Sawant and Karanth

[2014] FamCA 510

FAMILY COURT OF AUSTRALIA

SAWANT & KARANTH [2014] FamCA 510

FAMILY LAW – CHILDREN – International relocation – Where the parties have a long-standing conflictual relationship – Family violence – Risk of harm – Where the father’s attitude to the child and responsibilities of parenthood are in issue – Where the father has a limited but developing relationship with the child – Whether there is a benefit to the child having a meaningful relationship with both parents – Where India is not a signatory to the 1980 Hague Child Abduction Convention or the 1995 Hague Child Protection Convention – Where the child is to live with the mother – Where the presumption of equal shared parental responsibility is rebutted by family violence – Whether it is in the child’s best interests to permit the child to relocate to India with the mother – What time the child should spend with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2),(3) and (4), 61DA, 65DAA

AMS and AIF (1999) 199 CLR 160
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755
Malcolm & Monroe and Anor (2011) FLC 93-460
Mazorski v Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483
Morgan & Miles (2008) 38 Fam LR 275, (2007) FLC 93-343
Muldoon & Carlyle (2012) FLC 93-513
Sayer & Radcliffe and Anor (2013) 48 Fam LR 298
Taylor & Barker (2007) 37 Fam LR 461

APPLICANT: Mr Sawant

RESPONDENT: Ms Karanth

INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

FILE NUMBER: MLC 8166 of 2010

DATE DELIVERED: 14 July 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 5, 6, 7 and 8 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Brien

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schroder

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW Parramatta

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Snelling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

Orders

1. That the mother be permitted to relocate to India with the child K, born … 2010, (“the child”) forthwith.

2. That the mother have sole parental responsibility for the child.

3. That the child live with the mother.

4. That the child spend time with the father as agreed between the mother and father in writing, with such writing to include email and/or SMS communication and, in default of agreement, as follows:

   (a)By Skype or FaceTime communication or such other appropriate visual electronic communication medium at least twice per week between the hours of 5.00 pm. and 7.00 pm New Delhi time on Wednesday and Sunday evenings.

   (b)For a period of not less than ten (10) days in India in each twelve (12) month period from the date of these Orders to coincide with the child’s long summer school holiday period, with the mother within fourteen (14) days of the father informing the mother of his proposed travel booking of return economy class airfares from Sydney to New Delhi at the best fare reasonably available three (3) months prior to his travel, to facilitate payment of such fares on behalf of the father and in relation to such periods:

   (i)That on the first occasion of the father’s travel to India, provided that such travel shall be no more than twelve (12) months after the father last spent time with the child in Australia, the child spend time with the father on the first three (3) days of such period on a day basis between the hours of 10.00 am and 3.00 pm, thereafter for four (4) days on a day basis from 9.00 am to 5.00 pm, thereafter from 9.00 am on the next day to 5.00 pm on the day following and thereafter from 9.00 am on the next day for two (2) consecutive nights concluding at 5.00 pm on the last day, and otherwise as agreed to by the mother and father;

   (ii)That on the second and each subsequent occasion of the father’s travel to India, provided that such travel shall be no more than twelve (12) months after the father last spent time with the child in India or Australia, the child shall spend time with the father from 9.00 am to 5.00 pm on the first two (2) days and thereafter from 9.00 am on the next day for two (2) consecutive nights concluding at 5.00 pm after the last night and then from 9.00 am on the next day for four (4) consecutive nights to 5.00 pm on the last day, and otherwise as agreed to by the mother and father.

   (c)On other occasions that the father is able to travel to India upon him providing to the mother not less than one (1) months’ notice in writing of his intended travel, at such times as are agreed between the mother and father, and in default of agreement, from 9.00 am to 5.00 pm on the first two (2) days and thereafter from 9.00 am on the next day for two (2) consecutive nights concluding at 5.00 pm after the last night and then from 9.00 am on the next day for four (4) consecutive nights to 5.00 pm on the last day and thereafter as agreed, provided always that if such period is during school term, the father shall ensure the regular and prompt attendance of the child at school whilst the child is spending time with him.

   (d)For a period of not less than seven (7) days in Australia in each twelve (12) month period from the date of these Orders, from 9.00 am to 5.00 pm  on the first two (2) days and thereafter from 9.00 am on the next day for two (2) consecutive nights concluding at 5.00 pm after the last night and then from 9.00 am on the next day for three (3) consecutive nights to 5.00 pm on the last day and thereafter as agreed, with such period to coincide, if possible, with the child’s school holidays in India upon the mother giving to the father not less than three (3) months’ notice in writing of such period and provided always that the mother shall pay the cost of the child’s return economy class airfares to Australia and the child be accompanied by the mother or a person known to the child nominated by the mother until such time as the child is able to travel internationally as an unaccompanied minor.

   (e) On such other occasions as the mother and child may be in Australia as agreed between the mother and father with times the child is to spend with the father to approximate the times provided for in (d) above.

5. That the child K, a male, born … 2010, be permitted to travel internationally and that, for this purpose, the child’s name be removed from the Airport Watch List (PACE Alert System).

6. That the mother be restrained from applying for a passport for the child until such time as she has facilitated the sum of AUD$25,000 being paid to the father’s solicitors, Rafton Family Lawyers, to be held by that firm in a controlled interest-bearing money account in trust for the father and the mother, with funds from that account to be applied:

   (a)as directed by the mother and the father jointly in writing;

   (b)in payment to the father of the cost of his airfares in travelling to India in the event that the mother fails to pay for the father’s airfares, as provided for in the Orders above; or

   (c)in payment of the balance remaining in the account in the event that the mother fails to comply with the Orders above as to the child’s time with the father in Australia and such sum may be applied by the father as he sees fit in seeking to enforce the compliance by the mother with her obligations provided for in these Orders either in Australia or in India, and any travel expenses reasonably incurred by the father in so doing.

7. That subject to the payment of AUD$25,000 as provided for in the Orders above being confirmed by the father’s solicitors, Rafton Family Lawyers, the mother, Ms Karanth, may apply for a passport for the child, born … 2010, without first obtaining the consent of the father, Mr Sawant.

8. That the mother use her best endeavours to procure for herself and other members of her family the discontinuance of any proceedings commenced as against the father or any member of his family in India so as to facilitate the father travelling to India without risk of arrest or the existence of any proceedings against him or his family.

9. All outstanding applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sawant & Karanth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: MLC 8166 of 2010

Mr Sawant

Applicant

And

Ms Karanth

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The internet-initiated romance of the parties has left the child of their very short marriage in most uncertain circumstances.

2. The Applicant mother seeks to relocate with the child, now aged 4, to India, a country where orders of the Family Court of Australia are not recognised and are unenforceable. The prospect of the Respondent father seeing the child again if the mother relocates is largely dependent on the mother’s goodwill.

3. The father seeks to have the mother remain in Australia, with the child living with her and with him ultimately having age-appropriate time with the child.

4. The mother and her family come from New Delhi in India. The father migrated to Australia in 1997 and has lived in Sydney. In 2005 the father obtained Australian citizenship. The father, however, has extensive family in India.

5. The mother’s family, comprising her parents and two of her sisters, live in New Delhi. One of her sisters lives in Canada.

The marriage

1. Arrangements were made for the mother and father’s family to meet in New Delhi in September 2009.

2. The mother and father first met face-to-face in early October 2009 and on … October 2009 they married in New Delhi, India. At the time of marriage the mother asserts that there was a significant dowry paid to the father, both in cash and in items of jewellery.

3. At the time of marriage the father did not inform the mother that he had been previously married and divorced. The father falsely swore on an Application for Certificate of No Impediment to Marriage that he had not been married before. He asserts that the mother forced him to write “No” on the form.

The wife’s visa and her travel to Australia

1. Subsequent to marriage the mother and father applied for a spouse visa so as to facilitate the mother returning to live in Australia with the father, notwithstanding he says there was pressure from the mother and her parents for him to move to Canada.

2. Whilst awaiting the outcome of the visa application the father’s employment in Sydney with a local authority was terminated because of his extended stay in India.

3. The mother was informed during the visa application process by an officer at the Australian High Commission that the father had been previously married. The father denied that he had been previously married and asserted that it was a mistake by the officer.

4. On 26 January 2010 the father left India to return to Australia. At this time the mother was 3 and a half months' pregnant with the parties’ child.

5. In late January 2010 the father acknowledged to the mother that he had been previously married and divorced. There is no doubt that the father’s disclosure caused the mother and her family some distress.

6. The mother’s application for a spouse visa was subsequently approved and she left India arriving in Australia in May 2010. The mother asserts that she brought with her to Australia jewellery received as gifts from her parents and her grandparents.

7. The father and mother commenced to reside in a two-bedroom house that had been occupied by the father and his brother Mr B, who was unemployed. After her arrival in Australia the mother asserts that she gave to the father her jewellery and in July 2010 the mother and father opened a joint safety deposit box at the Commonwealth Bank of Australia.

8. The father was not in employment following the mother’s arrival in Australia. The father was offered employment in a warehouse but declined the job. He did not advance any reason for so doing. The result was that the parties had minimal income from government benefits. The father says the parties argued and the mother was very unhappy in the marriage.

9. The mother observed him to drink heavily, although the father says he stopped drinking after he was baptised in September 2010, after separation.

10. The relationship between the mother and father deteriorated shortly after the mother’s arrival. The mother asserts that the father was short and dismissive of her and that he would absent himself from the home without explanation.

11. The mother asserts that within two months of her arrival in Sydney the father had assaulted her, pushing her with his open hand against her shoulder causing the mother to lose balance, with the father grabbing her in time before she fell to the ground. She has given differing versions of this incident that, to her recollection in cross-examination, it happened in Sydney before the parties moved to Victorian Town C. This, notwithstanding the allegation in her affidavit sworn on 26 August 2010 that the incident occurred in Town C and as a consequence she was taken to the local hospital, she conceded that she made no complaint at the hospital saying that she was unable to do so because the Sawants were with her.

12. The mother says that by late May the father had expressed his concerns about lack of money, requesting the mother to ask her family in India to forward monies to assist them. The mother says there were several transfers of funds from India in the May to July 2010 period, with the funds being used to pay the parties’ rent. The maternal grandmother estimates that between May 2010 and July 2010 she transferred approximately CAD$2,500 to assist. The father denies any knowledge of support from the mother’s family, yet does not explain how they paid rent and met living expenses on his Centrelink benefit alone.

13. In early July 2010 the mother complains of a further incident where the father held her shoulder tightly, squeezing her jaw and saying to the mother “ask your parents for money or I will call the police and get you deported”. It was at this time that the mother first expressed her wish to go back to India.

The move to Victorian Town C

1. In June/July 2010 the parties received a notice to vacate their rented premises at Sydney Suburb D. At this time the father informed the mother that he had spoken to a friend in Town C, who had offered for the mother and father to live with him. The mother expressed concern as a consequence of the imminent birth of the parties’ child. The mother attended at Suburb D Hospital for a last general check-up on 13 July 2010 and the mother’s file was transferred to Town C.

2. In mid-July 2010, two weeks before the birth of the child, the parties in company with the husband’s brother Mr B travelled to Town C in Victoria to the home of Mr and Ms E. The home was a three-bedroom townhouse also occupied by Ms E’s parents and twin children aged less than 12 months.

3. The mother felt unwelcome in the household of Mr and Ms E and felt controlled by the father, who she says restricted her movements both within and outside the home.

4. The father returned to Sydney for several days shortly before the birth of the child to collect items in storage. He asserted it was in late June 2010.

5. The father at first denied he received a phone call from his brother in Town C about the mother’s concern that the baby was not moving. Yet the mother attended hospital on two occasions for that very reason in mid-late July 2010 and the father deposed to that very fact of the call from his brother in his affidavit sworn on 9 September 2010 (annexure AA8).

6. When put to the father that he had lied about returning to Sydney in late June 2010, he shrugged off the question and responded “well my friends were looking after her and I came back straight away when I got the phone call”.

Prior to the birth

1. On … July 2010 late in the evening the mother attended the local hospital complaining of reduced foetal movements. After examination the mother was discharged shortly thereafter. The mother again attended the local hospital with Mr and Ms E on the morning of … July 2010 and was discharged home after further examination.

2. Shortly after arrival in Town C the father left for Sydney, returning to Town C on … July 2010. On his return from Sydney the mother complained to the father about the way she was being treated by Mr and Ms E.

3. Prior to the birth of the parties’ child, the father’s brother Mr B emailed the mother’s sister in Canada a list of maternity items required by the mother on her admission to hospital. Subsequently, the father spoke to the mother’s sister requesting that she provide the items on the list. This request is reflective of the parties’ poor financial circumstances in Town C.

4. On the evening of … July 2010 the mother again attended the local hospital and after examination was discharged. The mother was scheduled the following morning for an induction of labour. On the morning of … July 2010 the father and mother attended at the local hospital and the parties’ child was delivered at about 2.00 am the next morning.

5. The mother complains that, following the birth of the child, the father said to her, not for the first time, words to the effect of “I am giving this child to my sister in Norway”.

After the birth

1. Following the mother’s discharge from hospital on 1 August2010 a post-natal nurse attended at the parents’ home in Town C on 2 August 2010 and on 3 August 2010. It was noted that there was no bassinette or cot for the child, who was co-sleeping with the parents. Otherwise, nothing of concern was noted by the nurse, nor was there any complaint by the mother in relation to the father.

2. Staff at the hospital had telephone contact with the mother and father on 5 August 2010 as there were difficulties in relation to the child’s feeding. The father informed the hospital staff member that the previous evening they had attended the hospital in relation to concerns over the baby’s loose stools, difficulties in breast feeding and the child being unsettled. On 7 August 2010 staff at the hospital again spoke to the father, who said that they had been at the hospital again the night before with concerns in relation to the child.

3. On 9 August 2010 the mother and father attended the local hospital Emergency Department at about 9.00 pm with concerns over the child’s nappy rash, a rash on the child’s mouth, sounds the child was making when sleeping and feeding difficulties.

4. On 12 August 2010 staff at the hospital spoke to the mother who said that she had suppressed lactation. The mother said that she was now feeling well but that she remained swollen where stitches were inserted following the birth of the baby.

5. Throughout this post-natal period the mother complains of little support from the father. She says that he provided little for the child and she was reliant on her parents to be able to acquire things for the child. She complains that the child was required to sleep on a mattress on the floor with her and the father as there was no cot and this complaint is supported by the hospital notes. The father remained unemployed and would absent himself from the home without explanation.

6. The mother says the father appeared possessive of the child, allowing the mother only to hold the child when feeding, changing and comforting the child when the father was in the home. The mother complains that she was mostly restricted to the bedroom in the home and had no support, no social interaction or attention and was permitted a limited telephone contact with her family in India.

7. The father complains that the mother did not bathe the child for about seven days after the child’s birth. He asserts in another affidavit it was for 10 days. The hospital records simply do not support such a complaint, nor do they reflect any concern raised by the father as to the mother’s care of the child.

1. The mother says that on or about 6 August 2010, following an incident between her and the father, she attempted to call the police by dialling 000. Ms E’s mother disconnected the call and later that evening the mother complains that Ms E threatened her saying “if you ever call the police again I will have you arrested and imprisoned.”

15 & 16 August 2010

1. On 15 August 2010 at about 9.00 am the mother finished feeding the child, who was then taken from her arms by the father. The mother says that the child began to cry and the father then slapped the child on both sides of his face and threw the child onto the mattress on the floor. The mother says that the child was about 1 metre off the mattress when thrown by the father. The mother says the father was enraged, walked over to her and grabbed her hair, put his hand around her neck and squeezed her windpipe screaming “I’ll kill you. I’ll fuck up your life, you bitch you don’t know the law here. I know the police. I know the police because I work for [a local authority] and you don’t know what I am going to do with you.” The mother said at this point she was against the wall and she slid down and sat on the mattress. She says the father then swung his leg at her and kicked her with force in the area where she had several stitches after giving birth to the child. The mother later complained of this incident to her sister in Canada and her mother.

2. The mother demanded that the father take her to hospital. He did not. The father suggests that the mother did not ask to be taken to the hospital but that upon the mother saying she felt uneasy at about 5.00 pm that evening he took her for a drive, leaving the child with his brother. The father in fact drove to a local service station, made a phone call and then returned to the home at Town C. The father informed the mother that they were returning to Sydney.

3. When they returned to the home of Mr and Ms E, the mother commenced packing upstairs and the father took the child downstairs. The mother says that later Mr and Ms E came to her room after the father had taken the child in the car and said “Your husband has left with [the child] for Sydney. Pack your bags and leave.”

4. The father asserts that the mother was guilty of “destabilising behaviour” in that she attempted to call the police on 15 August 2010, that she would go out for a smoke when she was pregnant and that she created a scene from time to time. He asserts that he was taking the child for a short drive to try and settle the child who was unsettled after a feed.

5. The mother then threatened to call the police. Mr E called the police, who arrived a short time later. The mother telephoned a friend of the father, Mr KS, in Sydney and asked him to find out where the father had taken the child. The mother overheard the police talking on the phone to Mr KS and then to the father.

6. The mother was taken to the local police station by the police and the father returned to the home of Mr and Ms E in Town C, where he says he spoke to a police officer. The father had no concern about the mother being accommodated, saying “the police said they had provided accommodation and there was no need as the [support] workers would take care of her.” It was his desire at that time to end the relationship.

7. The father thereafter attended at the police station without the child. The mother alleges that in Punjabi the father said to her, in the absence of any police officer, “If you tell the police anything about the violence today I will kill [the child]. He is with me tonight”.

8. At the police station the mother was later, in the early hours of the morning, interviewed and provided a statement with the assistance of a Punjabi interpreter, which was completed at about 5.45 am on 16 August 2010.

9. The police subsequently arranged for the mother to be accommodated in a nearby motel and the mother later made a statement to the police as to what had taken place and, as a consequence, an interim Apprehended Violence Order was made for the mother’s protection.

10. The police thereafter attended at the home of Mr and Ms E and returned the child to the mother. The next morning the mother was assisted by a community organisation that provided clothes for the child, nappies and other necessary requests. The Department of Human Services in Town C interviewed the mother and arranged for her to be examined by a Dr G.

11. On 16 August 2010 the father was charged by the police with various offences, including making a threat to kill, recklessly cause injury and unlawful assault. The charges were ultimately dismissed; however, in the conduct of those proceedings, Mr KS on behalf of the father gave evidence that the mother had recanted to him her allegations as to the father’s conduct on 15 August 2010. The police were ordered to pay the father’s costs. The evidence of Mr KS will be referred to later.

12. The mother was examined by Dr G, Forensic Medical Officer, on 16 August 2010 in Town C. He observed two bruises on her neck and noted the mother reported “extensive tenderness all over her vulva, worse anteriorly where she reported being kicked.” Dr G reported that the bruises were caused by “nonspecific blunt force” and that the tenderness in the vulva region was “not normal after vaginal delivery and may be the result of nonspecific blunt force.”

13. The mother conceded in cross-examination that she had complained to the local hospital on 12 August 2010 of swelling. The complaint is confirmed by the hospital notes (Exhibit M).

14. The mother made arrangements with Mr KS and his wife Ms KS to stay at their home in Sydney. The mother and child travelled to Sydney by train on 17 August 2010. On the same day at the Town C Magistrates Court the application for the Apprehended Violence order was struck out as the mother had left the State and did not attend (Exhibit O).

18 August 2010

1. After arriving in Sydney, the mother on the afternoon of 18 August 2010 at about 1.30 pm was walking with the child in a stroller on I Street, Suburb H, being the road on which the premises were where the mother was staying with the father’s long-time friend, Mr KS and his wife. The father approached the mother and grabbed her by the arm and said “I have taken your gold from the bank. Go and tell the police, I don’t care.” She says the father then kicked the stroller. She reported the incident to Mr KS and the next day attended at Suburb H Police Station with Mr KS to make a complaint. The mother returned to the police station on 24 August 2010 where a formal statement was taken.

2. Subsequent to the mother’s complaint, the police contacted the father by phone on 24 August 2010 and he denied the incident. After contacting the father by phone on 20 September 2010 the father attended Suburb H Police Station on 22 September 2010, where he was arrested and charged.

3. Notwithstanding the denials by both the father and Mr KS that the father had not been told where the mother was staying, it is difficult to accept that a long-time friend of the father would not have told the father that his wife and new baby were staying with him and his wife. The strong inference is that the father knew where the mother was staying and had gone to that area intentionally.

4. The mother and Mr KS later attended at the Commonwealth Bank of Australia where the mother found that the joint safety deposit box had been emptied by the father, who had obtained another key to the box.

5. As to this incident on 18 August 2010 the father says that he was at the Commonwealth Bank of Australia in the CBD of Sydney that day taking his belongings out of his personal safe at the bank. Exhibit T evidences that the father accessed the safety deposit box at 12.27 pm that day, having declared to the bank that he had lost the key. Prior thereto he says that he had driven through the night from Town C to his friend’s place at Suburb H, the same area in which the mother was staying, and then to the city, attending at the bank, making an application for a duplicate key and then returning to the bank to withdraw items from the safety deposit box.

6. The father says that that evening he had dinner with a friend, Mr J, in the city and after dinner returned to that friend’s home at Suburb H to rest before driving back to Town C the next morning.

7. The father’s whereabouts during the course of the afternoon are not explained and his friend was not called by the father to give evidence.

8. There is a strong inference that the father left the bank, travelled to I Street, Suburb H and confronted the mother. There is no other explanation for the words allegedly spoken by the father to the mother and her telephoning Mr KS for help, telling him what had happened. She had no other way of her knowing that the father had gone to the bank and accessed the safety deposit box.

The early litigation

1. On 24 August 2010 the mother and Mr KS attended the Suburb H Police Station where she was provided with a copy of ex parte Orders made in the Magistrates Court of Victoria at Town C on the application of the father. Those Orders, in summary, provided:

   a)that the mother and father have equal shared parental responsibility for the child;

   b)that the child live with the father;

   c)that the child spend time with the mother each day for two (2) hours as agreed or, in default, from 9.00 am to 11.00 am;

   d)that the mother be restrained from removing the child from the Commonwealth of Australia;

   e)that the child’s name be placed on the Airport Watch List;

   f)that the mother deposit her passport with the Registrar of the Family Court of Australia at Melbourne;

   g)that a Recovery Order issue to find and recover the child and deliver the child to the father in the state of Victoria; and

   h)that the mother be restrained from removing, or attempting to remove, the child from the day-to-day care of the father.

2. The father says that he commenced proceedings in Victoria as he was concerned the mother would attempt to flee Australia with the child. He says that he had held this concern since the child was born.

3. The NSW Police were reluctant to execute the Recovery Order and correspondence passed between Suburb H Police Station and the Australian Federal Police on 24 August 2010 to that effect.

4. The mother made a further statement to the police on 24 August 2010 and a NSW Provisional Apprehended Violence Order was made and the application was listed before a court on 15 September 2010 and then on 6 October 2010, on which date an interim Order was made for the mother’s protection.

5. On 24 August 2010 the mother, accompanied by Mr KS, attended at the Family Law Courts at Parramatta. The mother obtained a grant of legal aid and her Response to the father’s application was filed and listed before the Magistrates Court at Town C on 26 August 2010. By agreement between the mother and father’s legal representatives, the operation of the Recovery Order was stayed until 30 August 2010.

6. After 24 August 2010 the mother was asked by Mr KS and his wife to leave their home, notwithstanding that they had made arrangements through the Sikh community for the provision of periodic financial support for the mother. The mother says that she was asked to make other arrangements as her presence in the home was causing Mr and Ms KS’s family life to suffer.

7. The mother’s family made arrangements for her to move to the home of a family friend, where she stayed for several days, and then to the home of her cousin Mr K.

8. However, the stay Order in relation to the Recovery Order expired on 30 August 2010 and, notwithstanding that proceedings in the Magistrates Court at Town C had been transferred to the Federal Magistrates Court (as it then was) in Melbourne and were awaiting a listing, on the evening of 30 August 2010, police attended at the mother’s residence with the father, who was accompanied by Mr and Ms KS. The police placed the child with the father, notwithstanding that the child was one month old and the mother was still breastfeeding. The father did not consider the child would be upset by being removed from the mother’s care, asserting that it was in the child’s best interests.

9. The mother’s application before the Court in Melbourne was listed on 15 September 2010. The father in the meantime returned to Town C with the child and the mother was informed that she could see the child in Town C.

10. On 15 September 2010 the mother flew to Melbourne for the interim parenting hearing, her parents having paid for her airfares. On that date, Orders were made that, in summary, provided:

    a)that proceedings be transferred to the Parramatta Registry of the Federal Magistrates Court of Australia;

    b)that the Department of Family and Community Services be requested to intervene in the proceedings;

    c)that the father return the child to the mother by 4.00 pm that day at the Town C Police Station;

    d)that, until further order, the child live with the mother;

    e)that, until further order, the child spend time with the father for a period of two hours as agreed, or failing agreement, 11.00 am to 1.00 pm each second day, commencing after the father advises the mother’s solicitors that he has commenced to live in the Sydney metropolitan area, and at other times as the parties may agree;

    f)that for the purposes of changeovers for the child’s time with the father that those changeovers take place at the L Community Centre, Sydney;

    g)that Orders made in the Magistrates Court at Town C be discharged;

    h)that the father and mother be restrained from removing, or attempting to remove, the child from the Commonwealth of Australia; and

    i)that the child’s name be placed on the Airport Watch List.

11. The father moved back to Sydney in mid-September 2010, staying with a friend, to enable him to spend time with the child in accordance with the Orders made on 15 September 2010.

12. On 24 November 2010 an interim Apprehended Violence Order was made at the Suburb D Local Court for the protection of the mother. On 18 February 2011 the interim Order was revoked. The circumstances of that Order are unclear. The matter later proceeded to final hearing and the application for the apprehended violence order was dismissed. There is no evidence as to the basis upon which the application was dismissed.

13. Subsequent to the child being returned to the mother’s care, there was a delay in the mother receiving Centrelink benefits as the child’s birth had not been registered. The mother received financial support from her family in India. The mother was residing in shared accommodation with her cousin Mr K in Suburb D at the time.

14. Orders for the child’s time with the father were varied on 2 November 2010, with changeovers to be effected at Suburb M railway station.

15. On 3 December 2010 at about 11.00 am the mother met the father at the railway station for the purposes of a changeover. The mother requested that the father return to her the child’s baby clothing. The father refused and the mother said to him “I will call my solicitor”. The mother asserts that the father then bent over the pram, in which the child was seated, and said to the mother, “today I’m going to kill you”. The father denies that he said the words alleged.

16. As a consequence of the father’s threat, the mother contacted the police and the father was arrested. The father was charged with a breach of the Apprehended Violence Orders and stalking and intimidating the mother and bail was refused overnight. On 14 March 2011 the police, for reasons unknown, withdrew these charges against the father and the charges were dismissed with consequent Orders that the police pay the father’s costs.

17. As a consequence of the incident on 3 December 2010, the child spent no time with the father until 3 February 2011 when further Orders were made for changeovers to be effected at a supervised contact centre. Subsequently, the Orders were further amended to provide for the father to have time with the child for a period of four hours, with changeovers to continue to occur at the N Contact Centre. This arrangement remains in place as at the date of hearing.

18. On 14 February 2011 the father wrote to the Department of Immigration and Citizenship seeking to withdraw his sponsorship and assurance of support for the mother that was a condition of her obtaining a visa to live in Australia following her marriage to the father. For the first time, in that letter he makes complaint that the mother’s motivation to the marriage was to facilitate her ultimate ability to relocate to Canada, he does not replicate these complaints in his evidence in these proceedings.

18 February 2011

1. The mother further complains that on 18 February 2011 at about 2.00 pm she was walking in a laneway in Suburb D towards the Centrelink building pushing the child in his pram. She says that she was struck to the right side of her thigh with enough force to knock her into a small fence close to the sidewalk. The mother received injury to her fingers and both of her hands were bleeding. The mother observed that the father was driving the vehicle and Mr KS was in the passenger seat and the father yelled out the window threats to kill both her and the child. The mother says that the incident was witnessed by a woman nearby, who accompanied the mother to Suburb O Police Station and then later met the mother at Suburb D Police Station, where statements were taken.

2. Police entries in relation to the incident confirm that the incident was observed by an independent witness, whose details are known to the police. The police observed injuries on the mother, including swelling to her upper right thigh and minor bleeding to both hands (see father’s affidavit at annexure AA23 – NSW COPS entries). The mother attended the Q Medical Centre, Suburb D as her right thigh and hands were bleeding. The mother informed police that she attended the medical centre.

3. The father alleged to the police that the mother had a history of making false allegations.

4. The police, who were unable to substantiate any of the father’s alibi assertions, save for the statement by Mr KS, his friend, who asserted that he was at all times in the father’s company, later withdrew charges against the father as the witnesses, including the police witnesses and the independent witness, were not available to give evidence. There was no determination on the merits.

17 May 2011

1. On 18 May 2011 the mother attended at Suburb D Police Station. The previous evening she had received a text message from an unknown person from an identified mobile phone number. The message read “ur husband [Mr Sawant] is saying to withdraw the case otherwise he will kill both of you and ur son”. The police made inquiries in relation to the number and ascertained that the registered ownership details of the mobile phone number were false, with an address that did not exist and a name that could not be linked to a particular person.

2. The police, however, attended upon the father at premises at R Street, Suburb H on the morning of 10 June 2011. The father denied contacting or intimidating the mother through a third party. The police took no further action.

15 June 2011

1. On 15 June 2011 the father, accompanied by a friend, Mr S, aged 23, attended at Suburb D Police Station. It was alleged by the father and his friend that at an unknown time in early April 2011 the mother was residing with Mr S after separating from the father. Mr S claimed to the police that the mother said to him, “Do you know anyone I can use to get [the father] killed?” Mr S did not advise anyone of this and the mother later moved out of his residence. The father informed the police that a week before attending the police station he had spoken to Mr S and became aware of the incident. The father informed the police that he had told his solicitor and, subsequent to speaking to his solicitor, he then attended Suburb D Police Station.

2. The police COPS entry (father’s affidavit at annexure AA23) reveals that the father had initially wished the police to apply for an apprehended violence order on his behalf as he had “fears” for his safety. After speaking to the father and Mr S the police were reluctant to believe the claims of both parties. The father informed the police that he did not want the police to speak to the mother in relation to the allegation and simply wished for a report number for his records for his solicitor.

1. This incident is concerning as the mother had never resided with Mr S and there is a strong inference that the father procured Mr S to make a serious and false allegation in relation to the mother.

The father’s witnesses

1. The father relied upon supporting evidence from his long-time friends, with whom the mother and father stayed, in Town C, Mr and Ms E.

2. They both assert that the mother, prior to the birth of the child, was smoking whilst living in their household. Mr E identifies this issue as the source of conflict between the father and mother. Their criticisms in relation to the mother’s care of the child, particularly as to breastfeeding and bathing, are not supported by documents in evidence from the local hospital. They made no complaint about the mother’s care of the child when the police attended at their home.

3. Otherwise, they give very general evidence in relation to the incidents that took place in their house in August 2010. The assertions by Ms E that the mother had complained to the police that she and Mr E had tortured and harassed her are not supported by the police records. Neither witness offers any assistance in relation to what transpired between the parties in Town C in August 2010.

4. Mr KS has been a friend of the father for about seven years. They met together when they both worked at a local authority in Sydney. He gives evidence that on 16 August 2010 the mother telephoned him in Sydney telling him that the father had hit her and the child and that she wanted to come to Sydney. After speaking to a police officer, presumably an officer in Town C, Mr KS agreed to accommodate the mother and child at his home where he and his wife resided.

5. On the evening of the mother’s arrival she repeated her allegations as to the father’s conduct to Mr KS in the presence of his wife. He agreed that the mother could stay with them for as long as she needed. He later, on 19 August 2010 he says, accompanied the mother to the Commonwealth Bank of Australia in the CBD, where the mother checked the safety deposit box. On their return journey to his home, the mother spoke to her parents by phone, as did Mr KS, who was thanked by them for his assistance to the mother. Mr KS says that on 20 August 2010 the mother attended at Suburb H Police Station to make a complaint as to the father’s conduct on 18 August 2010 (referred to above).

6. Subsequently, the mother informed Mr KS that the father had commenced family law proceedings and asked whether he would write an affidavit supporting her. Mr KS attended upon the mother’s solicitor and an affidavit was duly prepared for the purpose of proceedings then before the Magistrates Court in Town C. Mr KS in his affidavit for the purposes of these proceedings, sworn on 22 October 2013, says that he later spoke to the father who denied the mother’s allegation. Mr KS asserts that he confronted the mother, who recanted her allegations as to the father’s conduct both in Town C and on 18 August 2010. Mr KS asserts that he later spoke to the mother’s parents and sister, who were in Canada at the time. Circumstances of those conversations were not put to the maternal grandmother in cross-examination, nor was the mother’s sister required for cross-examination.

7. Mr KS, on about 22 August 2010, asked the mother to leave his home, having on the previous day spoken to the mother’s solicitor, informing her that he wished to withdraw his affidavit for personal reasons.

8. Mr KS denies any involvement or knowledge of the incident that the mother alleges took place in about mid-March 2011, in respect of which the mother made a complaint at Suburb D Police Station on 22 April 2011. In fact, the incident was on 18 February 2011 and the mother attended the police station promptly that day.

9. In oral evidence, Mr KS was confronted by his affidavit sworn on 26 August 2010 in the Magistrates Court at Town C. The affidavit was sworn after the mother had ceased residing at his home, asserting that the mother left his home on 24 August 2010. In the affidavit he makes no reference to his conversations with the mother on 16 August 2010 and then again on her arrival with the child at his home. Those conversations are set out in detail in his affidavit sworn on 22 October 2013.

10. In the affidavit sworn on 26 August 2010 Mr KS makes no reference to his conversation with the father, his assertion that he thereafter confronted the mother and his further assertion that she thereafter recanted her allegations as to the father’s conduct. He makes no reference to his assertion that, as a consequence of the mother recanting, he requested her to leave his home. In fact, he says that she did so as her parents had made arrangements through friends for the mother and child to move elsewhere. He went on in that affidavit to say that “I am prepared to assist [the mother] and [the child] in whatever way I can for them to settle into Sydney.” The affidavit was sworn two days after the mother and child had left his home.

11. There is no doubt that Mr KS was conscious that there were allegations of domestic violence perpetrated by the father when he facilitated the mother and child moving to his home. He observed the mother to be very distressed and that she told he and his wife of being physically punched, her hair being pulled and the child being slapped by the father. His affidavit sworn on 26 August 2010 was, on his own evidence at trial, sworn after he had spoken to the father, after he asserts the mother had recanted her allegations and after she had left the premises and after he asserts he contacted the mother’s solicitor to withdraw his affidavit that, at that time, he clearly had not as yet sworn.

12. Mr KS was further confronted with a copy of the Statutory Declaration made by him at the request of the father supporting the father’s partner visa application to facilitate the mother moving to Australia. He conceded in cross-examination that the Statutory Declaration contained a lie to the effect that he had known the mother “for the last four years as a good family friends (sic) and [the father’s] partner. We keep in touch almost every day through phone and emails”.

13. No evidence was called from Mr KS’s wife, who was, on his evidence, involved in the mother’s circumstances in their home and, by inference, in the exclusion of the mother from their home for the reason now advanced by Mr KS. The mother’s alleged recanting of her allegations is a matter crucial to the father’s case. 

14. The Court does not accept Mr KS as a witness of truth as to his assertions as to the mother’s recanting of her allegations in relation to the father. He either deliberately misled the Court in his affidavit of 26 August 2010 or his evidence as to this issue in his trial affidavit is a fabrication to assist the father. The Court is satisfied that his evidence at trial on this issue is a fabrication.

Proceedings in India

1. In 2011 the mother commenced proceedings in India against the father and other members of his family in relation to three issues:

   a)dowry demands from the father and his family;

   b)domestic violence against the mother during the relationship; and

   c)fraudulently entering into the marriage by telling untruths.

2. The proceedings are ongoing and the mother has been required to travel to India on several occasions to attend court events.

3. In December 2011 the father did not attend proceedings in India and consequently the mother asserts a warrant was issued for his arrest for him to attend court and to meet the charges. The warrant remains in force.

4. The mother alleges that the father on several occasions whilst the mother was in India and the child was being cared for by the maternal grandmother made welfare complaints to the police, necessitating the police attending at the mother’s residence to ascertain the circumstances of the child.

5. The mother asserts that in the event that she is able to relocate to India, she would facilitate a withdrawal of all of the Indian proceedings, including those commenced by her parents.

6. It was the mother’s understanding that, in the event that she was able to relocate, orders reflecting the orders made in these proceedings could be made in the Family Court of India and, in that event, she would comply with those orders.

The mother’s current circumstances

1. The mother presently resides with the child in a two-bedroom shared rental unit at Suburb D. The child and the mother occupy the main bedroom and the other bedroom is occupied by Mr A and his wife. Her previous flatmate, Mr K, a distant cousin, moved out. She has no family support in Australia, save for Mr K. The other occupants of the unit propose to move out in the near future and it may be necessary for the mother to find other accommodation.

2. The mother, however, has reservations as to her being able to on her own afford appropriate accommodation for herself and the child in her current financial circumstances. The mother has no car and is reliant upon public transport and this poses difficulties for her in caring for the child when she needs to shop for the necessities of life.  

3. The mother has not thought about obtaining employment in Australia in the event that she is not permitted to relocate. She acknowledged that she has no alternative plan in the event that she is unable to relocate to India and she will have to give consideration to her future.

4. She would not relocate herself without the child.

5. The mother has no friends, save for ladies she meets at the park when with the child. The mother says that she has no assistance within the Indian community because she has been shamed as a separated mother and no one wants to associate with her. The mother says that in her culture it is not acceptable for a woman to be separated. It is a stigma, she says, and the woman is always looked at as being at fault. She says that the husbands of married women would not encourage a relationship with her because she is a separated person. This cultural element contributes to the mother’s social isolation in Australia.

6. The child attends day care two days per week on Mondays and Wednesdays. The child has a sound understanding of both English and Punjabi. The mother complains that she has not developed friendships with people over the time that she has lived in Australia. She says that her time in Australia has been traumatic in that she has experienced social isolation, domestic violence and been involved in protracted litigation. As well as experiencing some cultural difficulties from being a separated woman, the mother lacks support other than from members of her family, who are not present in Australia.

7. The mother complains that the father has, through the child, been disrespectful of her family, teaching the child to refer to family members by inappropriate names.

8. The mother and the father have had, in effect, no civil communication since separation. The father describes his relationship with the mother as “essentially non-existent”. Documents in evidence from the N Contact Centre (Exhibit N) demonstrate the complete lack of relationship between the mother and father. The father on occasions makes complaint that the mother is still in the vicinity of the contact centre after changeovers, and the father threatened to call police when a third party delivered the child to the contact centre. However, mostly changeovers at the centre have been uneventful.

9. Irrespective of this, the mother is still fearful of the father. In the event that she is required to remain in Australia with the child, the mother concedes it is appropriate for her and the father to seek some form of counselling assistance and for her to undertake some form of training to facilitate her entering into the workforce.

10. The mother says that the father has been unsupportive, particularly in relation to registration of the child’s birth, which was ultimately not affected until mid-2011. The father has provided minimal financial support to the mother and child since separation. At present, the father pays child support of $30 per month, notwithstanding that he is the current holder of an endorsed licence and the mother asserts that she has observed him engaged in driving jobs during the period since separation. The mother is presently in receipt of government benefits of about $1,100 per fortnight and, apart from modest child support, has no other source of income.

11. The mother has been assisted to some extent by the maternal grandmother who has visited Australia on several occasions. In 2011 the maternal grandmother was in Australia for about five months. The child developed a relationship with her during that time. The maternal grandmother visited again in late 2012 for about four months and then again in 2013 for another three months.

12. The mother has regular Skype communication with her parents in India and her sister in Canada. The child is familiar with the mother’s extended family and knows each of them by name.

13. Whilst the mother is in good physical health, she commenced counselling with the Dr T in late 2010 and later Dr P, psychologist, in January 2013. Dr P reports (report annexed to Doctor’s affidavit):

    … Currently, [the mother] displays mixed depressed and anxious mood for shorter periods of time as appropriate reactions to normal life events. [The mother] experiences low mood, sadness, emptiness, worries, hurt, hopelessness and helplessness when she encounters any reminders of the physical, emotional and verbal abuse inflicted upon her and her son [the child K] by her husband, [the father]. These also affected her appetite and sleep. Depressed and anxious mood are not a psychiatric disorder. The symptoms that she experiences are normal reactions to the triggers of her past trauma …

    Therapy sessions consisted of Cognitive Behavioural Therapy (CBT) as an evidence-based approach to the treatment of many types of emotional, behavioural and psychiatric problems. [The mother] learnt cognitive restructuring, problem solving, worry management, behavioural activation and relaxation through the CBT focused therapy sessions with me. [The mother] reported feeling more confident in herself and better with her management of depressed mood and/or stress with the use of those skills …

    …

    [The mother] is raising [the child] on her own without any support of her family as they are overseas. She lives in a shared accommodation and thus sometimes experiences loneliness and stress of everyday life events. She does not know many people in Australia as she migrated here to be with her husband. Despite these struggles [the mother] is well adjusted, emotionally balanced and able to carry out her daily tasks and responsibilities. …

14. The mother continues to attend upon her psychologist who, prior to the trial, last saw her on 15 April 2014. Asked as to whether the mother was not allowed to relocate to India that she was capable of emotionally facilitating a relationship with the father, Dr P was of the opinion that she would be capable of doing so and he was encouraged in that conclusion by his observations of the mother in sessions with him.

15. Dr P expressed the opinion that there would be an impact on the mother’s psychological well-being if she was forced to stay in Australia and that consequence would induce depression as her only motive to be in Australia was the father and the marriage. Dr P was of the view that she would descend into low mood, depression and feelings of hopelessness. Such a consequence, he said, would jeopardise her emotional and cognitive abilities and adversely impact on her parenting of the child, although such symptoms may dissipate over time.

The mother’s proposals

1. The mother seeks the Court’s leave to be able to relocate with the child back to New Delhi in India.

2. Apart from the support that the mother receives from her extended family in India, she has no other family or support in Australia. She would be unable to provide adequately for the child without her extended family’s help.

3. The mother proposes that she return to reside in her parents’ home where she grew up. The home is a two-storey home where she and the child would have use of the first floor. Her parents have maids who assist in the upkeep of the home and chauffers who drive their car. Both of the mother’s parents have businesses in Canada, her father has a security business and her mother has a clothing business, and her mother has a clothing business also in India not far from the family home. The business has three employees. The mother has had experience in and worked in her mother’s business before coming to Australia and it is the mother’s intention to return to work for her mother if she is permitted to relocate to India.

4. The mother proposes that the child attend U School in New Delhi, which is about 15 minutes’ drive from the home. She proposes to keep the father informed by regular mail updates about the child’s progress and would have no objection to the father speaking to the school directly.

5. The mother proposes that she will facilitate Skype communication between the child and the father each alternate day, or as required by the father, with the time difference not being a significant consideration.

6. The mother would encourage the father to come to India to spend time with the child and the mother is prepared to facilitate payment of the father’s return flights to India at least once a year so he can see the child. The mother otherwise proposes to come to Sydney with the child for one week in each year to facilitate the child spending time with the father. The mother would meet the costs of this trip. In cross-examination the mother agreed that she would consent to a longer block time for the child to spend time with the father in Australia of up to four weeks.

7. Once the child was old enough to travel alone, the mother would facilitate the child’s travel to Australia to spend time with the father, including time at Christmas and the summer holidays in Australia.

8. Otherwise, the mother concedes that it is appropriate for the child to have time with his extended paternal family in India, notwithstanding serious allegations made to the police by the mother as to the extended paternal family’s conduct towards her on one of her trips back to India after separation.

9. In the event that she is able to relocate, the mother seeks that she have sole parental responsibility for the child and that she be permitted to obtain an Australian passport for the child and that the child’s name be removed from the Airport Watch List.

10. The mother gives evidence that in the event of her being permitted to relocate with the child to India she would be in a position to provide security for her compliance with orders, with that security to be funded by her family.

11. If the father were to relocate to India, the mother sees that as a good thing for the child and she would facilitate time between the child and the father.

12. In the event that the mother is required to stay in Sydney with the child, she concedes that the child has a good relationship with the father and overnight time, when appropriate, should happen. Initially, the mother conceded one night per fortnight, progressing to perhaps two nights per fortnight after six months, and after six months, additional time with the father each fortnight, subject to the child settling into the arrangement.

13. The mother proposes, if in Sydney, to send the child to the local public school, which is adjacent to the child’s present child-care facility where he attends two days per week. The child is able to commence school from July 2015 but it is the mother’s proposal that the child commence full-time schooling in 2016.

14. The mother would have no objection to the father being involved in school and extra-curricular activities.

15. If in Sydney, the mother would confer with the father in relation to major decisions about the child. How that is to be facilitated is problematic.

The father’s current circumstances

1. The father describes his current relationship with his son in positive terms. The child knows and recognises the father and appears happy to see him when he collects him at the contact centre. The father appropriately engages with the child when the child is with him each Saturday, however, the mother does not permit the father to have telephone contact with the child in between visits.

1. This is a significant prospective consideration should the mother’s primary care of the child be required to continue in Australia. The probability of her capacity diminishing is supported by her counsellor. This would impact adversely on the beneficial nature of the child’s relationship with the mother.

2. As to the father, the circumstances that have ensued following separation speak for themselves. There is every prospect of the child continuing to be enmeshed in his conflict with the mother in circumstances where his willingness to make some beneficial contribution to the child’s life has not been demonstrated to date. The Family Consultant in oral evidence observed:

   … ultimately it comes down to the question which, as far as I can tell, is untested as the quality of [the father] as a parent in terms of [the child’s] life outcome. Children with at least one competent parent, if the other is not for whatever reason, will do better than children with two less than competent parents.  And unfortunately, because of the amount of time that [the father] has been spending with [the child], I think it’s entirely reasonable to say his capacity as a parent is untested.

3. The nature of the child’s prospective relationship with the father presents as a matter of concern by reason of a consideration of the factors referred to above. His relationship with the child in the context of overarching historical conflict, violence, social isolation of the mother, lack of financial support and inability to understand the needs of his young son reflect poorly on him. There is no confidence that his behaviour and attitude will change into the future when it is now 4 years after separation. Such a relationship cannot be meaningful for the child should the father maintain his conduct, were the mother and child to remain in Australia.

4. As referred to above at [161]-[163]:

   [161] … It did not appear to the Family Consultant that either parent had the capacity to support and facilitate the child having a meaningful and positive relationship with the other parent. However, if the mother was permitted to relocate, this would add substantial practical barriers to the child developing his relationship with the father. Neither parent gave the Family Consultant any indication that they had significant motivation or capacity to change this situation for the child.

   [162]   The Family Consultant concluded:

   … In light of these considerations it is likely to be in the child’s interests to live with one parent and spend limited, if any, time with the other. Similarly it is likely to be in [the child]’s interest that the parent he lives with has sole parental responsibility for him.

   [163]The Family Consultant recommended:

   [57]If the court accepts [the mother]’s account regarding family violence and there is no significant evidence before the court regarding problems with her care of [the child] then it is recommended that orders be made that provide for [the mother] with sole parental responsibility for [the child] and for [the child] to live with [the mother], including in India. It is not clear that having provisions for [the child] to spend time with [the father] in the circumstances would be practical or viable. …

Section 60CC(2)(b) – need to protect

1. A consideration of this factor looms large in the Court’s determination. The Court is gravely concerned that the father has demonstrated no emotional empathy to the child and the child’s relationship with the mother. This is against a background of violence and abuse perpetrated by him on the mother.

2. His ability to control his emotions and behaviour remains untested, particularly in circumstances where he simply denies any adverse behaviour on his behalf.

3. The mother’s continuing residence in Australia will expose her and the child to the prospect of continuing adverse behaviour by the father. Should she relocate with the child, this risk is removed and in India she and the child will have the protective support of her family.

Section 60CC(4) – fulfilment of obligations relating to the child

1. Many of the matters referred to above touch upon this consideration. It is clear that the father has demonstrated a significant failure in this regard in terms of providing financial and other support for the child, particularly post-separation. He made a conscious decision in this regard, leaving the mother and child in difficult circumstances. It is acknowledged that his engagement with the child has been limited by his restricted time with the child as a consequence of interim Orders.

2. His actions in pursuing a Recovery Order that removed the very young child from the mother at the time of separation was an inappropriate action in terms of the child’s relationship with the mother.

3. The mother has otherwise undertaken the primary care role and facilitated the father’s time with the child under the interim Orders.

Parental Responsibility

1. Section 61DA of the Act provides that when making a parenting order, 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. There are reasonable grounds to believe that the father has perpetrated family violence. Such, in itself, is sufficient to rebut the presumption. Matters set out in a consideration of the best interest factors above, particularly the intractable parental conflict and the unwillingness of both parties to promote the child’s relationship with the other, further support such a course.

2. It is appropriate that parental responsibility repose in the party with whom the child will primarily reside and, that is, the mother. Such an order is also appropriate should the mother be able to relocate to India with the child. This is in line with the Family Consultant’s recommendations referred to above.

3. Such an order is also supported by the Independent Children’s Lawyer.

4. A consideration of s 65DAA as to equal or substantial and significant time with each parent is thus not required by reason of a rebuttal of the presumption.

5. The orders to be made therefore fall to be determined by reason of the best interest considerations set out above.

Discussion

1. The question is not as to whether the mother should be able to relocate with the child, but what orders are in the best interests of the child. The best interest of the child must be assessed in the context of the parties’ competing proposals; (Sayer & Radcliffe and Anor (2013) 48 Fam LR 298; Muldoon & Carlyle (2012) FLC 93-513).

2. A consideration of the matters discussed above as to the best interests of the child are clearly indicative of the mother and child being able to relocate to India.

3. As to when the mother should be permitted to relocate, the Family Consultant said:

   … I think it’s likely if effort is made to strengthen the child’s relationship between now and her future departure, that’s likely to make the departure harder, particularly if it’s the court’s view that moving to India may indeed terminate the relationship or severely impair his capacity to maintain and enjoy that relationship.

   …

   Well, between the two choices of strengthening a relationship before effectively terminating it – it’s incredibly difficult to say, your Honour. If the time that [the child] spends with his father in the intervening 18 months before he goes is particularly special, at six there is a possibility that those memories are more likely to last a lifetime than the memories established at four. They may put him in a position contrary to the opinion of his maternal family that he may find and re-establish a relationship with his father.  It would be unlikely that that would be possible from the limited relationship I believe he has now. But then on the other hand, he may not establish a good relationship with his dad or any relationship that is established isn’t sufficient to withstand the negative views of his maternal family which just means he goes through a difficult time in a couple of years when he moves to India and misses his dad and adjusts to not seeing or knowing him.

4. Ultimately, the Family Consultant favoured the immediate relocation option. Such a course is supported by the Independent Children’s Lawyer. It is appropriate, in the child’s best interest, to make such an order.

The Child’s Time with the Father

1. It is common ground that India is not a signatory to the 1980 Hague Child Abduction Convention, nor a signatory to the 1996 Hague Child Protection Convention. As such, the prospect of the enforceability of orders made in relation to the child’s time with the father in Australia and where the mother and child relocate to India is purely problematic.

2. The mother gives evidence as to her willingness, at her expense, to facilitate the child’s time with the father in Australia. The nature of her proposals would see little prospect of the child’s relationship with the father developing significantly in the short term, but as the child gets older and has a more significant capacity for relationship retention and identification with the father, there is some prospect that the father-child relationship will survive.

3. However, it is in the best interests of the child that the child be permitted to relocate to India with the mother. The father, subject to termination of the proceedings relating to him in India, would be able to visit his family in India and, subject to the willingness of the mother, have time with the child in India.

4. The father is also able to make application to the Family Court in India for child-related orders in the event that he himself relocates to India or is able to spend time in India from time to time, during which he could spend time with the child. The Court has no information before it as to the processes available in India, nor the timeframes in which any such applications by the father could be made. However, if he is keen to pursue a relationship with his child and put behind him the unsatisfactory aspects of his conduct and behaviour to date then there may be some prospect of his relationship with the child continuing either in Australia or in India.

5. Various concessions were made by the mother during the course of her cross-examination as to the child’s time with the father in Australia and in India and the Court will make orders accordingly, notwithstanding that the prospects of their enforcement are poor and, on present indications having regard to the nature of the relationship between the parties referred to above, the goodwill of the parties to voluntarily implement such orders is, at best, doubtful.

6. Orders will be made that facilitate the mother relocating to India with the child. Difficulties as to the enforcement of such orders, particularly in relation to the child’s time with the father, are readily apparent. The mother has offered security to ensure her compliance with her obligations, a security that she says her family is more than willing to pay. An order for security will be made with the subject sum to be released to the father on the mother’s non-compliance with her obligations so as to facilitate his travel to India to seek such orders in the Family Court of India that are appropriate.

7. The orders to be made are set out at the forefront of these reasons for Judgment.

I certify that the preceding two-hundred and twenty-two (222) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 July 2014.

Legal Associate:       

Date:    14 July 2014