Russell and Russell

Case [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

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AGLC
Russell and Russell [2012] FamCA 99
Case
[2012] FamCA 99
Decision Date

CaseChat Overview and Summary

The case of *Russell and Russell* concerned parenting orders made by Young J in the Family Court of Australia. The dispute involved the wife seeking to relocate the child, T, to India, and the husband seeking to maintain a significant role in the child's life. The court was required to determine the best interests of the child, T, in light of allegations of family violence, the parents' differing proposals for the child's future care and residence, and the potential for international relocation.

The court's reasoning centred on the paramount consideration of the child's best interests, as mandated by section 60CA of the *Family Law Act 1975* (Cth). Young J considered the objects and principles of Part VII of the Act, including ensuring meaningful involvement of both parents, protecting children from harm, ensuring adequate parenting, and parents fulfilling their responsibilities. The court applied the civil standard of proof as provided by section 140 of the *Evidence Act 1995* (Cth), taking into account the nature of the proceedings and the gravity of the matters alleged. The court also considered principles relating to parental responsibility and international relocation.

Ultimately, the court ordered that the wife be granted sole parental responsibility for the child, T, and that the child live with her. The wife was permitted to relocate the child from Australia to India on or after 10 April 2012. Detailed orders were made regarding the husband's future time with the child, both before and after the relocation, including provisions for communication, visitation periods in Australia and India, and specific arrangements for travel and accommodation to facilitate the father-child relationship. The court also made orders regarding spousal maintenance and other ancillary matters, with no order as to costs.

Orders

Orders of the court

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

23.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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. 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. 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”. 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. 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. 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. 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).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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