Kovac and Day

[2019] FCCA 1780

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOVAC & DAY [2019] FCCA 1780

Catchwords:
FAMILY LAW – Parenting – recovery order.

Legislation:

Family Law Act 1975 (Cth), s.11F

Applicant: MR KOVAC

Respondent: MS DAY

File Number: MLC 7467 of 2016

Judgment of: Judge Harland

Hearing date: 16 May 2019

Date of Last Submission: 16 May 2019

Delivered at: Melbourne

Delivered on: 16 May 2019

REPRESENTATION

Counsel for the Applicant: Ms Bastick

Solicitors for the Applicant: Bardo Lawyers

No appearance by the Respondent

Counsel for the Independent Children’s Lawyer: Mr O’Connell

Solicitors for the Independent Children’s Lawyer: Schetzer Constantinou

ORDERS

1. You are authorised or directed, with such assistance as you require, and if necessary by force, to find and recover the child [X] born on … 2006.

2. You are required to deliver the said child to the Applicant Ms Day at Street A, Suburb B.

3. For the purpose of finding and recovering the child you are authorised and directed, with such assistance as you require, and if necessary by force to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found.

4. The Registrar must give you any information provided to the Registrar of a Court under a Location Order that may assist you in finding and recovering the child.

5. Mr Kovac is prohibited from again removing or taking possession of the child.

6. If Mr Kovac again removes or takes possession of the child he may be arrested without a warrant.

7. This order remains in force until force for the period of 12 months.

8. That [Y] born … 2012 (“[Y]”), [X] born … 2006 (“[X]”) and [Z] born … 2005 (“[Z]”) (collectively referred to as “the children”) live with the Mother.

9. That the Mother have sole parental responsibility for the children.

10. That the children’s time with the Father be reserved.

11. That the Father be and is hereby restrained by injunction from in any way interfering with [X]’s residence with the Mother referred to in Order 1 hereof.

12. That the Mother and the Independent Children’s Lawyer have urgent liberty to apply.

13. That the Independent Children’s Lawyer remain appointed until 16 August 2019 and thereafter be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Kovac & Day is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7467 of 2016

MR KOVAC

Applicant

And

MS DAY

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. These parenting proceedings concern three boys, [Z], [X] and [Y]. The case has a troubled history, and although consent orders were initially made on a final basis on 5 September 2017, which provided for the boys to live with their mother and spend regular time with their father, the mother filed fresh proceedings on 10 April 2018, less than a year later. This was prompted by the fact that at that stage, the two of the three boys were separated, with the youngest boy living with the mother and the two eldest boys living with the father and not seeing the other parent, and, therefore, the siblings not spending time with each other.

3. The material before the Court is concerning, and, indeed, the earlier material in the first report from the Department and the first 11F memorandum was raising concerns with respect to both parents. The elder boys had made allegations that the mother had physically disciplined them. The first 11F report also recorded the mother presenting as angry and defensive and being adult-centric rather than child-focused. It also raised concerns about the elder boys being brainwashed and that the father was not allowing her to see the elder boys and was not making attempts to see the youngest boy. She indicated that whilst she had been asked to allow the boys to live with their father in July 2017, it was supposed to be a trial, and the boys had lived with him for two days. It appears really what has happened since is an inconsistent pattern of the two eldest boys remaining living with the father. The mother indicated to the first family consultant that she wanted to see the older two boys, but would not commit to supporting the youngest child having a relationship with his father.

4. The concerns raised with respect to the mother’s attitude and presentation in that report needs to be seen in the context of the further material that is available to the Court, which includes the psychological assessment that was released yesterday, the mother’s further affidavit material and the updated material from the Department. The psychological assessment of the mother does not raise any concerns for the mother’s mental health. 

5. The mother discloses a pattern of coercive and controlling violence and abuse towards herself and the children during their relationship which was consistent with her affidavit material. What the psychologist observed was that she thought the mother was a vulnerable person in the context of her relationship with the father which commenced when she was a teenager, with her experiences of the father being controlling, manipulative and verbally and emotionally abusive.

6. She assessed that there was a low risk with respect to the mother’s parenting of the children and being exposed to neglect or abuse in her care. She raised concerns about the children’s experiences and the fact that the children were separated and not able to have relationships with each other and recommended that the mother have counselling for ongoing support given the stressful circumstances. The father’s conduct throughout these proceedings has been concerning, and his conduct towards both family consultants and his behaviour in the Court has been consistent with the mother’s descriptions of him as being someone who is violent and controlling. My impression of him particularly in the last occasions that he appeared in Court where he made it very clear he did not want to participate in the proceedings any further is that his uncooperativeness and aggression particularly comes out when he is not getting his own way. It seems to me that that was very much his view and, indeed, what he said is that if he did not get the orders that he wanted, he would walk away from the children.

7. It seems apparent from what the mother has recorded in her most recent affidavit that that is consistent with what [Z] has reported to her. It is significant that after living with the father for some months, he voluntarily returned home to the mother and made several concerning disclosures to her about life in the father’s household, including the father threatening the boys and telling them to make disclosures that the mother had been violent towards them. The father also threatening them that if Court did not go well, he would leave them and was coaching them what to say to the family consultants.

8. She outlines very concerning behaviour that [Z] has reported to her in the father’s household, which includes a range of physical and verbal abuse of the children, but also psychological abuse and exposing the children to adult issues. These issues are not only denigration of the mother, but concerning sexual activities and encouraging the boys to engage in those activities with classmates and treat women in a denigrating manner.

9. The father was aggressive and resistant to interventions and displayed that in the first child-inclusive conference which took place on 27 July 2018 where he presented as frustrated and angry. However, the first family consultant thought he appeared child-focused, and he told the family consultant that he reported the children spending time with the mother and communicating with the mother, but that the older boys were refusing contact because of the mother being verbally and physically abusive. The father’s own actions has not shown any genuine attempt to have the boys maintain a relationship with one another, and nor has he made any serious or consistent attempts to see [Y]. 

10. In the first memorandum, it’s clear that [Y] was a happy five year old boy who was enjoying school and missing his brothers, but happy in his mother’s household. [Z] was expressing, at that stage, views of not being happy about living with his mother and complaining that she denigrates the father and talks about court all the time. However she notes that [Y] reported not wanting to see his dad because he was not letting them see his brothers and that his mother wanted to see them, but the father would not let them. This certainly suggests him being involved in some – or exposed to some of those adult issues. [Z] described the father’s household as loving, caring and safe and that he enjoyed living there, that he did not want to see his mother, and that if the court ordered him to, he would refuse. Concerningly, the father did not present [X] for the appointment claiming he had a sporting event.

11. At that stage, the family consultant recommended that the living arrangements remain as they are, but recommended several therapeutic interventions and also that the mother be psychologically assessed. What is also of note in terms of the chronology is that a few weeks after that first 11F report, [Z] took action himself to return to his mother’s home, as well as making the various disclosures that I’ve referred to. He also expressed fear about how his father was going to react and also apologised to his mother saying that he had lied about her being abusive.

12. I ordered that the parties attend a further section 11F report. In particular, I thought it was important that [X]’s voice also be heard. Whilst the father was resistant when I made those orders in Court, he did present at that second report and did bring [X] with him. The second report identifies real concerns with respect to the father where he presented as belligerent and aggressive towards the family consultant, refused to answer questions with respect to the mother’s allegations about family violence and reported that he would not comply with any recommendations or referrals.

13. He also told her that if he did not get the orders he wanted, he would walk away from the children and refuse to have anything to do with them. She records the mother reporting to her that the father behaved in a coercive and controlling manner towards her during the relationship. She also recorded that the accounts from the older children also suggested that they had been exposed to family violence between the parents and that they had also experienced physical and verbal abuse from both parents. 

14. She refers to the disclosures made by [Z] after he returned to his mother’s home including seeing his father in possession of white powder. She notes that he made that disclosure after prompting from her and not unsolicited. The father denied using any illicit substances and said that he was randomly drug tested at Court, but was unwilling to undergo random drug screens unless the mother paid for them. At that time, the mother had not attended for a psychological assessment.

15. She records [Z] making detailed accounts of verbal, emotional and psychological abuse in the father’s home and that his wish was to not have any contact with his father. In contrast, [X] reported that he wanted to remain in his father’s primary care, but also wanted to see his mother on alternate weekends and did not have any concerns about seeing his mother. [Y], being very young, was initially saying that he wanted to spend a week about arrangement with his parents, but given his age, is unlikely to understand what that really means. The reporter was concerned that he was being influenced by exposure to the views of the adults. It is significant that she described all three children as being very excited about spending time together and that they were affectionate and concerned for one another and concerned about seeing one another in the future. 

16. The consultant was somewhat pessimistic about the parents being able to engage in post-parenting education and counselling to address the chronic high level of conflict and referred to the history of both parents not complying with orders. Certainly, there has been orders made previously that would have the children spending time together with them had not worked.

17. At that stage, the recommendations that the family consultant made in this ruling were that there be some therapeutic intervention, random drug screens and that the parents be psychiatrically assessed. She expressed concerns about the utility of making further proposals for the children to spend time together within the current arrangements given the father’s presentation. Of course, since that 11F conference was conducted, the Court now has the benefit of the psychological assessment of the mother, which answers the concerns raised by the family consultants and also has the further response from the Department. Also significantly, but unsurprisingly, the father did not attend for his psychological assessment, has not filed further material and has not attended today.

18. In their most recent report dated 11 January 2019, the Department concluded that it did not have any concerns about the children in the care of either parent and referred to the children having shown a capacity to move between the parents when they felt unsafe and supported the children having contact with each other. They also purported that the children were of an age where they could tell adults in school that they were feeling unsafe. I do not share that view particularly given [Y]’s young age, but it’s also apparent from – certainly when the only two boys were in the father’s care, the pressure being put on them to lie about the mother’s care of them.

19. The case has reached a point where given the father’s behaviours and attitude, final orders should be made. The mother and Independent Children's Lawyer presented an order which they seek which does involve drastic action in that it will be necessary to issue a recovery order for [X] to come into the mother’s care. That will reunite the three brothers. The minute also proposes that the father’s time be reserved. The Independent Children's Lawyer proposes remaining involved in the case for a further six months before being discharged.

20. Three months enables a period of the Independent Children's Lawyer being able to bring the matter back urgently if there are difficulties with respect to the recovery order, but, also, to remain engaged with the children and the mother should it be necessary to make further referrals, or see the children. The minute includes the notation that the father has continued to refuse to engage in the proceedings, and it has also failed to address the concerns that were raised in the mother’s November affidavit which has the details of the allegations that [Y] made with respect to the father’s conduct in their household. I am satisfied that it is in the children’s best interests to make the final orders as sought today, and the mother should be given sole parental responsibility of all three children. 

21. There are allegations of significant family violence in this case over a pattern of years, and the father’s own presentation is consistent with that. I find that the presumption that the parents should have equal shared parental responsibility is rebutted.

22. I am also satisfied that on the state of the evidence currently, it is not safe for the boys to spend time with their father. The risks to the boys in spending time with their father covers a range of risks from physical to emotional and psychological. I have real concerns about the role modelling that the father presents to these boys as well as the violence and other risk factors. The siblings having the opportunity to be in the same household living together is also a significant factor. 

23. The separation of siblings is rarely in their best interests. Siblings’ relationships present an important source of support and stability for many siblings and, of course, sibling relationships will often outlast the relationships that they have with their parents. Particularly in separated families and families with conflict, the siblings can provide a source of support to one another, and certainly it is apparent from the 11F report that the boys derive support and are affectionate towards one another and wish to spend time together, and that is only going to happen if the children are in the mother’s care. 

24. Whilst there are criticisms that can be made of the mother and have been made in some of the documents, as I have indicated previously, the difference between the two parents is that the mother has addressed those issues. The mother clearly was under enormous stress and somewhat at a loss as to how to deal with the separation of the children and the father’s domineering and undermining attitude and undermining of her parenting. The mother has done what she can to show the Court that she is able to provide a stable home environment for the children and having the responsibility and appropriate attitude towards the responsibility of parenthood. In her care, the children will have a stable environment where they are able to remain together.

25. Unfortunately, it is apparent to me that the only way of placing [X] in the mother’s care is by issuing a recovery order which will necessarily involve police attendance as I have no confidence that the father would cooperate with any order that he doesn’t agree with. He has made that very clear both to the family consultants and to the court on more than one occasion. Whilst it is likely to be traumatic for [X] and whilst I note that [X] has expressed a wish to remain in his father’s care, but seeing his mother, he is 13 years old. In the circumstances of this case, I do not place great weight on his views as real concerns about the influence of the father. I also note [Y]’s comments that he certainly was not surprised that [X] wanted to stay with his father because there are no rules there, but the concern is that [X] is also not safe in that environment.

26. In addition to having to execute the recovery order necessarily, [X] will need to change schools as the parents live about an hour apart. The mother proposes that [X] go to the same school as [Z] being Suburb C School, and there is advantages to that. Hopefully [Z] will be able to help [X] settle into that school. Of course, it is unknown how these arrangements will work in the future, and there is always a risk in taking this kind of drastic action. It may well be that [X] votes with his feet and returns to his father, but [X] deserves the chance to be reunited with his brothers and live in a stable household, and if this action is not taken now, then it may well be that he would remain in the household where there were real concerns about the environment. I note that the father has had the opportunity to address those concerns and answer the allegations, but has failed to. It seems certainly that if no action is taken, [X] will remain living with the father and not spend time with his siblings, whereas, this action will give the opportunity for the boys to be reunited and live in their mother’s care. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Harland.

Date: 26 June 2019