Abadi and Sokulsky (No. 2)

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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 2021
Solicitor 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…

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Details
Case
[2021] FamCA 218
Decision Date

CaseChat Overview and Summary

In *Abadi and Sokulsky (No. 2)*, Gill J of the Family Court of Australia considered parenting orders concerning a child, B, born in 2009. The proceedings involved the mother's withdrawal from the proceedings and the court's determination of what parenting arrangements were in B's best interests, balancing the risks associated with B living with either parent, including the risk of change of residence to a parent with whom B had not spent recent time, and the risks posed by the parent with whom B was currently living.

The court was required to determine the primary issue of what parenting orders would serve B's best interests, particularly in light of the mother's disengagement from the proceedings and the father's demonstrated commitment to B's welfare. This involved assessing the risks and benefits of B residing with the father, who was described as having a greater likelihood of providing emotional and practical care, compared to the mother's current care arrangement, which was assessed as deficient and potentially harmful. The court also considered the presumption of equally shared parental responsibility and whether the parties could genuinely resolve long-term decisions jointly.

Gill J reasoned that placing B with the father, despite the risks associated with change and the father being untested, outweighed the risks of B remaining in the mother's deficient care. The father's commitment to B's best interests, as evidenced in cross-examination, was pivotal in the Independent Children's Lawyer's change of position to support a move to the father. The court found that the potential for B to have relationships with both parents, protection from family violence and neglect, and the care offered by the father's household were more beneficial than maintaining the current arrangement. Consequently, the court ordered that the father have sole parental responsibility for B, with provisions for the father to make final long-term decisions after consulting with the mother. The child was ordered to live with the father, and specific orders were made for a family consultant to facilitate the transition and explain the orders to B. The court also ordered a period of no contact with the mother to allow the new arrangements to settle, with the father to seek advice from a psychologist regarding future contact.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.