Tagore and Tagore
[2017] FamCA 100
•27 February 2017
FAMILY COURT OF AUSTRALIA
| TAGORE & TAGORE | [2017] FamCA 100 |
| FAMILY LAW – CHILDREN – International Relocation – where the mother wants to relocate to India with the child – where the child’s primary attachment is to the mother - where the child is exposed to father’s negative views of the mother –where the father undermines the child’s relationship with the mother – where the mother will have the support of family in India – where the mother if permitted to relocate will promote the father having a meaningful relationship with the child – where the child’s relocation is in the best interests of the child – finding that the child was exposed to family violence – where presumption of equal shared parental responsibility does not apply – finding that it is in child’s best interests for the mother to have sole parental responsibility for the child |
| Family Law Act 1975 (Cth) |
| Godfrey & Sanders (2007) 208 FLR 287 Jones v Dunkel (1959) 101 CLR 298 |
| APPLICANT: | Ms Tagore |
| RESPONDENT: | Mr Tagore |
| FILE NUMBER: | MLC | 6186 | of | 2015 |
| DATE DELIVERED: | 27 February 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 6 – 9 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Carter |
| SOLICITOR FOR THE APPLICANT: | Trapski Family Law |
| THE RESPONDENT: | In person |
Orders
All previous parenting orders in relation to B born … 2010 (“the child”) be discharged.
The mother have sole parental responsibility for the child on the condition that:
(a)the mother shall contact the father in writing and provide her views in relation to major long term issues about:
(i) the child’s education;
(ii) the child’s religious and cultural upbringing; and
(iii) the child’s health;
(b)the mother shall consult (via email) with the father with regard to any such issue;
(c)the mother and father will make a genuine effort to come to a joint decision, in writing, about any such issue; and
(d)if no agreement is reached between the parties within seven days, the mother shall make the final decision and advise the father in writing of the decision about any such issue.
The child live with the mother.
The mother be permitted to relocate the child to India.
The child spend time and communicate with the father as follows:
(a)in Melbourne each year during the Indian summer school holidays (between May and July) for a period of three weeks on such dates as agreed between the parties in writing;
(b)in India each year during the Indian winter school holidays (between December and January) for a period of two weeks on such dates as agreed between the parties in writing;
(c)on other occasions when the father is in India, from after school Thursday to before school Monday each alternate week;
(d)by Skype facilitated by the mother at 12:00 pm City C time on a Sunday (early Sunday evening Melbourne time) and as otherwise requested by the child; and
(e)as otherwise agreed between the parties in writing.
For the purposes of the father’s time with the child pursuant to paragraph 5(a) herein:
(a)the parties share equally the cost of the child’s return air travel to Australia and for that purpose:
(i)the mother to provide the father with a travel itinerary not less than 60 days prior to the child’s proposed date of departure for Australia setting out details and the cost of the child’s return air travel; and
(ii)the father to pay his half share of the cost of the child’s return air travel to the mother not less than 30 days prior to the child’s proposed date of departure for Australia;
(b)that in the event that the father does not pay his half share of the cost of the child’s return air travel pursuant to paragraph 6(a) hereof the mother be permitted to cancel the tickets for the child’s return air travel and the father’s time pursuant to paragraph 5(a) herein be suspended on that occasion unless otherwise agreed in writing by the mother.
(c)the mother shall travel with the child from India to Melbourne at her expense.
For the purposes of the father’s time with the child pursuant to paragraph 5(b) and (c) hereof the father provide the mother with a minimum of 28 days’ notice of any impending travel to India, the address at which he will be staying with the child and a telephone contact number on which the mother can contact the child.
Pending the child’s departure for India, the father and the mother be and are hereby restrained by themselves their servants and/or agents from removing the child B born … 2010 from the Commonwealth of Australia AND IT IS FURTHER REQUESTED THAT the Australian Federal Police place and retain the name of the child B born … 2010 on the Airport Watch List at all points of arrival and departure in the Commonwealth of Australia.
Not less than 72 hours prior to her proposed departure to India, the mother forward copies of the travel itinerary for herself and the child addressed to the Registrar of the Melbourne Registry of the Family Court of Australia and upon receipt of same the Registrar forthwith forward a copy of the said itinerary to the Australian Federal Police.
Paragraph 8 of these orders be discharged and IT IS REQUESTED THAT the Australian Federal Police remove the name of the child B born … 2010 from the Airport Watch List at all points of international arrivals and departures in the Commonwealth of Australia upon notification in writing by a Registrar of the Melbourne Registry of the Family Court of Australia advising of the travel arrangements together with a copy of the itinerary for the child’s travel to India, the child’s name to be removed as and from 12.00 am on the date of travel.
As soon as practicable the Court forward a sealed copy of this order to the Australian Federal Police.
The father do all acts and things and sign all necessary documents to obtain a current Australian and/or Indian passport for the child and to renew the passports when those passports expire.
The mother shall advise the father of any proposed overseas travel taken by the child within 28 days of such travel taking place, and provide him with the child’s contact details, such as the accommodation address and a telephone number.
The father be and is hereby restrained from:
(a) discussing the family law proceedings with the child or allowing anyone else to do so;
(b) exposing the child to the parental conflict; and
(c) denigrating the mother in the hearing or presence of the child or allowing anyone else to do so.
The mother do all acts and things and sign all necessary documents to authorise the child’s school to provide to the father at his expense any information usually disseminated to parents online or otherwise including (but not limited to) newsletters, school photograph order forms, reports and the like.
The parents both be at liberty to attend school events that parents are usually invited to attend including (but not limited to) concerts, parent-teacher interviews, sport days and the like.
Each party notify the other forthwith of any serious medical illness/injury to the child and shall authorise the other parent to make enquiries with any medical practitioners involved in the care of the child.
Any medication prescribed for the child is to travel with the child and be provided at changeover, with written instructions as to any usage and when the last dosage was given.
Each party shall notify the other when practicable of any medical appointments for the child and the outcome of same, and authorise the other parent to make enquiries with any medical practitioner/s involved in the care of the child.
As soon as practicable the mother do all acts and things and sign all necessary documents for the purposes of either registering these orders with the appropriate court in India or otherwise to make application for like orders.
The question of the time the child spends with the father pending the child’s departure from the Commonwealth of Australia be reserved.
All extant applications, save for the question of the child’s time with the father pending the child’s departure from the Commonwealth of Australia, be otherwise dismissed.
IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel.
IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
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 Tagore & Tagore 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 MELBOURNE |
FILE NUMBER: MLC 6186 of 2015
| Ms Tagore |
Applicant
And
| Mr Tagore |
Respondent
REASONS FOR JUDGMENT
Although Mr Tagore (“the father”) and Ms Tagore(“the mother”) are both of Indian heritage they have spent their married life in Australia. The mother now wishes to return to India to live with their daughter B (“the child”). The father not only opposes their daughter’s relocation to India, it is also his case that although the child now lives primarily with the mother, henceforth he should be her primary carer. The mother’s case is that if the Court does not permit her to take the child to India to live, she will stay in Australia and that the child should not only remain primarily in her care, but that the child’s time with the father should be reduced.
Background
The father is 37 years of age. He came to Australia from India as a student when he was 21 and since then has lived in Australia. He is an Australian citizen. The father works as a consultant on a contract basis.
The mother is 38 years of age. She was similarly born in India, spent some of her childhood living in the United Kingdom but otherwise lived in India until her marriage to the father when she moved to Australia to live with him. She has permanent residency in Australia. Although the mother is not an Australian citizen, she concedes that this is not an impediment to her remaining in Australia should the Court not accede to her application for relocation.
The child who is six years of age presently lives with the mother and spends time with the father. Interim orders were made by consent on 4 November 2015 which provided for the child to spend time with the father from after kindergarten or school on Thursday until the commencement of kindergarten or school on Monday in week one and from after kindergarten or school on Thursday until the commencement of kindergarten or school on Friday in week two or five nights per fortnight. After those orders had been made, the parties agreed that due to the mother’s work commitments the child spend an additional day each fortnight with the father.
Material Relied Upon
The mother relied upon the following documents:
·Amended Response filed 28 September 2016;
·Notice of Risk filed 20 October 2015
·her Affidavit filed 21 October 2016 (“trial Affidavit”);
·her Affidavit filed 25 November 2016 (“Affidavit in reply”);
·Affidavit of Ms D filed 4 November 2016;
·Affidavit of Ms E filed 25 November 2016;
·her Financial Statement filed 21 October 2016; and
·her Amended Case Outline filed 2 December 2016.
The father relied upon the following documents:
·Amended Initiating Application filed 29 September 2016;
·his Affidavit filed 16 November 2016 (“trial Affidavit”);
·Affidavit of Mr F filed 7 October 2016;
·his Financial Statement filed 16 November 2016; and
·his Case Outline dated 30 November 2016.
The Evidence
The standard of proof in this case is the balance of probabilities. In determining whether it is so satisfied, the Court must consider the nature or the cause of the action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. There are in this case serious allegations made by both the father and the mother and significant ramifications for the father, the mother and the child whatever orders the Court ultimately determines should be made.
Counsel for the mother sought and was granted leave for the mother to give limited oral evidence in chief addressing her intentions in the event the Court would not permit the child to relocate to India, whether she would be prepared to register any orders this Court makes in India and the provision of a surety to enable her to travel to India with the child in the event that she remained living in Australia.
During his cross-examination of the mother, the father referred on a number of occasions to the evidence he would give when he was in the witness box. This is notwithstanding that he had been advised when the matter was first listed for hearing before me and again at the commencement of the final hearing that evidence in chief in this Court is by affidavit, subject to leave being sought and granted to give oral evidence. Ultimately when the father did go into the witness box and I asked him whether he wished to seek leave to give oral evidence in chief he did not seek to do so. However I granted both the father and the mother leave to give oral evidence in relation to the father’s allegation that the mother had made the child call him and ask him for money which was raised for the first time by the father during re-examination.
Both the father and the mother were cross-examined and the father also briefly cross-examined the mother’s friend Ms E, who gave evidence of her observations of the child in the mother’s care and of her discussions with the mother about her marriage. Ms E deposed that she did not know the father well. The father also cross-examined the mother’s treating psychologist Ms D whose evidence was limited to a description of the mother’s concerns for herself and the child. She readily acknowledged in cross-examination that she had not seen the child. The father’s cross-examination of these witnesses was quite limited and did not cause me to question their evidence.
Although the father submitted that the Court should not accept the mother’s evidence, I found her both an honest and compelling witness. In contrast the father, when confronted by questions he did not like or took issue with was, as submitted by counsel for the mother, often argumentative and at times dismissive and derisive. During the father’s cross-examination of the mother his anger was at times palpable. Although it was obvious the mother found being cross-examined by the father uncomfortable, if not at times humiliating, she remained calm and composed, doing her best to answer questions and ignore the father’s angry comments which were at times quite demeaning. Most importantly, she made concessions when it was appropriate to do so. For example, the mother readily acknowledged that the child had missed the father when they had been in India prior to separation.
The father also sought to challenge the mother’s credit on the basis of her evidence about having instructed her solicitors in India to prepare but not file an application on her behalf based upon what he said was a stamp which demonstrated that the documents had in fact been filed with the Indian court. Although the mother said she could not explain how the documents came to be stamped with what appeared to be a court stamp, she did not resile from her evidence, which I accept, that she had instructed her solicitors not to file her application. This challenge to the mother’s credit did not alter my confidence in her evidence generally.
Although the mother’s evidence was on many occasions quite detailed, particularly with respect to the allegations of family violence, the father’s evidence lacked that same detail. Not only did the father’s evidence lack detail there were also, as submitted by counsel for the mother, inconsistencies in his evidence. One example being his evidence in relation to the events that occurred in the early hours of 28 June 2015. The mother’s evidence was that she was in bed with the child and that the father pulled her up by her arm and dragged her out of bed. Although the father deposed in his trial Affidavit that he “told the Mother I wanted to sort out the issues and asked the Mother to come into the Kitchen so that we could discuss the matter out of the child’s hearing” and put to the mother in cross-examination that he held her hand and asked her to go with him to the kitchen for a chat, he told Ms G (the Family Consultant) that he “grabbed” the mother by the arm so that they could go into the kitchen to talk. The more benign impression the father tried to give of what had occurred was also not consistent with the child’s description of her parents having a lot of fights and her recollection of this one as very “serious”.
Counsel for the mother also submitted that not only should the mother’s evidence be preferred but that the Court should have regard to the fact that the father was on notice with respect to the mother’s allegations about his alcohol consumption and the fact that he would be so drunk that he would urinate where he was standing. Counsel for the mother also referred to the incident in October 2014, when the mother says he physically assaulted her, the incident in June 2015, which resulted in the parties separating and in particular the mother’s allegations that the father’s sister had witnessed both his behaviour when he was drunk and the incident in October 2014. Although I am not satisfied that the father could be expected to know about or understand the intricacies of the rule in Jones v Dunkel (1959) 101 CLR 298, I am satisfied that he would have understood that these were significant issues and yet chose not to call evidence from witnesses who would, on his case, have supported his version of the events. His explanation that he did not want to involve his family or friends in the case does not sit comfortably with either the fact that one of the potential witnesses spent some time in the back of the Court during the case or his evidence in relation to comments he said had been made by his friends about the mother’s conduct which at the very least suggests he was prepared to discuss his personal affairs with them.
Although I have had regard to the fact that the father did not adduce evidence from these witnesses, that is just one of many factors I have weighed up in assessing the evidence of the father and the mother. In my view the most significant factor was the opportunity to hear the parties give evidence and be cross-examined. Having had the benefit of hearing both the father and the mother give their evidence, I am satisfied that where there is a dispute between the evidence of the father and the mother I should prefer the mother’s evidence.
Not only was I left with little confidence in the veracity of the father’s evidence, that evidence also highlighted the father’s lack of insight both with respect to his behaviour and the impact of that behaviour either directly or indirectly upon the child. My impression of the father was that he was incapable of taking responsibility for his actions, preferring to blame the mother for what he perceived to be the damage she had done to his life and dreams and those of the child.
The Expert Witness
Ms G conducted her interviews and observed the parties with the child in March 2016. Her report was released on 6 May 2016. Ms G was cross-examined by both the father and counsel for the mother. I found both that report and Ms G’s evidence of great assistance. Perhaps not surprisingly, given the recommendations in her report were not supportive of the proposed relocation of the child to India and supported the ongoing arrangement for the child’s time with the father, Ms G’s evidence was not the subject of significant challenge by the father. Counsel for the mother also did not challenge Ms G’s evidence in any real sense, her focus being the father’s behaviour since the release of that report, particularly in the face of the observations and recommendations in that report.
I found Ms G to be a careful and considered witness who made concessions when it was appropriate to do so and who had carefully considered the issues in the case. I accept her evidence.
Ms G described the father as presenting as
a person who was confident, co-operative, and willing to participate in joint interviews with the mother. He appeared open and genuine, although he did display considerable distress regarding the prospects of being limited to spend time with his daughter less than anything he considered meaningful and regular.
My observation of the father was that he did attempt to present himself as open, genuine and co-operative. However, his underlying anger towards the mother was also clear from his evidence.
Ms G also described her disappointment at the child’s “...clear awareness of the conflict between her parents and more worrisome, unacceptable exposure to the disputes between her parents and extended family members.” She described the child as being “...highly blaming of her mother for the ‘old house’ being sold, and went on to describe her parents’ separation as the result of them disliking each other.” She went on at paragraphs 44 and 45 as follows:
44.Concerning was [the child’s] highly biased interpretation of her parents dispute as she described her parents conflict from the point of view of her father as the victim and her mother the cause of her parents unfortunate separation. [The child] stated that her father explains to her that he loved her mother very much, but that she told him to ‘go and find another house’. [The child] described a time that her father sought to spend time with her that was refused by the mother, and as a result, she ‘had to fight’ with her mother to spend time with her father. [The child] would report to the writer, ‘it was mum’s fault’, but when exploring her knowledge of the events or details she would reply, ‘I just know’. When asked what helps her remember [the child] replied, ‘my dad’, as she continued to describe her father talking to her about the court proceedings and the mother’s intention to live in India as she stated, ‘he told me he is going to win’. [The child] stated, ‘dad is going to help me not go’ as ‘dad can’t live without me’.
45.Overwhelmingly, the writer observed [the child] to be highly confused and distressed, as she experiences a highly fragmented family dynamic, and is exposed to the extreme negative views of the father, which clearly threatens this child’s psychological health and well being. [The child] reported that her father had told her that he ‘should never have married’ her mother and that he should have married ‘some other girl’. [The child] stated that her father has told her when she is ‘grown up’ her father will ‘show me all the messages’ that the mother has sent him. [The child] stated the she is ‘almost like a grown up’ as the father describes her mother as ‘fighting with him’.
It was Ms G’s view that “this would explain and support the mother’s reporting that the child returns to her care with [a] highly rejecting and critical narrative that appears to have been promoted by the father”. She went on to say that the child had
stated that it is hard to love her mother when she is told ‘she is doing all the bad things’. When exploring what she understands as her mother’s views of the father, [the child] confirmed she doesn’t tell her anything as her only commentary appeared to be that of what she has heard and observed from the father.
Ms G reported the child as telling her that it was the father who had informed her that the mother intended to take her away to India. It was of concern to Ms G that the father denied exposing the child to this information and his views of the mother notwithstanding the child was clear that he had done so.
Although Ms G in her report did not support the child’s relocation and recommended that the child spend five nights per fortnight with the father, she did however make the following observations at paragraph 62 onwards:
62.However, the writer would support arrangements that continue to support the child to maintain an unconditionally positive connection with both parents…
63.However, in order to continue to support this child to spend significant time with both parents, the writer would hope to see some improvement in the father’s capacity to display a positive narrative of the other parent…
64.In considering recommendations for the care of [the child], it is critical to consider both her young age and stage of development, as it is essential that the level of contact she has with both parents should be frequent and substantial in order to maximise her relationship with each parent and maintain the children’s [sic] normal supports. However, the writer would not support a shared care arrangement given the level of hostility and tension between the parties, with no confidence in the father’s expressed wish for a co-operative relationship given his failure to communicate and coordinate arrangements with the mother at the conclusion of interviews. The reports by [the child] are convincing with ongoing denial by the father which raises concerns regarding his capacity to demonstrate maturity and insight into his parental responsibility to protect and nurture this child.
…
66.This highlights the need for both these parents to exercise maturity, to manage their conflict and move beyond egocentric decision-making in order to adequately embrace the needs of their child…certainly, when considering the benefits for [the child] to have a meaningful relationship with both parents, considerable weight should be given to the need of the child to be protected from the parental dynamic, otherwise, it is likely to erode [the child’s] developmental security….
67.When considering recommendations, the writer would always support ongoing participation in counselling and education for all family members. There is always the hope that improvement can be made by helping parents gain a better understanding of how their post separation behaviour has affected their children. Professional intervention for the parents should encourage them to keep their daughter out of the conflict, with opportunities to increase the time with the father should a parental alliance become evident. The aim of ongoing professional support and advice is for the parents to maintain flexibility in revising arrangements, acknowledging the need for a dynamic and accommodating arrangements [sic] in order to meet the changing needs both socially and developmentally of this very young child across her different stages of development.
Ms G somewhat prophetically given what has occurred since her interviews with the parties, said that
there may be future challenges for the parents in managing changing and flexible arrangements for [the child], but the writer would urge them to return to historic goodwill, clear communication and co-operative child focused joint parenting.
In my view Ms G’s observations were telling given the evidence before me in relation to the father’s behaviour both prior to and during the interviews with Ms G, the evidence of his behaviour since the release of that report, his attitude to the mother and his insight or lack thereof as to the impact upon the child of her involvement in the ongoing dispute between himself and the mother.
Unfortunately in my view, the father continues to be hostile to the mother and has failed to protect the child from his negative narrative of her.
Proposals of the Parties
Both the father and the mother amended their proposals during the hearing. In particular the father amended his application for the continuation of the existing regime to an application seeking that the child live primarily in his care and at my request made proposals with respect to the time the child should spend with him in the event of her relocation to India, a possibility he appeared to have disregarded until then. This was in circumstances where it was his case that if the mother were to be permitted to relocate with the child she would in any event not facilitate the child spending any time with him and that in India there would be nothing he could do either legally or otherwise that would ensure that he had an ongoing relationship with the child.
The mother put her case in the alternative based upon whether or not she was permitted to relocate with the child. Although the father’s evidence and for that matter his case, was that the mother was very unhappy in Australia and would almost certainly eventually return to India to live without the child if the Court did not accede to her application for relocation, the mother’s evidence, which I accept, was that even though her preference was to return to India she would not do so without the child.
The mother proposed in the event that she and the child remained in Australia that the child live with her and spend four days per fortnight with the father from after school on Thursday until the commencement of school on Monday each alternate week and half of the school holidays. On the basis of this proposal the child’s time would be reduced from six to four nights per fortnight.
In the event that the mother were to be permitted to relocate with the child to India she proposed the child spend time with the father as follows:
a)for three weeks during the mid-year Indian summer school holidays in Australia at her expense;
b)for two weeks in India in the December/January Indian winter school holidays;
c)by Skype each Sunday at 12.00 noon City C time; and
d)at other times when the father might be in India from after school Thursday until the commencement of school on Monday each alternate week.
The father’s proposal, in the event the mother were to be permitted to relocate with the child to India, was that the child should travel to Australia with the mother on three occasions per year, spending two months with the father in Melbourne during the Indian mid-year summer school holidays and alternate weekends with the mother during this period; two weeks during the December – January Indian winter school holidays and a third period of two weeks when the child would be missing school. The father also said during cross-examination that he would travel to India for a religious festival.
The mother’s proposal was that she would be accompanying the child to Australia and it was the father’s evidence that as it was the mother who wanted to relocate to India he would not contribute to the costs of her accommodation in Australia. It was also not clear from his evidence whether he would pay for half of the child’s travel expenses on the other two occasions he proposed she should travel to Australia to spend time with him. The father also proposed that he and the child communicate by Skype at fixed times on three occasions each week.
The father proposed that in the event that the child remained living in Australia she should spend nine nights per fortnight with him and five nights per fortnight with the mother. His proposal was that the child spend from 10.00 am on Sunday until the commencement of school on Thursday and from after school on Monday until the commencement of school on Thursday and half of the school holidays with the mother.
Legal Principles
Relocation cases are not a specific category of case and as in all parenting cases, the Court must weigh up the parties’ various proposals, the best interests of the child the subject of the proceedings being the paramount, albeit not the only consideration (U v U (2002) 211 CLR 238) (“U v U”).
In U v U the High Court considered the court’s power to make orders it considered to be in the child’s best interests, not limited by the parties’ proposals. Gaudron J observed, with respect to the Court’s power, the possibility of the party opposing the relocation moving, if that is what the best interests of the child were to dictate. At [35], Gaudron J said:
...it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.
As in any parenting case, the best interests of the child are determined by reference to the primary and additional considerations in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) to the extent that those considerations are relevant to the particular facts and circumstances of the case these considerations being “...signposts or touchstones within which the broad enquiry as to best interests must be conducted” (Harridge and Anor & Harridge and Anor [2010] FamCA 445 at [35]). When conducting that enquiry having regard to the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
As referred to by May and Thackray JJ in Mulvany & Lane (2009) FLC 93-404 the central enquiry is “...to determine the outcome that will be best for the child” and as long as the Court gives due weight to all of the relevant considerations, it does not matter under which particular heading it does so.
As in many cases, it is difficult in this case to address the issues by reference to particular s 60CC considerations without unnecessary repetition. In this case there is significant overlap between the various considerations and the facts of this case relevant to those considerations and although I have, as I am required to do, considered all the matters in s 60CC of the Act, for convenience and to avoid repetition I propose to deal with a number of those considerations together.
PRIMARY CONSIDERATIONS
Family Violence
I propose to turn first to the question of whether the father has, as alleged by the mother, engaged in family violence and whether the child has been exposed to family violence.
Section 4AB(1) of the Act defines family violence as follows:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(original emphasis)
The definition of family violence in the Act refers to a number of examples including of particular relevance in this case, assaults and repeated derogatory taunts. The list of examples is not intended to be exhaustive.
It is the mother’s case that during the marriage the father was both verbally and emotionally abusive calling her names and on occasions threatening to make her leave the house and suggesting that she should kill herself.
The mother described the father as drinking on a daily basis, frequently to excess, to the extent that he did not know where he was and that he would urinate where he was standing. She deposed to the father having urinated in the walk in wardrobe, against the window, on the wall and on the tallboy. It is her evidence that the child had witnessed and was frightened by the father’s behaviour.
Although the father denied any physical violence he did admit using some derogatory names, such as calling the mother a “loser” as the mother alleged. Although the father alleged that the mother also verbally abused him during arguments and she admitted that there had been many arguments for the reasons already discussed, I accept her evidence in preference to that of the father as to the nature and degree of his verbal abuse..
The mother alleged that there had been two occasions when the father was physically abusive. The first of those was the incident in October 2014 when she said they were arguing near the door leading into the garage. She says that the father pushed her in the back and that she opened the garage door to escape from him. She said that as this happened the father’s sister was driving their car slowly into the garage and when the father pushed her again she landed on the bonnet of the car and hit her head. She said that she pushed the father in self-defence. She said that she did not report this incident to the police because the father’s sister mediated between them. As previously referred to, the father did not adduce any evidence from his sister in relation to either this incident or the allegations of him being drunk and urinating where he stood, albeit Ms G reported having been told by the mother that the father’s sister witnessed him urinating on a curtain and had been “horrified”.
The second incident of physical violence was the incident which precipitated the parties’ final separation in June 2015. The mother’s evidence, which I accept, is that on 28 June 2015 the father was both verbally and physically abusive. She says that she was in bed with the father and the child, that the father became angry, got out of bed, turned on the light and took the blanket off her and the child before picking up some shoes that were on the floor and dumping them firmly on top of her and the child. She said the child woke up and complained that the father had hurt her head.
The parties had been celebrating the child’s birthday and the mother said the father was complaining about her behaviour that evening, insisting that she talk to him despite her expressing her reluctance to do so. He then dragged her out of bed and she said he started to push her on the chest with his open hands, pushing her around the room saying words to the effect of “what the hell do you think of yourself? Are you some queen? You think whatever you do is correct” and calling her “useless” and “good for nothing”.
The mother said that although she wanted to call the police, she was concerned that this would make the father even angrier and that he might harm either her or the child. As a result of which, she says that at approximately 2.00 am she called a mutual friend who came to the house and remained at the house, speaking to the father until approximately 5.00 am. This was the gentleman who sat in the body of the Court during the case albeit he was not a witness in the case. Counsel for the mother made it clear that it was not at the mother’s behest that he was present at Court and it is reasonable in those circumstances to infer that he was present at Court to support the father and not the mother.
The mother says that later that morning the father was again insisting that she talk to him and told her that she had to do what he said. This was consistent with his evidence that they had agreed after they reconciled that “if we have any arguments, we will not sleep over it, we would talk about it and start the next day afresh” and was also consistent with his evidence about wanting the mother to acknowledge she had lied to him on three occasions. I was left with a very clear impression having heard the father give evidence and conduct his case, that he found it very difficult to control his anger and frustration when he was not getting his own way, which tended to confirm the tenor of the mother’s evidence that he would not take no for an answer when she said that she did not want to have a discussion with him on the night in question or the following day. It is also consistent with Ms G’s evidence in relation to the father’s approach to the discussion of the changeover arrangements at the conclusion of her interviews which she described as based upon demands rather than proposals.
The mother says that when she made it clear to the father that she did not want to speak to him he pushed her on her right shoulder as she was getting milk out of the refrigerator with such force that she fell to the ground just missing hitting her head on the oven. She said that when she got back up the father kept pushing her toward the bench top. The mother’s evidence was that the father pushed her seven or eight times on her breast and chest area and eventually put his right hand around her neck and squeezed so hard that she lost her breath. When she tried to reach for the telephone to call the police she says the father grabbed the phone and put it in his pocket. She said that when she asked the father to let her be he became even more angry and said “you need some space?” and squeezed her neck again for around four to five seconds. The mother said she lost her breath and believed that the father was trying to choke her. It is her evidence that the child witnessed the father’s behaviour and was crying and saying “dadda, please don’t push mummy”.
As previously referred to, the father’s evidence in relation to this incident lacked detail and was most unconvincing as was his evidence generally in relation to the allegations of his behaviour when drunk and his verbal and physical abuse. I accept the mother’s evidence and I am satisfied that the father has subjected the mother to both verbal and physical abuse, that his behaviour constitutes family violence as defined by the Act and that the child has been exposed to that family violence.
The mother reported these incidents to Victoria Police on 30 June 2015. It seemed to be the father’s case that the Court should not accept her evidence because she had not reported the matter immediately. However I accept the mother’s evidence that she did not do so because it was such a serious step and she was nervous about doing so. The mother, having reported the matter to the police, applied for an Intervention Order on behalf of herself also naming the child as an aggrieved family member. The father cross-examined the mother about why she would have named the child in circumstances where she had left the child in his care following these incidents, the suggestion being that she did not really consider that the father was a risk to either her safety or the child’s safety. Although the mother conceded that she did not really believe that the father would harm the child, she did say that she was scared that he might harm her. She also said and I accept her evidence that she told the police she was not scared that the father would harm the child but was advised by the police to include the child’s name on the application. I do not accept, as submitted by the father, that because the mother left the child in the father’s care following this incident, I should conclude that she was not fearful of the father or was not telling the truth about this incident.
On 2 July 2015 the mother obtained an Intervention Order. This order is no longer in force.
Although I am satisfied that the mother was subjected to both verbal and physical abuse and that the child was exposed to that abuse prior to separation, the mother has not made any allegations of physical abuse since the incident in June 2015, after which the parties separated. In her report, Ms G said that she was confident
that violent interactions are not likely to escalate or occur in any pattern, which is supported by the mother who has expressed a willingness to remaining open and available to engage directly with the father for the purpose of discussing the care arrangements for their daughter.
I am satisfied that this limits the risk to the child of family violence moving forward. There is at least to that extent no necessity to protect the child from family violence on an ongoing basis.
However, although there have been no allegations of physical violence since separation, in my view there is a significant ongoing risk of emotional and psychological abuse of both the mother and the child by the father. I am satisfied, as Ms G opines, that the father’s behaviour and his ongoing inability to acknowledge the inappropriateness of that behaviour towards the mother or its likely effects upon the child place the child at significant risk.
The child’s relationship with each of her parents and whether she would benefit from a meaningful relationship with each of them
Section 60CC(2)(a) of the Act in effect requires the Court to predict whether the child in this case would benefit from a meaningful relationship with each of her parents.
In Mazorski & Albright (2007) 37 Fam LR 518 (“Mazorski”) Brown J at paragraph 26 referred to a meaningful relationship as being one “which is important, significant and valuable to the child”, observing that the word meaningful is “a qualitative adjective, not a strictly quantitative one”. As Kay J observed in Godfrey & Sanders (2007) 208 FLR 287 “...what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
The Full Court in McCall & Clark (2009) FLC 93-405 agreed with Brown J’s observations in Mazorski as to the nature of a meaningful relationship and having considered various possible approaches preferred what is referred to as the “prospective approach”. That being said the nature of a child’s present relationship with each of its parents as at the date of the hearing is not only a relevant consideration but also a possible indicator as to the likely benefits of a meaningful relationship in the future.
The father was highly critical of both the mother’s parenting and dismissive of the child’s relationship with the mother and the importance of that relationship in the future. The mother, whilst expressing her concerns about the father’s parenting, and in particular his denigration and lack of respect for her relationship with the child, readily acknowledged the positive aspects of the child’s relationship with the father, including but not limited to her love of the father and his love of her.
Contrary to the father’s evidence Ms G described the child as having “strong relationships with both parents” and observed both the father and the mother to “be highly affectionate, loving and responsive as they were warm, gentle and clearly highly engaged, committed and totally in love with their child.” Ms G, based upon her observations, described the “...role and participation of the father with his daughter as highly nurturing, affectionate and warm” and although contrary to the father’s evidence about the child’s relationship with the mother, Ms G said that she had observed the child to have “a reliable and secure bond with the mother”.
On that basis, it might be reasonable to infer that the child would benefit from having a meaningful relationship with both the father and mother. However, the father’s behaviour and attitude towards the mother, his inability to value or facilitate the child’s relationship with the mother, his lack of insight into the impact of his behaviour upon the child and the emotional and psychological risk that poses to the child must be weighed up against the benefits of their relationship and how that relationship can be managed to achieve that end.
I do not have the same reservations about the mother and am satisfied having heard her evidence, for reasons that I will address in detail in the course of this decision, that the child has and will benefit from an ongoing and meaningful relationship with the mother.
ADDITIONAL CONSIDERATIONS
The capacity of the father and the mother to provide for the needs of the child and their respective attitudes to the responsibilities of parenthood
Notwithstanding the father’s criticisms of the mother’s care of the child, I am satisfied that there is not an issue in this case with respect to either the father or the mother’s capacity to physically care for the child. In my view, the father’s criticism of the mother’s physical care of the child, based primarily upon what he says he had been told by the child, is more likely a reflection of his attitude to the mother, rather than a reflection of her ability to provide physical care for the child. In my view, it is the father and mother’s capacity to meet the psychological and emotional needs of the child that lies at the heart of the case.
Ms G in her report referred to the need for the parties to protect the child from the impact of their ongoing dispute. She also said that she had little confidence in the father’s expressed wish for a co-operative relationship. Having heard the father’s evidence I share her lack of confidence in the father and have significant reservations about the degree of his insight into the impact of his behaviour upon the mother and the child.
Although the father said on a number of occasions during his evidence that he had taken on board Ms G’s criticisms of his behaviour and that that behaviour was a thing of the past, the evidence suggests otherwise. There are many examples but two examples highlight what I consider to be problems with the father’s behaviour and his lack of insight. The first of those is the father’s persistent requests or what Ms G described as “demands” for the child to spend additional time with him and how he set out to achieve that end. In particular, he has involved the child in that process, for example, by waiting outside the mother’s home while the child went inside to ask the mother if she could spend more time with the father. In addition, the father seemingly has a total lack of any understanding or appreciation that there might be any problem with him doing so. Even if I were to accept the father’s case that this was initiated by the child herself, Ms G said a parent with any insight would not have allowed the child to do this and if there was to be a request for additional time, the father should have had that discussion with the mother.
Ms G said in cross-examination as follows
Well, you raise the child’s hopes first by the father not placing a boundary on-on the child’s wish to ask the question of mum. The hope actually comes from dad, not the mother. The hope is saying, “Yes, go and ask your mother for more time.” And when the mother says no, it just affirms for the child the father’s view of the mother as being the person that is at fault here, the person to blame, the person to be seen as the bad parent versus the good parent. The hope comes from the father allowing the child and empowering the child to believe that she has a role in having that discussion with mum. The best-any insight would recognise that this child is very young, that the child’s needs to be given a boundary that says, “What’s predictable for you is this is the time you’re with dad and this is the time you’re with mum. We will contain this situation. We’re containing it. We’re securing it for you. It’s predictable, it will happen. There’s time with both of us. We both love you. Now our time has finished, it’s time for you to enjoy your time with mum.” And those messages are ones that give kids security. It gives them a sense of predictability and security in that relationship. And what that does is allow this child actually to enjoy both relationships in a psychological way. And when you don’t do that is when you start to actually confuse the child’s understanding of this child/parent relationship and how it should work. And that’s why it becomes undermining…
It probably just affirms, really, that the dad’s perception of how communication and negotiations occur are based on the child’s express wish. And the danger with that is that he’s not thinking about how this child is more likely to want to please both her parents. She certainly presented to me as genuinely close to both her parents and loves them both. So when there is a split and a divide and the child’s experiencing that split and divide, and she experiences it by being exposed to mum and dad’s opposing view on a matter, like, does she stay longer with dad. Then you really split this child’s identity, and it’s at that point that they carry the burden of the tug-of-war of the split loyalties to both parents. And that is absolute emotional trauma and pressure and stress. And this constant pressure to be able to think that she’s responsible for resolving disputes between her parents is beyond her emotional scope to do so. And because it’s not within her scope to do so, she will experience some level of responsibility for her parent’s conflict. And at this young age, that’s just burdening her with an adult problem, and that when she sees that that adult problem is not resolved by the adults, she will carry the-the negative outcome of that. And that will only contaminate her confidence in her parents’ relationship. But when a child this age develops the lack of confidence in the durability of her parents’ co-parenting relationship, she therefore…to think about aligning with one or the other. They don’t have at this age any complex capacity to think about complex problems. She has no capacity at this age to consider different views.
The other example was the father’s recent message to the mother suggesting that he, the mother and the child have a “recorded phone conference” allowing the child to decide if she wanted to stay longer with the father the following Saturday. The father’s evidence in relation to this incident suggested he could see nothing wrong with the child’s involvement in the proposed discussion.
Ms G described this kind of behaviour as highly “manipulative”.
When the father was cross-examined about the content and tone of his messages to the mother he blamed that upon her having provoked him, her being affected by alcohol, that he felt she was attacking him as a father and that the mother’s messages had made him “irritated”. I am satisfied having read the messages that to the contrary, the mother has attempted to communicate with the father in difficult circumstances acting as a responsible parent should and would do. This includes keeping the father advised of any health issues the child might have. The father on the other hand, after being advised by the mother of the child’s appointment with the ophthalmologist and his advice with respect to glasses, took the child to another optometrist without advising the mother and although ultimately conceding that he should have told her, he initially could see no reason why he would need to have done so.
The father also refused the mother’s request for the password to the school website on the basis that she could obtain her own password as he did not want to share. This is not a good indicator that the father is likely to parent co-operatively in the future.
Although the father attributed his behaviour prior to Ms G’s report to his negative feelings about the mother as a result of having had his dreams shattered and said that he no longer had those feelings, this is not consistent with his manner in the witness box, the content of his evidence or his behaviour since Ms G’s report was released. His ongoing anger at and resentment of the mother was obvious.
As a result of the mother’s application for an Intervention Order the father was ordered to attend a Men’s Behaviour Change Program. Although the father attended an assessment session in early 2016 he was assessed as unsuitable for the program. The father tendered in evidence a letter he had received from the Men’s Behaviour Change Program facilitator dated 31 March 2016 which he said demonstrated the assessment of him was that he “did not do domestic violence” as alleged by the mother. This evidence was significant for two reasons. Firstly it demonstrates that the father has not had professional assistance to address his behaviour. But of even greater significance is what the father’s reliance upon that letter said about his insight into and acceptance of the need for him to change his behaviour. The letter did not say, as the father said, that he was not violent. To the contrary the letter said that the father was not suitable for the program because
...he has denied any use of violence; has no thoughts or reflections on his behaviour; expressed any reason to change that would motivate him in taking any responsibility and being accountable which led to the charges handed down to him by the court for which he was issued an Intervention Order.
Notwithstanding the father’s evidence that he had taken on board Ms G’s criticisms of his attitude to and behaviour towards the mother, the father had great difficulty during his evidence acknowledging any positives about the mother or her relationship with the child. The father’s criticisms of the mother included that she had hit the child when drunk and generally used inappropriate physical discipline, that she did not feed the child properly or attend to the child’s hygiene and that the child was bored in her care. The father said that the mother
... is not a good mother but at the end of the day she is a mother… [the child] should have mother and father both in her life…she is not a good wife, she is not a good sister in law, she is not a good daughter in law she is not a good mother…at the end of the day she is a mother.”
He was unable to otherwise point to any positive aspects of the child’s relationship with the mother.
I am also satisfied that the father is unable to separate his needs from the child’s needs. This was evident from both his oral evidence and the messages passing between him and the mother. One example during his evidence was the reference to the loss of what he described as his and the child’s dream home. He also described the mother in one of his messages to her as the “ruiner of [the child’s] dreams”. In other messages to the mother the father wrote that she “should not test mine and the child’s patience as unfortunately we both have to accept your behaviour considering the child spends 60 per cent of her time with u at this stage” and another message referred to the way he and the child had accepted her parenting style.
The child herself told Ms G that the father could not live without her. Ms G said when asked whether this was problematic, particularly in the context of the mother wanting to relocate to India, she said as follows:
...it is, and it is because this child will feel responsible for the father’s happiness and unhappiness, that the child would see that he’s the victim and that mum is taking action that harms her father, who she loves. Again, it just involves her in the emotional needs of the parents as opposed to prioritising her needs. The list goes on. Again, it’s just, again, another example of lack of insight.
Ms G was asked a number of questions about the risk to the child of the father undermining her relationship with the mother and the child aligning herself with one parent. She described the risks to the child in the event of being alienated from the mother, her primary attachment figure, in the following terms:
Well, they are considered the highest risk children. The highest risk of, you know, very poor prognosis around their psychological functioning. They’re more likely to be anxious children, they’re more likely to disengage with peers, they’re more likely to engage in destructive relationships and repeat the history of their parents’ conflict. You know, often for boys they become more delinquent and often for girls they become higher-high risk of self harm. The list is well researched in social science. It’s well documented. It’s overwhelming. It’s convincing, but the prognosis for these children is very, very poor. And, certainly, my own experience of meeting numerous children at later years, you know, 14, 15, that are severely aligned with one parent, who has rejected a perfectly good relationship is that these children are really, really damaged to the point that it’s very hard to see how we can repair that damage. It’s very unusual to see that repaired. There’s some terrific research by Amy Baker who does a lot of work in this area. She had-there’s a book she has done where she has interviewed adult children who have been aligned-not all divorce cases, either-and the reporting of those adult children is just devastating. And what often happens is that they have really poor relationships with both parents, ultimately. They ultimately have a-will have a very destructive relationship with the parent that they favour as a child and so not only do they have a damaged relationship with the rejected parent, they end up having a very damaged relationship with the favoured parent as well. And the statistics on depression and suicide is frightfully high in that age group-adult age group.
...Their vulnerability continues through to their adulthood. It’s lifelong. Lifelong complications.
It was Ms G’s opinion that this was not simply a case in which the child had overheard her father’s conversations about the mother. It was her view that in this case the father had had direct conversations with the child and that she had been actively engaged in his narrative about the mother. Ms G also referred to the likelihood of the child choosing the parent putting the greater pressure on them, in this case the father, as there was in her view no evidence to suggest the mother was not supportive of the child’s relationship with the father.
I am satisfied that although the father professes to have had regard to the concerns expressed by Ms G, the reality is very different and in those circumstances, the mother and the child both directly and indirectly, because of the father’s attitude to the mother, are exposed to an ongoing risk of emotional and psychological abuse.
The mother’s evidence was that the thought of not relocating to India was very daunting and she was feeling increasingly anxious about it and the current parenting arrangements. She described having difficulty sleeping, having frequent headaches and lacking the motivation to take care of herself, putting all of her energy into taking care of the child. She also described frequently breaking down in tears. This is consistent with what she reportedly told her psychologist and I accept her evidence.
Although the father referred during cross-examination to the mother now living a lavish lifestyle he also said that the mother had never liked living in Australia and that she was so unhappy here that she would eventually abandon the child in Australia and return to India if she were not permitted to relocate with the child.
I have already found and I accept that the mother will remain in Australia if the child is not permitted to relocate to India. I am also satisfied that this would be likely to be extremely difficult for her and that her anxiety would be exacerbated by the father’s attempts to undermine the child’s relationship with her. I also accept as Ms G said that there is in this case a real risk of the child rejecting the mother and aligning with the father as a result of the undermining of the child’s relationship with the mother by the father.
Although Ms G suggested that the first step to protect against this occurring would be for the parties to engage in some form of therapeutic intervention, she also acknowledged that in circumstances where the father appears not to see any problem with his parenting and has not demonstrated any inclination to date to engage in therapy, such therapeutic intervention is likely to be of limited value.
It was Ms G’s evidence that in these circumstances the role of what she described as the “healthy parent”, in this case the mother, would need to be promoted so that the child would have greater exposure to that healthy parent and less exposure to the negative narrative of the undermining parent. She also said that the healthy parent would need to develop some resilience in order to resist the negative impact of the other parent. Although Ms G also suggested that professional support for the child might be considered so that she is exposed to a more neutral narrative, she also said that this would be of limited benefit given the child’s age. It was Ms G’s evidence that
the difficulty is how much we can protect this child given her age, and then it’s a question of if the mother in this case is able – has enough supports and skills to be able to add the protective layer around this child if the role of the father continues to be a risk, and then it’s looking at whether the child benefits and what’s meaningful for her with her father, the extent of which that relationship is meaningful…what we hope is that the benefits of the relationship that she had with her father outweighs the negative experience of her parents dispute.
As previously referred to in this decision, the mother described changes in the child’s behaviour reporting to Ms G that the child “returns to her care with highly rejecting and critical narrative that appears to have been promoted by the father.” The child herself told Ms G that it is hard to love the mother when she is told that “she is doing all the bad things”.
I am satisfied that it is becoming increasingly difficult for the mother to resist the negative pressure placed upon her personally by the father’s behaviour towards her and the impact his negative views of her have upon the child and consequently her relationship with the child. I am also satisfied that it will in those circumstances become increasingly difficult to protect the child from the impact of the father’s behaviour.
Wishes of the Child
The child in this case is now six years of age. It is the father’s case that the child is always asking to spend more time with him and would prefer to live with him. He says that she complains about the mother’s care and is bored in her care. The father accepts without question what he says the child tells him and paid lip service during cross-examination to the possibility that the child may be telling him what she thinks he wants to hear, rather than expressing her own view. What the father says the child tells him is not consistent with Ms G’s observations of the child and her relationship with the mother.
In all of the circumstances, even if I were to accept the father’s evidence about what he says the child reports to him, I am not satisfied that what she says is a true reflection of her views. Ms G in her evidence also said that in circumstances such as these it “is difficult to rely on the parents reporting on what the child is saying” and that she could only rely on her experience of the child.
I am not satisfied that what the father says the child tells him she wants is either an accurate report of what she says, or if she does say it, reflects either her views or her experience in the mother’s care. Even if the Court were to accept what the father says she tells him is accurate, given the circumstances I place little weight upon her views.
Promoting the Child’s Relationship with the Other Parent
For the reasons discussed above I am not satisfied that the father is capable of or would promote or facilitate the child’s relationship with the mother.
It is the father’s case that not only will the mother not promote the child’s relationship with him, albeit the evidence to date suggests she has done so despite the father’s behaviour, but that the reason for the mother’s application to relocate is to cut him out of the child’s life. It is his case that once in India the mother will ignore any orders this Court might make and not only is India not a signatory to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Hague Convention”) but that there will also be nothing he can do in India to ensure that the child is able to spend time with him.
The father’s case appears to be based firstly upon the fact that the mother had previously taken the child to India to visit family thereafter indicating her intention to remain in India with the child and that she did not facilitate his relationship with the child during her stay in India. The second matter is that the mother herself has had no relationship with her own father, from which he submits the Court should conclude that she will not promote the child’s relationship with him.
Like Ms G, I am of the view that both of these matters equally support a conclusion that the mother appreciates the importance of the child’s relationship with the father and will both promote and facilitate her relationship with the father. Although it is true that the mother having travelled to India extended her trip and formed the view that she wanted to end the marriage, it is also the case that after returning to Australia without the child to discuss the marriage and separation with the father, she decided after some days of discussion to give the marriage another chance, she says because the father promised to change his behaviour. Shortly thereafter, she returned to India to collect the child and returned to Australia to live with the father. It is in my view reasonable to infer that the mother was not only making a genuine attempt to reconcile with the father but was also committed to the child having a relationship with the father.
The mother described being very close to her father but said that after her parents separated her father showed little interest in her and that their contact was limited to special occasions such as birthdays. Although initially she was very upset she said when her father moved on with his life she detached herself from him. Although the father asked her about what her mother had done to encourage a relationship between them, the mother pointed out that as she was an adult at the time it was not a matter for her mother. The mother’s evidence was quite poignant. I am satisfied that the lack of a father figure in her life was an emotional issue for her. As opined by Ms G arguably the mother would appreciate better than most the importance of her daughter’s relationship with the father. I am satisfied having heard her evidence that that is the case.
The father’s case was that the mother did not facilitate his telephone and Skype contact with the child whilst she and the child were in India in late 2014 to early 2015. For the reasons I have previously discussed I prefer the mother’s evidence that she had done so albeit she readily conceded that there were times when the father called or wanted to speak to the child by Skype and it was either not convenient to do so or it was not a suitable time and that she would in those circumstances generally facilitate contact at a suitable time the following day. Significantly in my view, the mother also readily conceded that the child had told her that she missed the father.
Having heard the mother’s evidence, I find that she appreciates the importance of the child’s relationship with the father and will promote and facilitate her relationship with him.
The Parents Obligation to Maintain the Child
The mother’s case is that she is struggling financially in Australia. She is employed earning approximately $52,000 per annum and uses her income and the family tax benefits she receives to support the child. The mother said that although prior to the child commencing school in 2015 the father had paid for one week of day care fees, those fees had been offset against his obligation to pay child support and that as at the date of swearing her trial Affidavit the father had not made any further payments to the mother for the child’s benefit.
The father was cross-examined at some length about his child support payments. His evidence changed repeatedly and was most unsatisfactory. When it was put to the father that he had been paying approximately $5 per week for most of 2016 he firstly said he did not recall and then said it was for a couple of months because he was not employed and had notified the Child Support Agency (“CSA”) that his income had changed. This was despite his earlier evidence that it was the mother who had initiated any changes in the assessment. I am satisfied based upon the child support assessments that are in evidence before me that he was assessed to pay $5 per week between 13 February 2016 and 30 September 2016.
The father also insisted that he is currently paying $256 per month albeit it is the mother’s evidence that he currently pays $116 per month in accordance with the current assessment. I accept the mother’s evidence in preference to the father’s and am satisfied that the father is currently assessed to pay and is paying $116 per month.
The father also gave evidence in relation to having been given credit for amounts that he had paid for the child’s child care fees. The result of this credit was that he did not have to pay child support to the mother for some months. He initially said that one of the reasons he sought to have the child care fees credited was because he was only seeing the child for a matter of hours each week. When it was put to the father that he had wanted to punish the mother because he was not spending the time he thought he should be spending with the child, he attempted to distance himself from his earlier evidence. When asked to reflect in hindsight upon whether it was appropriate to have left the mother supporting the child without the benefit of any child support, it was his evidence that it had been. He said it had been appropriate because the mother was at that time in a better financial position.
The father ultimately conceded that he had notified the CSA in January 2016 that he was not in receipt of any income in order to have the assessment varied. However it was his evidence that even though his current contract was due to end in December 2016, he would continue to pay child support in accordance with the current assessment (albeit he said that was $256 per month). The father stated he had money set aside in his business for living expenses, including child support which should last him for a month or two in the event he did not have a new contract.
The father’s evidence left me with little confidence that the mother would be able to rely upon him for the financial support of the child. I have found that the father is currently assessed and pays what amounts to $27 per week. Even if the father were paying $256 per month that is still only approximately $60 per week. Either way this would leave the mother in the positon of having to meet the bulk of the child’s financial needs.
The Likely Effect of any Changes in the Child’s Circumstances
In this case each of the parties’ respective proposals would involve significant changes for the child.
The father is proposing that the child live primarily with him. Although the father did not consider that his proposal would be a major change for the child and that she would be happier with him, it was Ms G’s evidence that the child is primarily attached to the mother. Ms G was concerned not only about the impact upon the child of being removed from the care of the parent to whom she is primarily attached, but also the impact upon her relationship with the mother in circumstances where the father is not only not supportive of that relationship but is actively undermining it which I am satisfied is the case. I concur with Ms G’s concerns.
The change proposed by the father also involved significant changes in the child’s day to day routine including being required to attend after school care on a daily basis in circumstances where she has until now been cared for by the mother after school hours. I do not accept the father’s evidence that this would be better for the child as she is bored when she is in the mother’s care and that in those circumstances after school care would be more stimulating and enjoyable for her.
The mother’s proposal that the time the child spends with the father be reduced in the event that she is required to stay in Australia with the child would also involve significant change for the child who is now used to spending six nights per fortnight with the father. The mother’s proposal would also mean that the child would not see the father for 10 days at a time.
However the mother’s proposal that she and the child relocate to India would involve the most significant change for the child. Although the child has spent significant periods of time in India she has not lived in India. The proposed move would involve a new language as it is common ground that she presently does not speak Hindi, a new school and totally new arrangements for her care outside school hours at times when the mother is not available to provide that care albeit the mother proposes to rely upon her mother and sister both of whom are well known to the child. The proposed move would also mean less face to face time with the father in the event that he does not, as he says he will not, also relocate to India to be near the child.
The father’s evidence is that during the time the child was in India in late 2014 to early 2015, she told him she did not like India, she did not like staying with the maternal grandmother, she did not like the school the mother had enrolled her in and that she wanted to return to their home in Suburb H. The father says that the child told him she does not like India because of the smog and unhealthy air quality in India. Whilst I have no doubt that the child missed the father when she was in India with the mother which the mother herself acknowledges, I am not satisfied that the father’s reports of the child’s views about India are reliable or even if they are, that they are reflective of her views rather than the views of the father.
It is also the case that the time the child spends with the father and members of his family in Australia would be both less in quantity and in regularity unless the father decided to move to India. He has family in India. The child would not only be living with her maternal grandmother and aunt but would also be living in relatively close proximity to her paternal grandparents who live in City C.
If the Court were to accede to the father’s application the child would not be permitted to leave the Commonwealth of Australia until she reaches 18 years of age. This would limit her capacity to maintain and develop a relationship with both her paternal and maternal extended families in India limiting that face to face time to any visits they might make to Australia.
I have taken all of these possible changes in the child’s circumstances into account in determining what I consider to be in the child’s best interests.
The Practical Difficulty and Expense of the Child Spending Time and Communicating with her Parents
Whilst there are no practical difficulties or additional expenses associated with the child spending time and communicating with the father and mother in this case which are likely to affect the child maintaining a relationship with her parents if she continues to live in Australia, that is certainly not the case if she is to relocate to India.
In the event that the child lives with her in India, the mother proposes travelling to Australia with the child at her expense on one occasion each year. Although she proposes that the child spend time with the father during her winter school holidays it is her case that this should be at the father’s expense. Although the father would have to pay for his airfares he has family with whom he can stay with in City C. There would be no practical impediment to or expense associated with the weekly Skype time the mother proposes whether it is for one occasion each week as proposed by the mother or three occasions as proposed by the father.
The father proposes that if the child is to relocate to India she should travel to Australia with the mother, sharing the child’s expenses on one occasion but otherwise at the mother’s expense on the other two occasions. This would be a significant expense in circumstances where the mother is likely to be receiving only minimal child support from the father.
Culture and Traditions
Both the father and mother are of Indian descent and have extended families in India. Both the father and the mother have exposed the child to their cultural traditions and values and I am satisfied that they would continue to do so if the child remained living in Australia. However it is also the case that if the child is not permitted to leave the Commonwealth of Australia until she reaches 18 years of age she would not have the opportunity to directly experience Indian culture. Clearly the child would have a greater exposure to Indian culture and traditions if she lived in India.
Orders Least Likely to Lead to the Institution of Further Proceedings
Given this child’s exposure to the ongoing dispute between her parents, in particular by the father, I am satisfied that it would be preferable to make orders that are likely to avoid further proceedings between them in the future. If I accede to the mother’s application, although there may not be any further proceedings in this Court, it is not possible to rule out the possibility of there being proceedings in India at some future date.
In the event that I were to not permit the mother to relocate to India, I am satisfied that the likelihood of further proceedings is significant whether I accede to the father’s application that he be the child’s primary carer or the mother’s application to reduce the child’s time with the father. This view is based upon what I consider to be the likelihood of the father continuing to undermine the child’s relationship with her mother, and/or to seek variations of the existing orders and the likely personal difficulties the mother would face and how that would impact on the child if she were unable to return to India.
What would the Father’s Proposal mean for the Child?
I accept Ms G’s evidence that the child’s primary attachment is to the mother and in those circumstances I do not accept the father’s evidence that the arrangement he proposes would not be a major change for the child. In fact it was his evidence that the child would be much happier in his care. I am not satisfied that would be the case. Even if the father was capable of supporting the child’s relationship with the mother, I am satisfied that her removal from the care of the person to whom she is primarily attached would be likely to have a significant and detrimental effect upon her welfare. The father’s failure or inability to acknowledge that is the case further highlights his lack of insight.
There are in my view also practical issues with the father’s proposals. The father’s proposal would mean that not only would the child be removed from the mother’s primary care, but she would also not be spending a full weekend with the mother. His proposal also included a changeover on a Tuesday. Ms G did not support either the father’s proposal that the child should primarily live with him or the mechanics of that proposal. As previously discussed it was her evidence that she had significant concerns about the welfare of the child given what she considered to be the father’s inability to support the child’s relationship with the mother.
I am satisfied that it would not, in all of the circumstances in this case, be in the child’s best interests to live primarily with the father.
Is it in the Child’s Best Interests to relocate to India or to remain in Australia?
Although I am satisfied for all the reasons I have discussed that it is in the child’s best interests to live with the mother, the question remains whether that should be, as she proposes, in India, or in Australia in the event that she is not permitted to relocate. Further to these issues is the question of what time the child should spend with the father in each case.
As submitted by the father India is not a signatory to the Hague Convention and in the event that the mother fails to make the child available to spend time with the father as she proposes, the father would not have the benefit of the Hague Convention for the purposes of enforcing any orders that might be made. However whilst this is a relevant matter, as submitted by counsel for the mother and I agree, it is not determinative.
Ms G said that she was not concerned about the mother supporting the child’s relationship with the father or complying with any orders the Court might make for the child to spend time with the father. She also did not support the father’s proposal that if the mother and child were to remain in Australia the child should not be permitted to leave the Commonwealth of Australia until she turned 18 years of age and agreed that such a restriction would be “unnecessarily limiting”.
The decision in cases such as this one requires the Court to make predictions about the future. Inevitably that prediction relies to some extent on what has occurred in the past. That is so in this case and I am mindful of the fact that the mother has always returned from India on previous occasions when she has travelled to India to spend time with her family, including in early 2015 when the marriage was already in some difficulty. The father’s case was focussed on the fact that the mother had made the decision to separate whilst visiting her family in India in late 2014, the suggestion being that she had been planning to separate and had always intended to remain in India with the child. As previously referred to, unlike the father, I take significant comfort from the fact that the mother returned with the child from India when she and the father attempted to reconcile their marriage in early 2015. The obvious problem with the father’s interpretation of the evidence is that there was at the time nothing requiring the mother to return to Australia with the child and had she not done so there would have been no case for this Court to determine.
I also do not accept, as submitted by the father, that even if he were to travel to India the mother would not permit him to see the child. There is also no evidence to support his assertions that the mother and or her family could somehow use their wealth and influence to manipulate the legal system in India in order to prevent the child spending time with him if he were to travel to or relocate to India.
Having heard the mother’s evidence and having regard to Ms G’s assessment of the mother I am satisfied on the balance of probabilities that the mother will return to Australia with the child for the purposes of the child spending time with the father and will facilitate the child’s time with the father in India should he choose to travel to India.
The mother’s evidence is that she is struggling financially and finding it impossible to get ahead in Australia. As previously referred to, the amount of child support the mother has received is modest at its highest and certainly not enough to alleviate any financial difficulties she is currently experiencing. Although the father said that he had been told by the mother’s friends that she was living a lavish lifestyle and already on the payroll of her uncle’s company, I am not satisfied that is the case. I accept the mother’s evidence that her reference to income in the Indian court documents was to her income in Australia not income she was receiving in India and although she has an offer of employment in her uncle’s company she is not presently on the payroll.
Although the mother says she has four or five friends in Australia she also says she does not feel comfortable associating with them due to her current circumstances and as a result they generally only meet at birthday parties or the child’s play dates. The mother describes an increasingly isolated lifestyle with no family support. I accept her evidence.
In contrast in India the mother would have the assistance and support of her extended family including her mother, a sister and cousins who also have young children. The mother says she also has childhood friends who have young children who are known to the child from her visits to India.
The mother proposes initially to live with her mother. She says her mother and sister live in a comfortable four-bedroom home with the usual amenities which is well located and safe. The maternal grandmother is a housewife and the mother’s sister works full time. There are two domestic helpers who are responsible for cleaning the house and running basic errands. There is a family car which the mother says she could use if necessary.
The mother proposes to support herself and I am satisfied she has been offered suitable employment in her uncle’s company to commence in February 2017.
The mother proposes to enrol the child in a local school of her choosing within 15 or 20 minutes of the maternal grandmother’s home, a school in which English would be the first spoken and written language and other languages such as Hindi would be taught as a secondary language. The school year commences in early April. I accept the mother’s evidence that it has not been possible to enrol the child until she is actually resident in India.
The father did not challenge the mother’s evidence as to her anticipated lifestyle in India, in fact it was his evidence that the mother’s family in India were both affluent and influential and that the mother would be living a lavish lifestyle that being, he alleged, one of the attractions for her of the proposed relocation.
Although the father asserted that India would be a dangerous place for the child to live, one example he gave being the risk of her being kidnapped, he did not adduce any admissible evidence in support of those assertions from which I could conclude that the child might be at risk. I am satisfied that in any event the mother would act appropriately to protect the child as she clearly has done on previous visits to India with the child.
Although in her report Ms G said that given the child’s
...young age, her established networks in Australia, her early and successful transition to primary schooling, the writer would not support relocation to India or any arrangement that would require this vulnerable young child to endure separation from either parent longer than she can tolerate...
she also highlighted the significant risk of psychological damage to the child from the ongoing exposure to the conflict between her parents and the father’s negative views of the mother. Those risks included the child’s inability to develop her emotional intelligence and maintain relationships as an adult in circumstances where the father’s negative views of the mother do not align with her experience of the mother and ultimately the possibility of her feeling the need to choose between her parents and in this case, likely rejecting the mother.
Ms G said that if there was evidence of the father having taken on board her concerns about his negative view of the mother and the exposure of the child to those views, then she would not, as referred to in her report, be in favour of the mother’s proposed relocation. However she also expressed the view that absent those changes in the father’s behaviour, she had reservations about the capacity for a genuine shared parenting relationship and the potential risk to the child in those circumstances and suggested that the child’s best interests might be better served by a sole parenting relationship with the mother. Ms G referred in those circumstances to the mother’s, as the sole parent, freedom of movement but even more importantly in my view, to the availability of support for her parenting role.
The mother’s proposal in the event that she is required to stay in Australia is that the time the child spends with the father be limited to a shorter block of time. Although Ms G agreed that reducing the time the child spends with the father might protect her from the father’s negative narrative and saw benefit in the arrangement proposed by the mother, she also referred to the need for the child to be able to tolerate the longer periods between times she would spend with the father.
However Ms G also said that the “best way to protect a child – the only protective factor is cooperation. The only risk factor is parental conflict, and on reading the material post my family report, it appears to me quite considerable parental conflict has continued.” She also said of the father as follows
So if his views are fixed, then the likelihood of that changing or challenging his views are, as you’ve just said, are limited, so then it becomes a question of elevating and promoting the, if you like, the healthy parent. So that the time arrangements mean that she has more consistent narratives that is unlikely to contaminate her views. So you might then go towards the examples of the block of time where she has greater periods of time with one parent than the other.
I am satisfied that the father has not made the necessary changes in his behaviour, continues to engage the child in his negative narrative of the mother and undermines the child’s relationship with the mother. Whether that is deliberate or a consequence of his lack of insight into the risks to the child of exposing her to his negative views of the mother, the outcome is the same.
Even if a more limited block of time was ordered the child would still have significant exposure to his negative narrative undermining her relationship with the mother. I accept Ms G’s evidence that the mother would require significant parenting skills and support to provide what Ms G referred to as the necessary “protective layer” around the child. This is in circumstances where the mother is already disempowered in her relationship with the father and is under ongoing attack by the father. In my view the child remains at significant psychological risk even if the father’s time with the child is reduced to a block of time. The mother is living in Australia without family support, under financial pressure and already demonstrating significant stress and anxiety as a result of her circumstances. Although she says she devotes all of her energy to the child when she is in her care and that the despair she feels has not until now impacted on the child, I am satisfied that it will become increasingly difficult for the mother to protect the child from the father’s behaviour or her own anxiety as a result of his behaviour.
Even if the mother relocates to India I am satisfied the child will, on either the father or the mother’s proposal, be spending significant periods of time with the father and in those circumstances is likely to continue to be exposed to the father’s negative narrative about the mother. However the mother’s circumstances would be very different. The mother would have the emotional, physical and financial support of her family and I am satisfied in these circumstances is more likely to have both the skills and the resilience to protect the child from the father’s behaviour and his negative narrative of her. This in my view would be likely to lessen the risk to the child of psychological harm as described by Ms G, allowing her to have a meaningful relationship with both her parents.
Whilst not underestimating the impact of the proposed relocation upon the child, Ms G also gave evidence that she believed that the mother would be able to support the child through that process. I accept Ms G’s evidence which is consistent with my observations of the mother’s evidence. In addition, as Ms G said, relocation may in fact give the child some relief from the ongoing stress and tension of her parents’ relationship.
The father proposed that in the event that the mother was permitted to relocate with the child to India she should travel with the child to Australia on three occasions each year. For the first of those occasions he proposed that the child spend two months in his care during the Indian summer school holidays, albeit during that period she would spend each alternate weekend with the mother. He further proposed that the child spend two weeks with him in Australia during her winter school holidays, which he said was a three week holiday period, and finally a further two weeks in Australia which he agreed would require the child to be taken out of school. Although the father said that he could take three months off every year to spend with the child, he ultimately said that this was only if she was living in Australia. The father also said, although he did not specify how often it might be, that he would endeavour to travel to India in order to spend time with the child in India in addition to her visits to Australia.
Ms G’s evidence was that the father’s proposal was likely to be onerous for the child and unlikely to be sustainable in circumstances where, as the child grew up she would become more engaged in her schooling and other activities with her peers and that separation from those things would probably mean that she would not be able to sustain that amount of travel and time away from her life in India.
The father also proposed that there be three fixed occasions each week for the child to speak to him by Skype which Ms G agreed would be quite restrictive and not “practically possible.”
Ms G agreed with counsel for the mother’s submission that although the mother’s proposal for the child to spend time with the father was perhaps not optimal it was in all of the circumstances “reasonable”. In addition, Ms G stated that the combination of time during the school holidays, further time in India should the father choose to avail himself of that opportunity and weekly communication by Skype would be sufficient for the child to “sustain an image” of the father during the periods of separation from him.
During cross-examination the father agreed to pay half of the child’s travel expenses however, this was based upon his proposal that she spend one period of two months in Australia as well as two shorter periods. I am satisfied that in circumstances where the mother, subject to any child support she receives from the father, will be primarily responsible for the child’s financial support and will be meeting both her own travel expenses and the cost of her accommodation in Australia, that it is reasonable to expect the father to pay half of the cost of the child’s travel to Australia, albeit the child will be in Australia for three weeks rather than two months. I am also mindful of the fact that the father will have to meet the cost of his travel to India to see the child on other occasions albeit it was not part of his case that he would have to pay for his accommodation in India during those visits. On this basis I propose to accede to the mother’s application that the father pay half of the travel expenses for the child. I also propose to make orders permitting the mother to cancel the travel arrangements for herself and the child in the event that the father does not pay his share within the required timeframe.
Although the father’s evidence was that he would not under any circumstances relocate to India to live in closer proximity to the child, as Gaudron J observed in U v U, it is open to the court to consider that possibility. I am satisfied that there is no legal or other barrier to the father relocating to India should he choose to do so. Even if the father does not relocate to India I am satisfied that he will in any event have a meaningful relationship with the child albeit he may not consider it optimal.
Ms G in her report referred to the likely emotional and psychological impact of the child’s relocation upon the father. Relocation cases are difficult for the parties involved in them and I have no doubt that the child’s relocation will have a significant impact upon the father and the child. That being said, I must weigh up the parties’ respective proposals and make orders that I consider to be in the child’s best interests. The difficulty in this case is that if the mother and the child were to remain in Australia there is in my view, a very real risk that even if the time the child spends with the father is reduced, the child’s relationship with the mother will be undermined with all that entails for her welfare both in the short and long term. I am satisfied that if the child were to remain in Australia, that is likely to pose a significant risk to her psychological wellbeing.
Having found that I am satisfied that the mother will promote and facilitate the child spending time with the father and that there is no impediment to the father travelling to India to spend time with the child, I am also satisfied in circumstances where the father says he could take three months off to spend time with the child in Australia, that there is no reason why the father could not spend time with the child in India as the mother proposes. I am satisfied in these circumstances that the child will be able to maintain a meaningful relationship with the father.
In all of the circumstances I am satisfied that it is in the child’s best interests that the mother be permitted to relocate with the child to India.
Parental Responsibility
Whether I accede to the father’s or the mother’s application, the orders I will be making are parenting orders and in that case I must apply the presumption that it would be in the child’s best interests for the father and the mother to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. I have found in this case that the father has engaged in family violence and that the child has been exposed to that family violence and in those circumstances the presumption of equal shared parental responsibility does not apply and I must determine what, if any, order should be made for parental responsibility based upon the best interests of the child. If the Court makes an order for equal shared parental responsibility it must consider whether the child spending equal time and, if not equal time, substantial time with each parent is in the child’s best interests and reasonably practical.
In this case I am not satisfied that it would be in the child’s best interests for her parents to share parental responsibility for her. There are obvious practical difficulties with them doing so in circumstances where pursuant to my orders the mother and the child will be living in India and the father will be living in Australia.
However that is not the only issue in this case. Of much greater significance is the father’s inability to communicate effectively with the mother, the nature of the communication he does have with the mother and the impact of that communication upon the mother and indirectly upon the child.
In her report Ms G described the mother as “highly open and encouraging of the child to interact with the father as she attempted to acknowledge Mr Tagore with eye contact.” However she also said that the father “...ignored the mother and was highly rejecting of any warm gesture made by the mother”. Ms G went on to describe the father when in the same room as the mother and the child as “assiduously” avoiding the mother and refusing to make eye contact during discussion to avoid any engagement with the mother. As previously referred to Ms G described the father’s approach as being based upon demands rather than proposals. She said that despite this behaviour the “...mother responded co-operatively and willingly as she smiled at the father in an attempt to support the child’s wishes to have close and secure relationships with both parents.” During her oral evidence Ms G said that despite her direction and coaching of the father on this occasion, the situation did not improve and also expressed her disappointment that although she had suggested that during this meeting, for the sake of the child, the parties acknowledge each other at the next changeover, the mother had emailed her shortly thereafter advising that the father had not done so.
In this case it is not just the lack of communication but the hostility of the father to the mother in what limited communication they have. Contrary to the father’s evidence that he had taken on board Ms G’s criticisms of his behaviour and that it was not happening any more, the text messages passing between the parties demonstrate to the contrary.
The exercise of parental responsibility involves parties making decisions about major long term issues in relation to a child. Section 65DAC(2) of the Act requires that an order for equal shared parental responsibility requires those decisions to be made jointly and the parties are required to consult with the other party about the decision to be made and make a genuine effort to come to a joint decision. Whilst I am satisfied that the mother would attempt to do so, I am not satisfied that the father is capable of consulting with the mother in an appropriate manner. In all of the circumstances I am satisfied that it is not in the child’s best interests for her parents to have equal shared parental responsibility. I propose to accede to the mother’s application for sole parental responsibility for the child and will make orders in terms of her proposal that she seek the father’s views and keep him advised of any decision she makes.
Non - Denigration Order
The mother sought an order that the father be restrained from discussing or allowing anyone else to discuss these proceedings with the child, exposing the child to parental conflict and denigrating the mother in the hearing or presence of the child. Having regard to my findings as to the father’s conduct I am satisfied that I should make the order the mother seeks.
The Child’s Passport
The mother sought an order that the father do all acts and things and sign all documents necessary to obtain a current passport for the child and to ensure the child’s passport does not expire. The mother does not specify whether she is referring to an Australian passport or an Indian passport. She also sought orders that she hold the child’s passport.
In circumstances where I am proposing to make an order that the mother have sole parental responsibility for the child the orders the mother seeks may not be strictly necessary at least with respect to the child’s Australian passport. However, that being said in an excess of caution I propose to make the orders the mother seeks with respect to Australian and Indian passports for the child.
Discharge of Previous Orders
The orders the mother proposes include the discharge of the previous orders. However there is no evidence before me and neither party made any submissions with respect to any timeframe or what time the child should spend with each of them pending the child’s departure for India. On that basis although I propose to discharge the previous orders, I also propose to allow the parties the opportunity to address me with respect to the arrangements for the child pending her departure for India.
Orders Restraining the Parties from Removing the Child from the Commonwealth of Australia
In circumstances where I propose to accede to the mother’s application that she be permitted to relocate with the child to India it follows that I propose to discharge the orders restraining her from leaving the Commonwealth of Australia. That order will be discharged at midnight on the eve of the mother’s departure with the child for India.
Registration of Orders
It was part of the mother’s case that she would do whatever was required to either register the orders of this Court in the appropriate court in India or have similar orders made by consent by that Indian court. I am satisfied that I should make an order to that effect.
I certify that the preceding one hundred and fifty nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 27 February 2017.
Associate:
Date: 27 February 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Costs
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Injunction
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Procedural Fairness
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