Levandi & Levandi
[2022] FedCFamC1F 702
Federal Circuit and Family Court of Australia
(DIVISION 1)
Levandi & Levandi [2022] FedCFamC1F 702
File number(s): SYC 1109 of 2020 Judgment of: SCHONELL J Date of judgment: 15 September 2022 Catchwords: FAMILY LAW – PARENTING – Where the father sought orders for one of the parties’ children to attend therapy and for the mother to ensure that the child spend time with him – Where the child the subject of the orders sought is 15 years old – Where there was an incident of family violence between the father and child in which it is not clear who the perpetrator was – Where there is a possibility of risk of harm to the child which cannot be ignored – Where the final hearing is less than two months away – Orders sought by the father not made except for those made by consent – Father’s application otherwise dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL Cases cited: Adamson & Adamson [2018] FamCA 523
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 13 September 2022 Place: Sydney Counsel for the Applicant: Mr Williams KC Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Nicole Evans Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 1109 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LEVANDI
Applicant
AND: MS LEVANDI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
15 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.By consent, orders are made in accordance with paragraph 7 of the father’s Case Outline filed 12 September 2022 as set out hereunder:
7.In order to implement Order 4 of the Orders made on 8 December 2021, the applicant mother shall direct and, in all circumstances use her best endeavours to, encourage [X] to initiate a telephone call and/or Facetime call to the respondent father at 8:00 pm each Tuesday and Sunday.
2.By consent, orders are made in accordance with the document titled “Minute of Proposed Consent Order” as set out hereunder:
1. That leave is granted to the solicitors for the Applicant Father to forthwith release to the single expert psychologist, [Ms B], the letter of instruction to [Ms B] comprising Annexure A to these Orders.
2. Leave is granted to the solicitors for the Applicant Father to forthwith release to the single expert psychologist, [Ms B], the following:
2.1 these procedural Orders;
2.2 Father's Application in a Proceeding filed 29 August 2022;
2.3 Affidavit of [Mr Levandi] filed 26 August 2022 (with annexures);
2.4 Mother's Response to Application in a Proceeding filed 9 September 2022; and 2.5 Affidavit of [Ms Levandi] filed 9 September 2022 (with annexures).
3. That [Ms B] be requested to use her best endeavours to provide answers to the questions raised in the letter comprising Annexure A in advance of the final hearing commencing 7 November 2022 (or as much of them as is reasonably practicable in the time available).
3.The mother and father each pay 50% of the costs of the report.
4.The father’s Application in a Proceeding filed 29 August 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 the pseudonym Levandi & Levandi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are interim proceedings brought by the father seeking various parenting orders in relation to one of the parties’ two children, X, born in 2007. X is currently 15 years of age and in Year 9 at school. In broad terms, the father seeks orders compelling the mother to take the child X to family therapy and an order compelling the mother to ensure that the child spends time with the father in accordance with orders.
All parties were in agreement that a form of updated report should be obtained from the single expert. A form of order was subsequently submitted by the parties. Otherwise, the mother through her counsel indicated that she did not oppose the order sought by the father that the mother was to encourage X to initiate a telephone call to the father.
These interim proceedings are part of wider proceedings that are listed for final hearing for five days commencing 7 November 2022. They are highly conflictual parenting proceedings and the Family Report of Ms B identifies a number of particular instances where significant difficulties have arisen in the parenting relationship.
In the Family Report, Ms B identified that the parties’ two children X and his sister Y were at that time spending three nights a fortnight with their father. Ms B recommended that the children’s time should be increased to four or five nights a fortnight.
Relevantly, Ms B opined as follows:
160. I would not anticipate this increase in [Mr Levandi’s] time with the children to be an issue should it be fully supported by the mother and a practical solution is worked out for issues such as uniforms. Should the children, and in particular [X] feel that this change is forced on them (and [Ms Levandi]) by their father and the Court then it would be understandable that there would be resistance. I don’t see this as a reason not to increase the father’s time but rather an issue that will need to be carefully dealt with, preferably with the support of a good family therapist experienced in these matters. Such family therapist, should have leave to access this report to assist them.
In the Family Report, she made the following observations that are apposite to the fate of this application:
85. In her second interview [Y] acknowledged the conflict that she had witnessed between her parents prior to their separation. She also acknowledged that things had been “very difficult” since and referenced the need to give evidence before a Court after witnessing a physical altercation between her parents in 2020. When asked if she felt unsafe at all with either parent, she indicated that she did not.
…
98. [X] was asked if his mother could do anything to make the situation easier. Somewhat surprisingly, [X] launched into a attack on his mother that she “talked about divorce stuff too much” and always needed “more details” from him about his father. [X] added that his mother would become angry if he did not supply her with enough details about his visit to his father’s house and reported that [Ms Levandi] had told him that her “lawyer needed more details”. During his interview [X] became exasperated and frustrated, throwing his hand up in the air, stating that the “whole thing is annoying! Everyone just stop talking to me about it!”.
…
116. Being caught in a loyalty bind between parents causes children to seek solutions to an unsolvable problem – and they do so often by denying or cutting off one parent. To do so, is often to deny the reality of events, split off a part of themselves and carry an enormous burden of emotional pressure and guilt that has long lasting ramifications.
…
118. [X] presented as an angry and confused young male. Throughout his interview he changed states quickly between laughing and joking to lashing out in anger to rolling his eyes with annoyance and boredom. He has been caught up in his parent’s conflict and has decided that he is safer to take his mother’s side. She has been a consistent figure in his life, heavily involved in his interest of [sport] and, in his eyes, is a victim of his father. [Ms Levandi’s] parenting approach to [X] is likely to be one where he is listened to and his feelings validated. In doing that, [X] likely has a significant influence and power in the dynamics of [Ms Levandi’s] household.
…
121. [X’s] expressed views were simplistic in nature and not backed by any detail or examples. He struggled to be able to explain how he formed such conclusions about his father and did not have any insight or awareness as to how his own behaviour may contribute to tension between family relationships. His expressed views of distain towards his father were not consistent with his emotional presentation during the interview – that is, he would often make such remarks whilst smirking or laughing. He was also observed in the presence of his father to be engaged and chatty (albeit annoyed because he didn’t have his phone available).
122. [X] lacks emotional maturity and in a normal 14-year-old manner is self-focused on what he can gain. He has a black-and-white view of the world and lacks the ability to synthesise multiple pieces of information together in a nuanced manner. He lacks the experience in life and relationships to be able to interpret past events between his parents and has an inflated opinion that he should be listened to at all costs. This is a normal teenage mindset but to a degree has been reinforced by [Ms Levandi] who has likely given the impression to him that his ‘voice’ is important.
…
152. Both parents have verbally acknowledged and stated that it is important to them that the children have a relationship with both parents. I expect that on face value both parents are also expressing this to the children. I cannot see evidence that either parent is explicitly bad mouthing or disparaging the other to the children. I expect that [Mr Levandi] will make every practical attempt to facilitate a relationship between the children and their mother, acknowledging what a wonderful primary parenting role she fulfills for them.
153. I think that the children will find their mother’s actions in encouraging a relationship with their father confusing. On one hand she demonstrates enormous insight into not excessively contacting the children when they are in [Mr Levandi’s] care, as to respect and not undermine his time with them. She verbally encourages, soothes and talks them around when perhaps they do not want to go to their fathers house. Conversely, I think that some of her other behaviour such as questioning the children on their return to her, making it difficult to transfer uniforms between houses, and giving them a need to be hypervigilant when it comes to [Mr Levandi’s] anger, undermines and weakens their relationship with him.
Subsequent to the Family Report, an incident occurred on the weekend in mid-2022. The parties are at issue as to who was the aggressor.
According to the father, X was disrespectful towards him and swore at him. The father gives evidence that X kicked and punched him. The father says that in an attempt to diffuse the situation, he asked X to stay in his room. He says after a period of ten minutes, he went to see X and that X swore again at him and then commenced attacking him physically punching him several times, spitting and kicking him repeatedly. The father says that he told X “if you do not stop, you are not welcome to remain at my home until your behaviour improves” (father’s affidavit, paragraph 57). He says that X then attacked him again and he then opened the door and ushered X into the lobby of the apartment building. He says that this incident took place in the presence of Y. He says that he did not hit X in any way.
The mother says that X reported to her that X and his father had an argument, that the father was swearing at X, and that an incident took place. The mother in her affidavit states:
17. …
Describing this incident, [X] said words to me having the effect of “Dad was already so angry that I think kicking his shin set him off. He grabbed me, pushed me backward hard and then we both started punching each other. We both landed blows. Dad hit me on the lip. When I was able to get away, I ran into Dad’s room to get my phone to call you for help but he followed me in and it started again. He shoved me hard and I fell backward onto his bed. Dad told me that he going to call the Police to have me charged with assault! I told him, ‘go on then, please call the Police. That will be better for both of us.’ I hurt my ankle somehow. When I got up, Dad kept pushing me and shoved me until I was out in the corridor. I then ran and sat in the stairwell”
The mother says that she took X to the Children’s Hospital at Suburb C. She says that they advised her that she should contact the police and that she subsequently reported the incident to the police who spoke with X. There is no evidence before the Court as to what X said to the police.
Since that weekend, it is an agreed that X has not spent any time with his father. In evidence there were text messages between the father and X showing attempts by the father to arrange contact with X. There is nothing inappropriate in the father’s attempts. X has not responded to any of the texts.
Despite what happened, Y continues to see her father in accordance with the Court orders.
The father relied upon the following documents:
(1)Application in a Proceeding filed 29 August 2022;
(2)Affidavit filed 26 August 2002; and
(3)Case Outline document.
The mother relied upon the following documents:
(1)Response filed 9 September 2022;
(2)Affidavit filed 9 September 2022; and
(3)Case Outline document.
All parties, including the ICL, referenced the Family Report of Ms B.
King’s Counsel for the father submitted that the father seeks to ensure that X engages in family therapy and that his mother proactively not only supports the father’s relationship but that she be compelled to ensure that X attends time with his father. He submitted that the mother is not supportive of the child’s relationship with the father and that the Court needs to act to immediately get the father’s relationship with X back on track. King’s Counsel contended, by reference to various parts of the Family Report, that X is lacking in emotional maturity and that, in essence, decisions as to his welfare should not be determined by him.
The mother’s counsel indicated that the mother is encouraging X to spend time with the father and that X is currently engaged with a school counsellor. There is, however, no evidence before the Court as to what is being discussed with the school counsellor or whether the school counsellor is aware of the issues, including the most recent issue that arose in mid-2022. It is agreed that the school counsellor does not have the Family Report.
The mother’s counsel submitted that X is caught in the middle of a fight between his parents, and that he should not be forced to attend family therapy or compelled to attend on orders to spend time with his father. She submitted that the application is premature in the absence of expert evidence addressing the incident in mid-2022. She submitted that the matter should await a final hearing, which is to occur in two months’ time. The mother did not have a proposal for how X’s relationship with his father could be restored.
The ICL identified that there was a risk of harm to X and that the Court should not do anything until such time as it is in a better position to assess all of the evidence, including any updating evidence from Ms B. She submitted that there was a risk that the dispute between X and the father could spill over into Y’s relationship with the father, and that there was a risk if the mother was compelled to do the things the father urges it could lead to a breakdown in X’s relationship with his mother. The ICL did not support the father’s application.
It is clear that there are various risks at play. They include that X has possibly been the victim of family violence. Another risk is that X could be placed in a situation again where he might be perceived to be a perpetrator of family violence. Another risk is that Y, who has already been exposed to family violence, could be exposed to further incidents of family violence. Another possible risk is that X is further empowered by a denial of the father’s relief in line with the observations at paragraph 118 of the Family Report. Alternatively he may just be giving effect to what is reported at paragraph 116 of the Family Report.
APPLICABLE LAW
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts about what happened in mid-2022. However, just because I am unable to determine or resolve the disputed facts and assertions does not mean that I ignore the allegations of potential risk.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to "probabilities" does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, "possibilities" are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those "possibilities".
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
PRIMARY AND ADDITIONAL CONSIDERATIONS
In applying the primary considerations, the benefit to the child of having a meaningful relationship with both parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439).
Both parties contend that it is important that X have a meaningful relationship with the other parent. They appear to differ as to the way in which this can occur. The father seeks to get back on track what had been the previous relationship he had with X, namely, one of three nights a fortnight, and ultimately to move the matter to a position where the Court would increase his time with X to five nights a fortnight, being the outer recommendation of Ms B.
The mother for her part merely seeks a dismissal of the father’s application. Notwithstanding that there are currently orders in place which are not being complied with, she does not seek to discharge those orders. The mother says that she is encouraging of a relationship between X and his father but notwithstanding that encouragement, she has not been able to encourage X to attend on time with his father. When pressed, the mother’s counsel indicated that the mother did not as yet have a proposal for a restoration of the relationship between X and the father, and said that at the final hearing the mother’s application may well be that time take place between X and the father in accordance with his wishes.
As stated above, I am required when applying the primary considerations to give greater weight to the need to protect the child from risk and harm than to the benefit to the child of having a meaningful relationship with both parents. I must also have regard to the impact on Y of any proposed orders.
I cannot ignore the allegations of risk that are raised by the evidence. I cannot resolve the competing factual dispute arising out of the incident that occurred in mid-2022. I cannot determine whether or not X was the victim or the perpetrator of family violence. I need to act cautiously.
I am satisfied that there exists a possibility of a risk of harm if the father’s orders are made. On one version, the risk could be that if there is a compulsive order made of the type as sought by the father then it could have the unintended consequence of impacting on the father’s relationship with Y. It could possibly expose Y to further acts of family violence. There could be further acts of family violence involving X. If so, that could only further impact upon what remains of the father’s relationship with X. As the authorities make clear “possibilities” are a legitimate basis for a finding of risk.
I cannot know what the outcome of the orders proposed by the father might be. One must always be cautious in interim proceedings about unintended consequences. It is for good reason that the authorities direct judges to act with caution. I am concerned about the degree of risk that is attenuated by the proposed orders. The ICL made it plain that X indicated that he did not want to attend therapy. I do not know if Ms B’s opinion about time between X and the father as expressed at paragraph 160 of her Family Report in light of the incidents that occurred this year would change. However, I will in all likelihood know that view either shortly prior to or at the hearing in November.
In determining what is in the best interests of X, I will now turn to the additional considerations so far as they are relevant.
There is ample evidence as to X’s views about not wanting to spend time with the father or take part in therapy. That is amply demonstrated in the evidence of the mother where X makes it plain that he does not want to spend time with the father. Likewise, Exhibit 3 in the proceedings is a series of text messages forwarded by the father that cover a period in mid-2022. There is nothing inappropriate in the father’s attempts to engage with X. What is apparent, however, from those texts is that X has not responded.
I also take account of what Ms B has said about X’s level of maturity and how he is clearly caught in a conflict between his parents. I also recognise the significance of what Ms B states at paragraphs 121 and 122 of her Family Report.
I accept that X has a relationship with his mother and clearly had a relationship with his father. X is currently spending time with Y when she is with her mother. The evidence does not permit me to make any findings about the extent to which each of the parents has taken or failed to take an opportunity to take part in decisions about long-term issues.
A considerable focus for the purpose of interim proceedings is a consideration of the factors identified in section 60CC(3)(f) and (i) calling into focus the insight and capacity of the parents to place X’s needs above their own, the attitudes of the parents to X and the responsibilities of parenthood. The matters raised by Ms B in the Family Report are troubling, and raise concerns in relation to the insight of both parents and their capacity to place the interests of their children over and above their own interests and needs.
In Mulvany & Lane (2009) FLC 93-404, the Full Court constituted by May and Thackray JJ stated as follows:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
I am satisfied on the material before me that the primary consideration of the need to protect the child from a risk of harm is the most pressing and prevailing consideration and overwhelms any of the other matters that might otherwise be a relevant consideration within the terms of s 60CC(3).
This is a case all about risk. There is an extremely poor co-parenting relationship, a high level of distrust and there are allegations of family violence. I am not, within the confines of this hearing, able to resolve the competing allegations.
Consistent with the obligation to act cautiously for the above reasons, I decline at this stage to make the orders the father seeks for parenting orders and family therapy. These matters will have to await a final hearing, which I note is to take place in less than two months’ time.
I will, however, make the order that the mother consented to and an order in relation to an updated report.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 15 September 2022
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