Tavade & Padhi
[2023] FedCFamC2F 229
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tavade & Padhi [2023] FedCFamC2F 229
File number(s): PAC 5622 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 3 March 2023 Catchwords: FAMILY LAW – CHILDREN – Application in proceedings - Application for international travel – Best interests of child – Application dismissed Division: Division 2 Family Law Number of paragraphs: 48 Date of last submission/s: 23 February 2023 Date of hearing: 23 February 2023 Place: Parramatta Solicitor for the Applicant: Kalpaxis Legal Pty Ltd The Respondent Self-represented Solicitor for the Independent Children's Lawyer: Dignan & Hanrahan Solicitors & Attorneys ORDERS
PAC 5622 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PADHI
ApplicantAND: MR TAVADE
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
3 MARCH 2023
THE COURT ORDERS THAT:
1.The Application in Proceeding filed 12 October 2022 is dismissed.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g)Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth)), or to record a variation to the order pursuant to r 17.05Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth).Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tavade & Padhi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Obradovic
These are reasons for judgment in respect of an application by the mother to travel internationally (to Country B) with the parties’ only child for a period of two months. The application is opposed by the father on the basis that the mother is a flight risk.
To put the current application in perspective, it is important to understand a little about the procedural history of this matter.
On 14 December 2020, the Court made final parenting orders in respect of the parties’ only child X, born 2015. X did not spend time with the father in accordance with these final orders. In accordance with those orders, X was at present to be spending time with his father each alternate weekend and for half the school holidays.
On 20 April 2021, the Court dismissed the father’s application to place the child’s name on the Airport Watch List.
On 21 June 2022, the mother filed an Initiating Application seeking different and new parenting orders. She has also filed numerous interim applications.
In accordance with the (new) pathway for family law matters filed after 1 September 2021, the proceedings have come before the Court on 8 separate occasions before different registrars[1] (including twice for interim hearing) and now before a judge for interim hearing in respect of this application for international travel.
[1] Senior Judicial Registrars and Judicial Registrar
On 19 July 2022, the Court made orders (without suspending the final parenting orders of 14 December 2020):
[4] That until further order the child live with the mother.
(This was a final order made on 14 December 2020).
[5] That the father’s time with the child be reserved.
On 29 August 2022, the Court made the following orders (which do not appear on the face of the Court record to have been made on anything but a final basis, although this may have been the intention of the parties who sought that the orders be made by consent):
[1] Order 3 of the Orders of 14 December 2020 be suspended.
(This was the final order made on 14 December 2020 for the child’s time with the father during school term and school holidays)
[2] The child [X] born [2015] shall spend time with the father as follows:
a.For four occasions of supervised time for a period of up to two (2) hours each fortnight; and then
b.For four occasions of supervised time for a period of up to two (2) hours each week; and then
c. Following the conclusion of Order 2(b) from 8:00am to 3:00pm on each Saturday.
On 24 November 2022, the mother’s interim application that the child spend no time with the father was dismissed.
There remain orders in place for X to spend time with his father in accordance with orders of 29 August 2022, to spend time with his father on Father’s Day, religious celebrations and as such other times as agreed by the parties in accordance with Order 5 of final orders made on 14 December 2020, and to communicate with his father in accordance with the final orders of 14 December 2020.
X has not been spending time with his father as ordered by the Court. This is true of the final orders as well as the interim orders.
On 2 November 2022 the Court made an order pursuant to s.62G of the Family Law Act 1975 (Cth) (Act) for the preparation of a family report. Following its own enquiries, the Court understands that the interviews for the preparation of the report are to be conducted not before May 2023 and hopefully before the end of July 2023.
Why the mother wants to travel to Country B
The mother has travelled to Country B in the past, including with the child in 2018. Most recently she travelled in 2019 while leaving X in the care of his father.
The mother deposes to her father being very ill.
Her evidence discloses that her father has been very ill for a number of years, including in 2019 when she last travelled to Country B. It appears from the mother’s material that her father’s diagnoses have remained consistent since 2018/2019, that is, that there is nothing of a new or urgent nature since his diagnosis in 2018 and 2019. The latest letter from a Dr C, indicates “Patient was hospitalised in [late] 2022 for 3 weeks due to suspected coma. He has been recovered from the coma however his condition is still critical. We requires [sic] mental and emotional support from his family including his daughter and grandson to improve his health.”[2]
[2] Tender Bundle of Mother at 20
The mother further deposes that until October 2021, X would speak to his grandparents every other day via video call, however she has stopped initiating these calls as her father would start to cry upon seeing X, and she did not want to cause her father any further distress.
The mother deposes that X “continually” asks to see his grandfather and grandmother.[3]
[3] Affidavit of Mother filed 21 February 2023 at [30]
The mother further says that her father has difficulty speaking and sleeping, and that he is refusing to eat, and that he is very anxious and depressed. She says she knows these things because she has observed him on video with limited ability to speak and a cousin of hers has told her certain things.
In the mother’s affidavit, she further deposes that during a video call with his grandmother, X was asked when he was coming to see his grandfather.[4] This is not an appropriate question for a small child and particularly not this child in his current circumstances. It is no surprise that he is upset as the mother deposes.[5]
[4] Affidavit of Mother filed 21 February 2023 at [46]
[5] Affidavit of Mother filed 21 February 2023 at [47]
Why the mother says the father cannot look after X while she is away
X has been living with his mother since the parties’ separated on or around 1 April 2018.
For reasons which are unclear on the evidence before the Court in respect of the application for international travel, X has not been spending time with his father in accordance with court orders, including the final orders made in December 2020 before they were suspended in August 2022. X appears to have missed out on a having the opportunity of a relationship with his father.
It appears from the mother’s evidence that there was some reluctance by the mother to comply with the orders to deliver the child to the changeover location provided for in the final orders. Once again, the reason for this is not the subject of any evidence in the current application, except to say that the mother no longer lived there.
The last time X spent time with his father was, it appears in May 2022. The mother says “Since the incident [in mid] 2022 [it is unclear what the “incident” is said to have been], [X] has developed severe anxiety including headache, fever, he does not have control over his bowel and wet his pants regularly and soils in his pants from time to time, shouting, banging his head, hitting his head, having nightmares sobbing and crying in the middle of the night.”[6] On the mother’s account the child seems to be severely disturbed and it appears that the mother attributes the entirety of the child’s behaviour on the father.
[6] Affidavit of Mother filed 21 February 2023 at [11]
The reports of the supervisor for the time which was to occur on 17 September 2022 and 1 October 2022, indicate that X was reluctant to spend time with the father, saying that “he said he will kill my Mum so he might kill me too” and that he was scared and wanted to stay with his mum. More concerningly though, X said to his mother that “if you make me go, I’ll cut my neck with a knife”.[7]
[7] Affidavit of Mother filed 21 February 2023 at annexure A
The mother submitted to the Court that it would not be safe for X to stay with his father while she travelled to Country B given X’s presentation when he is due to spend time with the father, including most recently in September and October 2022.
The mother’s and X’s current circumstances
The mother is an Australian citizen and she has been living in Australia since 2007. It appears that the mother has permission for travel to Country B from the Country B authorities, but that she may not be a citizen of Country B.
The mother is not in paid employment and has not been in paid employment for some time.
The mother does not own any real property in Australia and she is currently living with X in rental premises. Her lease agreement is not before the Court.
The mother has had to borrow money from a friend in order to be able to fund her proposed travel. She does not appear to have any savings.
The mother does not offer any surety.
There is no evidence that the mother has any family in Australia. The mother’s immediate family is in Country B.
X is currently in Year 2 at C School.
The mother proposes that she travel with X from early to mid-2023, although these dates, according to the mother are not set in stone. On her current proposed dates, X would miss out a significant portion of term 2 of school, which is from 24 April to 30 June 2023.[8]
[8] NSW Government ‘Education: NSW public school term dates’ >
The mother proposes that she access the “learning from home packages” on the Department of Education website. She does not propose to speak to X’s teachers as to what he will be learning in class, nor does she propose to liaise with the teachers to ensure that his learning is not detrimentally affected.
X does not currently have an Australian passport and the mother proposes that she be the only person with parental responsibility for the issue of a passport.
DETERMINATION
Initially the mother sought to travel from late 2022 to early 2023. Her application was supported at the time it was filed, by an affidavit that relied on very similar medical evidence as is presently before the Court. There is nothing to indicate that the mother’s critically ill father has in any way deteriorated; if anything, he seems to be doing better.
There is nothing stopping the mother from travelling to Country B, except that she would like X to travel with her and she does not want to leave him in the father’s care.
Had the final orders been complied with, X would have been spending significant and substantial time with his father by now, so much so that it might have been quite appropriate for the mother to travel to Country B for period of time while leaving him in his father’s care.
The mother states that her reason for travel is so that “[X] and I can visit my father together in [Country B], to provide emotional support to my father.”[9]
[9] Affidavit of Mother filed 21 February 2023 at [48]
It is not appropriate for anyone to rely on a 6 year old child for emotional support. Neither of the maternal grandparents should be doing this, nor should the mother be encouraging it, as she appears to be through her application for international travel.
The mother’s application is not about the child’s best interests, it appears to be an application brought in the maternal grandfather’s best interest.
The Court understands that the mother wants to see her parents and her family and that she considers it is important for X to also spend time with them now as he might not be able to do so in the future. However, it is likely to be highly distressing to a young boy to be watching his very ill and confused grandfather, whom he has not seen since he was 3 years old.
Country B is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).[10] The father has indicated that he is not a citizen of Country B and that he has, on recent application, been denied a visa. He is therefore not able to travel to Country B.
[10] Convention on the Civil Aspects of International Child Abduction, open for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983)
As noted above, the mother has no familial or financial ties to Australia. She is unable to offer any surety and indeed she is not able to fund the trip herself, but has to rely on friends for financial support.
The relationship between the parties appears to be a high conflict relationship. X is not spending time with his father. The mother does not appear to be supportive of the child’s relationship with the father, for her own reasons. Interim orders remain in place, and the mother’s application for no time has been dismissed.
A Family Report has been ordered and it is possible that the mother’s travel plans could potentially delay the preparation of the Family Report, particularly as her proposed travel dates are, according to her, not set in stone. The parties have yet to be invited for interviews.
While there may be some positive aspects for X if he was to travel to Country B to visit his maternal family, in circumstances where:
(a)X will miss out on a significant portion of the term;
(b)the mother has not made enquiries and/or arrangements with X’s teachers to ensure that he is up to date with his learning;
(c)the mother’s ties to Australia are very tenuous;
(d)the proposed country of travel is not a Hague Convention country; and
(e)the trip is for the purposes of providing emotional support to the maternal grandfather,
in all of the circumstances the Court is not persuaded that the proposed travel is in the child’s best interest.
For those reasons, the application for international travel is dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 3 March 2023
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