Barash and Sacher

Case •

[2013] FCCA 2283

•

16 December 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARASH & SACHER [2013] FCCA 2283
Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – allegations of family violence – best interests of the children – primary considerations – family violence order in force – Family Law Watch List – Order for children’s names to be placed on the Family Law Watch List – supervised time with the children – need for time to be supervised at a contact centre.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 61DB, 67J, 67N

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss.5, 6
Cases cited:
Barash & Sacher [2013] FCCA 717
Applicant: MR BARASH
Respondent: MS SACHER
File Number: SYC 2266 of 2013
Judgment of: Judge Scarlett
Hearing date: 13 December 2013
Date of Last Submission: 13 December 2013
Delivered at: Sydney
Delivered on: 16 December 2013

REPRESENTATION

Solicitor for the Applicant: Ms Granger
Solicitors for the Applicant: Granger Godden Lawyers
Solicitor for the Respondent: Ms Harrod
Solicitors for the Respondent: Harrods & Associates
Independent Children's Lawyer: Ms Barton
Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

  1. The Respondent Mother is to have sole parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2004.

  2. The children [X] and [Y] are to live with the Mother.

  3. The children [X] and [Y] are to spend time with the Applicant Father at the Sydney Children’s Contact Service at times and on days as nominated by the Contact Service subject to availability and if possible one occasion each week.

  4. Within seven (7) days of the date of these Orders each party is to telephone the Sydney Children’s Contact Service on 9390 5366 and provide all information necessary to complete the intake procedure with the Contact Service in order for the children [X] and [Y] to spend supervised time with the Father.

  5. For the purposes of the children spending time with the Father, the Mother or a responsible adult acting on the Mother’s behalf must deliver the children to the Sydney Children’s Contact Service at the commencement of the children’s time with the Father and collect the children from the Contact Service at the conclusion of their time with the Father.

  6. The Father and the Mother are to pay an equal half share of all costs associated with supervised contact taking place at Sydney Children’s Contact Service.

  7. The Father and Mother are restrained by injunction from using any harsh or inappropriate methods, including screaming, when disciplining the children.

  8. The Father is at liberty to send the children letters, gifts and cards by sending such items care of the office of the Independent Children’s Lawyer and the Independent Children’s Lawyer is then to arrange for the letters, gifts and cards to be provided to the children.

  9. The Father is restrained by injunction from making any negative comments about the Mother or denigrating her or the children:

    (a)in the presence or hearing of the children or either of them; and

    (b)in any correspondence to the children or either of them.

  10. The Mother is restrained from denigrating or making any negative comments about the Father in the presence or hearing of the children or either of them or permitting any third person to do so.

  11. The Mother and the Father are restrained from discussing these proceedings and their marital conflict in the presence or hearing of the children.

  12. The Mother and the Father are restrained from questioning the children about any discussions they have had or are to have with the Independent Children’s Lawyer and/or with the Family Consultant.

  13. The Mother must:

    (a)notify the Father by email or text message in the event of any medical emergency or injury occurring to either of the children whilst in her care;

    (b)provide full details of any medical practitioner, health service provider or institution attended by the children or either of them; and

    (c)provide any authority and direction necessary to enable the Father to obtain all necessary information about the children from these medical practitioners, health service providers or institutions.

  14. Each of the parties must do all things necessary to register to attend for a parenting after separation program by no later than 3 February 2014 and they must:

    (a)provide written confirmation to the Independent Children’s Lawyer of their registration and date of enrolment in such program;

    (b)attend and participate in such program when the program is offered to them; and

    (c)provide written confirmation to the Independent Children’s Lawyer once they have successfully completed the program.  

  15. The Father is restrained by injunction from:

    (a)entering the Mother’s residence; or

    (b)entering or approaching within 100 metres of the children’s school during school hours without the prior written consent of the Mother and the Independent Children’s Lawyer.

  16. Each of the father MR BARASH born [in] 1967 and the mother


    MS SACHER

    born [in] 1967 and their servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children [X] (a female) born [in] 2001 and [Y] (a female) born [in] 2004 from the Commonwealth of Australia.

  17. IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the names of the children [X] (a female) born [in] 2001 and [Y] (a female) born [in] 2004 on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Family Law Watch List for a period of two (2) years from the date of this Order or until further Order of the Court.

  18. Upon the expiration of the period of two (2) years referred to in the immediately preceding Order and subject to any further order of a Court of competent jurisdiction the Australian Federal Police are to cause the removal of the names of the children [X] and [Y] from the Family Law Watch List.

  19. The Independent Children’s Lawyer is granted liberty to apply to re-list the matter on seven (7) days’ notice.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2266 of 2013

MR BARASH

Applicant

And

MS SACHER

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an Application for parenting orders by the Father of two girls, [X], aged twelve, and [Y], aged nine. The Mother considers that the children should only spend time with the Father for short periods of time, preferably under supervision.

  2. The parties have a high degree of suspicion and distrust of each other. Each one accuses the other of abusive and threatening behaviour, inappropriate and harsh discipline of the children and a wish to remove the children permanently from Australia.

  3. There is a family violence order in force against the Father on behalf of the Mother.  

Orders Sought

  1. The Father seeks the following interim orders:

    1. That the parties have equal shared parental responsibility for the children;

    2.  That the children live with the mother;

    3.  That the children spend time with the father as follows:

    a) For the first three months from the date of the Orders:

    i.   Every Wed from after school until 7pm;

    ii. Every Sun 10am to 4pm;

    b) From three months from the date of the Orders:

    i.   Every Wed from after school until before school Thursday;

    ii. Every Sun 10am to before school Monday;

    c) From six months from the date of the Orders;

    i.   Every Wed from after school until before school Thursday;

    ii. Every alternate Friday from after school to before school Monday.

    4. That for the purposes of Order 3 and unless the father is collecting and delivering the children to and from school, then the father shall collect and deliver the children to and from the mother’s residence.

    5. That the parties do all acts and things and sign all documents to cause the children to be re-enrolled to [K] School commencing Term one 2014.

    6. That the parties be restrained from using physical discipline on the children.

  2. The Independent Children’s Lawyer has prepared a Minute of Proposed Orders. The Mother’s solicitor, Ms Harrod, told the Court that her client agreed with the proposed orders.

  3. The Father’s solicitor, Ms Granger, told the Court that the Father agreed with proposed Orders 1, 6, 8, 9, 10, 11, 12, 13, 15, 16 and 17. However, the Father disagreed with proposed orders 2, 3, 4, 5 and 7. He disagreed with part of proposed Order 14, which states:

    That pending further order the father be restrained by injunction from entering or approaching within 100 metres of the mother’s residence.

  4. As his solicitor explained, the Father does not know where the Mother and children live, so it is well-nigh impossible for him to know whether he is breaching that order or not. In my view, there is some merit to that submission. If the Father does not know where the Mother lives, he cannot know when he is within 100 metres of that address. However, there is no reason for him to enter the Mother’s premises if he should happen to discover her address, so I propose to amend the order to restrain the Father from entering the Mother’s residence.

Matters in Issue

  1. The Independent Children’s Lawyer proposes, and the Mother agrees, that the Father’s time with the children should be supervised at a contact centre. The Father takes issue with the following orders proposed by the ICL:

    2. That the children spend time with the father at Sydney Children’s Contact Service at times and days as nominated by the Centre, subject to the Centre’s availability and if possible, on one occasion each week.

    3. That with(in) 7 days of the date of these orders both parties telephone the Sydney Children’s Contact Service on 9390 5366 and provide all information necessary to complete the intake procedure with the Centre for the children to spend supervised time with the father.

    4. That for the purpose of the children spending time with the father, the mother and/or her agent shall deliver the children to the Sydney Children’s Contact Service at the commencement of the children’s time with the father and shall collect the children at the conclusion of their time with the father.

    5. That the mother and father pay an equal half share of all costs associated with supervised contact place at Sydney Children’s Contact Service.

    …

    7. That the father be at liberty to send the children letters, gifts and cards by sending such items care of the office of the independent children’s lawyer and the independent children’s lawyer shall then arrange for such items to be provided to the children.

  2. There is agreement between the parties as to the other orders proposed by the Independent Children’s Lawyer. Essentially, those orders provide that:

    a)The children will live with the Mother;

    b)The parties must refrain from using harsh or inappropriate methods when disciplining the children;

    c)The Father is restrained from making negative comments about the Mother and the children;

    d)The Mother is restrained from making negative comments about the Father;

    e)The parties are restrained from discussing the proceedings with the children;

    f)The parties are restrained from questioning the children about any discussions with the ICL and the Family Consultant.

    g)The Mother must notify the Father in the event of any medical emergency or injury occurring to one of the children;

    h)The parties must register to attend a parenting after separation course;

    i)The Father is restrained by injunction from entering or approaching within 100 metres of the children’s school;

    j)The parties are restrained from removing the children from Australia and the Australian Federal Police are to be requested to place the children’s names on the Family Law Watch List in force at all points of arrival and departure from Australia; and

    k)Liberty to the ICL to re-list the matter on 7 days’ notice.

Background

  1. The Father’s solicitor has prepared a very helpful chronology, which has been of assistance in compiling this brief account of the background to the matter.

  2. The Father was born [omitted] 1967. He is now 46 years of age.

  3. The Mother was born in [in] 1967. She, too, is 46 years of age.

  4. The parties commenced living together in April 2000.

  5. There are two children of the relationship. The parties’ elder daughter [X][1] was born [in] 2001. She is now 12 years and 8 months old. The parties’ younger daughter [Y] was born [in] 2004. She is now 9 years and almost 3 months old.

    [1] The child’s name on her Birth Certificate is [X]

  6. There has been a history of disagreements between the parties. In 2009 the Mother left the family home with the children and remained away for about two and a half weeks. She obtained a provisional Apprehended Violence Order against the Father but withdrew her application on 11th December 2009.

  7. The Mother again left the family home in 2010, remaining away for a period of two weeks. This time, the children were left in the Father’s care.

  8. The children had been attending primary school at [K] School but in mid-2012 they changed schools and commenced to attend [B] School.

  9. For seven weeks over the months of September and October 2012 the Father travelled to [omitted] by himself to visit family members.

  10. On 14th March 2013 the Mother left the family home, taking the children with her. She did not inform the Father where she was going, nor did she advise him of her address. The Father still does not know where she lives.

  11. On 29th April 2013 the Father filed an Application seeking parenting orders, an order requiring the children’s names to be placed on the Watch List and a location order and a Commonwealth Information Order under the provisions of s.67J of the Family Law Act 1975 (Cth).

  12. On 1st July 2013 the Court made orders under ss.67N and 67P of the Act, requiring the Department of Human Services and Centrelink to provide to the Court information about the children and the Mother. The names of the children were placed on the Watch List (see Barash & Sacher[2]).

    [2] [2013] FCCA 717

  13. The parties and the two children attended a Child Inclusive Child Dispute Conference with a Family Consultant on 10th October 2013. No agreement was reached between the parties about the children spending time with the Father. The Family Consultant recommended that a Family Report may assist the parties and also suggested the appointment of an Independent Children’s Lawyer.

  14. On 14th October 2013 the Court ordered that the children’s interests should be independently represented by a lawyer.

Evidence and Submissions

  1. The Father relied on his affidavit of 9th December 2012. The Mother relied on her affidavit of 28th October 2013.

  2. There were a number of documents produced on subpoena tendered in evidence. They were bundles of documents from:

    a)[B] School;

    b)[K] School;

    c)Jewish Care;

    d)A photograph of the Mother holding two pistols, which appeared to have been taken some years previously; and

    e)A copy of a Final Apprehended Domestic Violence Order made by [omitted] Local Court on 12th August 2013, showing the Father as the defendant and the Mother as the protected person. The Order is in force for 12 months.

  3. Ms Granger submitted that the Father sought daytime contact with the children for short periods of time. This contact need not be supervised. The children have not had any contact with their father since March. It was submitted that the Father does not pose any unacceptable risk of harm to the children. Whilst there is an Apprehended Domestic Violence Order in force against the Father, he consented to that order in August.

  4. Ms Harrod for the Mother submitted that the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them has been rebutted. There is a final Apprehended Domestic Violence Order in force. Again, the children have disclosed instances of harsh parental discipline.

  5. Ms Harrod also referred to a letter dated 9th July 2012 from the Head of Enrolments and Communications at [K] School, a Ms L, to the parents. The letter says, in part:

    You will be aware that, in the past, there have been incidents between Mr Barash and members of our staff. You will appreciate that [K] has a duty of care and responsibility to its students and staff. In view of the past history, [K] will only consider enrolment of your daughters on the following conditions:

    ·Mr Barash does not visit the [K] campus at any time, including the school carpark.

    ·Privacy of our staff is respected at all times and staff are not to be contacted outside of the recognized channels of communication.

    ·Mr Barash is to have no communication with staff by phone, e-mail or at all. All communication pertaining to the children’s attendance at the College must be through [Mrs Sacher].

  6. The Mother’s solicitor also referred to a memorandum from Ms K, School counsellor at [K] School, referring to [X]’s concerns about:

    a)the fact that her parents argue constantly;

    b)her parents’ statements that they will probably get divorced;

    c)domestic violence issues;[3] and

    d)the child’s fear that her mother will go to live in [country omitted] and her father will go to live in [country omitted].

    [3] A concern of the Primary Coordinator at [K] School, [name omitted]

  7. It was submitted that the Father’s time with the children needs to be supervised. The Mother also relies on the statements by the Family Consultant in the Family Consultant Memorandum to Court.

  8. Ms Barton, the Independent Children’s Lawyer, submitted that supervision was required at this stage and that supervision at a contact centre appeared to be the only option. She said that no other family members were available to supervise the Father’s time with the children. She noted that the children had raised concerns about the Father when they spoke to the Family Consultant.

Parenting Applications

  1. Part VII of the Family Law Act 1975 (Cth) deals with matters relating to children. The objects of Part VII are set out in s.60B(1) of the Act, providing for children’s best interests to be met by:

    a)Ensuring that children have the benefit of both parents having a meaningful involvement in their lives;

    b)Protecting children from physical or psychological harm;

    c)Ensuring that they receive adequate and proper parenting; and

    d)Ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children;

  2. The principles underlying those objects are set out in s.60B(2) and include (except when it is or would be contrary to a child’s best interests):

    a)Children have a right to know and be cared for by both of their parents;

    b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development;

    c)Parents jointly share duties and responsibilities concerning their children’s care, welfare and development;

    d)Parents should agree about the future parenting of their children; and

    e)Children have a right to enjoy their culture.

  3. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3).

  4. Subsection 60CC(2) is of particular relevance in this case. It provides:

    The primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

  1. The primary considerations are modified by s.60CC(2A), which provides that:

    In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

  2. The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his or parents to have equal shared parental responsibility for the child.

  3. Subsection 61DA(3) provides that where the Court is making interim orders, as in the present case, the presumption of equal shared parental responsibility applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied.

  4. Where the Court does make an order providing for a child’s parents to have equal shared parental responsibility for the child, the Court is then required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make an order to that effect, it must then consider under s.65DAA(2) whether it would be both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.

  5. All of these matters have been considered where they are relevant.

Conclusions

  1. Notwithstanding that this is an application for interim orders, I am of the view that it is not a case where the presumption of equal shared parental responsibility should apply. There is a family violence order in force and the Mother does not want the Father to know where she and the children are living. The Mother has complained to the Family Consultant about threats of violence by the Father. Both children have complained to the Family Consultant about their father “screaming” at them and hitting them.

  2. There is sufficient evidence of violence that the presumption of equal shared parental responsibility does not apply. The Mother will have sole parental responsibility for the children.

  3. The best interests of the children must be the paramount consideration. Whilst it would, or should, be of benefit to the children in having a meaningful relationship with their father as well as their mother, the need to protect the children from physical or psychological harm must be given greater weight.

  4. The children’s views are an additional consideration for the Court, as provided by paragraph 60CC(3)(a). The Court has evidence of these views from the Family Consultant Memorandum.

  5. The elder child, [X], was reported by the Family consultant in this way:

    [X] presents as a quiet and reserved child. She became tearful when discussing her family, particularly her father. She recalled her father screaming at her, her sister and their mother and also “smacking” her and her sister. At this stage [X] is “scared” about the prospect of spending any time with her father, unless in the presence of her mother, as “he will get mad at us”. She seems very aware that her father’s proposal is for her and [Y] to live with him.[4]

    [4] Family Consultant Memorandum to Court 10.10.2013 page 3

  6. It should be noted that it is not the Father’s proposal in the interim for the children to live with him. He has indicated his consent to an interim order providing that the children should continue to live with their mother.

  7. The Family Consultant described the younger child, [Y], in this way:

    [Y]’s family comprises herself, [X], their mother and father as well as the family dog (she expressed concern about where the dog was and is fearful that her father might have given it away. Her father indicated that the dog is currently being cared for by friends).

    [Y] said she would “kinda like” to spend some time with her father but would not want to spend overnight periods as “I don’t want to sleep anywhere without Mummy”. (The mother said that both children are clingy and unable to sleep unless she sleeps in the same room as them).

    [Y] recalled that her father would “scream” at her, [X] and their mother and that he would hit her and [X] “on the arms and hands”. She said that had felt bad when she heard her parents fighting, “which they did a lot”, and was “scared” one of them might harm the other. She said that she had heard her father threaten to hurt her mother but did not believe he had done so.[5]

    [5] Ibid

  8. In my view, the Court should give some weight to the children’s views, bearing in mind their ages. [X] is twelve years old and [Y] is nine.

  9. The children, at least as far as one can tell from the Family Consultant Memorandum, have a close relationship with their mother but appear to be somewhat nervous of their father.

  10. It is particularly important to consider the likely effect of any changes to the children’s circumstances. The children have been living with their mother without spending any time with their father since March of this year. Resumption of contact with their father needs to be handled in a gradual way, with sensitivity. The Family Consultant recommended that:

    The children will benefit from spending time with the father in a contained and safe environment such as a contact centre or with a private supervisor.[6]

    [6] Family Consultant Memorandum  to Court 10.10.2013 page 4

  11. These two girls, aged 12 and 9 years, reside with their mother. They have been brought up in Australia and have a mixed [omitted] and [omitted] heritage. They should be able to enjoy the benefits of both of their parents’ cultures in an environment that is safe and comfortable for them.

  12. There is evidence of family violence, in accordance with the definition in s.4AB(1) of the Act:

    For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

  13. There is a family violence order in force. On 12th August 2013 the Local Court at [omitted] made a final order against the Father which remains in force for 12 months, naming the Mother as the protected person. The standard orders are in force:

    a)The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person or a person with whom the protected person has a domestic relationship.

    b)The defendant must not engage in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship.

    c)The defendant must not stalk the protected person or a person with whom the protected person has a domestic relationship.

  14. Whilst the children are not specifically named as protected persons, they are persons with whom the Mother has a domestic relationship (see Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

  15. In my view, the best interests of the children support the making of orders that the Father’s time with the children should be supervised at this stage until the children are more comfortable in their father’s presence. As there are no extended family members who are available to supervise, according to the Independent Children’s Lawyer, this means that the Father’s time with the children will need to be at a Contact Centre.

  16. I am of the view that the Father should be able to send letters, cards and gifts to the children, which will need to be done through the Independent Children’s Lawyer. This is one way that the children can keep in contact with the Father and be reassured that he cares for them.

  17. I also consider that, at this stage, an order should be made placing the children’s names on the Family Law Watch List maintained by the Australian Federal Police, so that they may not be removed from Australia. This order can be reviewed in due course.

  18. All of the orders to be made are interim orders which can be reviewed at a final hearing or varied by consent at any time. The allocation of parental responsibility must be considered afresh at a final hearing, as s. 61DB of the Family Law Act 1975 makes clear.

  19. This is clearly a case where the Court will be assisted by a Family Report.      

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  8 January 2014


Key Legal Topics

Areas of Law

  • Family Law

Legal Concepts

  • Injunction

  • Costs

  • Procedural Fairness

  • Remedies

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BARASH & SACHER [2013] FCCA 717