Visham & Parani
[2022] FedCFamC2F 826
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Visham & Parani [2022] FedCFamC2F 826
File number(s): MLC 3840 of 2020 Judgment of: JUDGE HARLAND Date of judgment: 19 May 2022 Catchwords: FAMILY LAW – undefended parenting hearing – family violence – father using proceedings to continue family violence Legislation: Family Law Act (1975) Cth pt VII, ss 60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA, 67Z Cases cited: Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] 240 CLR 461
Waterford & Waterford [2013] FamCA 33
Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 19 May 2022 Place: Melbourne Counsel for the Applicant: In person Counsel for the Respondent: No appearance Counsel for the Independent Children's Lawyer: Ms Bonney Solicitor for the Independent Children's Lawyer: Ebejer and Associates ORDERS
MLC 3840 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VISHAM
Applicant
AND: MR PARANI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
19 MAY 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the child X born in 2011 (“X”) with no obligation to keep the Respondent father informed of any matters relevant to X’s welfare and development.
3.X live with the Applicant mother.
4.X spend no time with the Respondent father.
5.The Applicant mother facilitate communication with the Respondent father at X’s request only.
6.The Applicant mother is authorised to apply for and receive an Australian passport for X without first obtaining the written consent of the Respondent father.
7.The Applicant mother be authorised to apply for and receive an Overseas Citizenship of India (OCI) for X without first obtaining the written consent of the Respondent father, and is authorised to provide a copy of these Orders to any Australian and Indian authority or government body for the purposes of obtaining the OCI.
8.X be permitted to leave the Commonwealth of Australia, notwithstanding that the consent of the father has not been obtained.
9.The Australian Federal Police remove the name of the child X born in 2011 from the airport watch list at all points of international arrival and departure in Australia.
10.The Respondent Father be hereby restrained by way of an injunction from making further application to place X on the airport watch list.
11.The Applicant mother is authorised to provide a copy of these orders to X’s school.
12.The Independent Children’s Lawyer is hereby discharged.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate in the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
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 Visham & Parani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The child in these proceedings, X was born in 2011. The Applicant mother commenced the current proceedings on 20 April 2020 seeking to vary the orders made by consent in 2018.
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Where there is harm, as there is in this case, the need to protect the child’s safety takes greater precedence than maintaining a meaningful relationship with both parents.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] 240 CLR 461, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time.
The Applicant mother says that their relationship was characterised by family violence in various forms, including physical but also coercive and controlling violence. The Respondent father has participated in the proceedings inconsistently. Initially he was legally represented and filed a response and affidavit. He also attended both the appointment with a family consultant for a child inclusive memorandum and the family report.
The Respondent father has not, however, filed any material since that first affidavit on 9 December 2020. There are various orders that he has not complied with, and he did not appear today. I am satisfied that the father had sufficient notice of today’s hearing, and was provided with adequate notice that final orders may be made in his absence. I am satisfied that, having considered the material, the Respondent father’s conduct during these proceedings has continued the form of coercive and controlling violence that he has subjected the mother to for years. I come to this view in light of what is outlined in the family report and what the father himself has said to various people. It is clear on the material that the Respondent father and his wife are keen to lay blame at the Applicant mother’s door, complaining that she was violent, that she was not committed, and that she was obstructive of his relationship with X.
It is very clear that the Respondent father has been unable or unwilling to show a commitment to X, since the parties separated. The orders made in 2018 provided for the parties to have equal shared parental responsibility and for the father to spend regular time with X on alternate weekends and other occasions. The orders also significantly provided for the parents to obtain both an Australian passport and an Overseas Citizenship of India, or OCI, for X. It is important to note that both parents have extended family in India and both are from India originally. It is quite clear from the consent orders that the parents and the Court thought it was in X’s best interests to be able to travel to India.
The Applicant mother sought the Respondent father’s cooperation in signing the OCI in 2018, in preparation of an overseas trip to India with X. Despite having consented to the Orders fairly recently, the father refused to cooperate. The Applicant mother made oral submissions explaining the benefits of obtaining an OCI, outlining the ability to move freely in and out of India without the need to apply for a visa. Given that the Applicant mother’s parents and extended family live in India, the ability to be able to travel at short notice without having to apply through visa processes is an important one.
Even without the OCI, the Applicant mother was able to obtain a visa for X to travel. The limitation for this however means having to apply for a visa for each trip and for only a limited time period. In the Respondent father’s only affidavit, he claims that the Applicant mother called him as she had lost X’s passport and that she knew he reported it to the Passport Office. I reject that evidence. It beggars belief that this scenario would have occurred. I note, that he suggests that the mother wanted to reconcile with him during that period. The Respondent father tries to paint a picture of the Applicant mother being jealous of him being in another relationship, however there is simply no credible basis or evidence to substantiate these statements.
On the balance of probabilities, the Respondent father’s conduct can be characterised as continuing controlling and coercive violence as demonstrated by cancelling X’s passport and using these proceedings. The mother gave brief oral evidence this morning, and it was certainly troubling to hear that after he was contacted by her to tell him that X had been stopped at the airport and was with security, and asking if he could collect her, he did not respond to those messages, but the next day was happy that it had occurred. The Applicant mother gave evidence that the father said to her that: “this is what I can do. I can stop you and X from seeing your family directly forever.”
This statement indicates a complete disregard for his daughter’s welfare. It should occur to a parent that putting a stop on a passport may lead to exactly what happened at the airport. That would have been traumatic and stressful for X. She would have been looking forward to a two-week holiday to India to see relatives who she knows from keeping in contact with them and also from family members coming to Australia, and her having been to India when she was little. To be removed from a plane by police, and then to be held in security as a young girl, is traumatic, frightening, and abusive. I do not think the father had any valid basis for his behaviour.
It does not appear from any of his material that he takes any responsibility for the non-existent state of his relationship with his daughter and what has occurred. Instead, the strong flavour throughout the family report is that he and his current wife are very keen to portray the father as the victim, being helpless to know what to do to restore his relationship with his daughter in the face of a vindictive, controlling mother. What is very clear is that X herself, based on her own experiences of her father, has decided that she does not want to see him because he is unsafe.
X is 11, whilst not decisive, it is important that the Court listens to her views and acknowledges them. It is unfortunate that the father has not listened to her views and acknowledged them. And, in fact, looking at the material, I have a sense that his inconsistent and somewhat sporadic engagement with his daughter has been more about maintaining a sense of control rather than genuine interest in her. I accept the mother’s evidence that the father soon after the 2018 orders were made found it too difficult to commit to that kind of spend-time-with arrangement and, in fact, would spend less frequent time, only a few hours at a time.
As a result, the Applicant mother has been solely responsible for all the parenting work. Often, of course, when parents are separated the other parent spending time allows a bit of a respite for the other parent. There is no respite from that. The father is also not paying child support. This is another significant aspect of parental responsibility. What is clear from the Applicant mother’s material is that she is very concerned in giving X the best opportunities that she can. She is working full time and is studying an advanced diploma in order to further her qualifications. In addition, she volunteers in local communities, and involves X in the local community and Indian culture, including dancing.
It is clear that X is a happy, settled girl, comfortable in her mother’s care and thriving, with plenty of connections in the community. I have no concerns about the mother either sending X or taking X to India and not returning. She has put significant effort into establishing a life and connections here. Whilst the father says that he is fearful of this occurring, he provides no evidence to that effect. In fact, both his comment to the mother in 2018 and his recent comments to the mother’s uncle demonstrates that this is a form of revenge and seeking to control the mother and his daughter.
There was an incident in 2020 which is the last time that X saw her father. The father attended the school and attempted to forcibly remove her from the school, with the principal intervening and not allowing the removal to happen. There was then an agreement for the father to spend a couple of hours with X for her birthday. However, the father then tried to slap X on the face. As things deteriorated, the father then sent X home to her mother with an unknown person very late at night, at approximately 1:00am. What is clear is that that was traumatic for X and she, understandably, did not feel safe.
The child-inclusive memorandum took place in March 2021, some months after that incident between the father and X. It is of some significance that the report writer when exploring this incident with the father notes that initially the father saw nothing wrong his behaviour, and that it took some prompting by her for him to be able to see from the child's perspective how that was a poor choice. What is clear is that X does not see her father as a safe person, and given her experiences, and in contrast to her experiences with her mother, she does not want to have a relationship with him.
Contrary to the father's assertions to the report writer, there is no evidence to suggest that the mother has influenced or coached X and that she is trying to prevent the relationship. In fact, the mother has enabled the relationship in the past despite the father's inconsistencies and resulting disappointments for X when he does not show up. The Applicant mother says, and I accept, that if X wants to reach out to her father, she will assist with that. It is most unfortunate for the father as he is missing out on a relationship with his daughter, but also for X in not having a positive father-figure in her life. It is unfortunate that the father has not taken on board any of the concerns raised in either the child-inclusive memorandum or the family report.
I note that there have also been attempts at supervised contact where X refused to see her father and the father complaining about the expense associated with those limited attempts. I note that the Department of Families, Fairness and Housing, provided a response pursuant to 67Z of the Family Law Act (1975) Cth to the Court noting that there had been seven previous reports about X, six of which closed intake and the other did not substantiate harm. The Department noted in that report consistently with X's wishes, that she not spend any time with her father, and that if the Court ordered any time with the Father, it should be supervised.
X has now been interviewed by two family consultants in these proceedings and has stated on these occasions that she does not wish to see her father. It is clear from her descriptions and her demeanour that her views were her own based on her own experience, and the thought of having to spend time with the father and seeing him in that process was distressing to her. The father has shown no insight into the impact of his behaviours on X and is quite clear in his reporting to the family consultants that he sees himself as a victim of the mother. The father fails to see how his conduct has a detrimental effect on his daughter, including his unwillingness or inability to be consistently involved in her life and showing a genuine interest in her.
Consequently, X has now not seen or communicated with her father since the incident of June 2020. The Respondent father provided the family consultant with various excuses as to why he had not been predictable and consistent in spending time with X. Both he and his wife made complaints about his lack of assistance in facilitating a relationship with her. The reality is that given that the father in both the child inclusive memorandum and the family report was unable to reflect on the impact of his own behaviour, actions and inactions on X, and how they had led to X's position, it is most unlikely that there will be any change in that position. Interim orders were made on 31 March 2021 requiring the father to complete the Tuning In To Kids course and a parenting orders program, both of which are designed to provide a parent with insight into the impact on children of these types of issues.
As I indicated before, the supervised time did not progress. The father complained about the cost and the distance. It is also apparent from the family report that the father had not gained any insight and his position had not changed. The father will need to do significant work including individual counselling to gain insight into the impact of his behaviours before it would be likely that X would want anything to do with him. He would have to demonstrate that he acknowledges her experiences and has made changes to his behaviour, unfortunately this seems unlikely.
The father has participated in these proceedings sufficiently to use Court resources in terms of the two expert reports and the appointment of an Independent Children's Lawyer, but has failed to meaningful engage in the proceedings The Respondent father has failed to file material, attend Court events and comply with orders such that my firm impression is that this was a way of keeping the mother involved in Court proceedings and continuing his coercive and controlling violence. It can be very difficult to identify this early in proceedings when proceedings are used in that form, but I am satisfied that that is what he is doing here.
It is troubling that the Respondent father has not responded to any correspondence from chambers in the lead-up to this hearing, nor after receiving correspondence from the Independent Children’s Lawyer. Rather, the Respondent father rang the Applicant mother's uncle in India and said that he was going to stop the mother and X from ever being able to go to India until 2029. The Respondent mother was informed about that call by her mother and then spoke to her uncle directly where he relayed that to her. Having heard this evidence, as discussed during the course of the hearing, in my view, the mother should have sole parental responsibility without any obligation to communicate to keep the father informed in any manner whatsoever. My concern is, that this would simply be another way for him to try and exert control and interfere.
The Respondent mother was willing to agree with that order as had been proposed by the Independent Children’s Lawyer, but that was before the Independent Children’s Lawyer became aware of that conversation and, indeed, the evidence causes me great concern that the father may attempt to place X on the Airport Watchlist again or attempt to interfere and prevent her from leaving Australia. In addition to removing X from the Airport Watchlist, I will also make an injunction restraining the Respondent father from making any further applications to place X on the Airport Watchlist, and for that purpose, the mother is able to provide a copy of these orders to the police. Chambers will send a copy of the orders to the police and, the Applicant mother should travel with these orders to prevent a repeat of what occurred before.
The mother had indicated that she was willing to facilitate X contacting her father if X expresses a wish to do so. Of course, it would have to be safe, and I suspect from looking at the material and hearing X's voice, X is unlikely to think it is going to be safe unless her father makes considerable personal changes.
The orders proposed by the Independent Children’s Lawyer had also anticipated or had provided for the father to complete the parenting orders program as referred to previously and provide evidence upon completion. Failing this, the Applicant father would be permitted to send letters and gifts. I think, having heard the evidence and considering the matter, I propose to make an order that the Respondent father spend no time with X. I do not propose to make orders that oblige the Applicant mother to communicate or contact him. I will simply note that the mother will, if X expresses a wish and it is safe to do so, assist X to contact her father.
In this case it would not be in X’s best interests for her parents to exercise equal shared parental responsibility. There is little point in ordering the Respondent father to do courses that he has already been ordered to do, and sending cards and gifts would be another way of him exerting control. One of the things that makes coercive and controlling family violence so insidious is that it is not always obvious to outsiders as messages can appear polite, but because of the parties' relationship history, it actually contains a veiled threat with the actual communication itself being triggering.
It is clear that the Applicant mother has sought counselling assistance for X in order to deal with her experiences and trauma arising out of family violence. Positively, X is now doing very well both in school and in the community and it is very clear that she feels safe, secure, and loved by her mother and cherishes her relationship with her. I have no concerns about the Applicant mother's attitude towards the responsibilities of parenthood. In fact, what is also of significant credit to her, which the father would not recognise, is that X is unaware of the proceedings surrounding her. It was clear at the report that she did not really know that there were court proceedings on foot, and this is not always an easy thing to do. This behaviour demonstrates child-focused parenting, and that is something that the father has failed to show.
I am confident that the Applicant mother will continue to provide for X's emotional, social, intellectual and physical needs. I am also satisfied that the Respondent father has not shown an understanding and appreciation of the responsibilities of parenthood, as parenthood involves duties and responsibilities to a young person. A young person has the right to enjoy relationships with their parents only if it is safe.
I am satisfied that these orders are in X's best interests, and I am satisfied that, as I had indicated earlier, that in addition to the order for the mother to be able to obtain a passport without the father's knowledge or consent, she should also be able to obtain an OCI without his knowledge or consent. Contrary to the father's position, there is much for X to gain from being able to travel to India and enjoy her culture and extended family in that environment and not be limited to when relatives can come to Australia and being involved with Indian communities here. So for these reasons I will make the orders as I have indicated with those amendments.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 19 May 2022
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