Zenere & Malik & Ors

[2018] FamCA 795

FAMILY COURT OF AUSTRALIA

ZENERE & MALIK AND ORS [2018] FamCA 795

FAMILY LAW – CHILDREN – Best Interests – Residence and Contact – Where there has been an expedited hearing due to significant circumstances – Where the mother has a limited life expectancy – Where the mother and maternal family live in New Zealand – Where the father and paternal family live in Australia – Where it is important that the child’s relationship with the maternal family is maintained – Where there has been significant involvement by both the maternal and paternal grandparents.

FAMILY LAW – CHILDREN – Religion - S60CC(3)(g) – Where the parties are able to agree on all issues other than religion – Where the mother holds significant concerns regarding the father’s religious practices – Where the role of the court is not to analyse a particular religion but rather to decide on the facts whether the adherence of a parent to a faith poses a risk to the child – Where the court should not make assumptions about religion without evidence – Where it is imperative that the court must balance the welfare of the child with the neutrality of the court as to different religious views and practices – Where the issue of religion does not pose a significant risk factor to the child – Where the child is able to have a connection through the maternal grandparents with their religious practice and also her Indian and New Zealand heritage – Where the father will ensure the child continues to be significantly involved with the maternal family – Where there are issues regarding the overseas travel  of the subject child to non-Hague countries.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the child will live with the father and the father will have sole parental responsibility with the consent of all parties.

Family Law Act 1975 (Cth) s 60CC

H & H (2003) 30 Fam LR 264

APPLICANT: Ms Zenere

FIRST RESPONDENT: Mr Malik

SECOND RESPONDENT:	Mr A Zenere
THIRD RESPONDENT:	Ms B Zenere
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW Sydney Central Family Law

FILE NUMBER: SYC 3938 of 2017

DATE DELIVERED: 27 September 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 24-27 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Lander & Rodgers (Sydney)

COUNSEL FOR THE FIRST RESPONDENT: Ms Mahony

SOLICITOR FOR THE FIRST RESPONDENT: Mahony Family Lawyers

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: Ms Kennedy

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS:	Lander & Rodgers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW – Sydney Central Family Law

Orders

1. All outstanding applications are dismissed.

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 Zenere & Malik and Anor 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 SYDNEY

FILE NUMBER: SYC 3938 of 2017

Ms Zenere

Applicant

And

Mr Malik

First Respondent

And

Mr A Zenere and Ms B Zenere
Second and Third Respondents

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. Applications for parenting and other orders in respect of one child, X (the child), aged three, came before me for trial commencing Monday 24 September 2018.

2. The three day hearing had been expedited to meet the circumstances of the mother Ms Zenere. Although only 36 years of age, the mother has a limited life expectancy. In June 2017, she was diagnosed with stage four lung cancer which has spread to her brain. The mother was not well enough to travel from New Zealand to Australia to be present in Court, but participated through her solicitor and counsel.

3. In May 2018 her parents were made parties to the proceedings. The mother’s father was present in Court; her mother was with her in New Zealand.

The Parties

1. The applicant mother was born in India. In 1995, then aged 12, she emigrated with her parents to live in New Zealand. In her early twenties, the mother moved to study and work in Australia.

2. The respondent father, Mr Malik, moved with his parents in 2000 to live in Sydney. His family too comes from India. He is in full time employment in Western Sydney. The father now lives in the home of his parents in Suburb C, a suburb of Greater Western Sydney. That household consists of the paternal grandparents, aged in their middle sixties, and the father.

3. The second and third respondents Ms B and Mr A Zenere are the maternal grandparents. They emigrated from India in 1995 and have lived in New Zealand since. The maternal grandfather is in full time employment and the maternal grandmother has retired. They are in their middle sixties. Their household consists of themselves, the mother, and subject child.

Brief History of Relevant Events

1. The parties have, over the past three days, reached agreement on almost all issues. A most thoughtful and well-crafted set of orders was produced by the combined efforts of all parties and their legal representatives. The orders covered not only the primary issues of parental responsibility, residence, time and communication, but also the transition for the child into the full time care of her father after the inevitable premature death of her mother.

2. The remaining issues for determination, which will be set out, arise from the specific concerns of the mother about religious practices of the father. The orders sought by the mother and her parents are as follows:

   i)That the father be restrained from taking and/or permitting the child to travel to India or any other non-Hague Convention country until the child turns 14 years of age;

   ii)That the father be restrained from causing, allowing, or permitting the child to attend (with the father or a third party) upon any establishment affiliated with D Group and/or from exposing the child to the teachings of that organisation, including taking the child to any place of worship, or other gathering associated with it.

   iii)In the alternative to order (ii), that the father be restrained from causing, allowing, or permitting the child to attend (with the father or a third party) any place of worship, or other gathering associated and/or affiliated with D Group for longer than four hours in duration per day.

3. The parents were both raised in the Hindu faith.

4. In April 2017 the father travelled to India to participate in a religious retreat in an ashram following the teachings of a man known to his followers as His Divine Holiness Mr G. A witness of the father described the teachings in this way:[1]

   [He] preaches the same principles as Hinduism, however makes this more applicable to everyday life.

   [1] Affidavit of Mr E filed 10/09/2018, par 4

5. During his stay the father sent the mother a message telling her that he wanted to be divorced, that he wanted to live in India, and that he was willing to have their child live with him in India or she could stay with the mother. It was apparent that the father had felt a strong pull towards the ashram in India.

6. In May 2017 the father returned to Australia, probably intending to organise his departure for life in India. The parties decided to separate.

7. Soon after, in June 2017, the mother received her diagnosis.

8. Early in July 2017, the parties considered their position on separation and decided not to reconcile. They have remained separated since, and divorce was pronounced without any opposition from the father, yesterday, 26 September 2018.

The Law

1. When a Court is asked to make any parenting order, the best interests of a child are paramount. In determining what is in the best interests of a child, the Court must consider the matters set out in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”).

2. In this case, the parties have already considered what is the best course insofar as parental responsibility and residence is concerned. There is an implicit acceptance by the mother, by her consent to those orders, that the father will, when he takes on sole parental responsibility in future, make good decisions for the child in every other way than those identified by her as areas of concern. For instance, the child experienced anaphylactic shock as a result of a peanut allergy in April 2016 and was appropriately taken for medical attention by the father.

3. There is, it is also acknowledged, a meaningful relationship between the child and her father, such that he is to have sole parental responsibility.

4. There are, of course, also meaningful relationships with the mother and all four grandparents.

5. Through her counsel, the mother raised with the Court a plea for recognition of her concerns about the father’s religious practices. Naturally, the mother wants to be satisfied that proper arrangements are put in place for the care and upbringing of the parties’ only child. She was so satisfied other than in this matter.

6. Of the secondary considerations under the Act, the relevant one is s 60CC(3)(g):

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

1. The mother regards the beliefs and practices of the ashram which the father attends as extreme, by which I infer she means outside the realm of the Hindu religion as practiced by herself and the father growing up in their respective families.

2. Elements relating to spiritual healing, powers of the mind to move objects, and other matters were identified in submissions, but religions tend to have beliefs and practices which are inexplicable to non-believers.

3. The mother has raised concerns that a vegan or vegetarian diet for the child, part of the father’s practice, was a worry to her.

4. Again, fasting and feasting, prohibition on eating certain foods such as beef or pork, are common to many world religions. It is not a matter for the Court to analyse any particular faith but simply to decide whether the adherence of a parent to that faith represents a risk to that child.

5. The mother considers that the subject child will be put at risk of unacceptable harm or abuse if she spent unsupervised time, or even supervised time for long periods, in ashrams of this type. I infer that the mother fears that her daughter will become indoctrinated and, as a consequence, unable to defend herself against indefensible practices. The mother is fearful that the child will also be defenceless against the strongly held beliefs of the father because she, the mother, will no longer be present as a place of safety and, from her perspective, as a rational repository of a different point of view.

6. It is understandable the parents are genuinely divided over this aspect of their daughter’s life.

7. Each party has been surprised and disappointed. For the mother, that the father has been drawn into something she regards as false, contrived and even criminal. There were newspaper articles annexed to her affidavit raising allegations of sexual misconduct by Mr G against members of his congregation. There were other aspects of the ashram criticised in a similar way. For the father, that the mother would not even consider, when she was well enough to do it, coming to the ashram to see for herself what it was like. The father also held the hopeful belief that the mother’s health would be improved by the spiritual healing practices of the ashram.

8. The Court should not assume that any particular beliefs are true nor should it prefer one religion to another or religious belief over non-belief in any particular religion. Religion becomes relevant because of its influence on behaviour of parents and other carers. Where the religious beliefs of a person require the person to adhere to an unusual lifestyle or approach to child rearing, the person’s behaviour may well be relevant to the child’s welfare. Accordingly, there is a balance for the Court between the welfare of the child and neutrality as to different religious views and practices.

The Subject Child

1. The child is three years and three months old. She is observed by the Family Consultant, who prepared a report, as a bright, confident, chatty little girl, very well loved by both sides of her extended family.

2. For a little over one year, she has been living with her mother in the home of the maternal grandparents in New Zealand. That arrangement was put in place by her parents for two reasons:  the parents had recently separated, but, more importantly, the mother, having been diagnosed with cancer, wished to go home with her daughter for the love and support of the maternal grandparents.

3. In New Zealand, the child enjoys her connection with her Indian ancestry and also with New Zealand where her mother lived and grew up between 1993 and 2004. The child is being taught the elements of her Hindu faith, particularly by her maternal grandmother.

4. In her father’s care, she will, if he is not constrained, involve her in his faith as he is entitled to do. There is no evidence before me of the father involving the child against the mother’s will, quite the reverse.

5. He should, as an honourable man, which the evidence suggests he is, tell the child that her mother took a different view about the religion he subscribes to, that she did not like it, she did not subscribe to it and she wished that the child would not.

6. The mother should also take comfort from the fact that the orders provide for the child to spend holiday time with her maternal grandparents and that they too will have the opportunity to explain in a way which I am confident will be respectful that they do not share the way the father practices the Hindu faith.

7. In the home of the paternal grandparents too, there will be a different position than the father’s, to be explained by the paternal grandparents.

8. The child will have the opportunity by living in Australia, as she is bound to do by the orders, and by having that extensive contact with both sides of her family, to understand that people can have different ideas.

Conclusion

1. A proposal that the father be restrained from travelling with the child to India or any other non-Hague Convention country until she is 14 is an unnecessary restraint on the ordinary course of his life, the opportunity for the child to travel and the opportunity for the child to be exposed to the father’s faith, which I have found can safely happen.

2. Further, that the father be restrained from causing or allowing the child to attend upon the ashram in City F, India or similar ashrams in Australia is an unnecessary constraint on the father’s own practice. The child can safely and appropriately be exposed to his faith given the mother’s confidence in him as a parent and the absence of any evidence which suggests that he has not behaved responsibly with the child to date.

3. The order in the alternative, that if the father did travel to such ashrams in India or in Australia or elsewhere that the child’s attendance be constrained to four hours per day is simply unenforceable.

4. It is unrealistic to conclude that the father is not a sufficiently responsible parent but yet would comply, without supervision, with such a restraint, reflects how unenforceable and, indeed, impractical that order is.

5. For those reasons, I decline to make the orders sought on behalf of the applicant mother and the second and third respondents.

I certify that the preceding forty-one (41) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 27 September 2018.

Associate: 

Date:  27 September 2018