Uttara & Gopal (No 3)
[2024] FedCFamC2F 1255
•30 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Uttara & Gopal (No 3) [2024] FedCFamC2F 1255
File number(s): MLC 7677 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 30 August 2024 Catchwords: FAMILY LAW – Parenting – final orders – child live with mother – mother have sole decision making relating to health and education – father spend each alternate Saturday with child – further time between father and child including overnight time as agreed between parties – where the father changes his position during proceedings – father to enrol in a parenting program Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 2 Family Law Number of paragraphs: 26 Date of last submission/s: 30 August 2024 Date of hearing: 29 – 30 August 2024 Place: Melbourne The Applicant: In Person Counsel for the Respondent: Mr Turner Solicitor for the Respondent: RRR Lawyers 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:
30 AUGUST 2024
THE COURT ORDERS THAT:
1.The Respondent Mother, MS GOPAL (‘the Mother’) have sole decision-making responsibility for all long-term decisions relating to health and education, for the child X born in 2014 subject to the following:
(a)except in the case of an emergency, the Mother shall provide the Applicant Father, MR UTTARA (‘the Father’) with at least 30 days' notice, of any major long-term decision making issues arising in relation to X by email to his designated email address with the following information being included:
(i)the decision to be made;
(ii)any timeframe for such decision;
(iii)any professional or other information or consultation proposed; and
(iv)any provisional view that she has.
(b)the Mother shall invite the Father to express views and any proposal he wishes to put forward to the Mother, within 14 days; and
(c)the Mother shall genuinely consider any response of the Father and the Mother shall advise the Father in writing, as soon as practicable, of the decision taken.
2.X live with the Mother.
Spend time arrangements
3.X will spend time with the Father as follows:
(a)Commencing 31 August 2024 from 10.00am until 6.00pm each alternate Saturday.
(b)On the Father’s Day weekend, the time referred to in Order 3(a) be swapped and X spend time with the Father on Father’s Day between 10.00am to 6.00pm in lieu of the Saturday, closest to the Father’s day (except the 2024 Father’s Day time will occur on Saturday, 31 August 2024).
(c)Further time (including overnight time) as agreed in writing by the parties via text message or email.
4.Each parent do all acts and things to cause and ensure that both parents are authorised to obtain, from any school X may attend, copies of all school reports, school newsletters and school photographs and any other documents that parents are normally provided with, provided the Father is not informed directly or indirectly of the address of the Mother.
Changeover
5.Changeover is to occur at C Venue at D Street, Suburb E, VIC unless otherwise agreed by the parties via text message or email.
6.The parties communicate regarding spend time and changeover arrangements and X’s welfare by text message or email only.
Travel
7.Each party do all such acts and things and sign all necessary documents to maintain a valid passport for X and the cost of same is to be shared equally between the parties:
(a)the passport shall be held by the Mother and a copy provided to the Father;
(b)not less than six months prior to X’s passport reaching the expiry date, each of the parties is to do all acts and things and sign all documents necessary to ensure that the passport is renewed and that X has a valid passport at all times, with the costs of same to be shared equally between the parties;
(c)in the event that either of the parties fail to comply with sub-paragraphs (a) or (b), pursuant to section 11(1)(b) of the Australian Passports Act 2005, the complying party is hereby authorised and permitted to apply for, renew and receive an Australian passports for X;
8.In the event that the Mother wishes to travel overseas with X (at her own expense) the Mother inform the Father in writing at least thirty (30) days before any proposed travel and provide him with the following information:
(a)an itinerary for the proposed travel including dates of arrival and departure;
(b)details of any flights including flight numbers;
(c)details of where the Mother will be staying with X;
(d)a contact number that can be used to contact the Mother during the proposed travel; and
(e)the time of the travel be no more than 6 weeks in each calendar year.
G Program
9.The Father do all acts and things to enrol in, and complete, the ‘G Program’ as soon as practical and to provide the certificate of completion to the Mother’s Solicitor and to the Mother via email.
10.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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) 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. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
Background
In the matter of Uttara & Gopal, the matter came before me for a two-day trial, having previously been listed before me when a final hearing became an interim hearing. I refer to the previous decisions in this matter of 4 December 2023 and 29 August 2024. I will otherwise only give a skeletal outline of the circumstances.
Mr Uttara (‘the Father’) is 47 and Ms Gopal (‘the Mother’) is 36. The parties married and commenced cohabitation in 2013, and they separated in 2018, in circumstances of allegations of significant family violence. The parties were divorced in late 2019, and the Father commenced these proceedings in July of 2021.
The parties have a child, X, who will be 10 this year, who was born in 2014. The Father did not get to see X or X did not get to see his father from separation until during these proceedings. As a result of orders made, he spent supervised time with X.
In the meantime, there had been intervention orders made against him, which had lapsed, and, in regard to one court case, he was charged and pleaded guilty to an offence involving violence against the Mother. I do not have satisfactory evidence before me as to what that charge was and the precise details of it, but I am satisfied it was a charge relating to violent behaviour by the Father.
Supervised time
The supervised time reports indicated that X was happy enough to see his father, who unsurprisingly he did not know. The Father's perseverance and determination to pursue a relationship with his son, X, in what, from his perspective, were very difficult circumstances, is to be commended. The Mother's determination to look after X in a safe environment is also to be commended.
The Father was not entirely consistent in his attendances at the supervised contact centre. I am satisfied that the Father's inconsistent attendance was in part, or primarily, driven by his financial circumstances, of seeking to get ahead in the country which he has adopted as his own. I would rarely criticise someone for having a lack, relatively speaking, of financial resources, and needing to work to survive in a new country. I am satisfied that is what the Father has done. There are some unreliable aspects to the Father's evidence, as to just what his employment has been. However, overall, I am satisfied that he is very much committed to being involved in X's life, and that he wishes to support X in life.
Issues in dispute
Issue 1
The fundamental dispute between the parties comes down to three matters. First, whether the parents should have equal decision-making responsibility for long-term decisions for the child, or whether the Mother should have sole responsibility.
The Mother seeks sole decision-making responsibility, but with the additional conditions as drafted by her solicitor. They are a sensible way to ensure that the father is kept informed about significant developments in X's life. Those developments are likely to be only what secondary school he attends and ordinary everyday matters of that that nature. I am satisfied that the order proposed by the respondent mother is in X's best interests.
That is that the Father, save an emergency, would be consulted at least 30 days beforehand about the approaching decision that needs to be made. That the Mother would invite him to express any views that he has about the issue and respond within 14 days. Then she would genuinely consider his response, make the decision and advise him. All communication about those matters will be in email. And there will be no obligation upon the Father or the Mother to speak to one another about these matters, but they could if they choose.
It is common ground that X should live with his mother, and Mr Uttara has never sought to interfere with that. And he is to be commended for recognising the reality of that position.
Issue 2
The next dispute is what time the Father should spend with X. He is currently entitled to have 10.00am to 6.00pm each alternate Saturday, pursuant to the orders made on 4 December 2023. The Mother seeks that those orders continue in perpetuity. The Father had sought that that move to an overnight on the weekend, from Saturday morning to Sunday evening, and for half of school holidays. By the end of the case, after his cross-examination and in closing address, he changed his position to be that he did not press for time, if the mother did not agree and support that. He is to be commended for cutting his cloth to fit X's mother's view of the world.
He still hopes that X will be able to spend overnight time with him, and that would be practical and sensible if that is able to occur. I am satisfied that there should be an order to the effect that the time be as it is now, but with the additional order that any further or other time, including overnight time, should be as agreed between the Mother and the Father, and as agreed in text message or email.
Issue 3
The third matter that is in dispute between the parties is where changeover should be. The Mother does not wish the Father to know where she lives, and the Father does not seek to challenge or interfere with that choice of hers, nor do I.
It is common ground that it is somewhere in the suburbs, and about 30 minutes from C Venue where changeover has been occurring up to this time since the orders of 4 December 2023. The changeover is culturally appropriate for both parents, but personally irritating and impractical for both. The Mother has to travel about 30 minutes or so to get there, and the Father has to travel 55 minutes to an hour to get there. The Father makes the valid point that that means when he takes X back to his home, by the time he gets there, X has spent an hour and a half in the car in the morning, and then in the evening he spends an hour and a half in a motor car again. Roughly an hour with him and roughly half an hour with his mother.
In the circumstances of the very poor parental relationship, and the poor communication between the parties and, between the two of them, their capacity to not communicate and to misunderstand the position of the other, it means that everyday sensible and practical communication about matters such as working out a sensible place to meet between two households, is unable to occur.
I make this decision in this matter taking into account all of section 60CC of the Act.
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a)the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(iii) to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
Consent orders
(4)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
…
I am satisfied that the orders that I will make will promote the safety of X. I am also satisfied that the parents have a limited ability to communicate for X's benefit. However, I am impressed by the extent of the courteous communication between them by email, even when disagreeing. The Mother has communicated in courteous, sensible and civilised communications at all times. Even when irritated, the Father has communicated in a courteous manner. I am grateful to them for that, as that removes a very significant potential burden on X, of inevitably knowing that his parents communicate in a snippy, or worse, manner between them.
In all of the circumstances, I am satisfied that it is in X's interests that the changeover should occur, until it is agreed otherwise, where it has been happening, which is C Venue. It has the advantage that a little bit of the rich culture of the parents rubs off on X, by him being present at those changeovers. It has the disadvantage of there is potentially unnecessary travel for X on those occasions.
In the circumstances of the Father changing his position (genuinely and sensibly) to accommodate the Mother's feelings about what is in X's best interests, there ended up being little dispute between the parties. It is for that reason that I have shortened these reasons.
Extra findings
There is one matter, however, where it is necessary that I make some findings. I am satisfied that at or around separation, and in the time leading up to separation, there was family violence, where the Father was violent to the Wife. And, indeed, he has already pleaded guilty in the Magistrates Court to such an offence.
I am satisfied that the Father has gone to a lot of trouble to do what he can to make sure that he is involved in X's life, including doing the Men's Behaviour Change Program back in 2018, and he has also done the Tuning in to Kids parenting program.
However, from the way the evidence has unfolded in this case, including the Father's concentration on his joy that he gets from seeing X, as demonstrated by the communications about X’s birthday party, I am satisfied that it would be in the Father's interests to learn more about the effect of family violence.
Part of that involves learning more about how to think about the other parent and the child's perspective, apart from their own. I am satisfied it is in X's interest that the Father undertake the G Program.
That program assumes that the participants have committed violence, and I am satisfied that that has occurred in this case. The Father had a reluctance to participate in that program, once he learned that it was presumed that the participants had been violent. He felt that that was characterising himself as a criminal when, in fact, he sees himself as a normal dad who just wants to spend time and have a relationship with his son.
I am satisfied, in many aspects that the Father is a normal dad and has gone to a lot of trouble over a lot of years to maintain a relationship with X. I am satisfied that X will benefit developmentally and emotionally from having an ongoing close relationship with his Father. I am hoping that the parents will be able to have more confidence in the other, and that that will facilitate agreement of X being able to spend overnight time with his Father. However, that is no longer in dispute, and I am grateful to the parties for coming to that position.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 September 2024
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