SINHA & SINHA

[2014] FamCA 159

FAMILY COURT OF AUSTRALIA

SINHA & SINHA [2014] FamCA 159

FAMILY LAW – CHILDREN – With whom children live – Undefended hearing – Where there is evidence of abuse or family violence on behalf of the Father – Where there is evidence of sexual abuse on behalf of the paternal grandfather – Where there has been no time or communication between the children and the Father since October 2013 – Mother to have sole parental responsibility – Children to live with the Mother and spend time with the Father

Family Law Act 1975 (Cth)

Allesch & Maunz (2000) 26 Fam LR 237
M & M (1988) 166 CLR 69

APPLICANT: Mr L Sinha

RESPONDENT: Ms N Sinha

FILE NUMBER: BRC 6156 of 2012

DATE DELIVERED: 18 March 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 18 March 2014

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Walker-Munro

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

Orders

It is ordered that

1. The children Y date of birth … 2004, M date of birth … 2006 and J … 2009 live with the Mother.

2. The Mother have the sole parental responsibility for all long term decisions pertaining to the children.

3. The children spend time with their Father at all times as may be agreed but failing agreement as follows:

Re-establishment of Time

3.1.For a period of 2 hours each alternate weekend, with such time to be supervised at B Organisation, on a minimum of 4 occasions, with the costs to be paid by the Father;

3.2.Then upon the Father completing the Parents not Partners course at B Organisation and providing the Mother with evidence of completion of that course, from 9.00 am Sunday to 4.00 pm Sunday each alternate weekend for 4 occasions;

3.3.Then from 4.00 pm Saturday to 4.00 pm Sunday each alternate weekend for 4 occasions; and thereafter

3.4.Each alternate weekend from Friday 5.00 pm until Sunday 5.00 pm.

During School Holidays

1. Upon the Father commencing to spend time with the children pursuant to Order 3.4 then:

4.1.During the New South Wales gazetted school holidays the children spend time with their parents as follows:

4.1.1.In even numbered years with their Father for the first half and the second half with their Mother; and

4.1.2.In odd numbered years the first half with their Mother and the second half with their Father.

4.2.School holiday time to be calculated from the day after school breaks up to the day prior to school recommencing with such time to commence and conclude at 10.00 am; and the time in Order 3.4 be suspended for that period.

Birthdays

1. The parent not having the child in their care on the child’s birthday shall spend time with all the children on that day as follows:

5.1.Should the birthday fall on a non-school day for four hours from 2.00 pm to 6.00 pm.

5.2.Should the birthday fall on a school day for two hours from 4.00 pm to 6.00 pm.

Mother’s Day/Father’s Day

1. In the event that the Father’s time with the children falls on Mother’s Day then the Father to forfeit that weekend to the Mother from Friday after school to the commencement of school the following Monday morning in substitution for the following weekend.

2. In the event that the Mother’s time with the children falls on Father’s Day then the Mother to forfeit that weekend to the Father from Friday after school to the commencement of school the following Monday morning in substitution for the following weekend.

Telephone Communication

1. Both parents are permitted to telephone the children whilst they are in the other parent’s care as follows:

8.1.The Father can telephone the children whilst they are in the Mother’s care on Monday and Wednesday of each week between the hours of 7.00 pm and 7.30 pm with such calls to be made to the Mother’s landline.

8.2.The Mother can telephone the children whilst they are in the Father’s care each week on Wednesday and Saturday between the hours of 7.00 pm and 7.30 pm with such calls to be made to the Father’s landline.

Changeovers

1. All changeovers are to occur at B Organisation with the Mother and Father to pay one half of the changeover fees; and

9.1.The Father must facilitate changeover with all the children whom the Mother has made available for that changeover.

9.2.In the event that B Organisation is closed changeovers shall take place at McDonalds Store D in Town C.

Denigration

10. Neither parent denigrate the other in the presence of or within hearing distance of the children. In the event that a third party denigrates the other parent, the parent present is to remove the children from the vicinity of the denigrating third party.

Medical

11. The Mother and Father keep the other advised of all significant medical appointments arranged for the children and in the case of an emergency advise the other as soon as is possible.

Schooling

12. This Order be authority for the children’s school/preschool to forward duplicate copies of children’s schooling information to both parents.

13. The Mother and Father be permitted to attend all school functions and extra-curricular activities of the children normally attended by parents.

14. The Mother and Father are to ensure that whilst the children are in their care that they facilitate the children’s attendance at their extra-curricular activities, in particular Y's football.

Passports and Overseas Travel

15. In the event that either the Mother or Father intend to take the children overseas on a holiday then they are to provide the other parent with written notice of their intended holiday at least 28 days prior to the intended travel with such details to include:

15.1.1.The dates of travel – leaving Australia and returning to Australia;

15.1.2.The location of the travel – including a detailed itinerary; and

15.1.3.A telephone number and address where the children can be contacted at all times.

15.2.The non-travelling parent is to acknowledge receipt of the written notice within 7 days.

15.3.Neither parent is to make arrangements that would necessitate the children being required to travel during the NSW gazetted school terms, unless otherwise agreed between the parties in writing.

15.4.Each parent shall, from time to time, execute all documents and do all things necessary to ensure the children retain valid Australian passports and the costs of renewing those passports shall be shared equally between the parents, unless otherwise agreed.

15.5.Each parent shall, from time to time, execute all documents and do all things necessary to ensure the children have the required valid visas for their travel destination/s and the costs of obtaining those visas shall be paid by the travelling parent; and if it is the Father that is travelling and he has complied with Orders 15.1, 15.2 and 15.3, the Mother shall provide to the Father the children’s Australian passports, for the purposes of obtaining the visa/s only, and the Father shall return the passports to the Mother until such times as she is required to hand them to him, pursuant to Order 15.6, unless otherwise agreed.

15.6.The Mother shall hold the children’s Australian passports but if the Father wishes to travel with the children and has complied with Orders 15.1, 15.2 and 15.3 the Mother shall provide those passports to the Father no less than 48 hours prior to departure unless otherwise agreed; and the Father shall return the passports to the Mother no less than 48 hours after his return unless otherwise agreed.

15.7.In the event that either party defaults on Orders 15.4 or 15.5 upon Application by a party, accompanied by an Affidavit, a Registrar of the Family Court at Brisbane be appointed to execute such documents and do all things necessary to give effect to those Orders.

15.8.Fishburn Watson O’Brien Lawyers forthwith release to the Mother, the children’s passports they currently hold pursuant to Order 14 of the amended Orders of 25 October 2012.

Specific Issues

1. The Father is restrained and an injunction issue restraining him from leaving the children unsupervised with the paternal grandparents Mr S Sinha and/or Ms H Sinha between the hours of 4.00 pm to 9.00 am; and if the children are in the presence of the paternal grandparents between those times, the Father shall be continually present.

17. The Father is restrained and an injunction issue restraining him from allowing the children to sleep in the paternal grandparents’ bedroom or in a bed occupied by the paternal grandparents.

18. The paternal grandfather is not to have any unsupervised time with the children; and if the children are in the presence of the paternal grandfather either the Father or the paternal grandmother must be present.

19. The Father is not permitted to consume alcohol in the presence of the children or within any period of time when the children are in his care, nor leave the children in the presence or care of any family member or friend who has consumed alcohol to excess.

20. Within 28 days the Father enrol in a Parents not Partners course at B Organisation with the Father to provide the Mother with a copy of certificate completion of such course.

21. Each parent shall notify the other of any change of residential address or contact telephone number within 24 hours of such change.

Dispute Resolution

22. If there is a dispute in relation to the operation of these Orders the parents agree that they shall resolve such disputes by means of family dispute resolution on the following basis:

22.1.The parent who is seeking to clarify the operation of or seeks to depart from the operation of these Orders be responsible for arranging the family dispute resolution, at a mutually agreeable time and location;

22.2.The costs of the family dispute resolution, if any, shall be shared equally between the parents.

23. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sinha & Sinha 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 6156 of 2012

Mr L Sinha

Applicant

And

Ms N Sinha

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the children Y born in 2004 who is now nine years of age, M born in 2006 who is currently eight years of age, and J born in 2009 who is now four years of age.

2. On 10 July 2012 the First Applicant paternal grandfather, Mr S Sinha, the Second Applicant paternal grandmother, Ms H Sinha, and the Third Applicant, the father of the children, Mr L Sinha (“the Father”), commenced parenting proceedings by way of their Initiating Application filed in the then Federal Magistrates Court. The respondent mother, Ms N Sinha (“the Mother”), filed a Response to the Father’s Initiating Application on 2 October 2012, which Response was subsequently amended and re-filed on 7 February 2013 and further amended and re-filed on 15 November 2013.

3. On 13 November 2013, the paternal grandparents each filed a Notice of Discontinuance in respect of their Initiating Application filed on 10 July 2012. 

4. The issues historically agitated in these proceedings centred upon allegations that the paternal grandfather had sexually assaulted the Mother. The Father and the paternal grandparents historically were adamant in their denials of those allegations. The Mother has also made allegations that the Father was domestically violent towards her during and post the relationship. The Father denies those allegations historically.

5. It is clear that the Father was aware of and was served with the Mother’s Response to Initiating Application filed 2 October 2012 and her amended and further amended responses re-filed on the dates I have referred to.

6. Until 25 January 2013 the Father was represented in these proceedings but when a Notice of Ceasing to Act was filed by the Father’s then solicitors, MBT Lawyers, the Father became self‑representing, albeit that he has not filed, it seems, any further documents in the proceedings since then.

7. The proceedings were mentioned before Registrar Brooks on 30 January 2013.  None of the Applicants appeared on that occasion, but Registrar Brooks made orders for the matter to be listed for further directions on 27 February 2013 by telephone link and ordered that the parties be excused from attending if legally represented at the hearing.

8. On 27 February 2013 the Applicants appeared by telephone and orders were made for the matter to be adjourned for directions on 24 April 2013. The Applicants subsequently appeared by telephone at the following three directions hearings on 24 April 2013, 15 May 2013 and 28 August 2013.

9. On 18 September 2013 the matter came again before Registrar Brooks for directions. The Father appeared by telephone at that hearing but apparently left part‑way through the hearing. Registrar Brooks ordered that by 18 October 2013, the Applicants file and serve any amended Initiating Application and their affidavit of evidence‑in‑chief of each witness in support of their application and also file any affidavit in response by 10 January 2014. Registrar Brooks also made orders for each party to file other trial material. Following the making of those orders the paternal grandparents, as First and Second Applicant, each filed a Notice of Discontinuance on 13 November 2013. The Father failed to comply with the orders of Registrar Brooks of 18 September 2013 in relation to the filing of trial material.

10. On 22 January 2014 the matter was again listed before Registrar Brooks. On that occasion the Court attempted to contact the Father by telephone but he did not answer. There is a notation to that effect on those orders. Registrar Brooks made orders in the absence of the Father that the matter be listed for callover before me, as it happens, on 6 February 2014.

11. Pursuant to that order, the matter came before me at the callover on 6 February 2014. At that callover, in the absence of any appearance by the Father or a representative on his behalf, orders were made that the proceedings be adjourned to be heard and determined by me today and that the Mother have leave to have the matter proceed and the parenting orders she seeks heard and determined today on an undefended basis.

12. On 4 February 2014 the Father filed a Notice of Discontinuance wholly discontinuing his Initiating Application.  I note in passing that in the Notice of Discontinuance the Father has incorrectly stated that the Initiating Application to be discontinued was filed on 15 October 2012. That was, in fact, the date on which the proceedings were transferred to this Court from the Federal Magistrates Court, but I am comfortably satisfied that the Father intended to refer to the Application which was originally filed on 10 July 2012. I also note in terms of history that on 19 November 2013, the Mother filed a contravention application and supporting affidavit which she subsequently discontinued on 6 February 2014 following the filing of the Father’s Notice of Discontinuance on 4 February 2014.

13. I set out that history having regard to the rules of procedural fairness and natural justice which need to be considered before determining the matter on an undefended basis. Within the rule of procedural fairness lies the indispensable requirement of the court system of justice that a party being affected by a decision have the opportunity to be heard. As highlighted by his Honour Kirby J in Allesch & Maunz (2000) 26 Fam LR 237, where a person’s interests may be adversely affected by a court’s decision, that person must be afforded an opportunity to place before the court material information and submissions before the decision is made.

14. As was emphasised by Kirby J, it is the opportunity to be heard which is essential to procedural fairness, not that the court must receive evidence or submissions on behalf of that party before making orders. The principle does not require the decision‑maker to actually hear from the party.  As Kirby J stated at paragraph 38 of Allesch & Maunz (supra):

    Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

15. The Father has filed no material in these proceedings since his legal representative filed the Notice of Ceasing to Act on 25 January 2013. Since that time the Father has attended directions hearings before Registrar Brooks, as I have noted, in the context of it being self-evident that the Mother was seeking parenting orders be made pursuant to Part VII of the Act. Moreover, the Father attended interviews with the family consultant, MS E, on 16 July 2013 pursuant to orders and directions made by Registrar Brooks on 15 May 2013.

16. In effect, the Father has not participated in these proceedings since his attendance before Registrar Brooks on 18 September 2013 but he has chosen, it seems, to do so being fully aware of the fact that the Mother would be seeking parenting orders to be made by the Court.

17. For these reasons, I am satisfied that the Father has had the opportunity to be heard and I am satisfied that it is in order to proceed and to hear and determine the Mother’s application for parenting orders on an undefended basis.

18. Part VII of the Act, sections 60A to 70Q, provides the statutory framework in which the Court exercises its power to make parenting orders. Most of the amendments made to Part VII which took effect on 7 June 2012 do not apply to this proceeding given its institution prior to the operative date of the amendments, and the following discussion is of Part VII in the form in which it applies to the present proceedings.

19. Section 60B of the Act sets out the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:

    (1) The objects of this Part are to ensure that the best interests of children are met by:

    (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d) ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

20. Section 60CA of the Act requires that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

21. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).

22. Section 65D of the Act provides the source of the Court’s power to make a “parenting order” as defined. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in sub-section (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s 61DA(4)).

1. The effect of s 65DAA of the Act is that if the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then the Court must go on to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider an order for substantial and significant time with each of the parents.

2. Against that statutory background I record that the Father is 35 years of age, having been born in 1979.  The Mother is currently 34 years of age, having been born in 1979. 

3. The parties’ relationship commenced upon their arranged marriage, as per their culture, in January 2001. The parties separated on 12 December 2011 and their divorce was pronounced in April 2013. I have already noted the dates of birth of each of the three children of the relationship.

4. As earlier noted, the Father and the paternal grandparents were the parties who commenced parenting proceedings in 2012. In addition to filing a Response to those proceedings the Mother also filed on 2 October 2012 a Form 4 Notice of Child Abuse or Family Violence and supporting affidavit material. Briefly stated, the Mother’s Form 4 included allegations, in summary, that the paternal grandfather had sexually assaulted the Mother in 2006; that the paternal grandfather had undressed in the presence of his nine year old niece; and that there were some investigations of the paternal grandfather in respect of allegations concerning the rape of a prostitute.

5. On 15 October 2012 interim orders were made by consent by Federal Magistrate Jarrett (as his Honour then was) which provided for the children to live with the Mother and spend time with the Father each alternate weekend and for half of each school holiday period.

6. On 15 May 2013, as I have earlier referred to, Registrar Brooks made orders which included facilitation for the parties to participate in a family report process and otherwise impose some conditions concerning changeovers.

7. It was on 16 July 2013 that the parties and the children attended interviews with Ms E, family consultant, for the purpose of compiling a family report which report was subsequently released on 19 August 2013. At the time of those interviews the Father was residing on the Gold Coast, was in a relationship with one Ms F and had limited communication with the Mother.

8. It seems that upon separation the children resided with the Mother and spent what can only be termed inconsistent time with the Father due to his relocation to the Gold Coast. The children have continued to reside with the Mother in Town C on the north coast of New South Wales since separation.

9. Pursuant to the interim consent orders of 15 October 2012 and 15 May 2013, it was intended that the children spend time with the Father each alternate weekend and half of each school holiday period, but it is clear on the evidence that the Father has chosen not to avail himself of such time on all such occasions.

10. The Mother’s evidence establishes, and it is unchallenged on an undefended hearing given the Father’s approach, that following the making of interim consent orders on 15 October 2012 the Father has frustrated the operation of those orders from the very first changeover on 19 October 2012. In summary, the Mother’s evidence establishes that the Father has either failed to attend changeovers at the children’s school or McDonalds or has chosen to take only the youngest child and left the older two children in the care of the Mother for such time periods. The Mother’s evidence establishes that the Father has not attended a changeover since 11 October 2013 and apparently has made no attempts to communicate with the children since that date. I note that in paragraphs 54 to 75 of the Mother’s most recent affidavit filed 18 December 2013 she details the various instances of changeover and attempted changeover when the Father has either failed to attend or has refused to take all three children for time.

11. The orders that the Mother proposes be made in the best interests of these children includes an order that she have sole parental responsibility for them.  I am satisfied on the Mother’s evidence that the presumption I have earlier referred to does not apply, given the circumstances of a parent of the child engaging in abuse or family violence, or in circumstances of the domestic violence deposed to by the Mother during the relationship. I note in particular the Mother’s reference to the changeover occurring where she alleges, and the Father does not now challenge, that she was physically injured by rocks thrown at her vehicle by the Father. I also note the Mother’s evidence as to the Father attending at her home uninvited and attempting to force entry whilst shouting and swearing in circumstances where the children were present in the home.

12. I accept that it would be emotionally abusive of the older two children to experience their Father choosing to have time only with the youngest sibling and specifically choosing not to have them attend on such time. As is evident, that has progressed to the situation where the Father has apparently elected not to spend time with any of the three children. I am satisfied on the Mother’s evidence that she has made attempts to encourage the Father to resume a relationship with the children but he has chosen not to do so.

13. For the reasons already noted, it is apparent that the Father has elected not to pursue any application for parenting orders and moreover has elected not to oppose the parenting orders sought by the Mother.

14. I am satisfied that either the presumption does not apply in these circumstances or, in any event, is to be taken as having been rebutted by reason of the best interests of these children in the circumstances. That is, their best interests would be served by there being an order for the Mother to have sole parental responsibility for them.

15. It is unnecessary for the Court on this occasion to specifically refer to each of the statutory considerations I have earlier referred to but each has been considered in the context of the orders now sought by the Mother.

16. I am satisfied that the submission made to the effect that the Father has seemingly abrogated his responsibilities with respect to the children is made out.

17. It is clear that the children have a strong attachment to the Mother and there is no issue that she remains and has always been their primary carer and primary attachment figure. It would seem that prior to the parties’ separation, the children did enjoy a good relationship not only with the Father but also the paternal grandparents and that the nature of that relationship is noted in the family report.  

18. The orders sought by the Mother are predicated upon affording the Father an opportunity to re-establish his time and communication with the children should he choose to so do. I am satisfied on the current evidence that it could not be said that currently the Father has a meaningful relationship with the children but that seems to me to be a result of his own choice and conduct rather than indicating that there would be no opportunity for the Father to re-establish a meaningful relationship with them if he elected to take advantage of the orders that the Mother proposes be made.

19. Not only has the Father elected to absent himself from the lives of these children for now a significant period, he pays very limited child support for them and makes no other contribution to their physical wellbeing, let alone their emotional or intellectual wellbeing. Thus all of the children’s needs have, for a significant period of time, fallen to the Mother including not only their physical needs but their emotional and intellectual needs.

20. The children are of Sikh heritage through both of their parents and I am satisfied on the evidence of the Mother that she actively takes steps to ensure that the children receive and maintain instruction in their language and religion in accordance with this heritage.

21. I am satisfied on the Mother’s evidence, which again I note is now uncontested, that there would be an unacceptable risk of sexual abuse to the children if they were to be left unsupervised in the care of the paternal grandparents. In this respect I refer to the decision of the High Court in M & M (1988) 166 CLR 69 which highlights that in approaching parenting cases it is not the function of this Court to positively determine whether or not sexual abuse has in fact occurred or not occurred, and in the vast majority of cases, the Court will be unable to do so on the evidence that is presented. What the Court is obliged to do is to make an assessment so far as risk is concerned and to make orders that address that any such risk on the basis that an unacceptable risk may be converted to an acceptable one by the conditions imposed in the orders. I am satisfied that the Mother’s proposed orders meet that test in terms of rendering what might otherwise by an unacceptable risk as acceptable.

22. I note that the paternal grandmother has been able to visit the children on a couple of occasions when she has attended the Mother’s home and the Mother has facilitated that time. It is the case that interim orders remain on foot for the paternal grandparents to spend time with the children. It is to be noted, as the Mother recognises, that if the Father does resume a relationship with the children and it progresses under the framework of orders proposed by the Mother, it would be likely that they would spend time in the paternal grandparents’ household. The Mother seeks injunctions that do not prevent a relationship between the children and the paternal grandparents, but address what the Mother contends is a risk of possible harm to the children if left unsupervised and in particular, overnight with the paternal grandfather.  I am satisfied that orders in that respect ought be made in the best interests of the children.

23. I am also satisfied that the orders proposed by the Mother are less likely to lead to further proceedings because they provide a regime for the Father to resume his relationship with the children and to increase the time he spends with them if he is minded to again become part of their lives. It does so in a manner which also provides protection to the children from any risk of emotional or physical harm.

24. For these reasons I am satisfied that the orders proposed by the Mother meet the best interests of these children within the meaning of Part VII of the Act. I therefore make orders in terms of the draft which has been amended in paragraph 15.3 as I discussed with counsel for the Mother during the hearing. Those orders now being initialled by me and placed with the file.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 March 2014.

Associate: 

Date:  19 March 2014