Uttara & Gopal
[2023] FedCFamC2F 1622
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Uttara & Gopal [2023] FedCFamC2F 1622
File number(s): MLC 7677 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 4 December 2023 Catchwords: FAMILY LAW – interim parenting orders – part heard final hearing where parties did not contest that interim orders were in the child’s best interest – orders for progression in time for the Father – international travel – restriction on the father traveling at the same time as the mother and the child – second principle of section 69ZN that the court is to actively direct, control and manage the conduct of proceedings Legislation: Family Law Act 1975 (Cth) s 69ZN Division: Division 2 Family Law Number of paragraphs: 27 Date of hearing: 4 December 2023 Place: Melbourne Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Mr D. Robertson Solicitor for the Respondent: RRR Lawyers Table of Corrections 13 December 2023 First name of applicant on orders coversheet corrected. ORDERS
MLC 7677 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR UTTARA
Applicant
AND: MS GOPAL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.Day two of the Final Hearing listed before Judge O’Shannessy on 5 December 2023 be and is vacated.
2.The matter be listed for Mention before Judge O’Shannessy on 24 June 2024.
UNTIL FURTHER ORDER
3.Ms Gopal (“the Mother”) have sole parental responsibility for health and education issues relating to the child X born in 2014 (“the child”), and when the Mother is required to make a decision of a long-term nature, except in an emergency, she shall.
(a)Inform Mr Uttara (“the Father”) by email in a timely manner of her proposed decision; and
(b)Consider any courteous and timely reply from the Father about the proposed decision; and
(c)Make her decision in a timely manner; and
(d)Advise the Father of that decision, with the Mother to have the ultimate decision.
Travel
4.The Mother be and is permitted to travel to Country B for the purpose of a holiday for no longer than 30 days and is to provide to the Father, 7 days prior to leaving the country;
(a)The return ticket/s for herself and for the child;
(b)The dates she will travel;
(c)An itinerary of where she will be staying with child while in Country B; and
(d)IT IS NOTED that the Mother intends to travel to Country B from late 2023 until early 2024 subject to flight availability.
5.The Mother is to promptly advise the Father and the Court of the desired dates in which she is travelling to Country B for the purpose of Order 13 herein.
Passport
6.The Mother, Ms Gopal be and is authorised to do all acts and things to apply for and receive an Australian Passport for X born in 2014 without obtaining the consent of the child’s Father, Mr Uttara.
7.For the purpose of order 6 hereof, liberty is granted to the lawyers for the Mother, to provide a copy of these orders to the Department of Foreign Affairs and Trade.
Spend time arrangements
8.The child spend time with the Father as follows:
(a)Commencing Saturday 10 December 2023, on four occasions each Saturday from 10.00am until 2.00pm (‘the weekly occasions’);
(b)After those four weekly occasions have occurred, on four fortnightly occasions on alternate Saturdays commencing a fortnight after the last weekly occasion, from 10.00am until 4.00pm (‘the 6-hour occasions’); and
(c)Following the 6-hour occasions, commencing a fortnight after the last fortnightly occasion from 10.00am until 6.00pm every alternate Saturday.
9.Changeover is to occur at the C Venue, at D Street, Suburb E.
10.In the event the Mother travels to Country B with the child during the Father’s spend time arrangements, the Father’s time is to be suspended and then resume in the same pattern provided in these Orders as if the time had not been suspended.
11.In the event the Father wishes to travel to Country B upon the return of the Mother and the child to Australia, and the Father misses one or more sessions with the child, the spend time arrangement with the Father shall resume with one occasion of 4 hours as provided at Order 7(a) herein and then continue in the same pattern as provided in these Orders as if the time arrangement had not been interrupted.
12.The Mother is to provide the email address to the Father she proposes to be used concerning communications about the child on or before 4.00pm Thursday, 7 December 2023 and IT IS NOTED that the Father’s email address is already known to the Mother.
Father’s travel
13.Mr Uttara be and is hereby restrained by injunction from leaving or attempting to leave the Commonwealth of Australia from the date of these orders. This order ceases to have effect on 15 February 2024 and the Mother is directed to immediately inform the Court of her return from Country B, and upon her doing so, an order will be made in Chambers discharging this injunction and the following watchlist order.
14.The Court requests that the Australian Federal Police give effect to this order by placing the name of the Father on the Family Law Watch List in force at all points of international arrival and departure in the Commonwealth of Australia and maintain the Father’s name on the Family Law Watch List for the said period, until the Court orders its removal, or with the consent of all parties. This order ceases to have effect on 15 February 2024.
15.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
Family Report
16.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X born in 2014 attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of an updated family report (and if possible and practical to be undertaken by Ms F), such report to be released by 11 June 2024 and that the family report address:
(a)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the child and upon the child’s relationship with the Mother if the Court made orders as sought by the Father;
(d)the impact upon the child and upon child’s relationship with the Father if the Court made orders as sought by the Mother;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
17.Not later than 4.00 pm on 12 December 2023 the parties must provide their contact telephone numbers and email addresses to [email protected].
18.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
19.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
20.The Family Consultant shall be at liberty to inspect any material filed by the parties.
21.Leave is granted to each of the parties and the Independent Children’s Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
AND THE COURT NOTES THAT
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
In this matter the parents of X, who recently turned 9 years old, came before me for final hearing on 13 and 14 November 2023. Because of a difficulty securing a suitable interpreter for the Father, the proceedings could not proceed on 14 November and were adjourned to this judgment writing week that I have on the basis the matter could proceed today and tomorrow, Monday 4 and Tuesday 5 December 2023.
Mr Uttara is 45 years old (‘the Father’), and Ms Gopal is 34 years old (‘the Mother’). Both parties were born in Country B. The Father is a transport worker by occupation and the mother is a health care worker. The parties commenced cohabitation when they married in 2013, and in early 2018 they separated in very unhappy circumstances.
The parties applied to migrate to Australia separately. At the time of marriage, the Father had already been living in Australia and had commenced to try and obtain financial success and prosperity by working very hard in a new country. The parties married in Country B. Soon after the marriage, the father returned to Australia, and the mother remained in Country B and lived with the Father’s parents. X was born in 2014 in Country B. The Mother and X remained in Country B whilst the Father worked to advance the family financially in Australia.
In early 2016, the Mother joined the applicant in Australia, but X remained in Country B with the father's parents. The Mother says that she was forced to do this, and the Father says that this was a matter they agreed on. The extent to which cultural obligations, relative poverty and the desire to achieve financial success and prosperity in a new country as motivation for each party's activities remains in dispute.
About a year later, in 2017, the parents returned to Country B and were reunited with X. A couple of months later, the Father returned to Melbourne, he says, to attend to his financial obligations in Australia and the Mother went back to living with the Father’s parents.
In mid-2017, there was considerable trouble between the father's parents and the Mother in the property where the Mother and X had been living up until that time. The Mother went to stay temporarily with her parents in controversial circumstances. The Mother and X then travelled to Australia and joined the father in about mid-2017.
By early 2018, the parents’ relationship had deteriorated, and in early 2018, there was a bitter dispute between the parents. The Father has told me this day, and I accept, that he pushed the Mother on that occasion. His evidence before me was that she had "motivated" him to do so, and he accepted when I asked him that he had become angry with her. The parties then disagree about the immediate consequence of that and whether the Mother was rendered unconscious for a short period or not. The parties separated a couple of days later and have remained separated since. The parties separated when the police took out an intervention order on the Mother's behalf.
The Father did not see X again until some years later, after he had issued proceedings and sought orders that he spend time with X. On 6 December 2021, an interim order was made that the Father have eight supervised visits with X. The supervised visits occurred.
Later in the proceedings, there was an order for a child impact report. That child impact report contains the following:
26. [X] is 7 years of age and presents as a somewhat sensitive child who had some difficulty articulating his needs. It is likely that he has been impacted by his early years of instability and changes in living arrangements. …
27.[X] has likely believed he did not have a father for a substantial period of time before visitations commenced. It is likely going to take time for him to shift this understanding that he has a dad and to be able to slowly build a relationship with him. It is imperative that this is a slow and graduated process for [X] in consideration of his early disruptions to his relationship with his mother.
…
29. It was clear that [the Mother] was deeply committed to [X] and held her role as his protector very seriously. It was evident [the Mother] remained distressed from past events and expressed distrust as to [the Father’s] motives in re‑entering [X]’s life. Despite this, [the Mother] remained open to feedback regarding her son having a meaningful relationship with his father and stated she would be happy for this to occur, as long as [X] is safe. [the Mother] reported that very gradual increases in spend time and seeing that [X] feels secure and happy would allow her to feel comfortable with spend time increasing.
30. During the feedback meeting, [the Father] again articulated his strong desire for increased spend time with his son. He reported to be open and willing to negotiate time spend arrangement and presented an idealised view of co-parenting moving forward. [The Father] acknowledged his limited role in his son’s life to date and conceded that they would have to start from the beginning. This included small amounts of spend time such as a half, one or two days. [The Father] had difficulty taking personal accountability for events in the past and stated ‘I did wrong; she did wrong’. He expressed the view that he wanted to ‘forget the past’ and move forward.
…
33. Pending the outcome of the visitation reports, a cautious approach in this matter is recommended. This includes time spend proceeding at a slow pace as not to overwhelm [X] and not to trigger a sudden increase in anxiety with his mother. It is likely that both [X]’s and his mother’s anxiety would be exacerbated with spend time moving to being unsupervised. While this would not prevent time spend and a meaningful relationship being established between [X] and [the Father], it will be important that this is managed sensitively.
34. [The Mother] access ongoing support and counselling given the obvious distress triggered during the recent court proceedings. As [the Mother’s] emotional distress is likely impacting [X], it will be important she has access to support.
Later in the proceedings, a family report was prepared with the family being interviewed and observed in late June 2023. The family report contains the following:
52. [The Mother’s] cautious approach with regards to future spend time arrangements between [the Father] and [X] are appropriate, if it is true, that [the Father] has not regularly attended scheduled spend time arrangements, that is, two hours per fortnight. [The Mother] appears to need reassurance that [the Father] will be consistent, be able to parent appropriately and not place [X] at any risk whilst in his care. [The Mother] acknowledged that any progression of time particularly to unsupervised would be challenging for her. [The Mother] believed a period of supervised spend time is required to assist [X] further develop his relationship with [the Father]
…
58. [X] indicated that he likes living with his mother and that he listens to her. [X] stated he likes attending supervised spend time with his father and commented its “good seeing Dad”. When asked, [X] stated he would like to spend more time with his father.
…
62. As [the Father] entered the playroom [X] looked up from playing [video games] smiling at his father. [The Father] walked up and hugged [X] who responded with a somewhat restricted hug.
…
65. … At the end of the observation, [the Father] hugged [X] and then asked for a second hug to say ‘goodbye”. [X] responded to his father’s hug and did not necessarily reciprocate or embrace his father in the same manner.
…
73. … Although he stated at interview that he enjoys spending time with his father, the observations indicated [X] has a superficial relationship that would benefit from spending time together in a safe environment, free from family violence, to allow the father child bond to deepen. To support the development of this relationship, [the Father’s] participation in a program, such as, [G Program] would assist with his understanding of the impact of family violence on his relationship with [X].
…
81. [X] has expressed a wish to continue spending time with his father, as per the current arrangements and possibly increase his time spent with his father. The writer is of the opinion that [X] does not have the developmental maturity to fully understand the complex dynamics of the alleged abuse, the impact of the reported inconsistent time spent to date between him and his father. Hence, the writer recommends the Court place limited weight on his views and consideration be given to [X]’s expressed wish to want to spend more time with his father within their developing relationship and rebuilding of trust between them.
82. It appears [X] has begun to internalise and identify [the Father] as his father, referring to him as such during interview and [the Father’s] report that [X] called him “Dad” for the first time during most recent supervised visit. [X]’s relationship with his father is in its early stages of development in the context of fractured caregiving experiences with both parents in early childhood and not having had contact with [the Father] from age 3 years until approximately age 7 years, when supervised visits commenced. The writer did not have access to any supervisor reports. …
83. The challenge in this matter to finalise parenting arrangements is that [X]’s relationship with his father is at a very early and tenuous stage of development. Hence, the writer respectfully suggests that it is too premature to make orders for substantial time between [the Father] and [X]. … the superficial nature of the relationship noted during observations and [X]’s desire to spend more time with his father is indicative of early relationship repair.
…
RECOMMENDATIONS
Based on the information gathered in this assessment, the following is recommended:
91. [X] to continue living with [the Mother].
92. Consideration be given whether shared parental responsibility is viable … The Court may wish to consider [the Mother] having sole parental responsibility to ensure timely significant decisions regarding both children’s long term care, welfare and development are made for [X] in a timely manner.
93. That [the Father] have a further eight to ten supervised visits that could occur either weekly or fortnightly, for two to three hours each visit and the final two supervised visits be of four hour duration. A supervisor’s report would assist in determining [X]’s experience of the supervised visits. Spend time could then progress to unsupervised visits of four hours duration.
94. That [the Father] completes the [G Program].
…
100. That both parents complete a Parenting Orders Program.
101. Consideration be given to this report being made available to any professionals assisting the parties and [X].
[Emphasis added]
It is common ground that since the date of the family report writer's recommendation, the Father has undertaken a further nine or 10 supervised visits pursuant to the existing orders.
Following the release of the family report, the Father enrolled in the G Program. However, he told me, and I accept, that he did so because his solicitor (he was then represented) told him it would be a good thing to do. Exhibit F1 is part of publicly available information from the G Program website.
Further information from the G Program website that I will mark as the Court's exhibit C2 is the further information published 27 August 2019 that referred to the phrase, "from this, we work with them to improve the relationship they have with their children's mother, restoring the relationship with their children and become a child-focused parent". It became apparent from the publicly available information that G Program regards itself as a program for men who are violent. The Father does not regard himself as violent. When the information about the object of G Program included to improve the relationship that the parents have, via her counsel, the Mother advised me that not having had any relationship with the Father at all for some years, she did not wish to resume any sort of relationship at all with him. In those circumstances, the G Program was no longer pressed by the Mother. Because I am not making factual findings in what became an interim hearing, it remains a matter for the Father, at this point, whether he would benefit from undertaking the G Program.
Final hearing becomes interim hearing
The hearing before me proceeded as a final hearing, and the Father gave evidence. That took some time as I ascertained which parts of the fairly complex chronology of events that he agreed and disagreed about. Cross-examination had commenced and was only just started.
On the first day of the hearing of 13 November, pursuant to his obligation to the Court, the mother's counsel, Mr Robertson, raised the issue that one possible course open on the evidence was for interim orders to be made, notwithstanding that his client pressed for final orders. Having had the benefit of being able to reflect on the case since 14 November until today and following me raising with the Father a possibility of an interim order with X spending some not overnight but gradually increasing unsupervised time, the Father indicated that that was acceptable to him.
In those circumstances, applied the provisions of Subdivision B of Part VII of the Family Law Act 1975 (Cth) that are part of Division 12A, that is section 69ZN(4), which reads:
69ZN Principles for conducting child‑related proceedings
…
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Hence, during the morning of 4 December 2023 I asked to the parties to provide submissions in regard to the orders about X being interim orders and not final orders. Each party acquiesced in that suggestion and did not oppose it.
After some more time for reflection, it became common ground that X's time could, on an interim basis, move to unsupervised time of four hours; then, after a period, six hours; then, after a further period, 10 am to 6 pm. I note that the 10 am to 6 pm time was what the Mother had proposed in her outline of case after the Father had undertaken the men's behavioural change program that he was once enrolled in but no longer wishes to do and she no longer presses. Hence, the position of the unsupervised time evolved to a point of the parties agreeing or acquiescing in the suggestion that I made.
The Mother would prefer that the initial four visits be on a fortnightly basis, and I have explained that I am concerned about the progression of X's time with his father and the period in-between, and hence for the limited period of four weeks I have determined that that should be weekly.
I will order that the changeovers, for the purpose of the Father's time, will be at the C Venue at Suburb E. The time for the first four weeks will be from 10 am until 2 pm. There will be four occasions of four hours, then after four occasions of four hours, on the next Saturday, when the Mother returns to Australia from holidays, it will move to six hours, from 10 am to 4 pm. After a further eight weeks, the time will occur for four occasions of the 10 am until 4 pm, but fortnightly. It will then move until 10 am until 6 pm fortnightly.
The mother is to provide the Father with the email address she proposes to utilise for communication about X on or before 4 pm on Wednesday 6 December 2023, noting the Father's email address is known to the mother.
Sole parental responsibility on interim basis
Until further order the Mother will have sole parental responsibility for the major long-term issues of the child's education and health. Save an emergency, before making a decision about a major long-term issue, the Mother is to advise the Father by email of what her proposal is in a timely manner. In the event the Father responds courteously and in a timely manner, then the Mother is to consider the Father's statement or opinion and make the final decision (have the final say) and inform the Father promptly of that decision.
Hearing is part heard
Otherwise, I will order that there be an updated family report and I will otherwise fix the matter for mention before me on 24 June at 10 am. It is possible, but not certain, that the parties will be able to discuss with lawyers whether the matter can be resolved by agreement, which would be the best thing for X. I will fix the date for this hearing to continue as a part-heard matter, and I will regard the matter as part-heard.
Travel to Country B
The Mother intends to travel to Country B between late 2023 and early 2024. She is permitted to travel to Country B for the purpose of a holiday of no longer than 28 days and is to provide travel information to the Father 14 days before travel. She will be permitted to execute any document necessary to obtain a passport for X.
I am satisfied that the mother's ties to Australia are overwhelming, and that there is some, but very small, risk that she would not return to Australia. Both parents have sacrificed much to be able to live in Australia, and I accept the Mother's evidence given in the witness box that she cannot contemplate life without X or contemplate life living in Country B. She is an Australian citizen, has regular employment here and has permanent accommodation, and X is in grade 3, soon to go into grade 4 in school, and the proposed holiday time will fit into the long summer holidays of his schooling.
Today, the Father announced that he also intends to travel to Country B at the same time. The parents’ families do not live far apart. Although I am not making findings at this point, given the differing versions of the troubles between the families when the Mother and X were in Country B, I am satisfied there is the potential for much trouble if both parents and X are again in Country B at the same time. I am conscious of the hardship to the Father of him not being able to travel to Country B to visit family after a long absence. Balancing those matters, I will make an order that the Father be and is restrained from leaving the Commonwealth of Australia until after the Mother returns from her time overseas. If the Father and the Mother are in Country B at the same time there is a real possibility of trouble, which will not be in the best interest of X.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 4 December 2023
0
1