Badri & Faizin (No 2)
[2022] FedCFamC2F 736
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Badri & Faizin (No 2) [2022] FedCFamC2F 736
File number(s): MLC 4204 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 7 March 2022 Catchwords: FAMILY LAW – interim hearing – escalating family conflict – hearing likely to be 5 days – transfer to division 1 – order for family therapy. Legislation: Family Law Act 1975 (Cth). Division: Division 2 Family Law Number of paragraphs: 31 Date of hearing: 7 March 2022 Place: Melbourne Counsel for the Applicant: Mr Thompson Solicitor for the Applicant: Johnston Family Lawyers Counsel for the Respondent: Mr Stamopoulos Solicitor for the Respondent: Bentleys Barristers And Solicitors Solicitor for the Independent Children's Lawyer: Mr Lampe ORDERS
MLC 4204 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BADRI
Applicant
AND: MR FAIZIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
7 MARCH 2022
THE COURT ORDERS THAT:
Family Therapy
1.The parents do all acts and things to cause the family to attend family therapy with Mr J (or if he is not available such other therapist as agreed in writing) as directed by the nominated therapist for reportable family therapy, noting that a tentative booking with Mr J has been made.
2.The family therapy be at equal expense between the parents.
Judicial Settlement Conference
3.The matter be listed for a Judicial Settlement Conference before Senior Judicial Registrar Hoult on 6 July 2022 at 10:00am to address both parenting and property matters.
4.The Mother file an Outline of Case 14 days before 6 July 2022 (22 June 2022) by 4:00pm.
5.The Father file an Outline of Case 7 days before 6 July 2022 (29 June 2022) by 4:00pm.
Transfer to Division 1
6.This matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia, on a date to be advised, noting that the following criteria are identified:
(a)The final hearing will likely significantly exceed the number of days which this Court and his Honour’s docket can accommodate (and the parties estimate 4-5 days).
(b)The matter may be able to be listed earlier in Division 1 than it would if it remained in Division 2.
(c)The factual disputes including allegations of parental alienation and/or inappropriate parenting make the determination of the matter complex.
7.The matter is referred to the National Assessment Team for consideration of transfer to Division 1 AND IT IS NOTED THAT the parties will be contacted directly by the National Assessment Team confirming the transfer/relisting of proceedings and the next listing date.
8.Existing trial directions are vacated.
9.The parties’ costs this day be reserved.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Badri & Faizin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of an oral judgment delivered immediately.
I have to decide whether on the Mother’s application there should be an order for another attempt at family therapy, this time with a report writer, Mr J, who it is known to the Court and has not infrequently been called upon to undertake that task. It is requested that the family therapy on this occasion be reportable. In addition, the Mother seeks that the new family report writer effectively supplant the previous family report writer, Mr K.
On 28 May 2021, a Senior Judicial Registrar ordered that the family attend family therapy and there were seven sessions of family therapy. It is common ground that that therapy was entirely unsuccessful. The Mother says that it is the Father’s attitude to her relationship with the children that has undermined that therapy, and the Father’s case is, in substance, that it is the Mother’s lack of appreciation of her own role in the children’s distancing themselves from her that is the problem.
Financial circumstances
The Mother works part time and earns approximately $500 per week. She pays the mortgage on the former matrimonial home which is a substantial expense. She says that by leaning on family and friends she will be able to come up with the money to pay half the cost of the reportable counselling and the next family report. The mortgage payments that the Mother has the responsibility of are $453 per week or thereabouts.
The Father says that his income from his full-time job is about $900 per week, and that he gets an additional $300 per week from the Australian Government as part of Family Tax Benefit A and B, and that he, further, makes about $200 per week as a sole trader. The Mother alleges that is as a transport worker. Hence, the Father would say he has about $1400 per week to spend, and he has to spend a substantial amount of that towards rent, about $404. The family therapy that is sought will cost $400 per hour.
Background
The brief background is that the parties commenced cohabitation at marriage in 2001, and that following that, the Mother moved from Country L to Australia. In 2003, the parties’ eldest child was born (‘child 1’), followed by three more children in 2004 (‘child 2’), 2008 (‘child 3’) and 2011 (‘child 4’) (collectively, ‘the children’). The parties separated on or about 11 January 2021 following a dispute about the children visiting a relative.
I have a suspicion but not a finding that, whether in culturally appropriate circumstances or not, too many relatives on both sides have had a hand in attempting to help but have only made things worse. Following that visit of the children to what should have been a nice time with an aunty, there was a dispute between the parties, and they separated. The Mother obtained an intervention order for the protection of herself and at least three of the children and that excluded the Father from the home.
The intervention order of 11 January 2021 was obtained for the Mother on the application of the police. At this time, the younger two children remained living with the Mother. The Father made an application for an intervention order on 12 April 2021, and that application was made and heard ex parte and the intervention order made. The Father’s application for an intervention order was not granted on 28 April 2021. From that time, child 3 has lived with the Father and spent little time with the Mother.
The Mother alleges that she was persuaded by the Father’s relatives to withdraw or revoke her intervention order under the belief that each of the parents would sign a mutual undertaking on or about 18 April 2021 that the children would live four nights with the Mother and three nights with the Father. The Mother alleges that she suspected she was being set up, however she did revoke her intervention order. According to her, the Father did not show up on the day he was meant to and never signed an undertaking. The Mother feels that she was, to use a colloquial Australian term, conned into that position. The net result was that a couple of days after that, the Father filed in this Court. The text message that the Mother refers to was not from the Father but from the Father’s cousin. Getting to the bottom of that might take some time at a final hearing.
The matter was before the Court on 21 April 2021 as a matter of urgency, and orders were made for the family to attend to obtain a family report. Originally this was to be Ms M, who became unavailable, and was ultimately Mr K. The Mother alleges that she did not learn of that change until she attended for the interview, only to find that it was a man not a woman. In any event, Mr K interviewed the family on 14 May 2021 and with some significant efficiency, that report was available when the matter returned to Court on 28 May 2021. That report is likely to have very significantly informed the orders that were made that day. That report includes the following:
25 Ms. Badri’s Defensive Responding score is 24. Ms Badri appears to be responding in a defensive manner, attempting to look good, and denying any sources of stress. Occasionally, exceptionally competent parents who are rearing normal children in non-stressful family contexts will earn a score in this range. With this response style in mind, the overall stress Ms Badri reportedly is experiencing is in the low range. If parenting difficulties exist, they are likely to be isolated and manageable. In some instances, extremely low scores are obtained by parents who are detached from their children. In these cases, the potential exists for neglect and a high frequency of childhood accidents. Ms Badri is either a very competent parent who does not experience much parenting stress, or she may be detached and uninvolved in her parenting responsibilities, and potentially ‘faking good’.
…
30 With respect to positive impression management, Ms Badri’s pattern of responses suggests that she tends to portray herself as being exceptionally free of common shortcomings to which most individuals will admit. As a result, she will be quite reluctant to admit to minor faults, perhaps not even willing to admit these faults to herself. She may be blindly uncritical of her own behaviour and insensitive to negative consequences associated with her behaviour, tending to minimize the negative impact that her behaviour has on others and on herself. Given the high level of defensiveness, the clinical scale profile potentially reflects considerable distortion and minimization of difficulties in several areas. Regardless of the cause, the test results are unlikely to be a valid reflection of Ms Badri’s experience. The following interpretation is provided only as an indication of Ms Badri; self-description. Ms Badri’s self-report regarding her personality and mental health functioning can not be considered at face value.
31 With the aforementioned response style in mind, the PAI clinical profile reveals no elevations that should be considered to indicate the presence of clinical psychopathology. The PAI clinical profile is entirely within normal limits. There are no indications of significant psychopathology in the areas that are tapped by the individual clinical scales. Ms Badri, however, indicates a certain amount of turmoil in important life areas. Despite the level of defensiveness noted above, there are some areas where she described problems of greater intensity than is typical of defensive respondents. These areas include: suspiciousness; stress in the environment; poor sense of identity; and distrust.
…
33 Ms Badri’s PDS profile indicates high IM and SDE subscales. Individuals scoring high on both subscales tend to be restrained and generally well-socialized but, when they do have problems, they lack the insight to deal with them and appear rigid. They may also appear sanctimonious about others' problems. In sum, they have a trait-like style towards self-enhancement as well as a tendency to be influenced by situational demands leading them to respond in a socially acceptable manner. Situational demands may have had the most important effect on the responses. Overall, Ms Badri’s profile reflects overly positive self-presentation. There is a very high likelihood of invalid responses.
…
41.Interactions between the mother and the children overall were polite and satisfactory, though limitations to their relationships were observed. There was a lack of attachment between the mother and the children. The evaluation raised concerns about the extent to which there are sound and solid relationships between the children and their mother.
…
•[Child 2] reported that she is in year 11. She reported attending a public school, and liking her current school more than her previous private school. She reported that her public school was more inclusive and accepting of students of all abilities and interests. She denied comprehension, social or behavioural problems at school. She reported liking to chat with her friends online and at school. She denied any extracurricular activities.
…
•[Child 2] reported that she would like to re-engage her mother in the future, but needed time to reflect on recent events. She also reported that she wished to remain living with her father and visit with her mother, given her mother’s difficulties with anger and aggression. [Child 2] stated that she felt her mother may also may need psychological help. She reported that her mother had attempted suicide previously. She reported that she heard her mother “gagging” after taking pills
...
•[Child 3] reported that he was living with his father because his mother had hit him. He reported that he was scared of his mother when she was angry. [Child 3] disclosed that his mother has hit him previously when she was angry. [Child 3] reported that his parents had separated following an argument over his sisters sleeping over at their aunt’s home. He reported that he wasn’t home at the time of the argument and that his sisters had informed him of what happened. [Child 3] reported that his mother and father hadn’t been talking to each other much in the period prior to the incident.
…
50 [Child 4] is aged 9 years. He was interviewed on 14 May, 2021 over approximately 45 minutes.
…
52 [Child 4] described typical age-based concerns and interests. He did not present as overly informed about the assessment. [Child 4] reported that he was told he was coming to speak to a psychologist. He couldn’t describe what a psychologist was, other than to say “someone you talk to”. There was no evidence of coaching in this context. A summary of the evaluation follows.
…
•[Child 4] said that he wants to rotate between his respective parents’ homes each day. [Child 4’s] report was unsophisticated in the context of his age and level of development, but seemed to indicate that he wished to spend equal time with each parent. [Child 4’s] overall disclosures did not indicate abuse or neglect. [Child 4] appears to be comfortable in the care of either parent.
…
78 With respect to positive impression management, [the Father’s] pattern of responses suggests that he tends to portray himself as being relatively free of common shortcomings to which most individuals will admit, and he appears somewhat reluctant to recognize minor faults in himself. Given this apparent tendency to repress undesirable characteristics, the interpretive hypotheses in this report should be reviewed with caution. Although there is no evidence to suggest an effort to intentionally distort the profile, the results may underrepresent the extent and degree of any significant findings in certain areas due to [the Father’s] tendency to avoid negative or unpleasant aspects of himself.
79 The PAI clinical profile is entirely within normal limits. There are no indications of significant psychopathology in the areas that are tapped by the individual clinical scales. Despite the level of defensiveness noted above, there are some areas where [the Father] described problems of greater intensity than is typical of defensive respondents. These includes stress in the environment.
…
81 [The Father’s] PDS profile indicates a markedly elevated IM subscale and a low SDE subscale. This profile is usually found in individuals who are aware of their shortcomings, but want to appear publicly acceptable. In this case, the IM scale score is elevated. Test results are likely to be overly positive and probably not valid. Implicit or explicit demands of the situation may have promoted socially desirable responding.
…
PARENTAL RISK
100 The mother was assessed with a greater level of parental risk (Moderate-High) primarily given allegations that she has been physically abusive. [The Mother] presents as emotionally reactive and impulsive. Interpersonally she is described a critical, and fluctuating between being volatile or withdrawn.
101 Both parents, however, have been unable to establish co-parenting, in a fashion that has not been helpful to the children. The father was assessed as low risk, primarily given a level of relationship stability and coopetition with the children. The parents lack functional communication.
102 As stated, the mother is alleged to have perpetrated physical and verbal abuse against the children. She possibly has limited frustration tolerance. It appears that she also endorses physical discipline at some level. The elder children have also described their mother as demonstrating a lower level of meaningful engagement and support than their father. The elder children were observed to be quite disengaged from the mother during interactions. The mother’s psychological testing has validity problems, namely significant positive impression management. This presents as consistent with difficulties reconciling her problematic family relationships.
103 [The Father] has not had to face the upheaval of relocating and adjusting to a new country later in life. He spent a large portion of his childhood and adolescence in Australia and is readily available subsequently to meet the needs of an adolescent and emerging adolescent children, who likewise have grown up in Australia. [The Father’s] relationship with the children subsequently has been able to evolve without added pressures. It is plausible, however, that he has not remained attuned to the potentially evolving emotions, needs and attitudes of [the Mother], who views his demeanour as controlling and undermining of her. The father was unable to identify the mother as offering any parental benefits currently. He appeared somewhat content with his positive relationship with the children (which indeed was observed during interaction). He did not identify any areas of growth personally. The father presented as rigid in his opinions that the mother is problematic. His approach to parenting the children subsequently, is likely to be somewhat one sided, even if inadvertent. [The Father’s] PAI outcomes indicated impacts associated with stress in his environment. Similar to [the Mother], [the Father’s] clinical profile indicated positive impression management, though not at a level that would necessarily invalidate outcomes. This is not an uncommon response pattern where child custody matters are being evaluated.
The day following those orders, child 4 was to go into the Father’s care at the agreed McDonald’s restaurant. The Father alleges, and the Mother denies, that she turned up to the changeover supported by a large contingent of supporters who were aggressively and intimidatory in their behaviour. The Mother alleges that the Father turned up with a large cohort of supporters who were intimidatory and aggressive in their behaviour, including the other children. The end result was that child 4 went into the McDonald’s restaurant, spent a very long period there, the police arrived, and child 4 would not leave the McDonald’s. There was a dispute between the parents about who was supporting who and who was aggressive. It was an appalling scene. I am unable to make any findings as to the behaviour of each of the individual parents on that day. It would have been highly stressing for all of the children, and particularly for child 4.
Upon a review of the senior judicial registrar’s orders of 28 May 2021, made in July 2021, I varied those orders to provide for overnight time but on a very limited basis. As I understand it, by the time that I dealt with the matter in July 2021, the seven sessions of the family therapy had been and gone without any improvement in the family relations or dynamics. Lest there be any doubt as to whether the family dynamics have improved, subsequent events will demonstrate that they have not.
It is common ground that child 3 does not attend regularly and for the full time of the court ordered time that he’s meant to attend with child 4. One of those occasions when he did attend was 11 November 2021. On that occasion, the Mother took child 3 and child 4 to the police station. The only evidence I have of that is the Father’s account at paragraph 36(a) of his affidavit filed 1 May 2022:
(a) On 11 November 2021, I say as follows:
(i) During [the Mother’s] time with [child 4] and [child 3], [the Mother] took them to [suburb 1] police station in [suburb 2] to speak to the [suburb 1] Sex Offence and Child Abuse Investigation Unit at around 4pm.
(ii) Police officers asked [child 3] to go to the police station for an interview. [child 3]refused.
(iii) [The Mother] drove [child 3] to Location N in [suburb 3] while [child 4] was left alone at the police station to be interviewed.
(iv) After returning home from the police station, [child 3] refused to enter the home and ran back to my house at approximately 6:06pm.
(v) [Child 3] told me words to the effect of, “I will never go back to mum.”
(vi) On 12 November 2021, I instructed my solicitors to write to the ICL about the event, copying in [the Mother’s] solicitors.
(vii) I am also aware that [the Mother] took the children to be interviewed by the police in relation to a superficial scratch mark on [child 4’s] face on 19 October 2021 caused by playing with me. This matter was already addressed in a letter from my solicitors to all parties on 27 October 2021.
(viii) [Child 4] told me that he felt like he was “forced into a corner” and had to tell the police officers repeatedly that “my dad did not strike me.”
(ix) Annexed here to and marked with the letters “-9” is a true copy of letters from my solicitors dated 12 November 2021 and 27 October 2021.
Upon pressing the Mother’s counsel for instructions about that this day, I was told that the police had requested that she bring the children in that day. That was a matter that was not covered in the Mother’s 27 January 2022 affidavit or the affidavit filed in March 2022 in support of her current application. It should have been.
The next incident was on 1 February 2022, when the Mother attended the school to collect child 3 and child 4. There is competing versions of events. On the Mother’s account, child 3 fled her care and got into the motor car of another relative of the Father’s and refused to get out. The Mother suggests that she did speak loudly because child 3 was wearing earplugs or headphones and the windows were wound up. If the Mother’s account is correct, child 3’s behaviour was appalling to his mother in a public place. The Father’s account of events is based upon a statutory declaration and what his relatives told him about those events. On that account, the Mother, in her behaviour, was dysregulated, intimidatory and threatened to break the windows with rocks. The Mother denies those allegations. Hence, on the Father’s account, not only is child 3’s behaviour appalling and rude and discourteous to his mother, but the Mother’s behaviour was entirely overreactive. Neither party mentions any encouragement by the person (there to pick up another relative) in encouraging child 3 to behave.
The long and the short of it is that child 3 is not currently attending court ordered time as he should be. Further, the long and the short of it is that the Mother’s relationship with child 1 or child 2 has not improved. The Father’s affidavit filed in opposition to this application on 1 March 2022 at paragraph 12 says:
[The Mother’s] violent and erratic behaviour is escalating and is a danger to the children.
The Father has also filed an amended financial application seeking different final and interim orders. That application was only filed on 1 March 2022. The Father’s position is no longer that the former matrimonial home where the wife resides is sold, but that that property be transferred to him and that he refinance the mortgage and make a payment to the Mother that he asserts is a 65/35 division in his favour. The Father’s solicitor acknowledged that that application can only properly be heard at a final hearing.
Transfer to Division 1
I had, on at least one occasion previously, acquiesced in the parties estimate this was a three-day matter. As I read the material recently filed in preparation for this morning’s hearing, I came to the view that it was unlikely to be a three-day hearing. I had previously, when my circumspection was growing, requested the parties to prepare a trial plan. And that trial plan is Exhibit A of 7 March 2022. The Mother’s counsel suggests that with efficient management and discipline, the matter could be contained to three days. The three-day estimate was not a guarantee.
When I pressed the Father’s solicitor as to how realistic a three-day hearing was, he said that whilst he had participated in that draft trial plan, he was pessimistic as to whether the matter could be contained within three days. The Independent Children’s Lawyer (‘ICL’) disagreed with the lawyers for the parents that the three-day estimate was realistic at all. I am concerned that the matter is at least a five-day hearing, whether or not the Mother’s application in regard to a therapist is realistic.
In the circumstances of the very difficult financial circumstances of this family, one option that would remain open for final hearing is that the family undertake a court family report. No party has sought that from me this day, but that option remains open.
I previously fixed the matter for final hearing at the next available date in my docket, which was July 2023. Given the increasing, or at least not decreasing, conflict in this family, I am very concerned that the final hearing waits until July of 2023. I cannot guarantee the parties this, but I expect that the matter is likely to be able to be accommodated sooner in Division 1.
I intend to transfer the one matter to Division 1 of this Court for two reasons. Firstly, the likely hearing time significantly exceeds that which this Court and my docket can manage. The practice of this Court is that matters as long as three days can be accommodated, but not longer. That restriction comes from the consequence of the docket system and there being other cases listed all around this case. The second reason is that I hope that the matter may well be able to be heard sooner than when it would be heard in my Court.
If I were to hear this matter for more than three days, it would not simply be rolled over to the next day, but would have to be adjourned part-heard heard to whenever I would have found time to hear the matter. This may end up in various available chunks of time over several months. This would be unsatisfactory from the parties’ point of view and from mine.
Financial and other matters
I note that in this case there are significant school fees paid by the parties. The Mother paid what she says was her half of the school fees in early 2021 and that the outstanding school fees relate to the Father’s non-payment. That begs the question how the 2022 school fees are to be paid. On one view, private school fees are a luxury that this family can’t afford.
The ICL has raised with me that to not undertake another attempt at family therapy at this problem runs a significant risk that the significant and escalating problems will become firmly entrenched without an intervention, such as further therapy. However, the ICL points out the practical reality of this very significant cost for this family.
I also note that the equity in the former matrimonial home might be around $300,000. I note that can be described as a small pool or it can be seen as a very significant achievement, by a family recently migrating to this country, being able to amass that amount of equity.
I also note how serious and how tragic the disintegration of relationships is within this family. These are circumstances where I simply cannot find who was responsible for that, whether it is one or both parents and/or contributed to by the children.
Balancing all of those matters, I have determined that there should be an attempt at reportable family therapy and that the parents should pay one half of that therapy each. I will not order a report of that reportable family therapy. It will continue as directed by the therapist.
In the circumstances where I am transferring that to another court, there will be a directions hearing in due course. That court can determine whether the inevitable updated family report should be done by Mr K, who saw the family back in May 2021, whether it should be some other person and/or whether it should be an internal report at court and taxpayer expense.
In addition to the issue of the reportable family therapy, the Mother seeks a judicial settlement conference before a Senior Judicial Registrar, who it is well known has a remarkable success rate in assisting families reach agreement. The ICL presses that I should make such an order and that it should be embraced by both parents. The Father’s position is that he is burdened by the continuing expense and what he sees as unsuccessful attempts to resolve the matter. The parties have already been to a conciliation conference. At that time, the Father’s application was for the home to be sold. The matter did not settle. I am persuaded that I should order a judicial settlement conference. It will be on 6 July 2022 at 10 am before a Senior Judicial Registrar.
Hence, the orders I will make will be as follows. The parents do all acts and things necessary to cause the family to attend as directed for family therapy before Mr J as soon as practical. And the Court notes that a tentative booking has been made for 11.00am on 22 March 2021.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 7 June 2022
0
0
0