SEGEL & MAXWELL - [2012] FMCAfam 1103

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SEGEL & MAXWELL

[2012] FMCAfam 1103

FAMILY LAW – Parenting orders – wife’s application to relocate residence of young child to India – child in primary and almost exclusive care of the wife – child spent little time with the husband – both parties born in India and have family support there – physical and emotional abuse perpetrated by the husband upon the wife – application acceded to.

Family Law Act 1975 (Cth), s.60CC

Applicant:

MR SEGEL

Respondent:

MS MAXWELL

File Number:

MLC 5149 of 2011

Judgment of:

Hartnett FM

Hearing dates:

10, 11 and 12 September 2012

Delivered at:

Melbourne

Delivered on:

12 October 2012

REPRESENTATION

Counsel for the Applicant:

Ms Carter

Solicitors for the Applicant:

Hogg and Reid

Counsel for the Respondent:

Mr Ambrose

Solicitors for the Respondent:

Barbayannis Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Grigg

Solicitors for the Independent Children’s Lawyer:

Perry Weston Lawyers

ORDERS MADE ON 12 SEPTEMBER 2012

THE COURT ORDERS THAT:

Order 3 of the orders dated 20 June 2011 be discharged.
The wife be permitted to relocate to India with the child of the marriage X born (omitted) 2011.
The wife have sole parental responsibility for the child.
Until the wife’s departure to India pursuant to the orders made this day the child spend time and communicate with the husband as follows:
(a)each Friday between 5.30pm and 7.30pm;
(b)each Wednesday between 5.30pm and 7.30pm;
(c)each Monday between 5.30pm and 7.30pm;
(d)each Saturday between 10.00am and 1.00pm;
or such other times as can be accommodated by the person in substantial attendance.
Any such time spent with referred to in order number 4 herein be in the substantial attendance of a person nominated by either of the wife, the husband or the Independent Children’s Lawyer and approved by the Independent Children’s Lawyer.
Nothing in these orders shall require the wife to make the child available for time on the day that she departs the Commonwealth of Australia.
Time shall also occur from 2.00pm to 4.00pm at Berry Street Contact Centre in (omitted) on 13 September 2012 and 21 September 2012 and such time on 21 September 2012 shall be in lieu of the time spent with as otherwise provided in paragraph 4 herein.
There is liberty to any one of the parties to have the matter listed at 10.00am on Friday 14 September 2012 in the event a person has not been nominated to be in substantial attendance pursuant to these orders.

AND THE COURT NOTES THAT:

A.Insofar as the Independent Children’s Lawyer will use his best endeavours to nominate a person pursuant to paragraph 5, it may not be possible to achieve this prior to the wife’s departure.

ORDERS MADE ON 12 OCTOBER 2012

THE COURT ORDERS THAT:

Following the wife and child X born (omitted) 2011 relocating to India, the child spend time and communicate with the husband as follows:
(a)on each occasion the husband is in India and upon the husband having provided to the wife written notice of 30 days, at such times and on such conditions to be agreed but as a minimum, to be for at least three hours daily and supervised by the husband’s extended family;
(b)in Australia during the Australian long summer holiday period commencing December 2013 and concluding at the beginning of February 2014, with the wife to travel to Australia for a period of not less than two weeks and make the child available to spend time with the husband on a daily basis and being from 10am to 6pm conditional upon the following:
(i)the wife is permitted to be in substantial attendance on the first four days of such time spent with;
(ii)the husband is to pay for the wife and child’s return airline tickets between India and Melbourne;
(iii)the wife is to provide the husband with 60 days notice in writing of her intended travel dates; and
(iv)the wife is to be responsible for her and the child’s accommodation costs whilst in Melbourne for the period of the said travel.
(c)by Skype on two occasions of no less than 15 minutes in each week; and
(d)thereafter at such further and other times as the parties may agree.
The wife keep the husband informed by way of weekly emails of the child’s progress and development, including medical issues, with the wife to in addition send to the husband updated photographs of the child each six months.
The Skype contact to take place at times nominated by the wife but to be not earlier than 5pm Australian time.
Otherwise all extant applications are dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 5149 of 2011

MR SEGEL

Applicant

And

MS MAXWELL

Respondent

REASONS FOR JUDGMENT

These proceedings commenced on 14 June 2011 with the husband filing an initiating application. Ultimately, that initiating application was amended by amended initiating application filed 3 September 2012 and the final orders as sought therein were the orders sought by the husband. In essence, he sought that the parties’ child live with the mother but that the child be prohibited from leaving the Commonwealth of Australia. In closing, his Counsel, in the event the wife was permitted to relocate with the child the subject of the application to India, sought some additional orders. No evidence in the proceeding supported the making of these additional orders. For instance, no evidence was before the Court as to any divorce application that may be filed in India and the Court does not propose to make any order compelling the parties to do or not do something with respect to such potential application.
The orders sought by the wife were as set out in her amended response to the initiating application filed 6 March 2012. In closing, Counsel for the Independent Children's Lawyer indicated to the Court that the Independent Children's Lawyer sought final orders as sought by the wife and thus supported her application which was, in essence, to be permitted to relocate to India with the child of the marriage X born (omitted) 2011.
The documents relied upon by the husband in these proceedings were his amended application, his trial affidavit filed 3 September 2012 and sworn the same date, together with an earlier affidavit sworn by him on 29 August 2011 and filed 30 August 2011 and an affidavit sworn by his father, Mr Segel, sworn on 3 March 2012. The documents relied upon by the respondent wife were her amended response to initiating application together with affidavits sworn by her on 6 March 2012, 22 July 2011 and 3 September 2012. In addition she relied upon affidavits of her mother filed on 7 March 2012, 22 July 2011 and 30 August 2012.
The Independent Children's Lawyer relied upon the family report of Dr H dated 13 February 2012 and an affidavit of Ms H coordinator of Berry Street Children’s Service sworn on 31 August 2012. Ms H was not required for cross-examination in the proceedings. No other evidence was placed before the Court.
Statements of fact in these reasons are to be taken as findings of fact on the balance of probabilities.

History

Both parties are in their early 30s and are in good physical health. Both parties were born in India and first arrived in Australia as residents of India. The wife migrated to Adelaide in (omitted) 2006 on a student visa. She came at that time to pursue further studies in relation to (omitted), she having completed a (course omitted) at (omitted) in India. That course was a five and a half year degree course which involved one year internship in (omitted). She had been practising (omitted) in India for a year prior to her arrival in Australia. Once in Australia, the wife studied a (course omitted) at (omitted) University in (omitted).
Prior to arriving in Australia, the wife had been married in India in 2003. When she travelled to Australia, she travelled with her then husband, Mr P. Mr P was killed in a car accident on (omitted) 2007. This was a terrible tragedy for the wife. Following his death, the wife returned home to India to reside with and be comforted by her family before returning to Australia to complete her (course omitted).
Upon her next entry to Australia, the wife resided with her brother and also, but at a separate time, with her mother, before marrying her second husband, the applicant husband and father in these proceedings. Following her first husband’s death and her return to Australia, the wife decided to apply for permanent residency. She obtained such visa. Subsequent to that, she became an Australian citizen.
The husband migrated to Australia in or about (omitted) 2004 on a student visa. On (omitted) 2012 he obtained permanent residency in Australia. The husband is employed full time in (omitted) at (omitted). In about February 2009 and whilst the wife was living with her mother in Adelaide, the husband relocated to Adelaide for a job opportunity. The husband initiated contact with the wife through the wife’s brother via an Indian internet marriage site with a view to meeting the wife. The parties then met and spent some time together to ascertain if they were compatible. This was in April 2009. Shortly thereafter they told their parents that they wished to marry. On (omitted) 2009, the parties’ respective families celebrated their engagement day in India.
The parties travelled to India to marry in a traditional Indian ceremony on (omitted) 2009. Following their return the Australia, the husband received a transfer to Melbourne for work. The parties agreed that they would subsequently live in Melbourne and marry under Australian law. Their marriage on (omitted) 2010 occurred in Melbourne. Following the marriage the wife became a sponsor for a partner visa for her husband as he had previously been on a temporary graduate visa. The marriage was the first for the husband and the second for the wife. The husband claims that he was not aware of the wife’s previous marriage until after they were married in the traditional ceremony in India. His evidence is that when the parties were completing the documents for his partner visa the wife would make excuses to delay the completion of the forms which divulged that she had previously been married. The wife denied this. I accept the wife’s evidence that she did inform the husband as to her status as a widow prior to their Indian marriage and that the husband chose not to advise his family at the time as he feared their disapproval. His evidence was that it was common in Indian culture, especially in arranged marriages such as their marriage, that the preferred match was between an unmarried man and an unmarried woman.
Later in 2010 the wife became pregnant and the parties’ only child, a son, X was born on (omitted) 2011. At the time of trial he was approximately 17 months of age. X remained in hospital for some two weeks following his birth. The wife then brought the child home where the family unit remained intact for a further two weeks before the husband left the former matrimonial home and separated from the wife. The husband has taken up accommodation in a share house with two other persons. The date of the parties’ separation was 1 May 2011. The marriage had lasted for a period of approximately 19 and a half months. On the husband’s application a divorce was granted on 9 August 2012 which took effect on 10 September 2012.
X was born with medical difficulties including intra-uterine growth retardation (IUGR), low birth weight and jaundice. Although the wife claimed that the stress she experienced as a result of the husband’s abuse, emotionally, verbally and physically during the pregnancy contributed to the child’s IUGR diagnosis, there was no medical evidence before the Court for such a finding to be made. Since his birth, X has been in the primary and almost exclusive care of his mother and has spent little time with his father. He has also been cared for significantly by his maternal grandmother who has resided in the home of her daughter and grandchild since prior to the child’s birth. X has developed a strong bond with her. The husband’s evidence is that the wife following separation would not allow him to spend time with his son, and that as she had obtained an intervention order against him he was fearful of contacting her in order to spend time with his son. The wife’s evidence was that the husband made no attempt to see his son until he filed his application on 14 June 2011.
The wife met the husband’s application with a response seeking orders that she be permitted to relocate with the child back to India. Her mother, who has throughout provided her with emotional and physical assistance, could no longer extend her tourist visa and was required to leave Australia by 30 September 2012. The wife wished to take her son with her and accompany her mother back to India. There, she wished to resume her old life of residing with her parents in a town with which she is very familiar, and resume her (occupation omitted). The wife hoped that the husband would also relocate to India given that he is Indian and has family support there. Her evidence was that if he was to return to India she would make arrangements for him to see his son but under supervision. Her evidence was that she would do nothing to undermine X’s relationship with the husband and that she would do all she could to encourage the relationship. I accept this evidence and her further evidence that she wanted her son “to experience his father” but note her requirement that such contact be supervised, whether that be in Australia or India.
Orders were made that the child live with the wife. The husband was to spend supervised time with X initially each alternate Thursday at the Berry Street Children’s Service (‘Berry Street’) in (omitted). The husband’s time spent with his son at Berry Street ended on 8 March 2012 when the Service advised they were no longer able to assist the family. A report was prepared by Berry Street dated 9 December 2011 which was updated on 5 April 2012 in relation to the husband’s time with X.
By consent X’s name was placed on the Airport Watch List by order of 20 June 2011. Each of the parties was ordered to attend upon a psychiatrist for the purposes of a psychiatric assessment and each did so. None of the parties sought to rely on those psychiatric assessments in these proceedings and nothing significant in respect of promoting the child’s best interests arises out of their contents. Further interim orders made 21 December 2011 provided for private supervision by the Aiding and Caring Contact Service (‘Aiding and Caring’) so that the husband could see X weekly rather than fortnightly.
During the marriage the parties discussed whether they would return to India or remain in Australia on a long term basis. The wife made it clear in those discussions that she would concur in her husband’s view as to where the family unit lived, but that she desired to return to her home town of (omitted) in India. Since the separation, the wife has been extremely isolated in Australia. Save for a 50 year old woman who is suffering from cancer, she has no friends in this country. She has no family here, save for her husband from whom she is now divorced. The only person to assist her in the care of the child, but who provides her with significant support, is her mother. The wife puts to the Court that in the event she and X can relocate to India, that X would have the benefit of growing up surrounded by her extended family in India and would have the advantage of growing up in the Indian culture. In addition, the husband’s family reside in India some two hours distance by car away from the wife’s family and arrangements could be made for some form of visitation between them and the child. Her evidence was as to herself and X and their residing in Australia:
“like orphans we are here.”
The wife’s evidence was that she resides in an area in Melbourne which lacks a sense of community. X is socially isolated in the care provided by her and her mother and in an endeavour to have him see a broader world, she has taken him to a play centre at (omitted) Shopping Centre and also to Gymbaroo and the library. She has not, however, made any firm networks or connections in these places. She compares this to the vibrant and friendly community of her home town. There she sees herself as having, and indeed does have, the security and support of her extended family. She also has many friends who live in that town, her family being five generation occupants of the city.
The wife described her family home at (omitted) in India as a large, comfortable home in which her parents reside. She wishes to resume (occupation omitted) in (omitted) and her parents would be able to assist her in the care of X in an environment free from conflict. She would also have the flexibility of working from home, which would significantly increase her ability to care for X. The husband’s parents and extended family reside in a nearby town called (omitted).

Domestic violence

The wife’s evidence was that she is under stress whilst living in Australia and that she has suffered bullying and violence at the hands of the husband. She is afraid of him and fears for the safety of herself and their son. She is of the belief that if she is unable to relocate, she will become depressed and isolated living alone with a small baby so far away from her support network of family in India. She said “I don’t know how I am going to survive.” She also fears that further violence will be directed toward her by the husband.
The wife has obtained three intervention orders against the husband. The first intervention order was an order by consent without admission on the part of the husband. The second was also an order by consent and without admission and, in effect, a variation of the earlier order. The third order was opposed by the husband and sought after the parties’ separation. The wife was successful in obtaining that intervention order in the face of opposition by the husband in a three day hearing in the Magistrates Court at Melbourne. That intervention order has the aggrieved family members as being both the wife and child and its duration is a period of four years.
The wife’s evidence was that the husband married her out of convenience and so that he could obtain permanent residency in Australia by the wife sponsoring him. The husband denied this. She claimed that from the time of her marriage, her husband would pressure her to sponsor his application for permanent residency. He would become angry and verbally abusive of her, and the issue created conflict in their marriage. In January 2010, the parties had an argument about the husband’s visa application. The wife claims he pushed her and became abusive toward her and her family. She claims he said “You bitch. I married you for permanent residency and now, if you are not sponsoring, get out of my unit.” She claims he pushed her out of the unit and that she was forced to sleep in the car that evening.
Due to her Indian culture, the wife felt under pressure to make the marriage work. She said, “Leaving a marriage would cause dishonour to your family.” The arguments between the parties were always in relation to either the sponsorship application or in relation to money. The husband came to the marriage with debts which the wife said she was unaware of until after the marriage. Those debts totalled some $17,000. The wife was highly dependent on the husband for financial and emotional support. The wife claimed that the husband was physically abusive of her, verbally abusive to her and controlling of her. She gave as one example when he forced her to ask his permission to wash her hair. His evidence was that he was concerned about her health and safety in that she might fall over when washing her hair and so sought to be in the home at the time. This explanation was implausible and I prefer the evidence of the wife.

Wife’s claim as to violence

The wife’s evidence was that during 2010 and 2011, including during her pregnancy, the husband verbally and physically abused her. She claimed he physically assaulted her on a regular basis and, on one occasion at the husband’s instigation, there was police involvement. She did not want to call the police because she was ashamed of what was happening and feared that her doing so would further escalate the abuse. Her evidence was further that the husband demanded that she give him all her wages and left her then without enough funds for food. She claimed he said to her:
“you bitch, you dog, I will hit you bloody bitch, whore, slut, how dare you don’t obey my orders, I know what to do and how to take revenge on you, wait and see.”
She also claimed he said:
“I am a male and I am the head of the family, as a female, as a wife, you need to be submissive, obey my orders. Women are born to serve their husband and be a slave to them, you obey my orders and listen and act according to what I say.”
On 1 August 2010, the parties were playing a clapping game with their hands. As they were playing the husband became more violent and started to hurt the wife. She shouted at him to stop and that it was hurting her. The husband became very angry because she had raised her voice, and started hitting her. She said she was hit so hard that she was bleeding and that he punched her face numerous times resulting in two black eyes, a cut lip, and swollen and bruised cheeks. She claimed that she was afraid she would lose the sight in one of her eyes and was in a lot of pain and couldn’t open her mouth. The husband rang the police to attend at the home as he was concerned other persons or the wife may do so. The police took out an intervention order on the wife’s behalf to which the husband consented without admission on 2 August 2010. The husband did not admit the extent of his assault upon the wife although he admitted in evidence he “slapped her a couple of times.” The husband made claims of violence against him perpetrated by the wife. He also in evidence claimed that the wife may have harmed herself to disadvantage him.
The wife was under stress and suffering from the trauma of her husband’s treatment of her and went to see a counsellor on 14 January 2011 as she needed someone to talk to. She told the counsellor about the husband’s behaviour and persuaded her husband to attend couples counselling. The counselling did not help the parties with the problems in their marriage nor did it stop the husband’s violence toward her.
In early February 2011, the parties had an argument as the husband was pressuring the wife to quit her job. The wife did not want to do this as it meant she would not be entitled to maternity leave pay. The wife advised her husband that she would quit the job if he would contribute some money toward the costs of the baby. The husband became angry and pushed the wife. She hit herself on the bed frame which resulted in uterine bleeding. Later that night, the husband, she claims, took his arms and pressed against her face and mouth as she was sleeping. She quickly woke up and was gasping for breath. She was then eight months pregnant. Her evidence is that she was extremely fearful for her life after this incident. She told her brother about the incident, but did not report it to police due to fear of retribution.
On Saturday 30 April 2011 and after the birth of their son, the parties had a further argument which included a dispute as to travel to India. The wife wanted to wait a little until their son was bigger as he was at the time only four weeks old and had been unwell. She claims the husband became angry with her and pushed her. She was in the kitchen at the time holding the door open. He tried to close the door with her hand in it. He became angry and pushed the door hard and the wife fell to the ground. The husband then left the matrimonial home for the night.
On 1 May 2011, the husband returned home and the parties again commenced to argue. The wife claims that the husband hit her in the stomach very hard and then pushed her. That night she went to the police station and made a statement. The police took out an intervention order on her behalf. The wife and child were the affected family members named in the order, and the order was consented to by the husband with a denial of the allegations and was operative until 1 March 2012.
The statement made to the police by the wife at the time, including the following:
“This is not the first time he has breached the intervention order. When I was pregnant he used to push me all the time.”
The wife, nevertheless, sought to have the husband remain in the marriage and in the home as she felt great shame and isolation in the failure of the marriage. She was frightened of being left alone. The husband however separated from the wife and ended the marriage.
Following separation and on 20 June 2011, the husband had the electricity supply and internet disconnected to the wife’s unit. The wife had requested that the services be transferred to her name, but the husband authorised the disconnection. As a result, the unit had no heating and so the wife took the child in the car and drove around with the heating in the car on for some time until the electricity was reconnected.
The wife was a credible witness. I accept her various claims as to the violence perpetrated upon her by the husband and note the making of the intervention orders against him. The husband admitted in evidence that he had slapped the wife, but claimed that it was only on the one occasion. The wife tendered in evidence photographs taken by her of the injuries sustained by her at the husband’s hands and on that occasion, being the single occasion on which the husband called the police. The wife suffered a cut lip, bruising and injuries consistent with her claims and the police taking out an intervention order against the husband on her behalf. This was despite the wife protesting that the police not do so, as she was fearful of her husband’s retaliation against her. I reject the evidence of the husband as to the wife assaulting him or harming herself on that evening.
The husband’s abuse and treatment of the wife has caused her significant distress and made living in Australia for her, extremely difficult. It is clear from her evidence and demeanour that she feels isolated and does not have the necessary support network of family and/or friends to enable her to cope with the demands of raising a young child on her own and living on her own. She has never been on her own. I accept the wife’s evidence that she would promote a relationship between the husband and child in the event the husband lived in India or visited India, despite the current charges against the husband and his family as to them allegedly seeking a dowry from the wife’s family.

Other evidence

The wife’s mother gave evidence in the proceedings and was cross-examined. She came to Australia on 5 March 2011 to help her daughter, who was pregnant. She arrived in Australia, as she says “with much happiness and joy for my daughter being pregnant and soon going to have her baby”. Although she had earlier heard from her daughter that her husband had assaulted her, she was totally unaware of the extent of the level of abuse perpetrated by the husband upon the wife, as claimed by her, until she witnessed it firsthand.
Although the maternal grandmother made various allegations in her affidavit as to the husband’s violence toward her daughter and his abuse of herself, she was unresponsive to questions asked of her in cross-examination. The Court cannot rely on her evidence which appeared exaggerated when complaining about her son-in-law’s verbal and physical abuse directed to both herself and her daughter, and which alleged the husband had been rough with the child when he was a small baby. As to those parts of her evidence, the Court finds her to be an unreliable witness.
Otherwise, the Court accepts the evidence of the maternal grandmother that she cares greatly for her grandson and that she and her husband have provided financial support to her daughter in the provision of various baby items for the child. It is further accepted that since X came home from hospital, she has cared for him, bathed him, fed him and developed a good relationship with him. The Court accepts her evidence and that of Dr H that X is emotionally attached to his grandmother.
The maternal grandmother supports her daughter’s application for X to relocate to India where she and her husband can provide both her daughter and grandson with a comfortable home and family support. She is well familiar with the child’s medical needs as described in the various doctors’ appointments to which she has accompanied her daughter. The maternal grandmother could no longer remain living in Australia and her travel visa, which has been extended, expired on 30 September 2011. Her focus was very much on the child and his needs and providing a safe, stable and loving home for her daughter and grandson.
The husband’s father gave evidence by telephone link from (omitted) in India and he was cross‑examined as to the contents of his affidavit evidence. He and his wife have never seen X, but he has seen photographs of him. Neither he nor his wife have travelled to Australia to see the baby, and nor has the baby been permitted to travel to India to the present time. The husband’s father stated in his affidavit that in or about November 2011, the wife with the assistance of her father, lodged a complaint in India alleging that his wife, son and he had demanded a dowry from their family at the time of the marriage. This is a criminal offence and the husband, his father and mother deny the allegations made by the wife and her family. As a consequence of those allegations, the husband’s father has been required to enter into anticipated bail. He has not been charged with any criminal offence to date. He deposed in paragraphs 11 and 12 of his affidavit as follows:
“11.Our relationship with the Wife’s family in India is poor. The Wife’s application to Police in relation to the alleged dowry against me and the family has caused conflict. I do not believe that the Wife would encourage any type of relationship between X and my family in India.
12.I support my son’s application for X to remain living in Australia with his husband. It is important for X to have a close and loving relationship with his husband. It is unlikely that X will have any relationship with (omitted) or our family if he is permitted to relocate to India with the Wife.”
The paternal grandfather was a credible witness who gave his evidence in a calm and reflective manner. He agreed with his son’s evidence that his wife (the paternal grandmother) could travel to Australia to primarily care for X whist her son was gainfully employed. Further, his evidence was that despite the charges relating to the dowry his wife would have no trouble in getting out of India to travel to Australia nor returning to India. This proposed arrangement is not in the best interests of the child. He has never seen his paternal grandparents nor been cared for by them. His attachment to his mother and maternal grandmother is very secure. It would be emotionally devastating for him to be away from their care. I accept the evidence given as to the now poor relationship between the families but on the evidence of the wife accept that it can be improved if the wife is permitted to return with X to India. Communication can then be had between the families for X to meet his extended paternal family and for their dispute to be resolved.
The evidence of Ms H, the coordinator at the Berry Street Children’s Contact Service at (omitted), is generally positive as to the five supervised contacts which occurred between 22 September 2011 and 1 December 2011. That evidence is of the child laughing and smiling in the husband’s company and being settled on the first occasion; unsettled and grizzly on the second; and a little unsettled and crying on the remaining visits. On each of the occasions that he was unsettled, the husband behaved appropriately and encouragingly in his attempts to calm the child. Further supervised visits occurred between 15 December 2011 and 8 March 2012 and being six visits in total. Throughout those visits the husband had difficulty in trying to feed his son and in trying to settle him, but nevertheless succeeded in part. On occasion when the child would cry, the husband would pick him up and the child would rest his head on the husband’s shoulder.
The combined effect of the Berry Street time spent with on a fortnightly basis, and that supervised by “Aiding and Caring” resulted in the husband having an ability to see X each week until Berry Street ceased providing a service on 8 March 2012, thus leaving the husband with only fortnightly time spent with X through the services of “Aiding and Caring”. The first contact visit at “Aiding and Caring” was on 22 January 2012 and, out of a possible 17 visits, the husband spent time with X on only eight occasions. There were no contact visits during the months of March 2012 and August 2012. The husband maintained that he could not meet the cost of private supervision through “Aiding and Caring”. The wife did not agree to time being unsupervised as she remained concerned that the husband did not have the ability to care for X. The husband’s lack of commitment to the child in not attending all of the times available to him to spend time with X was telling.

Evidence of Family Consultant

Dr H, Regulation 7, Family Consultant was not successfully challenged in cross-examination to alter his recommendations as contained in his report of 13 February 2012, in particular that X be able to relocate to India with his mother. In particular, he observed the strong bond between the wife and child and said of a refusal to allow the wife’s application “…there is no guarantee that the mother will be able to cope as the stresses that she has experienced up until now are likely to escalate once the grandmother’s visa expires.”
Dr H asked the wife to complete the “Trauma Symptom Inventory” and noted that the results indicated that the wife was experiencing symptoms of post traumatic stress disorder which she associated with the experience of having lived with and needing now to interact, even at a distant level, the husband. His observations of X were that his behaviour reflected that of a much younger child than 10 months saying “it is clear that he has special needs that will require much patience and time and professional help to prepare him for an independent life.” I note however, that no medical evidence is before the Court to attest to X being now a child with special needs of any severity. Dr H observed the father was more intent on venting his frustrations at what he claimed was the wife’s duplicity in presenting to him that she was single and not a widow (a fact which I find she did not) and resolving the dowry charges, rather then focusing on X’s welfare. He observed as between the child and his father that there was not a “relationship that was significant.” He questioned what the father “knew about this boy.” He commented that the father had no positive things to say about the mother’s parenting. Dr H found the wife on the other hand to be focussed on X’s safety and future security. He noted the negative impact upon the child of any violence that may have been perpetrated upon the wife by the husband in the home. He concluded that X was a child who needed more effort and time to be given to him by a parent than perhaps other children would require, and that such task would be better performed by his mother in India.

Conclusion

I find the presumption of equal shared parental responsibility should be rebutted in this case on the basis of the evidence as canvassed in these reasons and in particular the findings of domestic violence and the evidence of Dr H as to the tenuous father and child relationship. It is not in the child’s best interests for his parents to share equal parental responsibility for him. I have made an order in favour of the wife having sole parental responsibility of the child. The best interests of the child are required to be considered with reference to s.60CC of the Family Law Act 1975 (Cth) (‘the Act’) and there are both primary and additional considerations that I have had regard to in my consideration and assessment of the evidence in these proceedings and as detailed in these reasons. There are clearly practical and cost difficulties in the wife and child relocating to India which will render the child having a meaningful relationship with his father very difficult. However, the wife’s and therefore the child’s circumstances, will be happier, more secure – both financially and physically – less lonely and abusive and more forward-looking if the wife is permitted to relate to India. She has been the primary parent to X and performed that role almost exclusively to date.
It is not possible to look too far into the future and make provision for time spent with between the husband and X. Matters of the dowry charges in India must be resolved, the husband must make the effort to spend time with X, and the wife must be able to trust the husband again before unsupervised time spent with shall prevail. I simply cannot make orders for overnight time in years to come when what time the husband will spend with X in these formative years, to some extent is dependent upon the husband taking the action of travelling to India to see his son. It seems clear he will not return to live in his homeland, his evidence being he has no intention of doing so, but he has much reason to visit it in that his parents, and now his son, reside there. On his father’s evidence I do not find that the husband will be prohibited from moving freely in and out of India. I will make an order for the mother and child to travel to Australia as offered by the mother and supported by the Independent Children’s Lawyer but whether that time spent with is in the best interest of the child at that time will be informed by not only the matters canvassed in these reasons but the father’s interaction if any, with his son in India.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 12 October 2012