Abadi and Sokulsky (No. 2)
[2021] FamCA 218
•20 APRIL 2021
FAMILY COURT OF AUSTRALIA
Abadi & Sokulsky (No. 2) [2021] FamCA 218
File number(s): SYC 3215 of 2010 Judgment of: GILL J Date of judgment: 20 April 2021 Catchwords: FAMILY LAW – PARENTING – withdrawal of a parent from the proceedings – determining what parenting orders are in the best interests of the child – views of the child – balancing of risks posed by the child living with either parent – risk posed by change of residence to live with parent who the child has not spent recent time with – risk posed by parent the child currently lives with Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA Cases cited: Marsden & Winch (No 3) (2007) FamCA 1364
Olofsson v Olofsson (2019) 350 FLR 92
Zhao & Xie [2008] FamCAFC 187 at [95]
Number of paragraphs: 146 Date of hearing: 4 February 2020 and 12-13 April 2021 Place: Canberra Solicitor for the Applicant: Brigitte Smithies & Associates (on 12 and 13 April 2021) Father self-representing on 4 February 2020 Counsel for the Respondent: Mr Harper (on 4 February 2020) Solicitor for the Respondent: Farrar Gesini Dunn (on 4 February 2020)
Mother did not attend or have representation on 12 and 13 April 2021Solicitor for the Independent Children's Lawyer: Boland Legal Family Lawyers ORDERS
SYC 3215 of 2010 BETWEEN: MR ABADI
Applicant
AND: MS SOKULSKY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
20 APRIL 2021
THE COURT ORDERS THAT:
1.Save for the Airport Watchlist Order made on 1 December 2015, all previous parenting orders and injunctions be discharged.
2.Either parent may apply to the Court to the remove the child’s name from the Airport Watchlist.
IT IS FURTHER ORDERED THAT
3.Subject to Order 4 below, the father, Mr Abadi, born … 1981, has sole parental responsibility for B, born … 2009 AND the father shall keep the mother informed of significant long term decisions that he makes in relation to the child and actively seeks the mother's input on such issues.
4.For the purpose of Order 3 herein before any such long term decisions are made in respect of the child -
(a)the father shall advise the mother by email (...) of his proposal relating to the child; and
(b)if the mother wishes to comment on the father's proposal (or if the mother has any proposal she wishes to make relating to the child on this issue) she shall, within seven (7) days after the date of the father's email, advise the father by one email (to the email address ...) of her views;
(c)upon receipt of any comment or proposal by the mother, the father shall give consideration to the mother's views;
(d)after the father has considered the mother's views, he shall make a decision and advise the mother by email of the outcome immediately after making that decision; and
(e)if the mother does not respond by email as provided in Order 4(b) hereof, the father shall be entitled to presume that the mother does not wish to be involved and he may decide the issue.
5.The child shall live with the father.
6.The father shall attend upon Ms D at 9 am on 22 April 2021 at the Canberra Registry of the Family Court of Australia (“the Court”) as directed by the Family Consultant.
7.The mother shall bring the child to the Court at 11 am on 22 April 2021.
8.Pursuant to s 65L of the Family Law Act it is requested that Ms D be available to meet with the child on 22 April 2021 or such other date as directed by the Court to:
(a)Facilitate the child’s change of residence in accordance with these orders;
(b)To explain the orders to the child; and
(c)To provide assistance, in accordance with her professional expertise and opinion, to the parties and child with respect to the child’s change of residence.
IT IS NOTED THAT
9.On Thursday, as a matter of practicality for B, the mother should cause B to be provided with her essential belongings.
IT IS ORDERED THAT
10.The father shall forthwith engage with a suitably qualified psychologist for the purposes of obtaining assistance, advice and support in relation to parenting the child and supporting the change of residence. IT IS NOTED that Dr C has indicated her availability via video conferencing.
11.The father shall forthwith engage a suitably qualified psychologist to engage in therapy with the child and in this regard, the following provisions shall apply:
(a)The ICL shall provide to the psychologist copies of the following:
(i)The judgment and written reason of this Court.
(ii)These Orders.
(iii)The reports of MS D dated 1 June 2016, 20 July 2018, 20 January 2020 and 18 February 2021.
(iv)The CYPS documents exhibited in these proceedings, namely exhibit number F2 and ICL3.
IT IS NOTED THAT
12.It is the father’s intention to engage a psychologist who can meet with him and the child in person and that the psychologist referred in Orders 10 and 11 herein be the same person.
IT IS FURTHER ORDERED THAT
13.The father hereby is restrained by injunction from changing the child’s enrolment at E School for the balance of the 2021 academic year.
14.The father is at liberty to provide to the school a copy of the judgment and Orders made this day.
15.The mother, her servants and/or agents be and are hereby restrained by injunction from contacting the child by any means otherwise than as provided for in these orders; from the date the child starts living with the father for a period of six (6) months and during this period of time the mother, her servants and/or agents be and are hereby restrained from attending the residence of the child or the child’s school.
16.Notwithstanding any other orders contained herein, including but not limited to Order 15, the child shall communicate with and spend time with the mother as agreed between the parties in writing and IT IS NOTED that the father shall obtain advice from the child’s psychologist as to the mechanism, duration and frequency of contact between the child and mother.
17.The father shall attend and complete any relevant parenting programs which are recommended to him by the child’s psychologist or by the family consultant.
18.The mother shall surrender to the Canberra Registry of Family Court of Australia at 11 am on 22 April 2021, the following documents:
(a)The originals of the birth certificate of the child acquired by the mother in May 2010 from the New South Wales Registry of Births Deaths and Marriages;
(b)All of the child’s passports, whether they be an Australia Passport or Foreign passport held by the child; and
(c)The Apostille acquired by the mother in relation to the child in May 2010 from the Department of Foreign Affairs and Trade by virtue of the birth certificate acquired by the mother in May 2010.
19.Pursuant to s 68B of the Family Law Act 1975, the mother is restrained by injunction to using any copies of the birth certificate of the child acquired by the mother in 2010 from New South Wales Registry of Births Deaths and Marriages.
20.Pending the implementation of the change of residence order, pursuant to s 68B of the Family Law Act 1975, the mother is restrained by injunction from allowing or otherwise facilitating any contact by any means between the child and Mr L.
21.The father shall take all reasonable steps to facilitate contact between the child and her sisters, Ms K, X and Y.
22.It is directed that the Registrar provide this judgment and orders to the ACT child welfare authority.
23.The Independent Children’s Lawyer is directed to serve this judgment and these orders upon the mother forthwith by ordinary service.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abadi & Sokulsky has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
The parties to this matter are Mr Abadi, the applicant father, and Ms Sokulsky, the respondent mother. The parties commenced a relationship in August 2008 and ended their relationship in January 2012. There is one child of the relationship, B, born in 2009.
These proceedings concern the parental responsibility for and living arrangements of B. Although B lives with the mother, and has done so all her life, the father now seeks that B live with him, initially without spending any time with the mother. This result is pursued by the father despite him having spent no time with B since supervised time failed in 2018. The father last met with B for supervised time on 9 January 2018.[1]
[1] Affidavit [187] sworn on 17 October 2019 Father
The proceedings are conducted in the further context of the mother disengaging from the proceedings. This occurred in a context where the matter came on for final hearing in February 2020, with such trial being adjourned after the first day on the identification of material produced by the welfare authority for the ACT (CYPS) that indicated that B had complained of being sexually assaulted by another child. The identification of this material required the adjournment of the proceedings so that the issues surrounding this claim, and the mother’s response to it, could be properly dealt with at trial.
The mother subsequently identified that she would not take part in the proceedings, despite being advised that the proceedings may continue in her absence and that orders concerning B may be made without her involvement. This ultimately meant that the mother’s affidavit material was no longer read in the proceedings, leaving the father’s description of the troubling relationship between the parties, and of his interactions with B, largely without facing factual challenge, although he was challenged in his evidence by the Independent Children’s Lawyer (ICL), and faced the independent analysis of the family report writer.
At the recommencement of the hearing the father sought orders that B live with him. At that stage the ICL was pursuing orders in opposition to such an outcome, and that B live with the mother and have no contact with the father. This reflected the position that the mother pursued whilst participating in the litigation. The father was then cross-examined by the ICL, and evidence was taken from the family report writer, Ms D, as outlined below.
On assessing the balance of the evidence from the report writer and the cross examination of the father, the ICL changed her view as to the outcome that would best serve B’s interests, accepting the father’s position that B ought to live with him. In particular the ICL identified that the father was genuine in wanting to do what is best for B.
The father and the ICL then presented to the court a joint position to facilitate and support such an outcome.
Determinative factual issues
Despite the non-involvement of the mother, and the agreement of the father and the ICL as to the orders to be made, it remains necessary to be satisfied that the orders to be made are in B’s best interests.
Even in an undefended proceeding, the parties’ ‘[m]aterial taken into account should be identified, and some indication given of the weight attached to particular material. Some reasoning should be demonstrated to explain why, based on the evidence considered and applied to the relevant provisions of the statute, the orders ultimately made are seen to be appropriate’ (Zhao & Xie [2008] FamCAFC 187 at [95] (Boland J). As noted above, in undefended proceedings ‘the Court must still make an order that is in the best interests of the children’ (Olofsson v Olofsson (2019) 350 FLR 92, 100 [28] (Judge Altobelli, as he then was).
In order to determine what is in B’s best interests I raised with the father and the ICL the question of what the determinative considerations are, and the essential factual matters that go to those considerations.
The father and the ICL agreed that the resolution of the case is reliant upon the application of the primary considerations, along with the additional considerations that deal with the nature of B’s relationships, the parental capacity of each party, B’s views, exposure to family violence and the potential change faced by B.
These in turn were identified to require a consideration of the degree to which each parent may have inflicted family violence upon the other, behaved in a manipulative or controlling manner toward the other, engaged in stalking, or been abusive or violent to the other or to B or her sisters.
Further, it was identified that consideration should be given to whether the mother is neglectful of B, particularly in failures to protect B from exposure to sexual abuse or family violence in the mother’s home.
It was accepted that the parties’ parenting capacity, and the nature of their relationships with B was also at issue, with the father being at present untested in a recent parenting role for B and having effectively no current relationship with B, and the mother’s capacity being challenged as being neglectful and deleterious to B’s development.
Further, the issue of B’s isolation from a parent and from her siblings arises in respect of each household, along with B’s views in respect of who she should live with.
ORDERS SOUGHT
The orders sought are set out in full in the Agreed Final Orders between the ICL and the applicant father. These are provided as an appendix to this judgment.
In summary, the joint position of the father and the ICL is for B to live with the father and for the father to have sole parental responsibility for the B, provided he seeks the mother’s input on significant long term decision involving B.
To assist in facilitating the change in residence and explaining the orders to B, orders are sought for the mother to provide B to the Canberra Registry of the Family Court of Australia at 9 am on 16 April 2021, and for Ms D, the report writer, to be available at that time.
An order was sought preventing the mother from contacting B for a period of six months.
Further orders are to provide for the father to engage a suitably qualified psychologist to engage in therapy with B, to give direction as to the contact between the mother and B, and to recommend programs for the father to complete.
Various injunctions were sought to maintain B’s attendance at E School, regarding travel and other official documents for B, and restraint from bringing B into contact with a particular person, and from being subjected to abuse by the mother.
An injunction was also sought to compel the father to take all reasonable steps to facilitate contact between B and her sisters.
LITIGATION HISTORY
These proceedings were commenced by way of an Initiating Application and Affidavit filed by the father on 22 May 2010 in the Federal Magistrates Court. That application sought final orders that B live with the father and that he have sole parental responsibility. The application also sought interim orders that B’s name be entered onto the All Ports Watch list.
In July 2010 there was an interim hearing in the M Town Court around in which the mother and police sought interim AVO orders against the father. The Court denied interim AVO orders after the hearing.
In October 2010, the mother applied for a DVO against the father in the ACT Magistrates Court.
On 7 October 2010, the mother filed an Initiating Application and Affidavit which sought final orders that B live with the mother and that she spend time with and communicate with the father as determined by the Court. That application also sought interim orders including that the father forthwith return B to the mother or that a recovery order issue (as at that time B was with the father).
In mid-October 2010, the father appeared in M Town Court for the final hearing for the AVO application against him. The AVO application was dismissed after the hearing.
Orders were made in mid-October 2010 which provided for the father to spend time with B each weekend from 5 pm on Friday through 4 pm on Sunday.
A few days later in October 2010, the mother withdrew the DVO application against the father.
In November 2010, by consent, the Orders made in mid-October 2010 were discharged and all Applications were dismissed.
The father recommenced the proceedings by filing an Initiating Application, Affidavit and Notice of risk on 5 May 2015 in the Federal Circuit Court (the FCC), which sought final orders that B live with the mother and spend time with the father as per Court Orders.
Orders were made on 1 December 2015 that the parents and their agents be restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia and B was placed on the Airport Watch List.
The proceedings were transferred to the Family Court of Australia from the FCC on 15 June 2016.
On 8 July 2017 Orders were made by consent for an agreed psychologist to supervise and assist reintroduction between B and the father. Orders were also made for B to spend supervised time with the father, initially for 30 minute periods, eventually extended to one-hour periods. That time came to an end such that B has spent no time with the father since February 2018, despite the orders for time remaining extant.
Orders made on 23 November 2018 for the preparation of the matter for trial, with the father to serve a single consolidated affidavit from each witness he intends to rely upon in the trial, no later than 4 pm on 28 January 2019. Orders were made for the mother to file a single consolidated affidavit from each witness she intends to rely upon at the trial, no later than 4 pm on 18 February 2019. Further orders were made that if the father seeks to adduce evidence from person other than family report writer in form of expert evidence, must file any application and supporting material for that purpose no later than 4 pm on 22 February 2019.
These orders were not complied with.
Further orders were made to bring the matter to trial on 8 March 2019, with the father to file and serve his evidence in chief affidavit for his trial, with any application and supporting affidavit material in relation to his seeking the appointment of a further expert in the proceedings by 4 pm on 8 April 2019. Orders were made for the mother to file and serve any response and material in relation to the appointment of an expert by 4 pm on 6 May 2019.
Again these orders were not complied with.
Further orders were made on 19 August 2019 for the father to file and serve a single consolidated affidavit from himself and each witness he intends to rely upon by 4 pm on 14 October 2019. Orders were made for the mother to file and serve a single consolidated affidavit from herself and each witness she intends to rely upon by 4 pm on 25 November 2019.
Orders made on 4 November 2019 by Gill J extending the time for the mother to file and serve her trial affidavit material to 4 pm on 2 December 2019.
As identified above, the matter came on for trial, which was adjourned part way through in February 2020.
Order made on 26 March 2020 for the father to file a single consolidated affidavit and for the mother to file and serve any affidavit material she relies upon.
These orders were not complied with.
Orders were made on 21 May 2020 for the father to file and serve a single consolidated affidavit by 17 July 2020 and for the mother to file and serve a single consolidated affidavit by 14 August 2020.
Again the orders were not complied with.
Orders made on 10 August 2020 for the father to file and serve a single consolidated affidavit by 4 pm on 20 August 2020.
The father was advised that failure to comply may lead to the dismissal of his application. He filed his material and orders were made on 26 August 2020 for the mother to file her trial affidavit by 25 September 2020. The mother filed her material out of time and advised that she would no longer participate in the proceedings.
The matter came on for trial again in April 2021.
THE MATERIAL BEFORE THE COURT
(a)Affidavit of the father, filed 26 August 2020;
(b)Affidavit of Ms P, filed 31 August 2020;
(c)Affidavit of Ms N, filed 1 September 2020;
(d)Exhibit M1 ‘Tender Bundle for Respondent Mother’ dated 4 February 2020;
(e)Exhibit F1 ‘Tender Bundle in relation to adjournment application’ dated 4 February 2020;
(f)Exhibit C1 ‘Family Report dated 1 June 2016’ dated 4 February 2020;
(g)Exhibit C2 ‘Family Report dated 20 July 2018’ dated 4 February 2020;
(h)Exhibit C3 ‘Family Report dated 20 January 2020’ dated 4 February 2020;
(i)Exhibit M1 ‘Proposed Directions of the respondent mother’ dated 13 March 2020,
(j)Exhibit F1 ‘Proposed Directions of the applicant father’ dated 13 March 2020;
(k)Exhibit ICL1 ‘List of documents to be provided to Ms D dated 13 March 2021
(l)Exhibit F2 ‘Extract from CYPS records’ dated 13 March 2020;
(m)Exhibit F3 ‘Annexures to the Father’s Affidavit’ dated 12 April 2021
(n)Exhibit F4 ‘Case Outline of the Father’ dated 12 April 2021;
(o)Exhibit ICL2 ‘Correspondence from the ICL to the Mother’ dated 12 April 2021;
(p)Exhibit ICL3 ‘Extracts from CYPS (child concern report and child appraisal form) dated 12 April 2021;
(q)Exhibit C4 ‘Family Report dated 18 February 2021’ dated 12 April 2021; and
(r)Exhibit C5 ‘Agreed Final Orders between the ICL and Applicant Father’ dated 13 April 2021; and
(s)Exhibit F5 in Chambers ‘Extracts of the Tender Bundle referred to by the Applicant Father in his affidavit filed 26 August 2020, in accordance with the list handed up in Court’.
FACTUAL BACKGROUND
The mother, a health professional, was born in Country J and migrated to Australia in or about 2006. The mother has three children from a previous marriage: Ms K (23 years old), X, (17 years old) and U (14 years old). The father of these children is Dr Aluru.
The father was born in Country S and came to Australia as a student in or about 2001.
The mother and the father commenced an intermittent relationship in August 2008, ending on 12 January 2012.
The father gives a troubling account of the relationship between the parties.
The father described the initial relationship as largely conducted in the home of the mother and Dr Aluru whilst Dr Aluru was absent, but Dr Aluru’s children were present. Much of the subsequent relationship was then conducted with the parties living in different cities.
The father’s account is of the mother behaving in a controlling and manipulative manner toward him, in a pattern in which the parties engaged in their relationship on an on and off basis, and similarly the mother continuing in an on and off relationship with Dr Aluru. The father indicated that frequent police interventions were sought by the mother, followed by the mother seeking to recommence the relationship and the father agreeing to do so. The father describes that a part of this dynamic involved the mother threatening the father’s relationship with B.
His evidence was that the complaints to the police, made by the mother (and also Dr Aluru) were confected, and that the police were used by the mother in exercising control over the father. He describes that on occasion he was invited into the home of the mother and Dr Aluru, only to have the police subsequently called. Supportive of the father’s description of this dynamic is that it appears that the father has never been charged or convicted of any offence and that, further to that, no final family violence order has been made against him, even where that was pursued by the police at final hearing in the Local Court of NSW.
Prior to the mother’s disengagement with the proceedings, the father was cross examined on behalf of the mother in relation to her allegations of violence committed by him. He largely denied the allegations made against him, denying that he engaged in violent or stalking behaviour. He, however, accepted that he called the mother a “motherfucker” being a term that he asserted that she also used in respect of him. He also agreed that he had been jealous of the mother engaging in other relationships. The father also accepted that he has made a complaint regarding the mother to the medical board. He asserted that he did so in response to legal advice received on the basis that the mother had accessed his medical records without his authority.
Although these matters may have raised issues regarding whether the father engaged in abusive behaviour of the mother, the cross examination of the father was insufficient to lead to adverse conclusions being reached about such matters, where the mother’s withdrawal from the proceedings left the father’s account of, and explanation of the relationship, as without significant evidence to challenge his account.
This is also the case with the father’s description of the mother’s abusive conduct toward her children.
For example, the father records that the mother said to him, during their relationship in 2008, that she did not experience love or affection for her children. Rather, she found them to be irritating.
The father described that in 2009, he observed the mother to pull Ms K by the hair, saying “Ms K, you bastard... I will give you a lesson,” and to refer to Ms K as “…” a phrase he understood to equate to an “infection.” He describes that on multiple occasions he saw the mother pull Ms K by the hair. He recounts a further instance where he saw the mother hit Ms K on her back.
Similarly he says that he saw the mother pull X by her hair, and to push her head into the wall.
The father says that in 2010 he saw the mother throw a tissue box at B, narrowly missing B’s head.
The father also describes the mother threatening to put B up for adoption in 2010.
In 2011 the mother pushed and threw B at the father, causing B’s head to hit the father’s mouth.
In 2014 the father had a telephone conversation with the father where she threatened to make B suffer.
The father also describes the reintroduction and supervised regime for him to spend time with B, a scheme supported by court orders. This process involved a facilitated introduction of the father to B in October 2016, at a time when B was unaware that the father was her father.
Importantly, the progression and failure of the scheme for the reintroduction of B to the father, which ended in January 2018, points to both a resilient and thoughtful approach by the father, and to undermining by the mother.
The father’s evidence is that the mother delayed the reintroduction by delaying and cancelling appointments with the facilitator, Dr C, delayed engagement with the supervision agency and cancelled multiple visits with the supervision agency.
In the family report of 20 July 2018 Dr C was recorded to have described that the mother was not “on-board” with the therapeutic process to be conducted by Dr C, and that she “actively tried to stop it.” Dr C described further that when, following a number of supervised visits Dr C sought to recommence the psychological support the mother refused. Dr C also observed that the mother was determined that B’s sisters should not be told that B has a different father to them, in order to avoid scapegoating of B. Dr C observed that this put B into a position of secret keeping, which she thought may have a deleterious impact upon B.
The father’s description of B’s interactions with him is set out at [118] ff of his trial affidavit in detail. B’s interactions during the two introductory sessions are positive, leading to a transition to additional fortnightly supervised visits. During the facilitation with Dr C, B asserted to the father that the mother had said that “you are a stinky boy,” and that, when asked by the father what school she went to, indicated that she had “no idea.”
Dr C was further recorded as assessing that B had appeared to enjoy the introductory sessions, commenting in front of the mother that she had “so much fun.”
During subsequent visits that were conducted by a professional supervision agency, in response to a question by the father, B said “mumma doesn’t like me telling you.” This was suggestive of undermining by the mother.
The supervised visits continued, with the duration being increased by consent in June 2017. The visits continued through until January 2018 at which point B raised the fact that she was on the airport watch list, and therefore unable to travel overseas with the father. Again this was suggestive of undermining by the mother.
Although the father described the visits in positive terms, Ms Q who conducted the bulk of the supervision, told the report writer that B had a negative attitude toward the father from the start, which improved slightly. Seemingly contradictorily, she also observed B to become more resistant to the visits.
Further, although she assessed the father as inexperienced, she observed that he followed advice from her. Ms Q also confirmed that the mother was not happy with the visits occurring.
The visits ceased from 23 January 2018.
The father did not take steps to enforce or to modify the orders.
THE CYPS MATERIAL
The ACT department charged with the protection of children has had extensive involvement with the family in this matter. Portions of the material produced by CYPS to the Court were tendered in the proceedings.
In 2018 X told CYPS that the mother had asked her to leave the house. X also reported that her older sister, Ms K, had gone to live with her father as the mother wanted her out of the house. X said that she was scared of the mother, and that the mother tells her that she is “stupid.” She described that the mother screams at her constantly.
In February 2019 CYPS recorded X as asserting that the mother had pulled her by her hair up stairs and bashed her head into a wall. She said that she was afraid of the mother. X said that she was sent to stay with Dr Aluru, but that she was afraid of him, and that he yelled at her. X told CYPS that she has responsibility for the care of B, and that the mother is abusive towards X.
Also in February 2019 CYPS records interactions in respect of a complaint that B had been sexually abused by another child. B told CYPS that another child had tried to push his private part into her private part, and that he had put his fingers into her. B explained that she had not told her mother as the mother would not believe her.
The mother initially asserted to CYPS that she knew that B had not been abused. The mother was asked whether she had considered a medical examination for B, but responded that if there had been abuse that she would do an examination herself, but that given that there had been none, there was no need for such. The mother said that she regarded that sexual intercourse was impossible for a male child of 10 years age.
The mother subsequently told CYPS that she accepted that B had been the subject of sexual abuse from the child. The mother said there would be no contact between B and the child. She said that if therapy was required that the mother would arrange it. No such support has ever been identified as being provided to B.
In July and August 2020, it was recorded that B was reporting having been slapped (regularly) by the mother’s current husband, a report that appeared to be supported by B’s step sister. B had also complained of being hit, kicked, and of her step father attempting to suffocate her. Bruising was observed by CYPS on B’s leg.
In July 2020, B told CYPS that she was currently living with Dr Aluru, who confirmed then that B could stay with him for as long as she wished.
On 6 August 2020 the mother told CYPS that she was currently struggling with B, and that she had made an arrangement for B to stay with Dr Aluru. Due to the hours worked as a health professional CYPS assessed that the mother was unable at that stage to respond to B’s needs and to care for her.
In August 2020, Dr Aluru told CYPS that B had been with him for four weeks, but that it could not continue. On 16 August 2020 Dr Aluru informed CYPS that B would be dropped to her mother’s home. He further described that B throws tantrums every day.
THE FAMILY REPORT
Following the withdrawal of the mother from the proceedings, the interviews and assessments made by the report writer assumed greater prominence in providing a potential counter point to the father’s case. Although the report writer, Ms D, has prepared a series of four family reports in this matter, it is the most recent that is of significance in resolving what currently lies in B’s best interests. Through the report and her oral evidence, the report writer identified a number of matters that speak to the balancing of the different risks faced by B, as posed by the various outcomes available in the case. The conclusion reached by the report writer in her most recent report was that the situation is “unsolvable … and it seems there are no good solutions … (and it) … is not possible to make a recommendation for B’s living arrangements.” She considered that there are “considerable risks to all possible parenting options for B.”
The report writer identified that B is frightened of the mother. She also observed that B is concerned about whether she has to spend time with the father, and has taken on negative views about him.
B faces a number of developmental risks posed by the various outcomes in the case.
If B is not to spend time with the father, there is a risk of the undermining of her identity. In the formation of her identity the report writer observed that it would be helpful for B to know the father’s side of the family. It should also be noted that B has expressed apparent curiosity to the report writer about where her father is from (Country S). Further, the report writer observed that, contrary to previous recommendations the mother appears to continue to hide B’s true paternity from B’s sisters.
The report writer assessed that B has had a “disrupted childhood” that was “inconsistent” and “suboptimal”, and that the mother and Dr Aluru (who B refers to as her father) have both often been “physically and emotionally absent”.
Raising concern that “the relationship with her mother is potentially destructive and even harmful” the report writer observed that in the mother’s household B faces developmental risks connected to the mother’s manner of interaction, and what the report writer identified as a failure to accept responsibility. Examples of this failure may be seen in the critical manner in which she has appraised complaints made by B and her sister, attributing the complaints as arising from deficiency on the part of the girls. The mother has described her children’s complaints of neglect as their emotional reaction to not getting their own way, and B’s complaint of assault by the mother’s husband as B’s attempt to break up the marriage. Ms D assessed that the mother exhibits a likelihood to prioritise her own reputation and relationship ahead of protecting B. The mother has previously discounted complaints made by B, or by B’s sisters Ms K and X, and has levelled blameworthiness at B and X for raising complaints, labelling them variously as attention seeking, or using the system. The report writer identified this approach by the mother as carrying the risk that B will also adopt such an approach as she grows in independence, adopting a similar negative pattern in her future relationships.
Further risk in the mother’s household was identified in relation to the mother’s response to the sexual abuse reported by B. The mother exhibited initial disbelief of B and, even though she ultimately appeared to accept B’s account, took no step to organise professional therapeutic support for B. The report writer observed that the mother’s reliance on her own skills as a general practitioner “speaks of arrogance and assumes specialist knowledge that she does not have.”
The report writer observed that B has previously complained that she has been assaulted by the mother’s current husband, Mr R. This raises the notion of B being at risk of being exposed or subjected to violence in the mother’s home. This risk is reinforced by the material produced from CYPS at Exhibit ICL3, which reports complaints made about Mr R in relation to alleged assaults upon his former partner, and by confirmation from his daughter that she had seen him slap B.
The report writer observed that B also faces the prospect of rejection by the mother if she either lives with or otherwise spends time with the father. She assessed that there is already a risk of rejection by the mother independent from this as B faces the prospect, as experienced by her elder sisters, that the mother may require her to leave the home as B reaches the age at which the mother struggled to cope with B’s older sisters. Unlike her sisters, it is unclear that B has the option of living with her sisters’ father, Dr Aluru, despite the CYPS material indicating that she has spent extended periods in his household and refers to Dr Aluru as her father.
In examining documentation relating to B’s schooling, the report writer observed that the mother has made decisions to enrol and retain B in a foreign language school where B is not proficient in the language and is falling behind her peers. Further, despite this, the mother rejected the school’s recommendation of an independent learning plan to support B.
These matters paint a poor picture of B’s future and development in the mother’s household, particularly in the assessment of the report writer that “B may be at risk of significant emotional harm, educational neglect and potentially physical harm” with the mother, a risk increasing with B’s age.
However, the report writer identified that there is some justification for maintaining B living with the mother despite these deficits, in that as “marginal a parent as Ms Sokulsky appears to be, continuing to live with her mother does at least provide B some consistency in an otherwise chaotic life.” She further identified that this might be the least worst option, but that the consistency on offer from the mother was not enough to sustain B in her development. That is, although there is some consistency in remaining with the mother, it is consistent inadequate parenting that will undermine B’s development.
The report writer also thought that the father’s proposal was worthy of consideration.
One of the benefits identified in a move to the father’s household by the report writer is that in that household B would be left in no doubt of the father’s concern and regard for her, a feature that is not apparent on the above assessment of the mother’s household.
A move to the father would constitute a move away from the risks posed by the mother and potentially provide B with an adult that she can rely upon. The father says he will prioritise B’s needs, and potentially B would find a family who will embrace her. The report writer offered that “in this situation B may flourish emotionally and academically.” Further, if such a change occurred now it would occur at a more developmentally appropriate age than if B were older and was excluded from the home in the same manner as her older sisters.
However, the report writer observed that the risks do not all tend in one direction. There is the prospect that a transition into the father’s household may be unsuccessful. At present the father is in many respects a stranger to B. Further, B holds negative views of the father, that appear to be sourced in the mother’s exposure of such negative views to B. Although B appears to have some doubt about such, and some curiosity as to whether the negative matters are true or not, the report writer thought that B is not yet at a stage of development to reject what the mother has said about the father. Further, she noted, a transition to living with the father is contrary to B’s wishes, and could be a transition that “may compromise B’s emotional wellbeing.” The report writer described that a change to live with the father would constitute a huge loss for B as she has a strong attachment to the mother.
Perhaps ameliorating (to some degree) the negative impact of transitioning to the father, B expresses a strong curiosity about meeting her paternal sister, X.
The report writer identified that psychological support for both B and the father is needed in order to give a transition the best prospects of working. The father needs, she thought, coaching and support to understand B. B faces, on transition to the father, a “huge loss” as she would at present have a strong attachment to the mother. B would benefit in understanding the reasons for such a change in her care arrangements, and to cope with her sense of loss.
In respect of understanding the reasons for the change, the report writer accepted that, having now seen B on multiple occasions for the preparation of reports, she would be well placed to assist with a transition handover, and to assist B to deal with her reactions to the change in a positive rather than a negative manner.
The report writer also considered that there is a benefit to B in having a period of no contact for a period of 4-6 months with the mother if she were to transition to the father, in order to give B the opportunity to settle with the father, without interference from the mother.
Of particular importance, as identified by the report writer, is fostering contact between B and her sisters. It however remains unclear how much such contact is available while B is with the mother. It is difficult to identify any prospect of such contact while in the father’s care. The father’s explanation of how such might occur was lacking in realism or insight. He explained that after the initial six months, B would be free to arrange to meet up with the sisters. He thought that this might include staying with the sisters in Dr Aluru’s home. This is despite the criticisms that he makes of Dr Aluru making death threats toward him, making false complaints about him, behaving neglectfully toward his daughter, and his allegation that Dr Aluru expressed hostility toward B. The father sought to minimise this criticism of his proposal by suggesting that Dr Aluru is frequently away from his home. This did little to improve the merit of his proposed mechanism of maintaining contact between B and her sisters.
The report writer also noted that it is of concern to B that she is unable to travel overseas, by virtue of being on the airport watch list. As part of her currently bilingual schooling, there is an anticipated overseas trip to Europe. Although it may be that in the current COVID circumstances that such cannot take place, the father gave evidence that he was supportive of such a trip provided B was living with him and he could ensure B’s return.
The report writer noted that B is struggling academically at her bilingual school. Despite this the report writer identified strong protective features of the school that point to retaining B at the school. B has both friends at the school and trust in her teacher. The father said that he has accepted this view and no longer either pursues orders to change the school, nor will he change the school (prior to the end of this final year at the school) unless that is what B wants.
PRINCIPLES
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (the Act), the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
In order to determine what is in a child’s best interests, the court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC. The two primary considerations focus, respectively, upon the benefit to the children of a meaningful relationship with both parents, and the need to protect the children from harm from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.
In Marsden & Winch (No 3) Warnick and Thackray JJ observed in relation to both the prominence of, and significance of the primary considerations, the following:[2]
It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
[2] Marsden & Winch (No 3) (2007) FamCA 1364 at [77].
They further observed that a primary judge is:[3]
of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
[3] Marsden & Winch (No 3) at [78].
Without disregarding the balance of the considerations, those that dominate and are determinative in this case are the primary considerations, and, from the additional considerations, particularly: the views of B; the nature of B’s relationships with her parents and others; the capacity of the parents to provide for B's needs; exposure to family violence; and the effects of change upon B. It may be observed that these considerations are intertwined. Given the connected nature of these considerations it is convenient to analyse them together, rather than artificially separating them.
DISCUSSION
As identified by the family report writer, B faces risk and detriment in either the mother’s or the father’s care.
In either household B faces the prospect of being deprived of a relationship with one or other of her parents. In the mother’s household it cannot be predicted that there will be any support for B having a relationship with the father. Denial of such a relationship is deleterious to B’s understanding of her background and development of identity, including cultural identity. If B is in the father’s household it is proposed firstly that there be a period of time without contact with the mother in order to promote the development of a new relationship with the father. Although the father says that he will support B having a relationship with the mother, it is unclear that the mother will engage in a relationship with B if she lives with the father.
It may be seen that there is the uncertain prospect of B having a relationship with the mother if she lives with the father, while if she lives with the mother she will not have a relationship with the father.
Further, in each household there are barriers to a relationship between B and her older sisters, while in the father’s household there are good prospects for a relationship with the younger sister X.
A synthesis of the considerations points to the need for a balance being struck as to the risks and deficits of B remaining in the care of the mother, as opposed to the uncertainty and risks accompanying a change to live with the father, when coupled with the potential for B to benefit from improved parenting in the longer term from the father.
The risks and deficits faced by B in the mother’s care
The mother’s response to potential risk to B has been deficient. This may be seen in her responses to claims of sexual abuse by B in relation to another child, in both her initial rejection of the claim and in failure to obtain professional support. However, both these criticisms are, to a degree, ameliorated in that the mother shortly after accepted that B had been abused, and secondly indicated that support would be obtained if required. Deficiency may be further seen in the mother's response to B’s claim of being assaulted by her current partner, which lays blame upon B, accusing B of attempting to break up the marriage.
It should be noted that B’s account is to some degree supported by her 10-year-old stepsister (that is the daughter of the mother’s current husband) who confirms that B was slapped on the face by the mother’s husband. These circumstances led the report writer to express, reasonably, concern that the mother may not prioritise acting protectively of B where that conflicts with the mother’s relationship with her husband.
Aside from the risk issues, B’s relationship with the mother has been identified as potentially destructive to B. The mother was described in the CYPS material as being unavailable to B. There is a history, as identified by the report writer of B’s sisters leaving the mother’s care in adolescence at the behest of the mother. The report writer identified that the mother’s deficient modelling of relationships (exemplified in her blame of the children for issues in the relationships) potentially impacted B’s adopting of poor relationship models into the future.
Further, as identified by the ICL, the mother’s educational choices for B are also indicative of poor parental capacity. Whilst it is the case that the father now supports B remaining at the current school as being appropriately supportive of B, it remains that the mother’s decision to enrol, and to maintain B’s enrolment in a school for a number of years where B did not, and does not, have adequate grasp of the primary teaching language of French to facilitate her education is demonstrative of poor decision-making capacity of the mother. The decisions made by the mother have demonstrably hampered B’s education.
The ICL also pointed to the implications to be drawn from the mother’s withdrawal from the proceedings. Some weight should be given to the notion that the withdrawal from the proceedings reflects deficiencies in the mother’s attitudes to the responsibilities of parenthood.
In summary, although remaining with the mother would not expose B to immediate change, and would accord with B’s views, there is risk of longer term change in the manner experienced by B’s sisters. Secondly, there is an ongoing risk of exposure to family violence in the mother’s home and a failure on the part of the mother to act protectively. Thirdly, there are developmental risks emanating from the mother’s deficient decision making, poor emotional availability and modelling of poor relationships.
Risks and deficits faced by B in moving to the father’s care
The change proposed by the father carries with it the prospect that the change will not be accepted by B, and the likelihood that B will struggle with such an abrupt change into an unknown household, being a change that conflicts with her views. Further, the father is untested in such circumstances.
Although the father had made some enquiries in relation to appropriate supports for such a change, including psychological support, he did not progress such enquiries into more concrete arrangements by the time of the trial. This is understandable in circumstances where he is unable to know what the outcome of the trial will be, or what the timing of judgment may be, but his failure to do so left him ill equipped for such a change.
There are a number of factors which practically support such a change.
B has expressed some enthusiasm for getting to know X, the father’s other daughter, with whom he spends time each alternate weekend. B and the father have, in the past, been able to rekindle a relationship. The father has now identified professional support for himself and B. The father proposes to keep B in her current school, where she has a friendship group, a teacher whom she has a positive relationship with, and some access to her sister. Ms D is available to facilitate the handover from the mother’s care to the father’s care in order to render it a more positive process for B.
There is also a strong supportive factor that such a radical change is, despite the associated issues, in B’s best interests, being that the report writer assesses that B will be left in no doubt as to the father’s care and regard for her. The father has given evidence indicative of his commitment to B’s best interests, a matter that is not apparent in the mother’s care. It is this commitment to B’s care, as evidenced by the father in cross examination, that was pivotal to the ICL’s change of position to support a move to the father.
CONCLUSION
Crudely put, the balance involves a decision between maintaining a currently deficient and potentially harmful arrangement for B, as opposed to placing B with the father, not knowing how she will respond, and where the father is untested, but where the father carries a greater likelihood of emotional and practical care for B.
The possibility of having relationships with both parents, the protection from exposure to family violence and neglect, the prioritisation of B’s best interests and the care on offer for B in the father’s household outweighs the risks associated with change, a current lack of relationship and untested capacity. In this case it is better, for B, to take the risks related to the change than for B to continue in the deficient environment of the mother’s care.
A transfer to the father’s care also carries with it the need for the father to make long term decisions about B’s wellbeing. Despite the presumption in favour of equally shared parental responsibility, it cannot be anticipated that the parties will be able to make a genuine effort to jointly resolve such issues. Rather, as proposed by the father and the ICL, provision should be made for the father to make the final decision following consultation with the mother.
It should be anticipated in respect of the transition that, given the mother’s disengagement from the proceedings, her cooperation cannot be expected. This creates difficult issues surrounding the transition. Orders should be made to provide for B to be made available to the report writer to facilitate the transition. Orders will also be made for the ICL to effect service upon the mother at her workplace, so that she may be demonstrably on notice as to her obligations in respect of the handover.
In order to support B and the father in this difficult change, orders of the nature proposed by the ICL and the father should be made for B to have psychological support.
Further, the ICL should not be discharged for a period following the transition in order to facilitate the transition and the transmission of relevant material to the psychologist. In aid of the ICL’s continuing role, an order will be made requiring the father to cause B to attend on the ICL in accordance with any direction from the ICL.
It is also appropriate that there be a period of time when there is no contact with the mother to give the new arrangements a chance to settle.
Although the parties sought that, in addition to a 6 month hiatus in contact with the mother supported by an injunction, there be provision for a psychologist to determine the time that B will spend with her mother, it is not appropriate to cast upon a third party an at large power to determine parenting obligations. Rather, such will be dependent upon agreement by the parents following the end of the hiatus. Obligations will be placed upon the father to seek advice from the psychologist in determining contact with the mother. It might be thought that there is the spectre of further litigation if the parents do not agree. While this is undesirable, no other mechanism commends itself for the purpose of supporting the relationship with the mother (that the father says he supports) in the uncertain circumstances that surround the making of these orders.
Given the prospect that if the arrangements with the father fail B may be without an available parent, it is also appropriate that this judgment be sent to CYPS, who are charged with the statutory duty to protect children in the ACT.
Given that the father will exercise sole parental responsibility, it is appropriate that he hold relevant travel and personal documents for B. This includes the birth certificate he has identified in his evidence which incorrectly bears Dr Aluru’s name as the father of B, that now has been corrected on the Register of Births, Deaths and Marriages. It also includes passports and an Apostille obtained in reliance upon the birth certificate bearing Dr Aluru’s name.
Further, it is appropriate that, although the father cannot guarantee contact between B and her sisters, that he take reasonable steps to do so. He agrees that he should be so obliged.
Similarly, in the face of significant change for B, it is appropriate that her current enrolment at school be maintained. The father agrees to be obliged to do so for the balance of this year.
It otherwise remains appropriate to maintain the restraint on B being brought into contact with the child alleged to have sexually assaulted her.
Although the father and the ICL sought orders directed to the mother to restrain her by injunction from physically, verbally or emotionally abusing B, I am not persuaded such is appropriate. The concept of emotional abuse is nebulous and leads to an injunction that is uncertain. Further, it is not suggested that B is currently at risk of physical abuse from the mother. Finally, given the hiatus, it is not necessary that there be an injunction in relation to verbal abuse.
Accordingly orders will be made, largely in conformity with those proposed by the father and the ICL, with necessary modifications.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 20 April 2021
Agreed Final Orders between the ICL and Applicant Father
1.Save for the Airport Watchlist Order made on 1 December 2015, all previous parenting orders and injunctions be discharged. IT IS NOTED that the father may apply to remove the Airport Watchlist Order.
2.Subject to Order 3 below, the father have sole parental responsibility for B (DOB: … 2009) (“the child”) PROVIDED the father keep the mother informed of significant long term decisions that he makes in relation to the child and actively seeks the mother's input on such issues.
3.For the purpose of order 2 herein -
a.before any such long term decisions are made in respect of the child -
i.the father shall advise the mother by email (…) of his proposal relating to the child; and
ii.if the mother wishes to comment on the father's proposal (or if the mother has any proposal she wishes to make relating to the child on this issue) she shall, within seven (7) days after the date of the father's email, advise the father by one email (to the email address …) of her views;
iii.upon receipt of any comment or proposal by the mother, the father shall give consideration to the mother's views;
iv.after the father has considered the mother's views, he shall make a decision and advise the mother by email of the outcome immediately after making that decision; and
v.if the mother does not respond by email as provided in order 3(a)(ii) hereof, the father shall be entitled to presume that the mother does not wish to be involved and he may decide the issue.
4.The child live with the father.
5.The mother shall bring the child to the Canberra Registry of the Family Court of Australia (“the Court”) at 9am on 16 April 2021 or such other date as directed by the Court.
6.Pursuant to section 65L of the Family Law Act it is requested that Ms D be available to meet with the child on 16 April 2021 or such other date as directed by the Court to:
a.Facilitate the child’s change of residence in accordance with these orders;
b.To explain the orders to the child;
7.To provide assistance, in accordance with her professional expertise and opinion, to the parties and child with respect to the child’s change of residence.
8.The father shall forthwith engage with a suitably qualified psychologist for the purposes of obtaining assistance, advice and support in relation to parenting the child and supporting the change of residence. IT IS NOTED that Dr C has indicated her availability via video conferencing.
9.The father shall forthwith engage a suitably qualified psychologist to engage in therapy with the child and in this regard, the following provisions shall apply:
a.The ICL shall provide to the psychologist copies of the following:
i.The Judgement & written reason of this Court.
ii.These Orders.
iii.The reports of MS D dated 1 June 2016, 20 July 2018, 20 January 2020 and 18 February 2021.
iv.The CYPS documents exhibited in these proceedings, namely exhibit number F2 and ICL3.
IT IS NOTED that it is the father’s intention to engage a psychologist who can meet with him and the child in person and that the psychologist referred in Orders 5 & 6 herein be the same person.
10.By consent, the father hereby is retained by injunction from changing the child’s enrolment at E School for the balance of the 2021 academic year.
11.The mother, her servants and/or agents be and are hereby restrained by injunction from contacting the child by any means otherwise than as provided for in these orders; from the date the child starts living with the father for a period of six (6) months or such other period as recommended by the child’s psychologist; and during this period of time the mother, her servants and/or agents be and are hereby restrained from attending the residence of the child or the child’s school.
12.Notwithstanding Order 11 above, if the child’s psychologist recommends communication or contact between the child and mother, the father shall facilitate such time or communication.
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