Russell and Russell

[2012] FamCA 99

FAMILY COURT OF AUSTRALIA

RUSSELL & RUSSELL [2012] FamCA 99

FAMILY LAW –  CHILDREN – Final parenting and child orders – Sole parental responsibility order – Rebuttal of presumption of equal shared parental responsibility – Overseas relocation to India – Appropriate travel arrangements – Time spent and holiday time orders – Family violence and intervention orders – Impact of family violence on wife and child and outcome of proceedings – Legal principles of allegations of domestic violence and abuse – Legal principles on parental responsibility – Overseas relocation cases and principles – Protection visas and permanent residency visas – Court proceedings in India – Payment of dowry and alleged breach of Indian statute law – Observation of witnesses – Standard of proof – Evaluation of proposals including relocation proposals – Findings of credit upon evidence of parties – Evidence of family consultant and orders proposed by Independent Children’s Lawyer – Examination of evidence otherwise provided for other purposes to police and Commonwealth Department of Immigration and Citizenship – Application to strike out paragraphs in affidavit evidence obtained in breach of Federal Legislation (Telecommunications (Interception and Access) Act 1979 (Cth)) – Assessment of best interests of child – Consideration of primary and additional considerations – Assessment of s 60CC(4) and (4A) issues – Maintenance and ancillary orders and specific issues orders – No order as to costs.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), (3), (4) and (4A), 61DA, 65DAA, 65Z, 69ZT, 72, 74, 75, 75(3), 117
Evidence Act 1995 (Cth) ss 138 and 140
Telecommunications (Interception And Access) Act 1979 (Cth) ss 6, 7, 8, 63, 76A, 77, 105
The Dowry Prohibition Act 1961
Family Law Rules 2004 – Rule 19.04
Family Law (Child Abduction Convention) Regulations 1986

Amador & Amador (2009) 43 Fam LR 268
Blanch & Blanch & Crawford (1999) FLC 92-837; 24 Fam LR 325
Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at P313
In re J (a child) (FC) [2005] 2 WLR 14; [2006] 1 AC 80
Qantas Airways Ltd v Gama (2008) 247 ALR 273
Johnson & Page (2007) FLC 93-344, at 81,891
Hardie & Capris [2010] FamCA 1046
Chappell and Chappell (2008) FLC 93-382
MRR v GR (2010) 240 CLR 461 at 464 to 465
Cowley & Mendoza (2010) 43 Fam LR 436; [2010] FamCA 597
Lansa v Clovelly [2010] FamCA 80
Starr and Duggan [2009] FamCAFC 115
McCall & Clark [2009] FLC 93-405
Taylor & Barker (2007) FLC 93-345 ; (2007) 37 Fam LR 461
Sealey & Archer [2008] FamCAFC 142
Mallahan & Mallahan [2010] FamCA 631
Farleigh & Wills & Ors [2011] FamCA 431
AMS & AIF (1999) 199 CLR 160 (see also U v U (2002) 211 CLR 238)
Malcolm & Munroe & Anor (2011) FLC 93-460
Tanner & Tanner [2011] FamCA 476 at paragraphs 179 – 183
Hazan & Elias (2011) 45 Fam LR 475
LGM & CAM (2011) FLC 93-481
Parker v Comptroller-General of Customs (2007) 243 ALR 574

APPLICANT: Mr Russell

RESPONDENT: Ms RUSSELL

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8378 of 2010

DATE DELIVERED: 7 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 16, 17, 18,19 and 27 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ambrose

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Ms Devine

SOLICITOR FOR THE RESPONDENT: Lampe Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ramsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Agricola Wunderlich & Associates

INDEX

ORDERS
Mr Russell
REASONS FOR JUDGMENT

ISSUES
POSSIBLE OUTCOMES SOUGHT AND EVALUATED
ORDERS SOUGHT
AFFIDAVITS RELIED UPON
WRITTEN SUMMARY SUBMISSIONS
BACKGROUND HISTORY
FAMILY VIOLENCE / INTERVENTION ORDERS
LEGAL PRINCIPLES – ALLEGATIONS OF DOMESTIC VIOLENCE AND ABUSE

VISAS
COURT PROCEEDINGS IN INDIA
OBSERVATION OF WITNESSES
STANDARD OF PROOF
FAMILY LAW ACT 1975 (Cth) – RELEVANT SECTIONS
LEGAL PRINCIPLES – PARENTAL RESPONSIBILITY
LEGAL PRINCIPLES – INTERNATIONAL RELOCATION AND PARENTING
SECTION 60CC(2) AND (3) CONSIDERATIONS
SECTION 60CC (4) AND (4A) OVERVIEW

HUSBAND
HUSBAND’S MOTHER

WIFE
STATUTORY DECLARATION – CROSS EXAMINATION OF WIFE
FINDINGS OF CREDIT
THE CHILD T
MS N
LACK OF COMMUNICATION AND TRUST BETWEEN PARTIES
FAMILY CONSULTANT
STRIKE OUT APPLICATION – PARAGRAPHS 67, 68 AND 69 OF HUSBAND’S AFFIDAVIT
PARENTAL RESPONSIBILITY
SECTION 60CC (2) AND (3) OVERVIEW
FINAL EVALUATION OF ALL PROPOSALS
AIRPORT WATCH LIST ORDER

COSTS

ORDERS

IT IS ORDERED:

1. THAT all previous parenting and child orders of the Family Court of Australia and the Federal Magistrates Court be discharged (save for the Airport Watch List Order which shall continue until 9 April 2012.

2. THAT the wife be granted sole parental responsibility for the child H Russell born … August 2008 (“the child”), and who is known by his parents as T.

3. THAT the child live with the wife.

4. THAT the wife be authorised and permitted to remove and relocate the child from the Commonwealth of Australia on or after 10 April 2012 for the purpose of returning him to and living in J, India.

5. THAT pending the child’s departure from the Commonwealth of Australia the husband continue to spend time with him on each weekend between the hours of 10.00 a.m. Saturday and 5.00 p.m. Sunday (inclusive) and with the collection and return venue to remain at the B Contact Centre, Melbourne or such other more convenient location as may be mutually agreed in writing between the parties.

6. THAT subsequent to the relocation of the child from Australia to live in J, India, the husband then spend time and communicate with him as follows:

   (a)within Australia and in Melbourne, for no less than two (2) separate periods of fourteen (14) consecutive days the first of such periods to occur within the calendar months of January – June (inclusive) and for the following period to occur within the calendar months July – December (inclusive), but not to occur during the Diwali religious festival;

   (b)in India, and upon the husband giving to the wife no less than forty-five (45) days written notice of his confirmed visit to that country at times to be negotiated between the husband and wife and for a period of up to fourteen (14) consecutive days, and such further periods as agreed;

   (c)at all reasonable times by telephone, skype or other means of electronic communication and when the child is in India this is to occur on each Monday, Wednesday and Saturday at 4.00 p.m. local Indian time with the husband responsible for the making of the telephone call and the payment of all costs and charges associated therewith.

7. THAT for the purposes of order 6(a) hereof, and to apply in the calendar years 2012, 2013, 2014 and 2015 then, and on all occasions of time being spent by the husband with the child on his return to Australia, the husband:

   (a)book and pay forty-five (45) days prior to any intended departure date and then deliver to the wife economy return international air fares from Delhi / Melbourne / Delhi for herself and the child;

   (b)secure and fully pay in advance for a one (1) bedroom self contained apartment for the wife to reside in during her stay in Melbourne, in close proximity (walking distance only) to where the child will substantially reside with his father in Melbourne during these periods;

   (c)arrange for the transportation of the wife and child (together) punctually to and from Melbourne Airport and her apartment;

   (d)keep the wife reasonably advised at all times of the whereabouts of the child when in Melbourne;

   (e)is not to engage in work other than in his home during those periods which he spends with the child and he must be in substantial attendance with the child during all days and nights;

   (f)arrange short meetings of no less than two (2) hours duration between the wife and child on at least two (2) occasions in each seven (7) day period and if he is to travel within the State of Victoria, or elsewhere within Australia, with the child the husband must provide to the wife a detailed and substantiated itinerary of all proposed dates and travel movements.

8. THAT further for the purposes of Order 6(a) hereof, and for the calendar year 2016 and thereafter and on all occasions:

   (a)the husband, or an adult member of his family nominated forty-five (45) days in advance of travel and agreed to by the wife, shall then collect the child from the wife’s residence in J (or wherever she may then reside in India) and then travel with and accompany the child on the international flight to and from Melbourne and punctually returning the child to the wife at the conclusion of that fourteen (14) day time spent period;

   (b)the wife, at her expense, be permitted and authorised to maintain contact with and talk to the child by telephone, skype or other electronic means every third day at 4.00 p.m. local Melbourne time and for these purposes the husband must ensure that the child is available punctually at that time and for the purposes of such communication with his mother;

   (c)during these periods of time spent in Australia the husband is not otherwise permitted to remove the child from Australia and he must provide to the wife a written and secure itinerary of the child’s movements that is not to be varied without the mother’s written agreement;

   (d)for the purposes of this time to be spent in Australia the wife deliver up at collection of the child from her residence his passport which is to be returned to the wife at the conclusion of the travel period and she thereafter is to hold and retain that document.

9. THAT if the husband returns to India for any visitation or holiday then, upon giving to the wife at least forty-five (45) days prior written notice, at such times as may be agreed between each of them within India and for a period of up to fourteen (14) consecutive days.

10. THAT the Airport Watch List Order be discharged as of 9 April 2012 and thereafter the child H Russell born … August 2008 be legally permitted and authorised to depart the Commonwealth of Australia and the Australian Federal Police be so notified to remove as of that date the name of the child H Russell born … August 2008 currently in force at all points of arrival and departure in the Commonwealth of Australia and a sealed copy of this Order be forthwith served on the Australian Federal Police by the solicitors for the wife.

11. THAT the husband and wife are otherwise to keep each other advised and informed at all times of their current telephone number and email address and, upon the wife’s return to India she must then at all times keep the husband advised of her actual residential address.

12. THAT the husband and wife are to immediately notify the other and keep them informed in the event of the child suffering any illness or injury requiring medical attention or hospitalisation.

13. THAT the current consent spousal maintenance order of $300 per week continue to be paid punctually by the husband to the wife until the day of her final departure, with the child, from the Commonwealth of Australia.

14. THAT upon her permanent departure from Australia the wife is to forthwith formally notify in writing the Department of Social Security (Centrelink) and the Department of Immigration and Citizenship of her and the child’s permanent departure to India and provide to them a valid postal and email address for communication and contact purposes.

15. THAT until the wife and child’s permanent departure from the Commonwealth of Australia the husband pay all child care expenses and maintain the child within a premium level of private health insurance cover and meet all gap fees and expenses for the child and these payments are not to be credited against any administrative assessment of child support.

16. THAT each of the husband and wife, their servants and agents, be and are restrained from:

    (a)denigrating the other party or any member of their family or household;  and

    (b)discussing these proceedings, or any evidence given in the proceedings, or any issue arising therefrom;

    in the presence of, or within the hearing of the child, or allowing or permitting the child to remain in any place where such comment is made or such discussions are being held.

17. THAT otherwise all extant applications including amended applications and other final orders sought (save for the divorce application) are dismissed and the proceedings are removed from the docket of Justice Young.

18. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

19. THAT all documents subpoenaed to Court, but subject to any notice of appeal that may be filed, be returned by the Subpoenas Clerk, Melbourne Registry Family Court to the person or organisation who produced the documents after a one (1) month period has elapsed.

20. THAT after a period of one (1) month from the date of these Orders but subject to any notice of appeal that may be filed, all photographs and documents tendered as exhibits in the proceedings be returned to the party on whose behalf they were so tendered in evidence.

21. THAT a sealed copy of these Orders and the accompanying Reasons for Judgment be made available to the Family Consultant and to the Manager, Onshore Protection Area, Commonwealth Department of Immigration and Citizenship.

22. THAT there be no order as to costs of and incidental to these proceedings.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for all parties.

IT IS NOTED

A.THAT the wife, in her evidence before the Court and by way of an undertaking to the Court has committed to residing in J, India, with the child.

B.THAT the wife has undertaken to the Court in her evidence that she will forthwith seek all appropriate legal advice in J for the purposes of either registering these child and parenting orders with the appropriate court in India or otherwise to make application for like orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8378 of 2010

Mr Russell 

Applicant

And

Ms Russell 

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ISSUES

1. The child H Russell born in August 2008 (and at the request of his parents to be known in these proceedings as T) presently lives in Melbourne, Australia with his mother and spends weekend court ordered time with his father and paternal grandmother.  The issues in the hearing were focused upon the proper parental responsibility order, time spent and communication matters, the best interests for both the immediate and long term future wellbeing, lifestyle and circumstances of the child and where, with whom and in what circumstances should he reside.

POSSIBLE OUTCOMES SOUGHT AND EVALUATED

1. The best interests of the child require a very careful consideration and evaluation of all possible outcomes as to parental responsibility orders, his welfare and upbringing and his country of residence with one or both of his parents.

2. Under that umbrella of possible outcomes all parties, including the Independent Children’s Lawyer, agreed at the outset that a summary of such outcomes for the child’s future were as follows:

   (i)that he continue to live in Australia with both of his parents on either a shared parental responsibility basis or with one parent having sole parental responsibility but with either substantial and significant time spent or otherwise time spent with the other;

   (ii)that he be relocated to India as soon as practicable to live with his mother and spend holiday or other structured time with his father in that country or in Australia, as may be ordered;

   (iii)that he be relocated to India on or after January 2014, or at any other appropriate date, and then live with his mother and, subject to where his father then elects to live, spend time with him;

   (iv)that both parents return to reside permanently in India, immediately or in January 2014 or at any other time and then orders be made by a court of proper jurisdiction in that country;

   (v)the wife’s case was conducted on the basis that she would not separate herself from the child and that wherever he was required to live, and in whatever circumstances, she would be available full-time to manage or contribute to his care, support and upbringing;

   (vi)the husband’s case was conducted on the basis that he would remain living and working in Australia, that he would apply for permanent residency in this country and that he would not relocate himself to India, even if the child was permitted to be relocated with his mother to that country.

3. India is not a signatory to the The Family Law (Child Abduction Convention) Regulations 1986 (“the Hague Convention”) and that was an agreed fact that was focused upon by Counsel throughout the case.

4. Pending the pronouncement of parenting and other orders in this case each of the parents, as parties to these proceedings, were restrained from taking or sending the child from Australia to a place outside Australia, unless pursuant to an order of this Court. That outcome is provided for in s 65Z of the Family Law Act 1975 (Cth) and the available penalty for breach of that order, as provided for in that section is a term of imprisonment for three years. Both parties knew of and respected their obligations in that regard and there has been no attempt made to remove the child from this jurisdiction pending conclusion of this trial and then the pronouncement and delivery of these orders.

ORDERS SOUGHT

HUSBAND

1. The husband’s Amended Initiating Application was filed 10 November 2011 and subsequently, and pursuant to an Order of the Court, he filed a more detailed document identifying the various outcomes and orders sought by him. 

2. That document is dated 11 January 2012 and the then primary position of the husband was that the child continue to live in Australia with his parents having equal shared parental responsibility for him but that he live with the husband and spend substantial and significant time with the wife on weekends and specific occasions.  In the alternative he proposed a week about parental arrangement.

3. In the event that the child was ordered to live with the wife in Australia and with a restraint being imposed upon his removal from this country the husband sought structured alternate extended weekend time and other days and specific occasions as identified in paragraph 7 of that document.

4. In the event that the child were permitted to be relocated and live in India with his mother, the husband first asserted that any such orders made by this Court would not be enforceable in that overseas jurisdiction and, in any event, would not be complied with by the wife.  Subject to that position the husband sought two periods of two weeks duration in each calendar year upon his visits to India, additional times of up to block periods of two weeks and otherwise by telephone, skype or other electronic means.

5. Whilst the husband sought orders to spend time with the child if both parents were living in India, he envisaged that in such a residential situation it would be the responsibility of the country where both parents and the child are then living on a permanent basis to pronounce orders under its legislation.

6. The other orders sought by the husband are ancillary to the parenting and child orders and include various specific issues, the discharge of his responsibility for maintenance and the pronouncement of a Decree Nisi of Dissolution of Marriage to become absolute within a one month period.

1. At the conclusion of the evidence, and in his Counsel’s final address the husband, by a minute of order dated 25 January 2012 and which has now been indexed as a document on the Court file, significantly varied the orders that he had sought at the commencement of the proceedings.

2. The husband finally sought orders that the parents have equal shared parental responsibility for the child but that he live with the wife.  That represented a very significant concession from that sought by him in the document dated 11 January 2012.

3. He further sought an injunction that the wife be restrained from relocating the child’s residential address outside of the Melbourne metropolitan area. 

4. He sought further orders that the child spend time and communicate with him for extended weekends and at other times up until he commenced his primary school in Australia.  Thereafter he sought:

   (a)in each alternate week during school term, from the conclusion of school at 3.30 p.m. Thursday until 5.00 p.m. Sunday;

   (b)in every other week during school term, from 5.00 p.m. Sunday until the commencement of school Tuesday;

   (c)for one half of the school term holidays (and failing agreement for the first half);

   (d)on a week and week about basis during the long summer vacation;

   (e)otherwise as agreed between the parties.

5. The husband sought various other specific orders for time to be spent on birthdays and by Skype or electronic communication with changeovers to continue at the supervised B Contact Centre.  Other specific issues were dealt with in paragraphs 13 – 18 (inclusive) of that document.

6. In the alternative, and in the event that the child was to be placed in the sole parental responsibility of the wife and she be permitted to relocate him to India then orders were sought by the husband in the alternative, that is on the basis that he continues to reside either in Australia or relocates himself to India.  Predominantly the time then sought was for periods of one or two weeks at various nominated times throughout the year and otherwise by electronic communication or Skype.

7. The husband generally touched upon the issue of delivery and return of the child, to and from Australia or India, but with a lack of specifics and with no mention to the costs thereof.

8. Of significance the husband sought a variation to the existing spousal maintenance order and that it be varied to reduce the wife’s financial support from $300 per week to a sum of $100 per week and otherwise to be wholly discharged from the end of this calendar year or earlier upon the wife obtaining gainful employment of twenty hours per week.

9. The husband separately sought a costs order against the wife for both these parenting proceedings and for the consolidated divorce proceedings.

   WIFE

10. The wife filed an Amended Response to the Initiating Application, that document being filed 26 August 2011.  Likewise her solicitors were required to file specific and detailed orders to identify each of the possible outcomes and that document was dated 12 January 2012 and has been served upon all other parties and is before the Court. 

11. The wife’s orders are structured on the following bases:

    (i)that she is permitted to relocate the child’s residence to India immediately;  or

    (ii)that she is permitted to relocate the child to India in 2014 or at some other date and the interim orders sought in Australia until that date;

    (iii)where the child would remain permanently living in Australia in the sole parental care of the wife and spend time and communicate with his father;  and

    (iv)where the child would remain permanently living in Australia with the husband and where the wife would then seek a shared parental responsibility order and significant and substantial time with him.

12. Primarily the wife sought sole parental responsibility for the child, that he live with her and spend periods of time, including overnight time with the husband.  Those periods of time varied depending upon the residency circumstances but there was a clear structure in the wife’s orders underlying her primary responsibility for and time with the child.

13. Other orders for the payment of maintenance, a registration of that order with the Child Support Agency and payment of other outgoings and expenses were sought, together with injunctions and other specific issue orders.

14. At the conclusion of evidence, and at a time when the matter was being adjourned for seven days to enable Counsel to properly prepare their structured final submissions and orders sought, Counsel for the wife advised the Court that if her client was awarded a sole parenting order and the right to relocate the child to India, then she would bring proceedings in the proper court in India for the express purpose of obtaining like orders to those pronounced in this hearing.  That submission was founded on the basis that there was no procedure available to the parties to register and enforce orders of this Court in India.  The wife confirmed that position in her evidence.

15. Indeed the Court was advised that it was a common position adopted by all Counsel that there was no registration process available in India for orders made in this Court, though no statute or case law was referred to in support of that common position.

16. The wife’s Counsel likewise submitted various amendments to the final orders sought on behalf of her client and that document was likewise filed with the Court and has been recorded in the index of documents on the file and was also dated 25 January 2012.

17. The amended orders sought by the wife primarily relate to the time that the husband would spend with the child either in Australia or in India and I have read and evaluated those amended orders.

18. Perhaps the most significant amendment is that, for any time to be spent in Australia, and occurring after the wife and the child were permitted to be relocated to India, then the wife sought that the husband pay and provide to her return air tickets, for both herself and the child and the provision of a serviced apartment during their time in Australia to a maximum cost of $500AUD per week.

19. Otherwise, and like the husband, the wife directed her attention to the existing Airport Watch List Order and the required modifications thereto to suit all appropriate residential circumstances.

    INDEPENDENT CHILDREN’S LAWYER

20. The orders sought at the commencement of the hearing relied heavily upon the report and preliminary recommendations of the Family Consultant.  Mr Ramsay, who appeared as Counsel for the Independent Children’s Lawyer, highlighted at the outset of the hearing that their orders sought may change in accordance with evidence given in the proceedings or other conclusions formed.

21. The initial position adopted was that the parents should share equal parental responsibility with the child to live with the wife but that she be restrained from changing his permanent residence from Australia, or permitting him to relocate overseas, until January 2014.  Structured time with the husband was proposed pending the wife’s and the child’s ultimate relocation to India which was supported in their proposal.

22. The Independent Children’s Lawyer likewise filed a minute of proposed orders which has also been recorded on the court index of documents in the proceedings.  Their orders finally sought vary significantly from their initial position and, in summary, they finally sought the following orders:

    (a)that the wife have sole parental responsibility for the child and that he live with her;

    (b)that the wife be restrained from changing the child’s permanent residence from Australia until March 2012 and thereafter she be at liberty to change his permanent residence from Australia to India;

    (c)alternate orders for the husband to spend time with the child either in Australia or, long term, in India and also by electronic communication, Skype and telephone.

23. Other specific issues and ancillary orders were sought in paragraphs 5, 7, 8, 9, 10 and 11 of that document.

AFFIDAVITS RELIED UPON

HUSBAND

1. The husband relied upon:

   (i)his trial affidavit filed 10 November 2011 and the substantial annexures thereto;

   (ii)his Financial Statement filed 22 December 2011;

   (iii)his affidavit filed 17 September 2010 and its annexures;

   (iv)his further affidavit filed 1 December 2010 and its annexures;

   (v)the affidavit of his mother filed on about 13 September 2011.

   WIFE

2. The wife relied upon:

   (i)her trial affidavit filed 22 November 2011 and the substantial annexures thereof;

   (ii)her Financial Statement filed 22 November 2011;

   (iii)her affidavit filed 15 December 2011 and its annexures;

   (iv)her affidavit filed 14 November 2011 and its annexures;

   (v)the affidavit of Ms N, social worker, filed 24 September 2010, subject to the striking out by consent of paragraphs 12, 13 and 14 thereof.

3. The affidavits of the wife identified in sub-paragraphs (iii) and (iv) above were filed in the dissolution of marriage application and by the solicitors that had been provided to her for that purpose, Darebin Community Legal Centre, though they did not represent the wife in the divorce proceedings which were consolidated by order of Federal Magistrate Burchardt and transferred from that Court to this Court for hearing together with the primary applications before me.  The wife’s solicitors in the parenting proceedings advised the Court that they represented the wife on a pro bono basis in the divorce application.

   INDEPENDENT CHILDREN’S LAWYER

4. The Independent Children’s Lawyer relied upon:

   (i)the affidavit of the family consultant Mr A and his detailed report and recommendation dated 22 August 2011 and his initial s 11F assessment of issues;

   (ii)the affidavit and report of the supervisor, Mrs O was not relied upon and therefore I did not read that document.

WRITTEN SUMMARY SUBMISSIONS

1. At the conclusion of evidence in the hearing the matter was adjourned for seven days to enable all Counsel to reconsider their orders sought and prepare, in bullet point form, summary submissions and the list of cases to be relied upon.  Those documents were all filed and have been recorded in the index of documents on the court file.  I have read those documents as part of receiving final submissions from all Counsel.

BACKGROUND HISTORY

1. A short chronology of relevant background dates and events are as follows:

   1977  Husband born in D, India

   1977  Wife born in D, India
   January 2007  Parties marry in J, India
   March 2007  Wife undergoes first pregnancy termination
   Mid June 2007  Wife’s second termination of pregnancy

   July / August 2008               Wife hospitalised for approximately six weeks before giving birth

   August 2008  The child, T, born

   30 January 2010                  Family relocates to Melbourne

   22 August 2010                   Parties separate and wife leaves home with the child

   August 2010  Interim intervention orders sought by parties

   7 September 2010               Husband files Initiating Application in the Federal Magistrates Court

   14 September 2010             Orders made by Federal Magistrate Walters, including an Airport Watch List order

   9 November 2010               Parties agree to mutual intervention orders for twelve months duration

   9 February 2011                  Consent orders agreed before Senior Registrar FitzGibbon providing for the husband’s time to be spent with the child and other issues

   24 August 2011  Husband files Application for Dissolution of Marriage

   9 November 2011                Mutual intervention orders lapse

   December 2011 /                 Preparation for final hearing

   9 January 2012                    

FAMILY VIOLENCE / INTERVENTION ORDERS

1. The wife has alleged in both her affidavit and her oral evidence that she suffered physical violence and abuse by the husband.  Those allegations are denied by him.  There is no suggestion that the child was directly subject to any acts of violence or abuse, but he was present and was said by the wife to have observed the husband’s alleged abuse of her.

2. The determination of what is in a child’s best interest, as identified in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) does focus upon the need to protect a child from acts of violence or abuse. It is a primary consideration for the Court to protect the child from any physical or psychological harm or from being subject to, or exposed to abuse, neglect or family violence. The additional considerations identified in sub-paragraphs (3)(j) and (k) stress the need to consider and make findings upon family violence involving or applying to the child or a member of the child’s family and these are matters which I have assessed throughout these reasons for judgment.

3. I have in the following paragraphs in this portion of the judgment considered the background history of violence and court orders and hereafter and in assessing the evidence of each of the parties I have recorded their evidence and allegations and I have made appropriate findings consistent with determining the best interests of the child.

4. Following incidents deposed to by the wife in paragraph 23, 24, 25 and 26 of her trial affidavit an application was thereafter made on her behalf by Victoria Police for an intervention order, a copy of which is annexure “A” to her affidavit.  That interim intervention order was granted on an ex parte basis on 23 August 2010 and it also provided for the protection of the child.

5. The return date on that original ex parte order was 26 August 2010 and on that day the husband attended at court and indicated his intention to contest the order which was then listed for a defended hearing on 7 October 2010.

6. The husband, on 26 August, also applied for an intervention order against the wife but that was not granted and his application was consolidated with those matters listed for the October contested hearing.

7. Subsequently the October date was adjourned to 9 November 2010 and mutual intervention orders were made against each of the parties for a period of twelve months and ultimately they both lapsed on 9 November 2011.

8. Currently there are no family violence / intervention orders extant against either the husband or wife.

9. After the 9 November 2010 orders were made the wife alleged that the husband continued to observe, stalk and abuse her and these events are detailed in paragraph 31 of her trial affidavit.  They are denied by the husband but I have accepted the wife’s evidence in this paragraph.

10. In or about March 2011 the wife, with the assistance of an interpreter, provided a very detailed, sixteen page statement to police.  That document was not provided by the wife to her family law solicitors.  It was however provided by her to her immigration lawyers (Refugees & Immigration Legal Centre) and a copy of that document was provided to the Department of Immigration and Citizenship.  The statement was discovered by her Counsel in documents subpoenaed to Court in the days prior to this hearing. 

11. In that statement the wife makes very substantial and detailed allegations of wholly inappropriate sexual behaviour of the husband, of assaults, rapes and violent physical acts and abuse. 

12. The husband was cross examined upon a selection of the more violent and substantial contents therein.  They included the wife’s allegations of oral and anal sex and other substantial levels of abuse and violence perpetrated upon her by the husband which I have later considered and made findings upon.

13. The husband said that he subsequently attended a requested police interview in May of last year and has now received advice that no charges would be laid against him arising out of the many and varied allegations of the wife.  A subsequent email was produced in Court.  There was no evidence called from the police.

14. The wife, in her trial affidavit and her earlier affidavits filed with the Court, had not disclosed full details of these alleged rapes and other forceful physical and abusive demands of the husband.  Her Counsel and solicitor advised the Court that they were unaware of the lengthy police statement, or of these extended allegations, when her court documents were prepared.  That was a highly unsatisfactory state of affairs.

15. Whilst the wife had engaged for her by the Court Hindi interpreter(s) I listened to and observed her giving her English evidence to the Court and she has a very reasonable command of the spoken English, certainly sufficient to give general instructions to her Counsel and solicitors on these very serious matters.  Unfortunately the interpreters changed daily and their performance was of varying quality.  Nevertheless in all of her evidence the wife had alongside her an interpreter and was able to interchange her answers between the English and Hindi language.  I am satisfied that she was not disadvantaged in the giving of her evidence although she did speak very quickly, and often quietly, and it was sometimes difficult to fully hear and comprehend her answers.  What was abundantly clear was that she had both a good memory and a very detailed knowledge of the facts of this case and all surrounding events.  Indeed on occasions she produced copies of documents or photographs from her indexed and collated files that she had with her in Court.  I observed that she had therefore devoted very considerable time and detail to the preparation of her case and her other proceedings. 

16. Unfortunately she had, perhaps by necessity, different firms of solicitors acting for her on the protection visa and immigration issues, on her divorce application and in these proceedings.  Either the instructions given to or the documents available to those respective solicitors differed and thus there was a very considerable conflict in her evidence between documents in this case and other police statements and statutory declarations.  This issue developed to be a matter of a very real contest and concern.

17. The wife’s Counsel sought to tender the police statement through the wife in her evidence in chief.  Whilst some of the allegations had been put to the husband and wholly denied by him the whole of the document contained many other allegations upon which he had not been given notice or cross examined.  Indeed at the time of that cross examination I was wholly unaware of the existence of that police statement, its contents and seriousness, as it was not referred to in the court documents which I had been requested to read in the proceedings.  The husband’s Counsel objected to the tendering of the document.  He had only recently received and read a copy of the document, did not have instructions and the husband had not responded to any matters therein in his own affidavit. 

18. The admission into evidence of the whole document would likely have caused a substantial delay, if not an adjournment of the proceedings.  There was no evidence from the police officer who took the statement, or the circumstances in which the statement was given, or indeed the accuracy of the evidence interpreted to the police officer.  All of these matters were unsatisfactory and were very likely to have caused an injustice to the husband.

19. I declined to permit the statement to be tendered and relied upon as a whole in the proceedings.  To the extent that certain specific allegations had been put to the husband by agreement between all Counsel and denied by him those matters were then in evidence before me and I have critically evaluated that evidence on a higher level of probability.

20. Subsequently an out of court agreement was reached between all Counsel and that was for the wife to withdraw her request to tender the police statement and it was agreed that if leave of the court were granted the wife could be asked further questions in her evidence in chief upon the significant violent and forceful events disclosed therein and the husband’s Counsel and/or Mr Ramsay would cross examine the wife on those matters.  It was understood that the husband had denied and continued to deny all allegations of violence, impropriety or forceful sexual behaviour towards his wife.

1. Thereafter the wife made a further statement to police which was taken by them on 17 October 2011 and is annexure “B” to the wife’s affidavit but that statement was not cross examined upon.

2. Charges have not been laid against the husband arising out of those police statements and his evidence is that will remain the situation and that there are to be no criminal charges to be issued against him.  Subsequently a train of emails were tendered to the Court and marked as exhibit “H6”.  These emails confirm that the husband was contacted by telephone by the investigating police officer, Ms M, who advised him by telephone on 9 August 2011 that there are no charges to be laid and no court proceedings.  The husband responded to that police officer by email dated 11 August 2011 confirming that outcome and since that date he has not heard from the police on these issues.

3. It clearly would have been preferable for the wife’s solicitors to have followed up these issues and to have been in a position to better inform the Court. However in cross examination the wife confirmed that the police had also rung her and told her that there would be no charges laid. I therefore accept and proceed upon the basis that there will be no criminal charges laid against the husband arising out of any previous allegation of violence or criminal behaviour made by the wife, though I record that such charges would have had to be proved beyond reasonable doubt. I have here carefully assessed all of the allegations and evidence of violence under the umbrella of the statutory requirements of the Act and s 140 of the Commonwealth Evidence Act.

4. The other fact that must be balanced on this issue is that the court ordered mutual family intervention and violence orders have lapsed and the wife, perhaps because of her geographical separation from the husband and her secure accommodation, has not sought any continuing orders post November of last year.

LEGAL PRINCIPLES – ALLEGATIONS OF DOMESTIC VIOLENCE AND ABUSE

1. In Amador & Amador (2009) Fam LR 268 the Full Court (May, Coleman and Le Poer Trench JJ) discussed the court’s approach to domestic violence and child abuse in parenting proceedings:

   86.…In M and M (1988) 166 CLR 69 the High Court stated:

   But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464…

   ..  .

   88. It is clear from the decision of the Full Court in A v A (1998) FLC 92-800 that, in appropriate cases, it may be important to make findings of this nature if they are available and necessary to determine what is in the best interests of the child. It is important to note that A v A was not a case where allegations of abuse of children was made. The allegation was that the father had attempted to murder the mother. The Full Court said in A v A:

   3.22 We consider that his Honour's approach was inappropriate. Whilst it is correct to say that the Family Court is not a criminal court, and that its primary task is not to determine guilt or innocence, that is entirely different from an approach which declines to examine that issue at all. The whole emphasis of the decision of the High Court in M and M is its identification of the essential issue in cases of this sort as being whether the evidence establishes “an unacceptable risk”.

   89. It needs to be remembered that M and M (supra) was a case involving an allegation that the child had been sexually assaulted. The decision in A v A (supra) recognises that although the issue in that case was whether violence was perpetrated by the father on the mother, a finding confirming the violence does not preclude the Court concluding an “unacceptable risk” to the children in the family. Consequently the availability of a finding of “unacceptable risk” to a child is not restricted to cases where an allegation of sexual, physical or psychological abuse of children is established.

   90. Clearly, the more serious the allegation the greater degree of certainty in relation to making the finding is required. As Dixon J set forth in Briginshaw vBriginshaw (1938) 60 CLR 336 at p.362:

   The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequence flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

   Again in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 the High Court said at 170: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.”

   93. An allegation of rape is an allegation of a serious criminal offence. Trial judges will, in most circumstances where allegations of serious criminal offences are made, choose to have all the provisions of the Evidence Act apply to the determination of the issue, as provided for in section 69ZT(3). Her Honour was required to apply the civil standard of proof, as set out in section 140 of the Evidence Act, when making any finding.

   94. A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the Court is required to consider under section 60CC of the Act. The provisions of sections 60CC(2)(b), 60CC(3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.

   95. The best interests of a child the subject of an application for a parenting order must require that the Court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation. As stated earlier we regard an allegation of rape by the father of the mother to be a very serious allegation which should, if possible, be determined.

   96. It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the Court to make findings where the evidence enables that to be done.

2. In the earlier Full Court decision of Blanch & Blanch & Crawford (1999) FLC 92-837; 24 Fam LR 325, Mullane J observed that:

   His Honour’s discussion of the violence allegations appears to have overlooked the wider and more serious dangers that an abusive parent presents to children than the obvious danger of physical harm.  In addition to that harm children can suffer insecurity, fear, unhappiness, anxiety and hypervigilence from witnessing abusive behaviour of a parent.  Such effects present a threat to their emotional development.

   Probably the worst danger to children is the role model that violent parents provide which can lead to children themselves continuing to suffer the serious social disability of using violence in their dealings with other people including those they love”.

3. Hereafter and in assessing the evidence and denials of the parents I have carefully had regard to the best interests of the child and the guidelines provided in these reported cases, to which all counsel had referred.

VISAS

1. Pursuant to a subpoena issued by leave on the first morning of the hearing, two managers from the Department of Immigration and Citizenship attended and gave evidence.

2. Mr W is the manager, Onshore Protection Area, for the Department and was involved in the protection visa being issued to the wife.

3. He explained that the wife had lodged an application on 31 January 2011 with the assistance of the Refugees and Immigration Legal Centre (“RILC”) and that she had supported that application with a substantial statutory declaration.  That document supported her grounds for the application and identified serious and likely harm that would occur to the wife if she were required to depart Australia and return to live in India.  The allegations were of potential physical harm and abuse both from the husband and his family and in her circumstances of being a separated woman with a young child in that country.  She identified the dispute over the alleged dowry payments now before the Indian courts and the possible consequences of harm to her as a result of that case and also highlighted the powerful political influences that she claimed were available to the husband and his family in their pursuit of her.

4. The wife applied for a protection visa which is a permanent resident visa assessed against a background of humanitarian and refugee issues.  She was found to have satisfied the requirements of good health and good character.  The Court was later advised that it was an agreed fact that the Department of Immigration and Citizenship was aware of the wife’s intended departure to India with the child if permitted by court order to do so as a result of this hearing.

5. The protection visa was issued and remains valid and cannot be withdrawn or be re-assessed.  It entitles the wife to remain indefinitely in Australia.  She has specific rights of departure and re-entry to Australia for the five year period from the date when it was granted.  That visa entitles her to unrestricted entry to Australia whilst it is current.  Thereafter the travel rights are re-assessed and can and often are extended and this is a fact I have relied upon in formulating the orders as both mother and child will need an extension for the calendar year 2016.  Her right of re-entry is an important factor in this case as it facilitates her travel and the child’s travel to Australia to spend time with the husband.

6. Mr W recommended that the wife should not travel on an Indian passport but should obtain a Convention Travel Document, issued by the Department of Foreign Affairs and Trade.  I would not make that as an Order of this Court.

7. Mr W had with him in Court the Department’s file relevant to the granting of the protection visa.  That file contained the wife’s original statutory declaration, a police statement of some sixteen pages made by the wife to the … Police and which was identified in these proceedings and an additional statement taken by police in India from statements and instructions given by her extended family.

8. Once the wife satisfied the grounds for the granting of a protection visa, Mr W stressed that the Department had no power of refusal.

9. Likewise an application was made for a protection visa for the child and that was granted to him on the basis that he lives with his mother and she is primarily responsible for his care and welfare.  He has similar travel rights of departure and re-entry to Australia as does his mother.

10. Mr W stressed that there was no need or requirement for the Department to make contact with or obtain any statement from the husband relative to their grounds for assessment of the protection visas for the husband and the child.

11. Mr K is the manager, Temporary Business Entry for the Department of Immigration and Citizenship and he gave evidence upon the visitors (Tourist Visa) issued to the paternal grandmother and upon the father’s application, soon to be filed by his employer on his behalf, for permanent residency.

12. The husband’s mother is residing with her son on the basis of the extension of her visitor’s visa and is entitled to remain in Australia until June of this year.

13. Mr K advised that the visitor’s visa is issued on the basis that there is a genuine and limited visitation period to Australia and that if any pattern of de facto residence is proven then the visa would be unlikely to be re-issued or extended.  His evidence was that “it was the overall pattern of travel that would need to be examined … to establish that it was a genuine tourist purpose”.  Mr K further advised that there was no visa available to the paternal grandmother that was specifically designed to cater for her circumstances.  A parent visa was inappropriate in that for any person to obtain such a form of visa half of their number of children needed to reside in Australia.  To overcome that requirement three of the five adult children of the paternal grandmother would need to live permanently in Australia.  That will never be the case.

14. A parental visa can be sought in a contributory or non-contributory basis.  There is a delay of at least fifteen years for a non-contributory visa.  If a person is able to pay $100,000 and obtain a contributory visa the delay is 12 – 18 months approximately.

15. A further obstacle confronting any parental visa application by the paternal grandmother is that if she is in Australia then the application can only be made by a person over 65 years of age who had met all of the other requirements including a health and character test.  If the application is made whilst living off shore the age limit does not apply but all other criteria apply, including the requirement to have half of her children residing in Australia.

16. There are proceedings in the Indian courts over the alleged payment of the dowry and the enforcement actions and police prosecution in that regard.  Whether or not those proceedings are stayed, permanently or otherwise, they would likely need to be finalised before any assessment of a further visa extension, on any different basis, was available to the paternal grandmother.  The Department was, quite rightly, non-committal on that further assessment issue and all of the circumstances and the impact of those Indian court proceedings are somewhat unknown and uncertain.

17. On the evidence of the husband’s employment, and his sponsorship by his employer, and given his work skills and high standard of spoken and written English, Mr K expressed an opinion that his permanent residency application would most likely be successful.

18. The caveat to that advice however remains the Indian court proceedings and if there was any criminal case pending as against the husband or any warrant outstanding, albeit stayed, that may delay the determination of any permanent residency application made on his behalf.  These are matters that the husband must consider and properly address, through his employer, in their application for permanent residency to be filed on his behalf.

19. What became apparent with the giving of the evidence of each of these managers from the Department was that the family law case of each of the parties, and the orders sought, were not properly investigated or prepared.  The wife had clearly withheld from her family law solicitors relevant documents in her possession and in particular the statutory declaration made to the Department in support of her visa and each of the police statements taken in Victoria, and also in India.  That statutory declaration subsequently became a document of much contest and importance in the proceedings.  It had been prepared by the wife’s immigration solicitors.  Its existence was not known to the family law solicitors engaged by the wife, her Counsel or by the husband’s solicitors or those appointed to act for the child.  Counsel for the husband sought a copy of the document and there was no objection offered by Counsel for the wife and subsequently she consented, on instructions, to that document being provided to the husband’s legal practitioners.  I facilitated a copy of the document being provided by the Court on the strict basis that it was for legal practitioners only and was not to be provided to the husband or any other individual.  That requirement was accepted by Mr Ambrose on behalf of his client.

20. Subsequently there were out of court discussions and an agreement was reached between Counsel, to which the Independent Children’s Lawyer raised no objection, that the husband could cross examine the wife upon particular paragraphs thereof, they being paragraphs 14, 76, 91, 92, 93, 94, 97, 98 and 99 together with jurat provisions.

21. That cross examination subsequently proceeded and I have separately analysed those parts of the statutory declaration and the questions asked of the wife and her answers thereto. 

22. The husband and his advisors had also failed to properly investigate and understand the visa arrangements for his mother and her ability to live on a continuing basis in Australia and provide care and support to him in caring for the child.  On the evidence his mother cannot remain in Australia, most likely beyond June of this year and that fact has a major impact upon the outcome of these proceedings as the husband’s case, and his orders sought, were substantially dependent upon the presence and assistance of his mother.

COURT PROCEEDINGS IN INDIA

1. The husband and wife and their extended families are involved in criminal proceedings in the Supreme Court in India.  These proceedings and the very substantial and serious allegations provide a very significant background to the level of tension and animosity between the parties and their respective families.

2. Those proceedings are continuing and I urged legal practitioners in this hearing to better investigate and obtain an updated and agreed statement of position.  That they were unable to do.  I was advised near to the end of the hearing that:

   (i)the court proceedings were continuing and the next court date was 6 February 2012;  and

   (ii)the husband and wife are otherwise in total disagreement on all other issues of and involved with this litigation.

3. Pursuant to orders that I made shortly prior to the conclusion of the hearing the solicitors for both parties were to update the Court on any happenings in the next scheduled court hearings in India.  The Court received letters from each of the solicitors dated 21 February 2012 advising that the proceedings in the Supreme Court of India were adjourned for a further directions hearing on 9 April 2012 with further material to be filed by each of the parties in the interim.  The dowry related proceedings have been stayed in the J hearing pending any decision on the transfer of courts application.

4. The payment of dowry in India is illegal pursuant to The Dowry Prohibition Act 1961, a copy of which was marked as annexure “SR-3” to the husband’s affidavit filed in the Federal Magistrates Court on 1 December 2011.  I was referred to that affidavit and various of its annexures and thus I have now read and evaluated that affidavit and its annexures.

5. The wife deposed to the Court proceedings in India in paragraphs 46 – 59 (inclusive) of her trial affidavit which I have read and evaluated. 

1. She expanded upon her evidence in examination and said that the dowry was required by the husband’s family and was negotiated after the engagement but before the marriage.  The parties’ marriage was arranged by their fathers and they met each other for the first time on the engagement in mid 2006 and then again on their wedding day, in January 2007.  In an earlier affidavit filed 14 November 2011, filed in the divorce proceedings by the solicitors acting for her therein, the wife had disclosed the particulars of the dowry paid by her family which included:

   (a)     cash – 1,000,000 Indian Rupees;
   (b)     a motor vehicle – Bolero;
   (c)     gold – 23 carat – approximately 400 grams;
   (d)     silver goods – 10kg.;
   (e)     saris and suits for the extended family of the applicant;
   (f)     household goods;

   (g)accommodation and travel expenses for 80 of the applicant’s friends and relatives who attended the wedding ceremony;

   in total the value of these dowry items given to the applicant and his family was said to have exceeded $300,000 AUD.  The wife asserted that no part of the dowry had been repaid.

2. The wife further alleged in paragraph 7 of that affidavit that:

   Pursuant to the dowry agreement my family also gave further gifts to the husband and his family at the time of religious festivals throughout the year following our marriage.  These gifts included more gold jewellery, clothes and other items.  Further gifts were provided to the applicant’s family following the birth of our son [in] August 2008.

3. In paragraph 48 of her trial affidavit the wife had said “as no dowry was paid by my parents upon our marriage the husband’s family made frequent and ever increasing demands for dowry payments from my father which they allegedly required for my care and maintenance”.

4. The wife was cross examined upon the conflict in that paragraph to her other evidence and her earlier affidavit.  She explained that what she deposed to in paragraph 48 was in error.  She said it was a “typing mistake”.

5. I accept her evidence in that regard.  Again it highlights a lack of diligence in taking instructions and preparing affidavits, in reading other documents already filed with the Court and the issues with interpreted evidence where practitioners are not extremely careful and diligent.

6. On 15 December 2011 the wife caused to be filed, by the solicitors who were then acting for her on the divorce, a further updating affidavit which sought to explain the further proceedings in the Supreme Court of India on 26 November 2011 and the effect upon the earlier ex parte orders made the previous week and as are deposed to by the husband in his affidavit.

7. That affidavit of the wife is helpful in that annexure “HR8” purports to be a signed document in those proceedings evidencing the outcome of the hearing and adjourning proceedings to 9 January 2012.  That affidavit provided an important update to the evidence that the husband had before the Court and, to the extent that I may have had any need to make findings on the process of these foreign proceedings, then that was a helpful document.

8. I have also read exhibit “HR9” to that affidavit which explains that the earlier stay granted by a court in the husband’s parents’ home town was on the grounds of alleged medical issues which prevented each of his parents from attending court, and notwithstanding the husband’s mother’s ability to travel to Australia and assist her son as she does.

9. The husband, both for himself and on behalf of his family denied that any dowry was ever sought, negotiated or paid.  He said that no negotiations for dowry occurred.  He observed that no evidentiary proof had been provided of any payment and his evidence in this regard is substantially contained within his affidavit filed 1 December 2011 and in particular I have read paragraphs 15 – 28 (inclusive) thereof.  This lack of documentary evidence of payment was a matter heavily emphasised by Mr Ambrose in his final submissions.  He urged the Court to reject the wife’s explanation that all documents and evidence “are under seal in India”.  For some of the items allegedly paid, such as the motor vehicle, he said that there should have been receipts of purchase or other documentation available.

10. Whilst that may appear a reasonable submission on face value I have concluded that it is unnecessary, and very difficult, to make gratuitous findings on the alleged dowry payment issues which are properly matters to be heard and determined in the courts of India.

11. I have also read and evaluated paragraph 49 of the husband’s trial affidavit and the documents annexed at “SR-5” thereto.

12. The proceedings in India were instigated by the wife’s father who applied for orders against the husband and his parents on or about 4 October 2010, approximately six weeks after the parties’ separation.  Those proceedings were taken up by police and thereafter there is a very conflicted history of litigation outlined in the various affidavits of the parties and their annexures thereto.

13. The husband provided a summary of a time line of events in those Indian proceedings in paragraph 19 of his earlier affidavit and summarised what he said was a legal outcome in the Supreme Court proceedings as of 18 November 2011.  He asserted that there were findings that there was no evidence of a dowry paid and that the proceedings against his parents and himself and any warrants that had initially been issued were now permanently stayed.  That may not be a correct conclusion.

14. What is clear from the husband’s affidavit is that the custom of providing a dowry in India has now been made a criminal offence.  It is common ground before me that the payment of a dowry can be punishable by imprisonment for a period of not less than five years or a fine of not less than 15,000 Rupiah, or the amount or value of the dowry whichever is the greater.  That would represent a very significant penalty and of course the issue of imprisonment for the husband’s father, who is a lawyer and for the husband seeking permanent residency status in Australia, would be very severe.

15. The wife, in her affidavit evidence and in her oral evidence deposed to a very different course of legal events in India.  She asserted that the proceedings had not been stayed but were ongoing.

16. This matter was listed before me for final submissions on Friday 27 January 2012 at which time the evidence in the proceedings had been received and the case for each of the parties had closed, subject to leave having been reserved to re-open the case on two issues, one of which was further facts of and related to the Indian court proceedings. 

17. I was advised as a matter of agreement that the Indian court proceedings had been further adjourned by the Supreme Court in Delhi to 6 February 2012.  The parties however were in dispute as to the further proceedings save that they were significantly concerned about the transfer of proceedings to a Sessions court, elsewhere in India, and upon the husband’s family’s application to a court sitting closer to their home town.

18. I was not provided with an affidavit by either of the solicitors engaged by the respective parties in those Supreme Court proceedings.  Neither of the parties’ fathers have filed an affidavit either as to the payment or non-payment of the dowry or as to the conduct and progress of the proceedings.

19. What was abundantly evident from the demeanour of the parties and the manner in which they gave evidence on this topic, and from the affidavit evidence before the Court, that this is a matter of huge importance to each of them and to their respective families.  It has driven the conflict and anger between the parties and it is a matter of family honour and pride further complicated by the wife’s allegations that various threats to kill her or her family have been made, that the husband’s father exercises political influence and there is much concern held over the actions and responsibilities of various public officers and officials in India.

20. Ultimately I should not and cannot make findings, on the issues involved in these foreign court proceedings save that I am wholly alive to the importance which both parties have placed upon their family prestige, integrity and honour and those issues are far and away more important than mending any personal relationships or maintaining any level of reasonable communication between them, at least for the benefit of the child.

OBSERVATION OF WITNESSES

1. I have had what I consider to be in this case the very real benefit of observing the husband and his mother and the wife in giving their evidence on affirmation and in observing them in the courtroom, their demeanour, behaviour and character and also when they were cross‑examined.  That observation of them has been of real assistance in formulating appropriate orders.  Those observations are acutely available to a trial judge and the legal authority for such a position is that part of the Judgment of Kirby J in Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at P313:

   By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process.  They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing:  see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff..

2. I have had the significant benefit of hearing all of the evidence in its entirety, of reading carefully all of the affidavits, the annexures to the affidavits and the other exhibits in the proceedings.  I have reflected upon and have weighed all parts of the individual testimony against the balance of all evidence prior to delivering these reasons for judgment.  I stress that, in this case, my court observations of the parties were of real benefit and importance.

3. The unique role and observations of a trial Judge have been highlighted by the House of Lords, Appellate Committee, in the case of In re J (a child) (FC), [2005] 2 WLR 14; [2006] 1 AC 80, and I refer to this opinion to support my observations in this case.

4. In paragraph 4 and paragraphs 10-12 (inclusive) of the Judgment of Baroness Hale of Richmond the role of the trial Judge in the evaluation of oral evidence was considered and it was there stated that:

   10.      The Court of Appeal appears to have intervened on the basis, first, that the judge’s conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judge’s evaluation of the father’s present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do so again depended crucially on the judge’s evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere.

5. I have recorded my observations of the parties and others and made findings on their evidence as part of my evaluation of this case.

STANDARD OF PROOF

1. The appropriate standard of proof that I have applied is the civil standard, namely the balance of probabilities. The more serious that the matter was, or its importance in this case, then I have more strictly examined the level of proof required.  Allegations in this case were serious and were likely to have had a profound impact upon people and these were strictly evaluated.

2. Section 140(1) of the Evidence Act 1995 (Cth) provides that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Sub-paragraph (2) further provides that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)        the nature of the cause of action or defence; and
   (b)        the nature of the subject – matter of the proceeding; and
   (c)        the gravity of the matters alleged.

3. While Dixon J.’s classic discussion in Briginshaw’s case of the operation of the civil standard of proof does express the considerations which s.140(2) of the Evidence Act 1995 (Cth) requires a court to take into account, the correct approach, as recently observed by Branson J. (with whom French and Jacobson JJ. agreed) in Qantas Airways Ltd v. Gama (2008) 247 ALR 273, at para. 139 is that :

   . . . references to, for example, “the Briginshaw standard” or “the onerous Briginshaw test” . . . have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides.

4. Similarly, in Johnson & Page (2007) FLC 93-344, at 81,891, the Full Court of this Court expressly agreed with the “view that reference to the Evidence Act, rather than Briginshaw, is appropriate”.  

FAMILY LAW ACT 1975 (Cth) – RELEVANT SECTIONS

1. Section 60CA of the Act requires the court, in deciding whether to make a particular parenting order in relation to a child to have regard to their best interests as the paramount consideration. This has been my primary focus throughout my evaluation of all of the evidence.

2. The objects of and principals underlying Part VII of the Act and its amendments are intended to ensure that the best interests of children are paramount and they have been fully considered in determining appropriate parental responsibility orders.

3. It is important for the parents to wholly understand their obligations and for such purpose I therefore have incorporated within this Judgment, the provisions of s 60B of the Act. The objects are there stated to be:

   (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.

4. Sub-paragraph (2) thereof highlights the principles underlying those objects which are:

   (a)children to have the right to know and be cared for by both 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).

5. I have had careful regard both to the objects and principles as expressed above.  There are cultural, behavioural, conduct and personality issues which may, on the facts of this case, partly nullify those objects and principles.  The parents and extended family have a very strained relationship with difficult personal, legal and communication issues which I have fully explored.  Ideally, as parents, they should be more understanding and respectful of each other, but on the facts of this case that is overly optimistic but it would be of real benefit if they each reflected upon and acted more positively to perform their primary obligations to the child. 

6. Sub-paragraph (2)(e) is a very relevant and important principle on the facts of this case.  The child’s parents are very proud of their Indian culture and heritage and he must be given every opportunity to enjoy his culture with other like minded and involved people, not just his age appropriate group but other Indians, particularly those of the Hindu religion and from the Brahma caste and the particular sub-caste of both of the parents.  These are matters that I have evaluated in the evidence in determining both parental responsibility outcomes and also the attitude and capacity of the parents and where the child should live.

7. Section 61DA of the Family Law Act 1975 provides that there is a presumption of equal shared parenting responsibility when making parenting orders. That presumption relates solely to the allocation of parental responsibility as defined in s 61B. The specific sub-section provides as follows:

   (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.

8. The basis upon which that presumption may be rebutted by evidence is identified in sub-section (4) where it provides as follows:

   (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.

9. I have carefully evaluated all of the evidence and assessed the position of each of the parties and the submissions of their Counsel in determining appropriate parenting orders.  The starting presumption is that the best interests of the child require his parents to have equal shared parental responsibility.  That scenario must be evaluated within the parameters of any “family violence” or “abuse” and any other evidence that might appropriately rebut the presumption.

10. Thereafter the evaluation must be of the best interests of the child and that is “at large” and in that regard I have carefully considered each of the relevant primary and additional considerations as are identified in s 60CC(2) and (3) and s 60CC(4) and (4A) of the Act. I have throughout these reasons for judgment referenced each of these sub-sections and made summary findings of relevant fact thereunder. My primary focus in that process has been to carefully listen to and analyse the evidence of the parents and the other witnesses and of the family consultant and to establish and identify to the benefit of the child his meaningful relationship with his parents and to ensure his protection from all forms of abuse and family violence. In that approach, I have primarily focused upon the attitude and capacity of each of the parents and their willingness and ability to establish a meaningful and continuing relationship between the child and the other parent and also sub-paragraphs (b), (d), (e), (g) and (l) of s 60CC(3).

1. Counsel for the parties referred to the decision of Hazan & Elias (2011) 45 Fam LR 475. In that decision Watts J discussed the admissibility of evidence sought to be adduced by the father of a recorded conversation between the family consultant and himself. That necessarily involved a consideration of s 11C of the Act and other provisions specifically related to the admissibility of evidence of family consultants in parenting proceedings. However, his Honour discussed the application of Division 12A of the Act, and specifically s 69ZT, on the rules of evidence in parenting proceedings as follows:

   36.One other important part of Division 12A deals with how the rules of evidence apply in child related proceedings. Prior to the 2006 Act, the Family Court was bound by the rules of evidence in child related proceedings (see NorthernTerritory of Australia v GPAO (1999) 196 CLR 553 McHugh and Callinan JJ at paragraph 198, and Gaudron J at paragraph 139). Section 69ZT FLA relaxes some of the rules of evidence in child related proceedings. Section 69ZT FLA says:

   69ZT

   (1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:

   (a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;

   (b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

   (c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

   (2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).

   (3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:

   (a) the court is satisfied that the circumstances are exceptional; and

   (b) the court has taken into account (in addition to any other matters the court thinks relevant):

   (i) the importance of the evidence in the proceedings; and

   (ii) the nature of the subject matter of the proceedings; and

   (iii) the probative value of the evidence; and

   (iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

   (4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.

   (5)      Subsection (1) does not revive the operation of:

   (a)      a rule of common law; or

   (b)      a law of a State or a Territory;

   that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.

   37. So it follows that unless it is an exceptional case, evidentiary rules in relation to hearsay, opinion, admission, tendency and coincidence, credibility and character do not apply. Inferentially however, s 69ZT FLA (which was introduced by the same piece of legislation as s 11C FLA) retains, inter alia, the evidentiary rules of relevance, improperly and illegally obtained evidence, and the discretion of the court to properly control its processes by assessing the probative value of the evidence against the danger of the evidence causing or resulting in an undue waste of time…

2. One of the issues before me in this hearing was that s 138 of the Evidence Act does apply, notwithstanding s 69ZT of the Act and the provisions of Division 12A. In the recent Full Court decision of LGM & CAM (2011) FLC 93-481the Court (Coleman, Ainslie-Wallace and Crisford JJ) observed in relation to s 138 that:

   164. Much of the jurisprudence relating to this section concerns itself with the conduct of criminal trials, however the section is equally applicable to civil trials (see Parker v Comptroller-General of Customs (2009) 83 ALJR 494 per French CJ).

   165. The term “improperly” is wide and as Howie J observed in R v Cornwell (2003) 57 NSWLR 82 at [20]:

   …the court should determine whether the section is engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding.

   166. The conduct amounting to impropriety need not be attended by bad faith or an abuse of power (See Cornwell at [20]; Director of Public Prosecutions (NSW) vAM (2006) 161 A Crim R 219 at [37]).

   167. In Bodnar v Townsend [2003] TASSC 148, Blow J considered a case in which a credit union officer had, at the request of the prosecutor brought to court the respondent’s credit union account details. No subpoena or other formal process for bringing the documents to court had been undertaken. His Honour found that the credit union had a contractual obligation to the respondent not to produce the documents (without consent or compulsion through subpoena). His Honour held that it was improper (in the meaning of s 138) for the prosecutor to attempt to tender the documents in circumstances where it amounted to having the officer do an act in breach of the credit union’s contract with the accused.

   168. The High Court considered s 138 in Parker v Comptroller-General of Customs in the context of an appeal from the NSW Court of Appeal in which there was consideration of the admissibility of evidence obtain (sic) in excess of the ambit of a warrant to produce documents issued by the respondent.

   169. At [26] French CJ observed that there was no definition of “impropriety” or “contravention”. His Honour noted at [27] that the inclusion of the section was recommended by the Law Reform Commission and was explained by the Commission:

   27. …“This clause provides a discretionary exclusion for evidence obtained improperly, unlawfully or in consequence of an impropriety or breach of the law. It applies in both civil and criminal trials. It reflects, with some modifications, the present exclusionary discretion known as the rule in Bunning v Cross. The main difference is the placing of the onus of proof on the party seeking to have the illegally or improperly obtained evidence admitted”.

   170. French CJ said at [29] that:

   29. The meanings to be accorded to the terms “improperly”, “impropriety” and “contravention” in s 138 were not illuminated by the Law Reform Commission report. The relevant ordinary meanings of “improper” include “not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong”. “Contravention” refers to “[t]he action of contravening or going counter to; violation, infringement, transgression”.

   30. Without essaying an exhaustive definition, the core meaning of “contravention” involves… doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as “impropriety” although that word does cover a wider range of conduct than the word “contravention”.

3. In determining whether the husband obtained the evidence in contravention of an Australian law it is necessary to evaluate the relevant provisions of the Telecommunications Act. Sections 6(1) of the Telecommunication Act provide that:

   (1)For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.

4. Section 7 of the Telecommunication Act provides that:

   (1)          A person shall not:

   (a)      intercept;

   (b)      authorize, suffer or permit another person to intercept; or

   (c) do any act or thing that will enable him or her or another person to intercept;

   a communication passing over a telecommunications system.

5. Section 63(1) provides that:

   (1) Subject to this Part, a person shall not, after the commencement of this Part:

   (a) communicate to another person, make use of, or make a record of; or

   (b) give in evidence in a proceeding; lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1).

6. Section 105 of the Telecommunications Act states that a contravention of ss 7 and 63 is an offence and provides that:

   (1) A person who contravenes subsection 7(1) or section 63 is guilty of an offence against that subsection or section.

   (2) An offence against subsection 7(1) or section 63 is an indictable offence and, subject to this section, is punishable on conviction by imprisonment for a period not exceeding 2 years….

7. Civil remedies are available under the Telecommunications Act to an aggrieved person for a breach of ss 7 and/or 63 and in such proceedings s 76A provides that:

   (1) A person may give information obtained by intercepting a communication in contravention of subsection 7(1) in evidence in a proceeding by way of an application under section 107A for remedial relief in respect of:

   (a)       the interception; or

   (b) the communication (in contravention of section 63) of information obtained by the interception…

8. In relation to the question of admissibility, s 77of the Telecommunications Act provides that:

   (1) Where a communication passing over a telecommunications system has been intercepted, whether or not in contravention of subsection 7(1), then:

   (a) subject to paragraph (b), neither information, nor a record, obtained by the interception is admissible in evidence in a proceeding except in so far as section 63A, 74, 75, 75A, 76 or 76A permits a person to give in evidence in that proceeding information so obtained; and

   (b) for the purpose of determining the extent (if any) to which section 63A, 74, 75, 75A, 76 or 76A permits a person to give in evidence in a proceeding information obtained by the interception:

   (i) a person may communicate to another person, make use of, make a record of, or give in evidence in the last-mentioned proceeding, information so obtained; and

   (ii) information, or a record, so obtained is admissible in evidence in the last-mentioned proceeding.

9. Sections 63A, 74, 75, 75A,76 and 76A are not applicable to this proceeding and would not render the improperly obtained evidence admissible. Further, s 78 of the Telecommunications Act provides that:

   Nothing in this Part renders information, or a restricted record, admissible in evidence in a proceeding to a greater extent than it would have been admissible in evidence in that proceeding if this Part had not been enacted.

10. Section 8 of the Act states that the Telecommunications Act “does not affect the operation of the provisions of any other Act…”. Accordingly, s 138 of the Evidence Act provides that evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in contravention of the Telecommunications Act.

11. In determining whether to allow that evidence to be admitted the court may take into account the factors set out in s 138(3)(a) to (h). In the decision of Parker v Comptroller-General of Customs (2007) 243 ALR 574 the New South Wales Court of Appeal discussed s 138 of the Evidence Act 1995 (NSW) that replicates s 138 of the Evidence Act 1995 (Cth). Basten JA, with Mason P and Tobias JA agreeing, reasoned that:

    [57] The exercise of the discretionary power conferred by this provision involves two steps. The first is to determine whether evidence sought to be adduced was in fact obtained improperly or unlawfully in one of the senses identified in paras (a) and (b). The second step is to consider whether despite that conclusion, the discretionary considerations favour its admission. The importance of giving appropriate weight to the effect of any impropriety or unlawfulness is reflected by means of a qualified proscription — the evidence “is not to be admitted unless”. In carrying out the balancing exercise, the court is required to take into account the factors identified in subs (3) [138(3)]…

    [58]Other factors, relevant to the circumstances of the case, may be taken into account, but the listed considerations are mandatory. No guidance is given in the section as to how the particular matters are expected to affect the outcome….

    ..  .

    [60] This factor is reflected in paras (d), (e) and (f) of s 138(3). Accordingly, a deliberate or reckless disregard of legal constraints, involving a contravention of an internationally recognised human right or fundamental freedom, will undoubtedly weigh against admission. On the other hand, if the contravention were accidental or inadvertent and involved no serious contravention of an internationally recognised right, that would tend in favour of admission.

    [61]Paragraph (h), concerning the ease with which the evidence might have been obtained without contravening a legal protection, was treated in Bunning as a third consideration, but is closely related to the first, their Honours stating (at CLR 79; ALR 662-3):

    A deliberate “cutting of corners” would tend against the admissibility of evidence illegally obtained. However, in the circumstances of the present case, the fact that the appellant was unlawfully required to do what the police could easily have lawfully required him to do, had they troubled to administer an “alcotest” at the roadside, has little significance.

    As in Bunning, it is likely that this factor will often be treated as either neutral or equivocal.

    [62] The second consideration identified in Bunning was the effect of the illegality on the cogency of the evidence. This factor does not find explicit recognition in s 138(3), but may be understood as part of the assessment required under paras (a) and (b) of the probative value of the evidence and its importance in the proceedings. The Law Reform Commission, following Stephen and Aickin JJ, noted that the public interest in admitting evidence where other evidence untainted by impropriety is available is weaker than may be the case where there is no untainted evidence….Where, as here, the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had.

    [63]The weight to be given to these considerations cannot be resolved in the abstract and is likely to depend not only on the circumstances of the case but on the interplay between the different factors…

    .  .  .

    [65] What can be said without equivocation is that obtaining evidence in deliberate, wilful or even reckless disregard of an individual’s civil rights is likely to be a strong factor against the exercise of the discretion to admit the evidence.

12. In the matter before the Court the husband through his Counsel conceded that the evidence was improperly obtained and therefore he must establish that the desirability of admitting the recordings outweighs the undesirability of admitting the recordings. The probative value of the evidence and its importance in the proceedings must be evaluated.

13. Although the recorded conversation provided an insight into the attitude of the wife and maternal grandfather towards the husband that does not necessarily warrant the admission of the evidence.  What must be also balanced is the motive of the husband in recording that telephone conversation, no doubt for the specific purpose of using any helpful information for his purpose, including in court proceedings.  Thus that is an issue to balance on the probative value of the evidence.  A significant concern was that the husband recorded the conversation that occurred between the wife and her father in Hindi and then translated the conversation in order to incorporate it into one of his affidavits in these proceedings. This calls into question the probative value of this evidence given its source.

14. Further, another factor against the admission of this evidence is the husband’s contravention of ss 7 and 63 of the Telecommunications Act that was both reckless and demonstrated an intentional disregard for the wife’s legal rights, particularly given that the recordings were conducted for the purpose of providing evidence that would portray the wife and maternal grandfather in a poor light in the parenting proceedings before the court. The husband’s contraventions are grave as contraventions of ss 7 and 63 of the Telecommunications Act constitute indictable offences pursuant to s 105 of the Telecommunications Act and also give rise to civil remedies under s 76A.

15. Offsetting both the gravity of the impropriety and its deliberate organisation by the husband is the fact that the evidence is important in the proceedings and there is a probative value to the Court in having an understanding of the discussion and relationship between the wife and her father and the anger and tension that has developed as a result of the dowry payment (as alleged) and the breakdown of the marriage.

16. I have carefully evaluated the various matters identified within s 138(3) and I also recognise the rights of the wife to have a private conversation with her father, balanced against the husband’s recording that telephone conversation for the purposes of not only these Court proceedings but his outcome of ensuring that the child remains both with him and living in Australia and not being permitted to return to India.

17. On balance, and with a level of reluctance, I will dismiss the oral application of Counsel for the wife to strike out those particular paragraphs of the husband’s affidavit.  I had in any event read the paragraphs and I am acutely aware of the significant level of conflict and legal contest over the alleged dowry payment and Indian court proceedings.  That conversation provides some background to those proceedings, the attitude of her father and the intensity of the legal contest in India.

18. In reality it is difficult to divorce those matters that I have read from any consideration of all of the evidence.

19. I therefore conclude that the desirability of admitting that evidence marginally outweighed its exclusion on the basis and manner in which it was obtained.  I concluded the evidence is important and of a level of probative value to justify its inclusion and each of those three paragraphs therefore remained in evidence.

PARENTAL RESPONSIBILITY

1. I therefore have exhaustively considered the appropriate order for parental responsibility.  I have found that the presumption of equal shared parental responsibility should be rebutted in this case and I have pronounced in favour of the wife a sole parental responsibility order.  That is in the best interests of the child and is squarely available to the Court on the facts of this case.

2. Having so found it is therefore unnecessary to consider whether the child should spend equal time or substantial and significant time with each of his parents and in those circumstances s 65DAA is not applicable to this hearing and therefore questions of what may be reasonably practicable are not matters pursuant to sub-paragraph (5) thereof to be considered. I highlight however that what is before the Court and what I have considered as an additional consideration pursuant to s 60CC(3)(e) are the practical difficulties and expenses which might affect the child’s right to maintain personal relations and contact with his father on a regular basis.

SECTION 60CC (2) AND (3) OVERVIEW

1. I have endeavoured to identify and evaluate each of the relevant sub-sections throughout these reasons for judgment and, without restating the many and varied findings my overview is that the primary and additional considerations that establish the best interests of the child are satisfied by the final orders that I have pronounced.

FINAL EVALUATION OF ALL PROPOSALS

1. The Court is not bound by only the proposals submitted by the parents and the Independent Children’s Lawyer.  However I have identified, and all Counsel agreed with the various proposals that required careful evaluation to determine appropriate final orders in this matter. 

2. I have endeavoured, throughout all of these detailed reasons for judgment to identify the facts and make findings on the various issues in dispute that impacted upon each of the proposals. 

3. As I have found that the wife should have a sole parental responsibility order, the child should live with her and both in his circumstances and for the wife, her security, wellbeing, happiness and future life she should be therefore permitted to relocate to India with the child.

4. The proposal for her to remain as a long term resident in Australia, in all of her current and likely future circumstances is inappropriate and would not lead to a better and more fulfilling life and upbringing for the child.

5. At the commencement of this hearing there was an initial proposal from the Family Consultant in his Report and otherwise the parties addressed the issue of a delayed relocation of the wife and the child to India, that is from 2014.  I reject that proposal and it was not seriously pushed by Counsel for any party in their final submissions.  The husband wholly opposed any such proposal as it involved the child’s departure from Australia.  I conclude that any delay in the making of this decision and the implementation of final orders would be contrary to the child’s best interests.  Finality is needed.  A decision must be made and, subject to any right of appeal, implemented so that certainty is brought to the child’s life, prior to his nationality and cultural influences being lessened and before he attains school age.  Now is the time, and not at any future date, for the implementation of these final orders.

6. I have endeavoured to focus upon culture and the social and community issues confronting both parents and the child, and I am satisfied that the child will enjoy a more stable, balanced and appropriate upbringing if he is now relocated to his homeland and with his primary parent.

7. I have reflected upon the weekend time which the husband now spends with the child and whether that should be increased prior to his relocation to India.  On balance I have decided that it is not in the child’s best interest for the father to spend any extended period with him in Melbourne over the next few months.  That may be a very difficult situation for the father to accept but I am focused on a level of balance and stability for the child and likely such an extended period away from his mother and under the influence of his father and his family would be counterproductive to the child and his future lifestyle and stability with his mother and her extended family. 

AIRPORT WATCH LIST ORDER

1. I have ordered that the current Airport Watch List Order, supervised by the Australian Federal Police be discharged as of 9 April 2012.  That date is to permit the husband an opportunity to read and consider these reasons for judgment and file any appeal, as he may be so advised.  It may then be that the date of discharge of that Airport Watch List Order may have to be extended or, if there be no appeal then it could, by Court order be shortened to permit an earlier date of travel.  The parties are at liberty to mention the matter on proper documentation filed before me or another Judge of this Court.

COSTS

1. Section 117 of the Act provides that each party are to pay their own costs of and incidental to the proceedings, unless, pursuant to sub-paragraph (2) thereof, the Court is satisfied that it is otherwise just for a costs order to be made. The factors to be considered for the making of such an order are identified in sub-paragraph 2(A) thereof and I have evaluated each of these relevant matters.

2. In this case the wife is legally aided.  The husband has paid his own legal costs and disbursements and likely they are significant.

3. There was a genuine issue for trial and both parties prepared their case substantially and the matter has been argued by Counsel at length.  There was no frivolous issue and whilst I have made substantial findings against the husband’s evidence on certain issues he genuinely sought orders that he regarded to be in the best interests of his son.  The conduct of the proceedings was therefore such as not to warrant any costs order being considered.

4. The other financial matter of importance is that the husband, by the final orders, will have to pay the return economy air fare for the wife and child for the next four years, together with accommodation costs, and thereafter his own costs of spending time with his son.  That will amount to a significant yearly sum and provides another sound reason for there to be no costs orders pronounced against the husband.

5. I conclude that no order for costs should be made.  I acknowledge that no formal application had been made at the end of the proceedings when Judgment was reserved.  There were orders for costs foreshadowed in the applications before the Court and it is for that reason, and to save further costs and expenses of the parties and an additional hearing date that I have decided to announce my considered opinion on this costs issue at this time.

6. The Independent Children’s Lawyer had, through its Counsel, indicated that they would not seek any order for costs in the proceedings.  That is very appropriate.

I certify that the preceding Four Hundred and Forty Three (443) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 7 March 2012.

Associate:

Date: