Kori & Georgene

Case [2023] FedCFamC1F 989

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kori & Georgene [2023] FedCFamC1F 989

File number(s): BRC 16543 of 2020
Judgment of: BAUMANN J
Date of judgment: 11 December 2023
Catchwords: FAMILY LAW – PARENTING – Assessment of risk – Where the mother contends the father has sexually abused the child and is an unacceptable risk of harm to the child by way of sexual abuse – Where the Court finds the father is not an unacceptable risk of harm to the child – Where the Court finds the mother is unable and unwilling to facilitate the child’s relationship with the father if the child lives with her, and that the mother poses a risk of emotional and psychological harm to the child – Final orders made for change of residence to the father’s care – Interim orders made for a moratorium of time with the mother for one month, and thereafter supervised time to commence  
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 60B, 60CC, 61DA, 65DAA

Cases cited:

Blann & Kenny (2021) 64 Fam LR 120

Briginshaw v Briginshaw (1938) 60 CLR 336

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 93-286

M v M (1988) 166 CLR 69

Stott & Holgar and Anor [2017] FamCAFC 152

Division: Division 1 First Instance
Number of paragraphs: 92
Date of hearing: 19 & 20 July and 8 & 9 November 2023
Place: Brisbane
Counsel for the Applicant: Mr Larsen
Solicitor for the Applicant: Freedom Law
Counsel for the Respondent: Mr Clutterbuck
Solicitor for the Respondent: Turnbull Mylne
Counsel for the Independent Children's Lawyer: Ms Earl
Solicitor for the Independent Children’s Lawyer: Aylward Game Solicitors

ORDERS

BRC 16543 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS KORI

Applicant
AND:

MR GEORGENE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

11 DECEMBER 2023

Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 15 December 2023

THE COURT ORDERS ON A FINAL BASIS:

1.That all previous parenting orders be discharged.

2.That the father have sole parental responsibility for major long term decision for the child, X born 2014 2015 (“the child”) but in the exercise of his sole parental responsibility he must inform the mother of any major long term decisions that he has made within five (5) days of doing so.

3.That notwithstanding the provision of Order 2:

(a)The mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and

(b)The father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.

4.That in the event of an emergency, the parent the child is with will send a text message to the other parent informing them that there is an emergent situation and then…

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AGLC
Kori & Georgene [2023] FedCFamC1F 989
Case
[2023] FedCFamC1F 989
Decision Date

CaseChat Overview and Summary

The case of Ms. Kori versus Mr. Georgene, heard in the Federal Circuit and Family Court of Australia (Division 1), concerns the determination of parenting arrangements for their daughter, X, born in 2015. The central dispute revolves around allegations of sexual abuse by the father against the child, and the mother's contention that the father poses an unacceptable risk of harm to the child. The court was tasked with evaluating the respective risks presented by both parents and determining the best living and contact arrangements for the child.

The primary legal issues before the court were whether the father presented an unacceptable risk of harm to the child by way of sexual abuse, and whether the mother's conduct and beliefs posed a risk of emotional and psychological harm to the child. The court had to weigh the allegations and evidence presented by both parties, considering the child's best interests and welfare.

The court concluded that the father did not present an unacceptable risk of harm to the child and dismissed the mother's allegations of sexual abuse as unfounded. However, the court found that the mother posed a risk of emotional and psychological harm due to her fixed and unreasonable beliefs. Furthermore, the court determined that the mother was unable and unwilling to facilitate the child's relationship with the father, despite the child's apparent desire to maintain contact with him.

In light of these findings, the court made final orders for the child to live with the father, while providing for supervised contact with the mother, starting with a moratorium of one month before supervised visits and video calls were to commence. The court also restrained the mother from attending the child's school or any place where the child might be. Additionally, the court restrained both parents from removing the child from Australia without consent.

These orders reflect a careful balance between ensuring the child's safety and facilitating her relationship with both parents, while taking into account the unique circumstances and evidence presented in this case.

Orders

Orders of the court

BRC 16543 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS KORI

Applicant

AND:

MR GEORGENE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

11 DECEMBER 2023

Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 15 December 2023

THE COURT ORDERS ON A FINAL BASIS:

1. That all previous parenting orders be discharged.

2. That the father have sole parental responsibility for major long term decision for the child, X born 2014 2015 (“the child”) but in the exercise of his sole parental responsibility he must inform the mother of any major long term decisions that he has made within five (5) days of doing so.

3. That notwithstanding the provision of Order 2:

(a) The mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and

(b) The father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.

4. That in the event of an emergency, the parent the child is with will send a text message to the other parent informing them that there is an emergent situation and then telephone the other parent providing them with all relevant information including details of treating practitioner and/or hospital with the notifying parent to send an email within twenty four (24) hours confirming what has taken place.

Living arrangements

5. That the child live with the father.

6. That the father shall collect the child from Court Children’s Services section of the Federal Circuit and Family Court of Australia, Brisbane at the conclusion of the Court Child Expert explaining these Orders to the child on 11 December 2023.

Parental communication

7. That for the purposes of exchanging information with each other, the parents shall:

(a) communicate by telephone matters of an urgent nature in relation to the child; and

(b) communicate by email about day-to-day matters in relation the child.

8. That the parents keep each other informed of:

(a) any medical problems or illnesses suffered by the child whilst in their care;

(b) any medication that has been prescribed for the child; and

(c) any other matter relevant to the child’s welfare.

9. That the parents advise each other of their current contact telephone numbers and inform each other of any changes to these details within seven (7) days of such change occurring.

Schooling

10. That by commencement of term one (1), 2024, the father provide the mother with details of the child’s school and ensure that the mother’s details are provided to the school including on any enrolment. form.

11. That these Orders authorise each of the parents to contact the child’s school and obtain information about the child’s school reports, progress, school letters, school events and school photos at that parent’s cost.

Medical

12. That the parents inform each other in writing as soon as practical of any specialist medical appointments with any specialist medical practitioner, psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as “consultant”) in relation to the child.

13. That these Orders authorise both parents to obtain any reports or other information in relation to the child directly from the child’s treating medical or allied health practitioner at the requesting parent’s cost.

14. That if a child is hospitalised or receiving specialist medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

15. That the father shall make arrangements for the child to attend upon a general practitioner within seven (7) days of the child coming into his care for the purpose of the general practitioner assessing whether to refer the child for psychological therapy. In the event the general practitioner makes such referral, then the father shall promptly act upon such referral and arrange such therapy as the general practitioner and/or the therapist shall recommend for the child.

16. That pursuant to s 121 of the Family Law Act 1975 (Cth), the father be granted leave and shall provide to the general practitioner and the therapist a copy of these Orders and the Reasons for Judgment delivered 11 December 2023.

Other orders

17. That during the time the child is with either parent, that parent shall:

(a) actively promote the child’s relationship with the other parent and speak of the other parent respectfully;

(b) respect the privacy of the other parent and not question the child about the personal life of the other parent;

(c) not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not-denigrate or insult the other parent in the hearing or presence of the child and shall remove the child from the presence and hearing of any third party who is doing so;

(d) not denigrate or insult the other parent on social networking media or sites, and

(e) not discuss the contents of this Order, these proceedings or parenting issues in the hearing or presence of the child and use their best endeavours to ensure that others do not discuss the contents of this Order, these proceedings or parenting issues in the hearing or presence of the child;

(f) not use any form of physical discipline on the child;

(g) not smoke in the presence of the child nor in confined spaces or a vehicle in which the child is located; and

(h) remove the child from the presence of any person who is using or under the influence of any illicit substance.

18. That pursuant to s 121 of the Family Law Act 1975 (Cth), both parents and their legal representatives be granted leave to provide a copy of these Orders to:

(a) any school, education institution, or care provider;

(b) any treating medical practitioner, hospital or health care professional for the parents or the child; and

(c) any government department or instrumentality,

that may seek or require to hold a copy of these Orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these Orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian privacy principles as set out in Schedule I of the Privacy Act 1988 (Cth).

THE COURT ORDERS UNTIL FURTHER ORDER:

19. That commencing on a date one (1) month after the date on which the child commences living with the father in accordance with Order 5 herein, the child shall spend time with the mother on one day in each weekend at B Contact Centre, for two (2) hours at times B Contact Centre can accommodate.

20. That the parents be equally responsible for the payment of all supervision costs in relation to the child spending supervised time with the mother.

21. That commencing on a date two (2) weeks after the date on which the child commences living with the father in accordance with Order 5 herein, the child shall communicate with the mother by video call on two (2) occasions in each week at times to be agreed between the parties, but in default of agreement such call to commence between 6.00pm and 6.30pm on each Tuesday and Thursday, with the father to initiate the call. The father is not required to provide the child with privacy during such calls, and in the event the father considers the mother is in breach of the provisions of Order 17, shall terminate the call.

22. That the mother be and is hereby restrained from attending at any school at which the child attends or other place where she knows the child is or may be.

Airport Watch List

23. That until further Order or else subject to the written consent of both parents, each parent, Ms Kori born in 1971 and Mr Georgene born in 1981, 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 2015 from the Commonwealth of Australia.

24. That the Deputy Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further order of the Court, or authenticated written consent of both parents.

25. That these proceedings be adjourned for Case Management Hearing at 9.30am on 26 March 2024, and for that purpose:

(a) the parties shall file and serve by no later than 4.00pm on 5 March 2024:

(i) a minute of any order as to the time the child spends with the mother, sought by them; and

(ii) one (1) affidavit deposing to the progress of the child since these Orders were made, and in the case of the mother, what therapeutic engagements she has engaged with since the date of these Orders, including, if so advised, a report from each treating professional she has engaged with.

(b) pursuant to s 121 of the Family Law Act 1975 (Cth), the mother be granted leave and shall provide to any treating professional engaged by her a copy of these Orders and the Reasons for Judgment delivered 11 December 2023;

(c) the Independent Children’s Lawyer shall be permitted to issue a subpoena to B Contact Centre for a copy of their records relating to this family.

26. That the Independent Children’s Lawyer shall have liberty to apply on the giving of not less than three (3) days’ notice.

Background

Background to the litigation

To understand how we got to such polarised, and difficult positions for the Court to contemplate for this little girl, a history of the case and proceedings is required.BACKGROUND Although it appears the parties commenced their relationship in 2001, they were not married until 2012 in a ceremony in a mosque in Region C, by which time the mother had converted to Islam. The mother was born in Country S but is an Australian citizen. The father holds both Australian and Country D citizenship, having been born in Country D but having come to Australia in approximately 2000. I am satisfied that the relationship post‑marriage had significant elements of conflict. My own observation is that these parents, as they appeared to me, come from quite different backgrounds and are very different in their attitude to life and, as has been demonstrated, parenting styles. There was an event to which I will refer later in these Reasons that occurred in late 2012 (after the marriage), when the father was charged and ultimately convicted, after a trial, of an offence. The significance of that event is dealt with later, but it is noted that the father was convicted in late 2013, although no conviction was recorded. He was fined and required to perform community service. The father says, and I accept, that the mother was well aware of this offence; supported him and, in fact, even accompanied him to the police station when he was initially charged or after apprehension. The parties much loved daughter X was born in 2015. She is therefore now eight years of age. At the time of separation on 18 April 2017, the child was very young. I am satisfied that an incident occurred between the father and the mother in early 2017 (see Exhibit 5). The mother felt intimidated and threatened by the father’s behaviour, locked herself in a bathroom and ultimately escaped with the child, she says, and thereafter was housed in refuge accommodation for many months. The father’s version is different, saying that he did not physically assault the mother; that whilst he was forceful in his behaviour verbally, that was because he had a real suspicion, it seems, that the mother had been engaged in some extramarital relationship and that viewing her mobile phone satisfied him that that had occurred. In any event, it is not in dispute that despite a trial in which the father contested the making of a family violence order, such an order was made in late 2017 for a period of five years (see Exhibit 6). Very little time occurred between the father and the child X between separation in April 2017 until April 2018. I am satisfied that whatever time did occur was generally supervised by the mother, however to the parties’ credit and with the benefit of at least one session of mediation, the parties were able to resolve final consent orders in respect of X, which were made on 20 March 2018 (when she was about two and a half years of age). The Orders provided as follows:Parental responsibilityEqual shared parental responsibility1.That the parties equally share parental responsibility in relation to the child [X] born […] 2015.2.That the parties are required to make all decisions about major long-term issues in relation to the child jointly. The Mother will contact the Father via Email or SMS in relation to any major decision changes or needs and the Father will respond via Email or SMS. If agreement cannot be reached the Mother and Father will attend mediation through a Telephone Dispute Resolution Service to reach an agreed outcome.3.That the parties are not required to consult the other when making decisions while the child is in their care under this order about issues that are not major long-term issues.Lives with one parent and substantial and significant time with4.That the child live with the Mother.5.That the child spend time with the Father at times as may be agreed upon through mediation via Telephone Dispute Resolution Services over time. Failing agreement the child will spend time with the Father on one full day on a Sunday from 9am till 1pm and one half day on a Monday from 9am till 1pm.Changeover6.That for the purposes of facilitating the time referred to in paragraph (5), the changeover will occur at:a)MacDonald’s restaurant at [E Shopping Centre] [Suburb F] Queenslandb)Any fast food takeaway place as agreed uponc)In the event of safety concerns changeover will occur at a local police stationSpecific issues7.Neither parent will consume or be under the influence of illicit drugs or excessive alcohol, in the presence of the child or 24 hours prior to being in the presence of the child.8.Neither parent will use physical discipline on the child.9.Both parents will ensure the child is transported in vehicles fitted with appropriate child restraints.10.Neither parent will smoke cigarettes in a car or room with the child, or allow the child to be exposed to other people’s passive cigarette smoke.11.The Father will ensure the child does not come into contact with [Mr G] when the child is inthe care of the Father.12.If the Father is unable to care for the child during his time with the child he shall give the Mother the first opportunity to care for the child before making alternative care arrangements.13.If the Mother is unable to care for the child due to an emergency situation she will give the Father the first opportunity to care for the child before making alternative care arrangements.14.The Father has agreed to attend the Circle of Security Parenting Program.15The Father and Mother have agreed to place the child's name on the Family Law Watchlist. “That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, ([Mr Georgene], […] 1981 and [Ms Kori], […] 1971) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child ([X], […] 2015) from the Commonwealth of Australia for a period of (15 and a half) years; AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties”16.The Father and Mother have agreed that the Mother may take the said child [X] […] 2015 to [Country S] to attend the Mother’s Father’s Funeral when the situation arises.Exchange of information17.That the Father and the Mother will:a)Keep each other informed at all times of their postal address, email address and landline and mobile contact telephone numbers and notify each other of any changes within 24 hours;b)keep each other informed of the names and addresses of any treating medical practitioners (this includes all main stream or alternate health practitioners) who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;c)inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness the child suffers and these parenting orders provide to any treating medical practitioner all authority necessary to provide to each parent all information about such illnesses or treatments; andd)keep each other informed of the current details of any private health cover held by each of the Father and the Mother for the child.Information and communication18.That both the Father and the Mother authorise the school the child attends from time to time to give each parent information about the child's educational progress and other school related activities and interviews, and supply each of the Father and the Mother with copies of school reports, photographs, certificates and awards the child obtains (at the requesting parent’s cost).19.Each parent shall take all steps necessary with the child’s school to register each other with the school administration and teachers as the person ahead of all others to be contacted in the event of emergency, accident, illness or otherwise with respect to the child.20.That the Mother and Father each be at liberty to attend any school or significant extracurricular events in which the child is involved, irrespective of in whose care the child is present at the time.21.That during the time the child spends with either the Mother or the Father, each parent shall:a)respect the privacy of the other parent and not question the child about the personal life of the other parent;b)speak of the other parent respectfully to the child; andc)not denigrate or insult the other parent in the child's presence or hearing and use their best endeavours to ensure that others do not denigrate or insult or criticise each of the parents in the child’s presence or hearing.d)not discuss these proceedings or the contents of any documents filed in or intended for use in these proceedings with the child, other than with leave of the Court.22.That the parties encourage and not undermine each child's relationship with the other party.23.That the parties advise the other of any change of their mobile telephone number, land line telephone number and postal address within 24 hours of such change occurring.24.That both parents inform the other as soon as reasonably practicable of any serious accident, illness or injury involving the child.25.That each party inform the other if they intend to take the child outside the [Region C] or Brisbane Metropolitan area during the period the child is in that party’s care.Alternative dispute resolution26.Unless in the case of urgency or serious contravention of these orders, in the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a party that it should be varied) the parties shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Relying on earlier findings, I confirm that I have formed the view and do find that the father does not present as an unacceptable risk of sexual harm to the child. For the reasons which follow, I also do not accept that the father is likely to physically harm the child or neglect the child. I believe that the mother would not physically harm the child or neglect the child, however her fixed beliefs, which I find are certainly unreasonable, do present as a psychological risk to the orderly development of this child. As much is confirmed by the evidence of Mr J, probably on a theoretical basis because he had not had the opportunity to actually observe or interview X for the benefit of his Magellan report.ADDITIONAL CONSIDERATIONS The child is too young and, in fact, very little independent evidence of her wishes have been secured so as to provide any weight to those wishes. The best independent evidence of her feelings and wishes, in my view, are the notes of the three visits at the contact centre. The way in which she embraced the opportunity to spend time with her father and engage with him in an appropriate manner reflect positively about her desire to spend time with the father. It is likely that the child, having lived exclusively in the mother’s care, and including a period of homeschooling where the mother did not support the child attending mainstream schooling, suggests that, if asked, the child is likely to express a desire to remain living with the mother. That is what she has known and, to a large degree, in the absence of any father in her life, the mother has met all her needs, and it would seem on the evidence, adequately and with love and care. The father was prepared to so acknowledge in his evidence, however the context for the wishes of the child is more about her history of care, rather than what is possibly any mature assessment of the respective positions of her parents. Continuing on from such findings, it is clear that the child’s primary and (other than the father) most secure relationship is with her mother. It is difficult to know if anyone else could claim to have a relationship with the child because this child is not heavily involved in many extra-curricular activities, and the extended family of the mother do not appear to be close or in Australia. Certainly, the father regards it as important for X to develop a relationship with his extended family (particularly the paternal grandmother) who live in Country D. There is no doubt that the father’s relationship with his daughter has been fractured by the events already referred to in these Reasons. The best evidence of the potential for that relationship to develop is, again, the independent supervisory notes of the contact centre, and although some years ago now, the regular time spent until June 2019. Because of the mother’s conduct in this matter since mid-2019, the father has not had the opportunity to participate in making decisions in relation to the child, spend time or communicate with the child, despite his wish to do so. There is little evidence about what child support, if any, the father pays, however I am prepared to infer that as a result of his limited income – now being derived, it seems, from some form of business – he would only pay modest child support, if at all.