Kovalyov & Osei
[2022] FedCFamC1F 768
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kovalyov & Osei [2022] FedCFamC1F 768
File number(s): CSC 576 of 2016 Judgment of: TREE J Date of judgment: 11 October 2022 Catchwords: FAMILY LAW – CONTRAVENTION – Where the father alleges the mother contravened non-denigration orders – Where the mother concedes a breach of orders but had a reasonable excuse for doing so – Where the Court is not satisfied the mother had a reasonable excuse – Variation of the orders – Mother to enter into a bond to be of good behaviour for two years. Legislation: Family Law Act 1975 (Cth) ss 70NAE, 70NEC Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 12 July 2022 and 6 October 2022 Place: Cairns Counsel for the Applicant: Mr Guttridge Solicitor for the Applicant: MK Family Law The Respondent: Litigant in person O/RDERS
CSC 576 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR OSEI
Applicant
AND: MS KOVALYOV
Respondent
order made by:
TREE J
DATE OF ORDER:
11 october 2022
THE COURT ORDERS THAT:
1.The final orders made on 21 May 2018 (as amended on 5 March 2019) be further amended by the insertion of Order 9A as follows:
9A.The mother is restrained from unreasonably denigrating the child X.
2.Pursuant to s 70NFB(2)(b) of the Family Law Act 1975 (Cth), that within 14 days the mother enter into a bond for a period of 2 years conditioned upon her:
(a)Not denigrating the father in the presence or hearing of the children; and
(b)Not unreasonably denigrating the child X.
3.That upon the mother entering into the bond, the father’s Application–Contravention filed 5 April 2022 is otherwise dismissed.
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).
REASONS FOR JUDGMENT
TREE J:
introduction
On 21 May 2018, I made final parenting orders in this matter by consent. They provided that the parties would have equal shared parental responsibility for their four children, who would live week about between them. Orders were also made restraining both parents from denigrating the other in the presence or hearing of the children (Order 7) and, when the children were in their care, to speak of the other parent respectfully (Order 10(b)) and not to denigrate or insult the other parent in the presence or hearing of the children (Order 10(c)).
By Application–Contravention filed 5 April 2022, Mr Osei (“the father”) asserts that Ms Kovalyov (“the mother”) contravened those non-denigration orders in ways I shall shortly detail.
On 6 October 2022 I concluded the hearing of the application, and reserved my decision. This is that decision and the reasons for it.
the facts
The alleged contravention only relates to the parties’ youngest child, X, who at the time was seven years of age.
In his affidavit filed 18 May 2022, the father says that on 19 February 2022, whilst he was on a phone call with X:
13.[The mother] was swearing at [X]. I could hear [X] crying and I could also hear [Y] trying to stick up for [X].
14.[The mother] was now calling me names saying, “fat ugly fuck”, “you love your dad fuck off to him,” “leave your dad at the door,” “your dad dickhead shit”, “Don’t bring your daddy device here”, “Leave your daddy shit at his house”. “Leave your phone here so you can’t cry to that cunt.”
15.I believe more could have been said but all of this was being said. Whilst she was abusing my daughter as well.
(As per the original)
It appears that the mother was unaware that X was on the phone to her father at the time, and more, unaware that the father was recording that conversation. That recording was put into evidence before me (Exhibit 1). When I suggested it be played in court, the mother said hearing it would distress her, and asked to sit outside. In the end, I listened to it in chambers instead. The words referred to in the father’s affidavit – and many more equally as denigrating – are clearly audible. More, the mother is clearly also verbally abusing the child using the worst kind of foul, insulting language. It was all said in a very angry, hostile, shouting voice and lasted at least two minutes. It must be remembered that the child was then only seven years of age.
The mother did not dispute any of this.
the contravention application
Mercifully, given the inexplicably and unnecessarily Byzantine alphabet and numeral soup of provisions of the Family Law Act 1975 (Cth) (“the Act”) which deal with contraventions, the mother admitted the facts underpinning the contravention, but pleaded not guilty on the basis that there was a reasonable excuse for her doing so. It is thus only necessary to refer to s 70NAE(1) of the Act which provides:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
None of subsections (2), (4), (5), (6) and (7) apply here, and hence the question for my consideration is the relatively simple one of whether the mother has established a reasonable excuse for her 19 February 2022 conduct.
In substance the mother says that her reasonable excuse was that the events of the evening in question had psychologically aroused her. Particularly she said that it started because the parties’ oldest son had been supposed to go and purchase pizza for the family for dinner, but unexpectedly it transpired that his former girlfriend was found hiding in the mother’s backyard. Apparently the mother does not have a good relationship with the former girlfriend. In oral evidence before me she said:
[THE MOTHER]: Yes. And [Y] told me this. So I had a heightened response to this, and the plans changed immediately. I told [Z], “Get rid of her now. I will go get the pizza.”
(Transcript 12 July 2022, p.8 lines 13-15)
This she did, leaving some of the children at home without her. It appears that one of them alerted the father to that fact. When the mother returned home, her oral evidence was:
… [The father] was using [his partner’s] phone to call [Y]. So I’ve been gone about two minutes at this point. Maybe let’s say five minutes or four. He’s on the phone to [Y] and he’s saying, “Where are you? You have left [[X]] at home by herself. She’s crying.” So my daughter now is getting vey stressed out. I already was in a heightened trigger response, having [the eldest child’s ex-girlfriend] at my home. Furthermore, I’m quite heightened now and my PTSD has kicked in. I think, “[the father’s] on his way. Something bad is going to happen. We’re all in trouble.” This is just a traumatic response, which is a reaction, not a memory. It’s – my body is just reacting. So I get home, and I literally just run straight up the stairs into the room where [[X]] is and proceed to misdirect my anger and …
…
So he has rung [Y] off the girlfriend’s phone whilst he’s still on the phone to [[X]] via his own phone. So he has got both phones going. He’s micromanaging my home. I get home. My body felt like he was on the way to my house with a gun; that was the response I had. I’ve got home. I’ve just run up the stairs and just – I haven’t heard the recording myself. I know the intention, was it, was – pretty much, it felt like, you know, I had a mole in my home or, you know, like yes. Like she was throwing me under the bus or just – it was scary feeling, and it was irrational. My – I had flipped the lid in my rational brain due to the trigger response my body had. This was very out of character for me. On – this happened Saturday night. On the Monday I called my GP, … and I made an appointment to see her to deal with this issue, and we commenced a mental health plan and treatment. I also enrolled in Bringing Up Great Kids to get back to basics with my parenting and mindfulness…
(Transcript 12 July 2022, p.9 lines 31-40, p.10 lines 17-29)
No medical evidence was led by the mother to support her assertion that she suffers from Post-Traumatic Stress Disorder, but she was not challenged about that in cross-examination, and I am satisfied that she likely suffers from that condition, or something similar.
However it nonetheless is incumbent on the mother to persuade me that her condition, and more precisely its effect on her response to traumatic triggers, provides a reasonable excuse for her conduct as demonstrated by the recording. Here the absence of any medical evidence is a significant gap in the mother’s case, because I simply do not know how someone with the mother’s condition might usually react to such triggers as the mother describes here. I suspect that some heightened reaction might be expected, but absent evidence, I could not be persuaded that the rather terrible denigration of the father, and indeed equally terrible verbal abuse of X, is probably explained by the mother’s condition. I do not overlook that before me the mother self-represented, but that cannot cure this evidentiary deficiency.
It follows that I am not satisfied that the mother has a reasonable excuse for the contravention of my 2018 orders. I find the mother guilty of contravening them as the father alleges.
penalty
The mother has not previously been found guilty of any contravention of orders. She co-parents the parties’ four children with the father, and has another two subsequent children of hers living with her, aged three and one years respectively. I am prepared to infer life in the mother’s home is stressful and likely at times bordering on chaotic, especially as the three year old child has special needs.
In fairness to the father, he did not seek any draconian penalty. He only sought a variation to the 2018 orders that the mother not unreasonably denigrate X, and that the mother be required to enter into a bond, without surety or security, on condition that she not denigrate the father in the presence or hearing of X, and that she not unreasonably denigrate X.
Likewise, in fairness to the mother, in the event that I found her guilty of the contravention, she did not oppose the orders which the father sought by way of penalty. I will therefore pronounce orders to that effect as set out at the commencement of these reasons.
Section 70NEC(5) of the Act requires me to explain to the mother, in language likely to be readily understood by her:
(a) the purpose and effect of the [proposed bond]; and
(b) the consequences that may follow if [she]:
(i)fails to enter into the bond; or
(ii)having entered into the bond – fails to act in accordance with the bond.
The purpose and effect of the bond is to try and minimise the prospect of the mother ever acting again as she did on 19 February 2022 in the next two years.
If the mother does not enter into the bond, then I will be obliged to relist the matter and consider an alternative, likely harsher, penalty. If she fails to comply with the conditions I have imposed in the bond, either I might fine her but permit the bond to continue, or alternatively re-consider an alternative, again likely harsher, penalty for the original contravention.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 11 October 2022
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