FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fukuzawa & Akhmetov [2024] FedCFamC2F 1709
File number(s): PAC 5802 of 2021 Judgment of: JUDGE BECKHOUSE Date of judgment: 18 December 2024 Catchwords: FAMILY LAW – CHILDREN – Children in primary care of mother – Unacceptable risk – Children exposed to volatile parental conflict – Where father holds fixed and negative view of the mother – Where the father has invited the frequent involvement of other agencies in the mother and children's lives to gain advantage – Where the father's unpredictable and sometimes inappropriate behaviour has exposed the children to harm – Children now experiencing psychological difficulties stemming from their exposure to the conflict – Where the father lacks insight into impact of his behaviour – Orders made for sole parental responsibility – Children to live with the mother – No communication between the father and the children – Indefinite supervised time ordered, where no time order would impact on attachment of children to father.
FAMILY LAW – PRACTICE AND PROCEDURE – Where mother seeks harmful proceedings order pursuant to s 102QAC(1) – Substantial litigation history – Psychological harm as a result of proceedings – Harmful proceedings order made.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(3), 65DAC, 68B, 68LA(5), 102NA, 102QAC(1), 102QAC(2), 102QAC(3) Cases cited: Deiter & Deiter [2011] FamCAFC 82
Isles & Nelissen (2022) FLC 94-092
Lloyd and Lloyd and Child Representative (2000) FLC 93-045
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
R & R: Children’s Wishes (2000) FLC 93-000
Waterford & Waterford [2013] FamCA 33
Division: Division 2 Family Law Number of paragraphs: 294 Date of hearing: 15, 16, 17 and 18 April 2024, 8 and 9 July 2024 Place: Sydney For the Applicant: Self-Represented Litigant Counsel for the Respondent: Ms Bromberger Solicitor for the Respondent: Norris Somers Maait Lawyers Counsel for the Independent Children's Lawyer: Ms Conte-Mills Solicitor for the Independent Children's Lawyer: Makdo Family Lawyers & Associates ORDERS
PAC 5802 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FUKUZAWA
Applicant
AND: MS AKHMETOV
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
18 DECEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
Parental responsibility
2.The Mother shall have sole parental responsibility for the children namely X born in 2010, Y born in 2011, Z born in 2013, and W born in 2015 (hereinafter referred to as "the children") in relation to decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth).
3.The Mother shall solely make decisions as to the children’s day-to-day care, welfare and development during periods when living with her.
Live with
4.The children shall live with the Mother.
Spend time with
5.Commencing not less than two months from the date of these orders, during each NSW school holiday period Y, Z and W shall spend time with their Father on…
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CaseChat Overview and Summary
The legal issues revolved around the assessment of the parents' capabilities to provide a safe and nurturing environment for the children, as well as the necessity of imposing restrictions to mitigate the risks associated with the father's behaviour. The court had to consider the children's psychological needs, the potential for harm from ongoing conflict, and the appropriateness of supervised contact with the father.
The court concluded that the children's best interests would be served by awarding sole parental responsibility to the mother, with the children living primarily with her. Given the father's history of volatile and inappropriate behaviour, and his lack of insight into the impact of his actions on the children, the court determined that direct contact between the father and the children would be too harmful. Instead, the court ordered supervised visits during school holidays, with the father required to nominate a professional contact service to facilitate these interactions. Additionally, the court imposed various restraints on both parents, including restrictions on negative communications and unfounded reports to child welfare agencies, to protect the children from further harm. The court also made a harmful proceedings order against the father, recognising the psychological harm caused by the prolonged litigation.
The court's orders reflect a careful balancing of the children's need for stability and protection against the father's behaviour, while also attempting to maintain a connection between the father and the children in a controlled manner.
Orders
Orders of the court
PAC 5802 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR FUKUZAWA
Applicant
AND:
MS AKHMETOV
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
18 DECEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. All previous parenting orders are hereby discharged.
Parental responsibility
2. The Mother shall have sole parental responsibility for the children namely X born in 2010, Y born in 2011, Z born in 2013, and W born in 2015 (hereinafter referred to as "the children") in relation to decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth).
3. The Mother shall solely make decisions as to the children’s day-to-day care, welfare and development during periods when living with her.
Live with
4. The children shall live with the Mother.
Spend time with
5. Commencing not less than two months from the date of these orders, during each NSW school holiday period Y, Z and W shall spend time with their Father on four (4) occasions each year for a duration of up to six (6) hours each visit, supervised by a professional contact service.
6. As to the professional supervised contact service required pursuant to Order 5 herein:
(a) The Father will nominate the supervised contact service (“the nominated service”);
(b) Within seven (7) days of receiving the Father’s notification of the nominated service, the Mother will take all necessary steps and actions to complete an intake process with the nominated service;
(c) The Father shall be responsible for any costs associated with the nominated service; and
(d) The Mother and Father shall each comply with all reasonable directions from the nominated service.
7. The time Y, Z and W spend with the Father will be arranged in the following manner:
(a) The Mother will communicate directly with the nominated service at least one (1) month prior to each NSW school holiday period and will nominate three dates that are also suitable to the nominated service;
(b) The nominated service will communicate the proposed dates to the Father who will select one; and
(c) The nominated contact service will elect a location for the visits in consultation with the Father.
8. X is permitted and encouraged to join Y, Z and W when they spend time with the Father in accordance with these orders but otherwise, the time X spends with the Father will be in accordance with her own wishes.
9. The Father is permitted to allow the paternal grandmother and the paternal aunt to join him when spending time with Y, Z and W in accordance with these orders, on two occasions each year.
10. The Father is permitted to provide gifts for the children on the following special occasions each year:
(a) For each of the children on their birthdays;
(b) Easter eggs for Easter;
(c) A gift for each of the children at Christmas; and
the gifts will be handed to the children personally by the Father during the supervised visit that is nearest to the date to the special occasion.
Restraints
11. Each party is restrained from making any negative, critical, belittling, insulting or derogatory comments about the other party or members of the other party’s family or household (including but not limited to, questioning or criticising the parenting decisions and/or parenting capacity of the other party) in the presence or hearing range of any of the children or via written correspondence which may be viewed or accessed by the children (including via SMS, email or on social media) or being complicit in any other person doing so.
12. Both parties are restrained from allowing the children or any of them to remain in the presence of or within the hearing of any other person who is denigrating the other party, the other party’s family, or members of the other party’s household.
13. Each party is hereby restrained from recording the children or causing any third party to do so for the purposes of use in current or future court proceedings.
14. Pursuant to s 68B of the Family Law Act 1975 (Cth), the Father be restrained from:
(a) Attending or coming within 100 metres of the children or any of them or the Mother;
(b) Attending or coming within 100 meters of the Mother or children's residence/s;
(c) Attending or coming within 100 meters of any of the children's schools or extracurricular activity providers;
(d) Removing the children or any of them from school or their extracurricular activity provider;
(e) Contacting any of the children's schools or extracurricular activity providers;
(f) Contacting any of the children's medical care providers or treaters; and
(g) this order is a personal protection injunction for the purposes of s 68C of the Family Law Act 1975 (Cth).
15. The Father is restrained from making unfounded and unnecessary reports and allegations to the NSW Department of Communities and Justice and/or the NSW Police in relation to the children.
Provision of orders
16. The Mother is permitted to provide a copy of these orders to:
(a) Any school attended by the children.
(b) Any extracurricular, individual or other service provider that provides care for the children.
(c) Any therapist or medical professional engaged on behalf of any of the children.
Passports and travel
17. The Mother is permitted to travel internationally for a holiday with the children or either of them without the permission of the Father.
18. Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provisions), the Mother, Ms Akhmetov, be permitted to apply for and have issued to her an Australian passport for the children X born in 2010, Y born in 2011, Z born in 2013, and W born in 2015, or renew such passport in the absence of consent or otherwise of the Father, Mr Fukuzawa, AND IT IS REQUESTED THAT the Department of Foreign Affairs and Trade provide whatever assistance is necessary in relation to the issue or renewal of such passport/s.
Children’s therapy
19. The children continue to attend upon Dr B or such other alternate individual therapist arranged for them (“the therapist”) and the Mother shall ensure that the children attend all appointments with such frequency and for as many sessions as is recommended by the therapist. The purpose of the children’s therapy will be to assist the children in relation to:
(a) their mental health;
(b) their developmental and any behavioural issues; and
(c) any other issues deemed appropriate by the therapist.
20. In the event the therapist either:
(a) forms the view that it would be more appropriate for an alternate therapist to work with the Mother and the children or any of them; or
(b) the therapist becomes unavailable to continue to provide treatment for the children or any of them,
then the Mother will request the therapist to nominate a suitably qualified alternate therapist to undertake therapy for this specific purpose and the same orders mentioned above shall apply.
21. The children's therapy shall be non-reportable.
22. The Mother is permitted to provide the therapist/s with a copy of these orders and a copy of the Court's Reasons for Judgment.
Explanation of the orders to the children
23. Leave is granted to the Independent Children’s Lawyer to provide a copy of these orders and Reasons for Judgment to Dr C.
24. The Independent Children’s Lawyer shall take all reasonable steps to ensure that these orders are explained to the children by Dr C, and in her presence, within two months.
25. In the event that Dr C is unable to explain these orders to the children in accordance with Order 24, the Independent Children’s Lawyer shall explain the orders to the children.
26. The Mother is to do all things necessary to make the children available so that the orders can be explained to them.
Declaration
27. Pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth), the Father or any person acting in concert with the Father, is prohibited without leave from the Court, from instituting proceedings under the Family Law Act 1975 (Cth) in a court having jurisdiction under the Family Law Act 1975 (Cth), against or in relation to the Father.
28. Should the Father seek leave to institute proceedings pursuant to s 102QAE of the Family Law Act 1975 (Cth), the Mother is to be notified by the Court (by email):
(a) that an application has been made; and/or
(b) the outcome of the application.
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).
Part XIVB 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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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