VERMA & PATEL

[2015] FCCA 600

FEDERAL CIRCUIT COURT OF AUSTRALIA

VERMA & PATEL [2015] FCCA 600

Catchwords:
FAMILY LAW – Whether mother should have sole responsibility for education, religious and cultural upbringing and health − where the parties cannot communicate  ̶  whether mother’s cultural belief should prevent child having overnight time with father.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 65DAA

Cases cited:
Chappell & Chappell (2008) FLC 93–382

Applicant: MR VERMA

Respondent: MS PATEL

File Number: MLC 6101 of 2012

Judgment of: Judge Phipps

Hearing dates: 11 & 12 March 2015

Date of Last Submission: 12 March 2015

Delivered at: Dandenong

Delivered on: 18 March 2015

REPRESENTATION

Counsel for the Applicant: Dr Karunadasa

Solicitors for the Applicant: Tai Lawyers

Counsel for the Respondent: Mr Hoult

Solicitors for the Respondent: Westminster Lawyers

ORDERS

1. That parental responsibility is allocated between the father and the mother for the child X born (omitted) 2011 as follows:

   (a)the parties have shared parental responsibility for the child in relation to major long-term issues about:

   (i)the child’s name;

   (ii)changes to the child’s living arrangements that make it significantly more difficult for her to spend time with the father.

   (b)the mother have sole parental responsibility for the child in relation to all other major long-term issues including:

   (i)the child’s education (both current and future);

   (ii)the child’s religious and cultural upbringing; and

   (iii)the child’s health.

2. That for the purposes of exercising sole parental responsibility pursuant to paragraph 1(b);

   (i)the mother consult with the father with regard to any such issue;

   (ii)the parties make a genuine effort to come to a joint decision about any such issue; and

   (iii)if no agreement is reached between the parties, then within 14 days the mother may make the final decision and inform the father in writing of the decision about any such issue.

3. That the said child live with the mother.

4. That the child spend time and communicate with the father as follows:

   (a)until the child’s fourth birthday:

   (i)every Wednesday from 4.00pm to 7.00pm;

   (ii)every Sunday from 11.00am to 7.00pm.

   (b)from the child’s fourth birthday until the commencement of term two of the child’s first year at school;

   (i)every Wednesday from 4.00pm to 7.00pm;

   (ii)each weekend from 5.00pm Saturday until Sunday at 7.00pm.

   (c)from the commencement of term two of the child’s first year at school;

   (i)each alternate week from the end of school Wednesday until the commencement of school Thursday;

   (ii)each alternate weekend from end of school Friday until the commencement of school Monday;

   (iii)half of all gazetted Victorian school holidays, including summer holidays, as agreed and if not agreed the first half in even numbered years and the second half in odd numbered years.

   (d)on the child’s birthday and the father’s birthday if not a spend time day unless otherwise agreed from 3.30pm to 7.00pm on a kindergarten/school day and from 11.00am until 2.00pm on a non-school/kindergarten day;

   (e)on Father’s Day, if not a spend time day, from 11.00am to 4.00pm;

   (f)by telephone and electronic communication at all reasonable times.

5. That the child’s time with the father shall be suspended as follows:

   (a)on the child’s birthday and the mother’s birthday, unless otherwise agreed, from 3.30pm to 7.00pm on a kindergarten/school day and from 11.00am until 2.00pm on a non-school/kindergarten day;

   (b)on Mother’s Day from 11 00am.

6. That for the purpose of the child spending time with the father, unless otherwise agreed, change overs take place as follows:

   (a)at the (omitted) Shopping Centre when the father is collecting the child;

   (b)at the McDonald’s Restaurant in (omitted) when the father is returning the child;

7. That the mother provide the father at least 28 days notice in writing or by email or other appropriate electronic communication of her intention to take the child out of the Commonwealth of Australia and provide a full itinerary including dates and means of travel and the address at which the child will be staying and a telephone number or other electronic address at which the child may communicate with the father.

8. That the father provide the mother with at least 28 days notice in writing or by other appropriate electronic communication if he is travelling overseas and therefore unable to spend time with the child pursuant to these orders.

9. Each party is restrained by injunction from;

   (a)denigrating the other party to or in the presence of the child or allowing any other person to do so;

   (b)discussing family law proceedings to or in the presence of the child or allowing any other person to do so.

10. That the father is restrained by injunction from permitting his parents or his wife to be within hearing distance of the mother at changeovers.

11. That the mother is restrained by injunction from being within hearing distance of the father’s parents or wife at changeovers.

12. That each party keep the other informed at all times of their residential address and telephone numbers and email addresses at which they may be contacted.

13. That the mother keep the father informed of the names and addresses of any treating medical or other allied health practitioner, including psychologists and counsellors who treat the child and authorise those practitioners to provide the father with all information that they are lawfully able to provide to the parents about the child.

14. That each party inform the other as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.

IT IS NOTED that publication of this judgment under the pseudonym Verma & Patel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 6101 of 2012

MR VERMA

Applicant

And

MS PATEL

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Verma, the father and Ms Patel, the mother have one child X born (omitted), 2011.  The child has lived with the mother since the parties separated on 13 September, 2013 and the parties agree that this should continue.  The issues between them are:

   a)whether they should have equal shared parental responsibility or whether the wife should have sole responsibility for education, religious and cultural upbringing and health;

   b)whether the father should have overnight time with the child;

   c)where changeover should be affected.

The father’s proposal

1. The father proposes that the parties have equal shared parental responsibility for the child and the child live with the mother.  His proposal for the child spending time with him follow the recommendations in the family report.  This was prepared by Dr O dated 9 June 2014.  She recommends the child spend time with the father as follows:

   a)every Wednesday 4.00pm to 7.00pm;

   b)each Sunday 11.00am to 7.00pm;

   c)that provision be made for special occasions, birthdays and holidays as detailed in the husband’s application;

   d)at such time as agreed between the parties or when the child reaches the age of four years the time be extended to include overnight time.  This could include Saturday from 5.00pm until Sunday at 7.00pm or Sunday 11.00am until Monday morning;

   e)At the commencement of term two of the first year of school

   i)each alternate week from end of school Wednesday till commencement of school Thursday;

   ii)each alternate weekend from end of school Friday till commencement of school Monday;

   iii)liberal phone contact when the child is not in his care;

   iv)half gazetted Victorian school holidays.

2. Dr O recommends that for a short period of time changeover be conducted at a supervised contact centre and that the parties provide each other with an email address and both parties undertake to communicate at minimum on a weekly basis regarding their time and activity with the child.

3. In her oral evidence Dr O said overnight time should be once a fortnight but I consider she was referring to the alternate weekends and not the intermediate provision of one overnight between the child turning four and the commencement of term two of the first year of school.

The mother’s proposal

1. Parental responsibility is to be allocated between the father and the mother for the child as follows:

   a)the parties will have shared parental responsibility for the child in relation to major long-term issues about:

   i)the child’s name;

   ii)changes to the child’s living arrangements that make it significantly more difficult for her to spend time with the father.

   b)The mother will have sole parental responsibility for the child in relation to all other major long-term issues including:

   i)the child’s education (both current and future);

   ii)the child’s religious and cultural upbringing; and

   iii)the child’s health.

2. For the purposes of exercising sole parental responsibility pursuant to paragraph 1(b);

   i)the mother will consult with the father with regard to any such issue;

   ii)the parties will make a genuine effort to come to a joint decision about any such issue; and

   iii)if no agreement is reached between the parties, then within 14 days the mother will make the final decision and inform the father in writing of the decision about any such issue.

3. The child live with the mother.

4. The child spend time with the father as follows:

   a)until the child commences primary school;

   i)from 4.00pm until 7.00pm each Wednesday;

   ii)from 11.30am until 4.30pm each Sunday;

   b)following the child’s commencement at primary school;

   i)from 4.00pm until 8.00pm each Wednesday; and

   ii)each alternate weekend from 12.00pm until 8.00pm on Sunday;

   i)for one week in all school holidays such time to occur between 12.00pm and 8.00pm each day and such time not to include overnight time.

   c)On the child’s birthday as follows;

   i)between 3.30pm and 7.00pm on a kindergarten/school day; and

   ii)ii) between 11.00am and 2.00pm on a non-school day.

   d)Such other times as agreed between the parties in writing.

5. Both parties have telephone, email, text message and Skype communication with the child at all reasonable times and the parties do all things necessary to facilitate that communication.

6. All change overs occur at;

   a)the (omitted) Shopping Centre when the father is collecting the child for time;

   b)the McDonald’s Restaurant in (omitted) when the father is returning the child to the mother’s care; or

   c)such other location as agreed between the parties in writing.

7. The father’s weekend time is to be suspended upon the provision of at least two weeks written notice if the child has birthday parties during the father’s time with such suspension to occur no more than twice per month and the father in lieu will spend time with the child on the remaining weekend day.

8. The father and/or his servants or agents be and are hereby restrained by injunction from;

   a)distributing or disseminating information or photographs of the child to a third party without the mother’s written agreement;

   b)allowing or causing his parents, or either of them, and/or his wife to attend changeover;

   c)allowing or causing his wife to attend changeover;

   d)allowing or causing his parents, or either of them, and/or his wife to spend unsupervised time with the child; and

   e)denigrating the mother.

9. The proposal then has provision for information about residential addresses and telephones, treating medical practitioners and information about medical conditions.  There is a proposal for restraining the mother from removing the child from the Commonwealth of Australia without providing the father at least 28 days’ notice and a provision for the father to provide the mother with 28 days’ notice if he is travelling overseas and unable to spend time with the child or someone is staying at his residence for a period in excess of two continuous weeks.

Background

1. The mother was born on (omitted) 1981 in India.  She is aged 33 and does not have paid employment.  She is engaged in home duties.  She says she is in good health apart from the stress arising from the proceedings.  The father was born on (omitted) 1973 in India and is aged 41.  He is employed by (employer omitted) as an (occupation omitted).  Both parties have remarried following their separation and divorce.  The mother and her husband have one child together aged two years old.  The father married in India about six months ago.  His wife currently spends time in Australia for three month periods on a visitor’s visa.

2. The parties were married and commenced cohabitation on (omitted) 2004 in India.  They separated on 13 September 2011 when the mother left the former matrimonial home with the child.  They were divorced on 30 October 2012.

3. Following separation the father saw the child on three occasions until 20 January 2012.  The father commenced proceedings in the Family Court of Australia on 6 July 2012 and following a family consultant’s report he commenced seeing the child again in October 2012.  Final property orders were made by consent in that proceeding and it was then dismissed on 31 May 2013 following the parties entering into a parenting plan on 21 May 2013.  The parenting plan, so far as relevant, provided that the father spend time with the child as follows:

   a)for the period 5 June to 10 August 2013:

   i)each Wednesday between 2.00pm and 6.00pm with that time to occur at the maternal grandparents residence (being the mother’s parents) and that the mother also be at liberty to attend;

   ii)each Sunday between 12.00pm and 5.00pm with that time to occur at the father’s residence.  The mother’s parents are to be in attendance at this time and the mother is to collect and deliver the child to the maternal grandparents’ residence.

   b)for the period 11 August 2013 to 10 August 2014:

   i)each Wednesday, between 2.00pm and 6.00pm at the father’s residence without supervision;

   ii)each Sunday between 12.00pm and 5.00pm at the father’s residence without supervision;

   iii)The time in (preceding subparagraph) is to be extended to 6.00pm in the summer.

   c)on special occasions as follows without supervision;

   i)between 12.00pm and 6.00pm on Sunday (omitted) 2013 for the child’s birthday (which is on (omitted)) and such equivalent day for each year thereafter.

4. The parenting plan lasted until (omitted) 2013.  This was the day for the child to spend time with the father for the child’s birthday.  The father maintained that this was the first day of unsupervised time while the mother maintained that the time should take place at the grandparents’ residence.  The father took the child to his residence and following this the mother did not provide the child for time under the parenting plan.

5. The father commenced this application in the Federal Circuit Court of Australia on 16 September 2013.  An order on 4 November 2013 provided for the child to spend time with the father, unsupervised each Wednesday from 4.00pm to 7.00pm and each Sunday from 11.30am to 4.30pm.  These orders have remained in place until this final hearing.

Best interests

1. The best interests of the child are the paramount consideration in making parenting orders s.60CA of the Family Law Act 1975 (Cth). The best interest considerations are contained in s.60CC.

2. An order for equal shared parental responsibility requires the parties to consult and endeavour to reach agreement about major long-term matters.  If there is likely to be deadlock the best interests consideration of whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child is relevant.

3. The parties do not communicate.  They do not talk at changeover . The father in his oral evidence said that communication should be through solicitors.

4. The father considers that the mother has a blind belief in (omitted) an Indian black magic specialist.  He considers she is mentally unwell.

5. Following an incident at changeover in January 2015 the father has commenced family violence intervention order proceedings against the mother which are listed to be heard in the State Magistrates Court  of Victoria shortly after this hearing.

6. When these matters were put to Dr O she acknowledged that it would be very difficult for the parties to communicate.

7. In Chappell & Chappell (2008) FLC 93–382 the Full Court of the Family Court of Australia said at [75]:

   In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.

8. The Full Court was referring to rebuttal of the presumption but the passage above shows the relevance of the best interests consideration whether it would be preferable to make the order least likely to lead to the institution of further proceedings.

9. The prospects of the parties being able to communicate and reach agreement about major long-term matters are slim.  An order requiring the parties to consult and reach agreement when they are not capable of doing so is not in the child’s best interests.  I appreciate that it is a serious thing to order that one party only ultimately have the sole responsibility for making important decisions about a child’s life.  In this case the mother’s proposal better serves the child’s interests than the father’s proposal of equal shared parental responsibility.

10. The best interest considerations relevant to the dispute about the amount of time the child should spend with the father are:

    a)the first of the primary considerations the benefit to the child of a meaningful relationship with both of the child’s parents;

    b)the additional considerations of:

    i)the nature of the relationship of the child with each of the child’s parents;

    ii)the capacity of each of the child’s parents to provide for the needs of the child including emotional and intellectual needs;

    iii)the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of the child and of either of the child’s parents and any of the other characteristics of the child that the court thinks are relevant.

11. The mother acknowledges the need for the child to have a relationship with her father.  She considers that there are difficulties in the relationship between the child and the father  The mother said to Dr O that the difficulties had been due to the father not applying himself to time with the child and as a result they did not have a strong bond.  The mother maintained that the father had refused to see the child not that she had in any way prevented him from doing so.  The father alleges the opposite.

1. Dr O observed the child as playful and interactive with her parents.  The mother said to Dr O that there were difficulties in separation of the child during handover.  The mother described the child as being distressed and reluctant to leave, something the mother repeated in evidence.  The father stated these difficulties had occurred but maintains that the child settles quickly and is easily distracted.

2. Both parties told Dr O that overnight time in the future is in the child’s best interests.  The mother believed that developmentally it was too early for the child.  The father agreed that such arrangements are a future goal.

3. Dr O says

   Unequivocally there is a need and benefit for (the child) to have a strong bond and relationship with Mr Verma and this can only be achieved by spending time with him and in a manner where he is able to parent independently.  This includes increasing time with him to include overnight time.

4. The mother is opposed to overnight time until some time quite significantly into the future, beyond what could be contemplated by current orders.  To a large degree this is based on a cultural argument.  She is Hindu Punjabi and the father is Hindu Murati.  She says that in her culture children, especially girls, do not spend overnight away from their mother until they are much older than the child is in this case.  She is supported by an affidavit from (omitted) the General Secretary of the Hindu Community Council of Victoria.  He was awarded Brahminical priestly status over 35 years ago and has been a student of the ancient Indian Hindu (Vedic) Scriptures over that period of time.  He was not available for cross examination and so his evidence must be seen in this context.

5. The husband disputes that this is a belief of Hindu Punjabi culture.  I accept that the mother considers that it is.  She is the child’s primary carer and so her beliefs are relevant to her relationship with the child and so the child’s best interests.  So far as considerations of cultures are concerned Dr O, when asked about this, said that if the parties had remained together they would have had to negotiate matters arising because of their different cultures.  She did not consider it a reason for affecting the child’s development of her relationship with the father.

6. The mother considers that the father does not know how to look after the child.  She considers that the father is unaware of the level of the child’s knowledge and understanding and that he is unaware of her development and educational needs and he has not asked about, or shown interest in these issues.  She alleges he has not shown any interest in matters such as the child’s hobbies, favourite foods and the nickname she has chosen for those foods.

7. The father on the other hand says that the child’s time with him goes well.

8. The significant evidence is that of Dr O.  Her view is summarised in the quotation above.  While the mother is more attuned to the child’s needs than the father this may be because of the limited amount of time the child has spent with the father.  More time will develop the father’s understanding of the child’s needs.

9. The mother’s cultural beliefs cannot override the benefit to the child of a meaningful relationship with her father.  The mother accepts that the child needs to have a relationship with the father and the expert evidence from Dr O is that this needs to include overnight time.  So far as the child’s background and culture is concerned her background and culture is that of both parents and so while the mother may consider that her culture says that the child should not be spending overnight time away from her the father’s culture is that a child can spend overnight away from the mother and should spend time with the father. The first of the primary considerations is the benefit to the child of a meaningful relationship with both parents, not just one parent.  One parent’s cultural background cannot stand in the way of a child’s meaningful relationship with a parent of another cultural background.

10. Some mention needs to be made of the consideration of family violence and family violence orders.  Each party has applied for family violence orders against the other and each party alleges family violence during the relationship.  The type of allegations made relate to the relationship between the parties.  None is alleged to have happened against the child and given the short time between the child’s birth and the parties’ separation the child can have had little exposure to the behaviour assuming that it happened.  The case presented by each party did not dwell on the family violence allegations.  They are in the affidavits but now have little relevance to the important consideration of the child’s relationship with each party.

11. The recommendation of Dr O is for overnight time to commence one night at a time once the child is four and then proceed to 2 nights overnight on alternate weekends commencing with the second term of the child’s schooling.  Once the mother’s consideration about cultural issues is put into the context of the best interests considerations overall the recommendation presents as an arrangement which will not affect the child’s relationship with her mother as the primary carer and will promote a relationship with her father.

12. Mention needs to be made of each party’s spouse.  Neither gave evidence.  The wife proposes orders that the father be restrained from:

    a)allowing or causing his parents, or either of them, and/or his wife to attend changeover;

    b)allowing or causing his wife to attend changeover;

    c)allowing or causing his parents, or either of them, and/or his wife to spend unsupervised time with the child.

13. Other than that the father’s parents and his wife are in the father’s camp, so to speak, I can see nothing in the evidence which justifies an order that prevents grandparents or stepmother having unsupervised time with the child.  The mother claims that the presence of the father’s parents and his wife at changeover have been a source of conflict.  The appropriate safeguard is to order that the father be restrained from having his wife or parents within hearing distance at changeover.

14. Since I am not making an order for equal shared parental responsibility I do not have to consider the requirements of reasonable practicability in s.65DAA.

15. The issue about where the changeover point is is not so significant.  Changeover has been taking place outside the maternal grandparents home.  The submission put on behalf of the father was that the changeover point should mean that each party is doing something like an equal amount of travelling.  The mother’s proposal in this respect would seem to favour her but not to a great degree.  Given that she has the greater care of the child for the father to do a greater amount of the driving is reasonable in the circumstances.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Associate: 

Date:  18 March 2015