Harshani and Darnith

[2016] FamCA 132

FAMILY COURT OF AUSTRALIA

HARSHANI & DARNITH [2016] FamCA 132

FAMILY LAW – ORDERS – CONTRAVENTION – Where the father alleges two contraventions of parenting orders by the mother – Where the Court finds the first contravention is not established – Where the Court finds the second contravention is established and the mother has contravened the order without reasonable excuse – Where the Court declines to impose a penalty on the mother.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harshani

RESPONDENT: Ms Darnith

INDEPENDENT CHILDREN’S LAWYER: Macgregor Barristers and Solicitors

FILE NUMBER: MLC 1556 of 2010

DATE DELIVERED: 25 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Stevenson

HEARING DATE: 18 February 2016

REPRESENTATION

APPLICANT: In person by video link

RESPONDENT: In person by video link

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Ms Cussen

Orders

1. That the father’s Application – Contravention in relation to Order 2 made on 9 October 2015 is dismissed.

2. 2.1      That the mother is found to have contravened Order 14 made on 30 April 2012.

   2.2That, in the exercise of the discretion of the Court, no penalty is imposed upon the mother in relation to such contravention.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harshani & Darnith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 1556 of 2010

Mr Harshani

Applicant

And

Ms Darnith

Respondent

And

Independent Children’s Lawyer

Macgregor Barristers and Solicitors

REASONS FOR JUDGMENT

The proceedings

1. These proceedings consisted of two contravention applications brought by the father, Mr Harshani, against the mother, Ms Darnith.  These applications were filed on 17 December 2015 and the evidence in support thereof consisted of two affidavits sworn by the father on the same date.

2. On 18 February 2016 both parties appeared in person and the Independent Children’s Lawyer (“the ICL”), Ms Cussen, took a limited role in the hearing.  The parties and the ICL appeared by video link.

3. The commencement of the hearing on 18 February 2016 was delayed because the mother attended the court precincts with the parties’ seven year old child, G.  Arrangements were made for the child to be cared for by staff of Child Dispute Services but that proposal had to be abandoned because he was found to be suffering from conjunctivitis.  The father’s current wife then offered to care for the child and the hearing proceeded without further difficulty.

4. The father’s first contravention allegation read as follows:

   The respondent without reasonable excuse failed to advise the applicant of the name and contact details of the treating medical practitioner of the child [B].

5. The father alleged that the mother thereby contravened Order 14 made on 30 April 2012.  That Order read as follows:

   14.Each party shall advise the other of any illness or injury suffered by the child whilst in their care and shall provide the names and contact details of all treating medical practitioners with sufficient particularity to enable the other parent to contact those practitioners directly.

6. The father’s second contravention allegation read as follows:

   The respondent without the Court’s permission released and made available the Family Report dated 8 October 2015 to another person(s), other than those directed in the orders dated 9 October 2015.

7. The Orders of 9 October 2015 were in standard form in circumstances of release by a Registrar of a Family Report.  Those Orders read as follows:

   1. Pursuant to rule 15.04 of the Family Law Rules 2004, copies of the report by Family Consultant [Ms H] dated 8 October 2015 may be given to:

   (a)the parties;

   (b)the lawyer(s) for the parties;

   (c)the lawyer(s) representing the child/ren in the proceedings under s 68L of the Act (if appointed), and

   (d)if a party is legally aided, to employees of the legal aid body providing financial assistance to the party, but only upon a request from an employee of the legal aid body, for a copy of the report.

   2.     Except with the Court’s permission, no person is to release the report, or provide access to the report, to any person other than those mentioned in paragraphs (a), (b), (c) or (d) of the previous order.

8. The father holds a degree in law and is admitted as a legal practitioner.  These parties have been engaged in extensive litigation over a number of years.  For these reasons I was satisfied that the father did not labour under the usual disadvantages of an unqualified litigant in person.  In so far as I am aware, the mother holds no legal qualifications.  She participated in the proceedings with the assistance of an interpreter.

9. During the course of the hearing the father indicated that he had caused to be issued to Dr I a subpoena to give evidence.  This subpoena was in evidence (Exhibit 1) but the father at no stage established service of the subpoena upon the intended recipient.  The father did not seek an adjournment at the commencement of the hearing so as to pursue the attendance of Dr I.

10. Significantly, in my view, this subpoena bore a filing date of 15 February 2016.  These proceedings were originally listed for hearing in the Melbourne registry on 11 January 2016 and adjourned to 13 January 2016 because the respondent mother had not been served with the applications.  I indicated to the father that I would entertain an application for substituted service on 13 January 2016.  The father, however, filed an application to dispense with service.

11. In any event, the mother appeared on 13 January 2016 and indicated that she required the assistance of an interpreter and that she was not otherwise ready to proceed with the hearing.  The matter was then fixed for hearing on 18 February 2016, a date which allowed the father to attend a legal conference.

12. With this procedural history it seemed to me that the father had been afforded sufficient time to arrange for the issue of a subpoena to Dr I and to effect service thereof.  As noted, there did not appear to have been an application for an adjournment by the father.

Discussion and conclusion

Allegation of provision by the mother of the Family Report dated 8 October 2015 to Dr I without leave

1. The father relied upon a letter dated 9 December 2015 from [Dr I] to [Dr J], which he annexed to one of his affidavits.  I now set out in full the contents of this letter:

   [Dr. I], MB,   …,
   BCh, DRCOG, MRCP, FRACP,  …

   Consultant Paediatrician  …

   Provider No. …
   Tele: …

   9^th December, 2015

   Dr J
   …
   …
   …

   Dear [Dr J],

   Re:  [B] …,

   Thank you for asking me to see the child whom I met with his mother [Ms Darnith] on the 9^th December.

   [B] presented as an attractive and appropriately grown boy who interacted very well with me during the session.  He showed appropriate eye contact and facial expressions.  He played appropriately with the toys.  He made requests of myself and his mother, which we responded to.  He also accepted when we told him that he had to return to play and leave us to talk.  When I spoke directly with [the child] he would try and avoid the conversation and carry on playing but with effort from myself could easily be engaged.

   I have left a message at [K School] but have not yet had a chance to speak to them. His mother reports that he has good academic skills She feels he could possibly do better academically but his performance better than the average. He has good relationships with the other children in class.

   [Ms Darnith] brought the child to see me because of an episode where he cut himself on his right leg using a hanger and threatened to kill himself and his mother. [The child] was seen at the [L Hospital] and the injury itself was superficial but there was concerns about his psychological state. He was seen by the Psychiatry Liaison Team who felt he had some behaviours suggestive of autism and requested paediatric follow up. Further psychiatric support through the [L Hospital] was not recommended.

   This behaviour has occurred on the background of major family difficulties which I will attempt to summarise. [Ms Darnith] wanted [the child] to tell me himself about how he feels regarding the situation and did not want to put words into his mouth.

   I therefore spoke to [the child] before I read the court report so I was not prejudiced by the findings from the court report.

   I asked [the child] about his concerns and he told me that he did not like sharing a bed with his father and stepmother. He said that he was squashed by his father and they were naked. He said they did those “disgusting things”. He said that his father’s wife would put a blanket around her but he did not like the food because she touched his father’s private bits before making it.

   He also reported to me directly that if his father was angry he would bring out a knife.

   None of this information was prompted by his mother and was certainly of significant concern to myself. I observed the interaction between the child and his mother in my consulting room and it was completely appropriate. the child went to her for comfort following my conversation with him.

   [Ms Darnith] told the child before he spoke to me that he was allowed to say whatever he wanted and that I was a specialist doctor and it was safe to talk. She said that he has been reluctant to speak to other people because he fears for his mother’s life and feels that she could be injured by his father. She said that she feels his threats to kill himself and her are to escape from his father and that he sees no other way out of the situation. This was her interpretation of her son’s thoughts and not my own, but I saw no reason to doubt them.

   [Ms Darnith] tells me that they are to return to the Family Court next week to request that access with his father be supervised by professionals. She said that she does not want to deny him access to his father but is fearful for his safety when he is with his father. She is also concerned by his distress about sleeping with his father and his new wife. When he returns to her following a long weekend with his father then he finds it very difficult to sleep for a few nights being fearful and asking his mother to get him glasses of water.

   There is a complex family background, which is well documented in court reports.  I have read through the reasons of judgement passed down in 2012.  It is clear that the judge, F M Hughes, considered [Ms Darnith]’s evidence to be more reliable than that of her ex-husband [Mr Harshani].

   [Ms Darnith] met her husband in Country B in 2004 before migrating to Australia. She agreed to support his migration to Australia after they married in 2006. When he arrived he started to study law and demanded that she work and support him because she had agreed to on the immigration papers. [Ms Darnith] describes her ex-husband as being controlling and abusive towards her and making unreasonable demands for her to work. She did not agree with him he became violent and injured her on many occasions. the child was born in 2008 and [Ms Darnith] was concerned for her son’s safety. Threats were also made against the child. [Ms Darnith] obtained court reports from [Country B] showing that her ex-husband had been married twice before. He had actually not been divorced at the time of their own marriage. He had three children with his first wife and his eldest son had died at 2 years of age. Allegations were made that her ex-husband was responsible for the death but there was no evidence to support this from [Country B]. He has two daughters from his second marriage who now reside with him in Melbourne. The court suggests that the daughters are gentle and quiet girls who are very much under his control.

   [Ms Darnith] separated from her husband in 2010. Intervention Orders have been taken out by both parties. There have been numerous allegations both ways, but when considering the evidence it was felt that [Ms Darnith]’s reports were more consistent and more likely to be true than those of her husband and his two daughters.

   One concerning aspect was a threat made to [Ms Darnith] by one of the daughters that the child would end up like [M], the son who had died in [Country B]. When this allegation was first made [Ms Darnith] did not know who [M] was and only found this out later. In court, her ex-husband initially denied [M’s] existence but had to accept it once the documents from [Country B] were produced as evidence. His daughters also denied knowing anything about an older half brother.

   [Ms Darnith] presented as an intelligent, warm and strong woman who despite everything she has been through is determined to protect her son’s life. She tells me that her husband controlled her by making threats against her own mother’s life in [Country B]. Her ex-husband was very involved with politics and a friend of the previous President of [Country B] and had a lot of power in that country.

   As a Paediatrician my concern is the child [B] and I can only say that the circumstances which he told me of his own free will are unacceptable and that access with his father should certainly be supervised by people outside the family.

   I am going to see [the child] again in March next year. He has had counselling under the Mental Health Plan but I do not believe there are any developmental difficulties and I certainly found no evidence of autism. I suspect that it was trauma that made him present with autistic signs when he was seen at the [L Hospital]. This of course reflects the severity of the environmental factors and counselling is not going to help the child whilst he still is exposed to inappropriate behaviour and does not feel safe.

   It is up to the legal system to provide protection for [the child] and make sure that he feels safe in Australia.

   Yours sincerely,

   [Dr. I]

2. It seemed to me that the terms “the court report” and “the court reports” in the letter written by Dr I did not necessarily mean “the Family Report of 8 October 2015” as asserted by the father.  On page 2 Dr I referred to

   
   

   “a complex family background, which is well documented in the court reports”.  Dr I then immediately referred to “reasons of judgment passed down in 2012”.  She later referred to “court reports from [Country B]”.

3. I formed the view that it would be unsafe to formulate a charge to be put to the mother on the strength of the contents of the letter of Dr I.  In my view, no necessary inference arose that the mother provided to Dr I a copy of the Family Report of 8 October 2015.  It was abundantly clear that Dr I had read more than one document, to which she referred to as ‘the court reports’.

4. The father protested vehemently at my indication to that effect and asserted that he had the right to establish his case by way of cross-examination of the mother.  Obviously, it would have been inappropriate and unfair to the mother that the father be allowed to adopt such a course.  Accordingly, I declined to permit the father to prove his case by way of forcing the mother to give evidence in support of his contravention allegations.  I have indicated above the view which I formed in relation to the father’s subpoena to give evidence to Dr I.

5. Accordingly, I determined and I now find that the father failed to establish that the mother contravened Order 2 of 9 October 2015.  I will thus dismiss this Application – Contravention.

Allegation that the mother failed to provide to the father the name and contact details of Dr I

1. The mother denied this count and appeared to suggest that Dr I became involved with the child due to some intervention by child protection personnel.  It seemed to me that, arguably, Order 14 of 30 April 2012 could be construed as an obligation upon the parties to advise the other of the treating medical practitioners involved with any “illness or injury suffered by the child whilst in their care.”  In other words, on the face of Order 14 it appears that the obligation is not that each of the parties supply the other with the names and contact details of all medical practitioners who become involved with the child in any circumstances.

2. Nonetheless, I determined to deal with this application of the father.  It was clear on the face of the letter that Dr I had a consultation with the mother and the child on 9 December 2015.  Dr I wrote:

   [Ms Darnith] brought [the child] to see me because of an episode where he but himself on his right leg using a hanger and threatened to kill, himself and his mother.

3. I accept the evidence of the father that he became aware of the involvement of Dr I with the child only when the mother tendered a copy of her letter at a court event on 14 December 2015.  Accordingly, I found that the father had established that the mother had contravened Order 14 of 30 April 2012.

4. The mother attempted to provide an explanation but I had considerable difficulty in understanding what she attempted to convey to the Court.  As noted above, she appeared to suggest that she did not involve Dr I in any treatment of the child.  Nonetheless, it was clear that she was fully aware of the consultation with Dr I as she was present on that occasion.  It is equally clear that she did not provide the name and contact details of Dr I to the father.  In these circumstances, I felt unable to find that the mother had a reasonable excuse for her failure to provide the name and contact details of Dr I to the father.

5. I tried several times to extract from the father an indication of the penalty which he sought that I impose upon the mother.  He referred on several occasions to a notion of “referral for a criminal investigation” but declined to point to any relevant source of jurisdiction.  Ultimately, it appeared that the father sought that I impose a fine upon the mother.

6. At that point the ICL sought to make submissions as to penalty.  She suggested that the father’s involvement of the mother in even further litigation, and the requirement that she again return to court, was sufficient penalty in itself.  The ICL also pointed to the best interests of the child.

7. I was taken to no evidence of any previous contravention of a court order on the part of the mother.  I see merit in the submissions of the ICL, and, in the exercise of my discretion, I decline to impose a penalty in respect of this count of the contravention proceedings.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 25 February 2016.

Associate: 

Date:  25 February 2016