Sawant & Karanth
[2014] FamCAFC 235
•5 December 2014
FAMILY COURT OF AUSTRALIA
| SAWANT & KARANTH | [2014] FamCAFC 235 |
| FAMILY LAW – CHILDREN – International Relocation – Best Interests of Child – Where mother proposes to relocate with child to India – Where father proposes that the mother continue to be the child’s primary carer in Australia – Where trial judge considered the mother’s allegations of violence against the father, mental health and social and economic circumstances in Australia – Whether the trial judge placed too little weight on the legal dismissal of acts of violence – Whether the trial judge ought to have applied a higher standard of proof in relation to allegations of acts of violence – Where the judge was satisfied that in the circumstances the child’s best interests are served by the mother’s proposed relocation to India. |
| Family Law Act 1975 (Cth) |
| A v A (1998) FLC 92-800 Amador & Amador (2009) 43 Fam LR 268 AMS v AIF; AIF v AMS (1999) 163 ALR 501 Briginshaw v Briginshaw (1938) 60 CLR 336 Goode and Goode (2006) FLC 93-286 M v M (1988) 166 CLR 69 M v S (2007) FLC 93-313 Taylor v Barker (2007) 37 Fam LR 461 U v U (2002) 211 CLR 238 |
| APPELLANT: | Mr Sawant |
| RESPONDENT: | Ms Karanth |
| INDEPENDENT CHILDREN'S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | MLC | 8166 | of | 2010 |
| APPEAL NUMBER: | EA | 94 | of | 2014 |
| DATE DELIVERED: | 5 December 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Murphy and Watts JJ |
| HEARING DATE: | 17 September 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 July 2014 |
| LOWER COURT MNC: | [2014] FamCA 510 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hughes |
| SOLICITOR FOR THE APPELLANT: | Thexton Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Druitt |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Moore |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Robertson Solicitors |
Orders
Made on 17 September 2014
IT IS ORDERED:
The appeal be dismissed.
Paragraph 2 and paragraph 4 of the orders of Justice Foster made on 28 July 2014 are discharged and the name of the child, a male born July 2010, be removed from the Airport Watch List (PACE Alert System).
To the extent that paragraph 3 of the orders of Justice Foster made on 28 July 2014 requires the mother to provide to the registry of this court a passport for the child, such order is discharged
No order as to costs.
IT IS FURTHER ORDERED BY CONSENT:
Until the mother and child leave Australia, the father spend time with the child in terms of paragraph 4 of the orders of Justice Foster made 28 July 2014 or for such other times as agreed by the parties.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA94 of 2014
File Number: MLC8166 of 2010
| Mr Sawant |
Appellant
And
| Ms Karanth |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
The father of the child, born July 2010, appeals orders by Foster J made on 14 July 2014, the relevant effect of which is to permit the child to live with his mother in India. The orders also provide for the child to spend time with the father. Those orders are affected by the significant geographical separation occasioned by the father’s choice to remain living in Australia.
The father’s appeal was expedited by orders made on 28 August 2014. At the conclusion of the hearing before us on 17 September 2014, we made orders dismissing the appeal (together with consequential orders). We indicated that reasons would be delivered subsequently. These are those reasons.
The Grounds of Appeal
Counsel for the appellant father abandoned ground 2. The remaining grounds of appeal are as follows:
1.The Court gave greater consideration, without the benefit of appropriate expert evidence, to the mother’s mental health than to the child’s best wishes (sic)[1].
...
3.The Trial Judge erred in giving greater consideration to the mother’s mental health than to the child’s best interest [sic].
4.The Trial Judge erred in making Orders 4 and 7, knowing that such orders could not be enforced.
[1]The appellant’s written outline of argument makes it clear that, as might seem obvious by reference to the child’s age, the phrase should read “the child’s best interests” as distinct from “the child’s wishes”.
At the outset of the hearing, counsel for the appellant father disavowed the summary of argument filed initially on behalf of the father and, without objection from counsel for the respondent, relied upon a new written outline of argument (although the latter document, at [3] and [12] cross-refers to the former).
The great bulk of the written outline addresses an issue described as “[a]llegations as to violence and best interests”. Counsel indicated before us that “the real gravamen of the challenge” to his Honour’s orders can be seen at [31] of that written outline:
31.It is submitted that the failure to consider whether allegations of violence were proved to the requisite standard, or to adequately express reasons for such a finding, has resulted in a miscarriage of justice which warrants the intervention of the Full Court.
It is not immediately obvious how any asserted error in respect of “allegations of violence”, finds reflection in the grounds. More specifically, although it is asserted that this issue is “an aspect of grounds 1 and 3”, nothing contained within either ground makes specific reference to that issue. A further contention emerging from [31] of the outline is an apparent challenge to the adequacy of his Honour’s reasons in respect of this issue. No ground of appeal asserts any such error.
Counsel for the respondent neither objected to the appellant’s new outline, nor raised any objection to issues outside of the pleaded grounds being raised. It was not contended that either took the respondent by surprise or resulted in any other disadvantage. In those circumstances, we were content to permit each to be argued on the basis that if error is established, this Court should correct it.
The Parties’ Proposals At Trial And Their Context
Orders that contemplate one parent and the child living in a place geographically remote from the other parent immediately bring the Objects and Principles of Part VII of Family Law Act 1975 (Cth) (“the Act”) into sharp focus. The Objects of the Part “are to ensure that the best interests of children are met by” them having, among other things, “the benefit of both of their parents having a meaningful involvement in their lives …”. (s 60B(1)). The Principles underlying those Objects include the child’s right to “… spend time on a regular basis with … both their parents …” (s 60B(2)).
Yet, neither that right vested in the child, nor those consequential roles of the child’s parents, is absolute; when parents are unable to agree upon co-parenting arrangements, that right and those roles is each qualified by the Court’s determination as to what orders best meet the particular child’s best interests. That is neither more nor less so when a proposed significant geographical separation renders acute those Objects and Principles and the Considerations which mandatorily dictate the manner in which the child’s best interests are determined. While “relocation case” is a convenient descriptor for cases of this type, no specific statutory principles govern cases which meet that description. (See, for example, M v S (2007) FLC 93-313 per Dessau J; Taylor v Barker (2007) 37 Fam LR 461).
The parties’ proposals are important because they mark each parent’s own assessment of the nature and extent of their role; that is, what each sees as their “meaningful involvement” in the life of their child consistent with the child’s best interests. For that reason alone those proposals must be carefully considered albeit that, because the court is charged independently with arriving at a decision as to the child’s best interests, it is not bound by those proposals (see U v U (2002) 211 CLR 238 at [70], [72] per Gummow, Callinan JJ; Gleeson CJ and McHugh J agreeing).
The Father’s Proposals at Trial
The father sought an order that the parties should have “equal shared parental responsibility … as to education and health” but that “…otherwise the mother have sole parental responsibility”. Thus, the father conceded, in effect if not in terms, that the presumption of equal shared parental responsibility (s 61DA) was rendered inapplicable (s 61DA(2)) or rebutted in the best interests of the child (s 61DA(4)).
Pending the child commencing school in 2015, the father proposed spending time with him each weekend from 9.30 am Saturday until 11.00 am Monday. Once the child started school, the proposal altered so that time concluded upon the commencement of school on Monday.
In any event, as is appropriate, his Honour considered the application of the presumption and found that there were “reasonable grounds to believe that the father has perpetrated family violence” and that “[s]uch, in itself is sufficient to rebut the presumption” (at [207]). Contrary to his Honour’s finding, the presumption is not rebutted by reference to that finding; rather it is rendered inapplicable (s 61DA(2)). That error in language does not found any asserted error; the appellant’s arguments in respect of findings as to violence do not assert any error referable to s 61DA.
Further, his Honour went on to find (also at [207]) that the best interests findings earlier set out in the reasons “particularly the intractable parental conflict and the unwillingness of both parties to promote the child’s relationship with the other” were sufficient to rebut the presumption. (See s 61DA(4); s 65DAC). That finding is not challenged. It was plainly open to his Honour.
Those findings (and the fact his Honour did not, independent of the presumption, propose making an order which provided for equal shared parental responsibility), meant that his Honour’s power to make parenting orders was not affected by the application of s 65DAA and was “at large”. (s 65D; Goode and Goode (2006) FLC 93-286, at 80,899).
Important to his Honour’s ultimate findings as to the child’s best interests and the Orders made as a consequence, the father’s proposals as to the orders which best met the child’s best interests:
§Did not contend that the child should live with him;
§Postulated a continuation of the mother’s role as the child’s primary carer;
§Accorded to the mother sole parental responsibility for the child but for two specified areas of responsibility;
§Did not contemplate him spending any time with the child other than weekend time;
§Did not accord to the mother any weekend time save until 9.30 am Saturday;
§Did not, as a result, contemplate the father spending any time during the week which would involve him in any day-to-day responsibilities for the child or involvement in the child’s schooling;
§Necessarily contemplated, as a corollary, leaving all of those day-to-day tasks and responsibilities to the mother.
The father’s proposals all assumed that the mother would continue to live in Australia. Inferentially his orders proposed that she should do so in order to facilitate the time he proposed between him and his son. No proposal of the father, nor any of his evidence, suggested that he had himself contemplated the possibility of his living in India so as to facilitate a significant co-parenting arrangement in that country should the mother and child reside there (the reasons of Gaudron and Hayne JJ in U v U (2002) 211 CLR 238 at [35] and [173] – [175] respectively, are apposite).
The Mother’s Proposals at Trial
For her part, the mother proposed that she would continue to be the child’s primary carer, but in India. Upon that occurrence, the mother proposed “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” (at [128]) and 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” (at [129]). His Honour set out the mother’s additional proposals as follows:
130.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.
131.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.
132.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.
His Honour also records (at [136] - [139]) a proposal by the mother in the event that “the mother is required to stay in Sydney”. It was not the mother’s case before his Honour that such a course was in the child’s best interests. Rather, it was her proposal if what she contended was in the child’s best interests (that he live in India with her) was not accepted by the court. Indeed, his Honour found that the mother “… 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” (at [112]) and that she “would not relocate herself without the child” (at [113]).
In the same vein, the father proposed orders for time in the event that the child was permitted to live with the mother in India (set out at [148]). Those orders, too, do not express what he considered was in the child’s best interests but, rather, what he proposed if the Court rejected his contentions as to the orders that best met the child’s best interests.
It is important to appreciate that there was no proposal before his Honour that the child should live with the father. The contentions as to the child’s best interests as they emerged from the proposals of the parties required an assessment of whether it was in the child’s best interests to live with the mother in India with the ramifications for time between father and child consequent upon that outcome or to live with the mother in Australia with time between father and child consequent upon that outcome. (See, for example, AMS v AIF; AIF v AMS (1999) 163 ALR 501, per Gaudron J, especially at [95]; Hayne J at [218] – [219]; U v U (2002) 211 CLR 238 at [81] per Gummow and Callinan JJ).
The Context For the Parties’ Proposals
His Honour described the commencement of the relationship between the parties as an “internet-initiated romance”. The parties met face to face for the first time in India in October 2009. Twelve days later they were married in a city in India. Some three months after that, the father returned to Australia where he has citizenship. The mother remained in India. At that time the mother was three and a half months pregnant with the child.
Some four months later in May 2010, the mother arrived in Australia, her spouse visa having been approved. At that time the parties commenced residing in a two-bedroom rented home. The father was unemployed and received Government benefits. The mother was also not employed remuneratively.
In mid-July 2010, approximately two weeks prior to the birth of the child, the parties vacated that rented property in Western Sydney and moved to a rural town in Victoria. They resided there in the home of friends of the father. The parents of one of those friends also resided in that home. Shortly after arriving there, the father travelled to Sydney for a few weeks leaving the mother residing with his friends. He returned, as his Honour found, on 28 July 2010. The child was born in July 2010.
There are allegations made by the mother of a violent incident occurring about a week later, on 6 August 2010. There were also allegations of further violent incidents during the period 15 – 18 August 2010. (Detailed in his Honour’s reasons (at [41] – [62]). In light of the appellant’s arguments as to violence, it is important to record that his Honour found:
51.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, [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 [KS] will be referred to later.
…
103.The Court does not accept [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.
On 17 August 2010 the mother and child travelled to Sydney. They stayed at the home of KS and his family. (KS was a long-time friend of the father).
That same day, the father obtained orders from the Magistrates Court in the Victorian town. Those orders were obtained ex parte. The foundation for those orders, as his Honour found, appears to have been the assertion by the father that the mother would flee Australia with the child. (Reasons [64]). The ex parte orders obtained by the father included an order that the child live with him. They also included a recovery order so as to find and deliver the child to him. (At [63]). Understandably, it might be thought, the “…NSW police were reluctant to execute the Recovery Order” in respect of a two-week old child and “correspondence passed between [them] and the Australian Federal Police …”. (At [65]).
His Honour records the following events within a week of the mother and child returning to Sydney:
68.After 24 August 2010 the mother was asked by [the father’s friends with whom she had been staying] 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 the [friends’] family life to suffer.
69.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 ….
70.However, [a] stay Order in relation to the Recovery Order expired on 30 August 2010 and, notwithstanding that proceedings in the Magistrates Court at [the Victorian town] 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 [the father’s friends with whom she had been staying]. 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
None of those facts is controversial before us. Those facts, together with other facts found by his Honour, are seen in findings which provide important context for his Honour’s ultimate findings as to the child’s best interests. They include:
· The parties’ marriage was effectively at an end some ten months or so after it commenced;
· Within that time, there had been two periods of separation;
· The parties had resided together for a very short period and had spent virtually no time together co-parenting their very young child;
· The parties and child did not have a stable home during their relationship;
· The mother and child had no place to live in Australia. Further, his Honour found that, on 14 February 2011, the father withdrew his sponsorship and assurance of support for the mother which was a condition of her obtaining a visa to reside in Australia. (Reasons at [80]);
· The mother has “no family support in Australia save for [a distant cousin]” (Reasons [110]);
· “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” (Reasons [111];
· “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. … 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” (Reasons [114];
· “The mother and father have had, in effect, no civil communication since separation” (Reasons [117]);
· India is the country of the mother’s birth. She has significant family support in India. She plans to live with the child at her parent’s home in a city in India where each of her parents has a business and where the household has assistance from maids and chauffers.
The Arguments as to Violence and Mental Health
Family Violence
In light of the arguments advanced on behalf of the appellant in respect of this issue, the central incidents involving allegations of violence by the father recorded by his Honour should be set out. It will be seen that no specific findings are made that the incidents occurred. However, it is tolerably clear from the clear acceptance of the evidence of the mother over that of the father in respect of these incidents and his Honour’s rejection of the evidence of the father’s witness KS earlier referred to, that his Honour was persuaded as to the occurrence of these incidents as the mother asserts them to be:
41.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.
…
55.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 [in a suburb in Sydney], being the road on which the premises where the mother was staying with the father’s long-time friend, [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 [KS] and the next day attended at a [Sydney Suburb] Police Station with [KS] to make a complaint. The mother returned to the police station on 24 August 2010 where a formal statement was taken.
…
77.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.
…
81.The mother further complains that on 18 February 2011 at about 2.00 pm she was walking in a laneway in [a Sydney suburb] 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 [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 [a Sydney suburb] Police Station and then later met the mother at [another Sydney suburb] Station, where statements were taken.
…
85.On 18 May 2011 the mother attended at [Sydney suburb] 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 [the father] 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.
Later, when examining the relevant mandatory statutory Considerations (s 60CC), his Honour said:
The mother in difficult circumstances has demonstrated an appropriate attitude to the child and her responsibilities as a parent. The father, as discussed above, has clearly shown an inappropriate attitude to the child and the child’s needs. His conduct in the violence and harassment perpetrated on the mother and his manipulative and coercive conduct reveals a complete abrogation of his parental responsibility to his young son.
j) any family violence involving the child or a member of the child's family;
The mother’s evidence as to father’s violent conduct during the relationship and thereafter is accepted in preference to that of the father. The father’s conduct in this regard has been systemic and opportunistic. Serious concerns arise by reason of the father’s conduct that commenced even before the mother travelled to Australia. By reason of this conduct, there must be significant reservations as to the father’s conduct into the future should the mother remain with the child in Australia. Such a concern represents a risk to the mother and the child in the prospect that the child as he gets older will be exposed to the father’s violence.
(Reasons [191], p 35)
It is contended by counsel for the appellant that “… his Honour failed to properly consider whether allegations of family violence were adequately proved, before relying on them to the detriment of the father”. It is said that, as the allegations of violence against the father were a “critical issue” in his Honour’s determination, his Honour ought to have made a “… specific finding in respect of each allegation …”. Further, because of “… the gravity of the allegations and the grave consequences which followed upon such a positive finding, it was the ‘Court’s duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw and restated in s 140 of the Evidence Act 1995 (Cth)’”. (At [21] of the written submissions, quoting from WK v SR (1997) FLC 92-787 at [26].)
Counsel cites as central to his argument what was said by this this Court in Amador & Amador (2009) 43 Fam LR 268, particularly that “[t]he best interests of a child the subject of an application for a parenting order must require that the Court determine relevant allegations of violence where that can be done” and “[t]he more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation” (at [95]).
It should immediately be noted that the context for the making of those statements by this Court was a case in which there was “… an allegation of rape by the father of the mother …” and where a crucial resultant issue was “[t]he consequence of placing a child under the supervision and/or care of a person who has been violent [which] may be far reaching and very detrimental to the child’s welfare” (at [95]).
Secondly, counsel for the appellant father contends for a “further error”. The written outline asserts:
26.There was evidence before the court as to both the fact that of the award of costs against the prosecution, and also as to the reason for such an award. Whilst his Honour may have referred to the outcome of those allegations, it is submitted that his Honour gave insufficient consideration to the reasons available on the evidence for those results being achieved.
27.In particular, Annexures AA23 and AA24 to the affidavit of [the father], sworn 22 October 2013 (Tab 12) provide detailed information as to why those complaints were ultimately dismissed. That information was directly relevant to both the veracity of the allegations [sic] violence, and also to the credibility of the mother, more generally. It ought have been given specific consideration, but was not.
The argument by counsel for the father is underpinned by a premise that it was incumbent upon his Honour to make specific findings about allegations of family violence. We consider that premise erroneous.
In Amador itself this Court referred to the fact that the trial Federal Magistrate had held that she was “… unable to make a finding that the father perpetrated the specific acts of violence alleged by the mother upon her …”. Their Honours considered at some length what was said by he High Court in M v M (1988) 166 CLR 69 (a case involving serious allegations of a different type – child sexual abuse) and, having done so, said:
87.The above passage from the High Court is sometimes quoted to support an argument that it is unnecessary for a trial judge to make positive findings in relation to allegations, inter partes, of assault and other serious matters of domestic violence. Consequently the Court is urged not to allow any exploration of any such allegation. A close reading of the decision makes it apparent that is not what fell from the High Court.
88.It is clear from the decision of the Full Court in A v A (1998) FLC 92-800 that, in appropriate cases, it may be important to make findings of this nature if they are available and necessary to determine what is in the best interests of the child. It is important to note that A v A was not a case where allegations of abuse of children was made. The allegation was that the father had attempted to murder the mother. The Full Court said in A v A:
3.22 We consider that his Honour's approach was inappropriate. Whilst it is correct to say that the Family Court is not a criminal court, and that its primary task is not to determine guilt or innocence, that is entirely different from an approach which declines to examine that issue at all. The whole emphasis of the decision of the High Court in M and M is its identification of the essential issue in cases of this sort as being whether the evidence establishes “an unacceptable risk”.
(Emphasis added)
The father at no time asserted that the child should live with him (whether in Australia or India). He made no allegation that the orders proposed by the mother were attended by any unacceptable risk to the child. The relevance of evidence about family violence to ultimate findings about orders that best met the child’s best interests must be seen against that crucial matter. That is, findings as to whether specific incidents of family violence occurred were, in this particular case, to borrow the language of the Court in Amador, not necessary to determine the child’s best interests. Rather, as his Honour’s reasons make clear, the findings as to family violence (and parental conduct by both parents more generally) informed a number of important s 60CC Considerations directly relevant to the child’s best interests.
For example, when dealing specifically with the Primary Consideration in s 60CC(2)(b), his Honour said:
201.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.
202.His ability to control his emotions and behaviour remains untested, particularly in circumstances where he simply denies any adverse behaviour on his behalf.
203.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.
When dealing with the parent’s willingness to facilitate and encourage a close and continuing relationship between the child and the other parent (s 60CC(3)(c)), his Honour found:
… Her position belies her distrust and fear of the father engendered by the volatile and conflictual nature of the parties’ short relationship. There are significant reservations as to the mother’s willingness in this regard and, to some extent, her reservations are well-founded. (Reasons [191], pp 32-3)
The nature of the violent incidents informed the very important Consideration which required his Honour to consider the effect of any change in the child’s circumstances (s 60CC(3)(d)). His Honour found:
The father’s proposal would see, he asserts, the child have a fulsome relationship with both parents. But at what cost to the mother psychologically in the context of the conflicted relationship with the father, her social isolation, financial deprivation and lack of family support? … As observed above, the Family Consultant sounded a warning, noting that “children who have ongoing exposure to parental conflict may have problems with their mental health, poor academic achievement and difficulties establishing and sustaining interpersonal relationships in the future”. (Reasons [191], p 33)
So, too, the incidents of family violence informed the important issue of parental capacity (s 60CC(3)(f)):
The father’s relationship with the child is developing. Yet he, for readily apparent reasons, has not had the opportunity to demonstrate positive aspects arising from this consideration. To the contrary, he has shown scant regard for the mother-child relationship in the circumstances that arose in [a Victorian town], in his patent lack of concern for the child’s circumstances with the mother in Sydney after separation, his conscious decision to not be in a position to provide financial support, his failure to provide any support in kind and his continued harassment of the mother in Sydney in respect of the incidents referred to above. Should the mother remain in Australia, there is little confidence that he will have any capacity to properly address the child’s needs, particularly in relation to the child’s emotional security in the care of the mother. The father simply demonstrates lack of insight in this regard. (Reasons [191], p 34-5)
It is also important to bear in mind that his Honour’s findings about family violence (or “conflict” more broadly) were also considered by his Honour in a manner that can be seen to be favourable to the husband in the sense that his Honour weighed those matters as pointing against the child living with his mother in India. For example:
… The father, the mother contends, could travel to India [sic] see his family and the child. However, the Court has little confidence that such arrangements would be implemented as the conflict between the parties is entrenched. (Reasons [191], p 33)
We consider that the appellant’s arguments are answered by what the High Court said in the following passage in M v M (above, at 76) noting that what was there said about allegations of child sexual abuse have been held by this Court to apply equally to allegations of violence (Amador, above; A v A, above). The resolution of the mother’s allegations of family violence were:
… subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
The second part of the argument by counsel for the father is, when stripped to its essentials, an assertion that his Honour should have accorded greater weight to the dismissal of criminal prosecutions or the withdrawal of complaints of criminal conduct emanating from the mother’s allegations of violence. When seen within the proper wider context of findings as to best interests, the fact of various complaints of violence and court action was as important as the result of those complaints. Division 12A of the Act renders admissible evidence in parenting proceedings which would otherwise be inadmissible. (See, in particular, s 69ZT; s 69ZX(3)). However, the weight that a court might place upon evidence thus rendered admissible remains to be determined by the trial judge.
His Honour was, in our view, entitled to place such weight on the outcome of complaints to police and the result of those complaints as he considered appropriate. His Honour was not in any sense bound to make any findings based on the failure to prosecute complaints or because complaints which did proceed had a particular outcome. By way of corollary, his Honour was quite entitled to make his own findings as to the reliability of the evidence of the mother and adverse findings as to the reliability of the evidence of the father and that of KS.
His Honour’s reasons, including specifically [51] earlier quoted, demonstrate clearly that he was alive to the dismissal of the criminal complaints against the father and what the evidence revealed about the circumstances as to the dismissal of those complaints. We are not persuaded of error in the attribution of weight to those matters.
Further, we are not in any event persuaded that, had greater weight been given to the outcome of the criminal complaints by the mother that it would have had, or should have had, any material effect on the decision as to the child’s best interests.
The Mother’s Mental Health
The central thrust of this aspect of the challenge can be seen summarised at [11] of the appellant’s written outline of argument:
…it is submitted that his Honour has erred by placing too much reliance on the guarded conclusion of the Family Consultant at par215 as to the potential positive impact of allowing the mother to relocate.
Paragraph 215 of the reasons there referred to states:
215.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.
There his Honour is referring to one of two questions posed for himself, namely, if there was to be a relocation of the child, when should it occur. The substantive question to which, in fact, the ground is directed is whether relocation should have been permitted at all.
In that respect, the appellant’s written outline contends:
7.At par 178 of the [sic] his Honour’s judgment, the Family Consultant is quoted as saying, inter alia:
“I think it is predictable that in the absence of establishing any real supports or connections in Australia, that the loss of hope that moving is a possibility may cause her to move into a mental state that requires intervention.”
8.This statement, which is speculative enough, is to be viewed [sic] the Family Consultant’s evidence summarised at par173 that “… it’s a choice between two less than optimal outcomes and I – if I could, I would give his Honour guidance or something clinically informed about which was better, but I simply cant”.
9.To that end, the Family Consultant’s conclusion in par179, that allowing the mother to return to India offers some certainty, in that her functioning might improve, ought be viewed as particularly guarded. It is submitted that this outcome is no less based in “hope and speculation” than the other alternatives.
10.Further, any potential lessening of the mother’s mental state runs contrary to his Honour’s finding at par191 f) that,
The mother’s capacity is not in contest. She has been the primary carer for the child in difficult circumstances, to some extent … There is a positive relationship between the mother and the child.
That submission is based on a submission that:
6.… Dr [P’s] opinion depends upon the history of violence as alleged by the mother. Whether such allegations could be sustained in the circumstances is a live issue in this appeal.
Just as with the findings as to family violence, the findings in respect of what might loosely be called the mother’s mental health, fall into a broader context than that which the appellant’s submissions would contend. In particular, when his Honour turns to consider the specific relevant provisions of s 60CC, his Honour can plainly be seen to be carefully weighing the ramifications for the child and for his relationships with his parents and others. Considerations, including predictions of the mother’s mental health are but a part of those, proper, wider considerations.
A good example is provided within his Honour’s discussion of s 60CC(3)(d):
There is significant prospect that the child’s relationship with the father will ultimately end should the child relocate. As the Family Consultant said:
… The only thing the court can have confidence – is likely to be able to have confidence – is if he can – and his mother are allowed to return to India sooner rather than later. It’s likely that her functioning will improve, if for no other reason than she attains what she has been seeking for some years, and that that will be in the knowledge that he can – will probably lose the potential to have his relationship with his father.
The father’s proposal would see, he asserts, the child have a fulsome relationship with both parents. But at what cost to the mother psychologically in the context of the conflicted relationship with the father, her social isolation, financial deprivation and lack of family support?
As observed above, the Family Consultant sounded a warning, noting that “children who have ongoing exposure to parental conflict may have problems with their mental health, poor academic achievement and difficulties establishing and sustaining interpersonal relationships in the future”.
(Reasons [191], p 33)
We are not persuaded of any error.
Conclusion
Grounds 1 and 3 are not made out.
The Asserted Error as to Lack of Enforceability
Ground 4 was only faintly argued. It pertains to Orders 4 and 7 made by his Honour.
Order 4 provides for contact to occur by Skype or Facetime communication between specified hours and for the father to spend time in India for ten days in each twelve month period facilitated by the payment of airfares by the mother. Additional time is provided on other occasions if the father is able to travel to India, and for a period of not less than seven days in Australia in each twelve month period with, again, the mother to pay the return economy class airfares.
Orders 6 and 7 are to the effect that the mother is restrained from applying for a passport for the child until such time as the mother deposits to the father’s solicitors the sum of $25,000 to be used for the costs of airfares in the event that the mother fails to pay for the airfares as contemplated by the earlier orders and for the father’s legal fees in “seeking to enforce compliance by the mother with her obligations provided for in these orders either in Australia or India, and any travel expenses reasonably incurred by the father in so doing”.
The appellant’s written outline asserts:
29.Whilst the bond of $25,000 might appear to lend a degree of enforceability to the orders, it must be considered in the context of findings that:
a.India is not a signatory to the Hague Convention, but more particularly,
b.that on the evidence available to his Honour, it was clear that the mother had no capacity to facilitate a relationship between the child and the father (par 200 of the judgment).
30.In circumstances where too much weight has been given to the impact of relocation on the mother, and a failure to properly consider whether allegations of violence were proved to the requisite standard, the inability to enforce parenting orders if the mother relocates to India have been given insufficient consideration.
It can be seen that the outline posits the argument as depending, at least in part, upon acceptance of the arguments in respect of grounds 1 and 3. For reasons earlier given, neither has merit. It was agreed at the hearing before us that the wife has paid the $25,000 contemplated by the Orders.
The argument appears to assert two separate errors – that his Honour has failed to take account of a relevant consideration (seen in the assertion that his Honour “failed to give consideration to” the specified matters) and, secondly and perhaps implicitly, that his Honour failed to accord sufficient weight to that matter.
We can see no force in an argument that suggests that difficulties in enforcing orders (or the asserted “inability” to do so) was given “insufficient consideration” by his Honour. Indeed, his Honour’s reasons and the Orders themselves indicate that his Honour gave careful consideration to this issue.
To the extent that the argument challenges the attribution of weight, it is answered by the fact that, while any one of us, or all of us, may, or may not, have provided a greater monetary sum by way of security or, perhaps, provided alternative means of security, that is insufficient to establish error. This was a speculative issue which his Honour found unpersuasive when seen against other important s 60CC Considerations.
Ground 4 fails.
Conclusion
The appeal fails.
Additional Orders
It will be observed that, in addition to making an order dismissing the appeal, two additional orders were made by us. The necessity for those orders derives from the following circumstances.
On 28 July 2014, his Honour made orders staying the 14 July 2014 orders the subject of this appeal. His Honour also made an order in respect of the child’s passport “pending determination of the appeal”. Two other orders (contained at paragraphs 2 and 4 of the 28 July Orders) were not so expressed. The dismissal of this appeal renders it necessary to set aside each of those Orders. It is for this reason that paragraphs (2) and (3) of our orders were made on 17 September 2014.
Costs of the Appeal
As is customary, we sought submissions in respect of costs of the appeal.
Counsel for the respondent appeared on instructions from Legal Aid. She informed the Court that, as there was no evidence that the appellant had any capacity to meet any costs order, no such order was sought. Counsel for the Independent Children's Lawyer “did not press” the application for costs sought in his written outline.
For those reasons we make no order as to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 5 December 2015.
Associate:
Date: 5 December 2014
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