Cedric and Krylenko

[2011] FamCA 332

FAMILY COURT OF AUSTRALIA

CEDRIC & KRYLENKO [2011] FamCA 332

FAMILY LAW – CHILDREN – Best interests

APPLICANT: Ms Cedric

RESPONDENT: Mr Krylenko

INDEPENDENT CHILDREN’S LAWYER: Ms Davitt

FILE NUMBER: PAC 4340 of 2007

DATE DELIVERED: 25 March 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 14 March 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Antoinette Campbell Legal Solutions

SOLICITOR FOR THE RESPONDENT: No appearance of or on behalf of Mr Krylenko

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That the consent orders made on 15 October 2007 in the Federal Magistrates Court be and are hereby discharged.

2. That Ms Cedric (“the mother”) of the child J born … September 2006 (“the child”) have the long term sole parental responsibility for all decisions with respect to the child including the child’s education, health issues, religious and cultural upbringing, care, welfare and development.

3. That the mother have sole parental responsibility for the day-to-day care, welfare and development of the child J.

4. That the child lives with the mother.

5. Pursuant to section 68B of the Family Law Act 1975 (Cth), the father is restrained from:

   i.living with, spending time with or communicating directly with the child

   ii.directly or indirectly approaching and/or communicating directly with the mother, other than through her legal advisor, (including but not limited) in person, by telephone, email, SMS, facsimile and/or letter

   iii.going within 500 metres of any home or place where the mother or the child are or generally living or staying

   iv.going within 500 metres of any school, including but not limited to day care facilities, where the child attends, visits or is enrolled

   v.going within 500 metres of any place of employment where the mother may be working

   vi.going within 500 metres of any other place where the mother and/or the child may be present.

6. The father be at liberty to send letters, presents, cards, photos to J care of the maternal grandparents.  For this purpose the address for sending such items will be … S Street, Town 1.

7. The father be restrained from contacting the mother in any format other than by letter addressed to the mother care of the paternal grandmother’s address.

8. The mother will within 2 hours or as soon as practicable advise the father of any serious medical injury or illness suffered by J which required medical intervention and treatment by emailing him and advising him of such event.

It is noted that publication of this judgment under the pseudonym Cedric & Krylenko is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 4340 of 2007

Ms Cedric

Applicant

And

Mr Krylenko

Respondent

REASONS FOR JUDGMENT

the proceedings

1. These proceedings concern a little girl, J, who was born in September 2006 and is now 4 years old.  Her parents are Ms Cedric and Mr Krylenko.

2. The parties lived together in a de facto relationship between February 2004 and August 2006.  The mother was only 16 years old when she began to live with the father.

3. On 15 October 2007 the Federal Magistrates Court made orders by consent, which provided that J live with the mother and spend time with the father in a gradually increasing arrangement.  This time was to take place in a contact centre for six months.  By agreement between the parties, J’s time with the father was instead supervised by her grandparents. 

4. On 11 June 2009 the mother filed an application, seeking to discharge all orders which provided for J to spend time with the father.  According to her affidavit sworn on 2 June 2009, J has only ever spent supervised time with the father. 

5. In the same affidavit the mother set out in detail a very disturbing history of violence, verbal abuse and threats of harm which the father directed at her during the relationship and since separation.  Of course this evidence was untested but there was a wealth of independent material which suggested that the father is a very volatile, overbearing and intimidating character.

6. In May 2009 a final apprehended violence order was made against the father for the protection of the mother.  In her affidavit the mother deposed that “there have been several AVO’s issued since the birth of [J]”.

7. On 17 November 2009 the parties attended a meeting with a Family Consultant within the confines of the Child Responsive Program.  The Family Consultant reported:

   “[The father’s] behaviour was volatile and angry on the day of the interviews when a decision was taken that it would not be appropriate to reintroduce him to [J] in the context of the Child Responsive Program.”

8. In March 2010 the parties and J were interviewed and assessed by the single expert, Dr R.  In her report dated 30 April 2010 Dr R stated:

   “[The father] presented as an insecure, unhappy 28 year old who has failed to develop mature coping skills to deal with life’s frustrations (which includes people not always doing what one wants).  Rather, he is emotionally labile; feels persecuted, easily threatened and judged; has a victim mentality (tricked into fatherhood) and believes he is entitled to better treatment.  He has the defensive structure associated with the DSM cluster B (borderline, narcissistic) personality disorders and displays many of these maladaptive personality traits. 

   [The father] has minimal insight into the toxic effect he has had on [the mother] and what he has exposed his daughter to.  While he clearly cares for his children, he unfortunately loses child focus and I believe he has been out of control at time around them when angry, becoming unsafe eg his aggression, his driving, his burns accident (fatherhood requires him to look after himself as well as the children)”…

9. On 9 March 2011 the father filed a Notice of Discontinuance in respect of his Response of 18 November 2009.  He had sought the following orders:

   “That my daughter spends time with me as follows:

   a)         on a regular basis eg every second weekend from 6pm on Fridays till 6pm on Sundays

   b)        that [Contact Centre 1] in [Town 2] be used for all exchanges.  That the cost of the service be shared equally by both parties.

   c)         That [the mother], at no time under no circumstances is to make direct contact with me or visit my house or place of work

   d)        Half of school holidays.  First half in years ending with an even number and second half in years ending with an odd number commencing when [J] starts school

   e)         That [the mother], at no time under no circumstances is to attempt to make contact with [L] or any of her family.

   That I spend time with my daughter, unsupervised on a regular basis.

10. There was no appearance of or on behalf of the father when the proceedings were listed before me as a Less Adversarial Trial First Day event on 14 March 2011.  On the basis of emails handed up that day by the mother’s solicitor and the Independent Children’s Lawyer (‘the ICL”), I am satisfied that the father was on notice of that listing and elected not to participate in the first day of the trial.

11. On 14 March 2011 the mother appeared with her solicitor and the ICL, Ms Susan Davitt, was also present.  The mother’s solicitor submitted a Minute of Orders Sought, which included a provision that J spend time with the father at a contact centre.  The ICL opposed any face-to-face time at all. 

12. I was asked by the mother and the ICL to read quite a substantial volume of material, so I adjourned the proceedings for hearing on 18 March 2011.  Ultimately the mother and the ICL agreed that I should make orders as sought by Ms Davitt.  Having read the material identified, I was satisfied that J’s best interests required that I make no order for face-to-face time.  I indicated that I would provide written reasons for my decision and I now proceed to do so.

13. I have referred to the Family Consultant’s description of the father’s behaviour in November 2009.  I have further referred to Dr R’s assessment of his personality and psychological state in March 2010. 

14. Dr R reported on the father’s attitude to spending time with J at a contact centre.  She stated:

    “He acknowledged his behaviour would have caused concerns because he was ‘fed up with the system…a whole system created by women for women’ and the contact centre staff ‘treat me like shit, judged me when I walked in’.  He is ‘not going to make friends with people abusing my child and stealing my money’ and opined that if he was ‘that bad, would be in gaol…not a criminal’.”

15. The notes of the Contact Centre 2 refer to a series of telephone calls from the father on 12 August 2009.  He rang the centre nine times between 9:00am and 9:36am and verbally abused staff on each occasion.  For example, at 9:17am he rang the centre and asked to speak to a member of staff named “[Ms B]”.  The notes state:  “when told that she was busy and would ring him back he said ‘I have the whole day to ring and harass her now.  She can fucking ring me back.  You want to play with my life – you have picked the wrong person.  You are probably writing everything.  At the end of the day I don’t give a fuck.  You are screwing with my life…”.

16. Documents produced on subpoena by Contact Centre 3 paint a similar picture of the father’s dealings with staff members.  For example, on 1 March 2010 the father telephoned the centre and informed a staff member that supervised visits are “a major headache” for him.  The notes report:  “He said that he hasn’t done anything to deserve supervised visits.  I explained to [the father] that our service did not make the decision for him to have supervised visits, therefore, he should not be directing his anger towards us.  [The father] did not appear to hear what I said”.    The notes indicate that the father raised his voice and that he had made threats to workers on duty at the centre on the previous weekend.

17. It thus seemed to me that past attempts for J to spend time with the father in a contact centre had been unsuccessful.  I had real doubts as to the utility of making a further order for such an arrangement.

18. It was a matter of great concern to me that the mother’s solicitor informed me that she sought this order essentially out of fear of the father.  I was informed that she lives in the small town of Town 1 and fears that he will simply approach her and/or J at will.  It was indicated that her reasoning was that the father may stay away from her if he knows that he can see J at a contact centre.

19. I doubt that the father would be capable of or willing to act in such a contained and reasonable manner.  Further, I doubt that the staff of any contact centre would make its facilities available to a person with the father’s history of offensive and threatening behaviour toward their colleagues.

20. I indicated that I was not persuaded that it was necessary for me to make any order for J to spend time with the father.  This position was as adopted by the ICL, who agreed with me that it was incumbent upon the father to make an application for an order to spend time with J.

21. The material before me, while obviously untested, persuaded me that it is not in J’s best interests for her to spend time in a contact centre with the father at this point.  It is open to him to make a proper application at any time.  Accordingly, I make orders in accordance with the proposal of the ICL.  As indicated above, the mother ultimately consented to orders in these terms.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 25 March 2011.

Associate:     

Date:              25 March 2011