KOCAK & FAHRI

[2019] FamCA 538

FAMILY COURT OF AUSTRALIA

KOCAK & FAHRI [2019] FamCA 538

FAMILY LAW – CHILDREN – Interim arrangements in respect of child aged seven – where mother failed to appear on the second day of trial – medical certificate as to mother’s mental health – child placed in the care of her father – trial adjourned to date to be fixed pending resolution of mother’s health issues.

Family Law Act 1975 (Cth) s. 60CC

APPLICANT: Ms Kocak

RESPONDENT: Mr Fahri

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 5924 of 2018

DATE DELIVERED: 16 August 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 30 and 31 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Teffaha

SOLICITOR FOR THE APPLICANT: Advocate Me

COUNSEL FOR THE RESPONDENT: Ms Dellidis

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Brennan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders made 31 July 2019

1. Until further order all existing parenting orders are suspended in their operation.

2. Until further order the child X born … 2012 (‘the child’) spend continuous time with the father on the following conditions:-

   (a)in respect of all such time the father’s sister Ms B be in substantial attendance;

   (b)the child spend all overnight periods in the home of Ms B being between the hours of 6.00pm and 7.00am and THE COURT NOTES such home is also the accommodation of the father;

   (c)the father make all necessary arrangements of the child to speak with his mother this day and at his discretion thereafter with the father to terminate any such calls if he observes the child to become unduly distressed.

3. The mother forthwith provide to the father’s solicitor and/or the father any prescriptions made out for the child.

4. The father administer any necessary medication(s) to the child in accordance with any prescriptions and/or medical advice obtained by him.

5. The mother attend upon an independent psychologist as nominated by the ICL for the purposes of assessment as to her current mental health functioning, including whether she presents any risk to her child and a report shall be prepared containing this assessment. The cost of such attendance and report be borne by the father at first instance and he be at liberty to get costs from the mother hereafter in any proceedings between them.

6. Until further order, the mother or any of her servants and/or agents are prohibited from attending upon or being within 200m of:-

   (a)       the child’s school;

   (b)       Ms B’s home; and

   (c)       any place at which the child is undertaking extra-curricular activities.

7. These orders be served by the solicitor for the father upon the Registrar(s) and Professor D of the F Hospital to enable the father to obtain all and any necessary access to medical information regarding the child including the ‘F Hospital Portal’. The father is permitted to access all such information and/or records of the child and until further order the father has sole parental responsibility in respect of these matters.

8. The father be permitted to remove the child from the level five child dispute services area this day.

9. Otherwise all extant applications are adjourned to a date to be fixed.

AND THE COURT NOTES:

A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5924  of 2018

Ms Kocak

Applicant

And

Mr Fahri

Respondent

REASONS FOR JUDGMENT

(In support of orders made 31 July 2019)

Background

1. On 30 July 2019, the trial of the matter, in respect of the parenting orders sought by each of the parties, commenced.  The trial was to run for some number of days.  At the conclusion of the parenting orders determination, there was then to be a determination of the property matters outstanding as between the parties.  Joined to the proceedings in respect of the parenting orders’ applications was an Independent Children’s Lawyer.

2. On the first day of the trial, the mother appeared as a litigant in person.  Counsel represented the Respondent father, and Counsel appeared for the Independent Children’s Lawyer.  The proceedings commenced, and numerous objections were taken by both Counsel to the affidavit of evidence-in-chief relied upon by the Applicant mother, together with the myriad of documents sought to be tendered in evidence by her.  Those objections to evidence were then made and dealt with by the Court during the course of the proceedings on the first day of the trial, and some remained outstanding into the second day of the trial.

3. At the commencement of the second day, being Wednesday 31 July 2019, the mother failed to answer the call, and a lawyer in the courtroom, Ms Teffaha, indicated to the Court that she sought to appear on the mother’s behalf.  Whilst Ms Teffaha had not filed a notice of address for service to indicate to the Court and other parties that she appeared on behalf of the mother, she nevertheless sought to be the solicitor on the record for at least that day. The Court acceded to that request. Ms Teffaha then filed a notice of address for service dated 31 July 2019. Ms Teffaha sought an adjournment of the proceedings.  Ms Teffaha indicated to the Court that the mother was “severely unwell”, and thereafter “extremely unwell” and as a consequence, the mother was unable to be present in the Court that day.

4. Ms Teffaha handed up to the Court a medical certificate in support of her application for an adjournment of the proceedings to a date to be subsequently determined.  That medical certificate was first viewed by Counsel for the father, and then Counsel for the Independent Children’s Lawyer, before being viewed by the Court.  The medical certificate could only be viewed on Ms Teffaha’s mobile telephone.  The medical certificate stated that the mother was suffering from a “mental health crisis”, not further particularised, and that the mother had been prescribed medication, also not further particularised.  The medical certificate did not describe why the illness suffered by the mother precluded her from attending at Court on that date or any other.  It simply stated that for the duration of the listing of the matter, which was until the end of the week, the mother would be unable to attend at Court due to the mental health crisis suffered by her. 

5. Ms Teffaha submitted to the Court that she was a corporate tax lawyer and disclosed that she considered herself a mutual friend of the mother and father, and had been involved in the past, in a limited way, in the care of the parties’ son X born in 2012 (‘the child’), who is now seven years of age.  Ms Teffaha submitted to the Court that the mother was seeing her treating psychologist that day and that the mother had placed the child in the care of a Ms C, who was described as a babysitter well familiar with the child.  Ms Teffaha described the mother as “crying and very, very heavily distressed”.  Ms Teffaha described the mother as being in no condition, from her observation, to attend at Court.  She was nevertheless able to provide Ms Teffaha with some instructions. 

6. No objection was taken by Ms Teffaha on behalf of the mother to the making of an interim watchlist order in usual terms to include restraint on both the mother and father in respect of their removing the child from the Commonwealth of Australia.  The seeking of such order was by the Independent Children’s Lawyer, in the circumstances that had arisen, where the Independent Children’s Lawyer was not able to ascertain from the Country L consulate whether the child held a Country L passport without the necessary proper application being made.  There was, at that time, no opportunity to obtain a response from the Country L consulate to any application that day, and no application had previously been made, as the mother’s state of health was not previously disclosed. 

7. Thus, during the course of the proceeding, the Court made the following orders and adjourned the proceeding to the afternoon:-

   (1) UNTIL FURTHER ORDER, the child, subject to the Order, is restrained from leaving the Commonwealth of Australia.

   (2) Each party Mr Kocak born in 1976 and Mr Fahri born in 1966, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child X born in 2012 (‘the child’) from the Commonwealth of Australia.

   (3) IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until the Court orders its removal.

   (4) This Order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done by consent in writing (authenticated as prescribed in accordance with reg.13 of the Family Law Regulations 1984 (Cth)).

   (5) The mother do all acts and things necessary to cause the child to be delivered to the Child Dispute Services section on level five of the Commonwealth Law Courts building at 2.30pm to meet with family consultant Ms G and the Independent Children’s Lawyer and/or the Independent Children’s Lawyer’s Counsel and/or any other person(s) Ms G deems appropriate.

   (6) The proceedings be otherwise adjourned to 3.00pm this day.

Ms G's Evidence

1. When the matter resumed, in the afternoon of 31 July 2019, Ms G, family consultant, gave oral evidence.  Ms G had prepared a family report dated 27 November 2018 and was due to be cross-examined later in the week in respect of the contents of that report.  As a consequence of the making of order 5 above, Ms G had the opportunity to (that day) observe the child with his father. Prior thereto she had met with the Independent Children’s Lawyer, and the Independent Children’s Lawyer’s barrister, who provided to her some context as to the reasons why she was asked to meet with the child that day, specifically whether it was appropriate for the child to see his father that day, or to spend any time with him in circumstances where the resident parent, his mother, was suffering from a mental health crisis.

2. Ms G and the Independent Children’s Lawyer met with the child. The child engaged briefly with the Independent Children’s Lawyer.  The child indicated to both that, upon leaving the Court, he would be going home with [Ms C], the babysitter. Ms C had accompanied the child to the Court building.

3. Ms G had earlier observed the child with his father in November 2018.  She noted, in observing them on 31 July 2019, that:-

   [X] was happy to converse with his father in a limited way.  I’ve got a sense that there was some reservation there compared to the time that I saw him in November last year.  By this stage, when I was asking [X] questions, he was not responding.  And so my impression was that he had a preference for his father’s care over the care of a stranger or being engaged with a stranger.

   Thereafter, Ms G, toward the end of her brief observation of the child with his father, observed that:-

   His father made mention of [X’s] best friend, [Y], I think it is, who lives nearby.  They might go and visit in him.  [X] was slightly more engaged around that possibility.  His father got out his mobile phone and was showing [X] a video, and [X] stopped what he was doing and lent into his father.  So that was the first time that I observed any sort of physical contact between them.  And he seemed quite content nestled into his father’s neck as he watched the video.  I think the video was of a previous time they had together.  And then [X] moved away from that.  His father – he went to some computer games.  His father sat nearby him.

   [X] – there was no obvious signs of distress or anxiety in [X], nor were there any statements made by [X] that would give rise to concern on my part about his father’s presence, and that when we left the room, [X] was again content playing on his computer games.  His father’s farewell to him was appropriate, not offensive, just a quick goodbye.  “I will see you soon”.  And so that struck me as a really uneventful observation and I was not concerned about how the father was interacting with [X].  I was aware, I should say, that I was aware that there had been a break in time between [X] and his father seeing each other.  I then left.

   (errors in original)

4. Ms G proceeded to give further evidence which went to the father’s capacity to be able to care for the child. She considered it unchanged (from her assessment in November 2018) namely, the father is “a competent caregiver”.  Ms G stated further that:-

   …putting aside the allegations of sexual abuse, there’s no information that I have that would suggest to me that [X] is going to be unsafe in his care.  He is a very confident parent.  And he appears to be able to attune himself to [X]’s needs very quickly.  And I saw no indications in [X] that he was rejecting of his father’s care and attention.

5. Ms G agreed with Ms Teffaha, that the child going home with his father in an unplanned way, should that occur, was not preferable and that the child would probably be “a little bit stressed about that plan changing”. When cross-examined further by Ms Teffaha as to that stress (the child having indicated his desire to go home with his babysitter [Ms C]) Ms G conceded there would be, in the child, “a spike in his anxiety level” should he be ordered to go home with his father. Ms G described that as “normal” in high conflict arrangements where there is a changeover.  In response to that increase in anxiety level in the child, Ms G considered the father to be “well placed to be able to soothe him and to ameliorate some of that stress for him”.

6. Ms G described children generally, as subject to stressful arrangements all the time, but noted that children learned to manage stress, and learned to self-regulate.  When asked by Ms Teffaha whether there would be any sort of trauma occasioned to the child by the change in plan, resulting in a change in caregiver from the babysitter to his father, Ms G answered in the negative.

   Ms G agreed with Ms Teffaha that it was preferable to pursue the actions which she proposed in a planned way, but noted, as indicated in her family report:-

   …that I have some reservation about the mother’s ability to act in good faith around these arrangements.

7. Ms G’s assessment of the father was that he was a competent caregiver to the child.  She acknowledged that the child would be anxious and distressed about going home with his father, but she anticipated that that anxiety and distress was:-

   …likely to dissipate throughout the afternoon and evening.  I would be surprised if something different happened.

Legislation

1. Section 60CC(1) of the Family Law Act 1975 (Cth) (‘the Act’) provides that in determining what is in a child’s best interests the Court must consider the matters set out in ss.60CC(2) and 60CC(3) of the Act.

2. Relevantly, section 60CC(2) of the Act is as follows:-

   The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:      Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Consideration

1. The mother was unable to attend at Court on the second day of the trial, and sought an adjournment of the proceedings into some time in the future, when she would be able to participate in the proceedings.  The basis of her seeking an adjournment was a current “mental health crisis” suffered by her which required her to take prescribed medications.  Whilst she engaged a lawyer to act on her behalf in the seeking of an adjournment, that lawyer acknowledged that given the mother’s state on 31 July 2019, she was curtailed in her ability to obtain “full instructions” from the mother.  The lawyer for the mother suggested that once the mother recovered from her presenting medical condition, the parties might seek to mediate the matter rather than proceed to litigate it.

2. The mother and father cohabitated for nine years.  Their child, X, was born in 2012 and they separated when the child was three years of age.  That was in 2015.  X has been a seriously ill child.  This has been very distressing to the child and to each of his parents.  His parents worked together to support each other in respect of the child’s illnesses and the father has described the mother in his evidence as “a good mother”.

3. In the period that has elapsed since the time of separation and the first day of trial, the child has spent time with his father in various ways.  Initially, it was by consent of the mother, gradually extending and being unfettered and regular.  It included five nights overnight in November 2017 in the mother’s home. While this unfettered and regular time between father and child was occurring, the mother claims she had knowledge of the father being, as she now alleges it, a sexual risk to the child.  The mother’s raising of her allegations in the proceedings have resulted in investigations being undertaken by both the police and the Department of Health and Human Services.  There have also been intervention order applications made by the mother.  The allegations of the mother have not been substantiated outside the Courtroom.  Her applications in the Victorian courts have been rejected.

4. As a result of the mother’s allegations, the father has had only supervised and, as determined solely by the mother, no time spent with the child in a period exceeding 12 months. There is in evidence before the Court, affidavits and reports by supervisors of time spent with between the father and the child, there being two agencies involved. The mother was unhappy with the first, and ultimately with the second.  That evidence, as yet untested which I am mindful of, describes overall a happy and healthy relationship between the child and his father.

5. So whilst the evidence is not tested, the allegations of the mother have been subject to some fairly extensive investigation with no substantiation, and her intervention order applications, where served, have been unsuccessful after a testing of the evidence.  There is additionally evidence, not yet tested, of Ms K, psychologist, that the mother will need to successfully challenge.

6. It is clear, on the evidence provided to the Court by the mother herself, that the mother’s health is compromised.  It is not possible for the Court to establish that the child would be in a safe environment if returned to the care of his mother at this time.  His father is described as a competent caregiver, and Ms G has observed he and the child have a relationship of a type which would not present difficulties for the child in being in his father’s care. 

1. The Court is mindful the allegations of the mother remain, although there is, as I have said, considerable evidence that the mother will need to overcome for the Court to make any positive finding and/or further limit the child’s time spent with his father. Indeed the application of the father is for a change of residence of the child based on the father’s belief, when looking to the relevant factual circumstances, that he and the child will not be afforded a proper parent/child relationship whilst the child remains in the care of the mother.  These are matters that will involve a testing of the evidence and a proper assessment of any risk the father may present to the child, in circumstances where prior investigations have not substantiated any alleged risk. 

2. Because of the allegations of the mother, the Court provided for the child’s paternal aunt to be in substantial attendance.  The father lives with his sister in a house that the child is well familiar with. The husband’s sister and her husband are people with whom the child is familiar.  There is a room for the child in that home.  The father has lived there since December 2017. This relaxation of supervision also occurred in the context of the lawyer acting for the mother stating that she had instructions, and was confident about those instructions, to propose orders involving the father and child moving to an unsupervised regime of more liberal time spent with.

3. The orders made by the Court with respect to telephone communication between the child and his mother arise because the Court has determined it in the child’s best interests that he have afforded to him the opportunity to contact his mother regularly in order to reassure him that she remains very much in his life.  The difficulty is what impact the mother’s mental health crisis has on her responses to her son at this time.  If they are detrimental to his welfare then the father will have a discretion to terminate any calls that may be in that vein.  Otherwise, the child will have the opportunity to regularly be in contact with his mother, and with a view to being able to see her as soon as her mental health crisis has subsided and there is no risk as to the safety of the child.

4. The lawyer for the mother indicated to the Court that the child required specific medication each night as a consequence of his bone marrow transplant.  The only evidence before the Court as to that matter is that the child is no longer on any medication that relates to his bone marrow transplant.  Nor is he on any ADHD medication that has been provided to the father, and in relation to which the mother puts no evidence before the Court.  If the mother has some knowledge to the contrary, which she has not placed before the Court, it is necessary for the father to have an ability to contact the child’s various medical practitioners in order for him to provide proper medical care for the child, and orders were made to that effect.

5. The mother needs to recover her mental health functioning.  The child needs to be safe, and on the outcome of investigations to date, and noting, the mother’s concession at trial through her lawyer – that there should be unsupervised and extended time, will be so in his father’s care.  Independent evidence as to the mother’s current mental health functioning needs to be before the Court before the matter can proceed such that the Court can be satisfied that the mother’s mental health crisis is resolved to the extent that it does not present a risk to the safety of the child.

6. The parties can advise the Court as to the earliest possible relisting of the matter to provide for any necessary and other orders. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 16 August 2019.

Associate:

Date:  16 August 2019