Nambisan & Nambisan (No 6)
[2024] FedCFamC1F 207
•28 March 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nambisan & Nambisan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Mr Nambisan, the applicant father, and Ms Nambisan, the respondent mother seek parenting orders in relation to their three children, X, aged 17 years, Y, aged 13 years and Z aged 11 years.
The parties married in 2006 and separated in 2018. Since their separation, the parties have been embroiled in litigation in Courts in Western Australia, Victoria, New South Wales, and Country H, as well as this Court regarding their competing allegations of family violence and the future parenting arrangements for the children.
Each parent alleges that at different times the other has withheld the children from their care and deprived them of the opportunity of a relationship with them. For example, the father alleges that following the parties’ final separation the mother refused to permit him to spend time with the children. As a result, in early 2019 he commenced proceedings in Country H seeking time with the children. Those proceedings resolved in early 2020 upon the execution of a “Compromise Deed” which provided that the children attend boarding school in Country H and otherwise spend half of the school holidays with each parent.
The advent of the global pandemic in March 2020 meant that the children were sent home from their boarding school. The children were returned to the father’s care and remained with him between March and November 2020. The father travelled with the children to another area of Country H where they moved between various hotels and accommodation during that period; the mother alleges the father withheld the children from her care. It is common ground that the children spent no time with the mother during that period. The mother’s case is that she did not know of the children’s whereabouts during that period and that the children were only returned to her care upon the determination of her urgent application in the High Court of City T in late 2020.[1]
[1] Mother’s affidavit filed 7 March 2023, paragraph 49.
The children have lived with the mother since that time, and other than meetings for the purposes of the preparation of the Family Report, have spent no time with the father.
The mother contends that she and the children have been subjected to physical, financial and emotional abuse by the father during the marriage and since separation. Further, she contends that the children were subjected to physical abuse by the father in the period when they were in his sole care in 2020. As a result, the mother seeks final parenting orders that she have sole parental responsibility for the children and that they continue to live with her. She also contends that there ought be no orders for the father to spend time with the children.
The mother’s position is supported by the Independent Children’s Lawyer (“the ICL”).
The father denies the allegations of the mother that he is a perpetrator of family violence. It is his case that the mother poses an unacceptable risk of emotional harm to the children; he contends that she will not permit or support a meaningful relationship between the father and the children. As a result, the father seeks orders that he have sole parental responsibility for the children and that they live with him and spend time with the mother on alternate weekends and special occasions.
In the alternative, the father proposes that the parties have equal shared parental responsibility for the children, that they continue to live with the mother and that there be time between the father and the children on a gradually increasing basis, culminating in time each alternate weekend and special occasions.
The father also proposes that the parties and the children engage in intensive family therapy with nominated providers, and that the mother engage in a course of psychotherapy with his nominated psychiatrist.
For the reasons that follow I will make orders that:-
·The mother have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the children;
·The children live with the mother;
·The children spend no time with the father;
·The father be permitted to send SMS text messages to the children’s mobile telephone no more frequently than once per month on the basis that there is no requirement or expectation that the children or any of them respond to such text messages; and
·The father be permitted to send cards and/or gifts to the children on the children’s birthdays and at Christmas.
THE PARTIES
The father was born in Country H and is aged 46 years. He is employed as a health professional. He lives in rental accommodation in a suburb of Melbourne.
The mother was also born in Country H and is aged 47 years. She is employed as a health professional and lives with the children in City L, New South Wales.
The parties married in Country H in 2006 and separated on a final basis in October 2018.
The children live with the mother in City L. X, who is aged 17 years, is in Year 12 at K School. Y is aged 13 years and is in Year 8 and Z is aged 11 ½ years and is in Year 6; both attend Q School.
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.
I am not in a position to, nor do I consider it necessary to make any findings with respect to the circumstances of the mother’s resignation from those training programs, particularly given the only evidence adduced in relation to the matters is the letter of Mr W proposing a meeting, and the conflicting accounts of the parties.
Even were I able to make findings with respect to those events, I am not persuaded that if accepted, the father’s account establishes the matters alleged by him. In circumstances where the matters alleged by the father occurred more than six years ago and relate to unproven allegations with respect to the mother’s workplace conduct, in my view, little weight can attach to them in the determination of what is in the children’s best interests. That view is bolstered in circumstances where:-
·The mother’s unchallenged evidence is that she has maintained her current employment as a health professional in City L for an extended period;
·There is no evidence of such issues in her current workplace; and
·She has been solely responsible for the care and support of the children since November 2020, and no concerns have been raised by third parties as to her workplace performance or by the children’s schools or health providers in relation to her care of the children.
The mother alleges that she was subjected to family violence at the hands of the father throughout the marriage. She also alleges that she was subjected to control and abuse. For example, the mother alleges that the father was verbally abusive, calling her “ugly” after the children were born,[5] slapping her face,[6] and forcing her to have sex, including one day post-partum after Y’s birth and Z’s birth.[7] The mother also alleges that the father controlled the parties’ money,[8] and that the father refused to permit the mother to communicate with the child Z when he was attending boarding school in Country H.[9]
[5] Mother’s affidavit filed 7 March 2023, paragraph 9(d).
[6] Mother’s affidavit filed 7 March 2013, paragraph 9(h).
[7] Mother’s affidavit filed 7 March 2023, paragraph 9(i).
[8] Mother’s affidavit filed 7 March 2023, paragraphs 9(k) & 9(l).
[9] Mother’s affidavit filed 7 March 2023, paragraph 9(n).
Further, the mother alleges that the family violence escalated to the point that by early 2018, the father threatened the mother asking her “What do you prefer homicide or suicide? I can easily prove your homicide as suicide […]”. The mother alleges that later that day the father assaulted her in the presence of X and Y. She deposes that her neighbours called the police, who assisted her in obtaining a Family Violence Restraining Order against the father.[10]
[10] Mother’s affidavit filed 7 March 2023, paragraph 9(p).
The father denies all allegations that he is a perpetrator of family violence.
In early 2018, following the incident that culminated in the mother obtaining the Family Violence Restraining Order, she travelled to Country H with X and Y.
The father travelled to Country H in mid-2018 and commenced proceedings there regarding the care arrangements for the children. Those proceedings were compromised between the parties in mid-2018 upon the execution of a “Deed of Compromise”. A few days later, the mother withdrew her Family Violence Restraining Order obtained in Western Australia.
The parties separated on a final basis in October 2018. The mother alleges that on that occasion the father was again abusive towards her whilst she was attending a location where she volunteered. The mother deposes that the father was asked to leave the location by management on that occasion. [11]
[11] Mother’s affidavit filed 7 March 2023, paragraph 9(u).
It is common ground that the father spent no time with the children following the parties’ final separation.
In early 2019, the father commenced proceedings in the Family Court, Country H, seeking orders that he have custody of the children.
In mid-2019 orders were made for the children to live with the mother and for the father to have “visitation” with them on two Sundays per month.
The mother alleges that she was subjected to abuse and threats by the father after those orders were made. She also alleges the children were exposed to the father’s aggressive and violent behaviour.
The father contends that the mother sought to thwart the operation of those orders.
Each of the parties filed applications in the Courts in Country H to press their respective complaints against the other.
Ultimately, in early 2020, the parties resolved their disputes by entering into a further “Deed of Agreement” which provided for the children to attend boarding school in Country H and to otherwise spend half of their school holidays with each parent.
As detailed earlier, notwithstanding the terms of that agreement, between March 2020 and November 2020, the father retained the children in his sole care at various locations in Country H. The mother contends that she did not know of the children’s whereabouts during this period and had very limited communication with them. As a result, in late 2020 the mother filed a Writ of Habeas Corpus in the High Court at City T seeking that the children be produced by the father and returned to her care.
In late 2020 orders were made in the High Court of City T that “the custody of the three minor children…shall forthwith be handed back by [the father] to [the mother] on or before [a date in late] 2020”. The mother deposes that the father appealed that decision but that his appeal was dismissed.[12]
[12] Mother’s affidavit filed 7 March 2023, paragraph 49.
The children were returned to the mother’s care in late 2020, and she returned to Australia with them in early 2021.
The father commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2) on 10 June 2021. The father sought orders that the parties be restrained from removing the children from the Commonwealth of Australia and that the children be placed on the Airport Watchlist.
On 27 October 2021 interim orders were made by consent that the children live with the mother, that the parties be restrained from removing the children from the Commonwealth of Australia, and that pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”), the New South Wales Department of Communities and Justice and the Western Australia Police Force and New South Wales Police Force each provide to the Court documents and information regarding the family. In addition, orders were made by the Court that the children communicate with the father by way of Facetime video each Tuesday and by way of telephone each Friday. A further order was made appointing an Independent Children’s Lawyer, and for the production of a Single Expert Report. Pursuant to those orders, Mr J was appointed as a single expert to report on issues relating to the welfare of the children.
The matter returned to Court on 14 December 2021. That day orders were made by a Senior Judicial Registrar that:-
·The father be restrained from taking any steps to locate the residence of the children or the mother, or the location of her employment and that he be restrained from coming within the City L Local Government Area. He was also restrained from coming into physical contact with the mother and from discussing with the children or asking them questions about the locality of the mother’s home;
·The mother and the children attend upon Mr J for the purposes of family report interviews and observations;
·The mother be restrained from moving the residence of the children from the City L Local Government Area; and
·The children’s passports be delivered to the Independent Children’s Lawyer for safekeeping.
Notwithstanding the orders made requiring the mother to attend with the children for interview with Mr J, that did not occur.
On 16 March 2022 further orders were made for the mother to attend upon Mr J for the purpose of family report interviews. Otherwise, the matter was listed for an interim defended hearing on 31 May 2022.
On 26 April 2022 the father filed a Contempt Application against the mother and on 28 April 2022 he filed a Contravention Application against the mother, alleging that she had breached the orders made 27 October 2021.
The parties’ competing interim applications were listed for hearing on 31 May 2022. That day orders were made for the transfer of the proceedings to this Court and otherwise that until further order:-
·The mother have sole parental responsibility for the children;
·The orders made for the father to communicate with the children on 27 October 2021 be suspended; and
·The father be permitted to send text messages to the children’s mobile telephone on the basis that nothing in the order requires the children to respond to such messages.
The father’s contempt and contravention applications were listed before Justice Smith on 21 June 2022. Upon hearing submissions, His Honour determined that both applications ought be stood-over generally for allocation for hearing at a later date. His Honour provided brief Ex-Tempore Reasons for Judgment in relation to that decision.
As to the Contravention Application, His Honour noted that it related to the mother’s alleged failure to make the children available for telephone communication with the father. In circumstances where the operation of that order had been suspended by orders made at the interim defended hearing on 31 May 2022, His Honour determined that there was no utility in the hearing of that application at this stage.[13]
[13] Nambisan & Nambisan [2022] FedCFamC1F 448, paragraph 3.
In relation to the Contempt Application, His Honour noted that it related to the mother’s failure to attend upon Mr J with the children for the preparation of the Family Report. The Ex‑Tempore Reasons for Judgment record that the mother denied the contempt on the basis that she did not attend as the child, X, refused to attend, that she was concerned for his mental health and did not wish to leave him. The judgment records that the mother proposed to attend a further appointment with the two younger children so that the report could be completed, but that the father declined the opportunity to arrange a further appointment with Mr J.
His Honour noted that the father would not agree to that proposed course and sought to press his application against the mother for contempt. His Honour also recorded the father’s view that there was no utility in the preparation of the Family Report until such time as the mother was psychiatrically assessed. His Honour observed that the ICL did not support the father’s position. In those circumstances, His Honour declined to list the Contempt Application.[14]
[14] Nambisan & Nambisan [2022] FedCFamC1F 448, paragraphs 4 – 11.
In late 2022 the mother obtained a Final Family Violence Intervention Order against the father, listing herself and the children as the named affected family members. That order will expire in early 2025.
The matter was allocated to my docket in July 2022 and on 25 November 2022 I made trial directions listing the matter for final hearing commencing 13 June 2023. That day the father withdrew his Contempt Application filed 26 April 2022 and his Contravention Application filed 28 April 2022.
On 9 May 2023, being little more than a month from final hearing, the father filed a further application seeking a finding of contempt against the mother. That application alleged that the mother had changed the child X’s school enrolment in breach of orders made 14 December 2021 restraining her from doing so.
That application was heard by Justice McNab on 6 June 2023. In his Reasons for Judgment His Honour recorded the father’s position to be that if the mother was found to be acting in contempt of the Court, a sentence of imprisonment should be imposed.[15] His Honour also noted that this was the third Contempt Application issued by the father and that at the time of the change of school, the mother had sole parental responsibility (pursuant to orders made 31 May 2022); her explanation for the change of school, that she was acting in what she thought were X’s best interests, was accepted by His Honour. Accordingly, His Honour did not find the mother’s conduct to be a “flagrant challenge” to the Court’s authority and the father’s application was dismissed.
[15] Nambisan & Nambisan (No. 4) [2023] FedCFamC1F 467, paragraph 15.
The final hearing commenced on 13 June 2023 and proceeded over four days.
MATERIAL RELIED UPON
The father relies upon the following documents:-
·Outline of Case document filed 6 June 2023;
·Amended Application for Final Orders filed 7 June 2023;
·Trial affidavit of the applicant filed 6 February 2023;
·Affidavit in Reply of the applicant filed 20 March 2023;
·Affidavit of Dr CC filed 11 March 2022;
·Affidavit of Mr J filed 26 May 2022;
·Affidavit of Dr G filed 30 May 2023; and
·Exhibits F1 – F7, being exhibits tendered during the court of proceedings.
The mother relies upon the following documents:-
·Amended Outline of Case document filed 11 June 2023;
·Amended Response to Application for Final Orders filed 9 June 2023;
·Trial affidavit of the respondent filed 7 March 2023;
·Affidavit of Mr J filed 26 May 2022;
·Affidavit of Dr C filed 30 May 2023; and
·Exhibits M1 – M3, being exhibits tendered during the court of proceedings.
The ICL replies upon the following documents:-
·Outline of Case document filed 6 June 2023;
·Affidavit of Mr J filed 26 May 2022;
·Affidavit of Dr C filed 30 May 2023;
·Affidavit of Dr G filed 30 May 2023; and
·Exhibits ICL1 – ICL4, being exhibits tendered during the course of proceedings.
ORDERS SOUGHT
The father seeks orders in the following terms, as specified in the Minute of Proposed Parenting Orders tendered on his behalf (Exhibit F7):-
MINUTE OF ORDERS SOUGHT BY APPLICANT FATHER
1.In the event that the Court finds the Mother is an acceptable risk to the children and/or will facilitate a meaningful relationship with the Father and the children:
a)That the parties have equal parental responsibility of the children [X] born […] 2007, [Y] born […] 2011, and [Z] born […] 2012 (“the children”);
b)That the parties be responsible for the daily care, welfare and development of the children when the children are in their respective care;
c)That the children live with the Mother;
d)That the children spend time with the Father:
•For period (sic) of two (2) months, each Sunday between 10:00am and 2:00pm to be supervised at a contact centre within fifty (50) kilometres from [City L], the costs of which are to be borne by the Father;
•Thereafter, for a period of two (2) months, each Sunday between 10:00am and 2:00pm unsupervised;
•Thereafter, for a period of two (2) months, each Sunday between 10:00am and 6:00pm unsupervised;
•Thereafter, each alternate weekend between 12:00pm Saturday to 6:00pm Sunday unsupervised;
•The children’s birthdays:
·During the week, by telephone of Facetime between 6:00pm and 6:30pm; and
·On a weekend, between 12:00pm ad 4:00pm.
•The Father’s birthdays (sic):
·During the week, by telephone or Facetime between 6:00pm and 6:30pm; and
·On a weekend, between 12:00pm Saturday and 6:00pm Sunday.
•For the first half of the applicable school holidays in the even years and the second half of the applicable school holidays in the odd years commencing in the 2023 Christmas school holidays.
e) That the children communicate with the Father by telephone or Facetime each Tuesday and Friday between 6:00pm and 6:30pm with such communications to be instigated by the Mother, and facilitated by the Mother and otherwise held in private.
2.In the event that the Court finds the Mother is an unacceptable risk to the children and/or will not facilitate a meaningful relationship with the Father and the children:
a)That the Father have sole parental responsibility of the children [X] born […] 2007, [Y] born […] 2011, and [Z] born […] 2012 (“the children”);
b)That the parties be responsible for the daily care, welfare and development of the children when the children are in their respective care.
c)That the children live with the Father after a period of 12 weeks
d)That the children spend time with the Mother:
i.Each alternate weekend between 12:00pm Saturday to 6:00pm Sunday;
ii.The children’s birthdays:
1.During the week, by telephone or Facetime between 6:00pm and 6:30pm; and
2.On a weekend, between 12:00pm and 4:00pm.
iii.The Mother’s birthdays (sic):
1.During the week, by telephone or Facetime between 6:00pm and 6:30pm; and
2.On a weekend, between 12:00pm Saturday and 6:00pm Sunday.
iv.For the first half of the applicable school holidays in the even years and the second half of the applicable school holidays in the odd years.
e)That the children communicate with the Mother by telephone or Facetime each Tuesday and Friday between 6:00pm and 6:30pm with such communications to be instigated by the Mother, and facilitated by the Father and otherwise held in private.
3.In any event, the Father seeks orders:
a)That changeover occur at a police station equidistant between the respective residences of the parties.
b)That the Father be at liberty to SMS the children at any reasonable time.
c)That the children shall spend Christmas Day as follows:
i)In the odd years, with the Father from 5:00 (sic) Christmas Eve to 5:00pm Boxing Day; and
ii)In the even years, with the Mother from 5:00 (sic) Christmas Eve to 5:00pm Boxing Day;
d)That until 8 January 2025, [Mr Nambisan] born […] 1977 and [Ms Nambisan] born […] 1976, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated by Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia AND it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders their removal.
e)That the Mother and the ICL surrender to the Registrar of this Court at [City L] all of the children’s passports to be held pending further agreement or court order.
f)That the Mother be restrained and injuncted herself, her servant or her agents from removing the children from the [City L] Local Government Area without agreement or court order.
g)That the children and the parties attend upon [Ms DD] and/or [Dr EE] for intensive family therapy as recommended, in respect of which:
i) The costs of which will be borne by the Father;
ii)The parties will ensure that the children attend all sessions as recommended by [Ms DD] and/or [Dr EE] or such other practitioners as the court recommends;
iii)Unless recommended otherwise by [Ms DD] or [Dr EE], the sessions shall occur at least once per month for a period of at least 6 months; and
iv)If [Ms DD] or [Dr EE] recommend that any of the children see a separate therapist, the parties will ensure that occurs and the children in that regard will see and continue to see [Dr BB] as recommended from time to time by [Dr BB].
h)That the Father and the children participate in therapeutic rehabilitation with psychologist (sic) at [D Lawyers] or such other psychologist as the court direct as and when recommended by that psychologist.
i)That the Mother within seven (7) days attend upon [Dr AA] or such other psychiatrist as the Court recommends for the purpose of psychotherapy and continue to do so, and take any medication that may be prescribed as recommended by [Dr AA].
j)That each parent will notify the other by telephone as soon as possible of any major or emergency matter relating to the health and/or wellbeing of the children or that parent whilst the children are in the care of that parent.
k)That this order is sufficient authority to any doctor, hospital and/or any other health professional to provide to the parties any information concerning the health of the children.
l)That both parents take all necessary steps with the principal/secretary of any school at which the children are enrolled to enable each parent to directly receive at his or her cost, a copy of the children’s reports, photographs, newsletters, and information pertaining to the children.
m)That both parents be entitled to attend all functions to which parents are invited including, but not limited to, plays, concerts, sports days, fetes, and parent/teacher meetings.
n)That both parents inform each other of changes of telephone numbers, email addresses or postal addresses within 24 hours of such event.
o)That neither parent shall make any comment in front of or to the children which demeans or belittles the other parent or the children.
p)That the parties attend a family dispute resolution conference in the event there is an intractable dispute regarding parenting arrangements.
q)That the parties be restrained from and an injunction issued restraining them from:
i) physically disciplining the children;
ii)denigrating the children in the presence or hearing of the other party or allowing any third person to do so.
r)That the Father return the children to the Mother in the event that a child becomes unduly distressed.
s)Pursuant to s68B of the Family Law Act 1975 (Cth), the mother is restrained from changing the residence of the children from the [Region U Local Government Area] or from changing the enrolment of the children from their current school.
t)That all previous Orders be discharged.
u)That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:-
i)The parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
ii)They shall pay the costs of the Family Dispute Resolution Practitioner equally; and
iii)In the event that the parents are unable to agree on the selection of the Family Dispute Resolution Practitioner, the Father shall nominate three practitioners and advise in writing details of their fees, experience and availability; The Mother shall choose one of the listed practitioners within seven (sic)
The mother seeks orders in the following terms, as specified in the Minute of Proposed Parenting Orders tendered on her behalf (Exhibit M3):-
Minute of Final orders sought by [Ms Nambisan]
1.That all previous parenting orders be discharged.
Parental Responsibility and Live With Orders
2.That the Mother shall have sole parental responsibility for the children, namely [X] born […] 2007, [Y] born […] 2011, and [Z] born […] 2012 (“the children”)
3.That the children shall live with the Mother.
4.The Father is permitted to send text messages to the children’s mobile phone number ([…]) but nothing in this order requires that the children respond to those text messages if that is their wish not to do so.
5.That except as provided above, the children otherwise do not spend time with or communicate with their Father.
Section 68B Injunction
6.Pursuant to section 68B of the Family Law Act 1975 (Cth) for the protection of the Mother and the children [X] born […] 2007, [Y] born […] 2011 and [Z] born […] 2012 (“the children”) that the Father:
a. Not take any steps to locate the residence of the children or the Mother;
b. Not take any steps to discern the location of the Mother’s employment;
c.Be restrained from coming within the [City L] Local Government Area and the [City S] Local Government Area.
Removal of the Airport Watch List
7.All prior Orders restraining the removal of the children X born […] 2007, Y born […] 2011, and Z born […] 2012 (“the children”) from the Commonwealth of Australia be discharged.
8.AND IT IS REQUESTED THAT the Australian Federal Police remove the name of the children from the Watch List at all points of international arrivals and departures in Australia.
Passport Orders
9.IT IS DECLARED THAT pursuant to ss.7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the Applicant Father to enable the children of the relationship namely [X] born […] 2007, [Y] born […] 2011, and [Z] born […] 2012 (“the children”) to obtain an Australian Passport to travel internationally, the Court makes the following orders:
9.1 The Mother of the children be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the father of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the Applicant Father.
Section 102QB Orders
10.That Pursuant to section 102QB(2) of the Family Law Act 1975, the Father, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the Mother, without first having obtained leave by the Court to do so pursuant to section 102QE of the Family Law Act 1975.
11.That pursuant to section 102QB(2)(b) of the Family Law Act 1975, the Father be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the children, without first having obtained leave by the Court to do so pursuant to section 102QE of the Family Law Act 1975.
Discharge appointment of Independent Children’s Lawyer
12.The order appointing the Independent Children’s Lawyer dated 27 October 2021 be discharged.
Dismissal of Application
13.That all extant applications be dismissed.
Costs
14.That the Father pay the Mother’s costs on an indemnity basis fixed at the sum of $76,698.58
The ICL seeks orders in the following terms, as specified in the Minute of Proposed Parenting Orders tendered during the proceedings (Exhibit ICL4):-
MINUTE OF ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER
1.All previous parenting orders be discharged.
2.The mother has sole parental responsibility for the children, [X] born […] 2007, [Y] born […] 2011, and [Z] born […] 2012 (“the children”).
3.The children live with the mother.
4.The children spend no time with the father.
5.The father be permitted to send text messages to the children’s mobile phone number ([…]) no more frequently than three times each week. Nothing in this Order requires that the children respond to those text messages.
6.The father be permitted to send cards and/or gifts to the children via the mother’s postal address – Post Office Box […], [City S] Victoria. Where appropriate, the mother will forward the cards and gifts to the children.
7.The mother will notify the father of any change to her postal address or children’s mobile telephone number within 24hours (sic) by email.
8.The father is at liberty to obtain semester school reports regarding the children from their schools by email or post and these Orders are authority for the father to obtain those reports.
9.Pursuant to s68B 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.
10.Pursuant to s68B of the Family Law Act 1975 (Cth), the mother is restrained from changing the residence of the children from the [Region U Local Government Area] or from changing the enrolment of the children from their current school.
11.That within 7days (sic) the ICL will 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 18years (sic) old.
12.That 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.
13.That 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.
14.That 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 […] 2030 (sic)) 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.
15.That Order 14 of the Orders made 27 October 2021 appointing the Independent Children’s Lawyer be discharged.
16.That the Independent Children Lawyer’s costs of and incidental to these proceedings be paid equally by the parties.
THE ISSUES
The issues that emerge from the parties’ applications include:-
·Whether the mother and the children have been subjected to family violence by the father?
·Does the father pose an unacceptable risk of harm to the children?
·Has the mother sought to alienate the father or undermine his relationship with the children?
·Does the mother pose a risk of psychological and/or emotional harm to the children?
·If either parent poses a risk of harm to the children, what arrangements should be made for their care, including what, if any, time should be spent with the other parent?
·Should the mother or the father have sole parental responsibility for making decisions regarding the children’s long-term care, welfare and development or should such responsibility be shared?
THE EVIDENCE
In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
(a)The nature of the cause of action or defence; and
(b)The nature of the subject-matter of the proceeding; and
(c)The gravity of the matters alleged.
I have read all documents upon which the parties have relied and the exhibits that were tendered during the hearing.
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.
When challenged as to his own behaviour and how he had contributed to the breakdown in his relationship with the children, the father presented as blameless; he demonstrated little insight as to his role and could offer no suggestion as to how he could modify his behaviour to improve his relationship with the children. The father’s view was that it is entirely due to the mother’s actions that the children informed the Family Report Writer, Dr C, that they do not wish to spend time with him; he accepts no responsibility for his role in the breakdown of that relationship.
Throughout his evidence, the father demonstrated little insight as to the children’s needs. He was cross-examined as to his application made during the contempt proceedings that the mother be imprisoned if found to be in contempt of Court orders. The father confirmed that he sought that penalty as he wanted her to “learn the lesson”. The father demonstrated little, if any, awareness as to the likely adverse impact upon the children were the mother incarcerated.
When cross-examined as to his failure to pay child support, I observed the father to be an evasive witness. Although he does not pay periodic child support, the father indicated that he would seek to have the children board at R School were his application for a change of residence successful. Seemingly, the father has sufficient income to meet the fees associated with attendance at a private boarding school but does not consider it necessary to provide periodic support to the children whilst in the mother’s care.
When questioned in relation to what applications he had made to the boarding school and whether he had received offers of a place for the children to be enrolled there, the father avoided those questions; he provided little detail as to his proposals. As a result, I was left with the impression that notwithstanding his grand statements as to his plans to enrol the children at that school, the father had taken no action to implement those proposals.
Similarly, when cross-examined as to the children’s care arrangements between March and November 2020 when they were in his sole care in Country H, the father provided non‑responsive answers in relation to questions asked as to where the children lived during that period, how their meals were prepared and who attended to their needs.
When it was put to him that the mother was not informed as to the children’s whereabouts during the period, the father sought to deflect that question, stating the children were corresponding with the mother on WhatsApp and referring to the mother’s “mental health issues”.[17]
[17] Transcript 13 June 2023, p. 44 lines 1 – 5.
The father conceded that the children were returned to the mother’s care as a result of Court order but maintained that the children did not want to return to her. The father was challenged in relation to that assertion and questioned as to the Trial Judge’s findings that he was coaching the children. The father denied that allegation.
The father was then cross-examined in relation to an email forwarded by X to the mother when in the father’s care. That email, dated April 2020 (Exhibit M1) read, in part, as follows:-
Hello mama,
We are very disappointed that you are continuing to make false accusations even in holidays which were early due to coronavirus- against our father-[Mr Nambisan] who is making all the best possible efforts to keep us safe,well, (sic) build our character and make us enjoy our vacations in [Country H], by extending his leave from his job- so that we all are happy and continuing our studies via online mode. Apart from online video classes from our […] school- we all are doing homework, assignments,indoor (sic) fitness training and activities […]. We have also seen [a cultural tale] and taken inspiration from the story about truth,honesty (sic) […] etc. and listen to moral stories daily. Papa has shown me your complaint- So, I want to clarify some points with you as below:-
1.You are well aware that I did not join school on […] 2020 because I wanted to go to Australia with Papa for which you only gave permission on whatsapp message to me and even agreed for me to travel to Australia to resume my education and career there…However despite my repeated requests you did not give my passport ,so (sic) that I was not able to travel with Papa…School needs our passports to continue and can you confirm you have paid balance (sic) of our fees and will you pay next year’s 50 percent fees as you agreed?...
2.[Z] wants to travel only with Papa and remain in his custody like us…
3.We are very busy here with our online classes,homework,activities (sic) etc. There has been some mobile network issues here and due to Coronavirus all the mobile shops are closed. We have limited data required for online studies. Still, we have been communicating with you on whatsapp and email, when we get time but you are not replying to our meaningful messages…
4.All our statements have been taken independently in our own hand writing and in presence of school staff and child welfare officials and with our free will.Papa (sic) is very nice and loving father who has sacrificed his career for our well beings and is (sic) best father in the world,who (sic) has never done any abuse or violence.
….
Papa has told us that as per law -minority and guardianship act ,section 6-custody (sic) of male children above 5 years goes to father–and (sic) we all want to remain in his guardianship only.
….
At the time that letter was sent, X was aged 13 years. It is evident from its contents that X has been informed as to the dispute between the parents in relation to the care arrangements for the children. Notwithstanding its contents, the father maintained during his oral evidence that X is very mature, that he “understands what’s going on”, is very intelligent, that his NAPLAN score is “off the scale” and that he wrote the letter.
Having regard to the letter’s contents, its clear reference to information regarding the legal dispute, and to legislation apparently referred to by the father, I do not accept that evidence. I am satisfied that the letter is the product of the father’s influence and not the work of the parties’ then 13-year-old son. Whilst the father was at pains to prove that the children’s views were the result of the mother’s coaching and influence, I am satisfied, having regard to that letter and the comments of the Trial Judge in the Country H proceedings, that during the period when the children were in his sole care in 2020, it was in fact, the father who exerted pressure and influence upon them.
During his oral evidence, the father demonstrated little insight, understanding, or awareness as to the impact of his behaviour upon the children. Notwithstanding the fact that during 2020 the father withheld the children from the mother (who until that time had been their primary caregiver), for a period of eight months, the father’s evidence was that the children were “very happy” in his care during that period.
In contrast, the Family Report Writer, Dr C’s evidence is that the children have been significantly affected by that event.
Each of the children expressed to Dr C their reluctance to spend time with the father. Further, the children provided examples to Dr C of the abuse and family violence to which they were exposed in the father’s care. Dr C reported that at interview, the children were anxious about seeing the father, that Y, Z and X physically distanced themselves from him and that during observation, Y asked the father “challenging questions” and confronted him as to why he had hurt them.[18]
[18] Family Report dated 17 May 2023 prepared by Dr C, paragraphs 111 – 113.
When cross-examined about that session, the father’s account of the meeting was that the children were happy to see him. His account was diametrically opposed to the evidence of Dr C as to her observations of the children’s behaviour at their meeting with the father. In circumstances where Dr C is an independent expert whose account of those events was unchallenged, I prefer her evidence as to the children’s responses and reactions to the father.
The father sought to criticise and blame the mother for the breakdown of his relationship with the children at every opportunity. When asked as to whether the mother had any positive attributes as a parent, the father could think of none. Throughout his evidence the father sought to impress that he was blameless for the circumstances in which he found himself and sought to minimise his own role in the parental dispute. I do not accept that evidence.
As a result, I am satisfied that where the father’s evidence conflicts with other witnesses, his evidence should be treated with caution.
THE MOTHER’S EVIDENCE
The mother gave evidence and was cross-examined on the second day of hearing. She was cross-examined by Counsel for the father and Counsel for the ICL.
The mother was, at times, an unreliable witness. For example, when cross-examined as to the number of schools attended by X in City L, her evidence was that he had attended only two schools in the area. Further cross-examination of the mother confirmed that, in fact, X had attended three different schools in the district. The mother sought to justify her misleading evidence on the basis that X had attended the second school only for a matter of weeks.
The mother was also cross-examined in relation to the children’s diary notes produced by her. It was put to the mother that she requested the children to write those notes. She denied that proposition. Unlike the letter written by X referred to earlier (Exhibit M1), the notes (Exhibit F3), which the mother states were written in 2019 when the children were aged 12, eight and seven, are in the children’s own handwriting and use child-like language. For example Y wrote:-
He told me to Close my Eyes and Think Mummy is in Jail…
I didn’t feel Good or Nice On talking to him…[19]
[19] Exhibit F3, p. 1.
The mother’s evidence was that the children wrote the notes following a visit with the father in May 2019. She denied the allegation that she had the children write them, noting that at the time, the father wanted the children to live with him, that he was denigrating her to the children, calling her names such as “crazy” and “mental”; she maintained that the notes reflected the children’s own feelings. In part, the notes record what might be considered to be the children’s complaints about the father. For example, they state:-
Kept on pressurizing me to stay with him. When I don’t want to live with him because I don’t feel comfortable and safe with him.
I have seen him lock my mother in a room and my neighbor (sic) called police to save my mother[20]
[20] Exhibit F3, p. 2.
The mother’s evidence as to the providence of the notes was unconvincing. Having regard to the content of the notes, I am satisfied on the balance of probabilities that they were likely written at the mother’s behest, albeit they are written in the children’s own words; the language and style of the notes is in stark contrast to the email forwarded by X to the mother a year later (Exhibit M1).
The mother’s evidence as to her failure to comply with orders requiring the children to attend upon Mr J for interview was also unimpressive. The mother confirmed during cross-examination that notwithstanding that order and a pending review hearing in relation to it, she made appointments for the children to attend upon another psychologist for a report. The father was critical of the mother for her failure to comply with that order. I am satisfied that those criticisms are justified.
Whilst some aspects of the mother’s evidence were troubling, unlike the father, the mother did make concessions. For example, during cross-examination the mother acknowledged the importance of the children having a paternal role-model. She acknowledged that there were aspects of the children’s development, particularly as they matured, that meant they would benefit from the father’s guidance.
The mother provided detailed evidence as to the father’s alleged abuse and threats against her and the children. Her evidence in relation to those matters was unshaken during cross‑examination. I found the mother’s evidence in relation to those incidents to be compelling. I accept that she is genuinely fearful of the father.
During cross-examination, the mother gave evidence as to her concerns that the father was stalking her, particularly during the period when the father relocated from Brisbane to the town of City S, notwithstanding the fact that there was an injunction restraining him from entering the Local Government Area and he was spending no time with the children. I am satisfied that the mother’s fears were justified, having regard to the father’s conduct in relocating to City S in the face of an injunction that restrained him from locating the residence of the mother and the children, discerning the location of the mother’s employment, or coming within the Local Government area.[21]
[21] Orders dated 14 December 2021, Order 1.
The mother also gave evidence as to her concerns that the father was monitoring her movements through her post office box, noting when she was collecting mail and the like. The mother’s evidence was that she contacted police due to those concerns. She also gave evidence regarding the father’s conduct in repeatedly requesting police to undertake welfare checks of her and the children, alleging that she was “mentally unwell” and that she was “hurting the children”. The mother was steadfast in her evidence that she had raised her concerns regarding the father’s conduct with police. I accept her evidence in relation to these matters.
In response to that evidence, Counsel for the father put to the mother that she was suffering from “some paranoia”. The mother rejected that proposition.
The mother was extensively cross-examined by the father’s Counsel as to the events leading up to the parties’ initial separation in April 2018. The mother confirmed during her oral evidence that the father threatened her with a weapon, that she left the home for the day and upon her return, the father attempted to harm her and that she was assisted by neighbours who called the police on her behalf.
In his written submissions (Exhibit F6), the father challenged the mother’s credit, contending that there were inconsistencies with respect to her allegations of family violence. In particular, the omission of the reference to a weapon in the Western Australia Police Force Interagency Information Statement (Exhibit F2). Whilst there is no reference to the weapon in that document or in the mother’s trial affidavit, I do not consider those omissions as determinative of the issue. The mother’s oral evidence was consistent with her statements made to Dr C about that incident.[22] Further, the mother’s account of those events was unshaken during cross-examination and was compelling. I accept her evidence as to those events.
[22] Family Report dated 17 May 2023 prepared by Dr C, paragraph 130.
The reality is the mother alleges many instances of family violence in her trial affidavit; she maintains that the father was a perpetrator of family violence towards her over many years. Given those matters, it is unsurprising that she has not particularised every aspect of the father’s behaviour.
The father is also critical of the mother for not reporting her allegations to police or adducing medical evidence of alleged assaults. Again, I do not consider those matters to be determinative of whether the alleged events occurred. Victims of family violence often do not report to police or seek medical help for many reasons, including fear of their perpetrator or shame. The mother’s evidence is that she was fearful of contacting police, and further, that she was pressured by family members to withdraw her complaints against the father.[23]
[23] Mother’s affidavit filed 7 March 2023, paragraph 20.
The mother’s oral evidence in relation to family violence was believable and her fear of the father appeared genuine. When that evidence is considered in conjunction with the children’s accounts of their experiences of violence at the hands of the father, as reported to Dr C, coupled with their responses to the father during observation by her, I am satisfied on the balance of probabilities that the mother has been a victim of family violence at the hands of the father.
When giving evidence in relation to the children, I found the mother to be child-focussed and insightful as to their needs. For example, it was evident that her decision to change X’s school was motivated by her commitment to ensure that he was able to undertake the subjects of his choosing.
Although there were instances when the mother was less than frank with the Court, I am satisfied that such evidence was influenced by her fear of the father and the possibility that orders would be made for the children to resume a relationship with him; it was clear throughout her evidence that the mother has been deeply affected by the period in 2020 during which the father withheld the children from her, and also by her own experiences of his controlling and violent behaviour. I am satisfied that those events have shaped and influenced her attitude towards the father and his relationship with the children, and impacted the manner in which she gave evidence in these proceedings.
Dr CC
The father relied upon an affidavit of Dr CC filed 11 March 2022. The affidavit was not affirmed and Dr CC was not required for cross-examination.
Dr CC is a health professional and friend of the father. In his unsworn statement, he claims to have spoken to the children by video when in the father’s care. He speculates that the mother may “impulsively decide to harm herself or the children” and further expresses the view the children are at risk with the mother. Dr CC does not identify the bases for those opinions.
In circumstances where the statement is not affirmed, the maker does not identify when or where he spoke to the children or the duration of such conversations, does not identify any bases for the alleged risks posed by the mother and the statement is silent as to his qualifications to express such opinions, I place little weight on the document.
EXPERT EVIDENCE
Dr C
Dr C was appointed as the Court Child Expert to prepare a Family Report pursuant to orders made by me on 25 November 2022.
Dr C is a Forensic Psychologist. She was employed in the Melbourne Registry of the Federal Circuit Court and the Family Court of Australia (as they then were) as a Family Consultant between 2017 and 2019. Since 2019 she has worked in private practice. There was no challenge to her professional qualifications.
Dr C Family Report dated 17 May 2023 is Annexure “C” to her affidavit filed 30 May 2023.
At page 29 of her affidavit, Dr C identifies the sources of information for the Family Report, which include interviews and observation with the mother, the children and the father conducted on 30 March 2023. She also confirms the material read at pages 30 to 33 inclusive of that affidavit.
Dr C provided a detailed account of her interviews with the parties and the children and of her observations of the children with the parties. In addition to the information obtained from those sources, Dr C identified the collateral information obtained by her from medical records, the children’s school, police records and the New South Wales Department of Communities and Justice.
Dr C sets out her recommendations as to the live-with and spend-time arrangements at [201] to [207] inclusive, of the Family Report. In summary, those recommendations include that:-
·The children will benefit from an arrangement that promotes stability, consistency and routine. The current primary care arrangement with the mother appears to have provided the children with the stability they have lacked and thus it would be preferable for this to continue;
·X is of an age where he ought be given greater autonomy with regards to managing his relationships with each parent. It would be reasonable for X to spend time and communicate with each parent as per his wishes;
·If the Court determines the children are at risk in the father’s care and such risk cannot be reasonably managed or mitigated, then the mother’s proposal for no contact with the father would be appropriate;
·If the Court determines that the concerns of the mother and the children are disproportionate to the actual risk, then consideration be given to a staged approach to a reintroduction of time with the father. Were that to occur, the children would need assistance through therapy with a clinician who specialises in family law and such time would need to be professionally supervised given the length of time since the children have spent time with the father; and
·If the father is able to demonstrate a sustained period of appropriate interaction with the children and evidence of meaningful progress in therapy, consideration could be given to progression to spend-time arrangements at regular unsupervised periods.
During cross-examination by Counsel for the ICL, Dr C confirmed the importance for the children of having stability and consistency. She observed that when speaking with the children part of their concern was where “this is going to lead to”; that is, if faced with the prospect of resuming time with the father, does that mean that in the future they will have to go and live with him, or is he going to remove them from the mother’s care again?
Further, Dr C observed that if therapeutic interventions are to work with the family, the parties need to acknowledge that there are issues and commit to working on them.
As to the father, Dr C confirmed her assessment that he had “limited insight” at the time of interview. She was uncertain as to whether that insight could be drawn out in therapy. Dr C confirmed that she was concerned by the father’s presentation during observation and as to his narrative about those observations, which were very different to what she had observed.
This was confirmed at [187] of the Family Report where Dr C noted:-
Despite [the father’s] claims of a previously strong, loving bond with the children, none of the children evidence a strong bond with [the father] currently. [X] was perhaps the child with the most connection to [the father], however even this was strained and there was minimal engagement with him. All three children struggled to tolerate being in their father’s presence for any great length of time (i.e. more than 10 minutes) and all of them kept their physical distance and did not choose to show him any affection. This was also in contrast to [the father’s] perception of what occurred during the observations.
Dr C amplified those concerns at [196] where she reported:-
[The father’s] capacity to recognise the children’s immediate physical and emotional needs during the observation was also lacking, such as attempting to move close to the children and presenting as over-enthusiastic in his engagement rather than allowing the children to settle and guide the interaction.
During cross-examination, Dr C was questioned as to the necessity for the father to engage in therapy before he could commence time with the children. Dr C observed that:-
…He needs to be ready and prepared to be able to engage with the children appropriately, because part of the …concern that I observed was…essentially he was oblivious to how the children were presenting on the day in terms of that they needed that space, physical space, and awareness and support from him, rather than being essentially all over them and wanting to hug them and engage with them, and “Give me your phone number,” and “Let’s do this,” and it was too much.[24]
[24] Transcript 15 June 2023, p. 236 lines 12 – 18.
When pressed, Dr C indicated that the father would need to engage with therapy for a minimum of 12 weeks and noted that usually it is a three to six-month period before seeing any gains in a therapeutic context.
Counsel for the father cross-examined Dr C as to the prospect of the parties being able to share special occasions with the children. Dr C was pessimistic about the capacity of the parents to be child-focussed in relation to such matters. Dr C stated that from her perspective, the issue is “that the parents believe that they are being child-focused (sic)…but the problem is they’re adapting their own views and adopting those to the children rather than perceiving that the children have different experiences and views and needs”.[25]
[25] Transcript 15 June 2023, p. 238, lines 32 – 37.
Counsel for the father also cross-examined Dr C as to the mother’s capacity to support and comply with Court orders. At [80] of the Family Report, Dr C noted:-
[The mother] denied intentionally failing to follow court orders. She confirmed she had changed [X’s] school but stated that he had remained in the local area and she had done so as [X’s] current school offered him better electives. [The mother] explained that she did not attend the previous Family Report interviews with [Mr J] as the children were not coping and there was concern about their mental health. She reported having been advised by a general practitioner not to force the children to participate in person. That said, [the mother] was clear that if the Court ordered that the children were to spend time with their father, then “I will say no” and will not support the same.
Dr C confirmed that her notes of interview recorded the mother’s statement that she would not support contact.
Dr C was also cross-examined by the father’s Counsel as to the mother’s presentation and whether she required further psychiatric assessment or intervention. Dr C did not support that proposition. At [83] of the Family Report, Dr C observed that there was some evidence of X being protective of his younger siblings and his mother, and some evidence of parentification, with X taking on some of the worry and concern typically shouldered by adults or caregivers. As to whether those features indicated that the mother required psychiatric assessment, Dr C was clear that she did not believe this to be so; she did not get the sense from her meeting with the children that the day-to-day aspects of their care were necessarily the sole responsibility of the children or X. Further, she did not get the sense that X was not being emotionally cared for by the mother.
As to the observations by Dr G that the mother had not presented with features of traumatisation, flashbacks, avoidance or wariness, Dr C confirmed that such presentation was not indicative of someone who had not experienced family violence. Rather, she observed that such presentation indicates someone who does not fit the criteria for a psychological or psychiatric disorder, such as post-traumatic stress disorder or anxiety.
As to the mother’s decision that the gifts presented to the children by the father at interview be left with Dr C rather than retained by them, Dr C confirmed that she understood that they were left due to the concern of the mother that the gifts may have tracking devices. Dr C was questioned as to whether such concerns indicated paranoia. Dr C rejected that proposition and stated that she considered such decision to be hypervigilant or perhaps an exaggerated concern in relation to the scenario.
It was then put to Dr C that the mother’s decision to leave the gifts behind was one made out of spite rather than anxiety. Dr C acknowledged that whilst that was a possibility, it was not her impression that this was the mother’s motivation in this case.
Dr C was also cross-examined in relation to her assessment of the children’s disclosures of family violence by the father. As to X, Dr C reported at [86]:-
[X] stated that the worst incident was when his father kneed him in the back. He stated that he nearly “peed my pants” because of it, adding that his father’s actions were completely disproportionate in the context of a sibling dispute.
At [87] Dr C reported X’s account of the period when the children were in the father’s care in 2020 as follows:-
[X] confirmed that he and his siblings stayed in hotels with [the father] when they resided with him in [Country H]. [Y] reportedly locked himself in his room because [the father] was “beating him up”. [X] described feeling “so scared, I thought I was going to die”. He recalled asking to call [the mother] and being told no and that she was a “bad person”. He also disclosed that [the father] made the children record videos, with his father writing down and telling the children what to say. [X] reported feeling “so scared” that he and his siblings complied.
In conclusion, Dr C reported at [91] in relation to X as follows:-
[X] was clear that he, his brothers and his mother had experienced abuse perpetrated by [the father] for years and therefore he believed the Court “shouldn’t give any right” to [the father] to contact them.
Dr C also recorded disclosures made by Y in relation to the father’s abusive behaviour. At [94] she reports:-
According to [Y], there was an occasion when they were residing in Western Australia when [the father] was hitting [the mother] and police were called. [The father] also reportedly screamed at [the mother] when they were out to dinner.
Further, at [95] – [96], Dr C notes the following disclosures by Y:-
95.…[W]hen in his father’s care in 2020, his father would not let him see his mother. He alleged that there was a “serious” incident involving [the father] choking [Z]. There was also a time when [Y] tried to jump out of the car as [the father] was hitting him and his brother and was yelling and screaming at him in response to him trying to jump out of the car. [Y] stated that he did this as he wanted to go back to his mother.
96.Further, [Y] recalled that when they were living in a hotel in [the father’s] care, he spilt food on the floor and knew [the father] would “beat me” so he locked himself in his room. [The father] reportedly opened the door and “played with me like I was a doll…I peed my pants a couple of times”. He also reported that [the father] once told [X] post-separation to “kill my mum”. This worried him as it meant his father was “probably dangerous” and could kill him too.
Dr C assessed the children’s disclosures at [178] of the Family Report as follows:-
…The children’s narratives tended to reflect having been hit and/or punched by [the father] in the context of expressing an opinion that differed to his or for making a mistake (such as spilling something) or for not following his directions. It has been suggested that this happened on a regular basis in conjunction with yelling. This has reportedly led to at least one occasion where [Y] has been so scared that he has involuntarily urinated in his clothes and [X] has been close to doing so. According to the children, [the father] can moderate his behaviour for a week or two but then reverts to being abusive towards them.
The mother lives in City L with the children. She is engaged in full-time employment there as a health professional. She is solely responsible for the children’s physical and emotional support.
The children are settled in schools in the City L district.
The father lives in a suburb in Melbourne. Accordingly, there is considerable distance, difficulty and expense associated with him spending time with the children.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Since November 2020, the mother has been solely responsible for meeting all of the children’s physical, emotional and intellectual needs. The father has made no financial contribution to the children’s support.
Whilst the father raised a significant issue as to the mother’s mental health, there is little evidence to support those concerns.
Dr G, who undertook a psychiatric assessment of the mother, did not diagnose any psychiatric condition that would impact her ability to care for the children.
Further, the mother’s evidence, which I accept, is that she is engaged in employment as a health professional. The children’s schools have raised no concerns as to the children’s care or that their needs were not being met and Dr C observed that the children appeared settled in the mother’s care. I accept that evidence.
Throughout his evidence, the father demonstrated little insight or understanding as to the children’s needs, or as to the impact of his behaviour upon them. For example, Dr C observed the father to intrude on the children’s physical space during interview and to disregard their discomfort at matters raised by him.
The father disregarded Dr C’s advice not to pass on a photocopy of a handwritten note X had previously written. The father sought to pass that note to X with other photographs during interview.[55]
[55] Family Report dated 17 May 2023 prepared by Dr C, paragraph 106.
During the same interview the father sought to raise with X the prospect of him returning to live with the father and attend a new school with a focus on sport. Dr C intervened to redirect that conversation.[56] Further, Dr C observed that the father did not appear to register the cues and body language exhibited by X which indicated his desire to end the session with the father. Dr C observed that the father sought to prolong their farewell, notwithstanding X’s body language.[57]
[56] Family Report dated 17 May 2023 prepared by Dr C, paragraph 108.
[57] Family Report dated 17 May 2023 prepared by Dr C, paragraph 109.
The observations of Dr C accord with my own observations of the father when giving his evidence. At times, he was dogged in his desire to communicate his views of the mother, irrespective of the questions put to him by Counsel, and was often resistant to direction by Counsel or me to provide responsive answers.
As to her observations of the children and the mother, Dr C reported the children to evidence a clear and loving bond with the mother, that there was much laughter and positive engagement between them. In light of those observed interactions, Dr C reported no concerns as to the mother’s capacity to meet the children’s needs.[58]
[58] Family Report dated 17 May 2023 prepared by Dr C, paragraphs 116 – 118.
I accept the observations of Dr C as to the parenting capacities of the mother and the father.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
Both the mother and the father were born in Country H and the children have spent time living and attending school in Country H and Australia. I am satisfied that given that history, the children’s knowledge and understanding of their culture and its traditions will continue to be fostered by the mother and the father.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
These matters are not relevant to the issues in dispute.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother has demonstrated a strong commitment to her responsibilities as a parent. The children have been observed to have experienced a stable and settled period since returning to the mother’s care in November 2020. The children are settled at their respective schools and appear to be doing well. No issues or concerns have been raised by the children’s schools in relation to their care.
Whilst I accept that the father has actively pursued a relationship with the children, having regard to the totality of the evidence, I am satisfied that he does not have insight or understanding as to the children’s needs or as to his responsibilities as a parent.
That this is so, is evidenced by the father’s failure to contribute financially to the children’s day-to-day care. It is also evidenced by the manner in which he sought to engage with the children during observation by Dr C, disregarding her directions and being dismissive of the children’s responses to him.
It appeared that the father elevated his need to have a relationship with the children above the children’s own needs. On occasion, the father exhibited a “rights-based” attitude towards his time with the children. Further, his pursuit of the mother, including his application that she be incarcerated due to her breach of an order restraining her from changing the children’s schools, is indicative of his failure to understand the children’s needs or the potential impact upon them were the mother to be incarcerated. I am satisfied that the father’s need to punish the mother assumed greater importance to him than what was in the children’s best interests.
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family -- any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I have addressed the issues with respect to allegations of family violence earlier in the judgment.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;
The children have been the subject of proceedings in Country H and Australia since 2018. As a consequence, the children have been interviewed by Judges in Country H and Family Report Writers in these proceedings; they have had to repeat their story to numerous professionals.
Having regard to that history, coupled with the recommendations of Dr C that the children would benefit from stability and consistency, in my view, it is preferable that I make orders that are least likely to lead to the institution of further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
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.
Taking into account the totality of the evidence, I am satisfied that the children’s best interests will be served if they continue to live with the mother given my earlier findings as to:-
·The risk of psychological, physical and emotional harm to the children in the father’s care;
·The children’s strongly held views; and
·The father’s poor insight as to the children’s needs, or as to the impact of his own behaviour upon them.
As to the question of what time, if any, the children should spend with the father I accept the evidence of Dr C that the children are settled in the care of the mother, who has provided them with stability and consistency, such that they have not experienced for many years. Dr C expressed significant concerns as to the father’s capacity to care for the children and as to his attitude and behaviour towards them. I am also satisfied that the children have been subjected to family violence in the father’s care, and that given the father’s lack of insight or awareness as to that behaviour, he poses an ongoing risk to them. Further, I am satisfied that the father has demonstrated little insight or understanding as to the children’s needs.
Dr C opined that significant therapeutic work would need to be undertaken by the father before a reintroduction to the children could be contemplated. Both she and Mr J expressed significant pessimism as to the father’s capacity for change. Mr J also expressed concern that therapeutic intervention was unlikely to assist given the ages of the children.
Further, both experts considered that any attempt to reintroduce the father to the children would likely have significant adverse impacts upon them.
Dr C indicated that X’s best interests would be served by orders that enable him to spend time and communicate with the father in accordance with his wishes. Given X’s age and maturity and having regard to the fact that he has commenced his Year 12 studies, I am satisfied that an order in those terms is in his best interests.
In light of the express concerns of both Dr C and Mr J as to the father’s behaviour, the risks that behaviour poses to the children and their reservations as to the father’s capacity for change, I am not persuaded that there should be any disruption to the settled routines Y and Z enjoy in their mother’s care. Both children have expressed in the strongest of terms their reluctance to spend any time with the father. Both indicated significant fear of him, and each independently provided information to Dr C to support their positions. The observations by Dr C of their meeting with the father and their inability to tolerate time with him supports the view that any order for time with him would be contrary to their best interests. Accordingly, I am satisfied that the father should spend no time with the children.
Both the mother and the ICL seek orders permitting the father to send text messages to the children’s mobile telephone. Dr C considered that such a proposal was reasonable, provided that there are safeguards in place as to when such messages are sent and the frequency of such messaging. She recommended that such messaging occur no more frequently than every three or four weeks. I accept that evidence. Accordingly, I will make orders permitting the father to send a text message to the children once per calendar month.
The mother also sought orders that the father be permitted to send cards and gifts to the children. Dr C supported such order on the basis that it would enable the father to provide genuine and meaningful communication and contact with the children. She considered that the children would benefit from such communication which requires effort and care. I accept that evidence, and will make orders in those terms.
Similarly, Dr C supported the making of an order that the father be provided with copies of the children’s school reports. She viewed the provision of that information would enable him to communicate with the children about events in their lives. I accept that evidence and will make orders permitting the father access to the children’s school reports.
Both the mother and the ICL seek orders that the father be restrained from entering the Region U Local Government Area and locating or being within 200 meters of the mother’s workplace. Given the long history of this matter and the allegations of serious family violence levelled against the father, I am satisfied that an order in those terms is appropriate.
The ICL and the father seek orders that the mother be restrained from changing the children’s residence from the Region U Local Government Area. The children have had a history of disruption, moving from Perth to Country H, and then to City L. Dr C observed that the recent period in which the children have been residing in City L represents the first period of stability and consistency they have had for many years. Having regard to that history and the evidence of Dr C, I am satisfied that the restraint sought by the ICL and father is appropriate. I am also satisfied, having regard to that history that the children’s passports ought be held at the City L registry of this Court until each of the children attains the age of 18 years.
Whilst the mother seeks orders permitting her to renew the children’s passport without the father’s consent, I am not satisfied that such orders are in the children’s best interests. This is particularly so given the history of both parties unilaterally removing the children from country to country without the other parties’ prior knowledge or consent. Accordingly, I will dismiss that part of the mother’s application.
The ICL also seeks orders that the parties be restrained from removing the children from the Commonwealth of Australia and that their names be maintained on the Airport Watchlist until each child attains the age of 18 years. Again, having regard to the history endured by these children moving state and country, I am satisfied that orders in those terms are appropriate and in the children’s best interests.
The father seeks orders that the parties engage in family therapy and that the father and the children participate in “therapeutic rehabilitation” with a psychologist.
The evidence of Dr C was clear that she did not consider the children’s engagement in such therapies to be in their best interests. She noted that in order for such interventions to be successful, first the father would need to engage in therapy over many months to assist him in the development of his insight and understanding as to the children’s needs. Absent that work, she was pessimistic as to the prospect of family therapy assisting the parties.
Having regard to that evidence, and my findings as to the father’s poor insight as to the children’s needs, I am not persuaded that it is in the children’s best interest that orders be made for such therapeutic interventions.
The father also seeks orders that the mother attend upon a psychiatrist nominated by him for the purpose of psychotherapy. I am not satisfied that any evidence before this Court would justify an order in those terms. Accordingly, that part of the father’s application is dismissed.
The father also seeks an order requiring the parties to give each other notice in the event of any emergency or health issue related to the children. I am satisfied that it is appropriate that the mother provide an update as to the children’s health in the event of their attendance upon a medical specialist or hospital. I do not propose to make any orders permitting the father to communicate with the children’s treating doctors in circumstances where I have allocated sole parental responsibility to the mother. Nonetheless, I consider it to be important, and in the children’s best interests, that the father is informed as to the children’s health and wellbeing.
The father also seeks injunctions restraining the parties from denigrating the other, from physically disciplining the children, or denigrating the children. I am not persuaded in circumstances where I will make orders that the children live with the mother, and she have sole parental responsibility, that such orders are necessary or appropriate.
Although the mother sought an order pursuant to s 102QB of the Act that the father be prohibited from instituting further proceedings, that part of her application was not pressed during closing submissions. Accordingly, I will dismiss that application. Nonetheless, having regard to the long history of litigation in relation to the children, as detailed in this judgment, were further applications to be brought by the father in the aftermath of these proceedings, the mother may well be justified in pressing such claim in any future proceeding.
The ICL sought orders that her costs be shared equally between the parties. It was submitted that the parties ought bear those costs in circumstances where both had failed to make a contribution to the ICL’s costs, as requested at the commencement of the proceedings.
In circumstances where I have limited evidence as to each parties’ financial circumstances, where the mother has sole care of the three children without contribution from the father, and where the father has borne the totality of the costs associated with the preparation of the expert reports and the attendance of those witnesses, I am not satisfied that there ought be a departure from the position that each party bear their own costs. Accordingly, that application will be dismissed.
In the Minute of Final Orders tendered on behalf of the mother she seeks orders that the father pay her costs fixed in the sum of $76,698.58. No submissions were made on behalf of the mother in support of that application. Accordingly that application will be dismissed.
I certify that the preceding three hundred and twenty (320) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 28 March 2024
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