Fernando & Nissanka
[2021] FCCA 1967
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Fernando & Nissanka [2021] FCCA 1967
File number(s): DGC 806 of 2019 Judgment of: JUDGE BURCHARDT Date of judgment: 27 August 2021 Catchwords: FAMILY LAW – parenting dispute about 3 year old child – both parents growing up in Sri Lanka and coming to Australia in their thirties – significant difference in parents’ upbringing – father’s family strict and conservative – mother’s background more cosmopolitan – father unjustly accusing mother of entering into sham marriage to obtain visa for Australia – father’s controlling behaviour – father’s demonisation of mother fully supported by his family – father’s applications for equal shared parental responsibility and for equal time both wholly contraindicated – child to live with the mother and spend time with the father as proposed by the Independent Children’s Lawyer Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346 Number of paragraphs: 186 Date of last submission/s: 25 June 2021 Date of hearing: 17, 24 & 25 June 2021 Place: Dandenong Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms Sdraulig Solicitor for the Respondent: Blackwood Family Lawyers Counsel for the Respondent: Mr O’Connell Solicitor for the Respondent: Victoria Legal Aid ORDERS
DGC 806 of 2019 BETWEEN: MR FERNANDO
Applicant
AND: MS NISSANKA
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The mother will have sole parental responsibility for major long-term decisions involving the child X born in 2018 (child) and the mother will inform the father in writing of any major long term decisions that she makes about the child within 14 days of making that decision.
2.The mother will sign all documents and do all things required to authorise the father to communicate with the child’s day care, kindergarten and or school about the child and to receive such information as is ordinarily provided to parents.
3.The mother will be permitted to obtain and renew an Australian Passport for the child without obtaining the written consent of the father.
4.The mother will have sole parental responsibility for signing all documents necessary to obtain and renew an Australian Passport for the child from time to time.
5.The child will live with the mother.
6.The child will spend time with the father:
(a)Until the child begins 4 year old kindergarten in July 2022, each Monday and Wednesday from 2.00 pm to 5.00 pm with changeover to occur at B Kindergarten in Suburb C and from 9.00 am to 4.00 pm each Sunday.
(b)From the date of the child’s 4th birthday in 2022 until the child begins primary school on a fortnightly basis as follows:
(i)In week one, on Monday and Wednesday from 3.00 pm to 5.00 pm with changeover to occur at B Kindergarten in Suburb C and from 9.00 am to 4.00 pm on Sunday.
(ii)In week two, on Monday and Wednesday from 3.00 pm to 5.00 pm with changeover to occur at B Kindergarten in Suburb C and from 9.00 am on Sunday to the beginning of kindergarten (or 9.00 am on a non-kindergarten day) Monday and in the event that it is a non-kindergarten day, changeover on Monday will occur at B Kindergarten in Suburb C.
(c)From the date that the child begins primary school:
(i)During the school term period, each Wednesday from the conclusion of school to 6.00 pm and from the conclusion of school or 4.00 pm on Friday to 4.00 pm Sunday each alternative weekend.
(ii)For one half of the term holidays from its conclusion of school to 4.00 pm on the middle Saturday.
(iii)For one half of the summer holidays on a week about basis until the child is seven and thereafter for block time being the first half in odd numbered years and in second half in even numbered years.
(d)At other times as agreed.
7.Notwithstanding any other provision in these orders:
(a)The child will spend time with the mother from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day.
(b)The child will spend time with the father on Father’s Day:
(i)From the date of these orders until the child begins primary school, from 9.00 am on Father’s Day to 4.00 pm.
(ii)From the date that the child begins primary school, from 4.00 pm on the Saturday before Father’s Day to 4.00 pm on Father’s Day
(c)The child will spend time with the mother on Mother’s Day from 4.00 pm on the Saturday before Mother’s Day to 4.00 pm on Mother’s Day
(d)The child will spend time with the parties on her birthday as follows:
(i)In odd-numbered years, the child will spend time with the mother from 9.00 am to 4.00 pm on the child's birthday if it is a non daycare, kindergarten or school day or from the conclusion of daycare kindergarten or school until 6.00 pm if it is a daycare, kindergarten or school day.
(ii)In even-numbered years, the child will spend time with the father from 9.00 am to 4.00 pm on the child's birthday if it is a non daycare, kindergarten or school day or from the conclusion of daycare, kindergarten or school until 6.00 pm if it is a daycare, kindergarten or school day.
8.For the purpose of these orders:
(a)The father will be substantially present when the child is spending time with him pursuant to orders 6 (a) and (b) herein.
(b)Where possible, the father will provide the mother with no less than 7 days’ notice in writing if he is not available to be in substantial attendance when the child is scheduled to spend time with him pursuant to these orders due to his work or other commitments.
(c)Where changeover does not occur at B Kindergarten or the child’s school, changeover will occur in the interior of Suburb D McDonald’s on the corner of E Street & F Street, Suburb D.
9.Each party will notify each other:
(a)Immediately if the child suffers any serious injury or illness while in their care.
(b)As soon as practical if the child suffers any other injury or illness while in their care.
10.Except in the case of emergencies, the father and mother will communicate in writing using the Our Family Wizard application.
11.The father and the mother will be restrained by injunction from consuming or being under the influence of alcohol to excess while the child is in their respective care.
12.Each party is restrained by injunction from denigrating the other party, and/or the other party's family while the child is in their presence or hearing, and/or allowing the child to remain in the presence or hearing of any third party who is denigrating the other party or the other party's family.
13.Each party is restrained by injunction from discussing the family law proceedings with the child and/or in the presence or hearing of the child and/or showing the child any documents relating to the family law proceedings.
14.Each party will be at liberty to provide a copy of these orders to any school which the child attends, or any medical practitioner treating the children.
15.All existing orders be discharged, including paragraphs 4–6 and 10 of the interim orders made 8 May 2019, which placed the child X born in 2018 on the Family Law Watch list and it is requested that the Australian Federal Police remove the child from the Family Law Watch list.
16.All extant applications be dismissed.
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 under the pseudonym Fernando & Nissanka is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a parenting dispute about the best interests of a young child, X, born in 2018. The mother initially sought spousal maintenance but abandoned that claim, and for reasons given at the time, I indicated to the father at the commencement of the trial that it was inappropriate to allow him to seek to agitate financial issues given that they were not raised until the very last moment.
The father seeks that there be an equal time regime, whether in blocks of a week or smaller amounts of time. He seeks an order for joint parental responsibility. The mother, whose position is supported by the Independent Children’s Lawyer, seeks that there be an order for sole parental responsibility, and that X spend much smaller amounts of time with her father, said to be more appropriate given her age. She also seeks that the father be present during all time and that in effect, the parenting not be left to the father’s parents.
For the reasons that follow, I propose to make orders substantially as sought by the mother. The one area I am not convinced it is appropriate to proceed in the fashion the mother seeks is to seek to regulate the way in which time is spent within the father’s household. His parents live with him and will continue to do so, and the sort of restrictions that the mother seeks are, in my view, simply impractical.
AGREED OR UNCONTROVERSIAL MATTERS
The father was born in 1979, and the mother was born in 1979. They were both born in and grew up in Sri Lanka. The father came to Australia in 2012 as a permanent resident. He is a tradesman who obtained employment in that capacity at the Employer G in 2014, by whom he remains employed. He works shifts that commence at 6.30 am in the morning through till approximately 2.00 pm, although these hours may vary. The wife is employed as carer at the Employer B in Suburb C. She works nine hour shifts within a span of hours from 6.00 am to 6.00 pm, although it appears she is generally able to arrange her hours to fit in with her child-minding responsibilities in respect of X. X attends the centre when the mother is there.
The mother came to Australia in 2015 in what was an arranged marriage. The father became an Australian citizen in 2017 and the wife came to Australia on a sponsored visa, a matter which has achieved some prominence in this proceeding. Following their marriage in 2015, tragically, a child was born in 2016 who lived just for one day. In 2017, they had the great further misfortune when the wife miscarried twins. X was born in 2018. The wife obtained permanent residence in 2018 and separation took place on 23 January 2019 when the wife and X departed the former matrimonial home.
The wife’s family are, with the exception of a sister who lives in Sydney, all in Sri Lanka. The father’s family are, I think with the exception of one brother in Sri Lanka, all in Australia. He lives with his parents in a rented flat in Suburb H where they have been for some time. He has a brother and a sister who live in reasonable proximity. In addition to other orders sought, the father seeks that the mother be compelled to live not more than 10 kilometres from where X was born (J Hospital), which would plainly require her to move from Suburb C where she has bought a home in her own name, and would compel her to live in relative proximity to where the father resides.
THE PARTIES’ AFFIDAVIT MATERIALS
I have of course read the parties’ affidavit materials carefully, but much of what they contain is set out in the agreed or uncontroversial matters above. I recite some of the aspects of the affidavit of evidence which is of significance. In her first affidavit filed 6 May 2019, the wife deposed to what she asserted was a pattern of coercive and controlling behaviour on the husband’s part. She also deposed to episodes of violence. On 2 November 2018, she alleged that during the course of an argument where she was trying to film the father, he had slapped her hand. On 20 December 2018, she alleged that he had stopped her leaving a room in which she was then present. She also deposed to an incident on 12 December 2018 when the wife was dancing and a man (unknown to her) briefly danced with her. She deposed to her husband being very put out by this. She deposed to counselling on her part in November to December 2018 with a Ms K. She responded to earlier assertions that she might decamp to Sri Lanka, indicating that she had no desire to do so.
In the father’s second affidavit filed 17 June 2019, he deposed to his ongoing employment, and additional work done at another employer in order to gain experience with a view to starting his own business. He denied all family violence. He admitted that on one occasion that they had had a disagreement.
He dealt with the December 2018 dancing incident in the following terms (paragraph 30):
I admit that an unknown man did begin to dance with Ms Nissanka and I admit that I was hurt by this as we were newlyweds and I did not like that another man was dancing with her. I remained at our table and looked after the bags. I said words to the effect of "why did you dance with him but not with me?" to Ms Nissanka to which she replied with words to the effect of "I am a modern woman. I can dance with whoever I want". I felt embarrassed that Ms Nissanka said this to me and also in front of L. (a parental family member).
He deposed at paragraph 56:
I admit that Ms Nissanka and I met with Ms K on one occasion and we discussed only household matters such as cleaning and similar matters. We did not talk about our behaviour.
In her second affidavit filed 18 October 2020, the wife deposed to a prior intervention order hearing. She deposed to difficulties of cross-examination and the fact that the father did not give evidence. She denied marrying him for a visa, as his Counsel had suggested. She deposed further as to difficulties in the relationship of the father’s parents, which might be described as a generally disparaging and demeaning approach on the part of the grandfather to the grandmother. She deposed that the father had not undertaken the post-separation and parenting courses that had been ordered. Whereas she had enrolled in a post-separation and parenting orders programs.
On 24 May 2021, the wife filed her trial affidavit. Unsurprisingly, it traversed the history of the matter. She deposed to having $10,000 savings when she came to Australia which she applied to the benefit of the parties. She annexed as -1 an extract of the judgment given by Magistrate Tan in the intervention proceedings on 22 August 2019. It will be necessary to return to that matter. She also annexed as WS-2 correspondence sent by the father to the Child Support Agency dated 3 December 2020 which was extremely critical of her. She also annexed further correspondence to the Child Support Agency, apparently sent on 16 March 2021. At page 48 of 83 of the trial affidavit, the father’s letter accused the wife of identity fraud, Centrelink fraud, childcare fraud, child support fraud, the family tax benefit fraud, banking home loan fraud, money laundering, legal corruption and perjury. Further affidavits filed by the husband on 14 June 2021 and 22 June 2021 do not take the matter further. The former was filed in support of a contravention application which I summarily dismissed. That was at the commencement of the trial. The latter was an endeavour to agitate financial matters which, likewise, I ruled as being inappropriate. It should be noted in the latter affidavit, allegations of perjury and corruption are made in terms.
The father did however file an affidavit on 22 June 2021, which in effect was his trial affidavit. At paragraph 4, he deposed:
I bear no malice towards my ex-wife. I desire a casual friendly relationship ongoing, forgiving each other where necessary. She is a mother of my child. I have supported care for her during traumas of losing babies and found her very brave.
At paragraph 10-12, the father deposed:
Every weekend X comes to my house and spends meaningful time with us, my parents live with me, and my two brothers and one sister live in Melbourne. They are giving ultimate support for X and me. My elder brother has two sons and younger brother has two daughters. My sister works as a health care worker at Employer M.
When X comes to my house at weekend X has a good time with her immediate family members. X loves to play and share with her cousins. Every weekend when we are ready to go back X is upset. X needs to stay, but time is not enough for her.
X has an incredibly good bond with her grandparents. When X enters the Suburb H home, she straightaway runs to the grandparent’s room to cuddle grandfather. X tries to be involved with grandmother’s activities, cooking, washing.
At paragraph 38, the father sought additional time for special days but these matters were not pressed during the hearing. Some of them will be considered in any event as they arise on the mother’s case.
At paragraphs 44-46, the father accused the mother of marrying him to come to Australia and described this as an organised crime. At paragraph 54, he noted that the mother received her permanent residence visa in 2018. At paragraph 76, the father accused the mother of using medical practitioners for her own benefit and asserted “many people directly and indirectly participated on this ORGANISED CRIME.” At paragraph 97, the father deposed:
The Independent Child Lawyer’s final recommendation to the court will display collusion between independent Children’s Lawyer and Ms Nissanka. I claim that the report was totally biased in favour of Ms Nissanka.
At paragraph 126, the father repeated his assertion that the wife had married him as part of an organised crime and repeated again a lengthy assertion of misconduct on her part from perjury through to money laundering.
At paragraph 161, inter alia, the husband sought that the wife’s visa should be cancelled.
EXHIBITS
A number of documents were tendered as exhibits. Exhibit R1 is a text message from the mother which relevantly asserts:
I locked my phone with new password and he is more furious. He said I have things to hide tats why I locked it! I said kept him read for 2 years and all but it is issues because he reads and misunderstood. So I will now lock it.
Exhibit A2, which was a bundle of documents tendered by the father, includes a report from Ms K dated 14 April 2019, To Whom It May Concern. This shows, on any view of the matter, that on 26 November 2018, that
•Ms Nissanka reported that she was scared of her husband until she had the baby. She stated that he was not physically abusive but was verbally abusive at times. She reported that he was controlling and often checked her phone to see where she was. He also read her phone messages and thought she was cheating on him.
•Ms Nissanka reported she has given us some of her friendships over the years as he does not like her friends.
•Ms Nissanka reported that she felt he may suffocate her. That he was not a hands on Dad, and he was angry and not a good role model.
On 3 December 2018, the mother told Ms K that she had her own password on her phone and that the father was okay with this, but she still believed he tracked her and was scared. She also reports that she may have made the wrong choice marrying him and was disappointed in herself.
On 10 December 2018, there was a joint session with the mother and father at which the mother discussed how she felt about him checking her phone and questioning the way she was all the time, why he sits up all night talking to his friends overseas.
I have of course regard to the entirety of the report. These are relevant extracts.
Exhibit A3 is a series of photographs and texts between the parties. It includes the exhibit R1 to which I have referred. Exhibit A5 includes documents relating to transfer of funds to the mother in Australia from Sri Lanka, apparently totalling in excess of $27,000 and possibly more. Exhibit A6 are photographs of two injuries, it would appear, suffered by X from time to time. One shows a slightly elevated mark on her cheek, and the other shows a scratch on the side of her eye. Looked at objectively, there would be nothing to give rise to any real concern.
THE INDEPENDENT REPORTS – THE REPORT OF DR O
The father underwent an evaluation by Dr O. It is sufficient to say that Dr O found the father to be a low risk of any sort of harm, but predicated this opinion on the proposition that if the father was found to have engaged in family violence despite his denials, then the matter will need to be revisited.
THE REPORT OF P FAMILY SERVICES
P Family Services provided a report on the – what in effect was the reintroduction of the father to the child. This shows a pattern of gradually developing trust and affection between the father and X. I note that the father was labile on occasions during these meetings and this was consistent with his presentation at court.
THE FAMILY REPORT
The family report which was received as exhibit T1 by Ms Q is lengthy and detailed, and I of course have regard to all of it. Given the way this matter has progressed, however, it is appropriate to set out relatively extensive extracts.
In paragraph 1, Ms Q traversed the current arrangements. X currently spends time with the father each Monday and Wednesday from 2.30 pm till 5.00 pm and on alternate Saturdays and Sundays between 9.00 am and 4.00 pm. Changeover during the week occurs at the childcare centre in Suburb C and weekend changeovers outside the police station at Suburb R. X attends childcare from Tuesday until Friday. Ms Q traversed the parties’ living arrangements, noting that neither parent had repartnered.
Ms Q dealt with relevant family background. At paragraph 5, report noted the father’s opposition to the intervention order, concerns that the mother would travel to Sri Lanka with X, and his non-acceptance of the need for supervised time. He described the mother as making false accusations about him and making unilateral changes to parenting arrangements. The report noted:
He further described the mother as providing misleading information in her Visa application. Mr Fernando stressed the importance of the paternal family in X’s life. He indicated a preference to alter the location of changeover given the traveling involved for the child. Mr Fernando stated that as the child’s father he would like to receive information including having access to the Medicare card.
The report then traversed the mother’s reasons for the separation and noted at paragraph 7:
Ms Nissanka described her personal distress in response to paternal behaviours. Ms Nissanka further described the experience of the contested Intervention Order hearing as also traumatic. Ms Nissanka stated that she remains fearful of the father and cautious in respect to paternal parenting capacity and insight into the needs of X. Ms Nissanka described concerns that X is exposed to family violence perpetrated by the paternal grandmother (sic) towards the paternal grandmother in the paternal home with the paternal grandmother limited in her ability to act as a protective influence.
Having traversed the history of the dispute, the report noted that the father was seeking a shared care arrangement (paragraph 15) and his opposition to the mother travelling to Sri Lanka with X. The report noted the mother’s opposition to overnight time (paragraph 16).
The report noted the mother’s concerns about the father’s alleged excessive alcohol consumption (paragraph 19). At paragraph 25, the reported:
Mr Fernando described a family support network consisting of his parents with two adult brothers and one sister residing close by. He stated that regular contact is maintained with his extended family. Mr Fernando described the paternal grandparent relationship with X as significant adding ‘X is very attached to them’. Mr Fernando stressed the importance of X having the opportunity to be with her paternal family adding that his parents were willing to care for her instead of attendance at child care.
In the same paragraph, the report noted that the father described the parenting program he had undertaken at S Counsellors and T Counsellors being a little bit helpful. The report noted that the father had attended a men’s behavioural change program in 2019 to 2020 as court ordered (paragraph 26). The report went on in the same paragraph:
He stated that his engagement with this program was ‘not helpful, everyone laughed that I was there’. Mr Fernando strenuously denied maternal allegations of perpetrating family violence adding that the granting of an Intervention Order following a contested hearing in the Magistrates Court was ‘a judicial miscarriage of justice, the mother made false accusations, the Court was provided with the wrong information, I am not a violent person, if I was why would the mother stay in the marriage and fall pregnant’.
The report noted at paragraph 28 that the mother had presented accompanied by a female friend who was to care for X when required. The report noted that the mother had undertaken a parenting orders program which she had described of assistance and value and also counselling (paragraph 29).
At paragraph 33, the report noted:
He stated that there were ‘no problems’ in the marriage with separation being unexpected for him. Mr Fernando described the mother as engaging in ‘identity fraud’ providing in the incorrect date of birth in her visa application. He stated that it is his belief that the mother married him in order to secure an Australian visa. Mr Fernando described the mother as fraudulent with the Child Support Agency and Department of Immigration with formal complaints lodged by him. He noted making contact with the Commissioner for Police in Victoria adding ‘I did this as a responsible citizen, the mother has committed identify fraud’. Mr Fernando stressed that the mother makes false accusations against him including at time of changeovers of ‘talking rudely, having a loud voice and my facial expression’. Mr Fernando stated that he minimises direct interactions with the mother.
The report noted the mother’s denials of these matters, and the mother’s assertions as to family violence (paragraph 34).
The mother also described changeovers as not easy (paragraph 35). The report noted the record of X’s interaction with each parent. The report noted unexceptionable time with the father (paragraph 39). The report, in its evaluation section, considered the question of changeover, noting the tension described by both parents and the likelihood that X would become increasingly aware of this (paragraph 43). The report noted the father’s strong desire to be active in X’s life and his stress on the importantness of the involvement of his parents and extended family members (paragraph 44). The report noted that X’s primary attachment was to her mother, but that her emotional connection with her father and his family was strengthening and developing (paragraph 47). In the same paragraph, it was observed:
It is important for such a young child in particular not to be directly exposed to parental disagreement, emotive parental responses or openly expressed negative views or opinions of the other parent. This of course would result in emotional distress for this child and is not considered to be in her long term interests.
At paragraph 48, the report continued:
It is considered that X is provided with emotional stability and appropriate parenting by her mother. Any significant changes to this situation given the young age of X is not viewed in her best interests with a high probability that this would cause her confusion and distress. Therefore, the proposal by the father for a shared care arrangement is not accepted as child focused or realistic at this time given that X has not been separated from her mother overnight or for extended periods of time at this stage in her life. Whilst X may be developing familiarity with the paternal home environment, any substantial change in her living arrangements or primary care is counter indicated at the current time. Mr Fernando stressed that the paternal grandparents are available to care for X when he is at work and as an alternative to this child attending child care. Caution is required in this area given raised maternal concerns of the nature of the relationship between the paternal grandparents and likelihood that X may have exposure to behaviours that constitute family violence. It is considered important that the father be present and fully available to X during scheduled parenting arrangements, this facilitating a strengthened attachment between father and daughter.
The report went on to recommend that in general, the existing parenting arrangements continue (paragraph 49). At paragraph 50, the report continued:
Whilst paternal love of X is acknowledged, Mr Fernando impresses as fixed in his views, not willing or able to reflect upon behaviours that have been identified as likely to cause harm, this including family violence, openly expressed critical views of the mother and lack of insight into the impact his responses upon X. It is noted that Ms Nissanka continues to raise concerns in relation to the father’s controlling behaviours and what she perceives as unjustified responses by reporting to her various government authorities and locating her home address. The paternal tendency to be openly dismissive of the reasons for the granting of the maternal Intervention Order and requirement for him to complete a men’s behavioural change program is of concern. It is acknowledged that Mr Fernando’s particular views of his role of X’s father may also reflect cultural influences that are important to him.
The report went on to make recommendations for sole parental responsibility to the mother, for X to live with the mother and spend time with the father, together with a number of ancillary orders.
THE AFFIDAVITS OF THE FATHER’S FAMILY
On the day of trial, the father sought to file affidavits by his mother, father, brother, and sister. No objection was taken by either Counsel to this and those parties were called and cross-examined. I will traverse their evidence in due course. Unsurprisingly, they were all highly supportive of the father’s position. It is noteworthy that the phraseology of the affidavits is strikingly similar in various regards.
THE SUBMISSIONS MADE AND EVIDENCE GIVEN IN COURT
What follows is taken from my notes.
THE OPENING AND EVIDENCE OF THE FATHER
The father opened his case by indicating that what he wanted was 50 per cent custody and the child live within 10 miles from where she was born. All his family are in that area. The child should not be allowed out of Australia until she was 18. She has to go to school within 10 kilometres of where she was born. The child’s passport should not be obtained and the child’s name not changed without the consent of both parents. He needs access to Medicare when the child is with him. The child has to go to an independent childcare centre and should not go where the mother is working, because they will not give him information. He has requested information and none has been provided. There has been no information from the child’s doctor as well. When the child is with the grandparents and his family, there should be no interference. He would be happy with either week about or half week each. The parents can agree this.
The father was sworn and adopted his affidavits as true and correct. He also tendered, as earlier indicated, exhibits A1 to A5 which were bundles of documents which I have already traversed.
Under cross-examination by Counsel for the mother, the father confirmed that he had been interviewed by Dr O, the section 11F report and Ms Q. He had told experts the truth. The orders should be in X’s best interests. He would not harm her. The child must be safe. He had read the mother’s affidavits. It was put to him that family violence was a big issue for the mother. He responded, “she got permanent residence, and then went to doctors.” He did not agree that there had been family violence. She blamed him after she got permanent residence. She can say he is violent. She says he is controlling.
It was put that he had access to the mother’s phone and that they had the same passcode. He said that some days, she put. Afterwards, she changed. Sometimes, he had access to her phone and sometimes not. It was put that he had told a friend of the gender of their first child, something he could not have known without access to her phone. The father said that the mother had told him and told him afterwards. He said she was lying. He said he never got mad when she changed her passcode.
It was put that the text in 2017 in which the mother referred to changing her passcode was sent to her sister in 2017. He agreed it was in his documents but said he was not furious. He said she had a double life with him and in Sydney. The text message was, as indicated, tendered as exhibit R1.
The father agreed the mother went to Sri Lanka in 2016. He called regularly. He did not want to know where she was. It was put that he was monitoring her movements by her telephone, but he responded, “How can I monitor?” It was put that in February 2016 he had told the mother, “don’t get caught lying, there is a man behind you on a red motorcycle who is following you.” The father said this was all lies.
Counsel traversed an incident in December 2017 involving a friend of the mother called Ms U on Facebook. It was put that he next day, he had asked her why. The father said she came to him. He asked again rhetorically, “How can I read?” He had not told her to remove Ms U from Facebook. Sometimes said she told him. No, he remembered. When asked why after this incident the mother gave him access to her phone, the father said he could not remember. She said different stories. He never touched her phone. He did not know if she got the same passcode.
I would interpolate and say that the father’s answers in relation to this issue were entirely unconvincing.
Counsel dealt with the counselling with Ms K in December 2018. It was put that the mother had raised the phone checking issue. He said he had been to one session but did not remember.
Counsel traversed the intervention order proceeding in August 2019. He agreed that orders had been made that there should be no contact with the mother save for the usual family law exceptions. He agreed that he had been prohibited from stalking her. There had been orders for the use of My Family Wizard.
Counsel traversed the correspondence sent to the Child Support Agency on 3 December 2020 which were in the wife’s trail affidavit at page 49 of 94. The husband agreed 100 per cent he had sent this. It was put that he knew this because the mother had joined him to WhatsApp and he had kept her sim card. The father said this was added to the number he was using. He accused her of fraud and money laundering. She added him and removed him.
Counsel put it to him that he had been physically violent. The father said never. There were no physical assaults. He denied accusing the mother on 22 November 2018 of doing dirty things on the phone. He asked again rhetorically, “How could I if I could not touch her phone?” He told her not to record him, and he had not slapped her hand away. He put his hand up in front and said do not record me. He was on his computer at the time.
He agreed that the police made an application for intervention order in January 2019. He said these were false accusations and he contested it. He had a barrister. It was a one day hearing. The intervention order was granted because her word was trusted. There were no allegations before 2018. She lived a double life with him until permanent residence. Then she went to doctors, but nothing had happened. There was no verbal or emotional or financial abuse. Magistrate Tan did not believe him. Counsel put it that Magistrate Tan found the mother an impressive witness, but he said he could not remember. He still says she is lying and that |it was a judicial miscarriage of justice.
The father agreed that he had undertaken a 20 week men’s behavioural change course. When it was put that he had not thought he needed it, he said he had not done anything wrong. There were a lot of useful points. Everyone laughed at him for being there. When asked what he had learned from the course, he said the main point is to listening properly. When asked if there was anything else, he said there was nothing he remembered. Other things were not relevant to him, such as anger.
It was put that there were arguments between him and the mother from time to time. He said they were not clearly arguments, but just disagreements. He does not get angry. He does not call her a liar or a slut. She is a liar.
When it was put to him that he had a low opinion of the mother, he said no. But she is not telling the truth in many situations. He thought they were married because they were in love. Then when the allegations were made, he realised it was all planned. It was an organised crime. She sought to exit Sri Lanka. She circumvented immigration laws. The mother is clearly manipulative and deceptive. She tells him one thing and then something different to someone else. She is also criminal.
Counsel cross-examined that at paragraph 4 of the father’s trial to which he asserted he had no malice towards the wife. He said he would like to do this for the benefit of his child, but she has made him a person guilty of issues by false evidence. He was a victim.
The father confirmed that he had objected to a child support application in 2020. He said there were false accusations. He said she was concealing overseas assets. He accused her of child support fraud. He agreed he had also accused her of identity fraud. He wants the court to send the evidence to the federal police. Counsel traversed numerous other frauds and perjury alleged, and the father conceded that he made these accusations. It was her and her family.
Counsel put it that he was saying the mother used doctors and others for her furtherance of her organised crime, and the father said the child’s medical practitioners have been told not to give him any information without the lawyer’s permission. It was put that he had emailed the federal police about this, and he said he had informed Victoria Police about Medicare. He wrote some letters but was not sure if he posted them. He had written to Attorney-General Porter about this. This was about something else. He had emailed Scott Morrison. He did this because he was being a responsible citizen.
The father agreed that the mother had always been the primary carer. He wants shared custody. He wants the mother to be a mother. As a responsible citizen, he has to report fraud. But no one can destroy the mother as a mother. He has to fight to clear his name. This is the only opportunity he has to clear his name.
Counsel asked if he had told the child that the mother was manipulative and a liar. He said he had never done so. “There is no point bringing our issues to the child.” He seeks equal shared parental responsibility. He minimises direct contact with the mother because she makes false allegations. It was put that he often does not respond when the wife contacts him on My Family Wizard and he said sometimes. When asked how issues of choice of school could be resolved, he said that this was why he wanted a 10 kilometre zone and a public school. Both parties would have to agree.
The father accepted that there had been an order made for sole parental responsibility in favour of the mother in 2019. When asked why he had agreed to this, he said it was ordered. He did not know much about the legal system at the time.
The father confirmed that during the relationship, he was a permanent part time employee. When asked about the Employer V, he said he has a second job, no income. This was mainly to get experience. His hours change from time to time. He has a lot of family support which still continues. His mother cooks most of the time. He asked how the family reporter would know what is best for the child. Time with the grandparents was not a relevant matter.
The father confirmed that he had not spent overnight time with X since separation and was asked how X would cope with this. He said she was very comfortable with family members and does not want to go at the end of her time. He then went on to say “She’s happy to stay with me. I’m her biological father. I don’t want 100 per cent. I think it should be 50 per cent as I am her father. I want 50 per cent when she is three in July.”
The father went on to say that he works at Employer G and works extra shifts if he is available. His mother and father and other family members would look after X if he was working. The mother has no family members to help her. He currently works 6.30 am to 2.00 pm. Sundays, it is 1.00 pm. He would discuss obtaining different hours with his employer.
X attends crèche in Suburb C, whereas he lives in Suburb H. It is more than one hour drive. As a father, he and the grandparents have a right to see the child. His father does not abuse |his mother. It’s just what the mother says (It should be noted that some of my notes at this point became incomplete as the answers were hard to follow).
The father did not agree with the findings of the family report about his parents. When asked why he wanted childcare at school to be within 10 kilometres of the place of birth, the father said if there was an emergency, he would have his whole family with him. It was put that X would have friends in Suburb C. He said he did not know. The most important is family members. To his knowledge, the most important is family members. In fact, he knows the mother has bought a home in Suburb C. His main concern is for X. He repeated, “I am the biological father. We have an emotional bond with the child.” He wants independent childcare because he has requested information from the Suburb C facility and they refused. X’s culture and heritage are important.
The father agreed the bond with the mother’s family was important. When asked why he was opposed to any travel to Sri Lanka, he first said he was concerned about terrorism. He repeated “we are not happy to remove the watchlist until she is 18.” There is no benefit to travel to Sri Lanka. There would be no guarantee the mother would be coming back. The mother has been to Sri Lanka in 2016 just for a visa. He conceded she has permanent residence in Australia, a job and friends.
The Father under Cross-Examination by Counsel for the Independent Children’s Lawyer
The father confirmed that he was brought up in Sri Lanka and came to Australia in his thirties. He had a certificate after secondary school. He had been to trade school and got a trades certificate. He worked in Sri Lanka as a trainee in the city. His two brothers came to Australia before him and settled. His mother and father came here in 2014 as permanent residents. He came in 2012. His parents lived with him and did not work. He has one brother in Sri Lanka and a couple of aunts and uncles. He went to Sri Lanka in 2020 in March. His aunty was sick, and he is close to her. He has been to Sri Lanka three to four times since 2012. He has personal wealth there. It is his father’s property. It is not rented. His relatives live there. When asked how often he would return to Sri Lanka in the next 10 years, he had no real expectations of regular travel. He would prefer to look after his child. He does not want to take the child to Sri Lanka until she is 18 in case there was any accident. There was a bomb blast two years ago. If she wanted to go, it might be okay if she went when 14, 15, 16, and he might perhaps take her.
It should be noted that no really clear reason was enunciated as to why the travel to Sri Lanka was opposed.
The father confirms that he works from Monday to Fridays. He starts at 6.30 am and leaves the home at 6.00 am. He finishes between 1.00 pm and 2.30 pm. Sometimes later, but not in the last six months. Sometimes, he works with his brothers in the weekend to get experience. They plan to open a business. He has worked one day in the last four weekends and two to three days in the previous four weekends. He sometimes works from 5.00 pm to 8.30 pm, and sometimes from 3.00 pm onwards, but is not paid. If I understood the matter correctly, this has been going on, off and on, since 2016. His brother has two businesses. The father will not start his own business until the child’s issues are sorted out. |It will be a family business.
When asked about annual leave, he said it depended upon the hours that he worked. He was asked if he could do half school holidays and said he could accommodate this on proper notice. He will not have six weeks leave but will take unpaid leave. Just his parents live with him. His father is 76, and his mother is 69. They have no real health issues. It is a rented property. He would not like to go somewhere else. All his family are in the same area. It is a monthly tenancy at the moment. His brothers and sister live nearby. His elder and younger brothers have two children each. X sees them most Sundays. He confirmed that there was no domestic violence. He agreed that it does not have to be physical violence, and it could be shouting. He said that was how it was defined. He agreed that shouting at the wife or calling her a prostitute would be domestic violence. He agreed that not allowing friends to see the mother would be domestic violence. This was the definition. He was not sure who Counsel was talking about or what he was trying to prove. When asked if checking phone calls could be domestic violence, the father asked if Counsel was accusing him. When asked if the relationship was happy, the father said it was, until she went off, quite a happy marriage. It was a loving marriage. Counsel asked if there were any arguments, but the father said there were only disagreements and no shouting. He said that sometimes she shouted at him. But he had not really shouted at her. There was no reason to. She was happy. She was very happy until she went.
Once again, I interpolate and say that these answers were, I regret to say, not believable.
The father agreed it was a great shock when the marriage ended. When asked if he was surprised that the mother had seen a psychologist in 2018, before the marriage ended, he said it was a surprise. They had lost a child in 2016 and twins in 2017. Counsel then cross-examined about the dancing incident in 2019. The father recalled it. It was put that he did not like her dancing with a strange man. The father replied that he was trying to stress that she was pregnant at the time (something that was not in his affidavit material). When asked why he was embarrassed at what took place, he referred to her pregnant condition but did not really answer. He said he let the mother do things her way.
Counsel had put it that at changeover he had little to say to the mother. He said he asked relevant questions, and she asked him. They move away fairly quickly. There is still an intervention order, and he suggested that the mother was likely to try and make him look guilty. Counsel put it that there was a fair bit of mistrust. The father said she does not tell the truth, so he tries to be careful. Sometimes, she is pleasant, and sometimes, she has a scowl on her face.
Counsel cross-examined about an incident when the mother sought a lift to get to her car in the rain. He said it was not raining, but rain was coming. He would not let her get in the car, and she walked. While there is an intervention order, he cannot let her be inside because she might scream. He denied having anger in his eyes. He just said, “Don’t come into the car.” He was not angry. When Counsel put it that X would pick up on the tension, there was no answer. He said the child comes and goes in a happy mood. He wants to clear his name. If someone breaks the law, they should face the consequences.
Counsel put it that the father felt gravely wronged. He said he had missed time with his child. He had done nothing wrong. It was hard to accept these situations. Counsel asked if he would tell his daughter the story, and the father said maybe when she grows up. When she begins to understand things. When she is 18. When asked why he would not tell her before, the father said he does not want to tell her this. He will tell her if she asks. He will not tell her. It is not correct to burden the child with the parents’ issues.
I interpolate again and say that these answers were given with considerable conviction, and I accept that they were true.
When asked if he was angry with his ex-wife, the father said no. Why should he. “She is the mother of my child.” When questioned about religion, he said he is a Buddhist. The mother is a Buddhist but went to a Christian school. She has no Christian views in her mind. The child is Buddhist.
When asked about his plans for education, the father said he wants X to go to school within 10 kilometres. He would also like extra classes decided in discussions with the mother. At the moment, he wants a public school, but this could be changed in discussions. X was born in J Hospital in Suburb W. She is in child care where her mother works. Counsel put it that this was a good idea. The father said it was good and bad. Issues were not shared with the father, as the childcare centre prevented this. The child was hurt near the eye. There was an incident the previous week. His wife sent him a message. This was the day after the injury. When asked if it was a serious injury, the father said it may not appear serious. He is not sure why it happened. That is serious for him. He was concerned that he was not in the information loop (although this is my way of putting it). When asked if the eye injury was serious, the father said he asked what happened. He has still never been answered. The child worker said she did not know.
In re-examination, the father referred to Dr O’s assessment of him as being low risk. He then tendered the two photographs of an instance in 2020. It was exhibit A6.
The Evidence of Ms Y
Ms Y is the sister of the father and adopted her affidavit as true and correct.
Under cross-examination, Ms Y confirmed that she loves her brother and is protective of him. She is supporting him and X. She said she prepared her affidavit and had not read the other family’s affidavits. When asked about her reference to injustice occurring to his brother and X, Ms Y said that her brother does not get quality time. She said, “She (X) wants to stay with us.” Her brother has informed the relevant people and government authorities. There were false allegations when the wife lied.
In response to questions from the Court, Ms Y confirmed that they were a very close family who act as a unit. There are always some family members there when X comes, and there is great love between them. Her parents have a good relationship, and she has never seen them argue. Her father has never told her mother to shut up.
Under cross-examination by Counsel for the Independent Children’s Lawyer, Ms Y confirmed that she works in the Employer M, has a bachelor’s degree in health care and is married.
The Evidence of Mr Z
Mr Z is the father’s younger brother. He said he prepared his affidavit but had not read the affidavits of other family members. He had read the mother’s trial affidavit. He said the allegations of violence were a lie. His brother is not that sort of person. He was aware of the intervention order proceedings. This was a miscarriage of justice. She is totally lying and misleading the government. The Independent Children’s Lawyer did not talk to his brother.
I should interpolate again and say Mr Z struck me as significantly emotionally invested in the matter. I had to remind him that as a witness, it was not his proper position to make criticisms of the Independent Children’s Lawyer or family reporter, as he apparently was seeking to do. His evidence was suffused with a degree of evident emotion.
Mr Z said he was spending money for his brother. He discusses the mother with his brother. He had spent time with X the previous day. It depended on his work schedule.
Under cross-examination by Counsel for the Independent Children’s Lawyer, Mr Z said he was certain his brother’s case was correct. An injustice had been done to him. He would not tell X about this.
The Evidence of Mr AA
Mr AA is the father’s father. He adopted his affidavit as true and correct.
Under cross-examination by Counsel for the mother, he confirmed that he loves his son and is protective of him. When asked who had prepared the affidavit, he said his son drafted it, but he gave the relevant points. He had not read the other affidavits. He had an idea of what was in the mother’s affidavits from his son. The family report had said he and his wife quarrelled, but he does not argue with his wife nor yell at her. He does not tell her to shut up. He does not tell her she is a stupid woman. When asked if he did not have a good opinion of the mother, he said she had lied to the Court and made false allegations about his son. She was not a good person.
The Evidence of Ms BB
Ms BB is the father’s mother. She adopted her affidavit as true and correct.
Under cross-examination by Counsel for the mother, Ms BB said she denied family violence and accused the mother of lying for her own benefit. She said words to the effect that she was not a nice person. She was aware of the current intervention order.
When it was put that there was not a healthy relationship between her and her husband, she said that was a lie. He does not yell at her. He does not tell her to shut up. He does not call her a stupid woman.
When asked her opinion of the mother as a mother, Ms BB said she thought she created a total lie. The situation is a lie, and she does not have a good opinion of the mother.
Under cross-examination by Counsel for the Independent Children’s Lawyer, Ms BB said that she has a very close relationship with X. When she comes over, she hugs them. She feeds her, and her husband does too.
THE OPENING AND EVIDENCE OF THE MOTHER
Counsel opened the case and referred to the primary need to protect X from harm. The father has no insight about family violence. He has an entrenched hostile attitude to the mother. Counsel outlined the spend time orders sought. Largely, she adopted| the position of Ms Q, but did not accept that there should be an overnight weekend block.
The mother was called and adopted her trial affidavit as true and correct. She confirmed that X will be in kinder until 2023 and will attend primary school in 2024 because of her birthdate.
It should be noted that I had already explained the previous day to the father that the terms of section 102NA prohibit him from cross-examining the mother. I gave very brief reasons at the time as to why I did not propose to adjourn the matter. As I indicated, any adjournment would have been for a very substantial period of time, and the Court had already made orders designed to assist the father to obtain section 102NA representation, which he had failed to take up. While this may have been in part attributable to his lack of legal understanding, I had no confidence that an adjournment would have enabled the father to obtain legal representation, and in any event, and irrespective of that consideration, it was clearly imperative that the matter proceed, having been in the Court already for over two years.
Under cross-examination by Counsel for the Independent Children’s Lawyer, the mother confirmed that she was born in Sri Lanka. She has a diploma and has a postgraduate qualification. She has a certificate III in caring and is currently studying a diploma. She also has a diploma in allied health care.
The mother came to Australia in 2015. After school in Sri Lanka, she had worked in manufacturing, and became a manager. She then worked in Country CC from 2004 to 2006. She returned to Sri Lanka but still travelled often to the Country CC for work. She had had prior intimate relationships before her marriage. She came to Australia in 2015 to marry. The families did not know each other. Her last visit to Sri Lanka was in 2017. Her younger sister, mother, father and all relatives are in Sri Lanka, as is her grandmother. Her mother is 71, and her father is 70 and is a cancer survivor. Her mother’s health is pretty good. Her mother and father come to Australia every year for Christmas. She has another sister in Sydney. The grandparents visit her and then come to Melbourne. Her father stayed for one month, and her mother stayed for up to three months. Her parents will hope to return yearly. Both are retired. She sees her sister, whom she last saw in 2019. Both the sister’s children are in school. She has a boy, nine, and a second child, six years old. Her brother-in-law has his own firm, and her sister is a professional who works for that firm.
She would love to take X to Sri Lanka. X speaks to her mother and father every day at bedtime. Her father has 12 siblings, and there are countless cousins, who have not visited Australia. It is important that her daughter experience Sri Lanka. She talks to her in Sinhalese. X has not seen her grandmother (the mother’s grandmother). It is important to get a real hug. If things were normal, she would like to book a holiday. X would visit several times in her childhood. The father should not worry about her going to Sri Lanka. Now she is much stronger. She has bought a house. She enjoys her job. She is not going to leave. X was born here. In Sri Lanka, she would have to go back to her old profession, and she does not want to. She would have to start all over again. She is doing further study. She has started childhood studies here. She has always worked with children and loves children. She volunteered in the Country CC and Sri Lanka on weekends, and she enjoyed it more than her other job. She had started her study after she lost her first baby. Everyone agreed it was a good idea. She did a six-month course at TAFE. She started as a casual at Suburb W, and then she got another job and then took maternity leave with X and then moved. She wants to be an allied health worker. She is doing a diploma now, which will be completed in December, then she will do a postgraduate diploma and possibly bachelor’s. It depends on finance.
She works Monday to Thursday, eight hours, and currently 9.00 am to 6.00 pm. Next term, it could be 8.00 am to 5.00 pm. X is there Monday to Thursday for her work hours. Previously, X was in day care on Friday for her studies, but has now ceased this. She would need time off to study seriously, and it will need one day per week. She is only studying online.
The mother was asked about friendships and supports. She has good friends. These include Ms DD and Ms EE (her support person at Court), who is a neighbour. X likes her dog. She has friends from people that she has met and has tea with Ms FF after swimming. She had made friends through day care. There are a couple of other friends with children. She has GG Centre to help her if she needs help, and Suburb HH Families help with legals. She has a counsellor at JJ Counsellors but does not see her as much as she wants. She also receives counselling through work. She is well supported in the community.
She owns her house. The deposit came from her family, but she is paying the mortgage. The area was chosen by accident, but the area has hugely helped her to get where she is. All the families are there. It is very family oriented. She went on to point out that mortgage rates are now extremely cheap, and less than the rent that she would be paying. She was pleasantly surprised that she could buy. She has been living in this area since May 2019.
When asked about the father’s relationship with X, she said it was good. She loves him. She is very social and loves people. She is happy with the relationship with her father. She talks about him and the grandmother. X is close to her. She always cooks. She has not seen the paternal grandmother since separation. She was her friend and the only one who was trying to help her. Yesterday (the evidence given by the grandmother) was a bit of a shock. She was close to his sister. She and the grandmother did help. They are decent people, and she would trust her daughter in their care.
X has only ever lived in the primary care of her mother. The father works. Any order for equal time would, in effect, be an order in very substantial terms for X to live with her grandparents. Although it puts the matter shortly it is sufficient to say that I entirely accept Ms Q’s recommendations in this regard and would only say that the father’s demand for equal time, effectively, almost immediately reflects a marked lack of insight.
Returning then to the question of the configuration of time. Once again, although very important this can be put shortly. I accept the Independent Children’s Lawyer’s submission.
First, and unlike the mother, I think the parental family do not want to tell X what I describe as their side of the story. Second, to the extent that emersion in the father’s family runs that risk but, more particularly, the risk that X will be harmed by seeing this sort of patriarchal behaviour that the mother observed in the father’s dealings with her, I accept that as put by Counsel for the Independent Children’s Lawyer that the mother will be able to deal with it. Time proposed by the orders put forward by the Independent Children’s Lawyer is, after all, only one night per fortnight albeit that that is proposed to gradually increase in an age appropriate way. That is clearly a preferable outcome. First, it gives X slowly but surely the experience of spending overnight time in the father’s home. Secondly, as Counsel for the Independent Children’s Lawyer pointed out it was a situation where X never spends a full weekend with either parent, which should be phased out over time as the Independent Children’s Lawyer suggests.
OTHER MATTERS
I do not propose to make an order requiring the father to be present all the time X is in his care. It simply will not be practicable. It is certain to give rise to ongoing further litigation. It is just a fact that the way the father and his family are they will be there when X is there and there may be occasions when the father is not. Should this arise X will undoubtedly be cared for devotedly by those family members who remain. I do not propose to make the order the mother seeks.
OVERSEAS TRAVEL
The mother’s desire to take X to Sri Lanka is, in my view, eminently reasonable. Her own grandmother is now of advanced years and would doubtless adore to see this little child. X already has a developed relationship with the maternal grandparents in Sri Lanka and one could scarcely doubt that they would be overjoyed to see her there also. X is now three and bearing in mind COVID-19 would certainly be most unlikely to be able to travel before she is at least four and possibly later. The father’s objection to overseas travel seemed to spring from various origins. He mentioned the possibility of terrorist attack. It is a matter of which I would take judicial notice that the civil war in Sri Lanka has ceased.
There is nothing to suggest that the mother would be likely to be taking the child to an environment in which violence of that character is likely to obtain and given that her family are, apparently, reasonably affluent it is to be presupposed that they would be able to take an appropriate approach towards her security where it be necessary. Insofar as the father is concerned that the mother might not return I have no doubt that the mother will return and it is not necessary to say more than that. Indeed, I would repeat the remark made by Counsel for the Independent Children’s Lawyer that this suggestion proffered by the father seems entirely inconsistent with his assertion that the mother was so desperate to get a visa to come and live in Australia that she was prepared to undertake a sham marriage to do so. In my opinion, there is no need to wait until the child is seven before she returns to Sri Lanka. She already returns there by some form of visual link every day anyway. Once COVID-19 permits there should be no restriction upon the mother returning for a holiday to Sri Lanka with X and, indeed, the father also should he wish to do so, although, I note he said that he will not.
THE FATHER’S DEMONISATION OF THE MOTHER
I could have dealt with this matter at some earlier point. But I have decided to address this separately because of the emphasis it has had in this proceeding. The father and the entirety of his family are at one in ascribing to the mother the most heinous behaviour. It is put that she married the father for no other reason than to obtain a visa to come and live in Australia and that as soon as she got permanent residency she, in effect, started fomenting lies about the father by visiting doctors and other people to obtain evidence that would enable her to desert him. This has given rise to florid accusations of fraud on a whole variety of fronts which the father has sedulously reported to such organisations as the Child Support Agency, Victoria Police, the Attorney General and even, it would appear, the Prime Minister. He has actively sought to have the mother’s permanent residence visa revoked.
In circumstances where the mother between 2016 gave birth to one child who tragically lived for less than a day, lost two twins in a miscarriage in 2017 and then had X in 2018, whatever ructions there may have been from time to time in the relationship it was plainly not a sham as the father asserts. The mother did not lie or cheat. While she obviously found aspects of the father’s behaviour controlling and intimidatory this was, indeed, the reason why she ultimately left him, this was not a sham marriage and the wife was not dishonest. The father would do very well to take this finding on board because as long as he lives in this world where he holds these views and is supported by his family it is going to act as a corrosive quality in his interactions with the mother and this is simply not in X’s best interests.
I accept and, indeed, have no doubt whatever that the florid nature of the father’s accusations stems from his sense of hurt and grief of the mother unexpectedly leaving him out of the relationship. It is in the nature of his view of the world that he did not see it coming at all despite even some discussion of it with Ms K. He passionately believes that the mother has wronged him and is doing the best he can to get back at her on a number of fronts. I repeat again this is not only completely unjustified on any objective appreciation of what truly occurred. It is extraordinarily insightless and hurtful to the mother and should cease.
CONCLUSION
For the reasons expressed above I am going to adopt the spend time regime proposed by the Independent Children’s Lawyer which, in my view, is entirely age appropriate and essentially in accordance with the accepted views (by me) of Ms Q. The only order I will not make that the Independent Children’s Lawyer sought was that the child remain on the watch list until she is seven for the reasons that I have given. There will be orders accordingly.
I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 27 August 2021
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Injunction
-
Costs
-
Jurisdiction
0