Background
In the recent case of Shan & Prasad [2018] FamCAFC 12 (1 February 2018) the Full Court of the Family Court (Strickland, Ryan & Cronin JJ) heard the husband’s appeal against Judge Altobelli’s final order that the wife have sole parental responsibility for their two children and that they spend no time with the father until they each attain the age of 18 years. During one planned visit on June 24, 2013, the husband took them to India without the wife’s knowledge or consent, after forging her signature on one child’s passport application. The wife started proceedings in the then Federal Magistrates Court to recover the children, and flew to India. The children were then 3 and 1, the youngest child still being breastfed.
The Court ordered their return to Australia, ultimately finding that the abduction “not only compromised the reliability” of the father’s evidence but also fractured any trust the wife had in his capacity to care for the children and demonstrated his lack of understanding of their emotional needs. The father’s conduct was viewed by Judge Altobelli as “a pattern of serious family violence”. A consultant psychiatrist and single expert witness Dr K recommended that the children spend no time with their father.
“Deception” Results in Loss of Contact
In 2014, the husband entered a plea of guilty to a charge of giving false or misleading information on the child’s passport application. He received a two-year good behaviour bond and was ordered to undergo counselling.
Between court dates, the husband also sold a property without his wife’s knowledge, contrary to orders. As a result of his deception, further orders were made suspending his contact with the children.
The orders gave the mother sole parental responsibility of the children, who would have no time with their father. The opinion of an expert witness on the husband’s personality dysfunction and its impact on his ability to parent was a key driver for the orders.
The Full Court of the Family Law Court looked at two main factors as to whether an appeal against these orders should be allowed or not, namely whether the expert evidence was flawed and whether the primary judge made the right decision regarding sole parental responsibility.
Flawed Evidence From The Expert Witness?
The husband argued on appeal that the report by the expert witness was outdated.
In the original decision, the primary judge relied heavily on the opinions of the witness, a consultant psychiatrist. The Full Court acknowledged that there was no doubt that the opinion of the expert witness drove the outcome of the parenting proceedings.
The witness was of the opinion the husband had “a significant personality dysfunction, with prominent anti-social and narcissistic personality traits”. While the psychiatrist did not diagnose the husband with a personality disorder, the possibility was never ruled out.
The expert witness found several ways the husband posed a risk to his children, revolving around this dysfunction.
The Full Court found that reference need only be made to the husband’s removal of the children to India and the significant steps he took to resist having them returned to the wife to establish that the submission should be rejected.
The Full Court stated that while the expert witness’s report was carried out a number of months prior to the trial, there was no evidence that the report was affected by the passage of time. Additionally, the judgement notes that the husband could have requested a new report be done, but he did not.
Sole Parental Responsibility
Prior to allocating sole parental responsibility, the primary judge found that the husband would have no contact with the children besides limited written communication. Thus, equal shared parental responsibility was not reasonably practicable.
The lack of an ongoing role in his children’s lives would mean the husband could not make fundamental decisions in their best interests as he would lack the foundational knowledge to do so.
The Full Court found that the primary judge did not need to say more than he did to justify the order for sole parental responsibility in favour of the wife.
The Effect of Denying The Father-Child Relationship
The primary judge found that the children, while under the care of their mother, would receive appropriate care and coping mechanisms to live without their father.
The Full Court found that the primary judge considered the benefits to the children of having a meaningful relationship with their father but was satisfied that those benefits were outweighed by the risk of harm.
The evidence before the court, including the consideration of factors under section 60CC of the Family Law Act 1975 (Cth) supported the primary judge’s view that it was in the best interests of the children to have no time with their father.
Orders
The Full Court allowed the appeal in part, varying Order 6 which pertained to the age at which the children could have time with their father. The Full Court stated it was speculative to assume that the reasons they were not allowed to see their father would continue for the duration of their childhood.