SHAN & PRASAD
[2019] FamCA 408
•3 July 2019
FAMILY COURT OF AUSTRALIA
| SHAN & PRASAD | [2019] FamCA 408 |
| FAMILY LAW – CHILDREN – Rice & Asplund – Whether there has been a change in circumstance to reopen the parenting proceedings. |
| Family Law Act 1975 (Cth) s 60CC |
| Carriel & Lendrum (2015) 53 FLR 157 King & Finneran [2001] FamCA 344 Rice & Asplund [1978] 6 Fam LR 570 |
| APPLICANT: | Mr Shan |
| RESPONDENT: | Ms Prasad |
| FILE NUMBER: | SYC | 6654 | of | 2018 |
| DATE DELIVERED: | 3 July 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 25 June 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPLICANT: | Armstrong Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander |
| SOLICITOR FOR THE RESPONDENT: | Acorn Lawyers |
Orders
The father’s Initiating Application filed 18 October 2018 and all extant applications are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shan & Prasad has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6654 of 2018
| Mr Shan |
Applicant
And
| Ms Prasad |
Respondent
REASONS FOR JUDGMENT
In the matter of Shan & Prasad. Mr Lethbridge, Senior Counsel, appeared on behalf of the applicant husband, and the wife was represented by Mr Alexander of Counsel.
The application concerns the father's desire to reopen parenting proceedings which were finalised by his Honour, Judge Altobelli, on 22 December 2015. The father appealed this decision. His appeal was upheld in respect of financial matters, and in 2 aspects in relation to parenting orders as follows.
There was no change to the mother having sole parental responsibility for the care and welfare of the children, X, born … 2010, and Y, born … 2012.
There was no variation to Order 3 that the children live with their mother.
In relation to Order 4 His Honour had made an order that the mother was at liberty to relocate with the children within or outside the Commonwealth of Australia. The words "or outside" were removed from his Honour's order.
There was no variation to Order 5 which is an obligation on the mother if she is taking the children outside of the Commonwealth of Australia.
In relation to Order 6, their Honours removed the words "until they each attain the age of 18 years". Otherwise, the order that the children spend no time with the father was left intact.
The appeal was heard on 28 September 2016, and the decision was delivered on 1 February 2018. The husband commenced his application to reopen the parenting matter on 18 October 2018. The mother resists the matter being re-opened at this time.
The material I read from the parties was as follows.
For the husband:
a)Initiating application, filed 18 October 2018;
b)Affidavit, filed 18 October 2018 and 20 May 2019 ;
c)Affidavits of Dr A, filed 31 October 2018 and 17 June 2019;
d)Affidavit of Dr B, filed 8 March 2019;
e)Affidavit of Ms C, filed 20 May 2019;
f)Affidavit of his wife, Ms K, filed 20 May, 2019; and
g)Exhibit I a letter from Child Support agency that he is up to date with his child support payments.
For the wife:
a)Amended Response, filed 29 April 2019;
b)Affidavits of 26 November 2018 and 29 April 2019.
The test that each counsel agreed I am to apply, or that the husband has the obligation to pass, is oft expressed as a threshold test and the rule in Rice & Asplund[1], or the new Rice & Asplund being a decision of Justice Collier in King & Finneran[2].
[1]Rice & Asplund [1978] 6 Fam LR 570.
[2]King & Finneran [2001] FamCA 344.
The fundamental matter for me to determine is whether there has been such a significant, substantial, real change in the circumstances of the father, or the children, or the mother, or any or all of them that the Court ought in the exercise of its discretion re-open a parenting matter. Understandably, the law is clear that when a final order is made it is final and cannot be readily re-opened. This is particularly so in parenting matters, as the paramount consideration for the Court is the best interests of children and there needs to be some real or compelling evidence to impel a Court to reopen a matter which has been dealt with to finality. Subjecting children to repeated litigation is to be avoided if at all possible.
The husband says such circumstances exist. The wife says they do not.
The short relevant chronology is as follows.
The father was born in 1977 and the mother in 1982.
Both parents are health care workers.
The parties entered into their marriage on … 2005. This was an arranged marriage, and each would agree it was an unhappy marriage.
In 2010, X was born.
In 2012, Y was born.
On 23 January 2013, the parties separated.
The children have always lived with their mother and continued to so do after separation.
On 10 May 2013, the father applied for a passport for Y to the Australian Passports Office not only without the knowledge or the consent of the mother he forged the mother's signature on the application form to enable him to do so.
On 13 May 2013, the mother alleges the father physically abused her.
On 18 June 2013, the father lodged an urgent visa application for Y with the Indian Embassy. He again forged the mother's signature on that application, and forged a letter that he crafted and created purporting to be the mother’s letter permitting him to travel with the children overseas with only one parent.
On 19 June 2013, the father was granted this urgent visa on his forged documents. I can use the word “forged” as this was the findings of his Honour, was not a fact in issue at the appeal and he has been charged and found guilty by in the Australian Courts for forgery.
On 21 June 2013, the father asked to spend time with the children in Jamberoo, on 24 June 2013. The mother agreed.
On 24 June 2013, he left the Commonwealth of Australia without the mother's knowledge or consent. Additionally, he organised for a friend to ring the mother and tell her he would be returning late with the children on 24 June 2013. At that time, the father was in Country L with the children who were then aged three and 20 months of age.
The father commenced proceedings in the Indian court at City M on 25 June 2013 for the children to live with him in India.
Suffice to say, the mother is frantic at this stage, and she receives information from the Australia Passports Office showing her forged signature on 3 July 2013.
On 5 July 2013, no doubt at the father's instructions, the mother receives a threatening email from the father's legal representative in India. Interim orders were made by the City M, India court on 5 July 2013 that the children are to live with their father.
On 8 July 2013, the mother commences urgent recovery proceedings in the Federal Circuit Court in Wollongong. On 8 July 2013, the mother flies to India to retrieve her children.
In July 2013, the mother makes an application to the High Court in City N, India for the children to live with her, and their passports be returned to her.
10 July 2013, the mother spends a brief period of time with the children at the High Court in City N, India.
11 July 2013, the mother attends the Family Court in City M, India, and is instructed to attend marriage counselling with the father. Orders are made that Y, is to live with her, he is but a baby, however X is to remain with the father.
30 July 2013, the mother attends the Family Court in City M, India to plead her case.
Fortunately, on 6 August 2013, the City N High Court orders the children to be returned to live with the mother in India, and the passports be returned to her. A copy of that order was tendered by the mother before Judge Altobelli at the interim hearing.
The father fails to comply with the order to hand the passports over, and he appeals to the Indian Supreme Court.
August 2013, the mother commences contempt proceedings to seek recovery of the passports from the father.
3 September 2013, the Indian Supreme Court dismisses the father's appeal, and the mother and children return to Australia.
5 September 2013, Judge Scarlett makes orders that the children are to live with their mother.
November 2013, supervised time commences between the father and the children. The matter, procedurally, continues in the Federal Circuit Court of Australia. The father is spending supervised time with the children at a contact centre by December 2013. Prior to that time commencing a family friend, a Mr D, had supervised his time.
22 January 2014, the father commences paying child support and has continued to pay child support.
On 16 April 2014, the father - clearly not content with what he had done to the mother and children in his Indian foray - makes a complaint to the police in Town P about the care of the children whilst with their mother from their nanny, and the mother receives a visit from the police. This behaviour by the father, continuing to make complaints to the police about the nanny and indirectly the mother’s care of the children, continues in 2014.
Dr E had interviewed the parties early 2014 and his report is released on 6 May 2014.
Dr E formed an adverse view in relation to the father's conduct towards the mother and children, to the benefit for the children of spending time with their father given the risks he said were associated with them spending time, despite him also finding that the children were very happy to see their father, comfortable and relaxed in his care, and that he was appropriate with them.
On 16 May 2014 Judge Altobelli, makes interim orders that the children live with their mother, and the father is to spend time with the children not more than once a month from 10 to 2 supervised by O Family Centre. The father commences time and a divorce order is made on 27 October 2014.
On 20 October 2014, the father pleaded guilty to "give false/misleading information on an Australian travel document", was ordered to pay $1,000 security and placed on a two-year good behaviour bond, and ordered to attend counselling with a Dr F.
On 5 August, Judge Altobelli made orders suspending the father's time with the children until the final hearing upon the application of the mother - and the father has spent no time with the children since 5 August 2015.
The matter was listed for final hearing in early December 2015 and His Honour delivered his judgment on 22 December 2015. The father immediately filed an appeal. That appeal was heard by the Full Court on 26 September 2016.
1 February 2018, their Honours delivered their judgment in which the husband was successful in relation to property, and some variation of orders were made in relation to parenting. Otherwise, the substance of his Honour's judgment was not traversed or cavilled with by the Full Court.
On 11 February 2018, the father sent a letter to the Child Support Agency setting out how he intends to re-agitate his matter in the Family Court given that the Full Court's decision removed the words "until they attain the age of 18 years". That letter is before me.
March 2018, the mother relocates to Sydney from Town P.
6 June 2018, the father consults with Dr B.
28 June 2018 Dr A's first report is released, but he had not seen Dr E's report.
In September 2018, the father is provided with letters, school reports and photographs of the children.
The father files his application in a case, and an application for final orders in relation to parenting in October 2018.
The law is clear. The onus to establish that there has been a significant change since the making of a final parenting order that would warrant a Judge exercising their discretion to re- open the matter is upon he or she who is seeking that order and, in this case, that is the father.
The decision of Carriel & Lendrum[3] is instructive. An application such as this must have, at the forefront, the best interest’s principle for the children, but it is also clear the Court does not have to go through an exhaustive finding of the section 60CC[4] categories. There is some food for thought that in dismissing proceeding such as this, the Court is not making a parenting order. The father's case is significant changes have occurred since his Honour's decision was made for him which would enliven my discretion to re-open the parenting matter. What are these changes and the current circumstances?
[3]Carriel & Lendrum (2015) 53 FLR 157.
[4]Family Law Act 1975 (Cth), s 60CC.
It is trite to say everyone is older, including the children. The mother and children’s circumstances remain as they were at the final hearing.
If he is permitted to re-open the matter father seeks, quite extensive and detailed orders.
The first is that the mother is restrained from relocating outside the Sydney metropolitan area.
If the mother takes the children outside the Commonwealth of Australia, she must provide him with the relevant information and that any time he misses must be made up by her.
That the children gradually increase their time with him initially supervised and then unsupervised such that within about 6 months they are spending whole days and nights with him and special occasions.
The father asserts, prima facie, that the present orders of Judge Altobelli that there be no time between the children and himself and only communication by way of gifts, letters and the like are inconsistent with the primary considerations of the benefit to the children of having a meaningful relationship with both their parents. This is particularly relevant he says when there is ample evidence to support that the children would benefit from this relationship, and there is no need to protect the children from being subjected to or exposed to neglect or family violence.
His Honour carefully weighed up all the issues and in particular the competing issues. He determined that any benefit to the children of a meaningful relationship with their father, was outweighed by the risk to them of such a relationship having regard to his Honours findings of the consequences of the father's conduct, and the opinion of Dr E and thus time face to face was not an order in their best interest.
Mr Lethbridge opined, properly that I cannot now traverse Dr E's assessment of the father's functioning, behaviour and presentation before him. However, he submitted that currently the father does not present with the conditions/personality traits that Dr E said he presented with at the time of his interview.
As their Honours said in the appeal decision, and this is the pivotal part of their decision, paragraph 87:
Although we agree with his Honour that it is in the best interests of the children to not spend time with the husband now, the effect of the recommendation was to prevent the children from seeing their father for the entire balance of their respective minorities. Given the evidence of the nature of the relationship between the children and their father, that is not an outcome that can be justified as being in their best interests. Plainly, there is no telling whether the reasons for there being no time spent with the husband now will continue to be present until the children attain 18 years, but the recommendation, in effect, assumes that that will be the case. That is highly speculative, as is the opinion of the single expert witness that the children will cope with having no relationship with their father during their childhood.
Their Honours found that making an order that there be no time for the children with the father until the children were 18 was an error, not the making an order at that time, there be no time with the father and the children. Had a no time order been made simpliciter, no appealable error would have resulted.
As I read the evidence the father pins his case on this very issue, namely that which Dr E observed and which was found by his Honour in relation to the risks the father posed to the children as a result of his behaviour, attitude, and conduct no longer exists. That is the gravamen of the husband's case as I read it.
Thus, I need to assess in this application what was the basis, the facts, the conduct of the husband upon which Dr E made his assessment, and whether such conduct, actions, attitude, and behaviour of the husband still exists today.
Dr E was very clear in his report at paragraph 197 to 201. At paragraph 197, Dr E said:
In my view, the father does not have a current or ongoing medical disorder or substance misuse disorder. He told me he had not experienced depression or anxiety. He experienced stress-induced chest pain in 2012.
Ultimately, that was not correct, and the father, in his own material, says he was suffering from depression in 2012. The father was not truthful to Dr E on that issue at that time.
Dr E says, at paragraph 201:
In my view, the father's attitudes and behaviour towards the mother reveals significant personality dysfunction, with prominent antisocial and narcissistic personality traits.
Dr E went on to opine:
It was unclear whether these aberrant attitudes and behaviours existed mostly in the domain of the intimate relationship or whether they are present in other spheres such as occupation or friendships, broader family relations. If the latter is the case, the father may have a personality disorder.
Dr E's impression of the father's personality style was drawn from others accounts of their experience of him - the mother and the maternal grandmother’s own account their experience, from the documents, and the father’s presentation at the interview. Those traits were set out at paragraph 204 as:
A pattern of grandiosity, need for admiration, lack of empathy, a pattern of disregard for and violation of the rights of others, and particularly the mother and the children. In terms of antisocial personality traits, the father can behave unlawfully, be deceitful, irritable, aggressive and irresponsible. The father lacks remorse, being indifferent and rationalising having hurt or mistreated another.
The father denied he had been violent towards, or ill-treated the mother. The mother made complaint of violence during the relationship. Dr E found, at 207:
The father's presentation was consistent with the description of antisocial behaviour described by the mother, and with the pattern of deceitfulness, denial and minimisation in the father.
At paragraph 209 Dr E, said he was:
...concerned about the father's propensity and willingness to be deceitful in order to defend his actions, enhance or preserve his reputation or to further his own ends.
At paragraph 210:
The father was deliberately and strategically deceitful in attempting to cover his tracks, and explain away his violence to the mother by painting her as mentally ill, and describing her injuries as self-harm, for example, in his email to the family in 2011, and at his visit to his doctor on 17 May 2013.
At paragraph 212:
The father was deliberately, strategically and pre-emptively deceitful in planting the fake email from the mother to himself - dated 7 May 2013 which is annexed to his affidavit of 2013 - painting the mother as at risk of homicidal behaviour towards the maternal grandmother and the children, and has her requesting that the father take the children to the paternal grandparents in India whilst painting the father in a supportive role. The father's actions in taking the children to India were a continuation of this pattern of carefully planned and purposeful deceit, and may have included the illegal act of forging the mother's signature on Y’s passport, a fact that has been found by the Court.
At Paragraph 213:
...that the father engaged in deceitful and disingenuous attempts in the courts in India, then in Australia to paint the mother as incapable to parent the children on the basis of physical and mental illness and alleged abuse of the children.
The judgment of the Indian High Court in City M is attached in the wife's exhibit RM as is the father’s affidavit filed in those proceedings. It is replete with complaints about the mother's mental health, her cruelty, mental instability, that she could not take care of the children properly, that she was required to have a nanny; the father forgot to mention that as both he and the mother were working and he also studying in Australia a nanny was essential to allow them to work/study and care for their children.
He complained that the wife purchased properties in her name only; that the children were being harmed; that she was violent towards him; he was being put under severe mental cruelty at the hands of his wife; the mother would shout at him and beat the children for no reason; that when he would ask her to care for the children, she would shout at him; that his daughter is only three and doesn't want to leave him; that "My parents are here in City M. I can stay here and maintain the children with the help of my mother"; it's unsafe to allow the children to be with their mother; that she can continue to live with me provided we stay in City M; that, "I want her to be in India. We can stay without problem." "Originally she accepted" and at paragraph 3(n):
I asked her to come back to India so that we can stay here without any problem. Originally she accepted for the same, and tickets were also booked for all, but later she refused to come with me. And, hence, I was constrained to bring the children with me as she does not show any sign to take care of them. She does not even want the children to be with her, and has asked me to take the children with me. I came to City M in these sad circumstances, and she did not come despite a ticket being booked for her.
Further:
I am entitled to have custody of my children. They are not in illegal detention. And I had to approach the court in City M for the necessary appropriate relief. I deny I abducted my children and, as being their natural guardian, I am fully entitled to have custody of my children. It is totally untrue that I've caused mental agony and torture to my wife. I've never been involved in any such things -
Paragraph 5:
It's not known why my wife has suddenly changed her mind and deliberately refused to come here.
That affidavit was a complete fabrication. This is not a matter where a parent simply takes a child out of the country. This was a matter where the father set out on a course of conduct well before he took the children out of the country to achieve his end. He forged the mother's signatures in applications and in letters, set up fake emails and wrote false letters, engaged others in his subterfuge by having a friend telephone the mother to say he would be returning the children home late when he had whisked the children out of the country their mother believing they were with their father in Australia.
To have put in an affidavit to any court that the mother agreed to come to India and did not want the children is nothing but a fabrication. This mother had absolutely no idea that the husband had obtained a passport for her infant son. He forged a letter to the Indian Embassy to obtain a visa for their infant children to travel with only one parent. She had absolutely no idea he had taken the children out of the country, or commenced proceedings in an Indian court seeking that they remain with him in India. The ticket the father purchased for the mother at this time was one way!
Dr E, raised with the father that in the City M proceedings he said he wanted to stay in India and raise his children there. When asked for an explanation of his now stated intention in the Australian proceedings that he only went to India with the children temporarily, he gave Dr E an entirely different account at paragraph 217:
He did not deny that he took the children and had taken them to India without the mother's knowledge, but presented this as the desperate act of a man who could think of no other way to get the mother to India so that she could, through his medical contacts in that country, get the medical and psychiatric assistance that she needed, as the father asserted. The father told me, with earnest certainty, that he had never intended to settle in India, and that the visit had only ever been temporary with a plan to return once the mother received the help she needed.
At paragraph 226:
The father showed a profound lack of empathy for the mother, and failed to consider or recognise her emotional response. He lacked remorse regarding his actions towards her, and denied or justified these actions.
Paragraph 227:
In his discussions of his actions in deceptively taking the children to India, the father made no reference at all to the mother's inner experience of the same, or to any distress or uncertainty that the children may have felt. Instead, he presented himself as the hapless victim of maternal lack of insight into mental illness, then of subsequent misunderstanding by Indian courts, and as the gallant protector of his children.
Of great concern to Dr E, at paragraph 230, was:
The father appeared to disregard what might be the mother's current fears as a result of his actions in taking the children to India, and to take no responsibility for his actions or those consequences. The father presented himself again as the hapless victim, put his hands up in despair and pathos, and asked, "Did I do any mistake? I feel like a criminal."
He is a criminal. He has been charged with signing a false and misleading document, old fashioned forgery, and convicted.
Dr E opined:
The father's lack of empathy and of remorse increases the likelihood of persistence or recurrence of his antisocial behaviours.
Dr E opined, at paragraph 291 that he had concerns about the children being in the care of their father and under his influence due to the indirect effect on the children of the father's perpetration of a pattern of family violence towards the mother, such that she is at risk of emotional and physical harm which can then disrupt her parenting capacity.
Dr E was most concerned about the father's long history of what he called "undermining maternal parental capacity", and his more recent history of deceitfully taking away the children to India, and deceitfully seeking to present the mother to the courts as the one having mental and physical, incompetent and abusive behaviours. As the mother said about him:
He is a person I trusted, but now he has done such, I can't trust this person at all. It's so premeditated and criminal. He will run away. He's not a person who will abide by the rules. He will put them under their family, his brother.
Dr E found that the children posed a risk of their emotional needs being neglected by the paternal family.
Dr E noted at 324:
The day of the interviews, the children have a positive disposition towards their father. The father spent time with the children and got down to their level. He played with them. He engaged positively, a little over-constructed and intense, but that may be understandable. And X was able to talk without vigilance or inhibition in positive terms about her mother.
Dr E finally said:
The risks posed by time with the father during their childhood and adolescent years outweighs the benefits they would receive from a relationship with him..
Thus, as Mr Lethbridge put to me, Dr E’s assessment of the functioning of the husband was that he had a personality dysfunction, which he described as narcissistic traits, grandiosement, deceitful, no remorse, lack of empathy, laying blame on others, no insight into what he had done. He diagnosed the husband with anti-social and narcissistic personality traits, and this, Mr Lethbridge said, was pivotal for Dr E in predicting into the future what the husband’s behaviour would be. The Full Court was not persuaded there should be an order for no time until the children are 18, not that there should be an order for no time.
Mr Lethbridge submitted that if I took out Dr E’s diagnosis of the father, namely “his attitudes and behaviours towards the mother reveal significant personality dysfunction, with prominent anti-social and narcissistic personality traits”, he would be virtually no risk to the children directly, for it is clear they were not fearful of him, were pleased to see him and interacted well.
The change in circumstances that the father says is apparent today is due to:
a)The effluxion of time;
b)The work he has done to his credit to retrieve his mental functioning, resulting in; and
c)That the person Dr E saw and described is not the person the husband is today.
What evidence does the husband put to the court to satisfy me that the person Dr E saw and made an assessment of that he was such a risk to the children that it outweighed the benefit they would obtain from a relationship with him is not that person today?
There are some positives. The first is he has continued in his job as a health care worker. He works at Employer Q. He is seeking to buy a property in Suburb R.
He has remarried. He has a new child, a little girl. His wife is commencing a TAFE course. He has bought a home. He has significant roots in the community and a significant connection to Australia. He is clearly in a stable, loving relationship. His wife’s affidavit attests to that. She talks of how happy she and her husband are, how supportive he is of her, kind to her, and a loving, gentle, caring father of their child.
He also put forward an affidavit from a co-worker, a Ms C, who opines how well he and she work together. There is no difficulties in the workplace. That she and he perform many duties together and the like, and that he respects her and she respects him. Thus, Dr E’s concerns that if his poor behaviour was not just related to his wife, but to other people, such as colleagues and in other personal relationships he may have had a personality disorder are not apparent today.
His behaviour and conduct towards his current wife being the opposite of that described by Dr E, to his then wife, is support for the husband’s position that he does not exhibit the aberrant attitudes and behaviours in the domain of his intimate relationship with his current wife and, therefore, he is not dysfunctional, does not have a dysfunctional model of intimate partner relations, nor a pattern of family violence, and they are not present in any other spheres, such as in his occupation, friendships and broader family relationships. Thus, those two witnesses, the husband says, would assist the court to find that there has been a change in him or a diminution of a risk foreseen and thus positive change in circumstances.
However, I have formed the view that Dr E’s assessment, albeit an hour and a half only, was based upon his conduct, behaviour and attitude towards his wife who will always be the mother of his children. The primary question for me is then has this behaviour and attitude changed? For he cannot deny his behaviour to her was deceitful, dishonest, and criminal.
This is not a case where the husband has on a whim taken children out of the country. This was a planned, well-executed at every level, deceitful, illegal, criminal act by the husband to deprive the mother of the children and the children of their mother, for purposes that I still cannot understand. The father told the City M Courts one thing in his affidavit and Dr E something entirely different.
To answer this question I will first look at what the father told the two psychiatrists he has dealt with since Judge Altobelli made his judgment, to glean his insight into the consequences for his former wife and children of his behaviour, to determine his remorse for that trauma, which he put his then family through, and his insight into the level of criminality he engaged in at that time. I will then look to his own words to the Court.
If the father still has the same or a similar attitude to what he did, as expressed to Dr E, there has been no change which will have diminished the risks to the children and despite other positive changes he still is the same risk to the children now that he was at that time.
Therefore, going to those reports.
Dr B’s report of 5 March 2019 describes the history he is given by the husband. At paragraph 2 it is immediately apparent the father is criticising the mother. He says his wife exhibited mood swings and impulsive behaviour from the early stage in their relationship. He found her writing “Jesus” repeatedly on a piece of paper in the middle of the night. He asked her why and she slapped him. She apologised. She engaged in self-harming behaviour and also had fainting episodes. His wife had been diagnosed with an anxiety disorder in 2006.
When her father died in 2012, her mental state deteriorated and she was often observed to slap herself. She had been irritable in her interactions with him and he had to discontinue his employment training. When his mother-in-law left the country, they hired a nanny and he confirmed his view of this lady, that she was an ex-alcoholic.
He said the children were abused by the nanny, locked into their room 18 hours a day and his wife supported the nanny and he felt undermined and marginalised. He was constantly worried for the welfare of his children and by their strained relationship. He said he felt low in mood.
It is then reported:
In this context, Mr Shan had decided to go to India with the children, as he had been worried for their welfare. He had forged his wife’s signature to apply for his son’s passport and had booked tickets to go to India. He took the children to India without his wife, though he had also booked one way ticket for her. His wife had filed a case against him for forging her signature and kidnapping the children. He had been granted a good behaviour bond in 2014.
There is no mention of the conduct that the husband engaged in India in filing an affidavit that was untrue, failing to abide by the orders of the Indian Supreme Court and hand over the children’s passports, filing an appeal against the Supreme Court the High Court nor that his case was dismissed.
No mention that Dr E could find no evidence to support the father’s allegations of the mother’s poor mental health functioning, that the father had interviewed and hired the nanny, that the parents were working at this time with 2 young children to care for. There is a continuation of his attitude expressed to Dr E that due to the mother’s behaviour he had to take this drastic action.
The husband says his mental state deteriorated further with the court experience. He was anxious when he saw police. He consulted a psychiatrist, Dr F. Had not taken any psychiatric medication, but found the sessions helpful. He did not tell Dr B that he had was required to see Dr F as part of his criminal conviction.
The husband was prescribed antidepressants by Dr G on 6 June 2018. By 19 September, his mood had improved. He was feeling much better in November, losing weight, taking care of himself. He was enjoying a close and healthy relationship with his second wife. By 16 January 2019 he was more relaxed, working full time and his concentration was good. He was upset about not having contact with his children from his first marriage. That is understandable.
Dr B had read Dr E’s report when he saw the husband and at the time he made this report. He also referred to the first report of Dr A. Dr A had not had had the benefit of Dr E’s report and noted that Dr A, after reading Dr H’s notes and Dr F’s report had concluded based on the information available to him there was no significant evidence to conclude that the husband had endured pervasive and persistent personality characteristics consistent with an antisocial and narcissistic personality construct, contrary to that which Dr E opined in his family report.
Dr G spoke to the husband’s wife and she confirmed their close personal relationship and she observed he had been stressed and struggled to sleep and psychiatric medication had improved his mental state.
Dr G saw the husband on four occasions: 6 June 2018, 19 September 2018, 14 November 2018 and 16 January 2019. At the time of the initial consult he presented with depressive symptoms, low mood, etcetera and this is important. Dr B said the husband had suffered from depressive symptoms since 2012, but they worsened in severity in 2015. That is not what he told Dr E. It is apparent that the husband has been in a bit of trouble, mentally, since 2012 and help was not taken up.
Dr B opined that his presentation, his symptoms worsening in severity in 2015 from symptoms in 2012 is consistent with a diagnosis of major depressive disorder and comorbid anxiety symptoms such as anxious ruminations and feeling tense. They were largely in remission at the time of writing the report. He was compliant with his psychiatric treatment. He admitted to a good relationship with his wife and reported functioning well and Dr G was clear: the father has suffered from depressive symptoms since 2012.
Dr G did not identify sufficient evidence to warrant diagnosis of narcissistic or antisocial personality disorders. He opined that such disorders are pervasive and enduring patterns of maladaptive behaviour and inner experiences. They are not limited to one malfunction and do not suddenly appear in adult life and the information from his wife contradicts Dr E’s opinion that any aberrant behaviour specific to the relationship with the first wife and children were predictive of the continuation of similar behaviours within those relationships and future partner and parenting relationships. His greatest risk was, perhaps, of a relapse of his depressive symptoms.
As background the mother has a condition called Takayasu arteritis, which is a form of an autoimmune inflammation of blood vessels. She is under the care of a specialist, treated with anti-inflammatory medication and, on occasions, prednisone. Her understanding is that the current recommendations are to treat symptoms and maintain monitoring of health, but not treat unless there are symptoms.
Despite Dr E being as clear as can be at paragraph 105 of his report that the mother does not have current or ongoing mental disorder or substance abuse disorder, the father still persists, when he sees anyone, of raising this issue. The father raised serious concerns of her mental functioning in all the proceedings he has commenced in this court. That is part of his justification to himself before Dr E of taking the children to India and repeated to Dr B.
Dr E formed the view the mother may have been anxious in 2011, and part of that was reactive and proportionate to her experience of adversity, disappointment and a pattern of family violence within the parental relationship, losing her father, her grief and that she likely would have met criteria for an adjustment disorder with anxious and depressed mood during periods of time. But he observed the mother to be reflective and emotionally contained and that any of her poor mental health functioning behaviours were active to external adversity, rather than representing an intrinsic vulnerability in the mother. Clearly, the father does not accept this.
Going now to Dr A’s two reports. The first of 8 October 2018 when he had not had the benefit of Dr E’s report. Dr A is also a psychiatrist, a forensic psychiatrist. He spoke to Dr B and listed the nine sources of information, as well as the interview with the husband, letters of instruction and the like, the decision of His Honour, the decision of the appeal court, discussion with Dr B, the wife, report of Dr H, Dr J and Dr F.
The father told Dr A that his wife slapped him three days after their wedding, that she turned into a different person once married, that his wife became medically unwell after the birth of their daughter and, therefore, her mother came to Australia. He persisted in telling Dr A that the mother had lifted up their daughter and started running around, before slapping and hitting herself. He then described how his mental health began to deteriorate in 2012, he had difficulty concentrating on work, on training requirements, feeling stressed out, but did not attend to get any assistance. He told Dr A he was constantly worried about the children and repeated his concerns about the nanny he had hired.
He said he discussed the return trip back to India with the children with a lawyer in India. He booked a return ticket for himself and the children and a one-way ticket for his wife. He said she was uncertain when she would return, whether she might remain and return on a later date with her mother. He told Dr A he did not tell his wife he decided to go back to India. When asked why, he said that his wife was adamant she didn’t want to go to India until 2015, and that he did not think she would sign the passport application to let his son go to India and the only way to sort out the problem was to feign his wife’s signature. What was the problem that the husband was referring to: the wife was not doing what he wanted. That was the problem. These are his words about his conduct to Dr A:
On reflection, he described his behaviour as a mistake. With hindsight, he said he appreciated the significance of his wrongdoing and the significance of travelling to India with his children unbeknownst to the wife. Unfortunately the husband gives me no details of what he means by the significance of his wrongdoing and saying the words is insufficient in this matter. It may be that he the significance of his wrongdoing was that was convicted of a criminal offence. I simply do not know.
He told Dr A that:
He had asked an acquaintance to inform his wife that he would be late home from work. And when he asked his acquaintance to do that, he had landed in Country L with the children. He telephoned his wife, informed her they had left and had booked her a ticket and he commented, “This was a mistake, thinking back.” He accepted his wife was stressed as a result.
Surprisingly, the husband was surprised that the wife did not arrive as planned. He told Dr A he instituted legal proceedings in the High Court in India, and that the Supreme Court recommended shared custody of their children. He referred to the offending behaviour as a mistake and discussed the impact it had had upon his wife and children and others. I have no ideas what the husband believed the impact was, Dr A did not elaborate and neither did the husband in his affidavit to which I will later refer.
Dr A went on to refer to Dr E’s report and Judge Altobelli’s judgment and said he noted at page 9:
I note the subsequent detailed discussion of the father travelling to India with their two children unbeknownst to his wife. This is discussed in the body of my report.
He had reviewed the chronology prepared by the Independent Children’s Lawyer, and that Dr E had diagnosed the husband as having a significant personality dysfunction, but not a personality disorder. Dr A concluded:
The father’s current clinical presentation is consistent with a diagnosis of major depressive disorder. The family law proceedings have acted as a perpetrating factor.
The family law proceedings have not acted as a perpetrating factor. It is the consequences of the father’s conduct that has been the perpetrating factor, not the family law proceedings. Dr A could see no significant evidence to conclude that the father had endured pervasive and persistent personality characteristics consistent with antisocial and narcissistic personality construct.
Dr A said that his behaviour in 2013, taking the children to India unbeknownst to the wife, was problematic, had wide-ranging deleterious sequela, but he could not elicit any clear evidence to conclude that this was set in the context of repeated deceitful and duplicitous behaviour. That the husband had accepted the wrongfulness of his behaviour and expressed regret for having done so. He has no other criminal history and his reporting functioning now does not suggest a pattern of maladaptive behaviour.
In Dr A’s report of 17 June 2019, he said he read Dr E’s report, but that did not change the opinion he had expressed in his earlier report and so nothing turns on that.
Yet again as with Dr B, the husband sought with Dr A to lay blame for his actions on the wife’s conduct namely he did not think she would sign the passport application and he had to forge her signature to “sort out the problem.”
Dr A noted that:
However, I note the potential discrepancies between the father’s account and the alleged inappropriate behaviour towards his wife discussed in the collateral material. It’s a matter for the fact-finder to establish the reality of the situation. I would be willing to review my opinion if inconsistent information is made available.
Judge Altobelli was the fact finder and he ruled on these matters. The fact-finder made the findings of fact. Judge Altobelli found he was evasive in cross-examination, evasive about what his actual income as disclosed to that in his sworn Financial Statement, paragraph 31. He was evasive on a range of topics. He was evasive about the circumstance of his fraudulent signing of the mother’s signature on the child’s passport visa applications. He was evasive about his allegations in relation to the mother’s self-harming, her mental health issues, and even her physical health and gave the impression of seeking to avoid the consequences of his evidence in this regard, being found to be exaggerated and, indeed, as his Honour found, grossly exaggerated at times: paragraph 31.
He was evasive about his plan to remain in India. He was evasive with Dr E on that issue as well. In the criminal proceedings in Australia, he relied upon a doctor’s report that said he suffered from depression, but retreated from this when challenged at the hearing before Judge Altobelli and blamed the doctor who provided the report, rather than himself, the person who provided the history to the doctor. He was evasive when challenged about his assertion the mother had agreed to come to India when he took the children there. It is as obvious and clear as it can be. She did not agree. She knew nothing about it and he took calculated steps to ensure she knew nothing about the trip.
Judge Altobelli referred to the father consistently talking about the mother’s capacity and mental health and, as his Honour says, this was clearly a means to attain an end. It is a complete fabrication. Again, consistent with the father’s behaviour in cross-examination and the clear distortions of truth in the Indian proceedings, he sought to blame his Indian lawyers, and Judge Altobelli agreed with Dr E’s assessment that the father had faked the email dated 7 May 2013, which he sought to use against the mother.
His Honour found that family violence, as set out by Dr E, and reported by the mother, and confirmed by her mother, is probably more likely what took place than what the father asserted, namely that the mother was mentally unwell. Judge Altobelli confirmed that the father disposed of property of the parties contrary to court orders between day 4 and day 5 of the hearing before him. Judge Altobelli was of the view that there was a risk that the father would take the children to India at paragraph 93 of his Honour’s judgment.
The Independent Children’s Lawyer asked Dr E whether the father’s personality traits would change as a result of therapy.
Dr E replied he thought that whilst it would be hard, it was nonetheless possible, but it would need a degree of insight and willingness to change that seemed to be absent when Dr E saw the father.
I now go to the father’s affidavit, and what he tells me about the situation brought about by his own conduct, that he and his children have found themselves in, for there is no doubt these children have missed out on a relationship with their father.
What has that occurred?
His affidavit of 20 May 2019 tells the Court about his current life and it is clear things are going well both professionally and personally.
I could see no evidence of contrition for what he perpetrated upon his former wife and his children in that document nor as Dr E put it “insight and willingness to change”.
In the father’s affidavit of 18 October 2018 he again talks of his new life. Paragraph 13:
In June 2013, I travelled with the children without the mother’s knowledge to India. I also forged the mother’s signature and Y’s passport application. On reflection, my behaviour was a mistake and I appreciate the significance of the wrongdoing in travelling to India without the mother’s knowledge or consent.
That sentence, the only sentence of any acknowledgement of the significant negative consequences of his actions tells me the father still has the same attitude to the mother, lack of insight into the consequences for her and the children of what he had done and has no ability to see from her point of view the consequences of his actions. There has been no change on the most significant issue that weighed on Dr E’s mind namely the father’s behaviour towards and attitude to the children’s mother. It remains today as it was in 2013/2014. To cast his actions in 2013 as a “mistake” gives me no comfort he has changed. Why was it a mistake because he was caught? I do not know. As far as his relationship with the mother is concerned the risk the father’s personality traits exposed the children to in 2013 remain in 2019.
It is insufficient, in a matter such as this, when the very fact in issue is a change in circumstances and that change is an understanding or reflection of the enormity of what you did to your children and their mother and a willingness to change that you say:
On reflection, my behaviour was a mistake and I appreciate the significance of the wrongdoing in travelling to India without the mother’s knowledge or consent.
Coupled with his continuing to lay blame at the mother’s feet for his conduct by referring to the mother’s mental health issues and her behaviour towards him to both his psychiatrists is further evidence of his lack of change and I dismiss his application. There are insufficient grounds to support exercising my discretion to reopen the parenting matter and have the children and mother put through the Court process yet again and to do so would not be an order in their best interests.
I certify that the preceding one-hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 3 July 2019.
Associate:
Date: 3 July 2019
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