Nambisan & Nambisan (No 6)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Nambisan & Nambisan (No 6) [2024] FedCFamC1F 207 

File number(s): BRC 7618 of 2021
Judgment of: JOHNS J
Date of judgment: 28 March 2024 
Catchwords: FAMILY LAW – CHILDREN – parental responsibility – where the children are aged 17, 13 and 11 – where both parents seek sole parental responsibility – where in the alternative, the father seeks equal shared parental responsibility – where the father seeks the family engage in intensive family therapy – where there have been proceedings in Country H and state Courts in Australia – where there are significant allegations of family violence by both parties – where the father alleges the mother suffers from a mental illness – where the father alleges the mother has alienated the children – where the children have not spent  time with the father since November 2020 – where the expert accepts the children’s fear of the father is genuine –ordered mother have sole parental responsibility – ordered no time spent with father – father be permitted to communicate with children via text messages and cards
Legislation:

Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) ss 4, 4AB, 60B(1) & (2), 60CA, 60CC(2), (2A), & (3), 60CG, 61DA, 65DAA, 69ZW, 102QB

Cases cited:

Baghti & Baghti & Ors [2015] FamCAFC 71

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Fitzwater & Fitzwater (2019) 60 Fam LR 212

Nambisan & Nambisan [2022] FedCFamC1F 448

Nambisan & Nambisan (No. 4) [2023] FedCFamC1F 467

Isles & Nelissen [2022] FedCFamC1A 97

Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518

McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

Mulvany & Lane (2009) FLC 93-404

Division: Division 1 First Instance
Number of paragraphs: 320
Date of last submission/s: 16 June 2023
Date of hearing: 13 – 16 June 2023
Place: Melbourne
Counsel for the Applicant: Mr Mould
Solicitor for the Applicant: Anita Di Santo Legal Practice
Counsel for the Respondent: Mr McCloskey
Solicitor for the Respondent: RRR Lawyers
Counsel for the Independent Children's Lawyer: Ms Crotty
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

BRC 7618 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR NAMBISAN

Applicant
AND:

MS NAMBISAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

28 MARCH 2024

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

2.The mother have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the children, X born 2007, Y born 2011 and Z born 2012 (“the children”).

3.The children live with the mother.

4.The child X spend time with the father in accordance with X’s wishes.

5.The children Y and Z spend no time with the father.

6.The father be permitted to send text messages to the children’s mobile telephone no more frequently than once per calendar month and nothing in this order shall require the children or any of them to respond to…

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Details
Case
[2024] FedCFamC1F 207
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered a dispute between Mr Nambisan and Ms Nambisan regarding the allocation of parental responsibility for their three children, aged 17, 13, and 11. Both parents sought sole parental responsibility, while the father also sought equal shared parental responsibility and proposed intensive family therapy. The proceedings involved allegations of family violence from both parties, with the father alleging the mother suffers from a mental illness and has alienated the children, while the mother alleged the father interfered with her employment. The children had not spent time with the father since November 2020, and an expert accepted the children's fear of the father as genuine.

The court had to determine the allocation of parental responsibility and the living arrangements for the children, considering the parties' conduct and the children's best interests. The court found the father to be an unreliable witness due to his fixed and negative view of the mother and his lack of insight into the children's fear of him. The court accepted the evidence of Dr C, who found that the children's disclosures about the father's violent behavior were based on their lived experiences. The court concluded that the father posed a risk of physical and psychological harm to the children, while the mother did not present an unacceptable risk of harm.

Given the high level of acrimony between the parents and the children's opposition to spending time with the father, the court determined that sole parental responsibility should be awarded to the mother. The children would live with the mother, with the father permitted to communicate with them under specific conditions. The court also imposed restrictions on the father's proximity to the mother and the children's schools and prohibited the removal of the children from Australia until specified dates. The court discharged previous parenting orders and appointed the Independent Children's Lawyer to deliver the children's passports to the court registry.

In summary, the court ordered that the mother have sole parental responsibility, the children live with her, and the father be permitted limited communication with them. The court also imposed restrictions on the father's proximity to the mother and the children's schools and prohibited the removal of the children from Australia until specified dates. The court discharged previous parenting orders and appointed the Independent Children's Lawyer to deliver the children's passports to the court registry.

Orders

Orders of the court

BRC 7618 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR NAMBISAN

Applicant

AND:

MS NAMBISAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

28 MARCH 2024

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the children, X born 2007, Y born 2011 and Z born 2012 (“the children”).

3. The children live with the mother.

4. The child X spend time with the father in accordance with X’s wishes.

5. The children Y and Z spend no time with the father.

6. The father be permitted to send text messages to the children’s mobile telephone no more frequently than once per calendar month and nothing in this order shall require the children or any of them to respond to those text messages.

7. The father be permitted to send cards and/or gifts to each of the children on their birthdays and at Christmas via the mother’s postal address, Post Office Box …, City S Victoria, and if deemed by her to be appropriate, the mother will provide the cards and gifts to the children.

8. That each party notify the other by email of any change to their postal address, or email, or the children’s mobile telephone number within 24 hours of such change.

9. The mother notify the father by email of any illness or injury sustained by the children that requires treatment by a specialist medical practitioner or hospitalisation.

10. The father be at liberty to obtain from the children’s schools at his expense their semester reports by email or post and these orders are authority for the father to obtain those reports.

11. Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is restrained from:

(a) Coming within the Region U Local Government Area; and

(b) Locating or being within 200m of the mother’s workplace.

12. Pursuant to s 68B of the Family Law Act 1975 (Cth) the mother is restrained from changing the residence of the children from the Region U Local Government Areas or from changing the enrolment of the children from their current school.

13. Within 7 days the Independent Children’s Lawyer deliver all passports for the children in her possession to the City L Registry of the Federal Circuit and Family Court of Australia where they will remain until each child turns 18 years old, save in the event of any agreement of the parties in writing or order of the Court.

14. Until 8 January 2025, the mother and father, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child X born 2007 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 8 January 2025.

15. Until 4 January 2029, the mother and father, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child Y born 2011 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 4 January 2029.

16. Until 14 September 2030, the mother and father, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child Z born 2012 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 14 September 2030

17. That order 14 of the orders made 27 October 2021 appointing the Independent Children’s Lawyer be discharged.

18. That all extant applications be otherwise dismissed.

19. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The children have not spent time with the father since November 2020.BACKGROUND The family has lived in three different countries over the course of the parties’ relationship. Following their marriage, the mother and the father commenced living in the United Kingdom. Both X and Y were born there. In 2011, the parties migrated to Perth, Western Australia. The child Z was born in Perth in 2012. The children attended boarding schools in Country H for various periods between 2013 and 2018. In March 2017, the mother commenced training as a health specialist in City V, Victoria. The mother resigned from that program in about mid-2017. There is a dispute between the parties as to the circumstances in which the mother resigned from that program. The father alleges that the mother’s employment in that training program ceased due to concerns raised by the organisation regarding her attitude and relationships with her colleagues. In support of that position, he relied upon a letter from Mr W to the mother dated early 2017 (Exhibit F4). That communication related to the mother’s “probation period meeting”, noting that the terms of the mother’s employment included a six-month probationary period. The letter confirmed that the purpose of the meeting was to discuss the mother’s progress to date and to discuss concerns raised in relation to her communication style which was alleged to be “abrasive”, and her attitude which was alleged to be “dismissive and non-conciliatory”. The mother alleges that the father intervened in that matter without her consent and wrote to her employers in early 2017 stating that she had determined not to return to City V because she “[was] suffering from ‘work-related stress’ symptoms and [was] not fit to join back until …recovered fully.”[2] [2] Mother’s affidavit filed 7 March 2013, paragraph 118. It is common ground that the mother ceased her employment at City V in early 2017. The father placed heavy reliance upon the letter from Mr W (Exhibit F4) in support of his contention that the mother suffers from a psychiatric illness which compromises her parenting capacity. That correspondence was produced by the father to Dr G, who conducted psychiatric assessments of both parties, in support of those claims. In mid-2017, the mother commenced another training program in Queensland. The mother alleges the father also interfered with that employment, attending her workplace and her medical appointments, and communicating with her employer without her consent. Further, the mother alleges that the father wrote emails to her employer and controlled her mobile phone and other devices. As a result, the mother resigned from that employment in late 2017.[3][3] Mother’s affidavit filed 7 March 2023, paragraphs 13 and 17. In contrast, the father alleges the mother was again involved in workplace conflicts and it was as a result of those matters that she resigned her position in late 2017.[4] Again, the father sought to rely upon those events in support of his contention that the mother’s psychiatric functioning, and therefore her parenting, was compromised.[4] Father’s affidavit filed 6 February 2023, paragraph 20.

Evidence

Evidence Before The Court

In what follows, statements of fact constitute findings of fact. In determining the matter, I have considered all the evidence and had the benefit of observing the appearance and the demeanour of the father, the mother and those witnesses who were required for cross-examination. I have carefully considered the matter and in making findings to the requisite standard, I have had regard to all the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.THE FATHER’S EVIDENCE The father gave evidence and was cross-examined by Counsel for the mother and Counsel for the ICL on the first and second days of hearing. He was an unimpressive witness. Throughout his evidence he displayed a fixed and negative view of the mother. He was steadfast in his view that the mother had actively sought to alienate him from the children’s lives, staunch in his denial that he had been a perpetrator of family violence and unwilling to make concessions with respect to any aspect of his case. On occasion, the father used his response to questions as an opportunity to make speeches to promote his view that the mother had alienated the children from him and that she was suffering from a psychiatric condition. On several occasions I had to direct the father to answer questions, rather than be an advocate for his own case. Throughout his evidence the father appeared unwilling or unable to accept that the children feared him and opposed spending time with him. Further, the father demonstrated little awareness or insight that the children’s opposition to and rejection of him was as a result of his own conduct, rather than the fault of others. As a consequence, I found the father to be an unreliable witness. The father’s response to the disclosures made by the children to the Family Report Writers, Mr J and Dr C, as to his acts of violence against them and the mother was to attribute blame to the mother. His explanation for those disclosures was that the children made such statements due to the mother’s coaching. Further, the father’s position was that the children should be psychiatrically assessed, given those disclosures. During his oral evidence, the father asserted that the mother had imprinted false memories on the children’s “susceptible minds”, pointing out that the mother is “trained in psychiatry” and in “hypnotherapy”; he asserted that she was “a professional in changing people’s mind” and has “the capacity to manipulate their minds to say all these things”.[16] He also stated that the mother’s psychological abuse of the children was similar to “Stockholm Syndrome”. The father maintained throughout his evidence that the mother was mentally unwell and that she required psychiatric treatment. Indeed, that the mother should undertake psychiatric treatment is part of the father’s Application for Final Orders. The father’s assertions as to the mother’s conduct were bizarre and largely without foundation; other than his allegations, he adduced little evidence that would support his allegation that the mother had manipulated the children as alleged.[16] Transcript 13 June 2023, p. 54 lines 18 – 25.

Decision

Reasons for decision

There are no other relevant facts or circumstances. CONCLUSION The first issue for determination is the question of allocation of parental responsibility. The mother, supported by the ICL, seeks orders that she have sole parental responsibility. The father seeks an order that he have equal shared parental responsibility for the children. Further, he proposes that in the event that the mother is found to present an unacceptable risk of harm to the children, that he have sole parental responsibility for the children. Having regard to my earlier findings, I am not persuaded that the mother poses an unacceptable risk of harm to the children, as contended by the father. I am satisfied that the father does pose a risk of physical and psychological harm to the children, having regard to my findings and acceptance of the evidence of Dr C as to the children’s disclosures to her regarding the father’s violent and abusive behaviour. I am not persuaded, as contended by the father, that those disclosures are the product of influence or coaching by the mother. I accept that the children have been exposed to, and have awareness of, the views of both of their parents. That this is so is evidenced by the email written to the mother by X (Exhibit M1) and the notes written by the children (Exhibit F3). Nonetheless, I accept the evidence of Dr C that the children’s disclosures as to the father’s violence are the product of the children’s lived experiences with the father. I am also satisfied that it would not be in the best interests of the children if the parties were to have equal shared parental responsibility given the high level of acrimony between the parents, as is evidenced both in these proceedings, as well as the multiple proceedings in Country H. It was submitted on behalf of the father that the parental relationship is “toxic” and “entrenched”. I agree. I am satisfied that there is little prospect of the mother and the father being able to communicate with each other effectively in relation to any decision necessary for the children’s long-term care, welfare and development. Given those findings, I am satisfied that the best interests of the children will be served by an order that the mother have sole parental responsibility for making decisions regarding the children’s long-term care, welfare and development. The next issue for determination is the question of where the children live. Throughout the proceedings the father has contended in the strongest of terms that the mother will not facilitate the children having a meaningful relationship with him, and therefore the children should live with him. Whilst I am satisfied that the mother is not supportive of the children’s relationship with the father, that factor cannot be considered in isolation from the other relevant considerations in this case, including:-·The children’s own accounts of their experience of the father’s violent behaviour to Mr J, Dr C and the school counsellor (Exhibits ICL2 and ICL3);·The findings of the Judge in Country H as to the father tutoring the children “to spit venom against the […] mother”;[59]·The children’s strongly expressed views;·The concerns expressed by both Dr C and Mr J as to the adverse impact on the children were there to be a change of residence; and·The father’s poor insight as to his own behaviour, including his conduct in withholding the children from the mother for eight months in 2020, his failure to pay child support, and the pressure he has brought to bear on the children as evidenced in the email sent by X to the mother (Exhibit M1).[59] Mother’s affidavit filed 7 March 2023, paragraph 49.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.