Lasker & Franke

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lasker & Franke [2024] FedCFamC1F 751

File number(s): SYC 1322 of 2021
Judgment of: BEHRENS J
Date of judgment: 8 November 2024
Catchwords: FAMILY LAW – PARENTING – Magellan matter –Where each parent sought orders for sole decision-making responsibility and that the child live with that parent – Where the child has lived with the mother – Where the mother sought a finding that the father has sexually abused the child or, in the alternative, that the child is at unacceptable risk of sexual abuse by the father – Where Court is comfortably satisfied that the father has not sexually abused the child – Where mother has fixed false belief that child has been sexually abused by the father – Where mother’s belief is genuine but a product of the mother’s anxiety – Where child is not safe from emotional and psychological harm while living with the mother – Where both parents allege that the other engaged in family violence – Where finding made that the father engaged in family violence by way of abusive text messages after separation – Relevance of family violence to matters in addition to safety – Where mother’s parental capacity is impaired by her mental health but may be improved through treatment – Where father’s parental capacity is “good enough”– Where child has a good relationship with the father and wants to spend time with him – Where there is benefit to the child from having a relationship with both parents – Where the father is more likely to promote the child having a relationship with both parents – Where orders made for the father to have sole decision-making responsibility – Where orders made for a moratorium on the child spending time with the mother – Where orders made for child’s time with the mother to progress from supervised time provided she receives psychological treatment and complies with reporting obligations.
Legislation:

Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CG

Family Law Amendment Act 2023 (Cth)

Cases cited:

In the Marriage of L & T (1999) 25 Fam LR 590; [1999] FamCA 1699

Re W and W (Abuse allegations; Expert evidence) 28 Fam LR 45; [2001] FamCA 216

Division: Division 1 First Instance
Number of paragraphs: 234
Date of last submission/s: 19 September 2024
Date of hearing: 11-13, 16-17, 19 September 2024
Place: Sydney
Counsel for the Applicant: Mr Guterres
Solicitor for the Applicant: Sharon Moss Legal Pty Ltd
Counsel for the Respondent: Ms Kennedy
Solicitor for the Respondent: Tiyce & Lawyers
Counsel for the Independent Children's Lawyer: Mr Cook
Solicitor for the Independent Children's Lawyer: Phillip A. Wilkins & Associates

ORDERS

SYC 1322 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR LASKER

Applicant

AND:

MS FRANKE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BEHRENS J

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS THAT:

1.All previous parenting orders are discharged.

Parental responsibility

2.Mr Lasker (“the Father”) shall have sole…

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Details
Case
[2024] FedCFamC1F 751
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Lasker and Ms Franke, parents of a child named X, contested various parenting matters, including decision-making responsibility, the living arrangement for X, and visitation schedules. The mother alleged that the father had sexually abused X, while both parents accused each other of engaging in family violence. The court was required to determine the credibility of the sexual abuse allegations, assess the impact of each parent's mental health and parenting capacity on X, and decide on the best living and visitation arrangements for X, considering the allegations of family violence.

The court found that there was no evidence to support the mother's allegations of sexual abuse against the father. The court also concluded that the mother held a fixed, false belief about the alleged abuse, which was a product of her anxiety but was genuine to her. The court determined that the mother's mental health issues impaired her parental capacity, although there was potential for improvement through treatment. In contrast, the father's parenting capacity was deemed "good enough." The court found that the father engaged in family violence through abusive text messages after separation, but this did not impact the decision-making process regarding the living arrangement and visitation schedule for X. The court held that the child would not be safe from emotional and psychological harm if he continued to live with the mother or spent unsupervised time with her due to her fixed belief about the alleged abuse. The court found that it was in X's best interests for him to live with the father and have a phased, supervised visitation schedule with the mother, contingent on her receiving psychological treatment and complying with reporting obligations.

The court made orders granting the father sole decision-making responsibility for X and specifying a detailed schedule for the child's time with the mother, which would progress from supervised to unsupervised time over a period, subject to the mother's compliance with treatment and reporting requirements. The court also restrained the mother from contacting X except as permitted by the orders and required both parents to refrain from making derogatory remarks about each other in front of X and to follow certain therapeutic and reporting obligations. The orders also included provisions for changeovers, communication between X and his mother, and the sharing of information between the parents regarding X's health and education.

Orders

Orders of the court

SYC 1322 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR LASKER

Applicant

AND:

MS FRANKE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BEHRENS J

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS THAT:

1. All previous parenting orders are discharged.

Parental responsibility

2. Mr Lasker (“the Father”) shall have sole parental responsibility and sole authority to make major long-term decisions for the child X born 2017 (“X”).

3. The Father shall keep Ms Franke (“the Mother”) informed by email of:

(a) Any major long-term decisions concerning X, including such decisions in relation to his health and education;

(b) The names and contact details of any specialists providing health or medical treatment to X; and

(c) The names and contact details of any counsellor, psychologist or psychiatrist providing treatment to X.

Live with order

4. X shall live with the Father and spend time with the Mother in accordance with these orders.

Spend time orders

12 weeks of no time

5. For a period of 12 weeks following the making of these orders, X shall spend no time with the Mother and the Mother is restrained by injunction from contacting or attempting to contact X or causing anyone else to do so except in accordance with these orders.

12 weeks of supervised time

6. At the conclusion of the period provided for in Order 5, X shall spend time with the Mother as follows: each Saturday for 12 weeks for a period of three hours as agreed between the parties and failing agreement from 10.00 am to 1.00 pm, with such time to be supervised by B Contact Service or such other service as agreed between the parties in writing.

7. For the purposes of Order 6:

(a) Forthwith upon the making of these orders, the parents are to do all acts and things and sign all documents necessary to facilitate X spending time with his Mother supervised by B Contact Service.

(b) The Mother is to pay all costs associated with X spending time with her supervised by B Contact Service.

8. The Mother will, forthwith upon each occasion of supervised time occurring, obtain and pay for reports of the time she has spent with X pursuant to Order 6 above and will provide the reports to the Father within 7 days of receiving them.

Progression to unsupervised time for six months and special occasion time

9. At the conclusion of the period provided for in Order 6 and subject to:

(a) the Mother’s compliance with Order 8 above; and

(b) 12 supervised visits having occurred; and

(c) compliance by the Mother with Order 16(a) and (b) below.

X shall spend time with the Mother as follows: on each alternate Saturday and Sunday from 10.00 am to 6.00 pm for a period of six months.

10. In the event that the Mother does not comply with the requirements listed in Order 9 above, X’s time will continue in accordance with Order 6 until such time as the Mother does comply with those requirements, when it will progress to time in accordance with Order 9.

11. Upon the commencement of time pursuant to Order 9 and thereafter, and notwithstanding anything to the contrary in these orders, X shall spend time with the Mother and the Father on the following special occasions as agreed and, failing agreement, as follows:

(a) With the Mother on Mother’s Day from 10.00 am until 6.00 pm.

(b) With the Father on Father’s Day, from 10.00 am until 6.00 pm.

(c) On Christmas Day as follows:

(i) In even–numbered years, with the Father from 9.00 am until 3.00 pm, and from 3.00 pm until 9.00 pm in odd–numbered years.

(ii) In odd–numbered years, with the Mother from 9.00 am until 3.00 pm, and in even–numbered years from 3.00 pm until 9.00 pm.

Progression to overnight and holiday time

12. At the conclusion of the period provided for in Order 9 and subject to compliance with Order 16(c), X shall spend time with the Mother as follows:

(a) During school terms, each alternate weekend from after school or 3.00 pm on Thursday until at school or 9.00 am on Tuesday;

(b) For half of all school holidays as agreed between the parents but, failing agreement, for the first half in even–numbered years and the second half in odd‑numbered years and on a “week about” basis during the long summer holiday, commencing with the Mother in even–numbered years and with the Father in odd–numbered years.

13. In the event the Mother does not comply with Order 16(c), X’s time will continue in accordance with Order 9 above until such time as the Mother does comply with that requirement, when it will progress to time in accordance with Order 12.

Therapy for the Mother to enable progression of time

14. As soon as practicable, the Mother shall engage and attend upon a clinical psychologist for the purpose of mental health treatment, in accordance with the following schedule:

(a) The Mother is to attend upon the clinical psychologist no fewer times than once a month and more frequently if that is recommended by the clinical psychologist;

(b) The Mother is to attend upon a clinical psychologist for a continuous period of 12 months;

(c) In the event a clinical psychologist who is treating the Mother becomes unavailable, the Mother will engage an alternate clinical psychologist as soon as practicable.

15. The Mother will provide to any clinical psychologist who she engages pursuant to Order 14 above:

(a) A copy of these orders;

(b) Justice Behrens’ Reasons for judgment; and

(c) All three reports prepared by Ms C.

16. The Mother will provide to the Father:

(a) Upon commencement of treatment with a clinical psychologist – written confirmation from her treating clinical psychologist of the date that the Mother commences treatment with the clinical psychologist, and that the clinical psychologist has been provided with the documents listed in Order 15 above; and

(b) After six months from the date of commencement of treatment – written confirmation from her treating clinical psychologist that the Mother has attended at least six appointments over a six month period with a clinical psychologist who has been provided with the documents listed in Order 15; and

(c) After 12 months from the date of commencement of treatment –

A recent report from her treating clinical psychologist confirming that the clinical psychologist has been provided with the documents listed in Order 15 and setting out: the dates upon which the Mother has attended appointments with the treating clinical psychologist; any diagnosis of the Mother; a description of the treatment provided to the Mother; and attaching copies of any reporting letters provided by the clinical psychologist to the Mother’s General Practitioner.

17. The Father is restrained by injunction from showing or giving a copy of any document provided to him pursuant to Order 16 above to any person other than a legal practitioner acting in that capacity.

Changeover

18. For the purpose of these orders and unless otherwise agreed between the parties in writing, changeovers which do not occur at a supervision centre or at X’s school will occur at Suburb D McDonalds.

Facetime

19. X shall have Facetime communication with the Mother on Christmas Eve 2024 between 9.00 am and 10.00 am, with such communication to be monitored by the Father.

20. Following the commencement of the time arrangements provided for in Order 6, X shall have Facetime communication with the Mother each Tuesday, Sunday, on X’s birthday, and on the Mother’s birthday, when he is not otherwise spending time with the Mother between 5.00 pm and 6.00 pm, provided that such communication will be monitored by the Father until the Mother’s time progresses to unsupervised.

21. For the purpose of the Facetime calls, the Mother is to contact the child on a mobile telephone number provided by the Father.

Therapy for X

22. Within seven days of the date of these orders, the Father is to do all acts and things and sign all documents necessary to:

(a) Contact one of the following:

(i) E Psychologists;

(ii) F Psychologists; or

(iii) G Health Service

to make enquiries of a suitable Family and Child Psychologist (“the Psychologist”).

(b) Book and attend the first available appointment with the Psychologist;

(c) Attend all appointments and follow all recommendations of the Psychologist;

(d) Use his best endeavours to ensure that X attends all appointments as required by the Psychologist; and

(e) Be responsible for the costs of therapy with the Psychologist.

23. For the purposes of Order 22, the goals of the therapy are to include supporting X and the Father in X’s move from his Mother’s residence to his Father’s residence, as well as assisting X in his relationships with his Mother and Father.

24. The Father has leave to provide a copy of the following documents to any counsellor, psychologist or psychiatrist providing treatment to X at any time:

(a) A copy of these orders;

(b) Justice Behrens’ Reasons for judgment;

(c) Copies of all three reports prepared by Ms B; and

(d) Dr J’s report dated 29 August 2024.

Other orders

25. Each parent will notify each other within 48 hours of any change in their residential address, email or mobile telephone number.

26. The Mother is at liberty to send a Christmas card and Christmas presents to X at the residential address provided to her by the Father, and the Father will ensure that X is provided with any such card or presents as well as any cards or presents which are sent to X from his extended maternal family.

27. Each parent will notify the other in the event that X suffers a significant illness or injury or is hospitalised whilst in that parent’s care.

28. The Mother is hereby authorised to obtain information in relation to X’s progress from any doctor, health practitioner or therapist providing treatment to.

29. Forthwith upon the making of these orders and continually thereafter, the Father is to give written authority to X’s school to provide all information, including reports and notices of events and any other details of X’s progress, to the Mother and once unsupervised time has commenced to include the Mother’s name on the school records as an emergency contact.

30. After the commencement of time pursuant to Order 9 (unsupervised time), both parents are permitted to attend all parent teacher interviews, assemblies and other events at X’s school which parents can ordinarily attend.

31. That each parent is hereby restrained from:

(a) Making critical or derogatory remarks about the other parent to or in the presence or hearing of X or allowing any other person to do so; and

(b) Abusing, threatening or belittling the other parent including by text message.

32. Each parent is hereby restrained from discussing these Court proceedings in the presence of or hearing of X except under the guidance of a doctor, counsellor, psychologist, psychiatrist or therapist or in accordance with the advice of a Court Child Expert.

33. Each parent will immediately remove X from the presence or hearing of any third person who is doing any of the things which a parent is restrained from doing pursuant to Orders 31 and 32 above.

34. The Father has leave to provide a copy of these orders to any school and any medical practitioner upon which X may attend.

35. The Father shall follow up the recommendations of Dr J as set out in her report dated 29 August 2024.

36. The Father shall ensure X remains enrolled at and attends H School until the conclusion of year six.

37. The Father shall be restrained from drinking alcohol in excess of the legal limit for driving (0.05) while he is caring for X.

Changeover and other matters on and immediately following 8 November 2024

38. The Mother shall leave the Court building at the conclusion of judgment delivery, without returning to Court Children’s Service on Level 2.

39. Changeover will be effected by the Father, together with the Independent Children’s Lawyer, upon conclusion of judgment delivery attending upon the childcare facility of the Court Children’s Service on Level 2 of the Sydney Registry.

40. The Independent Children’s Lawyer, together with a Court Child Expert, shall explain these orders to X, and the Court Child Expert is requested to provide the Father with such advice as he reasonably requests in relation to what, if anything, he should say to X about the outcome of these proceedings.

41. The Court Child Expert is requested to prepare a Memorandum for the Court in relation changeover on 8 November.

42. Only the Father and any support person accompanying him are authorised to remove X from Court Children’s Service on 8 November.

43. On or before 10.00 am on Tuesday 12 November 2024, the Mother is to provide the Father, via her solicitors or the Independent Children’s Lawyer, written details of the child’s treating medical practitioners together with the locations, dates and times of any future appointments.

44. The Independent Children’s Lawyer is requested to facilitate an agreed arrangement for the Mother to provide X’s school uniforms, favourite toys and other items and clothes to the Father as soon as practicable and the Mother shall comply with any such agreed arrangement.

ICL’s costs

45. Unless a waiver is granted by Legal Aid NSW, each parent shall pay to Legal Aid NSW the sum of $6,740.90 within 42 days or such later time as is agreed with Legal Aid NSW, being their share of the costs of the Independent Children’s Lawyer.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Having considered the evidence and for the reasons set out below, I find that:(1)X has not been sexually abused by Mr Lasker.(2)An arrangement where X continues to live with Ms Franke or immediately spends unsupervised time with her is not one which will promote X’s safety from further emotional and psychological harm because he will continue to be exposed to her fixed false belief that X has been sexually abused by Mr Lasker. (3)The “least worst” outcome for X is that he move to live with Mr Lasker.(4)It is in X’s best interests for him:(a)not to spend time with Ms Franke for a period of 12 weeks;(b)then to commence spending supervised time with Ms Franke for a further period of 12 weeks;(c)subject to Ms Franke having then had six months’ of treatment with a clinical psychologist and complying with reporting requirements, that time move to unsupervised but day-time only;(d)subject to Ms Franke having then had 12 months’ of treatment and complying with reporting requirements, that time move to a substantially shared care arrangement.EVIDENCE Mr Lasker was the only witness in his case. He relied on his trial affidavit filed 31 July 2024, which was read without its annexures. I required documents to be individually tendered. Ms Franke relied on her trial affidavit filed 1 August 2024, which was read without its annexures, and also on an affidavit of her sister, Ms M filed 1 August 2024 with its annexures (“maternal aunt’s affidavit”). Documents were tendered and received into evidence. I have read and considered those Exhibits. In addition to the Magellan Report (“Exhibit ICL1”), the Court received into evidence:(1)The Family Report of Ms C dated 14 December 2021 (“the first Family Report” or “Exhibit ICL2”);(2)The second Family Report of Ms C dated 1 March 2024 (“the second Family Report” or “Exhibit ICL3”);(3)The third Family Report of Ms C dated 28 August 2024 (“the third Family Report” or “Exhibit ICL4”);(4)A report of paediatrician Dr J dated 29 August 2024 (“Dr J’s Report” or “Exhibit ICL5”).THE PARENTS AS WITNESSES Mr Lasker gave his evidence mostly in a straightforward way, although he was evasive at times, particularly when answering questions about text messages between him and Ms Franke in the period after their separation. His affidavit evidence to the effect that, even prior to the allegations first being raised, Ms Franke had dictated the terms of his relationship with X and the time X would spend with him, was successfully challenged under cross examination. He did not impress as particularly reflective or insightful. He had not given any evidence in chief about his behaviour towards Ms Franke after separation. Under cross examination, he did not adequately accept responsibility for some of his behaviour during that period. Nonetheless, the way in which he gave his evidence persuaded me that he is motivated by X’s best interests, rather than by revenge or vindication. Ms Franke had an unusual presentation. She frequently asked for questions put to her in cross examination to be repeated – notwithstanding that they were generally clearly and carefully put. She appeared at times to be confused and to “second guess” herself. There were occasions when she seemed to be seeking additional time to consider the implications of her answer, rather than answering in a straightforward and forthright way. At one point, she asked for a question to be repeated so that she could “regroup” and had to be told by me that this was not appropriate. At another point, she said words to the effect that she did not want to “ruin the case”. At another stage, when a discrepancy between her affidavit and the oral evidence she had given regarding the timing of a conversation with X was brought to her attention, she responded “I should have just said I can’t recall”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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