Kavran & Vinko
[2022] FedCFamC2F 193
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kavran & Vinko [2022] FedCFamC2F 193
File number(s): PAC 616 of 2022 Judgment of: JUDGE STREET Date of judgment: 28 April 2022 Catchwords: FAMILY LAW – PARENTING – interim application for recovery orders – where the respondent father refused to return the child to the applicant mother, being the primary care giver – issues of mental health and family violence – whether the recovery orders are in the best interests of the child – whether denying the recovery orders imposes an unacceptable risk of harm to the child – recovery and interim orders made Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60CC, 61A, 65AA(3), 69ZL, 68L Cases cited: Barnham & Timbrell [2021] FedCFamC1F 36
Goode & Goode [2005] FamCA 1346
Division: Division 2 Family Law Number of paragraphs: 105 Date of hearing: 17 February 2022 Place: Parramatta Counsel for the applicant: Mr Teo Solicitor for the respondent: Ms Sechi ORDERS
PAC 616 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAVRAN
Applicant
AND: MR VINKO
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
17 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Applicant Mother have sole parental responsibility of the child X (DOB in 2012, aged 9) (“the Child”).
2.The Child live with the Applicant Mother.
3.The Applicant Mother is to collect the Child from Suburb B School by the end of today’s school day.
4.The Respondent Father, by himself his servants or agents, is restrained from attending Suburb B Public School or in any way interfering with the Applicant Mother’s collection of the Child today.
5.The Applicant Mother, if she sees fit to do so, is at liberty to re-enrol the Child at Suburb C Public School immediately.
6.The Respondent Father undertake the parenting program Keeping Kids in Mind, as soon as practicable and within 7 days of completion put on an affidavit explaining his insight as to the impact of the course on his understanding as to the best interests of the Child.
7.The Respondent Father is to file and serve an affidavit by his treating doctor, Dr D, on or before 8 April 2022, explaining his current treatment, compliance to date and the program that is in place for his mental health, and the proposed steps to ensure his continuing functionality and any view by the doctor as to impact of his condition on his ability to care for his nine year old daughter.
8.The Applicant Mother is to facilitate telephone and video access by the daughter with Respondent Father at least twice a week for half an hour and at such other times as she sees fit.
9.The Respondent Father, by himself his servants or agents, is restrained from seeking to remove the child from the Applicant Mother’s care and is restrained from either attending whilst the child is present or making any attempt to remove the child from the child’s school.
10.The Respondent Father is not to come to Applicant Mother’s house when the child is in Applicant Mother’s care unless by written agreement.
11.That each party will refrain from making critical or derogatory remarks about the other party and members of his/her family in the presence or within hearing of the Child and that each party shall do all things necessary to ensure that no other party makes any critical or derogatory remarks about the other party or members of their family.
12.Pursuant to s 68L of the Family Law Act 1975 (Cth), the Court appoints an Independent Children’s Lawyer (“ICL”) with the cost of the ICL to be shared between the parties.
13.Costs are reserved.
14.The reasons for the orders just published are reserved.
15.The matter is fixed for a further interim hearing at 9:30am on 28 April 2022 via video and or audio link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
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 a pseudonym Kavran & Vinko has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Overview
These proceedings were commenced on 10 February 2022 by way of an Application in a Proceeding, in which the Applicant Mother sought, relevantly, recovery orders in relation to the child of a relationship with the Respondent Father, born in 2012 (“the Child”), now being nine years of age. The Court can give short reasons under s 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
The matter was listed today for an Interim Hearing and the parties had unfruitful discussions from 10:00 am until 12:50 pm. The Child was attending today at Suburb B Public School. The Court proceeded with the contested interim hearing at 1:00 pm and pronounced orders for the Child, effectively, to be returned to the Applicant Mother, to live with the Applicant Mother, and for the Applicant Mother to have sole parental responsibility, pending the Respondent Father putting on satisfactory evidence of his mental health regime and insight as to the best interests of the Child. The Court made orders bringing the proceedings back before the Court on 28 April 2022 for a further Interim Hearing, if appropriate.
The Court also made orders for the Child to have weekly audio and video contact with the Respondent Father, and otherwise restraining the Respondent Father from attempting, by himself, his servants or agents, to recover the Child or to attend the Child’s school whilst the Respondent Father is present. The Court also made orders permitting the Applicant Mother, forthwith, to re-enrol the Child at the public school which the Child had been attending until the end of last year.
The proceedings came before a Registrar of the Court on 11 February 2022. The Registrar, consistent with trying to ensure the least possible trauma for the child, made orders fixing the matter for an Interim Hearing today. The Registrar also provided for the service of the initiating application and documents upon the Respondent Father, and directed the Respondent Father to file a response no later than Wednesday, 16 February 2022.
Before the Court
At the commencement of the hearing, it was identified that the issue remained whether the Child should continue to live with the Respondent Father, having effectively had no physical contact with the Applicant Mother other since 1 January 2022.
Chronology
The background chronology for the matter, taken from the Applicant Mother’s case outline, is as follows:
Date Event Para Reference 1971 The Father is born. A 5 1971 The Mother is born. A 4 c. 2006 The Father is diagnosed with schizophrenia. R 54 c. 2010 The parties commence a relationship but do not live together. A 6 c. Feb 2012 The Mother notices the Father acting delusional, telling her stories that are untrue and being suspicious beyond what is normal. A 10, 50 2012 The Child is born. A 7 The Mother is the primary carer for the Child.
A 62
May 2012 –
Dec 2012
The Father visits the Child at the Mother’s house, under the Mother’s supervision. Each visit is only a few hours. A 8 Nov 2012 The Mother notices that the Father would forget to buckle the Child in the car and she starts checking to see whether the Child is properly buckled. A 11 The Mother informs the Father that she wants to end the relationship while at the Father’s parents’ house. The Father starts shouting at the Mother and flying into a rage. The Mother takes the Child to the car. The Father follows the Mother to the car and hits the windows of the car. The Mother drives off, reports the incident to the police.
A 12
Dec 2012 The parties end their relationship, and the visiting schedule ends. A 9 Early 2013 The Father is diagnosed with Type 1 schizophrenia. A 5, 49 The Mother takes the Father to Suburb E Mental Health Hospital for a check-up. The doctors confirm the Father’s diagnosis of schizophrenia and suggest his medical dosage be increased. The Father struggles to accept the advice.
A 14
Apr 2013 The Child commences spending time with the Father at his home in Suburb B supervised by the Father’s parents.
The usual routine is:
a. The Father would collect the Child from the Mother’s house every second Sunday;
b. The Father would drop the Child off at the Mother’s house the following Monday afternoon.
A 15
R 11
c. 18 Nov 2013 The Father refuses to return the Child to the Mother due to arguments about Child Support payments. A 16 The Child is subsequently returned to the Mother’s care on the same day.
A 17
2 Apr 2014 The parties attend a Family Dispute Resolution Conference to come to an agreement about parenting consent orders but are unable to reach an agreement. A 18
R 12
9 Apr 2014 The Mother’s then solicitor writes to the Father providing another proposal for parenting arrangements for the Child. A 19 18 May 2014 The Father is hospitalised with a stroke.
The Father says that this occurred on 26 May 2014, and that his time with the Child increased thereafter to 2 to 3 nights a week per week in a block period.
A 20
A 21
June 2014 – 1
Feb 2017The parenting arrangements are as follows:
a. The Child lives with the Mother.
b. The Child spends time with the Father from 6 p.m. Sunday to 9 a.m. Monday, under the supervision of his parents.
c. The Father would be accompanied by one of his parents when driving to the Mother’s house, due to his paranoia and being unable to drive without supervision.
A 21 The Father says that, since the Child commenced kindergarten in 2016, the Child has spent an average of 3 nights in the week in his care but that the arrangement is flexible. He also states that the parties share care during the
school holidaysR 14 Feb 2017 The Mother goes overseas for work. The Father with the assistance of his parents takes the Child to school. A 22 Feb 2017 –
Jan 2022Informal parenting arrangements were in place whereby the Child lived with the mother and spent time with the Father as follows:
a. 6 pm Sunday to 9 am Monday;
b. One week during the first three school holidays and two weeks for the end of year school holidays, with the Mother having priority due to her holiday arrangements;
c. 5 pm Christmas Day to 26 December; or
d. As agreed.
The relationship between the Mother and the Father is marred by conflict and difficulties. The Father shouts and yells at the Mother, is verbally abusive and rude, and does not respect reasonable boundaries.
Nevertheless, the Mother has attempted to facilitate the Child’s meaningful relationship with the Father.
A 23-24
A 25
24 Dec 2021 The Mother notices that the Child is putting herself down and asks her about it.
The Child says to the Mother:
a. “Mum, sometimes when I go to sleep at dad’s house, I cry myself to sleep wishing I was dead.”
b. “He calls me stupid and dumb for not doing things right. He said that I must look after him and listen to him and if I don’t, he will kill me. And even when he dies, he will come out of his grave to kill me.”
c. “I don’t want to see him as often and I’m scared he will find out I told someone.”
d. “He ignores me when I am with him and when I want to speak to him.”
e. “He screams and shouts at me.”
The Child informs that the Father is worried about money and his tenants are not paying rent for the farm he owns and not to ask for anything as he cannot afford it.
The Child is upset and crying. The Mother promises the Child that she would not tell the Father and that she would minimise time with the Father during the school holidays and seek legal advice.
A 26 25 Dec 2021 Per the scheduled agreed to by the parties, the Mother drops the Child off at the Father’s home. A 27 26 Dec 2021 The Mother is sick and informs the Father that she will pick up the Child the following day. A 28 27 Dec 2021 The Mother collects the Child from the Father.
At the time of pick up, the Child has a conversation with the Mother:
Child: “Did you tell anyone or dad?”
Mother: “No.”
Child: “He knows”
Mother: “How?”
Child: “Are you sure you didn’t tell anyone?”
Mother: “I told only my family but they wouldn’t tell him.”
Child: “He knows mum.”
Mother: “How?”
Child: “Dad told me that you weren’t going to pick me up.”
Mother: “Well, how did you respond?”
Child: “I yelled, ‘why isn’t my mum picking me up?’ And he said sorry for upsetting you and promised not to be angry or upset again.”A 29 1 Jan 2022 The Father collects the Child from the Mother. The Father fails to return the Child to the Mother since that time, and has refused the Mother any time with the Child.
Thereafter, due to the matters referred to below, the Mother notices that the Child is not herself. The Child seems less lively and more cautious and reserved. The Mother is concerned that the Father has said something to the Child that had made her fearful for his role in her life or something has happened to overburden the Child psychologically.
A 30
R 8A 48
3 Jan 2022 The Mother sends a text: “Call me.”
The Father calls the Mother. The Father is rude and aggressive.
A 31 4 Jan 2022 The Mother calls the Father and asks him where the Child is.
The Father refuses to inform the Mother where the Child is but informs that they are near Town F and had been in a hotel for a night. He further informs that both he and the Child have tested positive to Covid and that the Child has a headache.
The Mother has her suspicions but tells the Father to go home and isolate with the Child.
A 32 7-9 Jan 2022 The Mother tries to contact the Father regarding the Child’s whereabouts but the Father does not answer. 13 Jan 2022 The Father calls the Mother and says, “Talk to X.”
The Mother hears the Child crying in the background and saying she wants to sleep. The Mother has a telephone conversation with the Child:
Mother: “Where are you?”
Child: “We are in a hotel.”
Mother: “Which hotel are you staying at and when are you coming back?”The Child does not reply.
A 34 On the same day, the Mother speaks with the Father and he says, “I don’t know where I am, and I don’t know when we will be back.”
The parties exchange texts and the Mother informs that unless the Father tells the Mother where the Child is by the next day, the Mother would call the police.
A 35 14 Jan 2022 The Mother calls the police and requests a welfare check on the Child. A 36 15 Jan 2022 The police inform the Mother that they have conducted a welfare check and that the Child is safe and wants to say with dad. A 37 On the same day, the Child texts the Mother from the Father’s mobile phone, writing, “Dad will bring me back on Monday so I can go to the Christening on Sunday.” A 38 17 Jan 2022 The Mother exchanges a series of text messages with the Father “What time are you dropping off X?”
The Father texts back, “X is too upset to come back to you. My lawyer will draw something up for you today.” and “You scared X by calling the police the other day, she thinks if she goes to your place she won’t come back here again because you told her you will see what happens when you get back here.”
Later that day, at around 5 pm, the Mother attends the Father’s home. The Father’s mother and the Father shout at the Mother. The Mother manages to speak with the Child. The Child expresses that she wants to come home soon. The Father calls police and the Mother leaves the premises to wait outside the farm gates until the police arrive.
The Father alleges that the Mother grabbed and ripped the Father’s shirt and spat in his face.
A 39
A 40-41
R 24
19 Jan 2022 The Mother is arrested and charged with assault of the Father and is served with an interim ADVO protecting the Father and the Child.
The Mother intends to defend this charge.
A 42 21 Jan 2022 The Father’s solicitors send a letter to the Mother:
a. Noting the ADVO;
b. Requesting the Mother not to contact the Father directly;
c. Inviting the Mother to a private mediation.
28 Jan 2022 The Mother’s solicitors send an email to the Father’s solicitors, proposing consent orders seeking that the Child live with the Mother. A 65 31 Jan 2022 On 31 January 2022, the Father’s solicitors wrote to the Mother’s solicitors advising:
a. The Father does not agree to consent orders;
b. The Child is in the Father’s care following concerns about the Mother’s recent behaviour.
c. That the Father is willing to participate in FDR.
1 Feb 2022 The Father unilaterally decides to withdraw the Child from Suburb C Public School, where she has been attending since kindergarten.
He enrols the Child at Suburb B Public school without consulting the Mother. In his Affidavit paragraph 36 and 39, he deposes that he did this to prevent the Child from being collected by one of Ms G’s relatives and because it was his
local school.R 36-39 2 Feb 2022 The Child sends a text to the Mother: “I went to school.” A 43 3 Feb 2022 The Mother’s solicitors send an email to the Father’s solicitors requesting the Father to disclose which school the child was currently enrolled at.
On the same day, the Mother’s solicitors sent a letter to the Father’s solicitors advising that the matter was unlikely to be suitable for mediation but they were instructed to seek the
Father’s proposal for parenting arrangements before proceeding further.A 65 7 Feb 2022 The Father’s solicitors advise by letter that the Child has been enrolled at Suburb B Public School and they would advise regarding the Father’s parenting proposals.
The Mother meets the Child at her new school with the principal supervising. The Child informs that she thinks the change of schooling is temporary and says that the Father’s medication runs out and he is taking Solan.
A 47 10 Feb 2022 The Mother’s Initiating Application is filed with supporting documents 15 Feb 2022 The Father’s Response is served with supporting documents
The Respondent Father’s chronology, relevantly, in his case outline is as follows:
Date Event Reference Late 2021 The father is informed that the mother’s husband has threatened to “hit the child on the back of the head”.
The child informs the father that the mother’s husband has almost hit the mother and has pushed her down the stairs.
F45
F46
1 January 2022 The father has retained the child since that time. F9 15 January 2022 The police contact the father. F10; 22 16; 18 & 20 January 2022 The police conduct a welfare check on the child and leave the child in the father’s care. F22; 25; 30-31 17 January 2022 An incident occurred when the mother attended the father’s home unannounced and exposed the child to conflict. F22-24 19 January 2022 The mother is served with a provisional ADVO protecting the father and child. F26; M42 20 January 2022 The mother blames the child for the ADVO and informs the child and father for the child to remain with the father. F27-29
Annexures C & D21 January 2022 The father’s solicitor suggests FDR. F33 31 January 2022 The father’s solicitor suggests FDR. F33 1 February 2022 The father enrols the child in Suburb B Public School. F40 14 February 2022 The father was served with the mother’s Initiating Application. F62
The Applicant Mother’s Evidence and Submissions
The Applicant Mother’s affidavit identified that the relationship commenced in 2010 and ended in December 2012. The Applicant Mother referred to the diagnosis of the Respondent Father with schizophrenia in early 2013.
The Applicant Mother referred to the Child beginning to spend time with the Respondent Father at Suburb B, supervised by his parents, in April 2013. It was noted that the Respondent Father usually collected the Child every second Sunday afternoon and dropped her home on Monday afternoon, and that this happened twice a month and that the Respondent’s mother was always home when the Child stayed with the Respondent Father.
The Applicant Mother referred to an incident in November 2013 when the Respondent Father refused to return the Child because of arguments in relation to child support, but that the Child was eventually returned the same day.
The parties unsuccessfully attended a dispute resolution conference on 2 April 2014. A proposal for parenting arrangements was sent by the Applicant Mother’s representatives to the Respondent Father on 9 April 2014.
The Respondent Father suffered a stroke on 28 May 2014 and the Applicant Mother took their Child to visit the Respondent Father a few times a week.
From June 2014 until 1 January 2022, the Child had been living with the Applicant Mother and spending time with the Respondent Father from 6 pm Sunday to 9 pm on Monday. The Applicant Mother identified that this was always supervised time by the Respondent Father’s parents and that he was always accompanied by one of his parents when driving to the Applicant Mother’s house. It was said that the Respondent Father could not drive without supervision due to his paranoia.
The Applicant Mother identified that, in February 2017, the Child started attending school. Both the Respondent Father and the paternal grandparents assisted with taking the Child to school when the Applicant Mother was overseas for work. The Applicant Mother identified that she returned two weeks later.
The Applicant Mother identified that there was a period of time where it was agreed that the Respondent Father would spend time with the Child for two days per week, which were to be Sunday and Wednesday, and that was then changed to Sunday and Monday evenings.
The Applicant Mother identified that, during school holidays, the parties would come to an agreement so that the Respondent Father had one week for the first three terms and two weeks for the end of year school holidays. The Applicant Mother identified that she usually dropped the Child off at 5 pm on Christmas Day at the paternal grandparents’ home and picked her up on 26 December or 27 December.
The Applicant Mother identified that her relationship with the Respondent Father became marred with difficulties in communication and interactions during changeover, and in relation to parenting arrangements. She identified that the Respondent Father often shouts and yells and is verbally abusive and rude. The Applicant Mother contended that the Respondent Father did not respect reasonable boundaries and turned up on occasion to see his Child outside the informal agreement. The Applicant Mother also identified that the Respondent Father has, many times, called to speak with the Child multiple times a day and has kept ringing until the Applicant Mother answers.
The Applicant Mother submitted that she had done her best to facilitate the Child’s time with the Respondent Father, so that the Child can continue to have a meaningful relationship with the Respondent Father, the paternal grandparents and extended family. The Applicant Mother identified a comprehension of the importance of the steps, having had her older daughter lose her father at the age of four, and that she wanted the Child to have a father present in her life. The Applicant Mother identified understanding the mental health issues of the Respondent Father and trying to be as compassionate and accommodating as she could be.
The Applicant Mother then turned to the issues concerning the second withholding of the Child. The Applicant Mother identified a communication from the Child on 24 December 2021 in which the Child said:
Sometimes when I go to sleep at Dad’s house, I cry myself to sleep and I wish I was dead.
It is asserted that the Child said:
He calls me stupid and dumb for not doing the right things. He said I must look after him and listen to him, and if I don’t, he will kill me. And even when he dies, he will come out of his grave to kill me.
The Applicant Mother identified a degree of shock and the Child said:
I don’t want to see him as often and I’m scared he will find out I told someone.
The Child also informed the Applicant Mother about the Respondent Father’s worry about money and his tenants not paying rent for the business he owns, and told the Child not to ask for anything because he cannot afford it. The Applicant Mother asserts that the Child said:
He ignores me when I’m with him and when I want to speak to him.
It is also asserted by the Applicant Mother that the Child said:
He screams and shouts at me.
The Applicant Mother recalled that the Child was in tears, and that she comforted and listened to the Child, and promised not to tell the Respondent Father and would potentially reduce the time spent during the school holidays. That refers to dropping the child off on Christmas Day with the intention of picking her up the next day.
The Applicant Mother identified that she was sick on 26 December 2021 and informed the Respondent Father that she would pick the Child up the following day. The Applicant Mother picked the Child up on 27 December 2021 from the Respondent Father’s house. The Child raised the question of whether the Applicant Mother had told anyone and that the Respondent Father knows. The Applicant Mother recalls the Child saying:
Dad told me you weren’t going to pick me up.
And that the Child yelled:
Why isn’t Mum picking me up?
The Applicant Mother identified that, on 1 January 2022 at 9:00am, the Respondent Father collected the Child as agreed and has not returned her since. The Applicant Mother referred to sending the Respondent Father a text on 3 January 2022, and said that the he was rude and aggressive in his tone. The Applicant Mother stated that, on 4 January 2022, she asked the Respondent Father as to the whereabouts of the Child, but that the Respondent Father would not tell her. The Respondent Father said that they were near Town F, NSW and had been at a hotel for the night.
The Respondent Father told the Applicant Mother that he and the Child had tested positive for COVID-19, and that the Child had a headache. The Applicant Mother indicated that the Child should go home and isolate, but was concerned that this was just an excuse to keep the Child beyond the agreement.
The Applicant Mother identified attempting to contact the Respondent Father on 7, 8 and 9 January 2022 and that he did not respond. On 13 January 2022, the Respondent Father called the mobile of the Applicant Mother and she was invited to talk to the Child. She heard the Child crying in the background and saying that she wanted to sleep. A conversation ensued as follows:
Applicant Mother: “Where are you?”
Child: “We are in a hotel”
The Applicant Mother then sought to identify the hotel and when the Child was coming back and she did not get an answer. The Applicant Mother stated that she spoke to the Respondent Father later on and that he said he did not know where he was, but that he and the Child were on holidays and:
I do not know when we will be back.
The Applicant Mother exchanged texts with the Respondent Father which identified that, unless she was told the Child’s whereabouts, she would call the police. On 14 January 2022, the Applicant Mother called the police and requested a welfare check on the Child. On or around 15 January 2022, the police informed the Applicant Mother that they had assessed the Child’s welfare and confirmed that she was safe, and contended that the Child wanted to stay with the Respondent Father. The Applicant Mother identified that she had a further communication that day, in which the Child said:
Dad will bring me back on Monday so I can go to the christening on Sunday.
On 17 January 2022, the Applicant Mother contacted the Respondent Father and asked what time the Child was being dropped off. The Respondent Father contended that the Child was “too upset to come back to you” and that he would get orders drawn up for something more suitable for the Child “so she can still see you.”.
The Respondent Father alleged that the Applicant Mother scared the Child by calling the police the other day and that:
She thinks that if she goes to your place, she will not come back here again because you told her you will see what happens when you get back here.
The Applicant Mother responded:
Stop putting crap in her head. She wants to be with both of us. Stop making things difficult due to your wellbeing. I would normally have the first week or so after the New Year due to my holidays. You would have her the second half and she would go back to school. What happened to you?”
The Applicant Mother attached to her affidavit a copy of a text message exchange with the Respondent Father.
On 17 January 2022 at around 5:00 pm, the Applicant Mother went to the Respondent Father’s home to check on the Child. To her surprise, the paternal grandmother came out and started shouting about having called the police. The Applicant Mother identified that the Respondent Father was inside the home with the Child, and that it appeared he was panicking. He was asked to come outside so that the Applicant Mother could see her Child. The paternal grandfather came out and was asked to bring out the Child. When the Child came out to hug the Applicant Mother, the Respondent Father shouted at the Child from inside the house:
“Get back inside the house.”
The Applicant Mother hugged the Child and held her hands and noticed that she was a little apprehensive and acting confused, which worried the Applicant Mother. She then asked the Child:
When do you want to come home?
The Child said:
Soon.
The Applicant Mother then asked:
When? In a day or a week? When?
The Child shrugged her shoulders and replied with:
A week.
The Respondent Father then grabbed the Child’s arm and dragged her inside the house. The Respondent Father was on the phone to the police. The Applicant Mother responded:
Calm down. Stop being silly. I am here to talk to you and to check on [the Child].
The Respondent Father looked angry and said:
I will wait for the police.
The Applicant Mother waited at the front gate for the police to arrive. The Respondent Father alleged that the Applicant Mother had assaulted him, which she denies. The Applicant Mother pointed out that the Respondent Father is a very tall, strong man and that she is much smaller in stature.
On 19 January 2022, the Applicant Mother was arrested and charged with assault and an interim Apprehended Domestic Violence Order (“ADVO”) was made against her, protecting the Respondent Father and the Child. The Applicant Mother identified an intention to defend the charges.
On 2 February 2022, the Child texted the Applicant Mother, identifying that she went to school, but could not recall the school or give the details about the school. The Applicant Mother identified that, prior to 1 January 2022, the Child was enrolled to attend year 5 at Suburb C Public School, where she had been going to school since kindergarten. The Applicant Mother identified that the Child had been happy there, and has a close group of friends she has grown up with who live in her neighbourhood.
The Applicant Mother referred to a text she received from the Child on 2 February 2022 and that, on or around 3 February 2022, the Applicant Mother had contact with the principal of Suburb C Public School to confirm the Child’s attendance. The Applicant Mother was advised that she had been taken out of the school and enrolled at Suburb B Public School. The Applicant Mother identified that she had not been consulted in regarding the Child being taken out of Suburb C Public School and that she did not consent to this school change.
On 7 February 2022, the Applicant Mother met with the Child at her school, with the principal supervising, and asked how she was going at school. The Child indicated that she thought the change in school was temporary and had accepted the change. The Applicant Mother also asked:
Is Dad taking medication?
The response was that the Child gives the Respondent Father medication, but that sometimes he runs out, and that he takes Solian. The Applicant Mother indicated that she was surprised that the Child knew that the Respondent Father takes Solian and that she had access to the medication.
The Applicant Mother indicated that she noticed that, in her interactions with the Child since 1 January 2022, including Facetime, the Child does not seem herself and seems less lively and more cautious and reserved. The Applicant Mother identified concern that the Respondent Father has told the Child something to make her fearful for her role in her life or something that has happened to overburden her psychologically.
The Applicant Mother then addressed the Respondent Father’s capacity to care for the Child and made reference to his diagnosis of schizophrenia, and that the Respondent Father struggles to accept his diagnosis and does not always take his medication. The Applicant Mother identified that the Respondent Father’s elderly parents care for him, but sometimes they do not understand the debilitating impact of his mental illness without adequate medical treatment.
The Applicant Mother made reference to the Respondent Father having paid no child support and providing inaccurate information to the Child Support Agency. The Applicant Mother alleged that he made a claim with the Child Support Agency on 17 January 2022, stating that he had 100 per cent care of the Child.
The Applicant Mother identified that she has a three-bedroom home and that the Child has her own bedroom and a study desk. The Applicant Mother referred to the Child having close friends who live in the same street and with whom she has a close relationship with and whom she often walked to school with and had known for a few years.
The Applicant Mother referred to helping the Child with her homework and other recreational activities with the Child. The Applicant Mother identified the wider family that she has, including the Child having a 26 year old sister.
The Applicant Mother referred to having tried to best facilitate the Child’s time with the Respondent Father and paternal grandparents, but was concerned that they were unable to meet her intellectual and emotional needs, especially as she prepares for high school and prepares to enter into her teenage years.
The Applicant Mother requested urgent recovery orders requiring the Respondent Father to return the Child into her primary care. The Applicant Mother identified having always been the primary carer and that the Child had been attending Suburb C Public School since she was in kindergarten. The Applicant Mother identified that that school attendance is an important part of the stability for the Child with her long-term friends.
The Applicant Mother identified the impact of the withholding of the Child since 1 January 2022 has caused the Child to get caught up in a protracted conflict, and that the Child did not appear as lively and talkative as she had known her to be. The Applicant Mother made reference to the Respondent Father’s schizophrenia, his history of paranoia, the need for supervision and care by his elderly parents, and the likely impact of the stress of the conflict on the Child. The Applicant Mother expressed concern as to the Respondent Father’s capacity to care for the Child and to provide for her emotional and intellectual needs and her general health and safety.
The Applicant Mother referred to correspondence sent from her lawyers, attempting to obtain the return of the Child into her care and that, without orders, it was unlikely that the Child would be returned into her care and able to continue her education at Suburb C Public School, and would be exposed to an unacceptable risk of psychological harm.
The Respondent Father’s Evidence and Submissions
The Respondent Father identified that the Child had been in his care since 1 January 2022 when he alleged that he had pre-arranged with the Applicant Mother to collect the Child from her home. The Respondent Father made reference to him and the Child testing positive to COVID-19 and being required to isolate. The Respondent Father contended that the Applicant Mother became sick the following week and that he had arranged to go on holiday with the Child and his parents. The respondent alleged that the Applicant Mother agreed that the Child would remain with him.
The Respondent Father alleged that it was not until 16 January 2022, when he was contacted by police, that he became aware that the Applicant Mother wanted the Child returned. The Respondent Father alleged that there was an incident that occurred on 20 January 2022, as a result of which the Respondent Father alleged he decided that the Child should remain in his care.
The Respondent Father referred to having been able to make arrangements for his Child’s time with the Applicant Mother for most of her life and that, while the arrangements have been informal, there were times when the Applicant Mother had withheld the Child and had taken the time that the Child was to spend with the Respondent Father. As an example of this, the Respondent Father referred to a text sent on Christmas Day in 2020.
The Respondent Father contended that the Applicant Mother had not raised concerns about his caring for the Child previously and made reference to a character reference written by the Applicant Mother. The Respondent Father made reference to the concerns raised by the Applicant Mother and contended that they had not been raised with him and that he had not observed the Child crying herself to sleep.
The Respondent Father made reference to the police having attended on two occasions: “since [the Child] has remained in my care since January 2022”. The Respondent Father alleged that the police informed him that the Child is looked after and can remain with him. The Respondent Father made reference to being contacted by the police on 15 January 2022 and being asked his location. The Respondent Father identified that he attended Suburb H Police Station on 16 January 2022 with his parents and with the Child, and that the police spoke with the Child on that occasion and that they were free to leave.
The Respondent Father referred to the Applicant Mother attending his home on 17 January 2022, and alleged that she jumped the fence and proceeded to the rear-sliding door and began banging on the door. The Respondent Father stated that his mother went out to talk to her, and that he and the Child remained inside. The Respondent Father alleged that the Child appeared “scared” and he rang the police. The Respondent Father stated that his dad went outside to try and calm down both the Applicant Mother and his mother, and that the Applicant Mother eventually left. The Respondent Father referred to a friend arriving, and that as he was letting them in and closing the front gate, the Applicant Mother approached, and grabbed and ripped his shirt trying to get into the property. The Respondent Father alleged that the Child was outside, as she would not leave his side, and began screaming, pushing the gate and telling her mother, the Applicant, to go away. The Respondent Father alleged that the Applicant Mother then spat in his face and left.
On 18 January 2022, a police officer again attended the Respondent Father’s home, and made reference to having the Applicant Mother charged and arrested. The Respondent Father alleged that the mother was served with a provisional ADVO for his and the Child’s protection on 19 January 2022.
The Respondent Father made reference to the Applicant Mother sending messages on 20 January 2022 to both he and his daughter. The Respondent Father made reference to a message from the Applicant Mother, which read:
I’m so sad tonight because your dad and you had me go to jail for the day. I forgive you for what you have done. I want you to know how much I love you and always will. I don’t want to see your dad again or hear his voice. The only way to do this is to let you be with him and not me anymore, so he has no reason to contact me…
The Respondent Father made reference to receiving an email from the Applicant Mother under the subject heading “[The Child] Full custody,” which read:
You need to reply to this email confirming you will never contact me by phone, never come near my home … I don’t want to see you again; I know that whilst you are residing with your parents you both should be fine … no need to get lawyers to draw up a custody agreement. I’m not interested in seeing you again. [The Child] is the only reason you call, and now you don’t have any reason. You will need to arrange a suitcase for Ms J to pick up so I can put all [the Child’s] belongings for her. She can make arrangement with you on pickup, drop-off and she X if she wishes. [The Child] can send a list of all the things her sister mobile, and I’ll make sure she has them as I’m moving.
The Respondent Father made reference to police being present after the Applicant Mother had been served with the ADVO, and the police officer asking the Child as to whether she was okay, and the police officer gave the Respondent Father an event number. The Respondent Father made reference to the Applicant Mother not having suggested that the Child participate in any counselling or therapy given her concerns and contended that there had been a refusal to engage in dispute resolution, as suggested by his solicitors.
The Respondent Father sought to explain the steps taken in relation to the Child’s schooling, of contacting Suburb C Public School, and providing them with a copy of the ADVO, informing them of the circumstances, and seeking to enrol the daughter at Suburb B Public School. The Respondent Father then took steps to contact the Suburb C Public School principal to inform him of what was occurring, and alleged concern that one of the Applicant Mother’s family members would collect the Child while she was in his care, particularly as the Applicant Mother’s grandson attends the Suburb C Public School. The Respondent Father contends that the principal said:
It is probably best that she change schools.
The Respondent Father referred to there having been previously issues with the Applicant Mother. The Respondent Father referred to attending Suburb B Public School and enrolling the Child on 1 February 2022, and he provided the school with the Applicant Mother’s contact details on the Child’s enrolment form and was informed that the principal had spoken to the Applicant Mother.
The Respondent Father contended that the Child was in his care because he understood this is what the Applicant Mother had agreed to, and that he thought it would be more practical for the Child to attend school that is close to his proximity, where he could easily take her to and from school rather than travelling 40 minutes away.
The Respondent Father referred to the Child commencing school on 3 February 2022. He identified that he received a letter through his solicitor as to uncertainty as to what school the Child was attending. He asserted that the principals of both schools had confirmed that they had spoken with the Applicant Mother about the change of school.
The Respondent Father made reference to the Applicant Mother being married and having concerns about the Applicant Mother’s partner from conversations he had with the Child. He referred to events in around 2019, and then alleged there was an occasion in October or November 2021, and referred to a proposition that the Applicant Mother’s partner was screaming at the Child and threatening to hit her on the back of the head. Having rung the Applicant Mother, the Respondent Father alleged that he got a response that the Applicant Mother’s partner was just joking around.
The Respondent Father referred to an alleged conflict between the Applicant Mother and her husband and the Applicant Mother being pushed down the stairs. The Respondent Father also referred to a proposition that he had been told by the Child; that the Applicant Mother was leaving her husband and moving back to their old house. The Respondent Father alleged that he has been directly threatened on two occasions by the Applicant Mother’s husband. The Respondent Father alleged that the Child had been neglected and left alone on a number of occasions and referred to an occasion on 10 July 2021, when the Child rang him and the paternal grandmother went and collected her.
The Respondent Father acknowledged that the Child had spent no time with the Applicant Mother since the alleged incident in January 2022. The Respondent Father indicated that he had facilitated phone and video calls and alleged that the Child did not want to speak to the Applicant Mother following the incident on 17 January 2022. The Respondent Father allegedly encouraged the Child to message the Applicant Mother. However, the Child only decided to do this recently following his encouragement. The Respondent Father made reference to the Child messaging the Applicant Mother privately on her iPad.
The Respondent Father then made reference to his diagnosis in 2006 of schizophrenia and that he was prescribed medication. He asserted that he continues to take this as recommended by his treating doctor, Dr D at K Medical Centre. The Respondent Father alleged that he has complied with his medication and that the diagnosis does not impair his ability to care for the Child. The Respondent Father referred to steps that he had taken in relation to the Child and that he paid child support as assessed, that there are no outstanding arrears, and that he has assisted with expenses.
The Respondent Father made reference to the email sent on 20 January 2022. The Respondent Father identified that he lives in four-bedroom home and that the Child has her own bedroom. The Respondent Father alleged that he was unaware where the Applicant Mother was living or whether she remains living at the Suburb L property. The Respondent Father stated that the Child has the uniform, school books and stationery to attend the public school at Suburb B, and alleged that she has made friends whilst attending.
Consideration
The Court has taken into account the observations in respect of the interim hearing in Goode & Goode [2005] FamCA 1346 at paragraphs 65, 68, 70, 71, 72, 73, 81 and 82.
In relation to the legislative pathway, in respect of this interim case, the competing proposals of the parties are, by the Applicant Mother, that the Child live with her, and by the Respondent Father, that the Child live with him. The issues in dispute at the interim hearing are the parental responsibility for the Child, with whom the Child lives, and whether there should be ongoing significant and meaningful time with the parent with whom the Child is not living.
The Court raised with the representative for the Respondent Father whether the presumption in s 61A of the Family Law Act 1975 (Cth) (“the Act”) was rebutted in the circumstances of the present case, wherein it was apparent that there had been a failure by the Respondent Father to engage in cooperative parenting, both as a result of the withholding of the Child and the unilateral enrolling of the Child in a new public school, as well as, on the Applicant Mother’s case, what appears to be over-controlling behaviour of the Child by the Respondent Father, that is capable of being described as child abuse.
The solicitor for the Respondent Father suggested that the continued withholding of the Child was with the Applicant Mother’s consent, and made reference to the annexures to the Respondent Father’s affidavit. The first communication clearly identified a requirement to bring back the Child on Boxing Day. In no view did that text amount to consent for the Respondent Father not to return the Child to the Applicant Mother.
The reference provided by the Applicant Mother for the Respondent Father, dated 9 September 2021, was also relied upon. However, this occurred prior to the events the subject of these proceedings.
The text message sent to the Child from the Applicant Mother clearly conveys the situation as “I am not to see the respondent further” and expresses the Applicant Mother’s concern in relation to the ongoing welfare for the Child. The text message does not, on its proper construction, reveal any agreement by the Applicant Mother that the Respondent Father was entitled to retain the Child.
Reference was made to the email sent by the Applicant Mother on 20 January 2022, and the steps that the Respondent Father had taken to make charges against the mother of the Child and his having made the Child lie, and that the Child looked scared and was lying to protect the Respondent Father, and that:
A good father does not let his own daughter do this to her mother.
The email made reference to the Respondent Father’s father as “assisting him,” and trying to calm him down and be rational, and that the Applicant Mother hopes that the Respondent Father will get some help. Reference was made to the Respondent Father’s mental illness and that the Applicant Mother hoped that he would get medication but now has her doubts, and his using of the Child in relation to his medication.
In that email, the Applicant Mother states that the she had never stopped the Child from seeing the Respondent Father no matter how he behaved. It is implicit in the content of that paragraph that the Applicant Mother is referring to the fact that the Respondent Father has stopped her from seeing the Child. Reference is made to the Child growing up and realising that the Respondent Father was not mentally well and needs support. The Applicant Mother made express reference to the fact that she cares for the Child and is not interested in arguing in front of her and accepting that she needs her father.
Reference is made to suggesting that the charges be dropped so as not to put the Child in a position which would further impact on her and that the Respondent Father did all this in relation to a fear of losing the Child and that he made up a story as per usual.
The email makes reference to the following quote:
You need to reply to this email confirming, you will never contact me by phone, never come near my home and never put [the Child] in any danger or in a compromising situation.
Continuing that:
I do not want to see you again; I know that whilst you are residing with your parents you both should be fine. Although, I still have doubts about your mother seeking the right help for you.
No need to get lawyers to draw up custody agreement, I’m not interested in seeing you again. [The Child] is the only reason you call and now you don’t have any reason. In time, [the Child] will grow and come to me.
You need to reassure her; she is loved by both of us.
She can call her sister and not me. You will need to arrange a suitcase for Ms J to pick up so I can put all [the Child’s] belongings for her. She can make arrangements with you on pick up, drop up, and see X if she wishes.
[The Child] can send a list of all the things she wants to her sister’s mobile and I’m make sure she has them and I am moving.
I really fear she has the same genes as you! You both need love and support.
Good luck with your journey in life. Please get the help you need.
The email clearly reflects a level of distress in relation to the steps that are being taken in respect of having the Applicant Mother charged. On a fair reading, the email does not reflect an agreement to the steps that the Respondent Father has taken or a fixed intention that the Child is to live with the Respondent Father. Rather, the email reflects a level of distress in relation to how the Applicant Mother has been treated and was sent in response to an email from the Respondent Father, which said nothing more than:
Not agreeing with your condition my lawyers will deal with terms.
That was the Respondent Father’s response to an email sent by the Applicant Mother on 17 January 2022, which made it clear that there was no agreement in respect of the continued failure of the Respondent Father to return the Child to the Applicant Mother.
Also annexed to the affidavit was a note, dated 10 July 2021, written out, it appears, by the Child, in relation to the Applicant Mother not answering her text. The circumstances in which the Child was caused to create that document and date the same had not been explained by the Respondent Father.
The Court does not accept the Respondent Father’s solicitor’s submissions that the communications identify a consent to the conduct of the Respondent Father in relation to either the removal of the Child, the failure to return her to the Applicant Mother, and/or the steps taken in relation to the unilateral enrolling of the Child in a different public school.
At this interim stage, the Court is not satisfied that the parties can engage in shared parental responsibility. The recent failure of co-parenting supports this finding. Further, the conduct of the Respondent Father was over-controlling behaviour that amounts to child abuse, rebutting the presumption of shared parental responsibility.
The Court finds that the presumption in favour of shared parental responsibility is rebutted and that it would not be in the Child’s best interests for there to be equal shared parental responsibility at this time. The Court finds that it is in the Child’s best interests for the Applicant Mother to have sole parental responsibility at this time, and that the Child should live with the Applicant Mother.
Given that the Court has found that equal time would not be in the Child’s best interests, the Court must consider making an order for the Child to spend substantial meaningful time with the Respondent Father, as defined under s 65AA(3) of the Act, unless contrary to the Child’s best interests as a result of a consideration of one or more of the matters in s 60CC of the Act.
In the present case, the Court is of the view that the Respondent Father’s conduct shows an absence of understanding of his parental responsibilities and the best interests of the Child, and that there is an urgent need for him to undertake an appropriate parenting course.
Of more concern in relation to s 60CC of the Act, whilst the Court is required to consider a meaningful relationship with both parents, there is also a need to protect the Child from harm. In the present case, given the reference to the Respondent Father’s schizophrenia and the absence of any proper medical evidence as to his current condition, the following of regular medication and an appropriate program, the Court is not satisfied that it would be the best interests of the Child to permit contact, other than video and telephone contact, with the Respondent Father until appropriate medical evidence has been put on as to the Respondent Father’s ability to look after the Child, notwithstanding his mental health issues.
The mental health issues identified, the ones touched upon in the Notice of Risk of Family Violence filed by the Applicant Mother on 10 February 2022, refer to the holding of the Child, and that the same amounts to family violence that exposes the Child to an unacceptable level of psychological harm. The Notice of Risk also refers to the Child being removed from regular school and that the Child is believed to have been giving the Respondent Father his medication for schizophrenia. There are also conversations alleged in relation to the threat to the Respondent Father if the Child did not look after him identifies a proper basis for the expressed concerned as to coercive behaviour that creates an unacceptable risk of potential psychological harm to the Child.
The Court assesses the risk in light of the alleged conversation to be one that outweighs, in the short-term, the need for significant and meaningful time. In light of this risk, the Court finds that it would not be in the best interests of the Child to permit real and significant time with the Respondent Father until appropriate medical evidence has been put on, on behalf of the Respondent Father, as to his mental health and ability to care for the Child, as well as the undertaking of an appropriate parenting course and reflections as to his insight from that course.
The Court has taken into account the alleged incident by the Respondent Father, with the Applicant Mother allegedly tearing his shirt, going through the gate whilst the Child was present. The Applicant Mother denies the incident and the incident occurred in obvious circumstances of aggravation where the Respondent Father was withholding the Child. It is sufficient to say that it is difficult to understand the nature of the basis upon which the charge was issued. Further, the ADVO does not prevail over the orders of this Court. The Court does not accept that the Respondent Father’s Notice of Risk identifies any real risk to the welfare of the Child by reason of which it is not in the best interests of the Child to make the orders identified.
In light of the findings made by the Court, this is not an appropriate case for the spending of equal time with the parents. Until the steps that have been identified have been undertaken by the Respondent Father, the Court is not satisfied that it is appropriate for there to be substantial and significant time spent by him with the Child.
The Court does accept that audio and video communication would be in accordance with the Child’s best interests and has made an order facilitating that contact. The Court is satisfied that the proposed orders will best promote the Child’s best interests.
The Court has listed the matter for an interim hearing at the end of April, which would facilitate, if appropriate, revisiting and making appropriate orders for significant, substantial time in relation to the Respondent Father.
The Court notes that it has also taken into account, in the present case, that the preservation of the well-settled environment of the Child with the Applicant Mother prior to the removal by the Respondent Father, the time of which has now exceeded 48 days, is one that would provide a level of stability that advances the best interests of the Child.
In effect, refusing to return the Child to the Applicant Mother prevented the stability that had been in place and that stability was further undermined, to the detriment of the best interests of the Child, by the unilateral change of school. The return of the Child to the Applicant Mother is in the Child’s best interests in the short term. The Applicant Mother having sole parental responsibility for the Child is in the Child’s best interests. The Child living with the Applicant Mother and communicating, at this stage, only by telephone and audio link with the Respondent Father is in the Child’s best interests.
The Court notes that it has also taken into account the observations of MacMillan J in Barnham & Timbrell [2021] FedCFamC1F 36 at 20-26. The Court has also taken into account the broad definition of abuse in relation to a child as identified in s 4 of the Act, and the meaning of family violence as identified in s 4AB of the Act.
The Court has found that, whilst this is an Interim Hearing only, there is sufficient evidence of coercive behaviour by the Respondent Father as would amount to child abuse and fall within the meaning of family violence as defined in s 4AB of the Act, so as to displace the presumption referred to earlier, and by reason of which it is in the best interests of the Child for the Court to make the orders identified.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Street.
Associate:
Dated: 28 April 2022
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