Sanyal & Sanyal
[2022] FedCFamC2F 1145
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sanyal & Sanyal [2022] FedCFamC2F 1145
File number(s): SYC 3831 of 2022 Judgment of: JUDGE BOYLE Date of judgment: 22 July 2022 Catchwords: FAMILY LAW – Children – child’s gender identification – enrolment in school – benefit of meaningful relationship – risk of harm – transfer to Division 1.
FAMILY LAW – Spouse maintenance – application dismissed.
Legislation: Family Law Act 1975 ss. 60CC, 72, 74, 75 Division: Division 2 Family Law Number of paragraphs: 48 Date of hearing: 21 July 2022 Place: Sydney Counsel for the Applicant: Mr Ford Solicitor for the Applicant: Lewis Family Lawyers Counsel for the Respondent: Mr Gould Solicitor for the Respondent: Clinch Long Woodbridge Counsel for the Independent Children's Lawyer: Ms Karagiannis Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 3831 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SANYAL
Applicant
AND: MS SANYAL
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
order made by:
JUDGE BOYLE
DATE OF ORDER:
22 July 2022 (Amended On 25 August 2022 Pursuant To The Slip Rule)
THE COURT ORDERS THAT:
1.The matter is listed for Case Management Hearing before the Honourable Justice Christie on 2 August 2022 at 9:30am.
2.The matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia.
3.X born in 2015 (the child) live with the Mother.
4.The Mother shall enrol the child at D School.
5.That each parent to do all things necessary to ensure that all schools, doctors, dentists, professional carers and any other professional involved in the care and treatment of the child are authorised at all times to communicate with and provide information and copies of documents in relation to the child to both parents.
6.That within 7 days, the Mother provide to the Father the names of all treating health care practitioners the Mother has attended upon with the child within since 1 May 2022.
7.That in the event of a medical emergency involving the child, the parent with the care of the child is to notify the other parent within 2 hours or as soon as practicable.
8.The parties shall do all acts and things to list for sale at the best price reasonably attainable the Motor Vehicle 1, with the proceeds of sale to be distributed equally between the parties.
Appointment of Single Expert
9.Order 42 of Orders made on 12 July 2022 be discharged.
10.No later than 4:00pm on 29 July 2022 the Independent Children’s Lawyer shall provide to the parties:
(a)With 3 (three) names of child and family psychiatrists with their Curriculum Vitae and the possible timeframes for interviews with the parents and child to occur.
(b)Draft terms of reference for the Expert.
11.Within 7 (seven) days of the information being provided by the Independent Children’s Lawyer the legal representatives of the parties shall confer in order to resolve the issue of an appropriate expert.
12.Should the parties be unable to resolve the appointment of an appropriate expert, the Independent Children’s Lawyer may nominate the Expert from one of three they have proposed.
Airport Watch List
13.That until further order, each party, Mr Sanyal born in 1981 and Ms Sanyal born in 1983 their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child, X born in 2015 from the Commonwealth of Australia until further Order of the Court AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child, X born in 2015, on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for until the Court orders its removal.
Child Impact Report
14.Pursuant to section 62G(2) of the Family Law Act 1975 (Cth), the parties and child are directed to attend upon a Court Child Expert nominated by the Court Children’s Service for the purposes of the preparation of a Child Impact Report on the dates and times below, or as otherwise directed by the Court Child Expert.
15.Part 1 of the event will occur on 28 November 2022 by Microsoft Teams with the parties to attend as follows:
(a)the Applicant at 9am and
(b)the Respondent at 10.30am.
16.Part 2 of the event will occur on 30 November 2022 at a time to be advised by the Court Child Expert during Part 1.
17.Part 2 of the event will occur in person at the Sydney Registry with the details to be provided to the parties by the Court Child Expert during Part 1 of the event.
18.By 4pm on 19 July 2022 each party shall provide their contact telephone number and email address to [email protected]
19.Each party shall do all things necessary to ensure the child attend upon the Court Child Expert as directed.
Financial Disclosure
20.That the Husband and Wife shall forthwith comply with his duty of full and frank financial disclosure and shall, pursuant to rule 6.06 of the Family Law Rules. provide the following documents within fourteen (14) days of the date of these Orders:
(a)Copies of bank account statements for all accounts in which they have an interest, whether in Australia or overseas, for the last three (3) years;
(b)Particulars and source documents for all properties in which they have an interest;
(c)Particulars of the income earned by them, including copies of the three (3) most recent payslips issued by their employers;
(d)Particulars and source documents for all motor vehicles which they own or has an interest in;
(e)Copies of their three (3) most recent taxation returns and taxation notices of assessment;
(f)Copies of member statements for any superannuation interest which they have held for the last three (3) years;
(g)Particulars of any proposed disposed of by them:
(i)In the twelve (12) months immediately preceding the final separation of the parties; and
(ii)Since the final separation of the parties
(h)To the extent not covered by the preceding sub-Orders, any and all documents listed in subrules 6.06(3) and 6.06(8) of the Family Law Rules, as applicable.
Other Orders
21.Leave is granted to the solicitors for the Wife to issue a subpoena to the Husband’s workplace.
22.That each parent to do all things necessary to ensure that all schools, doctors, dentists, professional carers and any other professional involved in the care and treatment of the child are authorised at all times to communicate with and provide information and copies of documents in relation to the child to both parents.
23.That within 7 days, the Mother provide to the Father and the Independent Children’s Lawyer the names of all treating health care practitioners the Mother has attended upon with the child within since 1 May 2022.
24.That in the event of a medical emergency involving the child, the parent with the care of the child is to notify the other parent within 2 hours or as soon as practicable.
AND THE COURT NOTES THAT:
A.The matter is listed for Conciliation Conference on 8 November 2022 at 10:00am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sanyal & Sanyal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BOYLE J:
These are proceedings with respect to both interim parenting, and spouse maintenance.
The parenting aspect concerns the child, X, who was born in 2015. The child is presently living with the mother, and there is no contest with respect to that.
The father seeks orders for time, which has varied through the applications, but I understand now rests at twice each week, supervised by E Contact Centre. He proposes meeting the costs of supervision. There are various restraining orders sought by the father against the mother. These include: that she is restrained from enrolling the child in a school; changing the child’s name on any documentation; changing the child’s religion; changing the child’s residence; taking the child shopping for girls’ clothes; referring to the child as a girl or using female pronouns; taking the child to a psychologist, counsellor, psychiatrist, medical practitioner other than in the case of an emergency, or to seek a gender dysphoria diagnosis, unless such professional is approached with the input of the independent children’s lawyer and the father. There were various other ancillary orders sought.
Although the husband formally put his application on the basis that the application for spouse maintenance be dismissed, during submissions there was an offer by the father for the payment of $300 per week by way of spouse maintenance. Subsequently during submissions there was an additional proposal for the sale of the Motor Vehicle 1, and that the proceeds be divided equally between the parties. The motor vehicle has an estimated value of some $40,000. The mother accepted that proposal.
The mother seeks an order for $1,500 per week by way of souse maintenance and $15,000 lump sum.
I appreciate this matter was being done urgently, and went till very late in the day. However, it was difficult to understand precisely the parties’ financial situations, what is proposed, and other matters. I will come to those issues when I deal with the property matter. It makes dealing with the matter more complex than it should be.
The mother seeks to vary an order made on 12 July 2022 by the judicial registrar to discharge the appointment of the expert, and that other orders be made. I understand that is supported by the independent children’s lawyer. There are different ways nomination of an expert can occur, and I will come to that in due course. But I flag that as another issue.
The independent children’s lawyer (ICL) has been recently appointed. She referred to the difficulty of the situation, in that it was complex, there had been a very recent appointment, and she had been able to do little other than read the material filed.
The ICL supported orders for the child to be enrolled in the school local to where the child lives. She pointed to the innumerable benefits to attending school for children, including social engagement and the like.
The mother seeks, additionally, there be no order for time with the father. The ICL supports that order, until there is some further investigation undertaken. She favoured a cautious approach. There are serious allegations made by the mother with respect to family violence, and a current apprehended violence order for the protection of the child.
In regards to the order for the report, on the face of the orders there is no indication of how the selection of the expert came about. I appreciate that the mother’s solicitors have changed since the time of those orders. There is no criticism of the expert nominated. The ICL indicated she had knowledge of the person nominated, and that they were a learned child and family psychiatrist.
Expert reports in matters such as these are really important to parties for a variety of reasons. They assist parents have an understanding of the situation their children are in. Reports assist consideration of resolution, and paths by which parties can reach agreement in matters. Reports provide assistance to the Court in terms of orders that might be appropriately made to benefit a child’s best interests. At this stage, right at the beginning of proceedings, it is important that trust can be placed on the expert by all parties involved. This is with no disrespect to the expert, but the mother makes a complaint that the order was not made by consent. I cannot tell that from the order. I do not have a transcript.
It is important that there be an expert that all parties are satisfied is at arm’s length from all of them. All parties should have an input into the selection of that person. The father has complained that he has paid a deposit. It does not seem that any work has been done. I am not aware that any documents have been forwarded to the expert for perusal. In those circumstances, it is difficult to understand that there could be an issue with refunding of the deposit.
The orders I propose making in due course will require the ICL to nominate three experts. The parties can then consider those experts, and hopefully reach an agreement. If they cannot, the ICL can nominate the person from the three names provided. That will allow the opportunity for everybody’s input. The ICL can provide to the parties a draft terms of reference for consideration, again so everybody can be satisfied about the way that happens.
There is a wide variety of material relied on by the parties, to an extent inappropriate for an interim hearing. They both filed case outline documents, to which I have had regard, including the material referred to, and various additional documents tendered during the course of the hearing.
The background to the matter is that the parties were married in 2011. They separated on 22 May 2022. I have already referred to their child who is currently aged six. On separation, the mother and child moved in with the maternal grandparents. On 1 July 2022 they moved into rental accommodation in the Suburb D area.
The mother sets out her observation that from about the age of three the child has expressed a desire to be identified as a girl. The mother’s evidence is she thought little of that. She considered it a perfectly ordinary exploration by the child of costume choice, dress, and those sorts of matters in play. However over time, as the child became more verbal, there have been increasing comments about wanting to be a girl, or that he is a girl. That has included issues around toileting - urinating sitting down rather than standing up.
The mother’s evidence is that the father has reacted very poorly to those comments by the child. He has been critical and taunting of the child. The mother sets out her concerns about the child wanting to urinate sitting down, the father objecting to that, and causing stress for the child from the age of five. She says the child has become anxious around urinating. From about some time in 2021 she tried to prevent the father from interfering with the child when toileting. It becomes an issue between them. The mother’s evidence refers to a medical appointment that the child was taken to by the maternal grandparents, which confirmed there are no issues from a physiological point of view for the child urinating.
The mother refers to her research from 2019 into gender diversity as part of academic study she is undertaking. She said that she became increasingly focused on this area because of her desire to assist the child. That was part of the basis for her electing to do further studies on the topic. She sought approval for the course of further study in 2020.
The father argues that the mother has influenced the child as a consequence of her own interest in gender diverse issues. The father pointed to, through his counsel, a tender document relating to a biography that, as I understand it, was for a journal from April of 2020 where the mother was referred to in the biography as having male pronouns.
It is not clear who authored the biography nor what the mother’s involvement was. She says it is either a typographical error, or that from her Indian name her gender was not obvious to the person writing, and for some reason they regarded her as male. It is unclear to me what I could possibly draw from that. It seems to me unsafe for me to draw any conclusion from that.
Counsel for the father referred to the mother’s diagnosis of bipolar from 2013. There is no issue that is the case. The mother refers in her material to the psychological support she has received. It was unclear to me what was being put in submissions as to what the Court should draw from the diagnosis, in terms of the connection between that and the purported conduct of the child, and the purported influence of the mother on the child’s conduct. It seems to me that the diagnosis, and any issue of the child’s gender identification are separate.
The mother refers to a period in 2013 when she was depressed, suicidal and had a voluntary admission to F Hospital. That is when she was diagnosed with bipolar disorder. She has been on medication for that condition for the past 10 years. She continues to have psychological support, which may have been intermittent. She has the support of her parents. There does not seem to be evidence that this is a matter of any particular concern.
The mother raises concerns about the father’s conduct towards the child becoming more critical on matters other than toileting. In particular, there is an incident referred to of 30 January 2022 where friends with children were at the parents’ home. The children were playing together. The child opened the garage door. The father was concerned that gave the children access to a driveway, and there could be safety issues. The father asked the child where the key was for the garage door. He became increasingly frustrated when it could not be located. He described holding the child by both arms and pushing him out of the way. The child fell on the floor on his bottom. The child cried, and was upset. The mother intervened and took the child indoors.
The father says that he apologised to the child, and regrets it. It is a perplexing incident. It seems an extraordinary reaction to a situation that did not, even on the father’s version of events, involve any immediate risk to a child’s safety. I accept that it could be frustrating, however, the father’s conduct is concerning.
The mother did not complain to any external agency about this until separation. The father has been charged, and an AVO has been issued for the protection of the child. I note that the AVO does not prevent time between the father and child.
The father has undertaken various courses since the filing of these proceedings. He enrolled in an online Kids in Focus program on 11 July 2022, which he completed. He has enrolled in a Parenting after Separation course through G Counsellors, and commenced an anger management program through a private counsellor. This has occurred following proceedings being commenced in July 2022. From May 2022 shortly prior to separation, the mother says the father started saying things like “there are ways to fix X in India.” She became worried the father would attempt to seek some form of treatment of the child in India with respect to gender. She is aware that such “programs” exist in India.
The mother, following separation, sought a referral from the general practitioner for counselling. She has engaged the child in that. The father is concerned that the mother’s attitude towards gender issues has, in some way, infected the counselling being conducted. The expression used was hovering over all counselling sessions, or something of that sort. It is difficult on the material that was tendered for me to conclude that. Certainly the counselling has occurred. The mother has frequently been present. It seems sometimes the grandparents have taken the child. It is not clear on the material whether the mother has been present on all occasions. It is not possible to make a finding with respect to that.
The child would benefit from some support, given the dramatic changes that have been happening recently in terms of living arrangements, housing, schooling and the involvement of the father. The father sets out in his affidavit a very different picture of his relationship with the child than that presented by the mother. He refers to being very involved pre-separation, and particularly in the child’s early years. There was a period in April 2022 where the mother had an operation which required extensive recuperation. She did that at her parents’ home over April. He says over that period he had substantial care of the child.
The mother refutes that. She says her parents, particularly her mother, provided extensive care of the child over that period. The evidence is unclear about precisely what happened.
It seems that there are real issues on the mother’s case relating to family violence. She sets out, with numerous examples, the father’s conduct which could be characterised by coercive and controlling behaviour. There have been times she alleges physical abuse. There is the incident in January with respect to the child. There are concerns about the child’s exposure to abuse by the father, and the risk of that occurring were time to occur.
The mother seeks an order for sole parental responsibility for the child. That is opposed by the father. It appears to me in the circumstances of this matter, given the fraught nature of the relationship between the parents, the nature of interim proceedings and the conflicting evidence, that I should not make any order for parental responsibility. Parental responsibility remains as it is at law.
On looking at the issues relevant to a determination of the interim applications, what needs to be weighed is the benefit to the child of a meaningful relationship with each of his parents, versus the risk of exposing the child to abuse, neglect, or family violence.
Those two primary 60CC factors are the most worthy of consideration. I do this on the basis that these are interim proceedings. I am not in a position to make findings where there are disputed facts. Both parties acknowledge this is a complex matter. The fact that I cannot make concluded findings does not mean that I can ignore the allegations raised, and the complaints detailed about the father’s conduct towards the mother and the child. I note that there is a current apprehended violence order. The father has been charged with an assault upon the child which has not yet been determined. Looking at the evidence, and the balance of risk for this child, I am required to weight the protection from harm over the benefit of a meaningful relationship.
On the evidence available I find that it is not appropriate for me to make orders for time arrangements with the father. The orders will include an order for a child impact report. This may shed some light on those matters. It may require the issue of time be looked at again prior to a final hearing. On the state of the evidence, it seems to me a cautious approach is required.
As regard to the issue of schooling, the child has been home schooled by the mother since separation. This is a very short period of time, because there has been a school holiday intervene. I understand that she is accredited to home school, and has permission from the Department of Education.
She has concerns about enrolling the child in the school previously attended. She is out of area for that school. Further the child may wish to dress as a girl, which was not the case previously at that school. That could cause problems for the child.
During submissions, I made clear my concerns about the impact on the child attending at a school as one gender, if I can put it that way, and things occurring that require a change of appearance at the school. Frankly, one would wish for school communities where there would be no issue about how a child presents to school, and where an experience of a gender diversity would go without comment or remark by others. But it is not clear to me that world yet exists.
I accept that there are many benefits for children attending at school. There are, for example, friendships, socialisation, diverse experiences, sport, and the benefit of education in a group. The mother seeks to enrol the child at D School, which is the primary school local to where she lives. The father opposes that and seeks an order that would require the mother to continue to home school. That application in part gave rise to the issue with respect to spouse maintenance. It seems to me that there are benefits for this child being enrolled at school. There has already been a break with the old school. D School is the local school to where the child is living, and is the appropriate place for the child to attend. I will make orders that permit the mother to enrol the child in that school. The manner in which that occurs is to be resolved between the mother and the school.
I have already dealt with the expert report, and that I will order a child impact report. The orders will provide for information to be given to the father, so that he understands what is happening for the child in terms of health, education, and the like.
Spouse Maintenance
Turning to the issue of spouse maintenance, the Family Law Act sets out at section 72 the right of a spouse to maintenance; section 74 sets out the Court’s powers with respect to making orders for maintenance.
Right of spouse to maintenance
(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
The mother’s income as set out in her financial statement is from a scholarship. She receives $691 per week. She indicated that she had previously been able to undertake casual work, and earned additional income. However she had not been able to do so since separation due to home schooling the child. She referred in her affidavit to receiving in June 2022 two additional scholarships or grants with respect to a book project. It seems that were she to home school the child, it would interfere with her capacity to take up those scholarships or grants.
Home schooling would also interfere with her retaining the scholarship referred to in her financial statement. The two additional grants are $49,950 in total. That would mean that she would have an income substantially more than what she has at the moment. She would have each week $960 per week from the two scholarships, and $690 from her current scholarship. It is not clear what tax might be owed on those scholarship amounts; it is not referred to in her evidence.
The parties refer to funds held in a joint account. The mother drew $10,000 from that account in May of 2022 to meet expenses. The father drew $30,000 over a couple of different withdrawals, which depleted the funds to approximately nil. I understand child support is now being paid. The parties have an investment property from which the husband receives the income of $660 per week, and meets the mortgage payment of $865 per week. Both parties are in rental accommodation at a similar cost: $690 for the father and $650 for the mother. It is perfectly reasonable for the mother to have accommodation separate from her parents for herself and the child. The criticism of that in the father’s material is a little difficult to understand.
The parties have similar part N expenses. There is complaint by the mother about a lack of disclosure. I propose dealing with orders with respect to disclosure at the conclusion of these proceedings. There was an agreement during the course of the interim hearing for the sale of the Motor Vehicle 1. That has a value of approximately $40,000, which would provide $20,000 each for the parties. Otherwise, the husband has access to some $19,000 in accounts.
On the information provided, the wife would have an income of close to $1,650 per week on the basis of the three different scholarships. My understanding is that the two additional scholarships would be for an annual period. There is reference to a requirement for production of work by her by 1 August 2023. That is the basis upon which I have made the calculations. As I have said, there is no reference to tax paid.
I propose making the orders for the sale of the Motor Vehicle 1 and the division of those funds. That provides the wife with a lump sum of similar amount to that which was sought in her application. As there is no requirement for home schooling, and she will be able to meet her requirements for her further studies and the various scholarships. On that basis, I am not satisfied there is a present need for spouse maintenance to be provided.
The orders sought by the wife sought the sale of the investment property at Suburb H. There were no arguments advanced with respect to that during the course of the hearing by either party. It does not appear that those orders were pressed. This is an important matter for the parties to consider. I appreciate the husband says he wants to retain that property. How realistic that is, is unclear. There may be a necessity for a sale of the property and a division of the proceeds between the parties, so that they can get on with matters whilst they are seeking Court determinations with respect to their child. I am not going to deal with that today, as it seems to me the case was not conducted in that manner.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boyle. Associate:
Dated: 26 August 2022
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