Lenkov & Serada

Case [2021] FamCA 192

FAMILY COURT OF AUSTRALIA

Lenkov & Serada [2021] FamCA 192

File number(s): SYC 33 of 2018
Judgment of: ALTOBELLI J
Date of judgment: 14 April 2021
Catchwords: FAMILY LAW – PARENTING – Final parenting orders – Where mother alleges family violence – Where mother asserts the child is fearful of the father – Where there is no objective evidence supporting mother’s claims – Where Family Report is available – Where Family Report indicates meaningful relationship between the child and both parents – Where Court makes credit findings – Where Court finds the child would benefit from a meaningful relationship with both parents – Orders made for child to live with the mother and spend time with the father.   
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV
Cases cited:

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192; [2004] FamCA 768

W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892

WK v SR (1997) FLC 92-787; [1997] FamCA 57
Number of paragraphs: 191
Date of last submission/s: 14 January 2021
Date of hearing: 11-14 January 2021
Place: Sydney via videoconference
Counsel for the Applicant: Dr McConaghy
Solicitor for the Applicant: Rennie Lawyers & Notaries
Counsel for the Respondent: Ms Knight
Solicitor for the Respondent: Hillcrest Family Lawyers
Counsel for the Independent Children's Lawyer: Ms Messner
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 33 of 2018
BETWEEN:

MR LENKOV

Applicant
AND:

MS SERADA

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

14 APRIL 2021

THE COURT ORDERS THAT:

1.All previous orders be discharged.

2.The parties have equal shared parental responsibility for the child, X Lenkov born … 2015 (‘the child’).

3.The parent with whom the child is living at the time shall have responsibility for making day-to-day decisions concerning the child without reference to the other parent.

4.The child lives with the mother.

5.The parents are to do all things necessary to ensure that the child spends time with the father during the school term as agreed between the parties in writing and failing agreement, as follows:

(a)From the date of these orders to the commencement of Term 3, 2021:

(i)In week 1, from after school or 3pm Friday until before school or 9am Monday, commencing from the Monday after the making of these orders; and

(ii)In week 2, from after school or 3pm Thursday until before school or 9am on Friday.

(b)From Term 3, 2021 and thereafter:

(i)In week 1, from after school or 3pm Thursday until before school or 9am on Monday; and

(ii)In week 2, from after school or 3pm Thursday until before school or 9am on Friday.

6.The parents are to do all things necessary to ensure that the child spends time with the father during each school holiday period as agreed between the parties in writing and failing agreement, as follows:

(a)During each Term 1,…

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AGLC
Lenkov & Serada [2021] FamCA 192
Case
[2021] FamCA 192
Decision Date

CaseChat Overview and Summary

This case involved Mr. Lenkov (the applicant father) and Ms. Serada (the respondent mother) concerning final parenting orders for their child, X. The mother alleged family violence and that the child was fearful of the father, while the father denied these claims and suggested the mother suffered from mental health issues and would not support his relationship with the child.

The court was required to determine the best interests of the child, specifically whether the mother's allegations of family violence and the child's fear of the father were substantiated, and how these factors, along with the existing parental conflict, should inform the final parenting arrangements. The court also considered the father's contention that the mother posed a risk to the child by not supporting his relationship with the father.

Altobelli J found that there was no objective evidence to support the mother's claims of family violence or the child's fear of the father. The court made credit findings against the mother's assertions and, based on the Family Report which indicated a meaningful relationship between the child and both parents, concluded that the child would benefit from continued meaningful involvement with both. The court applied the principles of the *Family Law Act 1975* (Cth), particularly the paramountcy of the child's best interests, and the objects of Part VII, including ensuring the child has the benefit of both parents' meaningful involvement and protection from harm.

The court ordered that the parties have equal shared parental responsibility for the child. The child was to live with the mother, with the parent with whom the child is living at the time responsible for day-to-day decisions. The orders detailed specific arrangements for the child to spend time with the father during school terms, school holidays, and on specific occasions such as Father's Day and the child's birthday, with provisions for communication via a parenting app and restraints on denigrating the other parent. Passports were to be held by the court, and the child was placed on the Family Law Watch List to prevent international travel. The Independent Children's Lawyer's appointment was extended for six months to monitor the implementation of the orders.

Orders

Orders of the court

SYC 33 of 2018

BETWEEN:

MR LENKOV

Applicant

AND:

MS SERADA

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

14 APRIL 2021

THE COURT ORDERS THAT:

1. All previous orders be discharged.

2. The parties have equal shared parental responsibility for the child, X Lenkov born … 2015 (‘the child’).

3. The parent with whom the child is living at the time shall have responsibility for making day-to-day decisions concerning the child without reference to the other parent.

4. The child lives with the mother.

5. The parents are to do all things necessary to ensure that the child spends time with the father during the school term as agreed between the parties in writing and failing agreement, as follows:

(a) From the date of these orders to the commencement of Term 3, 2021:

(i) In week 1, from after school or 3pm Friday until before school or 9am Monday, commencing from the Monday after the making of these orders; and

(ii) In week 2, from after school or 3pm Thursday until before school or 9am on Friday.

(b) From Term 3, 2021 and thereafter:

(i) In week 1, from after school or 3pm Thursday until before school or 9am on Monday; and

(ii) In week 2, from after school or 3pm Thursday until before school or 9am on Friday.

6. The parents are to do all things necessary to ensure that the child spends time with the father during each school holiday period as agreed between the parties in writing and failing agreement, as follows:

(a) During each Term 1, 2, or 3 school holiday period:

(i) From after school or 3pm on the last day of school until 10am on the middle Saturday of the holidays in even numbered years; and

(ii) From 10am on the middle Saturday until the commencement of school or 9am in odd numbered years.

(b) From 2021 to 2023, during the Term 4 summer holiday period:

(i) In odd numbered years, in alternating blocks of seven (7) nights, from the conclusion of school on the last day of the school term for a period of seven (7) nights and until 10am on the day following the seventh night;

(ii) In even numbered years, in alternating blocks of seven (7) nights, from 10am on the day following the seventh night that the child has spent with the mother, for a period of seven (7) nights and until 10am on the day following the seventh night with the father;

(iii) In the event of less than seven (7) nights of the summer holidays being left, the child is to remain in the care of that parent until the first day of school Term 1.

(c) From 2024, during the Term 4 summer holiday period:

(i) In even numbered years, for the first three (3) week block of the summer holiday period; and

(ii) In odd numbered years, in the second three (3) week block of the summer holiday period.

(d) On Father’s Day from 10am until the commencement of school or 9am on the day following Father’s Day.

(e) If the father is not available in a school holiday period, he must give 28 days’ written notice to the mother.

7. In the event that the Father’s time with the child coincides with Mother’s Day, the father’s time with the child be suspended from 10am until the commencement of school or 9am on the day following Mother’s Day.

8. Time in accordance with orders 5 and 6 be suspended, and the child spend time with each parent, on his birthday as follows:

(a) With the father in odd numbered years from 9am to 6pm if the child’s birthday falls on a non-school day or from after school until 6pm if it falls on a school day.

(b) With the mother in even numbered years from 9am to 6pm if the child’s birthday falls on a non-school day or from after school until 6pm if it falls on a school day.

9. For the purposes of these orders, changeover other than at the school or scheduled activity or event is to take place at Suburb B McDonalds, unless otherwise agreed in writing between the parents.

10. For the purposes of these orders, the parents or their agents may attend changeover, provided the parents have communicated the name of the agent in writing to each other.

Communication

11. The parties shall communicate with each other using the “Our Family Wizard” parenting app and only in relation to matters concerning the child’s arrangements or in relation to obligations as to parental responsibility including medical and psychological treatment and education, unless in the case of an emergency.

12. Each party be restrained from:

(a) Questioning the child about the other parent or about periods when the child was spending time with that other parent;

(b) Using corporal punishment or physical force when disciplining the child;

(c) Assaulting or threatening the child;

(d) Denigrating the other party (or any member of the other party's family) in the presence or hearing of the child, and use their best endeavours to ensure no other person denigrates the other party or many member of the other party’s family in the presence or hearing of the child;

(e) Involving the child in matters concerning parenting arrangements; and

(f) Showing or permitting the child to read or making the child aware of any communication between the parties pertaining to arrangements.

13. Each party keep the other informed of their mobile telephone number and any changes thereto within 24 hours of such change.

Health

14. Each party keep the other informed of the child’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations.

15. In the event that the child suffers any serious medical emergency and/or illness, the parent who is caring for the child at the time is to notify the other parent by telephone call (and if not reachable, parenting app), as soon as practicable, and in any event not more than three (3) hours after the emergency or illness first occurring, including providing details of the relevant hospital or health practitioner on which the child has or is attending, and authorise such to provide to the other parent at his/her request and expense any information and/or reports concerning the child.

16. The parties each do all acts and things and sign all documents necessary to authorise each medical professional or health care provider treating the child to provide a copy of any test results, letters of referral, reports and other letters relating to the treatment of the child, to the other, and each party provide to the other the name, address, and telephone number of each medical professional treating the child, upon request at each party’s own expense.

17. In the event that the child is unwell and is unable to attend school for more than one (1) consecutive day due to a medical illness, then the party whose care the child is in is to provide a medical certificate to the school which covers all days that the child is absent from school.

18. Leave be granted to the parties to provide a copy of the Family Report dated 27 July 2020, prepared by family consultant Ms C, to the mother’s health care professionals.

Education

19. The mother is to withdraw all previous school enrolment applications completed for the child in primary schools other than D Public School.

20. If the following has not yet been effected by the date of these orders, then the parties shall do all things necessary and execute all documents necessary so as to cause the child to be enrolled in D Public School to commence in Term 2, 2021, including and not limited to:

(a) That by 16 April 2021, the father to complete a new school enrolment application to enrol the child into D Public School and to forward the application to the mother’s solicitor;

(b) That by 19 April 2021, the mother to complete her section of the enrolment application and forward the completed application to the D Public School; and

(c) That the parties are restrained from adding further information in the school enrolment application, except to include the relevant current Court order.

21. If the following has not already been effected by the date of these orders, then within 7 days of the date of these orders, the mother’s solicitor is to forward a copy of the completed enrolment application to the father’s solicitor and the Independent Children’s Lawyer, save for the mother’s address to be redacted in the enrolment form.

22. If the child has already been enrolled in, and is currently attending, D Public School, then the parties to do all things and sign all documents necessary to add the father’s details to the child’s school enrolment application.

23. The parties be granted leave to provide a copy of these orders to D Public School.

Family Therapy

24. The parties shall do all acts and things to arrange for the parties and the child to attend on a family therapist as recommended by the Independent Children’s Lawyer for the purpose of confidential family therapy.

25. Upon attending the family therapy with the family therapist, the mother and the father shall ensure that:

(a) They and the child attend on the family therapist as and when directed by the family therapist and follow any reasonable request, direction or requirement of the family therapist, including but not limited to the frequency of appointments, any recommendation that either party participate in any parenting or other course or program recommended by the family therapist; and

(b) Both parties do all acts and things to provide the family therapist with an irrevocable authority for the family therapist to advise the parties in writing, on the request of the parties or on the family therapist’s own determination, the date appointments have been scheduled with the family therapist for the child and the parties to attend, and whether the parties and the child attended those appointments.

26. Within 14 days of the provision by the Independent Children’s Lawyer of the recommendation for a family therapist, the mother and the father shall contact the family therapist to book to attend an appointment with the family therapist within the next two (2) weeks or on the next available date.

27. Both parties provide the other party with confirmation that they have attended an initial appointment with the family therapist in writing within seven (7) days of attending on the family therapist.

28. The mother be responsible for:

(a) Attending on her General Practitioner with the child to obtain a Mental Health Plan for herself and the child; and

(b) Any and all costs associated with any individual appointments she is required to attend as requested by the family therapist.

29. The father be responsible for:

(a) Attending on his General Practitioner to obtain a Mental Health Plan for himself; and

(b) Any and all costs associated with any individual appointments he is required to attend as requested by the family therapist.

30. The father be responsible for the costs of the child’s appointments with the family therapist.

31. Leave be granted to the Independent Children’s Lawyer to provide the family therapist appointed herein with the Family Report dated 27 July 2020, prepared by Family consultant Ms C.

32. The mother enrol in and complete a Parenting After Separation course and provide a copy of the Certificate of Completion to the Father within six (6) months of the date of these orders.

Travel

33. Within 14 days, the party holding the child’s Australian and/or Country E passport(s) is to deliver such passport(s) to the Registrar of the Family Court of Australia, Sydney Registry, and the Family Court shall hold the child’s passport(s) until he turns 18 years of age or the parties otherwise agree or pursuant to Court order.

34. Subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, the parties, their servants, and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia for a period of time until the child turns 18 years of age; AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List for the said period, until the Court orders its removal, or with consent of all parties.

Other

35. The appointment of the Independent Children’s Lawyer be extended for a period of six (6) months from the date of these orders, so that the Independent Children’s Lawyer may monitor the implementation of these orders by the parents.

36. The Independent Children’s Lawyer be granted leave to relist this matter on seven (7) days’ notice should any difficulties be encountered regarding the implementation of these orders that cannot be resolved through negotiation.

Background

Background to the litigation

This case concerns a child, Z, born in 2015. The child is currently five years and eight months old. He lives with his mother and spends time with his father. These reasons for judgment explain the orders that the Court has made about the child spending time with his father.BACKGROUND The child’s father is the Applicant in this case. He is 39 years old, describes himself as a professional, and lives in a western suburb of Sydney. The child’s mother is the Respondent. She is 36 years old, describes herself as a homemaker, and lives in an undisclosed location in Sydney. Both parents are of Country E background. They married in City F in September 2006, and migrated to Australia in October 2007. They have remained living here since then. The parents separated in December 2017. The totality of the evidence before the Court creates the impression that the relationship was an unhappy one for many years before then. Regrettably, the relationship continued to deteriorate after separation. Currently, the child spends time with his father from 3pm on Fridays to 5pm on Saturdays pursuant to interim orders made by Senior Registrar Campbell on 20 August 2019. The father would like to expand the amount of time that he spends with the child, but, conversely, the mother would like to reduce this and impose limitations on it. There are many issues in this case. The father contends, but the mother denies, that the mother suffers from mental health issues. The mother contends, but the father denies, that there was pervasive family violence including coercive and controlling violence directed by the father against her both during their relationship, and afterwards. In particular, the mother contended in cross-examination that the father had been gaslighting her. The mother’s treating psychologist, who gave evidence in her case, explained that gaslighting is, in essence, a process by which one person undermines the other’s confidence and mental health. The father denies this and, indeed, contends that the mother was violent towards him. The mother’s case is, in effect, that the child’s time with his father needs to be supervised, or alternatively limited, because he presents an unacceptable risk of harm to the child. The father denies such risk and, in effect, contends that the risk of harm to the child comes from the child’s mother, who will not support his relationship with the father. In December 2017, the police applied for and obtained an Interim Domestic Violence Order protecting the mother. The father was also charged with common assault. This precipitated the final separation in December 2017. In March 2018, the father was found not guilty of assault and the Apprehended Domestic Violence Order (‘AVO’) was ultimately dismissed. After separation, it is common ground that the mother and the child moved their residence six or seven times. The mother conceded in cross-examination that there were roughly three periods when the mother did not make the child available to spend time with the father. Some of those occasions occurred during periods when there were orders for contact to take place.

Evidence

Evidence Before The Court

Counsel for the father indicated that the father agreed with the minute of orders provided by the Independent Children’s Lawyer, save for the order as to the costs of the Independent Children’s Lawyer. Counsel for the mother outlined in a document provided to the Court via email correspondence, marked as exhibit R11, that the mother agreed to orders 1, 3, 4, 6, 7.2, 10-13, 15-17, 19-21, and 23-32 proposed by the Independent Children’s Lawyer, but asked that the word ‘telephone’ in order 13 be replaced by the words ‘parenting app’.THE EVIDENCE In support of his case, the father relied on the following documents:(a)His Notice of Risk filed 5 January 2018;(b)Child Dispute Conference Memorandum dated 10 July 2018;(c)Family Report dated 27 July 2020;(d)His Trial Affidavit filed 22 December 2020 and corresponding exhibits;(e)His Further Amended Initiating Application filed 4 December 2020.(f)A Case Outline document filed 8 January 2021; and(g)Various documents tendered into evidence as exhibits A1 through to A19. In support of her case, the mother relied on the following documents:(a)Family Report dated 27 July 2020;(b)Affidavit of Dr G filed 21 December 2020;(c)Her Affidavit filed 22 December 2020;(d)Affidavit of Ms H filed 23 December 2020;(e)Affidavit of Ms J filed 27 December 2020;(f)A Case Outline document filed 7 January 2021; and(g)Various documents tendered into evidence as exhibits R1 through to R11.[1][1] Exhibit R8 was removed as a duplicate of exhibit ICL 12. In support of her case, the Independent Children’s Lawyer relied on the following documents:(a)Family Report dated 27 July 2020;(b)A Case Outline document filed 6 January 2021; and(c)Various documents tendered into evidence as exhibits ICL1 through to ICL18.[2][2] Exhibit ICL3 was removed as a duplicate of exhibit R2.THE APPLICABLE LAW The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA. The objects and principles of Part VII are set out at s 60B:60B Objects of Part and principles underlying it(1) The objects of this Part are to ensure that the best interests of children are met by:(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d) parents should agree about the future parenting of their children; and(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:(a) to maintain a connection with that culture; and(b) to have the support, opportunity and encouragement necessary:(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and(ii) to develop a positive appreciation of that culture.

Decision

Reasons for decision

By strong contrast, the mother contended that the father presented a serious, imminent, and ongoing risk of harm to the child. This was primarily a psychological or emotional harm in exposing the child to the father’s alleged relentless negativity and undermining of the mother, and the father’s efforts to inculcate this in the child, thus undermining his relationship with the mother. At one level, the mother’s case acknowledged her anxiety and suggested that this was one reason why the Court should be cautious in ordering time between the child and his father. Curiously, at another level, the mother’s case seemed to downplay her anxiety in the context of minimising concerns about her mental health. The mother’s case emphasised that it was not in the child’s interest to be exposed to the deep parental conflict between the parents. The mother’s case was that the father had been and continued to be coercive and controlling of her. This was another basis for greatly limiting the father’s time with the child. The mother’s case emphasised the constant and ongoing fear that she had of the father. OUTLINE OF THESE REASONS FOR JUDGMENT The Court will first consider the evidence of the family consultant, Ms C. Her Family Report is dated 27 July 2020. In discussing the report, and the subsequent cross-examination of Ms C on the final day of the hearing, the Court will also refer where appropriate to the evidence presented in the case generally. Indeed, the family consultant’s report and evidence, and the evidence in the case generally, will mutually inform each other. Thereafter, the Court will consider the remaining evidence by reference to the primary and additional considerations that are set out in s 60CC of the Family Law Act.THE EVIDENCE OF MS C Family consultant Ms C conducted interviews by Microsoft Teams on 25 June 2020 with the parents, and then a face-to-face interview with the child on 10 July 2020, including observations of the child with both parents. She also had available to her what would appear to be, most, if not all the documents filed by the parties and the orders made in the proceedings to date. She also had available to her the extensive material produced on subpoena as at that time. The report correctly identified the current arrangements at the time, the relevant family background, the history of the dispute, and the competing proposals of the parties at the time. At that time, the mother’s main proposal was to relocate to Country E with the child. At paragraph 16 of the report the mother is recorded as proposing to live with the child “in the Country E, Country K or European city and for this location not to be disclosed to Mr Lenkov”. The family consultant records extensively her interviews with both parents. She records at paragraph 26, for example, that the father presented as “reflective, communicative, polite, and engaged well in the Family Report process”. She observed him to wish to focus on the future rather than the past, as he was concerned about how a focus on the past could affect the future possibility of an amicable co-parenting relationship. The Court observes that the father’s presentation to the family consultant was consistent with his presentation to the Court during his evidence.

Ratio Decidendi

Legal Principle Established

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