Abadi & Sokulsky (No. 3)

[2021] FamCA 335

FAMILY COURT OF AUSTRALIA

Abadi & Sokulsky (No. 3) [2021] FamCA 335

File number(s):	SYC 3215 of 2010
Judgment of:	GILL J
Date of judgment:	25 May 2021
Catchwords:	FAMILY LAW – CHILD-RELATED PROCEEDINGS – application of principles for the conduct of child-related proceedings – communication of orders to child – obtaining views of the child – further family report ordered
Legislation:	Family Law Act 1975 (Cth) ss 62G, 69ZN and 70NBA
Number of paragraphs:	22
Date of hearing:	5 May 2021
Place:	Canberra
Solicitor for the Applicant:	Brigitte Smithies and Associates
Solicitor for the Respondent:	Self representing
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

Other

ORDER MADE BY:	GILL J
DATE OF ORDER:	25 MAY 2021

THE COURT ORDERS THAT:

1.The Family Consultant, Ms D, attend upon B born … 2009 (B), at B’s school for the purposes of:

(a)Informing B that there are no longer orders for her to live with her father, nor are there orders preventing her from being with her mother;

(b)That the father no longer pursues or enforces such orders as identified in (a) above;

(c)Obtaining and assessing any views offered by B as to future contact with the father (if such views are given, noting that they may not be required to be given);

2.It is requested that:

(a)The Independent Children’s Lawyer, Ms Orcykowksi, attend with the Family Consultant at the above meeting and participate in the process of informing B, and obtaining B’s views;

(b)That the Director-General advise the relevant school of these orders and request the assistance of the school;

(c)That the school provide such assistance as is necessary to carry out these orders;

3.It is ordered that

(a)The relevant school may be provided with a copy of these orders and judgment;

(b)The Family Consultant prepare a short report pursuant to s 62G of the Family Law Act 1975 (Cth), reporting on the above process and identifying any views or responses expressed by B in relation to the prospect of further contact with her father.

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

LITIGATION HISTORY

1. This judgment concerns interim arrangements involving the child the subject of the proceedings, B, being advised by the Family Consultant and the Independent Children’s Lawyer (the ICL) as to matters that have arisen in the proceedings that concern her.

2. The need to specifically consider this issue arises for the reasons that are set out below, and in consideration of the “needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings” as provided for in Principle 1 of the principles for the conduct of child related proceedings set out at s 69ZN of the Family Law Act 1975 (Cth) (“the Act”).

   Recent litigation history

3. From 12 April 2021 to 13 April 2021, a final hearing was conducted for the proceedings. The applicant father and the ICL appeared in person on both days of the final hearing.  The respondent mother did not make an appearance in the proceedings on either day of the final hearing.

4. On 20 April 2021, I handed down reasons for judgment for the proceedings.  In summary, it was ordered that the applicant father have sole parental responsibility for B, and that B live with the applicant father.  However, it was ordered the applicant father keep the respondent mother informed of any significant long-term decisions he makes about B.

5. It was further ordered that the respondent mother bring B to the Canberra Registry of the Family Court of Australia (“the Court”) on 22 April 2021 at 11am.

6. B and the mother attended court for the handover, with the mother initially declining to leave the court building.  B initially refused to attend upon the family consultant who was to facilitate the transition into the father’s care.  The matter was brought before the court at short notice, and the mother was directed to leave the building.  B then attended upon the family consultant, the ICL and, ultimately the father.  During this process B was highly distressed and left the court building, unaccompanied.

7. At short notice, and on an ex parte basis, the father then sought orders for the enforcement of the final orders, including the issue of a recovery order.  This was declined and the matter was listed for the following day, with the parties to attend in person. 

8. On 23 April 2021 Ms D gave evidence in relation to the attempted transition.  The mother initially did not appear but subsequently attended by telephone, and the orders that related to B living with the father, and that restrained the mother from coming into contact with B were stayed, and the proceedings were then adjourned to 5 May 2021 at 10am for further hearing.

9. On 5 May 2021 the father pursued an application in a case that he attempted to file on 4 May 2021 (having not complied with orders in relation to the filing of orders sought).  In brief he sought a regime for reintroduction to B, in substitution for the final orders that B live with him.  Although he did not consent to the discharge of that order (and the order that he have sole parental responsibility and the order restraining the mother from coming into contact with B), nor did he wish to be heard against such a course.

10. The mother attended, but on conceding that she had not complied with Order 18 of the orders of 20 April 2021, was directed to do so immediately.  She did so, lodging the documents with the Registry, and the hearing then continued with the mother giving oral evidence in support of a discharge of the orders of 20 April 2021, and the replacement of those orders with orders that B live with her, that she have sole parental responsibility, that B have no contact with the father, that B’s name be removed from the Watch List, and that the father be restrained from making any further applications to the court.

11. The father’s application for enforcement of the orders, being an application that asserted that the mother had not complied with her obligations under the parenting orders, enabled consideration of the variation of the orders of 20 April 2021 pursuant to s 70NBA of the Act. Consideration of the discharge and displacement of the orders was also enabled by the significant change of circumstances that arose on B’s refusal to transition into the father’s care.

12. Ms D gave further evidence after hearing the mother’s evidence and considering the affidavit prepared by the father in support of his application in a case.

13. In summary, Ms D expressed the view that prior to consideration being given to steps toward the reintroduction of B to the father, it would be necessary to tell B that the father no longer pursued or enforced orders for B to live with him, or which prevented B from living with the mother.  This was a task, she said, that should be engaged in by herself and the ICL, either at the ICL’s offices or at the school.  Although she offered the opinion that it was beneficial not to do so at the school, in order to attempt to quarantine the school from the dispute for B, she accepted that there were benefits in doing so at the school including ensuring support for B from the school following contact with herself and the ICL.

14. The Family Consultant thought that such an opportunity for communication with B would remove pressure from B, and also give the opportunity to gauge B’s reaction to potential further contact with the father, which would in turn inform the making of a decision in relation to the steps involving therapy proposed by the father.

15. The proceedings were then adjourned for further hearing to 4 July 2021 at 10am, with the issue of any communication with B being reserved for judgment in the intervening period.

    Consideration

16. Orders to provide for the Family Consultant and the ICL to tell B that the father no longer pursues orders, or seeks to enforce orders for B to live with him, or to remove B from the mother’s care, appear likely to alleviate the distress expressed by B on the attempted transition to the father’s care.  It is protective of B to alleviate that distress and uncertainty.

17. Orders should be made for such to occur.

18. Further, such a step will also allow the court to appropriately weigh B’s views on reintroduction to the father, if such views are offered by B, and to assess the practicability of any such orders in the light of those views.  The orders should provide for the Family Consultant to report to the court any views expressed by B.

19. Although it was also suggested that a letter from the father may be provided to B as part of this process, this is a step that should be deferred pending the assessment flowing from the meeting with B.

20. Given the concerns that arose as to the risk of the mother interfering with such a process, being concerns flowing from the attempted transition process, it is appropriate that the mother not be required to be involved in the process of B being told of the developments in the matter.  This points to the Family Consultant and the ICL attending the school for this purpose.

21. Further, to ensure that B is insulated, as far as possible, from outside pressures in meeting with the Family Consultant, the delivery of judgment in this issue should occur immediately prior to such an attendance upon the school.

22. In support of such arrangements, it will be requested of the Director-General that the Director-General’s office advise the school of these orders and request the school’s assistance in relation to the meeting with B.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       25 May 2021