Kazarian & Kazarian
[2021] FedCFamC1F 349
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kazarian & Kazarian [2021] FedCFamC1F 349
File number(s): SYC 7424 of 2021 Judgment of: CAMPTON J Date of judgment: 20 December 2021 Catchwords: FAMILY LAW – PARENTING – Interim order – Where the mother contends the father poses a risk of harm to the child arising from an exposure to the father’s alleged extreme political views – Where the father was ordered to file material and did not – Where the father did not appear at the interim hearing – Where further interim orders were necessary to regulate the child’s parenting prior to commencement of high school, including for the enrolment of the child at a high school – Where interim orders are made as proposed by the Independent Children’s Lawyer and the Mother – Orders for the child to live with the mother and spend time with the father on terms Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 20 December 2021 Place: Sydney Solicitor for the Applicant: Clinch Long Woodbridge Solicitor for the Respondent: No appearance Solicitor for the Independent Children's Lawyer: JLM Family Lawyers ORDERS
SYC 7424 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KAZARIAN
Applicant
AND: MR KAZARIAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
20 DECEMBER 2021
THE COURT ORDERS THAT:
1.The proceedings are listed for Interim Hearing before a Senior Judicial Registrar at 10.00 am on 11 March 2022. The Court to advise the parties and Independent Children’s Lawyer if the hearing is to proceed in person or by Microsoft Teams format.
2.That the time for the father to comply with Order 9 made on 22 October 2021 be extended until on or before 13 January 2022.
PENDING FURTHER ORDER:
3.With the consent of the mother and the Independent children's lawyer and on an undefended basis as against the father orders are made in accordance with paragraphs 1 to 15 of Exhibit 5 as attached hereto.
4.I note the contents of the notation contained in Exhibit 5.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kazarian & Kazarian has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
These are proceedings initiated by the Ms Kazarian (“the mother”) as to parenting orders in respect of a 12 year old child of her and Mr Kazarian (“the father”), namely X, born in 2009 (“X”). He is the only child of the parties. The parties married in 2006, and separated on 1 December 2015. They are divorced.
Prior to X’s birth, both parties were full-time students and working part-time. After X was born, the mother stopped working and reduced to part-time study. The father, on the mother’s case, continued full-time study and worked part-time. It is the mother’s case that she was primarily responsible for X’s care, while the father assisted in some care tasks when he was at home.
In June 2011, on the mother’s case, the parties agreed that she would commence working full-time, so the father could pursue work on a part-time basis. It is the mother’s case that from this time, the father and the maternal grandparents shared X’s care during weekdays, and the mother would resume caring for X in the evenings. It is the mother’s case that in June 2012 that she stopped working and commenced to stay home to look after X, and the father commenced his own business.
In July 2015, the parties moved to the United States (“US”). It is the mother’s case that the father obtained volunteer work during this time. The parties returned to Australian in December of 2015 and separated upon their return.
It is the mother’s case that in 2017 she observed the father to become a supporter of the former US president, Donald Trump. It is her case that from around 2020, the father’s political views became extreme and it became an issue between the parents. During the March 2020 COVID-19 outbreak, the father’s behaviour, to the mother’s observation, escalated and intensified as to the expression of extreme views. She described these views as paranoid. I cannot be satisfied as to the accuracy of that opinion. The mother records in her affidavit evidence that the views expressed by the father caused communication to break down between the parties, and it was the mother’s view that she could no longer facilitate the father spending time with X in safe circumstances.
The mother commenced these proceedings by way of filing her Initiating Application on 13 October 2021. It was returned with short notice. The mother in her affidavit, and in achieving a listing at short notice, recorded behaviours that she contended posed an unacceptable risk should X come into the father’s care, with that risk escalating. The behaviours summarised in her affidavit included:
(a)The father placing a pocket knife in X’s school bag and asking X to keep it secret;
(b)The father expressing radicalised views as to the origins of the COVID-19 pandemic, and holding extreme anti-vaccination views;
(c)The father expressing an opinion to the mother that she sexually abused him when he was 20 years old;
(d)The father expressing views to the mother that she had been programmed by a government operative to do the government’s bidding;
(e)The father expressing views that X should not attend formal high school; and
(f)Some contentions as to marijuana consumption.
In her more recent material, she has said that the father has expressed extreme views to X during FaceTime calls and that on her intervention these views appear to have regulated. It causes the Court and the Independent Children's Lawyer, on my interpretation, some concern as to the impression that the mother monitoring the FaceTime calls may create X’s perceptions, and that this may be to his adverse interests. But that, of course, is a matter of balance. The mother on a final basis is seeking orders for sole parental responsibility, for X to live with her and for there to be no time with the father. She is seeking orders for the father to be referred to a psychiatrist in respect of his mental health. She seeks orders by way of hair follicle testing as to drug and alcohol consumption.
On the matter being listed urgently before me on 22 October 2021, the father appeared in person. He had been served three days before the listing, and sought an adjournment to obtain legal advice and put on some material. I made orders on 22 October 2021 for X to live with his mother until today, and for him to communicate with his father on Tuesdays and Thursdays by way of FaceTime, and by text message at all other reasonable times. Orders were made for X’s representation by Ms Newlands today (as the Independent Children’s Lawyer). The father was directed to file a Response to the Initiating Application, any interlocutory orders he sought, and affidavit material, together with a Notice of Risk, on or before 4.00 pm on 6 December 2021. He has not done so.
Orders were made for X and the parents to engage with a Court Child Expert for the purpose of preparing a child impact report in January of 2022. That report and process is yet to occur. At the appearance on 22 October 2021, the father impressed me as being open and sincere. During the course of the exchanges on that day, he indicated that he did not oppose X attending high school, commencing year seven in 2022, and a number of exchanges occurred as to whether that would be at B School or D School.
The father contended that he would put into evidence an email from the mother whereby she agreed, in writing, as to the parties equally sharing the care of X throughout 2021 during the current COVID-19 public health orders operating in New South Wales. That email has not come into evidence at this time. It may be that the Independent Children's Lawyer will be able to source it from the father, or the mother will disclose it in accordance with her obligations pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). During the course of the exchanges with the father on 22 October 2021, I canvassed with him as to whether he would exercise time with his son on a supervised basis over the period of the adjournment he sought to place his evidence before the Court. He indicated that he would prefer not to have such supervised time occur on a face to face basis. It was his view that doing so would create pressure for X.
He also was concerned about X being influenced by the mother, his observation being that he is a very compliant child. In circumstances where the orders made on 22 October 2021 expire at 4.00 pm today, and where it is imperative that X’s education and schooling is secured before the school year commences at the end of January 2022 (being a date before the proceedings can again be returned to the Court), I am of the view that it is in X’s best interests to proceed to make further orders regulating his parenting, pending the matter being returned to the Court subsequent to the release of the child impact report.
When considering the interim orders to be made, it is necessary for me to identify the competing proposals of the parties. In that regard, there is no proposal currently before the Court of the father, save and except those articulated by him in the course of exchanges on 22 October 2021. I am required to identify the issues in dispute and to look to the uncontested facts in an attempt to craft a regime regulating X’s parenting, pending the matter returning to the Court. It is necessary for me to have regard to the matters in dispute, and to weigh those matters in achieving a regime to best promote X’s interests.
Longstanding authority makes it clear that I ought not make findings of risk at this interim hearing stage, but must assess risk in achieving a balance between what is identified in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) as to X having a meaningful relationship with each of his parents, and protecting him from physical or psychological harm, or from being subject to or exposed to abuse, neglect, or family violence.
I am grateful for the manner in which each of the mother and the Independent Children's Lawyer have conducted the hearing today in an effort to promote X’s best interests. The Independent Children's Lawyer has helpfully identified from the material contained in both the affidavits and the tender bundle that both parents’ mental health is a relevant issue to be explored in crafting orders for X’s parenting going forward. The Independent Children's Lawyer submitted, and I accept from the material available to me at the present time, that the mother’s mental health is well managed and that there are some aspects of the father’s mental health that are unclear and require clarification. An order will be made to progress those particular matters.
The Independent Children's Lawyer expressed an appropriate submission to the effect that the Court simply does not have sufficient information to achieve clarity on the father’s mental health presentations at the current time. She has attended upon X in conference. She has expressed that X is a 12 year old child who historically has had a meaningful relationship with his father and is keen for that relationship to continue, including spending time with his father. The mother and the Independent Children's Lawyer have conferred in an effort to place a scaffold to mitigate risk to X, pending further inquiry by way of the child impact report and any further evidence from the father, as contained within Exhibit 5 being a proposed set of orders consented to by both the mother and the Independent Children’s Lawyer.
It is important for X to have the capacity, should his father accept it on terms, to physically see his father over the forthcoming Christmas period and during the school holiday period until the proceedings can be returned to the Court for further hearing on 11 March 2022. In coming to the decision as to what orders are to be made in X’s best interests, I balance the matters that I have identified in these reasons for judgment. In my view, the orders to be made ought be in accordance with Exhibit 5 as amended. I am of the view that having regard to the primary considerations and the additional considerations as set out in s 60CC of the Act, and in light of the history of this matter and of the evidence that I have identified, it is in X’s best interests at this stage for orders to be made in those terms. I make the orders as set out herein.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 19 January 2022
0
0
0