Shiva and Kapil

[2014] FamCA 1168

FAMILY COURT OF AUSTRALIA

SHIVA & KAPIL [2014] FamCA 1168

FAMILY LAW – CHILDREN – INTERIM – where the child is currently in India – where the father applies for the return of the child – where the mother is in Australia – where the mother is restrained from leaving Australia – where there are allegations of violence

Child Support (Registration and Collection) Regulation 1988 (Cth)

Family Law Act 1975 (Cth) s61DA

Foreign Judgments Act 1991 (Cth)
Foreign Judgments Regulations 1992 (Cth)

Chalk & Plasto [2013] FamCAFC 48 at par 15-22;
Goode & Goode (2006) 93-286
Marvel & Marvel(No 2) [2010] FamCAFC 101
MRR v GR (2010) 240 CLR 461
Taylor & Taylor (1988) FLC 91-943 at 76,809

APPLICANT: Mr Shiva

RESPONDENT: Ms Kapil

FILE NUMBER: BRC 6001 of 2014

DATE DELIVERED: 22 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 December 2014

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The mother do all things to ensure that the child B, a male born … 2012 is returned to the Commonwealth of Australia by 19 March 2015.

2. The father shall be responsible for the costs associated with the child’s economy class travel from India to Australia with such costs to include the costs of return economy air travel between India and Australia for any person nominated by the mother to accompany the child on the journey from India to Melbourne, Australia.

3. In order to facilitate the implementation of Clause (2) of this Order:

   (a)no later than sixty (60) days prior to the date of the child’s economy class flight from India to Melbourne: the mother shall provide the father with details of the nominated flight, the cost of the same and details of a bank account into which funds to be used to purchase the necessary tickets may be deposited; and

   (b)no later than thirty (30) days prior to the date of the departure of the child’s economy class flight from India to Melbourne: the father shall deposit the funds required to purchase the economy air tickets necessary to return the child from India to Melbourne, Australia into a bank account nominated by the mother and the mother shall use such funds to purchase the tickets necessary to return the child to Australia;

   (c)no later than seven (7) days prior to the date of the departure of the child’s economy class flight from India to Melbourne: the mother shall provide the father with a copy of the child’s economy class aeroplane ticket evidencing his return to Australia.

4. The mother advise the father of the fact of the child’s arrival in Australia by email or text message sent within twelve (12) hours of the child’s arrival in Australia.

5. Upon the child’s return to the Commonwealth of Australia, he shall live with the mother.

6. Clause 2 of the Order made 2 September 2014 shall be discharged upon the child’s return to Australia.

7. After the child’s return to the Commonwealth of Australia, the mother, Ms Kapil born … 1985 and the father, Mr Shiva born … 1985 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child B, a male born … 2012 from the Commonwealth of Australia before 19 March 2017.

8. It is requested that, after the child’s return to the Commonwealth of Australia, the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 19 March 2017.

9. Upon expiration of the period referred to in Clause (8) and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List. 

10. The child shall spend supervised time with the father for a period of no less than two (2) hours per fortnight at a Contact Centre in Melbourne, Victoria.

11. In order to facilitate the implementation of Clause (10) of this Order:

    (a)by no later than 15 January 2015: the mother shall provide the father with the address and contact details of the Contact Centre at which supervised time between the child and the father will occur; and

    (b)thereafter: each party shall forthwith do all things necessary, including matters required of them by the Contact Centre, to ensure that supervised time between the child and the father occurs as soon as possible after the child’s return to Australia; and

    (c)each party shall be responsible for any costs associated with that party’s compliance with any intake requirements imposed by the Contact Centre; and

    (d)save for the costs associated with intake, the father shall be responsible for the costs associated with him spending supervised time with the child at the Contact Centre.

12. The parties have liberty to apply on the giving of seven (7) days notice in writing.

IT IS FURTHER ORDERED THAT

1. These proceedings be transferred to the Melbourne Registry of the Family Court of Australia.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6001 of 2014

Mr Shiva

Applicant

And

Ms Kapil

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern B, born in Australia in 2012. He is currently in India – where he has been since about December 2013 - in the care of his maternal grandparents.

2. In Taylor & Taylor[1] the Full Court rejected the “supposed principle” that the Court should not exercise jurisdiction in respect of children who are not present within the jurisdiction unless there are exceptional circumstances.  The Court affirmed that the only basic principle as to the exercise of jurisdiction with respect to a child is that the child’s best interests are the paramount consideration. The Court noted that, whilst it may be that in the majority of cases the Court will not exercise jurisdiction in respect of a child who is absent from the jurisdiction, this will arise out of there being no likelihood of enforcing any order the Court may make or that the country in which the child resides is the better forum.

   [1] (1988) FLC 91-943 at 76,809.

3. Both of the child’s parents are in Australia. Both have invoked this Court’s jurisdiction to seek parenting orders about him.[2] There are no proceedings on foot about the child in India and, thus, there is no necessity to undertake a consideration as to forum, particularly given that neither parent proposed that any parenting dispute about the child be litigated in India.

   [2]At the time he filed the Initiating Application the father, who is an Australian citizen, ordinarily resident and domiciled in Australia, was also present in Australia. The mother was also present in Australia when the Initiating Application was filed.

4. Here, both parties seek the child’s return to Australia: they differ about the timing of this. The father seeks that the child be returned forthwith, whilst the mother seeks that his return be delayed until she finishes exams at the end of February 2015. She also seeks that she be able to leave Australia to collect the child and return him to Australia. Her departure from Australia is opposed by the father.

Interim parenting orders

1. The principles applicable to and the manner by which interim parenting applications by parents are to be determined are well known.[3] 

   [3]          See for example: Goode & Goode (2006) 93-286.

The proposals

1. By Initiating Application filed 8 July 2014, the father sought interim orders that the mother deliver the child to him so the child can live with him. He submitted to the effect that this was in the child’s best interests because he is his father and the child is not being well cared for at present.

2. Whilst his Application is silent as to the time he proposes the child spend with the mother, he told the Court from the Bar table he proposed the child spend equal amounts of time in a month with each parent. He said that, given he lives in Brisbane and the mother intends to continue to live in Melbourne, this could be achieved by the child travelling between Brisbane and Melbourne to spend alternate fortnights in their respective care. Such a proposal implicitly accepts that the child will be safe and well cared for by the mother during such block time.

3. The father told the Court he has the financial means to pay for the child’s one way travel between Brisbane and Melbourne and, given the child’s age, the associated costs of an accompanying adult.

4. The mother sought that the child live with her upon his return to Australia and that his time with the father occur under supervision at a Contact Centre. She submitted this was in the child’s best interests because she had historically been his primary care provider, the father had demonstrated violent behaviour toward her during their relationship, had acted violently toward another adult male after their separation and had threatened to kill or harm the child.

Brief summary of relevant factual matters

1. As is so often the case, the parties disagree about a large number of factual matters. The manner in which an interim hearing is conducted (without the opportunity to observe the parties under cross-examination intended to test the validity of assertion and counter-assertion) has the consequence that the Court is unable to reach definitive conclusions about such matters.

2. The following do not appear in dispute:

   a)the parties married in India in 2008 and relocated from India to Australia in about June 2009;

   b)the child was born in Australia in 2012;

   c)the mother took the child to India in November 2012 and returned with him to Australia in about February 2013;[4]

   [4]          Paragraph 33, mother’s affidavit.

   d)the parties separated on a final basis in June 2013 (according to the mother) or  July 2013 (according to the father) and the child has not seen the father since then;

   e)on 1 July 2013, the mother applied for a Temporary Protection Order;

   f)on 2 July 2013, a  Temporary Protection Order, encompassing both the mother and the child, was made;

   g)the maternal grandmother travelled from India to Australia in about July 2013 – she lived with the mother and child for about six months[5];  

   h)the mother and child accompanied the maternal grandmother when she returned to India in about December 2013;

   i)the child was seen by members of the father’s family in India;

   j)the father became an Australian citizen in January 2014;

   k)the mother has permanent residency[6] in Australia but is not an Australian citizen;

   l)on 17 June 2014, the father’s family told him the mother was leaving India to return to Australia; [7]

   m)the mother returned to Australia without the child on about 18 June 2014;

   n)the parties met in the presence of community elders on 24 September 2014 but, for whatever reason (this being a contested matter), this meeting did not proceed uneventfully: rather, Police attended and, ultimately, an Intervention Order was made.

   [5]          Paragraph 48, mother’s affidavit.

   [6]           Granted in about July 2011.

   [7]          Paragraph 29, father’s affidavit.

3. Included within the contentious issues between the parties are:

   a)whether the father was physically, sexually and verbally abusive toward the mother during their relationship; and

   b)whether the child travelled to India in late 2013 with or without the father’s knowledge and consent; and

   c)whether the mother has acted to prevent the father from spending time with the child or whether he has not sought to do so; and

   d)whether the father commenced these proceedings only in retaliation for proceedings commenced by the mother in India - and not because he wants to see or have a relationship with the child; and

   e)whether the father threatened the mother that, if she did not withdraw complaints made about him in India, he would commence proceedings in Australia to have the child returned to him so he could kill the child and not have to pay child support.[8]

   [8]           Paragraph 54, mother’s affidavit.

4. The father accepts that the mother was the child’s primary carer during the first 14 months of his life. Given this, it remains more likely than not that, of the parents, his most secure attachment may well remain with the mother. Clearly, given the time he has spent in the care or presence of his maternal grandmother, it may well be that his primary attachment at this time is with her. He has, it seems, spent about half of his life with her to date. However, as noted above, both parents seek that he return to Australia to live. Both of their proposals involve him being removed from the care of the maternal grandmother.

5. Given that both parties intend to remain living in Australia, the child’s return to this country is the only way in which he will be able to have a meaningful relationship with both (or either) of them.

6. The parties are in dispute about the level of the father’s involvement with, and care for, the child during their relationship. The mother’s case involves allegations of significant family violence perpetrated by the father toward her during their relationship and allegations of threats to harm the child.

7. There is no suggestion in any of the material that the child will be at risk of harm if, upon his return to Australia, he lives with the mother.  As noted above, the father’s own proposal is that the child spend block periods of time in the mother’s care. In contrast, the mother raises significant and serious allegations about the father’s capacity to care safely for the child.

8. I consider the imperative of protecting the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, requires that the Court adopt a cautious approach, at least on an interim basis, in determining those parenting orders which are in his best interests.

9. Further, as the child has not seen the father since separation, his reintroduction to the father and his care would better occur in a controlled and supported environment, such as that provided by a Contact Centre.

10. The mother has lived in Melbourne since her return to Australia in mid-2014. She intends to continue to do so. She is completing studies necessary to improve her prospects of obtaining employment in Australia. The father lives in and around Brisbane.

11. The father is currently subject to at least one Intervention Order, made in Melbourne on an interim basis on 29 September 2014. An additional Temporary Protection Order appears to have been made in Queensland following an incident in July 2013. The child is named as an affected/protected person in each of these orders.

Parental responsibility

1. Neither parent sought that I make an interim order in respect of parental responsibility.

2. However, in Goode and Goode[9], the Full Court said at para 51:

   We see little purpose in this debate which is essentially about terminology. As we have already indicated, it is not necessary to seek an order for equal shared parental responsibility to trigger the presumption in s 61DA. All that is required is that the Court be making a parenting order. Thus, it does not matter whether the issue of equal shared parental responsibility was put in issue by the parties, or either of them, as the Court is required to apply s 61DA in any case in which a parenting order is to be made.

   [9] (2006) FLC 93-286; 36 FamLR 422

3. Further, in Marvel & Marvel(No 2)[10] the Full Court of the Family Court said:

   [10] [2010] FamCAFC 101.

   75. In this case his Honour was asked by both parties to make an interim parenting order about the child.  In making such an order he was required to regard the best interests of the child as his paramount consideration (see s 60CA).  He was not asked on an interim basis to make an order for equal shared parental responsibility. 

   76. The significance of the presumption of equal shared parental responsibility (see s 61DA below) is readily apparent from a reading of that section.  A court must when making a parenting order, as was sought in this case, unless there is child abuse or family violence or the presumption is rebutted as it is not in the best interests of the child, presume that the parents are to have equal shared parental responsibility for the child.  However, s 61DA(3) contains a qualification in that it gives recognition to the fact in some interim parenting proceedings it may not be appropriate to apply the presumption.

   ……..

   78.      At paragraph 56 in Goode the Full Court explained: 

   In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).

   79.The Full Court also discussed s 61DA(3) in Goode and concluded at paragraph 78:

   The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. In this case for example, we respectfully agree with his Honour’s decision that this consideration meant it was inappropriate to apply the presumption.

4. And further, at para 86:

   On the material we have read there were so many factual matters in dispute and little uncontested evidence, it could well have been appropriate for his Honour to have found that:

   ·          he was being asked to make a parenting order;

   ·the presumption should apply (as it was not rebutted or not in the child’s best interests); but

   ·because of the nature of the material before him it was inappropriate to apply the presumption and that s 61DA(3) should apply.

5. The Full Court goes on to say at para 107:

   Although s 61DA(3) should not be applied in a broad exclusionary manner in interim proceedings, it appears to us that it is likely to have greater relevance in matters where a narrow issue is in dispute in interim proceedings, particularly if equal time or substantial and significant time orders are not in issue.  The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing.  The practical effect of the application of s 61DA(3) is that the task and complexity of decision making on a narrow issue or issues is reduced.  However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied.  We accept the task involved in a final hearing when only narrow issues are to be determined, nevertheless requires the legislative path in all its complexity to be followed if an order for equal shared parental responsibility has been or is to be made.

6. In the present case, there remain ‘numerous and complex factual issues’ in dispute which are ‘incapable of determination’ at this interim hearing. This, the existence of the allegations of significant family violence made by the mother and the geographic distance between the parties persuades me that it is inappropriate in the circumstances to apply the presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for him when making the interim parenting order.[11]

   [11]         s 61DA(3) of the Act

1. It follows, from the finding that it is inappropriate in the circumstances to apply the presumption of equal shared parental responsibility, that the Court’s power to make parenting orders pursuant to s 65D is “at large” but subject to the best interests of the child being the paramount consideration.[12]

   [12]         See: Chalk & Plasto [2013] FamCAFC 48 at par 15-22; MRR v GR (2010) 240 CLR 461.

2. Doing the best that I can on the material before me and accepting that there remain many disputed facts incapable of resolution at this stage, it seems to me that the child’s best interests will be met by an order which sees him living with the mother on his return to Australia.  This will re-unite him with the parent who provided his primary care prior to separation and will ensure that he is protected from harm.  It will also mean he is likely to be in the care of the parent available to care for him, particularly taking into account the father’s intention to have his mother travel from India to care for the child if he lives with him.

3. Additionally, the father’s proposal that the not yet three year old child’s best interest would be met by an alternating fortnightly care regime which would see him travel between households located in Brisbane and Melbourne respectively casts doubt on his capacity to appreciate the likely significant and destabilising impact of the same for the child; even at an interim stage, it suggests that his focus is more on his convenience than on the impact on the child of living within such a regime.

4. The mother makes allegations of significant family violence. Providing the child with the opportunity to be re-introduced to the father under supervision will ensure he is safe and will also give the father the opportunity to demonstrate – via the reported observations of parties unaligned to either parent – his parenting skills.

5. Additionally, in contrast to the mother’s position, the father told the Court he has the financial means to fund travel between Brisbane and Melbourne. I am therefore confident that, should he choose to do so, he will be able to spend time with the child in Melbourne.

The injunctions restricting movement

1. On 17 July 2014, the acting Principal Registrar made an Order by consent, the terms of which relevantly included that, until the date of the hearing of the interim orders, the mother be restrained from leaving Australia.

2. On 2 September 2014, the Principal Registrar made further orders by consent (in Chambers), the terms of which relevantly include that, until further order of the Court, the mother be restrained from leaving Australia.

3. The mother seeks to be released from this restraint. She proposes she travel to India to collect the child. She says she will then return with him to Australia.

4. The father opposes the discharge of the Order prohibiting the mother from leaving Australia. He does so on the basis he is concerned that, if the mother is permitted to leave Australia, she may travel to India and remain there with the child.

5. There is no evidence before the Court to establish whether, if an order is made for the child to return to Australia, such order could be enforced by the father in India.

6. India is not a signatory to the Hague Convention. It is not a “prescribed overseas jurisdiction” for the purpose of the Family Law Regulations. It is not a country listed in the schedule to the Foreign Judgments Regulations made in furtherance of the operation of the Foreign Judgments Act (1991). It is, however, a reciprocating jurisdiction for the purposes of the Child Support (Registration and Collection) Regulation (1988).

7. Save for the information conveyed by her from the Bar table - to the effect that she is receiving financial support from her parents whilst she is in Australia and cannot afford to contribute toward the child’s flight from India to Australia or between Melbourne and Brisbane - there is no information about the mother’s financial circumstances in Australia.

8. There is no evidence that she owns property here. There is no evidence to suggest that she has other family members living in Australia.

9. As I understand it, she is staying in Australia to complete exams to enable her nursing qualifications to be recognised in Australia. She has permanent residency in Australia. She says it is her intention to live with the child in Australia, although the terms of the interim order sought by her Response[13]is silent as to the location at which she proposes the child live with her.

   [13]         Filed 22 October 2014.

10. Whilst the Court clearly can act to enforce compliance with the terms of an order requiring the mother to return the child to Australia,[14]such steps could only be taken and have practical effect if the mother remains in Australia.  Whilst the mother clearly told the Court it is her intention to have the child live with her in Australia, the absence of such a proposition in the final orders sought by her in this proceeding causes me some concern.

    [14]         Taylor & Taylor (1988) FLC 91-943 at 76,809.

11. After balancing the matters outlined above, I have concluded that, until the child is returned to Australia, the balance of convenience favours the continuation of the injunction restraining the mother from leaving Australia.  As soon as the child is retuned to Australia – as she herself proposes – there could be no basis upon which an order restraining her right to freedom of movement could be continued and, accordingly, the injunction shall be discharged from that time on. 

12. Further, I consider it appropriate to afford the mother liberty to apply to discharge the injunction restraining her from leaving Australia if, for example,  the father fails to comply with the terms of the Order made today.  In that way, if the father is not genuine in his desire to seek orders for the child to spend time with him in Australia, the mother need not be improperly restrained from ordering her life and her movements as she sees fit.

13. On 30 October 2014, Registrar Spink made an Order by consent, the terms of which relevantly included that, until 4.00 pm on 15 December 2014, the father be restrained from leaving Australia.

14. The mother seeks that the Court make an order restraining the father from leaving Australia. She does so on the basis of her assertion that there is a risk that, if not prevented from leaving Australia, the father will travel to India to harm the child – as she alleges he has previously threatened.

15. As I understand it, the father does not accept he made threats to harm the child.

16. The parties separated in mid-2013.  The child has now been in India – where the father has family – since about December 2013.

17. There is no evidence to suggest that, despite being at liberty to leave Australia in the period until 30 October 2014, the father made any attempt to travel to India.  There is no evidence that the father has taken any steps since separation to harm the child or to seek to have others act on his behalf to harm the child.

18. I am not, therefore, persuaded that the balance of convenience favours the making of an order restraining the father from leaving Australia.  Unlike the mother, he is not the parent responsible – via extended family – for the child’s care in India. He does not have control over the child’s return to Australia.

Transfer of proceedings to the Melbourne Registry of the Court

1. The mother sought that the proceedings be transferred to the Melbourne Registry of the Court.[15] The father opposed such an order.

   [15]         Rule 11.17 Family Law Rules (2004).

2. The mother lives in Melbourne and intends to continue to do so into the future. As a consequence of the Interim Order made today, the child will live with the mother in Melbourne upon his return to Australia.

3. Whilst the father submitted that witnesses he may call in the proceedings are located in Brisbane, I am as confident as one can be on an interim basis that either he will be able to afford to have such person/s attend at any contested hearing in Melbourne or appropriate arrangements can be made for their evidence to be taken via video-link.

4. Should a Family Report be thought necessary to assist the Court in the final resolution of this matter, the writer of the same would likely be located in Melbourne – another matter which favours the transfer.

5. For these short reasons, I consider that the balance of convenience favours an order transferring the proceedings to the Melbourne Registry of the Court.

Should a Family Report be ordered at this stage?

1. It is implicit within the father’s application – as it proposes that final orders be made in terms deemed appropriate by the Court following the provision of a Family Report – that a Family Report should be ordered to assist the Court to determine those final parenting orders which are in the child’s best interests.

2. Given my decision to transfer the proceedings to the Melbourne Registry of the Court, such a matter can properly be considered following the transmission of the file to that Registry and the receipt of any submissions about the utility of the same in this particular matter.

3. I consider that, in the absence of appropriately particularised proposals from both parties about their respective future cases, it is premature to order the preparation of such a report at this time.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 December 2014.

Associate:                 

Date:    22 December 2014.