Kavran & Vinko (No 2)

[2023] FedCFamC2F 1272

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kavran & Vinko (No 2) [2023] FedCFamC2F 1272

File number:

PAC 616 of 2022

Judgment of:

JUDGE STREET

Date of judgment:

2 August 2023

Catchwords:

FAMILY LAW – PARENTING- interim parenting orders   

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Division:

Division 2 Family Law

Number of paragraphs:

24

Date of hearing:

1 & 2 August 2023

Place:

Sydney

Counsel for the Applicant:

Mr L Teoh

Solicitor for the Applicant:

G & S Law Group

Counsel for the Respondent:

Mr D Blackah

Solicitor for the Respondent:

Marsdens Law Group

Counsel for the Independent Children’s Lawyer:

Mr K Francis

Independent Children’s Lawyer:

Law K Law

ORDERS

PAC 616 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS KAVRAN

Applicant

AND:

MR VINKO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	2 AUGUST 2023

THE COURT ORDERS THAT:

1.The matter is stood over part heard for a final parenting hearing commencing at 10:00AM on 4, 5 and 6 October 2023 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

2.Leave is granted to the parties, including the ICL, to issue more than five (5) subpoenas.

3.Leave is granted to the parties, including the ICL, to have photocopy access and/ or digital access to the material produced under subpoena, subject to any proper notice of objection.

4.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.

5.There is no order as to costs in relation to the setting side of the subpoena.

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

6.All earlier parenting orders are vacated.

7.The mother shall have sole parental responsibility for the child X (born in 2012) (‘the child’).

8.The child live with the mother.

9.The child shall communicate with the father in accordance with her wishes using her mobile phone.

10.The father is not to initiate calls, text or other communication on the child’s phone unless expressly requested by the child on a specific occasion to do so.

11.The child may spend face to face time with the father in accordance with her wishes.

12.The father is to ensure that if the face time is overnight that at least one of the grandparents are present.

13.In relation to face-to-face time, the father is to ensure that the child is able to use her mobile phone to contact her mother at all times and is to take all necessary steps to immediately facilitate the return of the child to the mother upon the child’s request.

14.Handover of the child is to occur at McDonald’s, located at M Street, Suburb N unless the parties otherwise agree in writing and neither parent is to leave their vehicle if in attendance of that handover except in the case of emergency.

15.The father is required to continue psychological therapy on at least a monthly basis in order to acquire a better insight and understanding as to his daughter’s needs, his parenting obligations and how to empathise with his daughter and to validate her emotions and to listen to her, prioritising her needs over his.

16.The father is to continue seeing his local GP at least once every three months in relation to his own health and mental wellbeing and is to take any steps recommended by his GP to see a psychiatrist or other specialist.

17.All communications between the mother and the father in relation to the child must be through the MyMob parenting app.

18.The parents are restrained from communicating in relation to all parenting issues through the child.

19.Both parties are restrained from engaging in any corporal or physical punishment of the child or permitting anyone else to do so.

20.Both parties are restrained from denigrating, criticising or gaslighting the other parent in the presence of the child or permitting anyone else to do so in the presence of the child.

21.The father has authority to receive a copy of all school reports concerning the child.

22.Within seven days of any receipt of doctor’s or specialist report in relation to the child the mother is to forward the same to the father through the MyMob app.

23.The mother is to inform the father as soon as reasonably practical in the event of any serious illness or serious incident in relation to the child using the MyMob app.

24.The father, whilst the child is in his care, is to inform the mother as soon as reasonably practical in the event of accident, illness or welfare incident in relation to the child using the MyMob app.

25.The ICL explain these interim parenting orders to the child as soon as practicable.

THE COURT NOTES THAT:

A.The ICL in explaining these orders to the child, the substance of most of these interim parenting orders for the best interests of the child were agreed to by the parties.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. These are parenting proceedings that were commenced on 10 February 2022 in relation to the child of the applicant mother and respondent father, X, born in 2012.  The matter was fixed for a final hearing commencing yesterday and it became apparent today that the matter would not finish and the Court accepts the estimate by Mr Blackah of counsel that it may take another three days.  There are existing parenting orders that were in place.  The Court is satisfied that on the further information it currently has in front of it, even though it is not in a position to make final findings, it is appropriate and in the best interests of the child that those earlier parenting orders are vacated.  The Court is satisfied that it is in the best interests of the child to make the interim parenting orders that the Court has pronounced.  The Court has taken into account the principles in section 60B of Part VII, as well as the principles in section 69ZN.  The Court is mindful under section 60CC in relation to prioritising the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence under section 60CC(2) as the dominant primary consideration over the other primary consideration for a meaningful relationship. 

2. In the present case there has been conduct that falls within the meaning of family violence in s4AB by reason of the withholding of the child by the respondent.  It’s not necessary for the Court at this stage to make final findings in that regard, but it is sufficient to identify that it rebuts the presumption of shared parental responsibility for the purpose of the interim orders.

3. Mr Blackah of counsel on behalf of the respondent indicated that the Court hadn’t yet heard the whole of the case and that it was premature to making the order in relation to parental responsibility.  It is, however, apparent that there has been serious conflict between the parties in relation to parental responsibility.  The Court is satisfied that the mother is able to meet the whole of the child’s needs and has been the primary carer for the child and that in the present case the presumption for shared responsibility is in relation to this interim hearing rebutted, and that it is appropriate so as to prevent any further incidents between the mother and the father, or disputes in relation to schooling such as in respect of scripture to ensure that the mother has sole parental responsibility.

4. The Court has also taken into account that on the evidence that has been adduced so far there are issues in relation to the father’s parental ability capacity.  That said, it is patent that the father very much loves his daughter and that there is a mutual love in that regard by the child, and while the Court’s not making final findings, it appears that the mother has taken proper steps to try and encourage that relationship.  The child was spending overnight time with the father prior to events in which the child was withheld which is the fact if the Court has taken into account at this interim stage in rebutting the presumption of shared equal parenting.  The Court is satisfied that making interim orders is most likely to advance protecting the child from physical or psychological harm at this stage in accordance with the dominant second primary consideration, and notwithstanding the interim nature of this hearing for the purpose of these parenting orders in the absence of the whole of the evidence, the Court is satisfied that it is in the child’s best interests to make an interim order in relation to parental responsibility being the sole responsibility of the mother at this stage. 

5. The Court in making this order has taken into account the additional considerations.  In the present case the child is 11 and has expressed what has been described by the ICL as strong views to communicate and have contact with the father in accordance with her own wishes.  The Court accepts that at a younger age it is apparent that the child expressed wishes not to see the father and that it is apparent that she then enjoyed seeing the father when, in fact, that occurred.  However, at this interim stage the Court is of the view that the child’s strong wishes to spend time with the father, as she wishes, identify a potential for psychological harm if the Court overrides her wishes in relation to her relationship with her father, given the expressed love for her father and her request as sometimes occurs in cases where a child says they never want to see the parent again.  In this case the child has simply said she wants some time.

6. Validating and accepting the wishes of the child is an important step in a parent earning the child’s trust and creating the type of emotional support that is constructive for the child.  In the circumstances of this case the Court is satisfied that it is in the best interests of the child and appropriate to take into account the child’s strong views in relation to the communications and face to face time being in accordance with her wishes.  There had been a level of contact taking place through supervision. 

7. While the Court has been taken through some of the material in that regard, it is apparent that the supervised access is not the best way to advance the meaningful relationship for the child with her father, and to again impose a level of supervised regime is not validating the child’s wishes to be in control of her relationship with her father.  The Court has taken into account that it is apparent that the child has a close and loving relationship with each parent and it is apparent that the mother has met the child’s needs in respect of her parental obligations.  There have been limitations in relation to the respondent father’s ability to meet the child’s needs and the Court has taken that into account in the making of orders for the ongoing assistance from a psychologist.  The Court is also alive to the fact that the father has other issues and the extent of those other issues are ones in respect of which it is appropriate for him to ensure that he’s taking appropriate steps assisted by appropriate experts.  In relation to failing to take an opportunity to participate in relevant decisions and to spend time with the child or communicate with the child, the Court is not in a position to make final findings but does accept that each parent has demonstrated a willingness to participate in the child’s life. 

8. However, it is apparent that there have been conflicts and major long-term issues such as religious education, and the unilateral taking of steps by the father to change the scripture classes to his preferred Catholic denomination was coercive and controlling conduct of a kind that was not appropriate in the context of a failing to communicate in that regard with the mother before taking those steps, which should not have been taken. 

9. In relation to communicating with the child, it is apparent that the child has expressed a view at the last time at the supervised centre that she did not wish to see the respondent.  The mother did take the child to the supervised centre.  The Court is not of the view that the mother failed to comply with the Court’s orders in that regard.  It was apparent that it was a supervisor, consistent with the rules of the supervision centre, who decided that it was not appropriate to compel the supervised access to take place.

10. In relation to s60CC(3)(ca) it is apparent that the father has failed to fulfil his parenting obligations by withholding the child.  It is not apparent to the Court at this stage that there has been any significant failure by the mother, but the Court is not in a position to make final findings in respect of the criticisms of the mother that have been raised. 

11. In relation to changes in circumstances, the overnight time and face-to-face time ceased after the withholding of the child and it is apparent that the child has a close relationship, in particular, with the paternal grandmother and the orders that have been made, in short, that one of the grandparents will be present for overtime wished by the child with the father.  This is not a case where there is practical difficulty in complying with the orders.

12. In relation to s60CC(3)(f), the Court has no concern in relation to the capacity of the mother to meet the needs of the child, including her emotional and intellectual needs.  The Court does have concerns in relation to the capacity of the father to provide for the child’s needs, including emotional and intellectual needs.  Specifically, it is apparent on the material before the Court that there have been occasions where the father has been prioritising his own needs over that of his daughter.

13. In relation to the child’s maturity, whilst the child is, on one view, still relatively young, the Court is satisfied that she has a comprehension and adequate maturity to give weight to the views that she has expressed.  The Court has taken into account also that there is a different background between the parents and the father has a Catholic family background and that there are other issues, like agoraphobia, which the father has had to deal with. 

14. Section 60CC(3)(h) does not apply.  In relation to s60CC(3)(i) it is apparent that the child has identified a wish in relation to communications.  It is not apparent that the respondent father has demonstrated an understanding of the importance of the attitude of the child at this stage, albeit the Court is not in a position to make any final orders in that regard.

15. In relation to section 60CC(3)(j), there has been family violence, as the Court has earlier identified in terms of the withholding of the child.  There is an AVO in place and it is for that reason the Court has made orders in relation to changeover to try and ensure no conflict in the presence of the child between the parties and no violation, in that regard, of the ADVO beyond what is necessary in the best interests of the child to facilitate the handover. 

16. The Court does not propose to make further findings in relation to the ADVO at this stage.  The Court is satisfied that the proposed orders are likely to assist the parties in relation to resolving the matter rather than give rise to further proceedings, albeit the matter is already part-heard.

17. The Court has also taken into account that the parties have identified a high level of potential agreement on a number of issues and that there are only limited issues on which it is apparent that there has been and continues to be an impasse. 

18. One of the areas of impasse raised by Mr Blackah in addition to the issue of interim sole parental responsibility was suggesting that there should be an order for family therapy to which the mother should attend and facilitating and encouraging the child to attend.  That family therapy order, on one view, is another reflection of the respondent father seeking to prioritise his needs rather than the needs of the child. 

19. This is not a case where it’s apparent that there is any parenting responsibility lacking in the mother, albeit the Court has not finally determined that issue.  It is the case where it is apparent that there are issues in relation to the father’s parenting capabilities and it is for that reason the Court has made the orders in relation to the ongoing psychological therapy and expressly identified the matters that should be addressed.  The Court is not of the view that it will assist the child to be placed back into a position of potential conflict with a therapist seeking to intervene in order to seek to advance a relationship rather than giving the child the ability herself to control that relationship. 

20. The respondent father, obviously, has to be very much alive to the fact that the time he then spends with the child and how he interacts with her and the way in which he interacts with her as well as speaks of the mother will have a serious and immediate impact on the child’s willingness to return or spend further time with him. It is very much in both his interests and the child’s best interests to ensure that he complies with the Court’s orders and restraints that the Court has identified so as to ensure that he endeavours to meet the child’s emotional and intellectual needs and to prioritise her needs.

21. The ICL also raised the possibility of a restraint in relation to a former partner of the applicant mother.  It is the case that there are notes that identify expressions of concern by the child in relation to that person.  The Court is not, however, at this interim stage, of the view that the mother has displayed any lack of willingness to prioritise the safety of the child over any other circumstance, including introducing some other partner or person.  The Court does not regard it as appropriate to constrain the mother’s relationships whether it is to be with the person the subject of the proposed interim order by the ICL or otherwise and the Court is not satisfied that there is a sufficiently identifiable risk in relation to the best interests of the child taking into account the considerations identified at this interim stage that warrant the making of a restraint relating to Mr Kavran. 

22. The Court does propose that these orders will be explained to the child by the ICL as soon as practicable.  The Court adds that it is appreciative of the steps that have been taken both by the parties and solicitors and counsel to narrow the issues and accepts that the legal representatives and parties have endeavoured, with good will to try and narrow those issues for a final resolution that, unfortunately, has eluded the parties to date.  The Court hopes that the parties might continue to explore that between now and the next hearing date.

1. The applicant’s adult daughter was the subject of a receipt of a subpoena.  The subpoena asked for her medical records.  The Court upheld a notice of objection that was lodged on her behalf using the same lawyers as retained for the applicant mother.  The Court is not satisfied it is an appropriate matter on which to make a costs order in relation to the subpoena.  Mr Blackah identified a potential rational and logical argument in support of the argument as to possible relevance. 

2. The Court upheld an objection that was advanced by counsel for the applicant mother that it was a fishing exercise and the Court found that it lacked relevance to the issues in the case and rejected the relevance argument advanced.  The Court does not regard it as giving rise to a circumstance that makes just an order under section 117 in relation to costs in respect of the subpoena and the Court has taken into account the considerations under subsection (2A).

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.

Associate:

Dated:       4 October 2023