Yalpat and Yalpat

[2019] FamCA 102

FAMILY COURT OF AUSTRALIA

YALPAT & YALPAT [2019] FamCA 102

FAMILY LAW – CHILDREN – With whom a child spends time – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Yalpat

RESPONDENT: Ms Yalpat

FILE NUMBER: CAC 1305 of 2018

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Infinity Legal

Orders

Until further order, and unless otherwise agreed in writing, including writing by text message:

1. X, born … 2017, shall spend time with the Father as follows:

   (a)       On Sunday 10 February 2019 from 11am until 1pm;

   (b)       Thereafter:

   (i)Each Saturday and Sunday from 11am until 1pm;

   (ii)Wednesday from 5pm to 6:30pm.

   (c)The handover location should be as agreed between the parties and failing agreement shall be outside the post office on the corner of D Street and E Street, Suburb F.

2. The matter is listed for further interim hearing of the Mother’s Application in a Case, at 11am on 19 March 2019, as it relates to orders for the protection of the Mother and child support and in relation to further orders sought by the parties relating to care arrangements for the child.

3. If a party seeks to pursue different orders to those above regarding the time the child is to spend with the Father on the next occasion then that party is to file and serve an Application in a Case 14 days before that date, along with any affidavit material to be relied upon for that purpose. 

4. The mother is directed within 21 days of today’s date to file and serve upon the Father at his Australian address her initiating application and the affidavit that was filed with that translated into the Country B language.

5. I direct that an interpreter in the Country B language be available for the interim hearing of this matter listed on 19 March 2019 at 11am and that if practically possible that interpreter be arranged to attend the Courtroom in person rather than by telephone. 

IT IS NOTED THAT

1. While an attendance by telephone by the interpreter may be sufficient an attendance in person is preferred in this instance due to the complexity of the issues and the need to ensure that the respondent fully comprehends the court proceedings and is able to adequately communicate to the Court. 

IT IS FURTHER ORDERED THAT

1. I direct that the Registrar of the Family Court of Australia promptly send to the father by e-mail and post to the address he has provided, these orders. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yalpat & Yalpat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1305 of 2018

Mr Yalpat

Applicant

And

Ms Yalpat

Respondent

REASONS FOR JUDGMENT

1. In this matter the interim hearing primarily concerns the care arrangements for the X, , born in 2017, in the context of the Mother living in Australia with the child, the Father primarily having lived in Country B but now in Australia and the Father not having seen the child since May 2018. 

2. While in the proceedings the Father has raised issues regarding the initiating process not being served in accordance with the Hague Service Convention and now having orders from a Family Court of City G he still asks this Court to provide him with orders.  In relation to the service issue he simply asks that the documents be translated into the language of Country B as would be required under the Convention. 

3. Despite the Mother's complaint as to this expense, this was her obligation under the legislation and her Initiating Application and affidavit should be so translated. 

4. The Father seeks orders from this Court regarding the non-portable property in Australia, noting that the parties hold a real estate interest in Australia. 

5. The Father seeks orders so that he might see his son.  This final matter is the one that he says is the most urgent and it is also an outcome supported by the Mother, although they differ as to how it might occur, the Mother saying that it should be supervised. 

6. While previously the Mother alleged a concern that the Father might remove the child from Australia, based in large part upon the Father's unexpected arrival in Australia in May 2018, at the hearing this was not the primary thrust of her justification for supervision.  It is important to note that context.  The Father is not reported as having threatened to remove the child.  While the Father and the child are both Country B citizens, the child has no Country B passport.  The Father is a permanent resident in Australia and says he will stay if his able to spend time with the child.  The Father specifically disavows an intent to remove the child and appears to accept that the Mother is the primary carer.  The child was born in Australia and has lived in Australia for almost his whole life and is an Australian citizen.  By virtue of orders previously made by the Court the child is on the Watch List and according to the operation of the Family Law Act with pending proceedings it is unlawful to remove him from Australia.  I also note that Country B has ratified the Hague Convention on Child Abduction. 

7. Those matters perhaps explain why the primary thrust for supervision on the Mother's part is due to firstly his age, being a little bit shy of two years old, and because the Father has had no contact with him whatsoever since 21 May 2018.  It is important to recite some of the history in relation to this matter then.

8. The child was born in 2017 and spent six months in Country B shortly after his birth.  In October 2017 the child and his Mother came to Australia.  In February 2018 the Father came to Australia, but in March 2018 the parties separated.  In April 2018 the Father returned to Country B and then in May 2018 the Father returned unexpectedly to Australia for a period of seven days.  He now explains that this was done because of the advice that he had received that he needed to travel to Australia because of his permanent residency application.  During that time that he was in Australia the Mother arranged a two-hour supervised visit, being supervised by a friend of the Mother’s.  The Father at about this time sent a number of messages to the Mother reinforcing his desire to see the child and the Mother sent him a picture of the child.  The Father then returned to Country B.  At around this time the Father made a demand for custody and for a relationship with the child.  The Mother then became concerned, it seems in hindsight, that his visit in May 2018 may have been an attempt on his part to remove the child or might demonstrate an intent on his part to remove the child.  The Father says that he has not been allowed to see the child since May 2018.  He returned to Australia again.  The Father says that on 20 August 2018 when in Australia he sought by the Mother's lawyers to see the child, especially on Father's Day which he says fell on 26 August 2018.  The Mother accepts that he made that request, but says that she was unaware of it until after Father's Day.  The Father also requested to see the child at his childcare centre.  The Mother accepts that he made that request, but said that the childcare centre refused to be involved.  The Father says that he sent a WhatsApp request to the Mother on 26 August to see the child.  The Father says that he was in Canberra for a period of two months and was not allowed to see the child, not even in a video call.  The Mother accepts that on 23 August 2018 the Father asked for a photograph of the child.  The Father alleges that what was sent was a photo of the child in the Mother's new partner's arms.  The Mother says that she enrolled in H Group, which is a supervision agency located in the ACT, on 27 August 2018.  There is no indication that the Father has taken any step to enrol at H Group. 

9. The Father then sought and obtained orders for paternity testing which have established that the child is his son.  The Father also told the Mother's lawyer not to correspond with him, which undoubtedly causes great difficulties in attempting to arrange things with the Father.  The Father is currently in Australia and has stated his intention to remain here if he is able to see the child.  He disclosed on the last occasion that his address is J Street, Suburb K in the ACT.  Without explanation he has not attended Court for the delivery of this judgment despite being notified by the email address that he provided to the Court. 

10. It should be noted that the Mother has been the primary carer of the child, both during and since the relationship, and that on the chronology that I have recited the Father has spent very little time with the child since October 2017 and none since May 2018.  I am provided with sparse facts on which to make an interim determination as to what is in the child’ best interests.  It seems common between the parties that the child should spend time with his Father, how is the question. 

11. The Mother seeks supervision because the Father has spent so little time with the child, but there is no indication that supervision is available, or when it might become available, or how it might become available.  She has made the alternate suggestion that in the interim there be video calls.  I note that the child is less than two years old. 

12. The Father in a non-specific manner seeks unsupervised time.  What orders should then be made in the child’ best interests?  In a case where there is little evidence of substance about the arrangements for the child, or about what arrangements could be made for the child, where there is a clear lack of communication between the parents, where there are unresolved family violence allegations, it is not appropriate to apply the presumption that there be an order for equally shared parental responsibility in these interim proceedings.  Nor is it in the child's interest at present, with such a chasm between the parents to require the cooperation that would be required by equally shared parental responsibility.  No order as to parental responsibility should be made at present. 

13. The child’ best interests in these proceedings, on limited evidence calls for particular consideration of only a number of the s 60CC considerations.  Importantly consideration is to be given to the benefits of meaningful relationship that the child might have with his Father.  Protection from harm caused by abuse or neglect or exposure to family violence does not appear to be presently prominent.  At best, the question may have been directed to removal.  As I have recited the Father does not appear to have any capacity to remove the child and says that he does not intend to. Orders have been made which prohibit such a removal. 

14. It is important to consider the nature of the relationship between the child and his parents.  It may easily be inferred that the child has a very important relationship with his Mother, he has a limited relationship with his Father and it may be accepted that the child may find it upsetting because his Father is unfamiliar with him if he is to spend time with the Father.  The Mother's evidence is silent as to what support has been given to maintaining the relationship between the child and his father during the time that the child has not seen the Father.  It is also important to consider the capacity of each of the parents to emotionally care for the child.  I do not have any adequate information about that particular matter.

15. It is important to consider the impact of change on the child.  Suddenly seeing his Father is a potential disruption and it may be upsetting for him and it is important to consider the practical difficulties of the child spending time with the Father.  The Mother alleges family violence, as does the Father.  The Father in his affidavit material has demonstrated clearly that he is upset with the Mother as to the circumstances of the end of the relationship.  The Mother is working full-time, which provide some practical impediments, so may be anticipated that there will be practical difficulties with handover.  If supervised time was to happen the practical difficulty is that it is unavailable and that there would be no time.  If there are to be handovers, it seems important that they take place in a public place given the difficulties that have emerged between the parties. 

16. Of these various factors the promotion of at least some relationship to allow the child to have the benefits of meaningful relationship with Father, which he does not have at present, outweighs the other problems.  However, because of those problems it calls for initially significantly time-limited periods between the child and his Father.  Unfortunately, it also calls for the matter’s prompt return for further consideration as to whether those time arrangements should be expanded, amended or reduced depending on the child’ is best interests. 

17. There is no evidence to suggest that the Father lacks a capacity to be able to look after the child for short periods of time.  I will return the matter for a potential further hearing on 19 March 2019, which is five weeks away.  That will enable the unresolved matters in the Mother's application to be heard and any amendments to the time that the child might spend with his Father to be dealt with.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 February 2019

Associate: 

Date:  28 February 2019