Gosai & Gosai
[2022] FedCFamC1F 872
Federal Circuit and Family Court of Australia
(DIVISION 1)
Gosai & Gosai [2022] FedCFamC1F 872
File number(s): SYC 5366 of 2018 Judgment of: HENDERSON J Date of judgment: 20 September 2022 Catchwords: FAMILY LAW – CHILDREN – Best interests – Where the issues in dispute were discrete and narrow and otherwise final parenting orders made by consent – Where the father sought orders regarding information relating to the child’s psychological treatment and to be provided with the child’s passport number – Where the mother sought orders permitting her to remove the child from the Commonwealth of Australia and personal protection injunctions for herself and the child – Family violence – Injunction – Where the mother alleges significant family violence perpetrated by the father – Where the father denies the allegations – A finding that the father perpetrated serious and ongoing family violence upon the mother and child – Where the child is psychologically distressed caused by the family violence perpetrated by the father – Where the child has significant mental health issues and has had instances of self-harm – Injunctions for personal protection and travel overseas made – Orders sought by the father dismissed as not in child’s best interests. Legislation: Family Law Act 1975 (Cth) ss 60CC(2), (3), (4), 68B. Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 20 September 2022 Place: Sydney (via Microsoft Teams) Counsel for the Applicant: Ms Bateman Solicitor for the Applicant: Inner West Solicitors Pty Ltd Counsel for the Respondent: Mr Bennett Solicitor for the Respondent: Coleman Greig Lawyers ORDERS
SYC 5366 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GOSAI
Applicant
AND: MS GOSAI
Respondent
order made by:
HENDERSON J
DATE OF ORDER:
20 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.By consent and pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, final orders are made in terms of the attached Consent Orders, and placed with the Court record as attached hereto
2.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father be and is hereby restrained from attempting to or allowing or encouraging any other person to find or locate the mother, Ms Gosai born 1979, and/or the child, Y born 2006, including but not limited to their place of residence and any school, or educational institution attended by Y from time to time.
3.Pursuant to section 65Y of the Family Law Act 1975 (Cth), the mother shall be entitled to take or send the child, Y born 2006, to a place outside of the Commonwealth of Australia without first obtaining the written consent of the father, Mr Gosai born 1970.
4.Within 14 days, the respondent file and serve written submissions of no more than 2 pages on the question of costs.
5.Within a further 28 days, the applicant file and serve written submissions in response of no more than 2 pages on the question of costs.
BY CONSENT, THE COURT ORDERS THAT:
6.That all previous orders be and are hereby discharged.
Parental Responsibility
7.That the Mother have sole parental responsibility for the child Y born 2006 ("Y").
Live with
8.Y shall live with the Mother.
Spent time with/communicate with
9.Y shall spend time with and/or communicate with the Father as requested by her.
Restraints/Injunctions
10.To facilitate such communication, the Father shall within 7 days of the date of these Orders, provide the Mother with his contact details including details of his address, email address and telephone number. Within 24 hours of receipt by the Mother of the information required by this Order, the Mother shall provide a written copy of the details to Y.
11.In the event the Father’s contact details change in the future, within 7 days of any change, the Father is to provide to the Mother, in writing, updated contact details for himself including his address, email or telephone number. Within 24 hours of receipt by the Mother of updated contact details of the Father, the Mother is to provide a written copy of the updated details to Y.
12.Both parties shall be restrained from:
(a)Interfering with or putting undue pressure on Y to form a particular view in relation to communicating with her Father.
(b)Denigrating the other party or members of the other party’s family to Y or in her presence.
13.That the Father undertakes and is hereby restrained from sending or attempting to take or send Y born 2006 from the Commonwealth of Australia or allow a servant and agents to take, send or attempt to take or send on his behalf.
Overseas travel
14.The Mother is hereby authorised to apply for a New Zealand passport for the child Y born 2006 without first obtaining the consent, written or otherwise, of the Father.
15.That all prior orders, including Orders dated 24 September 2018 made by this Honourable Court placing the child Y born 2006 on the Airport Watchlist be and are hereby discharged and the Mother be at liberty to retrieve the children’s passport held by the Honourable Court.
Other Orders
16.That the Court hereby requests Family Consultant E to meet with Y to explain to her:
(a)the effect of these orders,
(b)the Father’s desire to communicate with Y should Y choose to do so.
17.That within 14 days of the date of these Orders the parties shall do all things and sign all documents necessary to register a copy of these Orders with all Courts currently dealing with the issue of custody of the children, including F Court in Country G.
18.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
19.That pursuant to s.65DA(2) of the Family Law Act, 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 the Fact Sheet, attached hereto and these particulars are included in these orders.
20.That all outstanding applications are dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 those particulars are included in these orders.
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 the pseudonym Gosai & Gosai has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE JUDGMENT
HENDERSON J
This is an application for very limited orders by a father in respect of his youngest daughter, Y, effectively she is now 16 years of age. The father has taken some significant steps by withdrawing applications for the children to return to Country G, spend time with and communicate with him and he now seeks what might be regarded as exceedingly limited orders which is that:
(1)He be told by the mother of all instances of harm – self-harm experienced by Y;
(2)That he be provided with contact details of her treaters for any self-harming injury she may inflict upon herself;
(3)That he know what her treatment and prognosis is; and
(4)When the mother obtains a new passport for Y, which it is agreed that she can obtain, he is informed of her passport number.
Otherwise, the parties have agreed in respect of parenting, and I have made orders by consent. Those orders are that all previous orders in respect of the child be discharged; she live with the mother; the mother have sole parental responsibility; Y spend time with or communicate with her father as requested by her; and that the mother receive details of the father's contact details if she does not have them, so the children have that information if they want; both parents are restrained from interfering or putting undue pressure on Y to have or not have time or communication with her father; the mother can obtain a New Zealand passport for her daughter and travel overseas with her daughter.
The mother seeks that she be able to take or allow Y to travel outside of the Commonwealth of Australia. The father agrees with that order but only on a temporary basis. The mother also seeks an order, pursuant to section 68B of the Act,[1] that the father is restrained from attempting or allowing or encouraging any person to find or locate the mother or the child, Y, as to their place of residence, school, educational institution attended by them from time to time.
[1] Family Law Act 1975 (Cth).
The material I have read – for the applicant father:
(1)Case Outline filed 28 July 2022;
(2)Amended Initiating Application filed 28 July 2022
(3)His affidavit filed 28 July 2022; and
(4)Some audio recordings, although I was not asked to hear those.
For the mother:
(1)Case Outline filed 29 August 2022;
(2)Her affidavits filed 27 January 2022 and 26 August 2022;
(3)Affidavit of Dr H filed 22 December 2021;
(4)Affidavit of Dr J filed 20 December 2021;
(5)A report of Dr K filed 29 August 2022; and
(6)The Child Inclusive Conference Memorandum dated 1 September 2021.[2]
[2] Exhibit C1.
The mother alleges, and it is abundantly clear to me, that the father has perpetrated significant family violence upon his wife and children throughout their marriage. They fled Country G to escape that violence. They were ordered to return to Country G by a judge of this Court. That decision was appealed and the appeal upheld, and the mother and children have remained in Australia since that time.
The mother's affidavit is replete with appalling behaviour perpetrated by the father of these children upon her, witnessed by these children, and it is clear that the children have witnessed this violence, not only in the medical reports of psychologists and psychiatrists they have seen, being Dr K, Dr H and Dr J, but also to the Family Consultant in the Child Inclusive Conference Memorandum dated 1 September 2021.
Y herself told the Family Consultant of this violence. Y impressed the Family Consultant as being a mature adolescent, able to articulate her views. The Family Consultant was very concerned about her emotional wellbeing as:
[She] was visibly distressed, agitated and anxious throughout [the] interview.
…
[She] was incredibly distraught by the thought and prospect of being required to return to [Country G] and/or in having any relationship or communication with her father.
To his credit, the father no longer seeks a return to Country G.
Y required a lot of reassurance and support from the Family Consultant to manage her distress and emotional wellbeing in the interview:
[She] stated on numerous occasions it is not safe for her to have any contact or relationship with her father because of his past threats to harm and kill her. She referred to her father as being “dangerous” and a “violent” man. She expressed feeling scared of him for many reasons, one example being he has threatened to smash her head in.
[She] … had witnessed her father assaulting her mother, and she had intervened to try and protect her mother.
A very common theme in matters where children are exposed to domestic violence and, unfortunately, usually perpetrated by men against women;
[She] spoke about suffering from poor mental health and depression.
She clearly has and does. She has had two suicide attempts or suicidal ideations. She has been to L Hospital. She is under the care of psychologists and psychiatrists, and she clearly needs significant assistance;
She said she [had] overdosed on her medication earlier this year because she felt overwhelmed, unable to cope with several issues for her. [Her issues included] low grades at school, a fight with her sister, general anxiety about Court proceedings and issues with her father.
And her mother refers to Y's behaviour and mental health deteriorating significantly around the time of court events;
[She] said she does not need counselling [and] she needs the Court to conclude, if there is to be any positive progress in her emotional wellbeing.
This is a child who specifically needs to have significant therapeutic intervention to hopefully treat her and assist her to recover from the damage that has accorded to her by the treatment her father has perpetrated upon her mother, herself and her sister, witnessed by her. She has actively experienced post-traumatic stress disorder symptoms from the alleged trauma from her father. She has made statements she would disengage with all her medical doctors in case if her medical records are released to her father, Mr Gosai, and there is a risk of vicarious trauma and therapeutic alliance rupture if her father's requests are approved.
Y had been referred to Dr K, a child and adult psychiatrist. A report was prepared by her psychiatrist in 25 August 2022 – a few weeks ago. Even though the father's application has significantly changed, and he seeks what might be seen as limited orders now, the report opines for Y’s father to know of her treatment is life-threatening for her and it may involve her in ceasing to have any therapeutic intervention which she needs to overcome her trauma.
The Family Consultant in the Child Inclusive Conference Memorandum stated that:
… engaging in further details about her experience of her father would likely be a traumatic experience for her ([and this was] not in [Y]'s best interest.
And that a Family Report would actually be emotionally harmful for this child, such was her trauma at reliving the events that she said had occurred, she had observed, that had been perpetrated upon her, her sister and her mother;
[She] also wanted to stress her views have not been influenced by her mother and are a direct result of what she wants. … it is her life and these decisions and choices are a matter for her to decide as they impact directly upon her. [She] held the view that it would be very unjust if she did not have a determinative say about having no relationship with her father, particularly in light of her age, her experience and the risks exposed to her.
The very tool we use in the Court could harm the child.
The father denied all the allegations of violence, and in his Case Outline, he describes the mother's violence to him, the poor relationship Y has with her mother, and that the child is unsafe in her mother's care. He completely rejected any of the claims the mother and his daughters made to the Family Consultant. He said he had a positive relationship with both of his children prior to separation. That was an impossibility to accept having regard to the evidence of the mother and both children.
The mother told the Family Consultant the father had made multiple threats to kill and injure the children and Y herself has said the same. Mr Gosai denied he perpetrated any family violence towards the mother in the relationship, denied controlling behaviour from him towards her, and said that family violence allegations made against him were dismissed. The letter attached to the mother's affidavit from the father in 2011 puts that evidence as a fiction, if not a lie. In his letter to the mother, the father says he is sorry for the violence he has caused the family, perpetrated upon the wife and children, asked for her forgiveness, and for her to take him back.
The Family Consultant concluded that:
[Y] presented as emotionally vulnerable … whose experiences of her father have caused her severe psychological distress. Exacerbating her psychological distress are the current proceedings and the uncertainty for her in the parenting arrangements (time with her father, relocating to India and contact with him).
[She] has strong views it is unsafe for her to have any relationship with her father. This view is supported by [her mother] who seeks … no time orders [as well].
The allegations of coercive controlling family violence were extremely concerning, and if true, [the mother's] proposal for the children to spend no time with their father would be understood and considered protective.
The Family Consultant noted:
[Mr Gosai] disputed the allegations of family violence, threats against the children [and he] sought orders for time.
[Y] is of a developmental age which becomes important to her that her views are respected, she has input and control about decisions that affect her. Noting her age, and the clear psychological distress, combined with her overall mental health difficulties, it is suggested that determinative weight be placed on her views about the parenting arrangements.
[The continuation of] the proceedings are having a serious negative impact upon [her]. If the proceedings continue, she is likely to suffer further psychological difficulties of escalated depression, anxiety, self-harm and further hospital admissions … poor school attainment, problems with peers, low self-esteem and poor sleep and may result in serious psychiatric conditions in later life.
There was a recommendation for no Family Report to be prepared. That opinion is supported by her own psychiatrist in her August 2022 report. Mr Gosai was encouraged to revise his application regarding the children by the Family Consultant. To his credit, he has done that.
The Law
In any parenting matter, I must have regard to the factors under section 60CC(2), (3) and (4) of the Act. The parents have agreed the sharing of parental responsibilities be rebutted. There is clearly significant family violence in this matter and it is proper I made that order by consent.
I cannot see, on the evidence before me, any benefit for the child in having any relationship with her father, and she does not have a meaningful relationship with her father. It has been a relationship that has caused her trauma, post-traumatic stress syndrome, depression, and she is still suffering from the consequences of that relationship today many years later. She has experienced violence directly at the hands of her father directed towards her, experienced by seeing her father being violent towards her mother, where she tried to intervene, and her sister.
The father's conduct and attitude towards his family is against all tenets of what is appropriate parenting, and yet he does not take his responsibility of parenthood seriously and does not act appropriately, given the behaviour he has engaged in with his family.
The nature of the child's relationship with her father is that she finds him dangerous. She is concerned he will carry out the threats he has made to her to kill her. Her closest emotional attachment is her mother. The child is suffering from these court proceedings. They must end, and her wishes must be respected by this Court. That is an imperative.
In those circumstances, I will not make the orders sought by the father that he be informed of any instances of self-harm or that he is provided with any details of the child's treating specialist in relation to self-harm. In particular, him wanting to know the new passport number of his daughter is of particular concern to this Court. This information can only be to trace her and know if she is taken out of the country and where she has gone by such tracing. That is precisely the concern the mother has, it is precisely the concern the child has that the father will trace them, and hence the mother's application to make an order pursuant to section 68B of the Act preventing the father from so doing is supported by the very order he seeks in wanting to know the child's new passport number. There could be no other reason for wanting to know that number other than to be able to trace her and where she has been.
And in those circumstances, I dismiss the father's application and orders sought as not being orders in the child's best interests. Making the orders he proposes would, on all the evidence, further endanger the child, put her on a pathway of perhaps not engaging with the very necessary medical intervention she needs. Given my primary consideration is to protect the child from harm, and for Y, harm is the thought of her father having anything to do with her, she must be protected as best I can from this harm by the legal system.
In that regard, the mother's application for a section 68B order is made out. It is an imperative that this order is made.
Further the mother may remove the child, or cause this child to be removed, or permit her to be removed from the Commonwealth of Australia on any occasion she so seeks, and she need not obtain the consent of the father. I dismiss the father's application that this order be made on a temporary basis. Given her age that is not an order in the child’s best interests.
They will be the orders of the Court.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Henderson on 20 September 2022. Associate:
Dated: 9 November 2022
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