SACHDEV & SAHA

[2015] FCCA 1924

FEDERAL CIRCUIT COURT OF AUSTRALIA

SACHDEV & SAHA [2015] FCCA 1924

Catchwords:
FAMILY LAW – What parenting orders should be made in circumstances where children’s relationship with the father is fractured – children are aligned with mother and litigation has been ongoing since 2009 – whether there should be an order that the mother have sole parental responsibility and children spend time with father in accordance with their wishes.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 65AA, 60CC, 60B(1), 60B(2), 60B(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 60CC(2)(a), 60CC(3), 65DAC(4), 65DAC(3)

Collu & Rinaldo [2010] FamCAFC 53
Champness & Hanson [2009] FamCAFC 96
Tait & Densmore [2007] FamCA 1383

Applicant: MR SACHDEV

Respondent: MS SAHA

File Number: DGC 4017 of 2008

Judgment of: Judge Jones

Hearing date: 20 May 2015

Date of Last Submission: 20 May 2015

Delivered at: Dandenong

Delivered on: 30 July 2015

REPRESENTATION

Solicitors for the Applicant: Self-Represented

Solicitors for the Respondent: Self-Represented

Counsel for the Independent Children's Lawyer: Mr Eidelson

Solicitors for the Independent  Children's Lawyer: Dandenong Family Lawyers

ORDERS

1. That the children of the marriage:

   (a)X born (omitted) 2000; and

   (b)Y born (omitted) 2003

   (collectively “the children”)

   live with the mother.

2. The mother have sole parental responsibility for the children.

3. The father spend time and communicate with the children at such times as the children may themselves agree to, and in accordance with their wishes.

4. The father be at liberty to send to the children cards, letters and gifts on a reasonable basis, and the mother provide same to the children, once received.

5. The Independent Children’s Lawyer make arrangements for Family Consultant, Ms K to explain these Orders to the children. The mother is to ensure that the children attend upon Ms K at a time set by Ms K for this purpose. Until this order is given effect to, the mother is restrained from discussing the content of these orders with the children.

6. Each of the father and mother keep the other informed of their current contact telephone numbers, email and postal address.

7. Each of the parties, their servants and agents be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party, and discussing these proceedings with or in the presence or hearing of the children or upon permitting any other person to do so.

8. The mother authorise the children’s schools to provide to the father at his cost, if any, all information prepared by the said school and normally made available to parents concerning the children’s social and academic progress.

9. The mother inform the father without delay of any illness or injury suffered by the children and information concerning the care provider.

10. Upon order 5 being given effect to, the Independent Children’s Lawyer is discharged.

11. Otherwise, all extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sachdev & Saha is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 4017 of 2008

MR SACHDEV

Applicant

And

MS SAHA

Respondent

REASONS FOR JUDGMENT

Introduction

1. This decision concerns the future parenting arrangements for:

   a)X born (omitted) 2000 (“X”); and

   b)Y born (omitted) 2003 (Y”)

   (collectively “the children”)

2. The parents are Mr Sachdev (“the father”) and Ms Saha (“the mother”).

3. The circumstances surrounding this matter involve the parents’ cultural background, a volatile separation and a consequent sundered relationship between the parents. Final parenting orders made in June 2010 and interim orders made after new proceedings were commenced have not been effective. The time spent by the father with the children especially since April 2011 has been limited. Over the course of litigation, the relationship between the father and the children has deteriorated so that presently it can be said to be completely fractured. Attempts at supervised time with the father at a contact centre in 2013 have been fruitless as has therapeutic counselling which has been engaged in since the latter half of 2014. The children are strongly aligned with the mother and the father struggles with his parenting style and understanding of the children’s needs. Both parents are responsible, in their own way, for these sad circumstances but neither accept responsibility for it.

4. I shall set out in some detail later the background and course of the litigation in this matter.

5. The Independent Children’s Lawyer (“ICL”) and the mother propose the following parenting orders:

   a)the children live with the mother and the mother have sole parental responsibility for the children;

   b)the father spend time and communicate with the children in accordance with their wishes;

   c)the father have liberty to send the children cards, letters and gifts on a reasonable basis and the mother provide them to the children, once received;

   d)both parents keep the other informed of their current contact telephone number, email and postal address;

   e)the usual restraints on denigration;

   f)the mother authorise children’s schools to provide to the father (at his expense if any) all information prepared by the school and normally made available to parents;

   g)the mother inform the father without delay of any illness or injury suffered by the children and information concerning the care providers.

6. I note that during the course of submissions, the ICL suggested that once proceedings are finalised the mother should offer the children individual counselling sessions on a confidential basis with Mr J.

7. The father, who like the mother, was self-represented and did not provide written proposed orders. I am satisfied, based on his oral submissions, that his proposed parenting orders are:

   a)the parties have equal shared parental responsibility for the children;

   b)the children live with the mother;

   c)the parties and the children continue to attend Mr J, (omitted) Family Relationship Centre for therapeutic counselling, such counselling to include at least six sessions involving the father and children;

   d)the father communicate and spend time with the children (commencing after counselling) in accordance with the Parenting Orders made on 16 June 2010.

Background and history of proceedings

1. The following sets out a summary of the background to the parties’ relationship, the separation and the history of litigation with respect to the children since separation. I have included in this summary extracts from various Family Reports ordered by the Court in relation to the parties and the children to outline the cultural issues confronting this family as well as the changing relationship of the children with their father and their alignment with their mother over the course of the proceedings.

2. The parties entered into an arranged marriage in India (according to the father) on (omitted) 1999 and (according to the mother) on (omitted) 1999. It seems that not long after the marriage, the parties moved to (country omitted), where the father had obtained employment. They then arrived in Australia in (omitted) 2002. Both parties are Australian citizens.

3. The parties dispute the dates that they were separated. The mother claims that the parties separated under one roof in July 2008 and separated on a final basis in October 2008. The father states that the parties separated in July 2008 under the one roof, that he left Australia in November 2008 but claims that the parties reconciled in May 2009, when the mother, escaping serious violence by a Mr Y, moved into the father’s house with the children for a period of time. The parties divorced on 22 November 2010.

4. The father presently resides in (omitted). He has not worked since he sustained a workplace injury in 2007. He is currently studying by distance education, (course omitted). The mother resides with the children in (omitted). She is employed on a part-time basis and her intention is to secure full-time work once Court proceedings have finalised. The distance between the parties’ homes is approximately 12 kilometres.

5. The cultural background which has been a significant factor in the parties’ relationship and marriage are helpfully summarised by Ms M, Family Consultant, who prepared a Family Report dated 31 May 2010 by order of the Court on 5 October 2009 at [42] to [44]:

   “[42] The couple in this case grew up in traditional Hindu families in a small country town in India and their marriage was arranged. The parties did not have the opportunity to know and understand each other’s needs and outlook before their union. Each party’s hope and expectation of the marriage was quite different. Soon after marriage, the parties left their country of origin. This probably further contributed to the slow demise of their relationship.

   [43] It is likely that if the couple were to live within their cultural group with ongoing support, sanction and sanctity of their elders and their community, they might have been able to work through their differences and preserve their union in spite of the interactional difficulties felt by this couple. Unfortunately that was not possible in this case as the couple first lived in (country omitted) and for the last 8 years have resided in Australia.

   [44] The mother perceives the father as controlling and righteous. However if one is aware of the cultural environment Mr Sachdev has grown up, it is easier to understand his views, feelings and behaviour in the given situation. From his point of view he has been a good family man. He was a faithful husband and provided for the family as expected of him.  In spite of the Intervention Orders taken against him in the past, the mother has clarified with the writer that Mr Sachdev was never violent towards her.”

6. A significant part of the history, which has had a long term impact on the father’s attitude towards the mother, is the mother’s relationship with Mr Y. The mother commenced an extramarital relationship with an abusive and violent married man, Mr Y, in or around (omitted) 2008. This relationship continued post-separation until (omitted) 2009. There is no dispute that the very young children were exposed to the abuse engaged in by Mr Y towards the mother. In (omitted) 2009, the mother was raped and beaten severely by Mr Y. She required hospital treatment. Mr Y was charged and found guilty of assaulting the mother. The mother obtained an intervention order against Mr Y. It was at this time that the mother sought refuge in the father’s home for short period of time. It appears that around three months later the mother resumed her relationship with Mr Y from (omitted) to (omitted) 2009. In (omitted) 2009, she decided to permanently end her relationship with Mr Y.

7. The impact of this relationship on the father is described by Ms M as follows at [17]:

   “[17] Mr Sachdev shared his angst and disgust that he had lost all trust in relation to Ms Saha and  that he was shocked beyond belief that a mother who came from an ‘austere and cultured’ family background could make such bad choices and place her needs before  their children’s welfare. He felt cheated and totally betrayed by his former wife. He expressed fear about the future possible indiscretions by the mother and the impact of such on his impressionable children’s development. The father felt it was safe and in the best interests of the children that they are placed in his care.  He was available and willing and capable of providing protective care for his children.”

1. It appears that the father left Australia in late 2008 (in the immediate aftermath of separation) and returned to Australia in (omitted) 2009. It is not clear what communication the father had with the children at this critical time.

2. On 21 November 2008, the mother filed an Initiating Application for parenting orders. On 16 June 2009, final orders were made which provided for equal shared parental responsibility, the children live with the mother and spend time with the father as agreed.

3. On 23 July 2009, the father filed an Initiating Application. On 11 August 2009, interim orders were made providing that the children spend time with the father each Saturday for four hours and the mother be restrained from permitting the children to have contact with or be within 200 metres of Mr Y. In addition, the Court ordered the appointment of an ICL and psychiatric assessments of both parties. On 5 October 2009, the Court ordered the preparation of a Family Report and on 10 November 2009, the father’s time with the children was increased.

4. It is appropriate to refer to the record of interview of the children contained in the Family Report prepared by Ms M dated 31 May 2010. It is clear that X and Y (both nine and six years of age respectively) had a very close relationship. X stated he loved both his parents but was more familiar living with his mother and expressed the view that he wished to spend fortnightly weekends and an overnight stay during the mid-week with his father. Ms M reported that Y, likewise, said she loved both her parents but wanted to continue spending the majority of her time with her mother. Ms M observed that both children seem to relate well with their parents and that at the end of the session they expressed a wish to go home with their father. Unfortunately, because of a terse comment made by the father to the mother “in a foreign language familiar (sic) to the writer”, conflict ensued between the parents. The mother refused to accept a lift in the car offered by the father (it was a stormy day and raining heavily) even when X “tearfully” appealed to her to take the lift (at [39]).

5. Ms M opined, “This scenario summarises the current quality of interaction between the parents and the emotional difficulties suffered by the children caught between their warring parents” (at [40]). Ms M, nevertheless, recommended the parents retain equal shared responsibility for the children, the children live with the mother and spend substantial time with the father.

6. On 16 June 2010, final parenting orders were made by consent. Both parties were legally represented. These orders provided for equal shared parental responsibility, the children live with the mother and spend time and communicate with the father each alternate weekend and one overnight on the alternate week progressing to two overnights in the alternate week by July 2010, as well as half school term holidays. In addition, there was provision for special occasions.

7. It is not clear from the parties’ affidavits how much time the father spent with the children in accordance with the orders from June 2010 to April 2011. What is undisputed is that from April 2011 (when the mother took the children for an eight week holiday to India) in early (omitted) 2012, (when orders were made by the Court for the father to spend time with the children), the father spent little or no time with the children. The parties dispute why this occurred. The mother claims that the father failed to spend time in accordance with the orders of the children. The father claims that the mother prohibited him after she returned from India from spending time or communicating with the children. The father filed a Contravention Application on 19 April 2012, which was withdrawn on 7 May 2012, to enable the parties to attend Child Dispute Counselling. No resolution was reached.

8. On 26 June 2012, the father filed an Initiating Application commencing these proceedings. The father sought orders that the mother comply with the orders made 16 June 2010 and that there be a Child Inclusive Conference pursuant to section 11F of the Family Law Act 1975 (“the Act”). By orders made 1 August 2012, the parties were directed to attend a section 11F Child Inclusive Conference and that the father spend up to three hours each alternate Sunday with the children with changeover to occur at the (omitted) food court.

9. A memorandum dated 6 September 2012, with respect to the Child Inclusive Conference was prepared by Family Consultant Ms D. At the time of the interview, X was aged 11 years old and Y aged 8 years old. Ms D reported that both children were consistent in describing an incident that occurred on 19 August 2012 when they spent time with the father. X reported that when he refused to allow his father to look at his mobile phone, his father became angry. The children were worried that he wanted their mother’s mobile number. X in particular was concerned about the dilemma of protecting his mother and causing his father to get angry. The children reported that the father interrogates them about their mother, there are arguments with him and they feel scared when he becomes angry.

10. Ms D conducted a brief observation of the children with the father. She reported that throughout this observation the father mainly interacted with the children by directing questions at them, that the children appeared uncomfortable and the father was unable to engage in play with them.

11. Ms D’s “Conclusion” discloses a deterioration of the relationship between the children and their father and alignment with the mother which had been encouraged by the mother. Both parents continuing to display a lack of insight about how their behaviour might be adversely affecting these young children. Ms D concluded as follows:

    ·    “The children’s language used and expressed opinions appeared to mirror that of their mother. It is likely that the children’s views are a combination of their own experience of spending time with their father and their mother perpetuating these concerns because of her own perception of him.

    ·    Notwithstanding this, they have very genuine concerns about spending time with their father some of which was also observed by the writer during this assessment. Such as the interrogation they experience each time they spend time with their father about the mother and their father’s lack of focus on their needs. They are also worried about their father’s anger and threats towards them.

    ·    (The mother) is considered as the parent who is more likely to provide for the children’s needs at present. However, she has limited insight into her own behaviours and attitude about their father and the likely impact of this on the children’s relationship with him. Whilst, she has genuine concerns about the children spending time with their father, (the mother) has clearly discussed the matters with the children. She has a strong influence on the children and the children in turn provide her with information she expects following time with the father.

    ·    The children’s relationship with their father has been at risk for some time. (The father) lacks insight into the impact of this behaviour in the children’s relationship with him. Without a period of supervised time and professional assistance to address these issues discussed in this assessment, the relationship between (the father) and the children will remain unchanged.”

12. Ms D recommended the father spend supervised time at a Contact Centre or through a private supervisor, that the father attend a parenting program and anger management course, both parties attend a Post Co-operative Parenting Program, the father seek counselling to support and assist him develop an understanding of the current issues which impact on his relationship with the children and that the children attending counselling to assist them to manage the parental conflict and build a relationship with their father.

13. Interim Orders were made on 2 October 2012 for the appointment of an ICL and for the mother and father to agree on a party to supervise time between the father and children. On 5 November 2012, interim orders were made by consent that the father spend time with the children each alternate Saturday for three hours from 2.00pm to 5.00pm, that both parties apply to a Contact Centre service to enable the children to spend supervised time with the father, that the father attend such parenting program, course or counselling as is recommended by Relationships Australia, the mother enrol in and complete a Post Co-operative Parenting Program and a non-denigration order.

1. From January 2013 to 17 March 2013, the father travelled overseas. In March 2013, the mother sought orders suspending a watchlist order to enable her to travel to India with the children. The father opposed the order sought. On 25 March 2013, orders were made permitting the mother to travel overseas with the children on the provision of surety from 26 March 2013 to 10 May 2013.

2. On 5 June 2013, the father provided a certificate of completion of a Parenting After Separation Program with Life Works. On 11 June 2013, the mother was ordered to comply with the Family Life Service intake procedures. The father spent supervised time with the children at the Contact Centre on 21 July 2013 and 4 August 2013. A scheduled visit on 18 August 2013 was cancelled on the basis that X had vomited enroute to the Contact Centre. On 1 September 2013 and 15 September 2013, the visits were cancelled due to the children refusing to spend time with the father. On 1 September 2013, the children had refused to leave the car and enter the Contact Centre despite the efforts of the Contact Centre workers to facilitate time between father and children. On 15 September 2013, the children entered the Contact Centre but refused, despite the efforts of the Contact Centre workers, to spend any time with their father.

3. On 1 October 2013, the ICL filed an affidavit of Ms K, Acting Coordinator of the Contact Centre, attaching a report of the time spent by the father with the children at the Contact Centre. In the report, the writer noted that out of five supervised visits the children only spent two with their father. It was observed that the children appeared anxious and there was an awkwardness and tension surrounding the children, that when the father attempted to engage the children in conversation their responses were short and abrupt which limited the father’s capacity to engage in conversation with them. The writer noted that the father was polite and respectful to both his children and staff throughout the visits and was attentive to directions and advice suggested by the workers to improve communication and rapport with his children. It was noted that the children engaged freely with the workers, however, X rarely initiated engagement with his father. Whilst Y did initiate engagement with her father, it was reported as activity based. The writer noted that the mother was also polite and respectful of staff and that she supported her children attending a Parenting Orders Program family practitioner. The report stated (at 12/13):

   “In summary, due to child refusal and the little time spent together during the two visits has (sic) limited the capacity of the children and (the father) to re-establish their relationship. The only two visits that the children attended did not provide (the father) the opportunity to implement the strategies and direction provided by the Children’s Contact Service Workers in order to help build rapport and improve communication between (the father) and his children.)

4. On 2 October 2013, orders were made that the children continue to spend time with the father each alternate Sunday commencing 13 October 2013 at the Contact Centre, that the mother enrol and complete one of the parenting courses offered by Family Life, that the mother engage with the Family Life Parenting Orders Program worker and make the children available to engage with such worker and that a Family Report be prepared.

5. On 14 January 2014, the ICL filed an affidavit sworn by Ms L, Co-ordinator of the Contact Centre. The report attached to that affidavit noted the scheduled visit for 13 October 2013 was terminated early, when X (with Y following his lead) insisted that the session cease soon after it began. Apparently, X had asked his mother to wait outside the Contact Centre rather than leaving. In what can only be seen as a bad choice, the mother complied so that when X insisted on leaving the Contact Centre, the mother was there to drive him home. The mother was counselled by the Contact Centre worker to ensure she left the premises of the Contact Centre next time after having dropped off the children.

6. On the visit scheduled on 27 October 2013, the report details once again non co-operative behaviour by the children, particularly on the part of X (with Y following his lead). At the commencement of the time, X announced he would only spend 10 minutes there. The report discloses X’s behaviour as rude and disrespectful to his father. The Contact Centre worker made attempts to extend the children’s time spent with their father, however, the supervised time ended early. Notwithstanding the Contact Centre worker’s advice on the previous occasion, it appears the mother was waiting in the car park outside the Contact Centre because she had expected the children to return as per “the agreement X made in front of her to the Worker is staying only ten minutes.”

7. The visit scheduled on 10 November 2013 was a repeat of the previous visits. The children were reluctant to spend time with their father, they were non-responsive. X insisted on leaving after a few minutes into the time spent and refused, despite the best efforts of the Contact Centre worker, to provide his father with an explanation about why he did not want to spend time with him and what change he would like to see occur. On this visit, X accused the worker of being a liar. Apparently, Y stayed a little longer with the father but then departed. At the visit scheduled for 24 November 2013, both children refused to see their father and the visit was terminated by the Contact Centre worker. The report records the father expressing his frustration about the failure of the visits to proceed as they ought and his view that this process was a “waste of time”. After this time, the scheduling of supervised time was terminated by the Contact Centre.

8. Other than attending the interviews with the Family Consultant Ms K on 11 February 2014 and a joint session of counselling on 28 August 2014 with Mr J, the father has not spent any time with the children since 10 November 2013.

9. On 5 March 2014, a Family Report dated 3 March 2014 prepared by Family Consultant Ms K was released. I shall refer to that Family Report shortly. Ms K recommended that the parties and children engage in family therapy to address issues in the parent/child relationships.

10. On 14 April 2014, orders were made by consent that the matter be adjourned for final hearing to 6 October 2014 and that the parties and the children attend family therapy at (omitted), or such other organisation as agreed to between the parties and the ICL. The orders required the mother to ensure the children attend each of the family therapy appointments that the children were requested to attend and that the parties comply with all reasonable recommendations of the therapist and be guided by the therapist regarding the time the children spend with the father.

11. The ICL’s Outline of Case Document records the following attendances by the parties upon Mr J, Family Counsellor conducted at the (omitted) Family Relationship Centre:

    3 July 2014 – mother and children attend for short session.

    9 July 2014 – children and mother attend, however, children remain in the waiting room.

    1 August 2014 – session with the children cancelled by the service due to practitioner being ill.

    28 August 2014 – session with the children and the father occurred.

    26 September 2014 – session with the children occurred.

12. The mother attached to her affidavit filed 30 September 2014, a copy of a certificate issued by Family Relationships Centre attesting to the mother’s completion on 18 September 2014 of a Parenting after Separation program.

13. On 6 October 2014, Counsel for the ICL reported that the counsellor had informed the ICL that he had met with the children on four occasions and that the session with the father on 28 August 2014 was traumatic for the children, that he supported the children seeing the father but was concerned that a continuation may be counter-productive.

14. On 1 November 2014, the father travelled overseas and on 4 February 2015, he informed the ICL he had returned to Australia from India. On 9 December 2014, the mother and children travelled overseas for the school summer holidays.

15. The mother and father have both attached email exchanges to their trial affidavits filed 6 May 2015, between the father, the mother and Mr J, the content of which is revealing regarding the parties entrenched attitudes. On 16 March 2015, the father emails Mr J regarding further sessions with him and the children. On 18 March 2015, Mr J emails the mother attaching an email sent by the father on 4 March 2015 to Mr J which stated:

    “I am happy to participate in the counciling (sic) session with Ms Saha to discuss the option to improve the Relationship with the Children and to know better ways to handle the situation and showcase difficulties.

    I am not interested to discuss about financial matter and the case is not about that, also I am not interested to side track the matter. I want to be very specific to the matter in relation to the Court order and options, possibilities etc.”

16. Mr J enquires of the mother whether she is happy to meet to discuss the matters pointed out in the father’s email. He states that if she is, he would be happy to facilitate any such meeting.

17. On 4 May 2015, the mother emailed Mr J stating:

    “…. Sorry for the delay in replying. I was upset to see the content of Mr Sachdev’s email that you have forwarded to me.

    …. After thinking well and analysing the facts, I don’t see any good reasons or positive outcome in having a session with Mr Sachdev after reading his email. I have already suggested him some ways to participate in the children’s life. I have not witnessed any evidence of him taking any efforts or made any positive changes in this regard. Moreover, he has clearly stated that is more concerned about the Court order rather than taking up any responsibility in the children’s matter. I have had enough of all this negativity and carelessness from his side. So I am not interested in wasting my time.”

18. It is not clear whether or not there were any further sessions arranged by Mr J with the parties individually or together.

19. At the hearing, Counsel for the ICL informed the Court that Mr J had advised the ICL that the children are refusing to see the father for counselling sessions and described the only joint session with the father as a disaster. Counsel for the ICL put to Ms K during cross examination that Mr J is still available to see the children but that he will not force the children to attend counselling with the father again.

Evidence and submissions

The father

1. The father relies on his affidavits filed 19 April 2012, 26 June 2012, 27 September 2012, 5 November 2012, two affidavits filed on 30 September 2013, 17 March 2014 and 6 May 2015. The father gave evidence and was cross-examined.

2. The father urges the Court to accept his proposal because he says the children have issues “in their mind” and he believes strongly that once these are dealt with by counselling he will be able to repair and build his relationship with them so that he can spend time with them in accordance with the 16 June 2010 Orders; namely, on alternate weekends and overnight during the second week as well as one week each school holidays.

3. The father is critical of the way in which the joint counselling session occurred with Mr J. He says that he had only attended the offices of Mr J to sign the documents for obtaining passports for the children and that the children had not had sufficient counselling sessions with Mr J before the joint counselling session.

4. The father says that the mother has, referring to her choices of partners (specifically Mr Y), not acted protectively towards the children.

5. In cross examination the father:

   a)agreed somewhat reluctantly that he and the mother had found it very difficult to achieve any real agreement about the children for a long time, that there was a protracted dispute in relation to the children’s passport and Indian Visa, that this dispute between the parents was engaged in through the offices of the ICL, that he had left money with the ICL to pass on to the mother. He was unable to provide a reasonable explanation for doing this rather than transferring the money to the mother directly. When asked about the incident on 5 September 2009, (recorded in the report of Ms K) where the police were called following a dispute between the parents at changeover regarding food prepared by the father for them, the father focused on the fact that the children were not allowed to take the food rather than the fact that this demonstrated conflict between the parents reduced to a nonsensical level;

   b)stated that he trusted the mother, however, later confirmed that he identifies his wife as being responsible for the breakdown of his relationship with the children. He disagreed with the proposition that he lacked insight into the impact of his behaviour upon the children because he said the children were never in his care;

   c)agreed that there has been no contact between him and the children, other than the purpose of interviews conducted by Ms K and attendance for counselling in August 2014, since November 2013;

   d)was unable to respond in any meaningful way to the question about what responsibility he took in relation to the situation he now finds himself in;

   e)confirmed that his case is that the children are strongly attached to the mother with whom they had lived since separation for seven years that they are loyal to her, that they love her and they are saying what she wants them to say; and

   f)did not agree with the proposition put by Counsel for the ICL that prolonging this litigation serves no purpose other than to continue the distress of the children. He was adamant that counselling should continue to address their issues. He stated that he did not want the children to grow up without having the opportunity through counselling to deal with these issues that are clearly affecting them presently.

The mother

1. The mother relies on her affidavits filed on 24 July 2012, 5 November 2012, 22 March 2013, 31 March 2014, 30 September 2014 and 6 May 2015. The mother gave evidence and was cross-examined.

2. The mother alleges that the father has never sent letters or cards to the children for any occasion and that the emails he sends to the children are devoid of appropriate expressions of love and respect towards the children. The father does not seem to dispute that he has not sent letters or cards to the children over the years. The mother also alleges that she has, on many occasions, sent emails to the father regarding X’s health, the children’s studies, their medical expenses, inviting the father to assist in choices about X’s future education and that he has been non-responsive. She gives as an example, the decision as to whether X should attend (omitted) High School or (omitted) High School. She said that the father completely ignored her requests to assist her decide which secondary school would be appropriate for X. The mother has attached copies of emails between her and the father to her affidavit filed 30 September 2014, regarding tuition for X requesting financial assistance. The tone of both parents in the emails is reflective of their long term animosity.

3. The mother says that the parties are unable to co-operate or agree on anything. She refers to the obstruction by the father in her attempting to obtain passports for the children, despite Court orders and the fact that this was only resolved through a third party, that is the offices of the ICL.

Family Report

1. A Family Report dated 3 March 2014, was prepared by Family Consultant Ms K for these proceedings. Ms K gave evidence and was cross examined. Ms K was not challenged by the mother or father on any of her record of interviews or opinions which I have extracted below.

2. Ms K reports that the father says the mother is a manipulative person and discourages the children from spending time with him (at [25]). She reports that the father was asked to explore when or how his relationship with his children may have become strained and if this could be due to his actions or in actions. She states the father “could not remember anything from the past and he clearly did not consider any possibility he has contributed to the fractured relationship. He went on to explain that past events poprtraying him “in the wrong” were inaccurate” (at [28]). He informed Ms K that the mother has to change and he does not consider this possible unless she is “made or told to change” (at [30]).

3. Ms K reports the mother focused during the interview, on the father’s failure to financially assist in surgery X required in (omitted) 2014 and his failure to financially contribute to the children’s upbringing and needs in the last five years (at [37]). When the mother’s attention was drawn to the recommendation by Family Consultant Ms D (on 17 September 2012) that the children have counselling to assist with the parental conflict, the mother is reported to have said that the children did not have counselling until a few times late last year (2013) at the Contact Centre. “She considers the children did not need counselling in the past, nor did she appear to see there (sic) any value in them attending the counselling provided through family life (at [39]).  The mother was critical of the father’s intermittent involvement with the children and the failure to offer them a nice time and play. She is  reported as saying (at [41]):

   “(The mother) said of (the father) “he disgusts me” and asked “why torture the children” by pursuing ongoing Court proceedings. She considers he is a “typical person from my culture” who expects children to do as they are told. That he should focus on the children’s needs and what they want to do rather than what he wants/thinks they should do. She said that at Family Life he was only focused on his own needs and he should have acted “upbeat” and appreciate what they had done during that time together.”

4. The mother then, however, said that the father should not give up and that he should complete a parenting course and change his attitude. The mother is reported to have suggested that the father needs to take the children to buy their school uniforms, cover their school books and take them to the park and connect to them through these activities that she does with them (at [42]).

5. Ms K inspected subpoenaed records and relevantly reported:

   a)Child Protection records of the Department of Human Services disclosed that in an interview on 24 September 2009, the children reported their father threatened to kill himself and denigrated their mother in their presence. The recommendation of the child protection practitioner was that the children live with the mother and have once weekly contact with their father (at [49]);

   b)(omitted) Hospital records for the mother record an admission in (omitted) 2008 following ingestion of bleach. The notes made by psychiatry during the admission has the mother describing her dissatisfaction in her marriage and drinking bleach following an argument with the husband. It was noted that she denied her husband perpetrated physical family violence, however, reported being subject to denigration by the father (at [51]);

   c)(omitted) Hospital records for the father on (omitted) 2008 disclose an admission following an overdose of Diazepam. The Registrar notes that the overdose which followed an argument with the mother regarding his suspicions of her infidelity. Interviews by the Registrar with both parties confirmed dissatisfaction regarding their marriage (at [52]);

   d)Victoria Police records for Mr Y include a statement made by the mother dated (omitted) 2009 which included a description of an assault on (omitted) 2009. In the statement the mother described Y being exposed to Mr Y punching her to the face and further assaults to her that evening whilst the children were in bed (at [53]);

   e)Victoria Police records for the parties identify four attendances by the Police at the former matrimonial home from August to October 2008. None involved physical violence and all were associated with arguing and bickering described by the police as vindictive by both parties. There is a report on (omitted) 2009 when police were called following a dispute between the parents at changeover. The report notes that the argument ensued when the mother insisted that the children should not keep a parcel of food that their father had prepared for them and the father insisted the children take home the food as he had prepared it especially for them (at [60]).

1. Ms K’s report includes a telephone conversation with the ICL who advised that the mother had not complied with recommendations made to her by Family Life POP counsellor that she attend a Parenting after Separation Program and had failed to comply with Court orders that she attend the same.

2. At interview, X was a little over 13 years of age. He told Ms K that he believes he is not being heard by staff or counsellors that he simply does not wish to spend time with his father. He considers he can continue to live successfully without his father as he has done so for five years. He is critical of his father for scolding him and his sister and using them to make their mother feel sad. He is critical that his father does not ask about school and misunderstands the sports that he is engaged in. He stressed that the father has not contributed to his life, sport or school fees. He stated his mother had encouraged him to forgive his father, that he considers it is wrong that she does this and he feels she should support him in this decision not to spend time with his father.

3. At interview Y was a little over 10 years of age. She was critical of her father for not praising her. For instance, at the Contact Centre she made a jewellery box for her mother and her father had suggested she could have made the box in a different way which made her feel like a failure. Y expressed certain allegations about her father which when explored by the Family Consultant appeared to have little basis. She stated she is happy with her mother and does not want this interrupted by having to spend time with the father. Ms K observes that Y appeared to consider she could not have two parents in her life. She stated her father was not around following her parents breakup and was critical of him for becoming emotional in front of her and her brother during spend time and said her mother would never do this. She stated she does not want to know her father is sad as this would make her sad. She stated she felt scared about seeing her father in the activity room but could not elaborate why.

4. I have extracted in full the record of the observations by Ms K of the children with the father (at [74] – [78]):

   “[74] When Mr Sachdev was shown into the activity room the children were sitting together on the sofa watching television. Y was already huddled into her brother’s shoulder and presenting as timid and afraid.

   [75] Mr Sachdev appeared bemused by her presentation. As he stood near the children he asked Y a number of times “what’s wrong”. It was quite clear this approach was not working and it was suggested Mr Sachdev cease his questioning. The children did not respond or look at their father.

   [76] Mr Sachdev asked X if he had a dental appointment that was scheduled for the day however X ignored him.

   [77] Whilst their father stood near them, Y made whimpering noises and X appeared parentified as he patted her shoulder and kissed her forehead as if to console and soothe her.

   [78] Given the children’s resistance to engaging with their father and their presentation the observations were not progressed. Prior to departing Mr Sachdev offered the children each a box of chocolates which they both refused to take. Mr Sachdev looked to this Family Consultant for guidance and he was advised it was for him to decide whether to leave the chocolates or take them with him. Mr Sachdev left the chocolates in the activity room. It is noted that the children left at the end of the day without taking these with them.”

5. It is telling to note that when Ms K conducted a follow-up discussion with the mother, the mother referred to the children witnessing their father being violent towards her. Ms K pointed out that this was contradictory to information on the Court file (at [79] –[80]).

6. In her “Evaluation” Ms K stated (at [83]):

   “There is a theme of contradictory behaviours exhibited by each parent that has contributed to the fractures in the father/child relationship. In interview (the father) could articulate the children’s needs and demonstrate a sincere concern for their well-being and a desire to provide for them as a caring parent. However it appears that he has struggled to communicate and interact with the children in a warm and age appropriate way. This exemplifies a gap between what he knows and his capacity to adopt nurturing behaviours. What is happened in the past is that his concerns for the children’s safety whilst in their mother’s care has meant that he has tended to question the children during their spend time. This has unfortunately resulted in them experiencing further anxiety and the emotional impact on the children is exacerbated inadvertently by him “checking up” on their mother.”

7. Ms K noted that during the spend time at the contact centre the father demonstrated attempts to change and enhance his interactions with the children. She stated however, “Whilst this is recognised it is suggested that he make himself more open to considering the matter from an alternative perspective which would include him taking some responsibility for the situation, acknowledge this, and learn to empathise with the children’s experiences independent of “blame” which he considers lives with their mother” (at [84]).

8. With respect to the mother Ms K stated (at [85]):

   “(The mother) considers all blame for the fractured father/child relationship lies with (the father). She acknowledged that her attitude towards him may influence the children’s willingness to spend time with her father and reported efforts to support and encourage spend time. However that this encouragement is in the context of the ordered spend time and not because she actually considers there to be any true value is highly problematic. The children are intelligent and would recognise her “tone” is that they should make the best of the situation rather than her actually giving them the freedom and permission to have a relationship with their father. (The mother’s) emphasis is significantly different and comes after many years of the children’s exposure to parental conflict and clearly conveys messages that their father is bad and at fault.”

9. With respect to the children, Ms K stated (at [86] to[90]):

   “[86] The children are strongly aligned with their mother, and it appears that X has taken on the role as her protector and/or confidante. This would indicate that at times (the mother) has struggled to separate her own needs from the children’s needs and exposed them to adult issues. Until (the mother) is willing and able to support the children to have a relationship with their father that is independent of her relationship with him they will refuse to do so. While the parental conflict continues the children will continue to feel torn in a battle of allegiance and suffer the fierce emotional strains this, and the immense burden of overwhelming feelings (towards their father), causes them.

   [87] That their mother encourages them to spend time with their father is in complete contradiction to (spoken and unspoken) messages she would provide them in any other situation, and this further complicates the situation. The effects no doubt would be to cause confusion and fuel the feelings of anger demonstrated by X in the Report interview.

   [88] Y described feeling scared of her father and presented as fearful in his presence however she was not able to articulate why or provide an example of the behaviours that make her fearful, only of those which made her feel “sad”. This may be attributed to (the father’s) historical threats (to the children) of suicide and the associated responsibilities to manage her father’s overwhelming emotions. It does appear there are many shared stories within the mother’s home, and even if Y did not remember what it is their father exposed or subjected them to, it is likely she would have learned memories. This, in conjunction with the level of closeness of loyalty she would feel to follow her brother’s lead will cause her to make decisions to please those to whom she is closest rather than please herself.

   [89] X considers his father has done nothing for him and his sister in the last five years. These words were also spoken by his mother and this highlights the theme of enmeshment, and suggests that X would not be forming independent views and opinions. X’s comments indicate that (the mother) is likely to have omitted information that she sought and received protection of (the father) when in fear of Mr Y and his abuse.

   [90] The anger and resentment X demonstrated towards his father was overwhelming and while he functions successfully as a student and a sportsman this would be in complete contrast with internal functioning. He has a lot of adult worries about financial issues and his interaction with his distressed sister shows him fulfilling a paternal figure. These suggest he likely considers he holds a great deal of responsibility within the family unit beyond what is age-appropriate and this is detrimental to his emotional well-being.”

10. In cross examination, Ms K agreed that given the report by Mr J to the ICL regarding the family therapy he had conducted with the parties (see [46] above), and given the length of time the dispute between the parents has continued, a finalisation of litigation may assist the children move on and think differently about their relationship with their father. Ms K stated that it was unfortunate but the most realistic way to move forward.  She stated that in her opinion the children were very entrenched in this battle between the parents and that any further attempts to force them to enjoy a relationship with the father would be counter-productive and futile and fuel the negative thoughts about him. She stated that perhaps if the children were allowed to take a step back and develop a different thought process, in time they will be more open minded to a relationship with their father. She said that these were very unfortunate circumstances but given that family therapy has not proved successful there did not appear to be other options available.

Consideration and Findings

1. The acrimonious relationship between the mother and father recorded in the Family Reports has not abated. The email exchanges attached to the mother and father’s affidavits reveal parents who are unable to communicate in a neutral and effective manner. The content of these emails are rife with blame and accusations. At times they appear to be completely at cross purpose with what the other parent is saying.

2. I accept that the father had genuine protective concerns regarding the mother’s relationship with Mr Y, which have been exacerbated by the fact that the mother’s behaviour was completely at odds with any cultural expectation. However, the mother completely removed herself from this relationship in (omitted) 2009. Yet the father clearly has been unable to move on from this and continues even during the hearing of this matter, to view her capacity as a parent with distrust.

3. During the course of the ongoing litigation, the father has blamed the mother for the disintegration of his relationship with the children and continues to do so during the course of the hearing of these proceedings. The mother, likewise, has continually blamed the father for the situation he finds himself in now with the children. She is critical, particularly of his lack of financial support for the children and his lack of engagement in any aspect of their lives. I agree with the opinion of Ms K that the mother and father have each contributed to their children’s experience of anger, grief and loss and that neither parent has taken any responsibility for the sad circumstances which the children confront. The sundered relationship was palpably evident when the father engaged in cross examination of the mother. This cross examination disintegrated into vitriolic accusations levelled by each against the other.

4. I am satisfied that there will be no change in this acrimonious relationship between the mother and father in the foreseeable future.

5. I am satisfied that the children were during the relationship exposed to denigration by the father of the mother, particularly towards the end of the relationship. I am not satisfied that the father engaged in physical family violence based on the reports made by the mother at the time or shortly after separation. I am satisfied, however, that the children were exposed to very serious physical and verbal violence engaged in by Mr Y towards the mother after separation and likely until (omitted) 2009. There is no evidence before the Court to suggest that the mother took steps to engage these children in counselling given their exposure to this serious family violence. Consequently, whilst the mother acted protectively by terminating her relationship with this violent man, in my opinion she failed to understand the very serious impact the children’s exposure to the violence may have had.

6. I have formed the view that the mother, whilst she has provided a secure and stable home for her children, carried the financial burden for these children and clearly taken active steps in promoting their schooling, sports activities and extracurricular activities, has unfortunately let them down by dismissing the notion that counselling would have been of benefit to her children over the last six or seven years. It is very disappointing that she did not accept or act on the recommendation of Family Consultant Ms D in September 2012 that she engage the children in such counselling. The history discloses that the mother has been resistant to taking steps to assist herself in coping with the complexities of parenting after separation by attending appropriate parenting programs in a timely fashion. To this extent, I have formed the view that she lacks insight into her children’s emotional needs. This is not to suggest that the father has a better capacity to appreciate the children’s emotional needs. I have formed the view that he does not and will deal with this shortly.

7. I am satisfied that the history of the lengthy litigation and various attempts at therapeutic intervention have not resulted in parenting orders which have been effective nor have the father and mother altered their acrimonious behaviour towards each other. Rather than facilitate a meaningful relationship between the father and the children, their relationship has deteriorated in a spectacular manner. In 2010, both children expressed a desire to live with their mother but to spend time with their father. At each of the subsequent Court involvements the children displayed increasing reluctance to engage and spend time with their father. In November 2013, the efforts of the Contact Centre workers to enable supervised time by the father with the children with the purpose of re-establishing a relationship with him proved futile, with the Contact Centre terminating its services. The behaviour of the two children at the interviews conducted by Ms K on 11 February 2014 with their father is extraordinary to say the least.

8. I am satisfied that the mother has involved her children, X in particular, in the conflict and deep mistrust she has of the father. I accept Ms K’s evaluation that the children reflect the mother’s views and concerns about the father. This is evident from the record of interviews with the mother and the children and the mother’s affidavits and indeed the submissions to Court.

9. The mother’s case is that the father has been abusive towards her (which the children would have experienced as her being “sad”), has not supported her in any way (despite the fact that he did provide refuge for her when she escaped from the violence being perpetrated by Mr Y ), that the father has had no involvement with the children in the last five years and that she has carried the complete burden financially and otherwise of raising the children providing them with their educational, sporting and extra-curricular activities. Whilst there is no doubt truth in much of what she says, the fact is that the children have reflected these views in their interviews with Family Consultants.

10. The mother has made it clear that she despises the father and I agree with Ms K’s observation that the mother’s message that the children should spend time with the father has only occurred because of Court orders and would be overwhelmed by the other message which is that “he disgusts her”. In her evidence and submissions, the mother focuses on the scholastic and sporting achievements of the children (which are of course to be commended) but displays very little understanding of the long-term effects of the children’s alignment with her against the father. The reports prepared by the coordinators of the child Contact Centre are telling in that the mother has clearly allowed herself (whether intentionally or not) to be co-opted in X’s determination to assert his will over all others and ensure his time with his father is limited. It has been sad to reflect on the impact this has had on Y, who (assuming the report is an accurate record of the visits) would have been prepared to spend time with her father and be part of the rebuilding of her relationship with him but for the stubborn and overbearing behaviour of X and the mother’s co-option in this conduct.

11. I am satisfied that an inference can be made that the mother has enmeshed the children in her dispute with the father. I find that the children are clearly aligned with their mother.

12. The mother may well feel satisfied that the father is no longer part of her life or indeed the children’s lives, however, she should be aware that there may be adverse long-term emotional impacts on children who have been enmeshed in a long term acrimonious dispute. I would hope that the mother, on the conclusion of these proceedings, takes proactive steps to attend to her children’s emotional needs rather than assuming that by the engagement in scholastic, sporting and extra-curricular activities the children can be distracted from the conflict between the parents and loss of their father. The ICL informed the Court that Mr J had advised him that he would be prepared to continue to engage with the children in individual counselling. I appreciate that this may involve additional costs for the mother and that she already carries the financial burden for the children. However, she could explore at least obtaining some subsidy through the family’s General Practitioner issuing a Mental Health Plan for each of the children. The mother to her credit has clearly expended her hard earned salary on the children’s education. I urge her to consider providing the children with an opportunity to engage in professional assistance with respect to their emotional needs.

13. The father, on his part, has to accept his responsibility for his estrangement from the children. The history discloses that he has had, even during a period when the children were prepared to spend time with him, intermittent or inconsistent involvement with them. I am satisfied that the father has not involved himself in the children’s scholastic achievements, in their school and sporting activities. His failure to do so clearly results in an inability to engage the children in conversations about those activities which they are clearly proud of. It appears that the father has, no doubt reflecting his cultural background, an authoritarian style of parenting. On the evidence, he has thus far lacked an ability to relate to the children in a warm and engaging way. His tendency to “interrogate” his children as observed in each of the reports prepared by the Family Consultants, displays a poor parenting style which likely reflects his obsession with the mother rather than a focus on the children.  The father says that he wants to be part of the children’s lives, however I am satisfied that he has thus far adopted a stance in which that involvement is on his own terms and not the terms that would be appropriate to the needs and age of his children.

1. The father talks of the children having issues “in their minds” as if these issues are separate from his behaviour towards them and the mother. His notion that five or six counselling sessions will resolve these issues “in their minds” and enable him to spend substantial and significant time with the children given the history of litigation since separation, is naive in the extreme. The father clearly attributes all blame to the mother, he describes her as not “a hundred percent” mother. The father really needs to appreciate that his capacity to develop a meaningful relationship with his children will depend on very significant changes and improvements in his parenting style and interaction with the children. The father’s decision to travel overseas during the period (omitted) 2014 to (omitted) 2015 at a time when the parties had been ordered to engage in therapeutic family counselling, demonstrates very little commitment to the process of therapeutic counselling. His absence wasted valuable time leading up to the final hearing to engage in therapeutic counselling as ordered by the Court.

2. The only conclusion open to the Court on the evidence before me, is that the children will not comply with a Court order that they spend time with their father. I am satisfied having regard to X’s ongoing refusal since October 2013 (at the child Contact Centre), during the interviews conducted by Ms K in February 2014 and more recently during counselling with Mr J in late 2014 to engage with or spend  time with his father, that X will continue to refuse to spend time with his father. It is evident that X plays a paternal role in Y’s life, that they are extremely close siblings and that Y will likely only follow her brother’s lead.

APPLICABLE LAW

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Act.

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s.60B of the Act.

3. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s.60CA and s.65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests. In Collu & Rinaldo [2010] FamCAFC 53, the Full Court held that a Court’s task, informed by the objects expressed in s.60B(1) and the principles underlying those objects in s.60B(2) (and where relevant s.60B(3)), is to undertake consideration of and make findings about each of the “best interests” considerations set out in s.60CC having regard to the parties’ respective proposals.

4. Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or person that lives with the parent or child) has engaged in abuse of the child or another child who was a member of the parent’s family or family violence: s.61DA(2). Moreover, the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: s.61DA(4). It is to be noted that where the presumption does not apply, in circumstances where the Court has reasonable ground to suspect abuse of the child or family violence has occurred, the Court nonetheless retains the discretion to order equal shared parental responsibility.

5. Where a parenting order provides that the parents are to have equal shared parental responsibility for the child, the Court must first consider whether it is in the best interest of the child and is reasonably practicable for the child to spend equal time with both parents and, if so, whether an order for equal time should be made: s.65DAA(1). Where the Court decides that it should not make an order for each parent to spend equal time with the child, it must then consider whether it is in the best interest of the child and is reasonably practicable for the child to spend substantial and significant time with each parent and, if so, whether an order for substantial and significant time should be made: s.65DAA(2). The meaning of substantial and significant time is set out in s.65DAA(3).

6. Before considering s.61DA and the legal pathway mandated where the presumption of equal shared parental responsibility applies, it is appropriate to consider s.60CC. Section 60CC(1) provides that in determining what is in the best interests of a child the Court must consider the matters set out in subsections (2) and (3).

   
   

   Section 60CC(2)(a) specifies what are described as the primary considerations and s.60CC(3) sets out what are described as additional considerations.

S.60CC – Best Interest of the Children

Primary considerations

Section 60CC(2)(a) – benefit to the child of having a meaningful relationship with both of the child’s parents

1. The enquiry in relation to s.60CC(2)(a) is a prospective one requiring the Court to :

   “…evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to B into the future.”: G & C [2006] FamCA 994 at [72]

2. Whilst the Court must consider the best interests of the child of having a meaningful relationship with each parent, this benefit must be weighed against all other factors, in determining orders which have the children’s best interests as the paramount consideration: Champness & Hanson [2009] FamCAFC 96 at [103].

3. The concept of “meaningful” was expanded on by Cronin J in Tait & Densmore [2007] FamCA 1383:

   “To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.”

4. The children clearly have a meaningful relationship with their mother albeit characterised by an unhealthy alignment with her.

5. The father’s relationship with the children has since May 2010 deteriorated and is now completely fractured. It is my opinion this is a result of the actions and behaviours of both parents who have failed to rise above the acrimony between them and focus on their children’s emotional needs. Both have displayed areas of inflexibility in promoting the relationship.

6. I am satisfied that the mother has involved her children, X in particular, in the conflict with and deep mistrust she has of the father. In her evidence and submissions, she focuses on the scholastic and sporting achievements of the children (which are of course to be commended) but displays very little understanding of the emotional impact of the children’s alignment with her against the father. The reports prepared by the co-ordinators of the Contact Centre are telling, in that the mother has clearly allowed herself (whether intentionally or not) to be co-opted in X’s determination to assert his will over all others and ensure his time with his father is limited. It has been sad to reflect on the impact this has had on Y, who (assuming the report is an accurate record of the visits) would have been prepared to spend time with her father and be part of the rebuilding of her relationship with them but for the stubborn and overbearing behaviour of X and the mother’s co-option in this conduct.

7. The mother’s resistance to enrolling in completing programs to assist her in managing the dispute between the parties and the children’s relationship with the father is disappointing. Her failure to act on the recommendation of Family Consultant Ms D on 17 September 2012 to engage the children in counselling to assist the children deal with the parental dispute has not been in the children’s best interests. Unfortunately, the mother has displayed a dismissive attitude throughout the proceedings to the benefit counselling might bring for her children, especially X. In this respect, she has let them down.

8. The father on his part, has to accept his responsibility for his estrangement from the children. The history discloses that he has had, even during a period when the children were prepared to spend time with them, intermittent or inconsistent involvement with them. No doubt reflecting his cultural background, it seems to me his style is authoritarian and lacks an ability to engage in a meaningful interest in his children’s lives. His tendency to “interrogate” his children as observed in each of the reports prepared by the Family Consultant’s displays a poor parenting style, which likely reflects his obsession with the mother, rather than a focus on the children. 

9. The father talks of the children having issues “in their minds” as if these issues are separate from his behaviour towards them and the mother. As I have already stated, his notions that five or six counselling sessions will resolve these issues “in their minds” and enable him to spend substantial and significant time with the children given the history of litigation since separation, is naive in the extreme. The father clearly attributes all blame to the mother, he describes her as not a “hundred percent” mother. The father really needs to appreciate that his capacity to develop a meaningful relationship with his children will depend on very significant changes and improvements in his parenting style and interaction with the children. The father’s decision to travel overseas during the period November 2014 to February 2015, at a time when the parties had been ordered to engage in therapeutic counselling, demonstrates very little commitment to the process of therapeutic counselling. His absence wasted valuable time leading up to the final hearing to engage in therapeutic counselling as ordered by the Court.

10. Although I am satisfied it would be in the best interests of the children to have a meaningful relationship with their father, the reality is that given the circumstances (as recited in [70]-[84] above), it is not possible to craft Court orders to facilitate that relationship. Previous Court orders that provide for the children to spend time with the father have not been given effect to, the children’s attitude to spending time with their father has hardened such that they refused to interact with him and their behaviour when required to be with him is seriously dysfunctional. Professional supervision and family counselling has not assisted to repair the relationship between the children and their father, let alone facilitate a meaningful relationship.

11. I am satisfied that ordering ongoing family therapy with subsequent time spent by the children with him will most likely be counter-productive to establishing a meaningful relationship between the children and father. I agree with Ms K’s opinion that in these sad circumstances, finalisation of litigation is the most realistic approach enabling children to have time to reflect and to adopt a different perspective to their father.

12. I am satisfied that the ICL’s proposed orders (adopted by the mother) is unfortunately the only orders which may ultimately lead to a repair of the children’s relationship with the father.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

1. This factor is not relevant in this case.

Additional considerations

Section 60CC(3)(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

1. X is now 14 and a half years old and is in year 9 at (omitted) High School. Y is 11 and a half years old and is in year 6 at (omitted) Primary School.

2. Both children have expressed strong views that they do not wish to spend any time with their father or engage in therapeutic counselling with him. I am satisfied that these are not independently developed views. However, given their conduct at the Contact Centre during the interview with the Family Consultant and their views expressed during sessions with Ms P, I am satisfied that the father’s proposal for the children to engage in counselling with him and then to spend time with him will be distressing for the children and himself.

3. The ICL and mother’s proposal that the father spend time with the children in accordance with their wishes will provide the children with the opportunity to be removed from the tension that surrounds litigation, hopefully reduce their exposure to the acrimony between the mother and father and enable them to have the opportunity to develop their own views with respect to their father. This would be facilitated by children engaging in individual counselling.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. I have dealt with this matter particularly at [95] to [103] above.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about long term issues in relation to the child and to spend time with the child and to communicate with the child

1. On the evidence before me, I am satisfied that the father has not taken any steps to involve himself in matters relating to the children’s education, health and extra-curricular activities notwithstanding the orders on 16 June 2010 which provided for such involvement. It seems to me that the father expects because he is a father, to have time with the children without genuinely and actively involving himself in their lives.

2. I have no confidence that this approach will change.

3. I am not satisfied that the father has taken every opportunity to spend time and communicate with the children. He does not dispute that he has not sent letters or cards to the children. It appears that at critical times for instance, in the immediate post separation period and when therapeutic family counselling had been ordered, the father went for at least a period of three months overseas. No explanation has been given for these absences.

4. I have had regard to the email exchanges between the parents which they have attached to their various affidavits, in relation to the children’s long-term issues. I have reached the conclusion that these exchanges are fruitless, accusatory and appear to have completely failed to resolve any particular issue relating to the children.

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain their child

1. The father is not working and has not done so since 2007 following his workplace injury. On 15 November 2012, the Child Support Agency by correspondence to the mother informed her that the father’s request to reduce child support had been accepted and that his ongoing child-support commitment per month was “nil”.

2. From the evidence, it is clear that the mother carries complete responsibility for the financial costs of the children. There was no evidence of any contribution made by the father other than in early 2015 when the father transferred through the ICL, $500.00 for the support of the children.

Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including grandparent or other relative of the child), with whom he or she has been living

1. This is not a relevant factor in these proceedings.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This is a relevant factor in these proceedings

Section 60CC(3)(f) – the capacity of each of the child‘s parents and 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

1. Both parents have displayed a somewhat limited capacity to understand and hence provide for the emotional needs of the children. There is no doubt that whilst the mother is clearly capable of providing for their intellectual and physical health needs, her refusal (until there were Court orders) to engage the children in counselling, notwithstanding the recommendations of the Family Consultant in September 2012, demonstrates a limited understanding of the emotional needs of her children. Ms K noted in her Family Report that the mother was dismissive of the benefit which the children may receive from individual counselling.

2. The father proposes orders that family therapy, particularly the engagement of the children in that process, continue following which he commence spending time with the children. The ICL has informed the Court that Mr J’s opinion is that family therapy would prove futile at the present given the adamant views of the children. There is a further concern which I have expressed to the father during the course of the hearing, which is that in circumstances where the children are as resistant as X and Y are to participating in counselling with their father, continuing with counselling may exacerbate rather than ameliorate the problem.

Section 60CC(3)(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

1. I have already dealt with this factor in my earlier consideration of matters affecting the best interests of children.

2. Section 60 CC(3) (h) is not relevant to these proceedings.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. I have already dealt with this factor in my earlier consideration of matters affecting the best interests of children.

Section 60CC(3)(j) – any family violence involving the child or
a member of the child’s family; and Section 60CC(3)(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 nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the Court in, or in proceedings for, the order, and any other relevant matter

1. Any family violence that has occurred is historic as are intervention orders which have been made and consequently, I do not consider this factor relevant to these proceedings.

Section 60CC(3)(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 child.

1. The inclusion of this matter reflects the legislature’s view that the continuation and institution of further litigation is not generally in the best interests of the child. Of course, over time the children’s and the parents circumstances alter and parenting orders cannot be expected to anticipate each shift that occurs in the children’s development and parents’ circumstances. Accepting this, it is important to craft orders that to the extent possible, will avoid the institution of further proceedings.

1. Given the history of these proceedings and earlier litigation which is summarised at [100], I find that the father’s proposals are more probable than not likely to lead to further litigation. I am satisfied that the ICL and mother’s proposed are least likely to result in the institution of further proceedings.

Section 60CC(3)(m) -any other fact or circumstance that the Court thinks is relevant.

1. There are no other facts or circumstances that I consider relevant to these proceedings.

S.61DA andS.65DAA

1. The ICL and the mother both propose orders that the mother have sole parental responsibility for the children. The father proposes that there be equal shared parental responsibility for the children.

2. I now to consider whether the presumption of equal shared parental responsibility (s.61DA(1)) applies in the circumstances of this case. Having regard to the evidence for the reasons set out below, I am satisfied that the application of this presumption would not be in the best interests of the children and consequently, is rebutted.

3. S.65DAC(1) and (2) provide that the exercise of parental responsibility involves making decisions about major long term issues in relation to the children and that an order for equal shared parental responsibility requires the decision be made jointly by those persons. Section 65DAC(4) makes it clear that another person acting on a decision about the child communicated by one of the parents does not have to establish that the decision was made jointly.

4. Although the father in cross examination resisted the idea that the parties had been unable to agree on any matters relating to the children, he was unable to point to an instance where they were able to discuss and agree on a child related matter. On the evidence before me, the communication between the mother and father is woeful. I have already referred to the content and tone of their email exchanges. The incident in 2009 (identified in Ms O's Family Report) where the police were called because of a conflict between the parents at changeovers about whether food prepared by the father could be accepted by the children simply beggars belief. I have observed the parties during the proceedings and the manner in which they engage with each other during cross examination simply reflects two parents who communicate at cross purposes each focusing on a particular issue and not the paramount issue at hand, namely the children.

5. Section 65DAC(3) sets out the requirements of parents to share equal parental responsibility. These are that they consult with each other in relation to the decision to be made about the issue and that they make a genuine effort to come to a joint decision. It is manifestly clear from the evidence that these parents are incapable of engaging in consultation involving a genuine effort to come to a joint decision about long term issues affecting the children.

6. Accordingly, I will make an order that the mother have sole parental responsibility for the children.

7. I am now not required to consider firstly, whether it is in the best interest of the children and is reasonably practicable for the children to spend equal time with both parents and if so, whether an order for equal time should be made: s.65DAA(1). Nor am I required to consider whether it is in the best interests of the children and is reasonably practicable for the children to spend substantial and significant time with the father: s.65DAA(2).

8. I am satisfied for the reasons set out earlier in my decision in the consideration of the matters which the Court must have regard to in determining what orders are in the best interests of the children, that it is not in the best interests of the children to make an order for the father to spend time with the children.

9. The ICL and the mother propose that any time spent by the father be in accordance with their wishes. X will be 15 years of age in around six months and at an age where it is not uncommon for the Court to recognise that it is age appropriate to enable children to spend time with the non-resident parent in accordance with their wishes. Y is 11  and a half years of age. Whilst it is not entirely satisfactory that at her age she is given the decision making responsibility for the time she spends with the father, in the circumstances of this case which include her very close relationship with and dependency on X, I am satisfied that the time she spends with her father should be in accordance with her wishes.

10. I note that the ICL’s proposed orders provide for the father to send the children cards letters and gifts on a reasonable basis and that the mother provide them to the children once they are received.

Conclusion

1. For the reasons set out in this judgment, I make the order set out above.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 30 July 2015