Mandalig and Mandalig

[2019] FCCA 3022

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANDALIG & MANDALIG [2019] FCCA 3022

Catchwords:
FAMILY LAW – Parenting dispute – father seeking to see teenage sons – in alternative father seeking family therapy – children expressing strong opposition to any contact with father – children enmeshed with mother – mother detesting father – children’s’ views immutable – family therapy hopeless as children refuse it – orders made as sought by the mother.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Rice & Asplund (1979) FLC 90-725

Bondelmonte & Bondelmonte (2016) FLC 93-698
R & R [2000] FamCA 43
Goode v Goode [2006] FamCA 1346

Applicant: MR MANDALIG

Respondent: MS MANDALIG

File Number: MLC 2440 of 2015

Judgment of: Judge Burchardt

Hearing dates: 19 and 20 September 2019

Date of Last Submission: 20 September 2019

Delivered at: Dandenong

Delivered on: 31 October 2019

REPRESENTATION

Counsel for the Applicant: Mr Stanley

Solicitors for the Applicant: Crestway Lawyers

Counsel for the Respondent: Mr Lynch

Solicitors for the Respondent: Peter Lynch Lawyer

Counsel for the Independent Children’s Lawyer: Ms Bonney

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. That the Mother have sole parental responsibility for the children, with the Mother to notify the Father of any proposed significant long term decisions and to take the Father’s views into account, with the Mother having the final decision.

2. That the children live with the Mother.

3. That the children’s time with the Father be subject to their wishes.

4. That in the event that the children express a wish to communicate

   
   

   or spend time with the Father, the Mother will facilitate this request.

5. That the Airport Watch List order be discharged.

6. That the Independent Children’s Lawyer appointed in this matter be discharged.

7. That the Mother be at liberty to travel with the children both inside and outside of the Commonwealth of Australia, with overseas travel not to exceed four weeks.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 2440 of 2015

MR MANDALIG

Applicant

And

MS MANDALIG

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about the best interests of three children: X, born … 2004; Y, born … 2006; and Z, born … 2007.  The applicant father, whose position has altered from time to time, seeks, as his primary position, that the parties be referred to family therapy and the children spend time with him in each alternate weekend.  The respondent mother’s position is that the children should spent no time whatever with their father and that she have sole parental responsibility.  The Independent Children’s Lawyer, albeit reluctantly, supports the mother’s position.

2. For the reasons that follow, and likewise reluctantly, I propose to make the orders sought by the Independent Children’s Lawyer.

Agreed or Uncontested Relevant Matters

1. The father was born on … 1964 and came to Australia in 1992.  He is employed as a tradesman and is married to a lady of Sri Lankan ethnicity, like himself, whom he married in … 2016.  They do not have any children together.

2. The mother was born on … 1975.  Following an arranged marriage, she came to Australia on a spousal visa in 2003.  She and all the children are Australian citizens.

3. The parties lived together in Australia until about 2008, when they returned to Sri Lanka.  It should be noted that various dates have been given for the return to Sri Lanka, including a much earlier one of 2003, but, taking the materials as a whole, it seems clear that the latter date is the more accurate.  The father took control, as it were, of the children’s’ lives in Sri Lanka and obtained orders in his favour in the Sri Lankan courts in 2009.  The mother was able to obtain orders pursuant to the Hague Convention in Australia, pursuant to which, ultimately, the children were returned to her care and returned to Australia in 2010.  Given the mother’s energetic and proper agitation of her interests in this instance, it seems to me more probable than otherwise that she had only returned to Sri Lanka (there is a dispute as to whether she understood what was occurring) in 2008.

4. On return to Australia, the mother and children had to live in rented accommodation, in circumstances, one would infer, of some financial stress, until the father returned to Australia in 2012.  He then suggested that the parties live together, and they appear to have reconciled sufficiently to live under the same roof until final separation, which is indicated by the parties as taking place in late 2014 or early 2015.  As earlier indicated, the father remarried in 2016.

5. The father spent little time with the children following separation, albeit that there are disputes as to why.  The father issued his application as early as 26 March 2015, and this ultimately led to final property and parenting orders by consent before Judge Curtain on 25 May 2016.  It should be noted that the mother has taken, albeit somewhat faintly, a Rice & Asplund point arising from those orders.

6. This tranche of proceedings was commenced by the father’s Contravention Application filed on 23 October 2017, arising out of the father’s assertion that the mother had failed even to enrol in a Contact Centre as envisaged by the orders made before Judge Curtain, let alone the children actually spending time with him.  By an order made on

   
   

   22 January 2018, I ordered that that Contravention Application stand as an Application in a Case.  The matter has taken time to get to trial because of endeavours to have the children spend supervised time with the father, all of which have been unsuccessful.

7. One final piece of evidence that is not the subject of challenge, but is nonetheless startling, is that the mother indicated in her affidavit dated 16 September 2019 that she had, on 29 August 2019, herself remarried to a gentleman who has moved from Sri Lanka to Australia on 14 September 2019.  The mother’s failure to disclose this relationship to the report writer, Ms A, when she saw her on 16 August 2019 at a time when, as her answers to questions put by me show, that the mother was well aware the marriage was underway, is really extraordinary. 

The Professional Reports

1. The children have been interviewed on a number of occasions by court counsellors or regulation 7 report writers.  They appear to be somewhat fed up with it.  It is sufficient to paraphrase the reports, given the nature of the dispute. 

2. When the children first saw Ms B on 1 September 2015 for a section 11F conference, the children were well aware of adult issues.  They were also reluctant to see their father.

3. A family report was prepared by Ms C, released on 7 April 2016.  It was noted at paragraph 17 that the mother’s position was that the children had spent no time with their father since separation in November 2014.  At paragraph 33, it was noted that at the interviews on 24 February 2016, the children appeared to respond reasonably well with their father, although he made a mess of this by seeking to record his time with the children (paragraph 33).  The report noted that the mother was highly anxious and opined that this anxiety might have communicated itself to the children.  The children’s response to the father was somewhat at odds with their previously reported position.  Despite initial reluctance they engaged well with him (paragraph 37).

4. The children saw Family Consultant Ms D on 18 September 2018.  It was during these interviews that their irritation with the exposure to family reports was perhaps most clearly expressed.  X did not want to see his father but did not know why.  Y did not want to see his father, and although he provided certain reasons for that, they were not really clearly expressed.  Z did not want to see his father and was clear as to why he did not wish to see him.  He accused the father, in general terms, of abandoning him and behaving badly to his mother.  Ms D noted that there were no risks, in the conventional sense (drugs, alcohol, mental health and physical violence), with the children spending time with either parent.  Ms D was of the view that the children had formed a strongly enmeshed relationship with their mother, whom they idolised and with whom, to an extent, they were still co-sleeping notwithstanding their relatively developed ages.

5. Ms A produced a family report dated 9 September 2018.  It recounted the history of the relationship very much in the terms I have described it above.  I note that at paragraphs 14 to 15, Ms A noted the mother’s very significant concerns about financial matters.  I note further that it was the father’s position (paragraph 27) that the children would be capable of adjusting to living with him, as he then sought.  At paragraphs 45 to 46, the views of X were expressed very clearly.

   “45.  X was firm in his refusal to resume a relationship with his father.  He shared that he had no trust in his father’s ability to protect him and his siblings and he considered that his life was much better without his father.  He was ‘100% sure’ that there was no benefit for him or his brothers in speaking or spending time with his father.

   46.  X further shared confidently that there was nothing anyone can do would to make him change his mind about his decision to not include his father in this life.  Whilst speaking about the issue, X came across as totally convinced and confident about his expressed views.  There seemed to be no dilemmas or conflictual thinking on his part about the issue.”

6. At paragraph 54, Y had this to say:

   “Y seemed determined as he spoke about how he would ‘never ever have a relationship’ with his father.  He wrote a letter to the Judge expressing similar sentiments, requesting the Court to not make orders to spend time with his father in shopping centres or at other places as he would never want to see his father again.”

7. At paragraphs 55 to 56, Z’s views were recorded:

   “55.  Z (11) is in grade 6 and attends school with his brothers.  He shared that he loved school and was a good achiever.  He stated that he was aiming to study medicine so that he could work hard to help needy and sick people.  He shared his disappointment that one the day of the report interview, he had missed his school fete.  He shared his anger that his father had decided to come back to their lives after many years and decided to bully him and his family by taking them to Court.  He expressed a view that it is wrong on the part of the Court to force the children to spend time with someone who did not care about his children.

   56.  Z described himself as athletic, smart and passionate person.  Although young and seemed a bit scared at the start of the interview, once he started speaking about the disputed issue of resuming a relationship with his father, Z seemed to fire up and spoke quite boldly.  Z argued that this mother was not responsible for the way the children felt about their father.  He informed that his mother had always told them ‘it is their decision’ and he had decided that he did not want a relationship with ‘a dad who had left the family when they most needed him.’  He considered that his mother had assumed the role of a mother and father to the children over the years and he had full confidence in his mother that she could solve any problem and would continue to look after him and his brothers.”

8. At paragraph 58, Ms A, who is an extremely experienced counsellor, noted that she had taken one hour to try and persuade the children to see their father, without success, although she eventually was able to do so in the presence of the mother.  Notwithstanding having undertaken to remain quiet, the mother was unable to prevent herself interjecting inappropriately (paragraph 62).

9. Ms A noted that the children’s views were very clear (paragraph 69) and pointed out, at paragraph 74, that there was simply no chance, as things presently stand, of a successful relationship between them and the father.  Ms A also noted, at paragraph 79, various failings on the part of the father which had also contributed to this outcome and, at paragraph 84, was clear that there ought not be a change of primary residence.  Ms A’s position in relation to family therapy was more nuanced, but she was clear (paragraph 86) that the mother should be permitted to take the children to Sri Lanka for one month for a holiday and that the existing Airport Watch List order should be modified accordingly.

The Submissions and Evidence Given at Court

1. It should be noted that the parties have not filed fulsome affidavit material.  The father has not filed a trial affidavit, and his most recent filed material is as long ago as October 2018.  What the parties have said in their affidavits is sufficiently indicated already in this judgment.  What follows is taken from my notes.

The Opening and Evidence of the Father

1. Counsel for the father made a brief opening, in which he outlined the orders sought.  Counsel conceded that the father’s material was limited but referred to the reports of Ms A and Ms D.  He observed that when seen on 18 September 2018, the children could not tell Ms D why they did not want to see their father.  They were in a loyalty bind.  They have a strong relationship with the mother, which leads to their not having permission to love their father.  The children understand that if they have a relationship with their father, then they will have a lesser relationship with their mother.  Counsel noted that the mother and Independent Children’s Lawyer were seeking no time, but the father was more hopeful.  He did not want to give up.  The parties needed counselling and he adopted the recommendations of Ms A.  The parties should attend a family therapist and the father would pay if need be.  Counsel noted there were no allegations of violence, drug or alcohol abuse, and that there was no risk to the children spending time with the father.

2. The father was called and adopted his affidavits as true and correct.

3. Under cross-examination by counsel for the mother, the father confirmed he was present when the orders were made by Judge Curtain in 2016.  These provided for supervised time at Berry Street and then unsupervised time.  The father was asked how many times he actually went to Berry Street, and said that except twice, he was there at all times allocated.  He was there five times.  When asked what he did after that, the father said he had to return to Sri Lanka because his mother was sick.  He conceded he had been there for four months. 

4. He then said on return he went to Berry Street every time.  He could not recall the dates he had been to Berry Street, but could recall that it was in 2017.  He had been to Berry Street five times before the orders made in May 2016, and three times thereafter.  He stopped going to Berry Street in about September 2016.  He denied not going to Berry Street after September 2016.  He said on the three times he had been to Berry Street, the mother had not attended.  When asked what he would do after that, he said that he informed the Independent Children's Lawyer he would make an application to the Court.  He had been to Sri Lanka in April or May 2016.  He had been to Sri Lanka to see his mother.  He went for one month to Sri Lanka in November 2016. 

5. The father remembered orders for time to be spent at Berry Street in 2017.  In 2018, he had been to Berry Street three times, and on each occasion the children refused to see him.  Orders had been made by the Court in September 2018 for supervised time, and the children refused to see him on the four occasions posited for October and November 2018.  The last visit was on 24 November 2018.  There was no contact with the children from then until June or July 2019.

6. When asked why he had not attended between November 2018 and June 2019, the father said that after the first visit in 2018 he could not request the Court to give him another date to visit the children.  He waited until Court to get directions.  When it was put to him that he had accepted, between November 2018 and June 2019 that the children did not want to see him, the father said he felt they were not happy to meet him at that time.  He intended to wait till the next Court date.  The father conceded that following further Court orders in June 2019, the children and the mother had attended the Contact Service seven times between June and September 2019, and on each occasion the children had refused to see him.  The supervisor had told him the children refused to see him.  Between 2016 and now the father has seen the children maybe four times, but could not recall the dates.

7. When asked whether he had seen the children in person, the father said he had seen them at sports.

8. The father said he attended upon Ms A for the family report in August 2019.  He saw the children and spoke with them.  It was not a major conversation.  The children were not willing to engage independently in conversation when the mother was there.  The father conceded that X, at 15, is intelligent and knows his own mind.  He is 100 per cent sure he does not want time with his father.  The father conceded that Y had expressed the views recorded at paragraph 54 of the family report, and described Z, at the age of 11, as very intelligent.  The father accepted that the children did not want to see him, but said that he offers love and can change them.  He conceded the children have said they did not want to see him.  He said although they say that, he still loves them a lot and feels they have some feelings towards him.  They have shown their hands and waved at him.  When they were alone, they have spoken to him.

9. When asked when this had occurred, the father said he used to play sports and one of his children played sports.  The first time he had seen him was a year ago, and the second was a month ago.  He said the first time he played sports he saw Z and Z waved back.  The two elder children attend hobbies but the younger child plays sports in the same building.  He asked the younger child where his brothers were and the child said, “Education lessons, or class.”  He did not continue the conversation.

10. When asked about an alleged conversation a month previously, the father said this was at the same sports complex with Z.  They just waved at each other.

11. The father confirmed that he sought family therapy and that there had been an order for therapy in 2016.  He had attempted this as CatholicCare.  He had undertaken a post-separation course before that.  The father said he had spoken with CatholicCare, who said that the parents needed to apply together.  He had written a letter.  He waited till he got a reply, and they had said they would not call him until the mother had engaged with this service.  The father confirmed the orders he was seeking in relation to time and sought time in the alternative, each weekend. 

12. When questioned about the Airport Watch List order, the father said that the mother sought to travel overseas.  He said he believed he applied for the Airport Watch List order for the protection of the children and it should remain.  When questioned whether he thought the mother would keep the children in Sri Lanka, he said he would not have thought like that.

13. At this point in the proceeding, and by consent of all parties, the evidence of Ms A was interposed.

The evidence of Ms A

1. Ms A adopted her family report as exhibit M1.

2. Under cross-examination by counsel for the mother, Ms A confirmed that she has been a family reporter for 34 years.  The children had expressed strong views and she supported that position.  She talked to the children for two hours.  For one hour she had tried to get the children to talk to their father.  She was with the children for three hours altogether.  The mother tried to get the children to speak to the father.  All three children did not wish to see their father, although they had slightly different reasons.

1. The children are angry with the Court.  It appears, Ms A said, that the mother had told the children the Court might put them with the father.  If they were so forced, it would be counterproductive.  The children would be emotionally devastated if they were made to live with the father.  They would make a plan and escape.  The children will not see the father.  Orders should be based on their wishes, with the mother to facilitate time, should it be wished.  The mother would not go out of her way to make any friendship with the father.  In this case, therapy would not change the position, unless the mother actively participated and engaged with it.  The mother is not angry with the father.  She is sad for things lost.  She was saying, “Let them breathe, and they will come to you.”  Alienation is not one-sided.  The mother is really hurt.  The father left, then he sold the family home.  This was a shock for the children.  The father remarried.  Therapy would take a long time.  It would be abuse for the children to be exposed to therapy at this time. 

2. Under cross-examination by counsel for the Independent Children's Lawyer Ms A again confirmed that alienation is not one-sided.  The father has to realise his contribution before therapy could work.  The father was convinced that the children would live with him.  The father had a come-and-go relationship with the children.  The mother is anxious.  The mother had gone through a lot and the children have seen it.  The father was not sensitive, and without insight, family therapy would not work.  The children are firm in their views.

3. When asked if it was too late for therapy, Ms A said, “Unfortunately, it comes across like that.”  Ms A had read the section 11F report, which showed the children in an enmeshed relationship with the mother. 

   
   

   Ms A had not seen it like that.  Ms A opined that the section 11F report had perhaps overlooked some of the cultural issues present in the case.  It is common to spend time in a migrated country.  It was not unusual for the father to return to Sri Lanka to look after his parents and property.  The boys’ adoration of the mother was itself partly culturally based.  Even if the mother told the children to see the father, they would not.  Every time therapy is tried, the children go farther from the father.  There should be contact in accordance with their wishes.

4. Under cross-examination by counsel for the father, Ms A confirmed the father said many times that the mother was brainwashing the children.  She had read the section 11F report.  The children did not want to see the father, but did not know why they did not want to do so.  This was changed by the time of her own report.  The children are now dead set.  She had asked the children if they would write to the Judge, and they wrote the same as they said.  The children reacted to how the family home was sold.  The children are very protective of the mother.  When asked if the children were not allowed to love the father because they know how hurt the mother is, Ms A said, “Partly, yes.”  Ms A confirmed there was no risk of violence, drugs or alcohol, or mental health.  It is not just that the children do not want to see the father.  Irrespective of fault, it is very hard to resolve without a good relationship between the parents.  The children had no positive connectivity with the father.

5. When asked about the possibility of therapy, Ms A said that unless all parties were willing, there was not much that would come out of therapy.  Sending the children to therapy at this point in time will take them further from Dad.  Ms A conceded that the children’s views have the confidence of youth, with no shades of grey.  When asked if they might consider this lately to have been a mistake, Ms A said, “Hopefully that will happen.”

The evidence of the father, continued

1. The father confirmed that he had heard Ms A’s evidence that family therapy would only work if both parties agreed.  He was prepared for therapy.  He conceded he had told Ms A that the mother had tried to poison him, and he still thought this.  When asked if this was the reason he left the family home, he said this was one reason, but there were lots of others.  He had not been to the police about the alleged poisoning, but had phoned his lawyer.  The lawyer gave him two options.  He could understand that the children thought that he had run off and remarried.  He said, non-responsively to any question put, why he left the home was to protect his life.  He had to protect the children.  He knew there was a way of poisoning coming from an outsider.

2. When asked if he understood that it was important to the children that he left in 2014, the father said he really did not know how that kind of feeling got into their minds.  He always paid Child Support.  He did believe that the mother was telling the children bad things about him, but when asked if he could think of anything he had done that might upset the children, the father said he did not think he had done anything.  When asked if he wanted to speak to the children about what the mother had done to them if there was therapy, the father did not provide any direct answer.  He said he had never discussed anything degrading about the mother with the children and he will never do that.  He was certain he had not said anything bad about the mother to the children.  He said he had never abandoned the children.  He had had to sell the house because of separation.  He had not provided the mother any money to obtain a house to live in, but the bank had not charged any money while the mother and boys were in the house.  The house was sold pursuant to Court order.  When asked if he understood why the boys blame him for running out from the matrimonial home, the father said the bank allowed them to live in the house.  After that, he paid Child Support.  Once again, he had not answered directly.  When asked why he thought the boys did not want to see him, he did not know.  When asked if he had undertaken any therapy, he was not sure.  He had attended post-separation therapy at CatholicCare which was ordered by the Court.

3. On resumption the following day, counsel for the Independent Children's Lawyer again asked the father why the boys did not want to see him.  The father said he had lost the relationship with his children which was one reason.  When asked why he had lost the relationship, the father said this was initially when he went out of the residence.  The first visit he had presents.  The second time he was told not to come home and he thereafter stopped.  He had been told not to come home in early 2015.  When asked why he obeyed that order, he said he did not want to debate or argue.  He took the legal pathway.  When it was suggested to him that this was because he could not work with the mother to rebuild a relationship with the children, the father said there were many incidents when they were together and there was no opportunity to discuss.  When asked how he would be able to discuss with the mother now after five years, the father said in 2016 he had the help of a friend but felt the mother did not like that.  In 2014 he had a relationship with another family.  When asked if he could talk to the mother now, the father gave an indirect answer about a friend of his who I understood to be called F which did not respond directly to the question. 

4. The father confirmed that his income is $87,000 per year.  It would be difficult for him to pay for therapy in full because he was also paying Child Support.  He could pay for half the costs of therapy.  When asked if time took place where he would take the boys, the father again failed to answer the question but said that he was ready.  When asked what would happen if the children did not want to see him, the father said he had been very determined to go every other Sunday.  He will go until the children know who their father is.  He said, “I believe one day they will turn around.”

5. The father lives with his wife, Ms G.  They have no children.  Ms G has not met his children.  If the boys wish, he will take her, but if not, he will go alone.  When asked about any part he had played in the children’s school life over the last five years, the father said he got involved once in 2016.  Initially, he had received school reports but then they changed to a new school and he requested them.  They gave him the password for a website, but after a while this was not working and he never got the reports.  The father said he had met some of the children’s doctors in the last five years and spoke to them also.

6. The father accepted that the children should be permitted to travel to

   
   

   Sri Lanka for up to one month, and accepted that the children should live primarily with the mother.  When asked if he objected to the mother having sole parental responsibility, his counsel (correctly) objected.  He said he had given cards and gifts in the last five years.  He sent presents for every birthday.  This was mostly after his friend was involved in 2016.  When asked what he would do if the children refused to spend time with him, the father said he would not take that into account.  He will wait until they are ready to do this.

7. In re-examination about this, the father confirmed that a friend had assisted.  In the initial stages, he and his friend and the children and the mother went and played sports for three hours.  On another day, he went to the sports arena.  This was in 2016 and happened three times.

8. It should be noted that the father was not a brilliant historian and his account of these events was difficult to follow. 

9. In further cross-examination by counsel for the mother by leave, the father confirmed that he paid half the cost of family therapy, which cost $200 per session.

The Opening and Evidence of the Mother

1. Counsel for the mother indicated that she was seeking the orders in her amended Response and Case Outline.

2. The mother adopted her affidavits as true and correct.  She had seen the father’s Case Outline two days ago and noted that he wanted family therapy.  Ms A raised family therapy, which was therapy to allow the children to spend time with their dad.  It would involve the father and herself.  When asked why she opposed this, the mother said that, in 2017, they had attempted therapy at CatholicCare.  The therapist wanted the kids and the father together, but they were not happy to go.  The therapist indicated there was no point in continuing.  The mother said she had asked her for a report, but the therapist refused.  This was from 14 December 2017 to 18 March 2018.  She had attempted several times, but her children were not happy and she did not want to force them.  The children did not even want to spend supervised visits.  She had told them it was Court ordered, but they refused.  She cannot afford family therapy.  The father started paying Child Support only after his remarriage and she cannot afford family therapy.  When asked if she would be prepared to undertake therapy, she said she had tried.  She does not trust the father, as he has lied so many times.  She referred to his allegation of poisoning and the events at the time of separation.

3. Under cross-examination by counsel for the father, the mother confirmed that Ms A’s report at paragraph 40 was true.  The children were devastated when the father remarried and they were very upset about what had happened to the mother.  When asked if this was the father’s fault, the mother said, “Yes, according to the family report.”  When asked if this was her own view, the mother said she had not discussed the matter of the report with the children.  When counsel put it to her that the children lost something important when the father left, the mother said that they had suffered seeing how much she suffered bringing the children up on her own.  The father was not involved with the children.  He took the children to sports once per week.  He taught them to swim together with herself.  When it was put that the father had taught the children to ride bicycles, the mother said that the children just learnt with a guide-wheel.  She denied that he had taken the children to language school.  She said that she did everything herself.  The father went to his job and slept.  They had a big backyard, but did not play sports.  When the father was at home, he worked on his car.

4. Counsel put it to the mother that the family report in 2015 suggested that the children were more comfortable with the father at that time.  The mother said she did not see it.  There were not close relationships between the children and the father at that time.  The father was not an important figure in their lives. 

5. When it was put to her that the matrimonial home was sold in the context of Court orders, the mother said that the father was not making repayments on the house.  They received a letter from the bank which gave them 14 days to move.  She went to the bank, but they refused details.  She was not working at the time. 

6. When it was put to her that she received 70 per cent of the pool, namely $60,000, the mother said she had paid $35,000 for lawyers.  She agreed that the children were fiercely protective of her.  When she was asked if the children were aligned with her, the mother said she was the only protector that they had.  The children no longer co-sleep with her.  She could not comment as to why the children may not have known why they did not want to see their father at the time of the most recent section 11F report.  She had never tried to influence the children.  The children had told her that the person who prepared the report asked them the question a number of times and this irritated them.  When challenged as to the observation on page 3 of the section 11F report where one of the children said, “Mum told me”, the mother said she has to take the children to therapy.  They do not want to come so she had to explain.  She said she was heartbroken, because there were orders from the Judge, because, in all the therapy, she has to push the children into it.  When it was put to her that one of the children had said in the section 11F report that:

   Dad was a bad person and breaks hearts -

   the mother said she did not know how the child got that idea.  She said that in the five years she had taken care of the children, they might think that he had broken her heart.  When counsel put it to her that the father was not a bad person, the mother, tellingly, said, “I’m not sure.”  She said all the children worry a lot about her, because she does everything by herself.  The protection she needed from a man she was getting from her children.  She always goes out with her kids.  When it was put to her that she does not go out without the protection of her children, the mother said she usually does not go out by herself.  She does not go to social functions.  The father abandoned them.  The children have a very good understanding about her feelings.  When counsel put it to her that Z had said he was upset if there would be any time, the mother said she did not accept the child said this and it might be a misunderstanding.  She said she had supported a relationship with the father.  When it was put to her that she will not push the children to spend time with the father, the mother gave an evasive and non-responsive answer.  She then said she supported the children having a relationship with the father.  She confirmed that the children have full scholarships and do their homework.  They do what they are told and listen to her.  They clean their rooms if she tells them to do so.

7. The mother said it was a very bad situation when the father left her.  She had no money in her hand when he left her.  She has survived with Centrelink and the help of her mother.  The children are thriving.  There have been good returns on her trouble.  She has to obey the Court’s decision.  When asked if therapy was ordered or time was ordered would she be responsible, the mother said that her wish was the wish of the children.

8. Under cross-examination by counsel for the Independent Children’s Lawyer, the mother said that she let the children decide if they wished to see their father or not.  She denied that any of the children wished to see him.  When it was put to her that she did not want the father to be in the boys’ lives, the mother responded that, if the children want time the father, she would not mind it.  She was then asked that if a child wished to see the father, what would she do, for example, with X.  The mother said she would give them an opportunity to see their dad.  X has his own phone.  She has the father’s phone number, but has not given it to the children.  X got the phone two to three months ago and she thinks that the children know the father’s number.

9. The mother confirmed that she got married the last month to a Mr E.  He is living with her and the children.  The boys met him before marriage about eight months ago and call him uncle.  She met Mr E five months ago in Australia.  He had not been in the home for the last five months.  He moved in on … 2019.  The children got used to him very easily.  She had no issue explaining to the children.  When it was put to her that the children follow what she says, the mother, unbelievably in my view, said that she does not discuss these matters with the children.  She told the children that Mr E was willing to marry her and asked if they were happy with this.  She has not told the children she was heartbroken from things that had happened, but from things that happened, it might have got into the children’s heads.  When asked what she would do if the Court ordered time with the father, the mother said that if the children want to do this, she would like that.  When pressed as to what she would do if the Court ordered time, the mother said she would try to take them, but they are not young anymore.  She cannot put them in the car and she cannot force them.  She confirmed that she had had counselling.  The children have counselling arranged through school.  She has not taken the children to a psychologist in the last five years.  The mother went on to say, again I regret to say unbelievably, that she is not angry with the father now.  She had not contacted the father’s family in Sri Lanka because he did not give her the opportunity.  The children have not seen the father’s family since 2014.  When asked about receipt of presents from the father, the mother did not give a clear answer.  She said the father did not pay Child Support until he remarried in 2015.  There is no family friend who could assist with therapy.  When asked if she would go to the father with Mr E, the mother did not know.  She confirmed in response to questions from the Court that Mr E moved in on 30 August 2019, but then went to Sri Lanka.  The marriage was on … 2019.  A proposal had been made about five months ago from his family, which she accepted after about one month.

Final submissions of the Independent Children’s Lawyer

1. Counsel submitted that this was a difficult case.  There are no real trial affidavits and the mother’s new marriage has not been dealt with.  There are no counselling reports from schools or otherwise.  Ms A is a social worker, not a scientist.  The case involves a measure of cultural overlay, but there was a very clear family report.  This was the fifth set of proceedings, if one includes the proceedings in Sri Lanka.  Ms A says the boys are very aware of the relationship between their mother and father and the consequences of separation.  They had to leave the matrimonial home.  The boys are affected by the mother’s view that the father abandoned her and that she is heartbroken. 

2. Counsel referred to the reports of Ms B, Ms D, Ms C and Ms A.  The children have a reluctance to see their father.  They have a firm view that there is no benefit to a relationship with him.  The father’s actions in removing the family from the home and his rapid remarriage, together with previous difficulties in Sri Lanka, had contributed.  The mother’s views of the father are clear and she has enmeshed the boys in her view.  It could even be described as alienation.  The boys’ views were clear.  It did not, in one sense, matter why.  They are of the common view that they do not want to see their father.  They have to choose their mother.

1. The father seeks family therapy.  There have been various orders for supervised contact and for counselling with CatholicCare and none had worked.  Counsel submitted that the horse had bolted and it was too late for therapy.  This would need a change of attitude on the part of the mother and this was not likely.  The mother had no hesitation introducing Mr E despite the five months the children had not seen him.  The children had expressed very strong wishes and should be treated as a block.  Counsel referred to paragraph 44 of the family report in which X expressed:

   “A steely determination not to have a relationship with his father.”

   In these circumstances, there must be a query as to the benefit of a meaningful relationship with the father and the prospect of psychological harm if it was ordered.  There were, however, none of the usual risk aspects.

2. The children cannot have a meaningful relationship with their father.  This may be because of their mother, but it is in any event not possible.  There was no point in seeking to force the children to see their father, as they had too hardened a view.  Therapy would not be supported by the mother, and the children want the proceedings to end.

Final submissions by counsel for the mother

1. Counsel confirmed that the mother seeks the orders in her Response.  The father had not filed a trial affidavit, and was both evasive and a poor historian.  The mother was clear.  She wanted the children to maintain relationships with their father.  She did not want family therapy because this had not worked with CatholicCare, and because of the costs and the children’s views.

2. Ms A is an extremely experienced family reporter, and had a cultural sensitivity given her own origins.  She had spoken with the children for three hours, and their views were clear.  They did not want to see their father.  Time should be in accordance with their wishes.  Counsel referred to the issue of therapy as vexed.  Ms A had said it could only work through a friend, but there is no friend available.  It would require the assistance of the mother, which would not be forthcoming.

3. The children have expressed their wishes for at least the last two years. There were three sessions with CatholicCare, and they were not prepared to continue. The children have refused to go to Berry Street when orders were made in early 2018, and refused likewise when orders were made in 2019. There would be no benefit for the children having a relationship with their father. Forcing time with the father would arguably bring into play s.60CC(2)(b) and (2A) of the Family Law Act 1975 (“the Act”).

4. Counsel laid emphasis on the views of the children, who are 15, 13 and 11.  Counsel submitted that this case must finish.  If therapy was ordered, interim orders only could be made.

The final submissions of counsel for the father

1. Counsel referred to Part VII of the Act and the objects and purposes in s.60B. There was no evidence of psychological harm to the children. Ms A was not qualified to give it. Therapy and time with the father could not be emotional abuse. There was no drugs, alcohol, violence or abuse. The children’s views were not everything. Counsel referred to the case of Bondelmonte & Bondelmonte (2016) FLC 93-698 (“Bondelmonte”) in this regard, and R & R [2000] FamCA 43.

2. The context of the expression of the children’s wishes was critical.  The Court is not bound by the children’s wishes.  The children in Bondelmonte were 15 and 17, and their views were not followed, because they were influenced by the parent.

3. There had been a progression from the family report of Ms C, when the children were comfortable, to the section 11F interviews, in September 2018, when they did not want to see the father, and did not know why.  By the time they saw Ms A, they did not want to see the father because he had abandoned the family, and this could only have come from the mother.  The children are fiercely loyal to and protective of the mother.  The mother says she received protection from her children.

4. Counsel referred to paragraph 62 of Ms A’s report, where the children were talking to the father but the mother chimed in, and the children became sad.  The mother’s narrative has been absorbed by the children, who are enmeshed with her.  Z had waved and smiled at his father one month ago, and smiled at the father in the section 11F interview.

5. Counsel submitted that there was hope.  The children sat in the room with Ms A, and felt better afterwards.  Family therapy has not been tried, and it should be.  It would be a terrible loss if there was no meaningful relationship with the father.  He sought the orders in the father’s Outline of Case.  There would be parental responsibility to the mother, with notification to the father and for his views to be taken into account.  He sought the provision of school reports (which was conceded) and the right for the father to attend sporting fixtures.  Counsel surmised that there could be other time instead of each alternate weekend.  The children will ultimately cope if Court orders are made.

6. By way of reply by leave, counsel for the mother referred to Rice & Asplund in relation to the sole parental responsibility issue.  Orders were made in 2016 in this regard.  He submitted that Bondelmonte was on different facts.

The Statutory Pathway

1. At this stage it is appropriate to turn directly to the statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Parental responsibility

1. Despite the mother’s assertions of financially controlling behaviour on the father’s part, it is clear that this is a case in which there is no meaningful suggestion that the presumption as to equal shared parental responsibility is displaced by family violence.  That, however, is in no wise the end of the matter.  The order for sole parental responsibility has been in place by consent since 2016.  Were it necessary to do so, I would be minded to uphold the Rice & Asplund objection taken by the mother.

2. However, it is important to remember that orders for parental responsibility are concerned first and last with the best interests of the children.  In this instance, the father does not really seek to challenge the proposition that the mother has sole parental responsibility, but rather seeks that he be notified of major changes and given the opportunity to comment.

3. In circumstances where, as I find, the relationship between the father and mother is so poisonous, any order that requires the mother to interrelate with the father will be doomed to acrimony, argument and failure.

4. It is appropriate at this point to make some brief observations about the nature of that dynamic and its causation, these being matters which will impact on some of the s.60CC matters in due course. Having heard and seen the parties give their evidence, it is quite apparent that the mother detests the father in the most venomous way.

5. As Ms A pointed out, however, this question of alienation is not a simple one-way street.  The father’s conduct in over holding the children in Sri Lanka, his financial dominance over the mother, and the interrelated eviction from the family home (from which he kept them all out until he himself returned to Australia), and his rapid remarriage, have all contributed to the sorry state of affairs that now obtains.

6. The mother remains deeply embittered by all these matters, and in circumstances where she had to return to Australia to obtain Hague Convention orders in her favour, with all the attendant stress, and the financial stress of returning to live unsupported in Australia, it is unsurprising that she has these very strong feelings of resentment.  Very regrettably, she has well and truly enmeshed the children in these views.

7. I would completely reject the mother’s assertion that she has not discussed these matters at length with the children.  Not only have I heard her evidence, and in this regard I do not accept it, but the children’s observations to the various reporters from time to time to show an awareness of the mother’s point of view.

8. In one sense, it does not entirely matter whether this has been as a result of a deliberate campaign on the mother’s behalf or simply something akin to a process of osmosis caused by the mother’s strong views and the children’s proximity to her.  What matters is that that is the state of play as it presently is.

9. Apportioning blame between the parents (and if forced, I would apportion some to both) is really not going to be productive.  The only workable order the Court can make is to continue the order for sole parental responsibility.

The children’s best interests - the primary considerations

1. In this regard I fully accept counsel for the father’s submissions that the Court should pay proper attention to the objects of the Act as set out in s.60B of the Act. Plainly the Court is required to ensure that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, while also protecting the children from physical or psychological harm (s.60B(1)(a) and (b)).

2. In this case, there is, as I have already observed, no meaningful assertion of family violence.  The asserted financial dominance on the part of the father was not in any way explored in detail or stressed throughout the currency of the proceeding.  He was the primary breadwinner, and the parties’ competing assertions, fleetingly made in their affidavits, as to unsatisfactory financial conduct, so to speak, simply were not explored in cross-examination in any meaningful way.

3. Where this case runs into real difficulty, unusually, is in relation to s.60CC(2)(a). The primary consideration there described is “the benefit to the child of having a meaningful relationship with both of the child’s parents”.

4. Regrettable as it is, my conclusion can, at least in an overarching way, be shortly expressed.  In the most unfortunate and regrettable circumstances revealed by the evidence in this case, there is no benefit to the children to be forced to have a meaningful relationship with their father.  Counsel for the Independent Children’s Lawyer is right.  The horse has bolted.

5. In the particular circumstances of this case, any endeavour to force counselling, through therapy, is not going to work.  The Independent Children’s Lawyer’s counsel is right to submit that this would require the facilitation and encouragement of the mother, and it simply will not be available.  It would be highly likely to be beyond the mother’s financial means, and that of the father, in any event.  The reality is that the children have been down this path before, when their views were less entrenched, and got nowhere.  They will unquestionably act as a bloc now.

The additional considerations section 60CC(3)(a)

1. The views of the children could not be clearer.  They are not infants.  They are 15, 13 and 11.  They plainly are completely aligned with their mother, and I accept that this could properly be described as alienation on her part.  But the fact is that those are their views.

2. In paying attention to the children’s views, I accept the submission of the father that these views are not of themselves decisive. They are only one of the criteria set out in s.60CC(3) of the Act. I note also that in the case of Bondelmonte children as old as 16 and 14 were ordered to return to Australia from New York by Watts J at first instance, notwithstanding that, as the joint decision of Ryan and Aldridge JJ put it at [57]:

   “The primary Judge accepted the father’s evidence as to the views expressed by the boys.  In doing so, his Honour made further reference to the father’s evidence as to his conversations with the boys and text exchanges between S and the mother.  Thus his Honour was satisfied both boys wanted to live in New York with the father and neither wanted to return to Australia or live with the mother.  His Honour was satisfied that if the boys were interviewed in New York their views would be the same.  However, the weight which might otherwise be attached to the views of children then aged 16 and 14 was “…weakened by the circumstances which have been contrived by the father”.”

3. Those facts were perhaps slightly more extreme than those here, but it is important to note one crucial difference.  In that case, what was at stake in the appeal was the interlocutory orders made by Watts J for the children to return to Australia pending full curial determination of where they should live.  It was not a final decision in which the boys’ views were to be set completely aside.  A quick look at suggests that proceedings in relation to the Bondelmonte in one fashion or another appear to be still continuing.  I have not been informed and am not aware as to what final disposition was made in respect of the children, who would by now, at least in one case, be 18 in any event.

4. Thus, while Bondelmonte both at first instance and on appeal (and the High Court dismissed a further appeal) clearly stand to reinforce counsel for the father’s submission that the children’s views are not the beginning and end of the matter, particularly where children’s views are so heavily influenced by one parent, they do not stand for the proposition that the children’s views should be set to one side.  I took counsel’s submission not to be quite that drastic, but it is important to remember that Bondelmonte turned on very different circumstances, most particularly being an interlocutory dispute involving return from another country rather than a final hearing concerned with the time the parents should spend with their children.

Section 60CC(3)(b)

1. The children have an extraordinarily close and protective relationship with their mother.  She clearly regards them as giving her the protection she would otherwise receive from a man (a matter now diluted by her remarriage to Mr E).  They have been described as enmeshed with the mother and, taking the materials as a whole, it is clear that that is so.  Precisely because of the enmeshment, they have a well-developed and clearly expressed dislike of their father.  Their relationship with

   
   

   Mr E is so new and unexplored that nothing can be said about it and they have not even met their father’s new wife.  Nothing relevant has been said about extended families.

Section 60CC(3)(c)

1. Clearly, the mother has been the primary carer of these children all their lives and that speaks for itself.  The father, as I find, was not particularly heavily involved with the children during the relationship itself.  He was the primary breadwinner and appears to have worked long and hard to be so.  He obviously had some involvement with the children’s lives, but given their relative youth prior to the return to Sri Lanka, the degree of his involvement was clearly nowhere near as great as that of the mother.  In Sri Lanka he effectively over-held the children by placing them with his own family.  He then returned to Australia in 2012 after a two-year gap and the parents lived together under one roof until final separation in 2014.  The father’s interaction with the children during this period is not clearly revealed by the materials.  From then on, the father has sought on a number of occasions to obtain Court orders in his favour and he commenced his first set of proceedings promptly after separation in March 2015.  The lack of success that the father has achieved, in my opinion, does not result from any lack of proper interest on the father’s part, rather the mother’s determined and, indeed, ultimately highly successful endeavours to exclude him from the children’s lives.

Section 60CC(3)(c)(a)

1. The mother’s conduct in this regard is unremarkable.  She has done her level best to fulfil her obligations to maintain the children.  I accept the mother’s evidence that the father provided no Child Support until he remarried in 2016.  He plainly was not providing for the children between 2010 until 2012, and I have no doubt that this would have influenced the mother at the time and, through her, the children also.

Section 60CC(3)(d)

1. The father’s primary position (apparently abandoned in the running) is that the children should live with him.  This is plainly untenable and nothing more about that needs to be said.  Any endeavours to make the children go and live with the father would be utterly devastating for them, as Ms A rightly, in my view, suggested. 

2. Insofar as the father seeks blocks of time, this is likewise met by the children’s adamantine refusal to see him.  This then brings us at this point to the question of family therapy, to which I have already referred.

3. If the children are ordered to go to family therapy they will simply not do so.  It is what they have done in the past and they are now older.  Their enmeshment with their mother has become greater and greater over time, as the various section 11F and family reports reveal.  There is simply no realistic prospect that family counselling can work, given the children’s views and their mother’s support of those views.

Section 60CC(3)(e)

1. There would be considerable practical difficulty arranging therapy, as already discussed.  The expense would be, on any view of the matter, a significant challenge for the parties.  There is no other practical difficulty and expense to the children spending time with their father, save their refusal to do so.  As the mother points out, particularly the two elder children are now of an age where trying to force them to do things against their will must be all but impossible.

Section 60CC(3)(f)

1. The mother provides for the needs of the children and is their primary and, indeed, sole carer.  She does not, on one view of the matter, do this very effectively because her determination to excise the father is likely to have long-term damaging effects to the children.  Nonetheless, she is the parent in situ and plainly does her best, despite her fallibilities.  The father struck me as being markedly lacking in insight.  While he undoubtedly loves his children and has at all times wished to spend time and communicate with them, his lack of insight as to his own past conduct and his incapacity to face aspects of the questions put to him in a straightforward way only point to a deficiency which would count against the benefits of the children being forced to try and spend time with him in any way whatever.

Section 60CC(3)(g)

1. Although important, this subsection has little to add in the circumstances.  I note that the children are now substantially older and this, of course, informs their behaviour.  The mother has only recently remarried and the Court has been told all but nothing about her new husband.  Although the father remarried in 2016, the Court has been told all but nothing about her either.  She is not on affidavit.  Plainly, both these parents are of Sri Lankan origin and it is clear that some of the ways in which they have interrelated reflects that cultural heritage.  I have little doubt also that some of their responses, as Ms A suggested, have been informed by their cultural background also.  Nonetheless, these circumstances do not, in my view, operate in such a fashion that they are capable of, as it were, independent calibration.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. The mother, as already indicated, sees the children as the men in her life.  She has a fiercely possessive relationship with them, to which they respond in like fashion.  The father’s attitude towards parenthood seemed to me, taken as a whole, and probably reflecting cultural issues, to be very much one of an entitlement as a father.  It is understandable and in no way is it to be condemned, but I refer again to his general lack of insight.

Section 60CC(3)(j)

1. There is no family violence in this case.

Section 60CC(3)(k)

1. This is irrelevant.

Section 60CC(3)(l)

1. It is plainly vital to make final orders now. The children have made it clear that they are well and truly fed up with continuing counselling appointments, and it is easy after four such appointments to see why that might be so. Very regrettably, to return to what was said under s.60CC(2) above, the fact is that the horse has bolted. It is not in the children’s best interests that they spend time with their father against their wishes or that they be forced to, or that there be endeavours to force them to engage in therapy with him, which, as I find, they will simply refuse to do. Plainly, there must be final orders now.

Section 60CC(3)(m)

1. There are no other relevant matters.

Conclusion

1. This is not, in any sense, a happy matter.  As counsel for the Independent Children's Lawyer correctly submitted, this is a difficult case.  I have no doubt that the father dearly loves his children and would love to see them.  I have no doubt equally that the mother detests the father and does not want the children to see him.  She has been entirely successful in producing an outcome whereby the children are rigidly aligned with her views.  It does not matter whether this has been deliberate or subconscious.  It is simply an unavoidable fact.  Accordingly, there will be final orders made in the form sought in the mother’s Response and supported by the Independent Children's Lawyer.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 31 October 2019