and R will start to spend more time with his father. This is the outcome recommended by Ms Pavlin.
Considerations of practicality
Dr Rangan lives with R in Lxxx. It is close to his school, cricket club and piano teacher. Mr Chopra is living in Pxxx.
When compared to distances in large metropolitan centres, like Brisbane and Sydney, the distance between Pxxx and Lxxx is not very great, particularly given that the road connections between the two centres are comparatively uncongested.
However to R himself, who is only ever lived in Darwin, the distance seems great. Mr Chopra himself has deposed to his plans to move closer to Lxxx. My impression is that his plans are still some way away from fruition. Mr Chopra has a car but, due to mechanical and financial considerations, he is currently utilising public transport.
The parties do not communicate well. Every verbal interaction between them has the potential to end in argument. R has a complex regime of sporting and extra-mural activities. He has to be dropped off and picked up at cricket matches; cricket training; piano lessons; and no doubt has to attend other social activities. At this stage, I do not think that the parties have a sufficiently empathetic relationship to deal with the myriad issues, which will inevitably arise as a consequence of R living in two homes.
However, above all, my greatest concern, about a shared care arrangement, is its potential emotional impact on R. I accept Ms Pavlin’s assessment that currently Mr Chopra is not currently emotionally robust enough to be able to fulfil a role of co-parent. I am concerned that he aspires to this role to satisfy his own emotional needs rather than R’s. In all the circumstances of this case, I do not think that a shared parenting regime is either in R’s best interests or reasonably practicable.
Having ruled out a shared care arrangement, I am then required to consider an arrangement whereby R spends substantial and significant periods of time with his father. The present orders envisage Mr Chopra spending a mixture of weekend time; holiday time and one overnight weekly period with R.
Ms Pavlin recommends that the current status quo, so far as orders are concerned, should continue. It is far short of a shared care regime. It does however roughly equate with “substantial and significant time” allowing as it does Mr Chopra to spend school holidays; alternate weekends and one night per school week with R.
Dr Rangan wishes to remove the Wednesday night, during the school year. Mr Chopra is not currently taking the evening because of his transport difficulties, as a result of moving to Pxxx. Dr Rangan previously believed that such a routine was unduly disruptive for her and R. She strongly opposed this regime, at the interim stage.
However, to Ms Pavlin, Dr Rangan indicated that she and R had got used to the Wednesday night arrangement and the alternative weekends, particularly whilst Mr Chopra was living in Lxxx.[8] However that seems to have changed now Mr Chopra has moved.
[8] See Family Report at paragraph 13
It is also the position that Mr Chopra has, on occasions, cut short his weekend periods with R, particularly when he has other commitments. Overall, it seems that Ms Pavlin was impressed with Dr Rangan’s flexibility and willingness to fit in with Mr Chopra and his needs. The fact remains Mr Chopra has not fully utilised the current regime.
Dr Rangan has accepted this, albeit sometimes resentfully.
My impression of Dr Rangan is that her flexibility is not a bottomless resource. However, in what are undoubtedly very difficult and volatile circumstances, she has ensured that R has maintained his relationship with his father. As I say, in my view, there is nothing to indicate that she is standing in its way.
Although Mr Chopra wants to spend more time with R, he has also wished to do things, which help him to come to terms with his current level of distress. At times, he has placed his other commitments before spending time with R. I am not critical of him for that. These things are important. But it is difficult to justify a regime which is not being fully used.
I am in two minds as to the Wednesday night arrangement. Dr Rangan concedes it has worked in the past. However, it is not working now. If Mr Chopra moves, it may be reinstated.
On balance, I have come to the conclusion that considerations of reasonable practicality at present dictate against the Wednesday night arrangement. Given R’s extra mural commitments; Mr Chopra’s hours of work; and transport difficulties; I do not think that the arrangement is currently workable. Certainly it is not working now due to
Mr Chopra’s change of address. It seems unclear if and when he will move closer to Lxxx.
Accordingly, I propose to modify the existing orders by removing the overnight Wednesday period. However, Ms Pavlin recommended that the orders should contain a clause that authorised R to spend time with his father at other times as his parents might agree from time to time. In her view, this would permit “family members to continue to operate with the degree of functional flexibility that has characterised arrangements for R to date.”[9] If Mr Chopra moves closer, the arrangements can be changed organically. A situation to which both parties aspire and in which R is likely to be instrumental.
[9] See Family Report at paragraph 39
The parties agree that the school holiday periods should be divided in such a way that R spends approximately equal periods of them with both his parents. In all the circumstances, I am satisfied that this outcome, at the present time, is the one likely to serve R’s best interests. It will enable him to maintain a meaningful level of relationship with his father but also protect him from potential emotional harm.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 28 September 2007
0