Sachar & Kalita (No 2)
[2021] FCCA 1468
•2 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sachar & Kalita (No 2) [2021] FCCA 1468
File number: MLC 5428 of 2018 Judgment of: JUDGE W J NEVILLE Date of judgment: 2 July 2021 Catchwords: FAMILY LAW Property proceedings transferred to Family Court on first day of Hearing In parenting proceedings Applicant failed to comply with Orders to file submissions despite being on notice that the matter may proceed on an undefended basis if he did not file his material — Orders as sought by the Respondent made on an undefended basis and as in the best interests of the children — Litigation has been protracted and increasingly inefficiently conducted by the Applicant which is contrary to both proper and efficient case management principles and particularly now a waste of the scarce public resources of the Court. Legislation: Family Law Act 1975 (Cth), ss 69ZW, 102NA
Federal Circuit Court Rules 2001, r, 13.03B(1)
Cases cited: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Number of paragraphs: 30 Date of last submission/s: 23 April 2021 Date of hearing: 6, 7, 8 October 2020 & 29 January 2021 Place: Canberra Solicitor for the Applicant: Self-Represented Solicitor for the Respondent: Legal Aid ACT Counsel for the Respondent: Mr G Stagg Solicitor for the Independent Children's Lawyer: Dillon-Smith Lawyers ORDERS
MLC 5428 of 2018 BETWEEN: MR SACHAR
Applicant
AND: MS KALITA
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
2 JULY 2021
THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The Respondent Mother (‘the Mother’) have sole parental responsibility for the children:
(a)W born in 2009;
(b)X born in 2010;
(c)Y born in 2012; and
(d)Z born in 2013 (‘the children’).
3.The children live with the Mother.
4.An injunction pursuant to section 68B of the Family Law Act 1975 (‘the FLA’) issue restraining the Applicant Father (‘the Father’) from contacting, attempting to contact, locating or attempting to locate or otherwise approaching the Mother or any of the children.
5.Pursuant to section 11 of the Australia Passports Act 2005 (Cth) this order acts as express authority for the Respondent Mother to:
(a)Obtain passports for the children W born in 2009, X born in 2010, Y born in 2012 and Z born in 2013 (‘the children’) without the written consent of the Applicant Father; and
(b)The Respondent Mother is permitted to travel internationally with each of or all of the children.
6.The Independent Children’s Lawyer be discharged.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Sachar & Kalita (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
This parenting matter involves four children: W (born: 2009), X (born: 2010), Y (born: 2012) and Z (born: 2013).
Over the two and a half years or so during which the proceeding has progressed through this Court, originally before two Judges in the Melbourne Registry, before being transferred to this Registry, there has been no shortage of eventful engagement with the parties, the Applicant Father in particular. Regrettably, much of that engagement has resulted in a range of impediments to the expeditious resolution of the issues in dispute.
On 11th March 2020, the matter was listed for a three day hearing to commence on 6th October. At that time, and until very recently, the Orders sought included property matters. That aspect of the matter, which also involves the Applicant Father’s brother and a property in Melbourne, has now been transferred to the Family Court of Australia.
As part of an ongoing lament and constant concern for the children, the parties, and the limited resources of the Court, the three day hearing in October 2020 was only able to deal with (a) multiple Applications, predominantly by the Father, but also by his brother, and (b) the Father’s tortuous, regularly obstructionist, and chameleon-like evidence.
The reference to “chameleon-like evidence” is a shorthand way of observing that the Father speaks and reads English very well. That is well-documented in multiple Court events in this Court, and multiple other proceedings in various Courts around the country, notably in the Australian Capital Territory (Supreme Court and Magistrates Court), and in Victoria (Local Court and this Court). He confirmed in the course of the trial that he is studying a certificate course as a health care worker, and that this course is being taught in English. Yet he insisted, indeed demanded (as was regularly his way), that he have an interpreter. An interpreter was, in fact, used throughout the trial – needless as this expense and resource was, in my view. As an occasional, clarifying “back-up” resource, the interpreter may have been useful, but not as a constant resource “used” by the Father.
In the course of his cross examination by the Independent Children’s Lawyer (“the ICL”), she confirmed that during an adjournment, she and the Father had had, as they had done on multiple earlier occasions over many months, a very pleasant conversation in English. She inquired in Court whether he was content to respond to her questions in English (as he had done outside the Court-room), and only if there was something in particular that caused difficulty, the interpreter would be used. Steadfastly, as he did throughout the trial, he refused to respond in English in Court and waited for the interpreter. Throughout the trial, he refused to speak in English, except for each of his regular and many “objections” to various questions during his cross examination. Indeed, from time to time in response to a question or comment from the Bench, the Father smiled obliquely and started to respond, in Punjabi, prior to any translation occurring – thereby again confirming his ready understanding of English. Moreover, I commented somewhat regularly that what the Father was doing was a charade and that he clearly knew what was being asked in any question put to him.
So exasperated at times did the Mother’s Counsel become (and to a limited extent the ICL) that an Application for the matter to proceed undefended was made on a number of occasions because the Father was completely unresponsive to the most straight-forward questions. At times, the Father’s conduct was almost theatrical. At times his voice was raised noticeably and quite forcefully; sometimes he was somewhat demure. At other times, he sought to impose his view about the conduct of the case, usually by immediately speaking to the interpreter before anything else was said or done by the Bench. He was formally cautioned by me on three occasions about his conduct generally, especially about the risk he ran (a) by his constant refusal to answer questions simply and directly (rather than providing a running commentary and providing a list of excuses and or explanations), and (b) in consequence, if the matter proceeded on an undefended basis.
Unfortunately, since the making of the Orders on 11th March 2020 (which included an Order under s.102NA of the Family Law Act 1975 – “the Act”), almost every action taken by the self-represented Father, notably and especially during the hearing, has resulted in ongoing delay. That delay, as explained regularly to the Father during the hearing, ultimately adversely impacts the parents and the children. It is true that it also impacts adversely upon the ongoing consumption of the Court’s scarce public resources, a matter the High Court has stressed in cases such as Aon Risk Services Australia Ltd v Australian National University.[1]
[1] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. See in particular the comments by French CJ at [5] and {23] – [30], and the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) at [93] – [95]. At [93], the plurality referred particularly to: “The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants.”
Subject to what is stated in more detail later in these reasons, the following matters of concern, or of special note, by way of overview, provide something of a “snapshot” of the difficulties in the conduct of, and in the evidence adduced at, the trial. The following matters, of course, are in addition to what has already been noted regarding the Father’s constantly selective use of English during the trial:
(a)In the Orders of 11th March 2020, as earlier noted, there was an Order under s.102NA of the Act. Earlier in the proceeding, he had insisted that the Court provide him with legal representation. It was not until August or September 2020 that the Father made an approach to the Legal Aid office in Canberra, as it were, to activate this Order;
(b)The Court was advised that two firms of lawyers were approached to act for the Father. One came onto the record but lasted only a few days before withdrawing. Another was approached but, according to information provided to the Court, this practitioner could not obtain instructions from the Father and that legal representation did not proceed. Put shortly, the Father had the opportunity to secure legal representation but he did not pursue this course until so late in the day, shortly before the hearing, as to make it almost impossible for that legal representation to proceed. Clearly also, the Father had every opportunity to obtain legal representation but did not relevantly, properly, or appropriately, take them up;
(c)In the week prior to the hearing, the Father secured private legal representation, for the limited purposes of conducting his Applications to adjourn the hearing and the have the matter transferred to the Family Court of Australia. The same situation applied to the Second Respondent brother of the Father (being the Second Respondent to the property aspect of these proceedings); that is, he retained private legal representation for the limited purpose of seeking to adjourn the final hearing and to have the proceedings transferred to the Family Court of Australia. None of these Applications, which were heard and determined on the first morning and early afternoon of that day, were successful, save for the brother’s Application regarding property, which was so transferred. Obviously the hearing of these Applications took up the first two thirds of the first day of the trial. Immediately after the determination of them, the lawyers for the Father and his brother withdrew from the hearing. Nor was any explanation given why the suddenly available private funding for these interlocutory Applications was not able to be secured for legal representation for the entirety of the trial. The Father’s then lawyer simply advised that a family friend, or member of the Father’s family, had made funds available. Something similar it seems applied to the Second Respondent, who otherwise deposed that he was unemployed;
(d)Moving to matters of greater import and substance, in the Mother’s extensive material, there were clear photographs of injuries – to her face and other parts of her body – which she deposed had been caused by the Father punching and hitting her. To this evidence, the Father simply, indeed astonishingly banally, said that the Mother often “hit herself” during the relationship. Like many other parts of his evidence, such assertions were incredible – literally – and utterly fantastic;
(e)In a similar vein of the incredulous, the Father contended that the convictions entered against him in the Magistrates Court in Victoria, for example for threatening to kill the Mother, were forced upon him by the presiding Magistrate. He simply said, on more than one occasion, that the Magistrate “forced him” to agree to the convictions. Details of the convictions are set out later in these reasons. Such a contention, especially in the absence of any appeal or Application to set aside those convictions, must be considered (and is considered) to border on the absurd. It is simply another piece in the Father’s literally incredible and implausible evidence, which I otherwise reject. Moreover, the Court was able to obtain the Melbourne Magistrates Court file. There was nothing in it to suggest that there was anything other than regular process and procedure in the convictions of the Father; and
(f)During her strained cross examination of the Father – “strained” because of the Father’s unresponsiveness – the ICL took him to a series of emails between the Father and the ICL in August 2020. They are found at pp.379 – 390 of the Mother’s trial Affidavit. He steadfastly refused to acknowledge that he had written these emails; the most he would note was that they came from his email address but not that he was the one who wrote them. Such was the constant level of obfuscation and obstruction.
There is a significant history of the involvement of Care and Protection authorities in Victoria in relation to the family. A number of records from the relevant Department in Victoria came before the Court pursuant to Orders made under s.69ZW of the Act. Those records make for alarming reading regarding the control of the family (the Mother and the children) by the Father.
It is also a concerning fact that it has now been a number of years since the Father spent any time with the children. Consistently, they express very strongly their wish to have no contact with him. Without making any finding, the Mother remains quite traumatised about the Father’s past conduct, and this litigation which seems to be never-ending, particularly as a result of the Father’s regular attempts to delay the proceeding. On one view, the delay and obfuscation that has characterised much of the litigation could be viewed as another form of control of the Mother and the children by the Father.
At the conclusion of the fourth day of the final hearing on 29th January 2021, the Court made Orders regarding the filing of written submissions. There was a notation to those Orders indicating that if there was not compliance with them, the matter may ultimately be determined on an undefended basis. Under those Orders, the Father was required to file written submissions by 26th February 2021. He has never filed submissions as directed. To date, he has still filed no submissions at all.
Division 13.1A of the Federal Circuit Court Rules 2001 provides for the Court to deal with matters where there has been default by a party. Rule 13.03B(1) in particular deals with circumstances where, as is the case here, an Applicant is in default, and the powers available to the Court. That Rule provides that in cases of default by an Applicant, the Court may “stay or dismiss as to the whole or any part of the relief claimed by the Applicant.”
In the light of the circumstances outlined here, most particularly, the ongoing default of the Applicant to file any written submissions, in my view it is appropriate that the Orders as sought by the Mother and the ICL be made. They are in the children’s best interests.
Strictly speaking, although nothing further is required in order to finalise the parenting proceeding, I should note the following.
First, the information and comments from the Family Report (Exhibit B) are of a piece with the history of reporting and comments, for example, from Care and Protection authorities in Victoria.
Secondly, there was nothing in the Father’s (oral or other quite limited) evidence that warranted or supported any of the Orders he sought.
Thirdly, I agree with, accept and otherwise adopt as further reasons of the Court, the submissions of the Mother and the ICL. Those submissions would otherwise compel the Court making Orders as sought by the Mother and supported by the ICL as being in the children’s best interests in all of the circumstances.
Applicant’s order’s sought
The Applicant set out his final Orders sought in one of the Affidavits he filed on 30th September 2020. They are as follows:
ORDERS SOUGHT BY ME PARENTING
In relation to children’s issue, i seek final orders as following: -
1.i have sole parental responsibility for the all four children
2.that all four children live with me.
3.that Ms Kalita have no contact with myself or the four children. that she be restrained by injunction from contacting, attempting to contact, locating or attempting to locate me or the children or any of my family members or friends.
4.i seek an injunction against Mr L or his wife or any other family or friend to influence Ms Kalita decision, discussion matters or providing inmproper advice. i further seek an injunction against Mr L and Mr M, Mr N and his wife and all other agents of Ms Kalita or family and friends must be restrained from further discussing, attempting to discuss, locating or attempting to locate either myself or the four children or anyone supporting me.
5.i seek Mr O and Mr P or his family or friends to be restrained by injunction from having any contact with me or the four children. the above two persons must be restrained from further discussing, attempting to discuss, locating or attempting to locate either myself or the children.
6.that I must be at liberty to apply for passports for the children without the need to seek consent from Ms Kalita allegedly born in 1983.
7.that I be at liberty to travel overseas or interstate with or without children as per my wish.
8.that legal aid act be ordered to product all information and documents restrained by way of injunction to discuss this matter among any lawyer or others without informed consent. that by way of an injunction legal aid to serve all documents in printed legible form covered in envelope to protect privacy of parties with an index of documents provided or served by close of 28/9/20,
9.Ms Kalita and all its agents including family and friends be restrained by injunction to discuss or make any false defamatory statements against the four children or me or any one supporting me.
10.Ms Kalita and her agents be restrained from dealing with any documents or children,my phone or my macbook or jewellery which she took without consent in Victoria from C Street, Suburb D and accepted to return but refused to returnwhich belongs to true marriage trust and must deposit it in an independent trust account by close of 29/09/20. this caused me unable to access any contact with any of my friends or family in australia via phone as all information was on the phone and black macbook.
11.that by way of injunction Ms Kalita, Mr O, Mr P, Mr L and Mr M be restrained from leaving the commonwealth of australia or act without court orders.
12.i rely upon the notice of risk filled in this regards on 29/9/20 and see urgent listing of the matter.
13.that by way of injunction order Ms Kalita and its agents to disclosue names and details of all people she has provided information or documents about Mr B Sachar or Mr Sachar or the four children in australia or overseas.
Respondent’s orders sought
The Respondent Mother filed a Case Outline on 29th September 2020 which set out her Final Orders Sought. They are as follows – but excluding references to property orders as the property proceedings were transferred to the Family Court of Australia on the first day of the trial as noted earlier:
Final Orders Sought
The Mother seeks the following orders be made on a final basis:
1. That all previous orders be discharged.
CHILDREN
2. That the Respondent Mother (‘the Mother’) have sole parental responsibility for the children:
a. W born in 2009;
b. X born in 2010;
c. Y born in 2012; and
d. Z born in 2013 (‘the children’).
3. That the children live with the Mother.
4. That an injunction pursuant to section 68B of the Family Law Act 1975 (‘the FLA’) issue restraining the Applicant Father (‘the Father’) from contacting, attempting to contact, locating or attempting to locate or otherwise approaching the Mother or any of the children.
5. That, pursuant to section 11 of the Australia Passports Act 2005 (Cth) this order acts as express authority for the Respondent Mother to:
a. Obtain passports for the children W born in 2009, X born in 2010, Y born in 2012 and Z born in 2013 (‘the children’) without the written consent of the Applicant Father; and
b. The Respondent Mother is permitted to travel internationally with each of or all of the children.
Independent Children’s Lawyer’s orders sought
In the written submissions filed on behalf of the Independent Children’s Lawyer on 23rd April 2021 the Independent Children’s Lawyer states that they adopt the recommendations of Ms Q made at Paragraphs 86 of her report dated 24th June 2020. Those recommendations are as follows:
1.That Ms Kalita has sole parental responsibility for the children
2.That the children live with their mother
3.That no orders are made in relation to the boys’ time or communication with their father, and
4.That their mother should facilitate time for the boys with their father if the boys request this
Family Report of Ms Q
The Family Report of Ms Q, dated 24th June 2020, became Exhibit B. The assessment of the children was in the following terms:
CHILDREN
W
59. When asked why he had to come to see me, W responded “because my dad was hitting my mum and us”. After I explained, W told me that he wanted to live with his mother. He said that his father had told him previously to tell the Judge that he wanted to go back to him but said that once he started living with his mother, he was so happy that he did not remember what his father had told him to say. W explained his father had said this when they were first came to Canberra.
60. Emphatically, W said that he did not want to see his father and did not want to talk to him on the phone because “he kind of abuses us in Punjabi”. If he remonstrated with his father and told him he was doing the wrong thing, W said that his father would tell him that he was not the boss of him and he should not say anything. W said that this made him sad and he did not say anything. W did not want to see his father with me.
61. When he was living with his father, W said that he could remember everything and did not like what his father had been doing. He said that “when I was a little kid” he saw most of his father’s behaviour towards his mother. He said that his father would be on his iPad the whole time and said when he was a baby and his mother was working at Employer S and his father was caring for him, his father made him sleep during the day so that now he got very scary dreams and did not sleep easily at night. He said because he could not sleep when he was younger, he would go into his parents’ room and said that was when he saw all the things that were happening. W said that once his father hit his mother in the eye and he saw blood coming out of it.
62. W described his life with his mother at present as being good and said that his grandparents were there helping at the moment as well. He said his grandparents also helps them to study because for a long time, he had not learned anything. W believed that this was because his father feared if they went to school and learned more English, they would tell people at school what was happening at home and the teachers would tell the police.
63. W told me that he was in Year 5 at school and that he had friends at school. W estimated that he was more than halfway to catching up at school. When he grew up, W said he wanted to be a gamer.
64. When asked what he liked about his mother’s house, W responded that his mother had a good house and said that he had his own bedroom. He said that his mother had bought an Xbox even when she did not have very much money. W said that there was nothing that he did not like at his mother’s house. When asked what he would wish for if he had three wishes, W responded “I would wish that this case would be over and my mum could live a happy life”. He said he did not know what his third wish would be.
65. W told me that he and his brothers squabbled a bit but said that they mostly played together. They said that they played with their Xbox, played card games, and played Lego.
X
66. Initially, X said he did not know why he had to talk to me before speculating that it was “about dad”. X immediately said that he did not want to see his father going on to say, “When we were in Melbourne, dad used to hit our mother a lot of times”. He said one day when they were all asleep, their father woke up and started hitting their mother. He said his father’s parents were there and said that afterwards, his father asked his mother what had happened to her face, even though he had hit her.
67. After saying that he did not talk to his father even on the phone, X said that they did talk to his father’s parents by phone and added that he did not want to do this anymore either. It seemed like they spoke to their grandparents alternate Sundays. X said he did not want to talk to or see his father. He did not want to see him with me for their report. If the Court said that he had to see his father, X said that he would not want to.
68. When asked what he liked at his mother’s house, X said that his mother let them cook in the kitchen. He said when they first cooked a meal, his mother and his grandparents loved what they made. He told me once they made bread pizza. X told me that he liked everything at his mother’s house and there was nothing he did not like.
69. X was very hesitant when asked if he had three wishes and said that one wish would be that his mother got a job quickly.
70. X told me that he had lots of friends at school. He reiterated that he did not want to see his father at all. In the event that the Judge told X that he had to see his father, X said that he would tell his father he did not want to play with him and would ask him why he had hit his mother. If the Judge said that he had to go to see his father, X said he did not want to and said that he would not go. X speculated that his father could have done some of the things that he did in India but was not allowed to do them in Australia. X told me that in India, you could hit people when they did the wrong thing but not at other times.
Y
71. Y speculated that he had to talk to me because of his father. After I explained my role, Y told me that he did not want to see his father. If the Judge told him that he had to talk to his father, Y was very hesitant and said that he would “maybe” talk to him. Y said that he was not keen to see his father however and said he did not want to talk to his father, because he had been hitting everybody in his family. Very emphatically, Y told me that he was frightened of his father.
72. In terms what he liked about living at his mother’s house, Y said his mother let them watch television and said she had even bought them watches.
73. If he had three wishes, Y said that he would wish for a new house, for a car for himself and for a computer.
74. Y told me that he was in Year 2 at school and that he had lots of friends there. Y told me that he liked playing soccer. He detailed the snacks that they had brought with them. Y chatted about the vegetables that his grandparents grew in their large vegetable garden. Y also talked about having to call his paternal grandparents alternate Sundays. He said he did not like to talk to them because he once noticed that they were recording the phone calls. Y told me that he was bilingual and said that they talked Punjabi at home. He told me that in their family, they were going to learn a third language, Hindi. He said his mother had said that it would be good for them to learn new languages. Y said that his grandparents did not know how to speak English at all.
Z
75. When asked why he had to talk to me, Z said it was about his dad. Z said that he did not like “all of them” to do with his father. He said that he only liked his mother. Z said he liked his maternal grandparents but did not like his father and his parents. When asked why he did not like his father, Z said it was because his father did not let them hear any songs and caused Y to have blood on his neck.
76. Z was not very easy to follow, his English was not clear. When asked what the good things at his mother’s house were, Z responded “everything”. He said that he liked everything to do with his mother including his maternal grandparents. If he had three wishes, Z said that he would wish for “so many things”. He said that he would wish for a big car, would buy a phone and a laptop and an Xbox. Z told me that he was in Year 1 at school and said he was going well at school.
77. Saying that he was hungry, Z said that he was going home for lunch after the interviews. If the Judge told Z that he had to see his father, Z said that he would refuse to do so and would not go. He did not want to talk to his father on the phone. Z said he did not talk to his father on the phone, only talked to his parents. Z emphatically told me that he did not miss his father.
Children’s relationships
78. Ms Kalita described her boys as being good boys and said they did not really get cranky.
OBSERVATIONS OF INTERACTIONS
The Boys with Ms Kalita
79. W told me that he and his brothers only squabbled a bit. They all related in a happy, comfortable manner with their mother. They had only returned to school the previous week because of the Covid-19 restrictions. They had two months at home and told me they were happy and not bored. Prior to the virus restrictions, I learned the boys were playing soccer and were doing Punjabi dance classes. Ms Kalita said the boys had participated in the multi-cultural festival, performing in the city. Prior to coming to Canberra, Ms Kalita said the boys had never heard a song and had never tasted a lolly.
80. When she was in pain for three days with toothache, Ms Kalita said that Mr Sachar said this was her father’s expense and refused to let her go to a doctor. Noting that boys loved soccer, Ms Kalita proposed that they would return when the restrictions were lifted. The boys volunteered that they assisted with the cooking and said they all made meals. They said that they were 95% vegetarian but also ate chicken. The boys told me that they loved cheese pizza. The boys told me that they liked playing games on the television and that they liked making new things. They said that they assisted with cleaning the house and Ms Kalita said she gave them different tasks to do, saying that even if it was not perfect, that was fine because the boys needed to learn to clean.
The Family Consultant’s evaluation and recommendation sections (in full) were as follows:
EVALUATION
81. This assessment considers how much time the boys should spend with both of their parents. The parties made very serious allegations and counter allegations and were a very long way apart in what they are seeking. By the time of interview, the children had not seen their father for almost 2 years and even telephone contact had been suspended.
82. Mr Sachar did not recognise how far apart he and his wife were in what they were seeking for the children and took no responsibility for what happened during their relationship, variously blaming his father-in-law and his wife’s cousin’s husband. Displaying no understanding of his sons’ current position and of how difficult it would be to get them to see him at all, let alone to instigate a shared arrangement, when asked how he and his wife could get to a shared arrangement, Mr Sachar said that this was entirely up to the Court. He went on to say “I’ve never been able to understand what they’ve done”.
83. Perhaps slightly more realistically, in terms of changeovers, Mr Sachar argued a neutral person should effect changeovers. He was opposed to the idea of any build-up of his time with the children through an agency such as A Contact Centre, saying this was not needed as the children were very comfortable with him and “It was a big lie from the children's perspective". He showed me photographs of himself at Town R McDonald's, commenting that the children were so comfortable with him that they had chosen to take his photograph. Mr Sachar further argued that he was concerned that his wife had reported issues of self-harm when the children were in her care and queried how fair it was that their time with him should be restricted, given he had no issues like that. Dismissing the boys' wishes, Mr Sachar argued that they were "surrounded by people with an overarching influence on their minds" and queried how they knew right from wrong. He said that the children would say whatever they have been told to say.
84. While the Court must assess the veracity of the parties' allegations, in my opinion, Ms Kalita presented in a very credible manner making detailed, serious allegations about her husband's abuse. Mr Sachar demonstrated little insight into the effect of ongoing conflict on his sons, took no responsibility for the demise of his relationship, was highly critical of Court and other agency processes and was not easy to engage for this report, sending copious critical emails. Indeed, credit must be given to the ICL for her efforts in persisting to arrange Mr Sachar's interview. In my opinion, his behaviour cannot be attributed to language difficulties, given he obtained a degree in an Australian University.
85. Sadly, these boys no longer want to interact with their father at all and even telephone contact became an abusive experience for them. It did not appear to me that their mother had significantly influenced them to adopt their strong wishes not to see or talk to their father. To attempt to force these boys to interact with their father even by telephone, it might well be highly counter-productive, emotionally damaging and in the end unsuccessful. These boys have been challenged by their life experiences to date to the extent that the older boys remain behind school and Z's English is still poor. They are entitled to enjoy the rest of their childhoods without undue .conflict, stress or fear.
RECOMMENDATIONS
86. It is therefore respectfully recommended
a. that Ms Kalita has sole parental responsibility for the children
b. that the children live with their mother
c. that no orders are made in relation to the boys’ time or communication with their father, and
d. that their mother should facilitate time for the boys with their father if the boys request this
Written submissions by the Applicant
As mentioned above, the Applicant did not file written submissions in accordance with the Orders dated 29th January 2021.
Written submissions on behalf of the Respondent
The Respondent’s written submissions, filed on 21st April 2021, were as follows (footnotes omitted):
SUBMISSIONS ON BEHALF OF THE RESPONDENT MOTHER
1. Pursuant to orders dated 29 January 2021 the Applicant father was ordered to file Submissions by 26 February 2021. He has not done so. The Respondent has accordingly delayed providing her own Submissions to ensure the Applicant has had every opportunity to provide his written submissions. As at the date of filing these Submissions, no submissions have been received from the Applicant.
History
2. The parties were married in 2007 when the Respondent mother, Ms Kalita, was living in India and the Applicant father, Mr Sachar, was living in Australia. The marriage was arranged between the respective families and a dowry of approximately $20 000 in gold jewellery paid to the father's family.
3. At the time of the marriage in 2007 the Applicant was working as a taxi driver despite telling the Respondent mother he was working as a professional. In 2008, the Respondent mother started working at Employer S. In 2008 the Applicant father ceased employment and did not work again until approximately 2016.
4. There are 4 children of the relationship:
a. X, born in 2009
b. X, born in 2010
c. Y, born in 2012; and
d. Z, born in 2013.
5. The relationship ended on a final basis on 20 December 2017 when the Applicant father assaulted the Respondent mother and was charged with 3 counts of threatening to kill, one count of recklessly causing injury and one count of unlawful assault.
History of Family Violence
6. The Respondent mother presented evidence of a history of extensive and horrific physical and psychological violence perpetrated by the Applicant father towards both the Respondent mother and the children that was detailed and compelling. The court is referred in particular to the affidavit of the Respondent mother paragraphs 34 to 53, 147 to 214, 231 to 236 as well as Annexures 3, 4 and 18.
7. Physical violence towards the Respondent mother included:
a. Slapping across the face;
b. Punching;
c. Kicking;
d. Hitting, including with his shoe;
e. Pulling hair to the extent that chunks of hair would come out;
f. Pulling the ears of the mother until they bled;
g. Spitting on the mother;
h. Pinching; and
i. Holding a knife to the eye of the mother.
8. The Respondent mother gives evidence that physical violence towards her occurred at least once per week. She gives evidence that she suffered black and swollen eyes, cuts, bruising and swelling of her face, as well as broken ribs as a result of violence perpetrated by the Applicant father.
9. The physical violence suffered by the Respondent mother was extreme and sustained over a number of years.
10. The violence suffered by the Respondent mother in the lead up to the final separation in December 2017 is nothing short of horrific. The physical assault occurred over a period of several hours. Injuries to the Respondent mother included extensive facial bruising and broken ribs.
11. In cross-examination the Applicant father claimed that he had never hit the Respondent mother saying instead that the Respondent mother inflicted the injuries sustained in December 2017 on herself. The Department of Health and Human Services ('DHHS') Confidential Court Report, prepared for child protection proceedings in Victoria in 2017/18 states the Applicant Father told both the police and DHHS officers that the maternal grandfather had caused the injuries to the Respondent mother. Unsurprisingly, the Victorian police found that the Applicant father's allegations did not present as credible.
12. The Respondent mother also provides detailed and compelling evidence of violence perpetrated against the children. In addition to physical violence the Respondent mother outlines horrific incidences of family violence by way of control, intimidation, degradation and denigration towards the children at paragraph 236 of her affidavit and include:
a. Being made to lick food from the table or plate instead of using their hands or spoons;
b. Being made to crawl on all fours in the backyard like animals;
c. Not being allowed to attend school;
d. Being made to go on long walks bare-footed;
e. Being taught to use swear words and denigrate their mother;
f. Not being permitted to comb their hair or use shampoo;
g. Not being permitted to shower or use soap and being restricted to 5 mugs of water to bath with.
13. The DHHS document at Annexure 4 of the Respondent mother's affidavit outlines further incidents of family violence directed towards the children. It is significant that the Confidential Court Report records that the 3 older children were able to articulate watching their father beat their mother as well as articulating themselves being beaten by their father.
14. It is submitted that perhaps the most poignant piece of evidence before the court was the child X's theorising to Ms Q that he thought the reason he had not attended school during the relationship was because his father feared that if he and his brothers went to school and learned English, they would tell people what was happening at home and the teachers would tell the police. When this was put to the Applicant father in cross-examination he would not answer the question.
Continuing Family Violence after separation
15. At paragraph 189 to 199 of the Respondent mother's affidavit she outlines evidence of continued attempts by the Applicant father to control, monitor, stalk and intimidate her after she left the relationship and moved to Canberra with the children. In paragraph 240 to 244 of her affidavit the Respondent mother outlines multiple occasions where at supervised time with the children in 2018 the Applicant father used the time to try and communicate with her including entering the supervisor's vehicle and refusing to get out until he was able to speak to the Respondent mother.
16. Apart from the clear inappropriateness of such behaviour in and of itself, it is significant that the Applicant father did so in complete disregard of the negative effect it had on his children and their relationship with him. Such behaviour continued when communication with the children was reduced to telephone communication. It is submitted that the court would appropriately find that the Applicant father has used the privilege of time and communication with his children to attempt to continue family violence through control and intimidation of the Respondent mother and the children.
Use of legal proceeding to continue cycle of violence towards the mother.
17. It is submitted the evidence supports a finding that the Applicant father has used multiple court proceedings in both the Family Law and Family Violence areas to force the Respondent mother to engage with him and as a device to attempt to dominate and exercise control over the Respondent mother. In multiple proceedings in different jurisdictions the Applicant father has objected constantly, used procedural processes and complaints as well as obstructive interlocutory applications and processes and appeals to continue proceedings. However, when given the opportunity to actually present his case, provide submissions or even participate in the process of bringing resolution to a matter he has largely not participated; only to then seek to reopen and/ or appeal proceedings after a decision has been made.
18. In the current proceedings well in excess of half of the 4 days of the final hearing were taken up by multiple applications and objections brought by the Applicant father seeking, in effect, to prevent the matter being concluded. It is submitted that the court would appropriately find the Applicant father was seeking to prolong the proceedings and force the Respondent mother remain engaged with him through court. This is itself continuance of the Family Violence perpetrated on the mother.
19. In the afternoon of the first day of the proceedings the Applicant father made an oral application for appointment of a Litigation Guardian. This was opposed by the Respondent mother and the ICL. At the commencement of the second day of the proceedings the court declined the application. At the commencement of the fourth day of the proceedings the Applicant father tendered a medical report in support of his claim that he was being "psychologically tortured". Significantly, this report was prepared at the request of his solicitor at the time of preparation of the report, Mr T, and specifically concerned the capacity of the Applicant father to understand the proceedings and provide instructions. The report found that he did have such capacity. The letter was not disclosed at the time the Applicant father made his application for a litigation guardian. It is submitted this is another example of the Applicant father's attempts to prolong the proceedings.
20. On multiple occasions during the proceedings after repeated incidents of the Applicant father not answering simple straightforward questions. Counsel for the Respondent mother moved that the matter proceed undefended on the basis that the Applicant father was repeatedly non-responsive to questioning. When confronted with the possibility of the matter proceeding undefended the Applicant father was able to engage to answer questions adequately, at least for a short period of time. This was most clearly apparent on day three of the proceedings where the Applicant father was non-responsive to questions from both Counsel for the Respondent mother and from the ICL, eventually indicating he did not want to answer a question from his Honour because he had been asked to lower his voice, his belief that "all these people" had been trying to harass him and that [he] "was not going to get any procedural fairness from the court". Before agreeing that he would answer questions and was not (at least at that point in time time) pressing his claims of there being no procedural fairness, he first asked what would happen in an undefended hearing? It was only when the effect of proceeding undefended was explained that the Applicant father agreed he would answer further questions. A perusal of the cross-examination of the Applicant father will show that he only answered a handful of questions directly over a period of several hours of cross- examination.
21. It is submitted that the court would appropriately find that the non-responsiveness of the Applicant father was deliberate and calculated; designed to thwart determination of the matter and to prolong the court process. It is submitted that in doing so the Applicant father was continuing to attempt to exert his control over the Respondent mother. In this way the Applicant father was using the court proceed itself to continue family violence toward the Respondent mother and the children.
22. It is submitted that the evidence in this Court, and that presented by the Respondent mother concerning the Applicant father's actions in other courts and jurisdictions, is such that the court should find that he has used the court process as a tool towards control and coercion of the Respondent mother. In these circumstances it is appropriate for an order to be made declaring the Applicant father a vexatious litigant and imposing a requirement that he first obtain the leave of the court before initiating any further proceeding against the Respondent mother in this court.
The Applicant Father's Case
23. Despite being given multiple opportunities to present his case and put evidence before the court, the Applicant father did not present a positive case in support of the orders he sought. The Applicant father was given the opportunity to pose cross-examination questions for the Respondent mother in writing to be asked by the ICL and did not take that opportunity. He was ordered to provide written submissions following the final hearing and has not done so.
24. As far as can be determined, the Applicant father's case is that he has never engaged in physical or other Family Violence towards the Respondent mother or the children and that the children love him and want to live with him. He maintained this position despite the volume of evidence to the contrary.
25. In maintaining his position the Applicant father claimed:
a. He had never hit the mother but she had instead hit herself;
b. That the Family Report of Ms Q was "false" with a suggestion that his children may not have been present when the report was made and Ms Q had "made the report on her own".
c. That the Victorian police reports and the reports of Victoria DHHS were "false", a "report that has been prepared that is false", and "what was written in the report, that's all lies "
d. That he did not plead guilty to (at least 2) charges resulting from the assault on the Respondent mother of 19 December 2017 "with [his] own wish" but "was forced to plea guilty and ... was threatened and was forced by the magistrate to do that."
26. The Applicant father rejected the expressed views of the children in the Family Reports saying "they were surrounded by people with an overarching influence on their minds."
27. The evidence of the Applicant father was therefore essentially that there was a conspiracy involving the Respondent mother, Victorian DHHS, Victorian police, Victorian and ACT courts, the Federal Circuit Court, multiple appointed Independent Children's Lawyers, legal practitioners and his Honour to fabricate evidence of Family Violence and views of the children.
28. In short, it is submitted that the evidence to the contrary is overwhelming and the case posed by the Applicant father is entirely without merit.
Expert Evidence
29. The court had the benefit of a Family Report prepared by very experienced report writer, Ms Q. Ms Q spoke to all four children and their views are clearly expressed that they had been beaten by their father and did not want to have any time with him.
30. The evaluation of Ms Q at paragraphs 84 and 85 of her report is concise but compelling. The Respondent mother endorses and adopts the finding of Ms Q.
31. Ms Q recommends that the children live with their mother, she have sole parental responsibility for the children and there be no time with the father. In giving oral evidence and after aspects evidence presented in the proceedings being put to her, Ms Q indicated that her opinion had not changed but rather advised to the effect that her opinion and recommendations had been strengthened by the further evidence.
Application of Legal Principles
32. For the purpose of these submissions the critical considerations for the court are the principles contained in section 60CC of the Family Law Act 1975 and in particular, those contained in section 60CC(2), namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The benefit to the child of having a meaningful relationship with both of the child's parents
33. Concerning section 60CC(2)(a) the Full Court has said, "The question that truly arises from s 60CC(2)(a) is not "What outcome will best ensure that S has a meaningful relationship with his mother", but rather, "What is the benefit to the child of having a meaningful relationship with his mother?"
34. It is submitted that the Applicant father has presented no evidence of any benefit that the children might receive through having a meaningful relationship with him. The totality of his evidence was to attack the Respondent mother and/or what might more generally be described as "the system" for his perceived lack of justice. Despite numerous opportunities the Applicant father did not take any opportunity to present a positive case. The strongest position his evidence reached is an unsupported claim that the children love him and want to be with him.
35. The evidence before the court in virtually the entirety is that the children have in the past and would in the future receive no benefit from a meaningful relationship with the Applicant father. In fact, the evidence points towards the contrary, that is, the court would find that having a meaningful relationship with the Applicant father is likely to have a harmful effect on the children's psychological and emotional wellbeing.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
36. It is submitted that this is the principle central to the court's considerations. Notwithstanding the protestations of innocence from the Applicant father, the evidence is overwhelming that the children have been exposed to extreme family violence from the Applicant father towards the Respondent mother and have directly experienced abuse, neglect and family violence at the hands of the Applicant father.
37. The evidence is such that the court can and should make positive findings that:
a. The Applicant father has engaged in serious physical violence towards the Respondent mother.
b. The Applicant father has engaged in family violence of an extreme nature towards the Respondent mother.
c. The Applicant father has engaged in family violence directed specifically toward the children individually and together.
d. The Applicant father has exposed the children to family violence directed toward the Respondent mother.
38. Further, it is submitted that the evidence supports a finding that when the Applicant father has had time and communication with the children since the commencement of these proceedings, he has continued to subject the children to psychological harm through his questioning and abuse of the children as well as exposing the children to negative, abusive and derogatory comments about their mother and other family members. The evidence shows that supervision of the time the Applicant father has with the children was incapable of protecting the children from the Applicant father's anger, questioning, accusations and abuse both directly and indirectly towards the supervisor and the Respondent mother.
39. It is submitted that the court would find that if the children were to have any time with or communication with the father there is an unacceptable risk of experiencing physical or psychological harm from being subject to or exposed abuse, neglect or family violence.
Section 60CC(3) considerations
40. It is not proposed to address each section 60CC(3) consideration as the section 60CC(2) considerations provide overwhelming support for there being no time and no communication between the children and the Applicant father. However, the following specific considerations are noted.
a. (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; The views of the children are expressed clearly in the Family Report of Ms Q. Expressed bluntly, they are fearful of their father and do not want to have anything further to do with him. Given what they have been subjected to at the hands of their father their views should be given significant weight, particularly those of X and X who are now 12 and approaching 11 years of age respectively.
b. (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child; The evidence before the court showed that not only has the Applicant father failed to provide Child Support, or indeed any financial support whatsoever, towards his children's care since separation, but when it was put to him that there is over $30 000 remaining in trust from the sale of the family home that he could provide to the Respondent mother, he indicated that he would not be willing to do so. When asked specifically whether he had provided any money to the Respondent mother from February 2018 to date the Applicant Father indicated he did not recall. The court is invited to infer that he had not provided anything.
c. (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents: The attitude of the Applicant father towards the children has been outlined in these submissions already. It is submitted that the attitude of the Respondent mother is apparent from her affidavit materia1, her oral evidence and the Family Report. It is submitted that the court would appropriately find that not only is the Respondent mother's attitude to the responsibilities of parenthood exemplary, but that her ability to successfully and effectively parent her children after the horrific environment herself and the children experienced with the Applicant father, is nothing short of extraordinary.
41. Section 60CC(3) considerations are otherwise addressed in the body of these submissions.
Conclusion
42. It is submitted that in all the circumstances of this matter it is in the best interests of the children for the court to make orders as sought by the Respondent mother.
Written submissions on behalf of the Independent Children’s Lawyer
The Independent Children’s Lawyer’s written submissions, filed 23rd April 2021, were as follows:
SUBMISSIONS ON BEHALF OF THE INDEPENDENT CHILDREN’S LAWYER
1. The ICL adopts the recommendations of Ms Q made at Paragraph 86 of her report dated 24 June 2020.
2. This ICL appeared in this matter on the final day of hearing after the withdrawal of the previous ICL.
3. This ICL had access to the transcripts of the previous few day's proceedings, the Evidence of the parties filed with the Court and the documents produced under subpoena.
4. This ICL was able to read that material.
5. This ICL appeared on the day the Mother was to be cross examined.
History
6. The history of the matter has been comprehensively set out in the Submissions of the Mother and the ICL does not disagree with that historical outline.
7. There are 4 children of the relationship:
a. W, ( W) born in 2009 currently aged 12.
b. X, ( X) born in 2010 currently aged 10.
c. Y, (Y) born in currently aged 9; and
d. Z, (Z) born in 2013 currently aged 7.
8. Ms Q sets out the documents she had access to in preparing her report in her report at page 2
9. In preparing her report she had available to her the evidence of both the Father filed in these proceedings and any affidavits in support. She also had available the evidence filed by the Mother.
10. Ms Q also conducted interviews with the Father on 23 June 2020 and with the Mother and the children on 9 June 2020.
11. Ms Q did note that there were limitations in her interview with the Father due to language issues and that she tried to rely on an interpreter but then had to rely on a friend to interpret.
12. Ms Q does note that at page 3 that It was still very difficult to communicate directly with Mr Sachar and at times. I was unsure if' he understood what I was asking him
13. Despite this Ms Q had access to the Father's affidavits where the Father has clearly set out his case and the evidence, he wanted the court to consider in support of his Case.
14. The Father was also provided with the opportunity to cross examine Ms Q through an interpreter on the last day of the hearing. During this process, the Father refused to proceed other than through an interpreter. The Father put a number of questions to Ms Q which she answered.
15. Ms Q noted the Father informed her as follows; However, Mr Sachar told me he could understand English, but preferred to use an interpreter during Court proceedings or Court related matters because sometimes he was unable to say the right words in English and at times other people did not understand what he was saying in English or misinterpreted him. (para 21)
16. Despite any language issues, Ms Q was able to report at paragraphs 18 to 23 the things the Father spoke to her about his case and the children.
17. The relevance of the above paragraphs is that Language issues were raised by the Father throughout the proceedings to the effect that he suggested he was unfairly disadvantaged in this regard. This was especially towards the end of the proceedings. The Father insisted on the use of an interpreter for the entire final day this ICL was present in Court.
18. The Court should note that the transcript of the 23 August 2020 from page 7 to 40 provides evidence of the Father's capacity to competently communicate with the Court and the other parties in English. The Transcript records the Father clearly representing himself in a way that shows an understanding of English enough to enable him to converse and respond to the Court and to the submissions and comments of the other side at some length at least for a period of around 2 hours. The Father even made an application for His Honour to recuse himself at paragraph 25 page 13.1t is submitted that this is indicative of at least competent English and familiarity with the legal process.
19. Again, on I O December 2020 from the transcript it appears that the Father engaged in lengthy and clear responses to the Court and the parties in English which was clearly able to be picked up by the recording equipment and transcriber. (at pages 13 and 14).
20. The Father refused to answer questions put to him by the Counsel for the Mother and failed to provide questions to be put to the Mother to the ICL.
21 .It is submitted that Court could from the view that the Father was deliberately obstructing the hearing and his own opportunity to provide evidence in support of his case
22. At times on the day this ICL was present the Father referred to United Nations Conventions and used the words "psychological torture" on a number of occasions in response to comments made by His Honour. It appeared he was referencing the Court process and its impacts on himself.
23. The Father was provided an opportunity to be represented for free under the Section I02NA grant scheme.
24. He failed to take any reasonable steps to follow up with the representation that would have been provided to him under that grant.
25. By directions of the Court made on 8 October 2020 the Father was directed to provide 10 questions he wished to put to the Mother in Cross examination to the ICL by 22 October 2020. He failed to do that even though he was reminded of these directions and the timeframe to do so by the previous ICL.
26. After making no attempt to provide those question in writing to the ICL at any time from the 8 October 2020 to the final day of hearing on 29 January 2021. The Father then attempted to provide the ICL with questions during that morning. The ICL refused to accept the questions advising the Father it was too late to do so as he had not provided them in the time directed by the Court.
27.1t is submitted that the Father's behaviour in Court could at times be viewed as an attempt to self-sabotage his own case in an attempt to delay the finalisation of the proceedings.
28. The ICL agrees with paragraph 44 of the Submissions of the Mother in relation to the Father's use of the legal proceedings to try to intimidate and harass the mother. The Father was observed to continually object refuse to answer reasonable questions put to him. The Father refused to participate in his own Final hearing by failing to follow up on the Legal Aid s 102 NA grant and the failing to provide questions to be put to the mother by the ICL.
29. The Father was given opportunities to participate in his case by the Court in view of his lack of representation and language issues however he continued to act in way that sabotaged his own case.
30. The ICL agrees that the Fathers actions in Court could be seen as a way of forcing the mother to remain in the Court process with him and in the same court room
Report of Ms Q
31. The Father's case put to Ms Q was that he was desperate to see his children. The Father made several complaints about having to speak to his children in English when communication with them and that Child protection did not take his concerns seriously. He appeared to be unable to make any changes to his own behaviour to facilitate him spending time with or communicating with the children.
32. The Mother was interviewed by Ms Q and in her report, she sets the allegations made by the Mother of the Father's treatment of herself and the children during the relationship.
33. Those allegations together with the Mother's allegations in her affidavit if true describe significant and serious acts of Family Violence by the Father against the Mother and the children over the period of the relationship which would also constitute coercive and controlling behaviour.
34. This behaviour would involve criminal assaults on the Mother and Children and have caused fear and distress and physical pain to the mother and the children.
35. The Mother reported the reason the children were placed in her care after she fled the Father was because Child Protection in Victoria became involved and placed the children with her where they have remained until now. (Report of Ms Q paragraph 24).
Family Violence
36. The Mother has made allegations herself and the children were victims of serious and concerning Family violence perpetrated by the Father. These allegations are set out at paragraphs 34 - 53,147 - 214, 231 - 236 of the Mother's affidavit and in the document produced by Victorian Child Protection.
37. The Child protection notes record that
the mother presented with significant bruising on her face and body
The children were seen as thin almost to the point of malnourishment.
The Children were interviewed with on interpreter and did not wish to see the Father and were fearful of him.
38.1t is submitted the Mother's accounts and those of the children are consistent and credible and the Court should have serious concerns about the welfare of the children in their Father's care.
39.1t is submitted that on all of the evidence the Court should find the Mother's allegations of Family violence to be credible and therefore there should be a finding there is an unacceptable risk to the children if orders are made that the Father is to communicate or spend time with the children.
40. The Father denied to Ms Q that he was ever a perpetrator of Family Violence on the wife and the children. The Father blamed those allegations on the Maternal grandfather.
41. The Mother's evidence that the Family violence continued after separation is concerning. The Father did not deny the incident where the Father refused to get out of the car at a visit with the children. This is significant in that it indicates that he continues to have no regard for the impact and distress his actions cause the children or the Mother or the persons that facilitated the visit for him.
42. The child X supports the Mother's allegations that the Father became abusive to the children during telephone communication.
43. The Mother claimed that the Father would use the time with or communication with the children to try to speak to her.
44. The Father alleged in his evidence before the Court under cross examination that he had never assaulted the mother and that any mimes she may have suffered were self-inflicted. (Page I 08 of Transcript at 31.)
45. The Father further alleged to Victorian Child Services that it was the maternal grandfather who had caused the injuries to the Mother.
46. In view of the comments made by the children to both Victorian Child Protection and Ms Q the Father's denial that he was the perpetrator of the Family Violence on the Mother and the children is not believable.
The views of the Children
47. W (W) was interviewed by Ms Q and said clearly when asked why he thought he had to see her because my dad was hitting my mum and us. (Para 59)
48. Emphatically W (W) said that he did not want to see his Father and did not want to talk to him on the phone 'because he kind of abuses us in Punjabi'. (Para 60.)
49. W (W) is also reported as telling Ms Q that W said that once his father hit his mother in the eye and he saw blood coming out of it. (Para 61)
50. X (X) told Ms Q that W believed this was because his father feared if they went to school and learned more English, they would tell people at school what was happening at home and the teachers would tell the police. (para 62)
51. It is submitted that this evidence is compelling and supports the Mother allegations of Family violence and that it was witnessed by the children.
52. W (W) also informed Ms Q he was happy with his mother and enjoyed school.
53. X (X) immediately said he did not want to see his father going on to say ‘When we were in Melbourne, dad used to hit out mum a lot of times’. He said one day when they were all asleep, their father woke up and started hitting their mother. (para 66)
54. X said he did not want to talk to or see his father. He did not want to see him with me for their report. If the Court said he had to see his father, X said he would not want t. (para 67)
55. In the event that the Judge told X that he had to see his father, X said he would tell his father he did not want to play with him and would ask him why he hit his mother. If the Judge said he had to go to see his father, X said he did not want to and said he would not go. X speculated that his father could have done some of the things that he did in India but was not allowed to do them in Australia. X told me that in India, you could hit people when they did the wrong things but not at other times. (para70).
56. Y, (Y). Ms Q reports that After I explained my role, Y told me he did not want to see his father. If the Judge told him that he to talk to his father, Y was very hesitant and said he would maybe talk to him. Y said he was not keen to see his father and said he did not want to talk to his father, because he had been hitting everybody in his family. Very emphatically Y told me he was frightened of his father. (para 71)
57. Z, (Z) - Ms Q reports that If the Judge told Z that he had to see his father, Z said he would refuse to do so and would not go. He did not want to talk to his father on the phone. 9para77)
58. Z told is recorded as telling the Victorian Child Protection officer that he does not have a father and does not wish to see him
Father’s evidence
59. The Fathers case is that he has never hurt the children or the Mother and he did not perpetrate Family Violence daring or after the relationship. The children should be made to see him as it because of numerous influences on them including the mother that they do not want to see him.
60. The disclosures made by the children were clear and consistent from the first disclosures made to Victorian Child Protection.
61. The Father was given numerous opportunities to be assisted in the running of his case and failed to take up legal representation offered under a section I 02NA grant, then refused to provide questions to the ICL as directed by the Court to be put to the mother and then failed to engage in cross examination in a way which would assist his case.
62. He did put questions to Ms Q and these were answered in a way which confirmed the concerns raised by her in her report.
63. Ms Q made it clear to the Father it was not appropriate to force the children to meet with him for the interview which was what he suggested to her.
Mother's evidence
64. The Mother was cross examined by the ICL about whether she spoke negatively about the father in front of the children or allowed the grandparents to do so. The mother denied this was the case. The Mother was also asked by this ICL about the children's health and engagement in cultural activities. The Mother confirmed the children did dancing and were engaged in a variety of extracurricular activities to engage them with their culture and language.
65. The Mother gave evidence the children were health and happy and progressing will at school.
Section 60CC and Section 60 CC(2) of the Family Law Act
66. The Court must consider the principles set out in section 60CC of the Family Law, Act 1975 and in those in section 60CC(2), that:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The benefit of the child of having a meaningful relationship with both of the child’s parents
67. It is submitted that the evidence does not support any benefit to the children at the present time in having a relationship with the Father. In fact, the evidence suggests that even if the Court were to order that time or communication be had with the Father the consequential relationship would not be meaningful but damaging to these children.
68. The children appear to have begun to heal and recover from the years of family violence they witnessed and this is in my submission is due to the strength and compassion and care of the Mother.
69. The Father has not provided any evidence that he would be able to establish a meaningful relationship with the children in circumstances where he takes absolutely no responsibility for his past damaging actions of them and has no empathy around their disclosures and fear of him.
70. The Father has made no proposal has to how he would reassure the children not to be afraid of him.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence
71 .It is submitted that in circumstances where there is a complete blanket denial by the Father of any wrongdoing towards the Mother and the children the court cannot be reassured that further violence may not happen towards them in the future.
72. The Father has shown no insight or empathy towards his children or the Mother and in fact has attacked the Mother where possible.
73. There is the further risk that the children could be punished by the Father in some way for speaking out and making the disclosures they have. In fact, it is submitted the children have been extremely brave in making the disclosures they have and it would be a betrayal of this bravery and extremely damaging to them for them to be forced to meet with or speak to the Father after this.
74. The children remain afraid of the Father and it is submitted on the evidence it is with good reason.
75.1n these circumstances it is submitted the only way to protect the children from physical or psychological harm is for there to be no time or communication allowed between the Father and the children.
Section 60CC(3) considerations
76. The following are the relevant considerations;
a. (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
b. The views of the children are set out in the Report of Ms Q. They are also set out above and it is clear the children do not want to have anything to do with their father. They remain afraid of him.
c. The ages of the oldest children are such that their views should be given significant weight and there is no evidence before the Court to say they were coached in what they said. In fact, Ms Q rejected this suggestion when it was put to her.
d. (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents:
e. The Father’s attitude to parenting the children has been one where he has shown no empathy or insight into the fear and distress it would have caused them to see their Mother treated badly and assaulted by the Father. He has shown no concern for their education and their right to progress in society by becoming fluent in English and being provided with a proper education.
f. From the Mother's evidence he failed to provide them with a proper home, and they lived in fear of his punishment. The children are now recovering from their years with the Father in the care of the mother who has supported their education and their development of English. In the Mother's evidence on cross examination by the ICL the mother says the children are now socializing and have friends and are engaged in extra curricula activities.
77. .Section 60CC(3) considerations are otherwise addressed in the body of these submissions
Conclusion
78. It is submitted the only order that can be made which places the children's best interests as paramount are the orders as recommended by Ms Q and proposed by the Mother.
Conclusion
The Applicant Father has been in default of the Court Orders made on 29th January 2021 for 6 months. There has been no explanation for this delay. Nor has there been any Application for an extension of time.
There is no evidence to support the Orders that the Father seeks. There is very significant independent evidence to contradict and to oppose the Orders sought by him.
There is significant independent evidence from the material produced under s.69ZW of the Act, and from the Family Consultant, that the Orders sought by the Mother, supported by the ICL, are in the best interests of the children.
For the reasons given, the Orders as sought by the Mother are in the children’s best interests. Accordingly, the Court makes those Orders.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 2 July 2021
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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