Lexor and Lexor

[2017] FamCA 956

FAMILY COURT OF AUSTRALIA

LEXOR & LEXOR [2017] FamCA 956

FAMILY LAW – CHILDREN – Parenting – Where by consent, final hearing adjourned part-heard to enable family therapy

Family Law Act 1975 (Cth)

APPLICANT: Ms Lexor

RESPONDENT: Mr Lexor

INDEPENDENT CHILDREN’S LAWYER: Ms Stanford

FILE NUMBER: ADC 129 of 2013

DATE DELIVERED: 22 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21-22 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Daniel

SOLICITOR FOR THE APPLICANT: Robertson Solicitors

COUNSEL FOR THE RESPONDENT: Ms Cotter-Moroz

SOLICITOR FOR THE RESPONDENT: John Hertz & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors

Orders

1. This matter be adjourned part-heard and be listed for further mention on 14 June 2018 at 10am.

2. Pending further order, orders be made in terms of the document entitled “Orders” and marked as Exhibit 27  as annexed hereto.

3. The family therapist provide a report to the court in relation to the progress of therapy by no later than 1 June 2018 or earlier if the family therapist thinks it is appropriate.

4. Leave is granted to either party or the Independent Children's Lawyer to relist this matter on 21 days notice or the matter can be relisted at the request of the family therapist on 21 days notice.

5. Should the matter resolve in the meantime, the parties can provide consent orders to my chambers and I will consider making orders in chambers.

6. The document entitled Orders be marked as Exhibit 27. I make orders in accordance with Exhibit 27 as attached.

7. The Independent Children's Lawyer provide the family therapist with a copy of these Reasons together with a copy of Exhibits 2 as far as that exhibit relates to the records in 2014 from the B Group Children’s Contact Service, Exhibits 3 and 26 and also a transcript which I will have taken out of Dr C’s oral evidence.

8. Subject to the approval of the family therapist, the Independent Children's Lawyer is authorised to provide a copy of Dr C’s report, a transcript of his oral evidence, these Reasons and any other document the family therapist considers appropriate, to the child’s school counsellor Dr D or anybody acting in that position from time to time.

9. The mother is to do everything necessary to cease the child’s psychotherapy with E Local Health District.

10. It is noted that the mother no longer, on an interim basis, presses an application in relation to international travel.

11. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lexor & Lexor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: ADC 129  of 2013

Ms Lexor

Applicant

And

Mr Lexor

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties and the Independent Children's Lawyer have requested that I make interim orders in these proceedings which have been in train since 2013 and where serious allegations of family violence have been raised by the mother which are denied by the father. The Independent Children's Lawyer has addressed me, pursuant to rule 10.15A(2)(c) Family Law Rules as to how the proposed orders attempt to deal with those allegations. I am satisfied that these interim orders do provide a protection in the context of the allegations that have been made which I will more fully describe below.

2. F is now 10 and a half years of age. He last had face to face contact with his father on 19 December 2014, notwithstanding orders that I made on 22 December 2014.

3. The mother had been F’s primary carer up until 24 February 2011 when she left F, then aged three and a half with the father and went to India for 21 months until she returned to Australia in November 2012. At the time she left the parties were living together at Suburb H in Sydney. The mother also left behind another child of the marriage, G, born in 1995, who was then 15 years of age. The mother says the reason that she left Sydney was as a result of intolerable systemic family violence perpetrated by the father against her and also against the children and she also says that she was feeling depressed.

4. Whilst the mother was in India the police took out an ADVO to protect G on 3 November 2011 after an alleged assault upon her by her father. By the time the mother returned to Australia, G was living in Adelaide.

5. Upon her return to Australia the mother commenced these proceedings, initially in Adelaide. They have never been finalised and it is with some regret that I am agreeing to not finalise these proceedings this week but I accept that the course that is being now agreed upon between the parents and the Independent Children's Lawyer is in the best interests of F.

6. In 2013, after her return to Australia, the mother commenced seeing F again.

7. On 27 September 2013 the mother says that she observed bruises to the child’s face but he did not indicate the cause of those bruises to her. As a result of an order I made on 1 November 2013, the mother commenced seeing F overnight. On 15 November 2013 the mother observed new bruising on F and took him to Suburb J Police Station. F was then aged six. He indicated both to his mother on her version and to the police officer that his father had caused the injuries that the police officer observed to F’s face. The police took out an ex parte ADVO to prevent contact between F and his father unless the Family Court ordered it. That ex parte ADVO was confirmed on 19 November 2013. During 2014 F did not see his father because of the ongoing investigation by the police into the alleged assault in November 2013. F changed schools at the commencement of 2014 with the imprimatur of an order by the Senior Registrar of this Registry and was enrolled in Suburb J Public School, a school close to the mother’s residence. Arrangements to provide the father with supervised contact were frustrated at that time by the father’s refusal to have his time with F supervised.

8. In June 2014 F gave evidence against his father in the Local Court. He was aged 7 at the time. On 25 September 2014 the father was found not guilty of an assault on F. There is in evidence the transcript of those proceedings in the Local Court. In sentencing remarks in finding the father not guilty, the Magistrate critically reviewed the evidence led in the prosecution against the father and I think it is fair enough to say, concluded that it was unreliable.

9. Arrangements were then made for the child to have 12 sessions at the B Group Children’s Contact Service to attempt to re-establish time between F and his father and as I have said, I made orders on 22 December 2014 to continue that happening. No time however took place between F and his father after those orders were made.

10. There were two incidents where F was hospitalised for short periods of time. One on 18 January 2015, and then again between 18 February 2015 and 23 February 2015. F was aged seven and a half at the time. He was diagnosed to have PTSD and suicidal ideation amongst other things. The last electronic communication between F and his father took place in early 2015 and was allegedly the reason why F was hospitalised on 18 January 2015.

11. F has been having psychotherapy for almost three years. He has had at least four different therapists. The therapy has been carried out by Infant, Child & Adolescent Mental Health Service associated with the E Local Health District. The progress of this case, either in respect of getting the parents and the child to family therapy and getting the matter to a final hearing has been delayed whilst this therapy has taken place. On multiple occasions I have been provided with documents by the psychologist treating F from time to time indicating that another period of time was needed in order to complete therapy.

12. The single expert, Dr C gave oral evidence, that he has attempted to find out from this organisation that is providing the psychotherapy to F, what the aims of the psychotherapy have been from time to time and what progress, if any, has been made. He warned that such prolonged psychotherapy which has been happening for almost three years now, could be highly detrimental to the child. Notwithstanding that request, that information has not been made available to me. The parties and the Independent Children's Lawyer have agreed during the proceedings so far before me that that psychotherapy should cease for reasons identified in Dr C’s evidence.

13. One of the core issues in this case is the apprehension the mother feels arising out of what she asserts was systemic family violence perpetrated upon her by the father.

14. Dr C, whilst not attempting to make an assessment as to the veracity of the history given by the mother, gives evidence that statements to him by the mother and statements made by both G and F about their memories of family violence, are internally consistent and their individual testimonies to him do not bear any hallmark of collusion or coaching.

15. The mother has set out in her affidavit in summary form the allegations she has made about being beaten and abused by the father during their marriage and her being very frightened of him. She said she was also frightened that if she upset him he would harm the child as she has previously observed him hurting G. In [9] to [15] of her affidavit she says:

    9.    [Mr Lexor] has headbutted me, twisted my leg causing an injury to my knee, hit me with shoes and slapped me repeatedly during the marriage. On one occasion he hit me in the head causing my eye to swell-up. I cannot recall when [Mr Lexor] hit me in the head causing my eye to swell. I did not contact the police or seek medical attention as [Mr Lexor] said he would kill me. In India women do not seek help from the police as often reporting violence to the police in India makes things worse for women and I was frightened that would happen in Australia.

    10.  [Mr Lexor] would tear my clothes of [sic] and force me out of the flat.

    11.  [Mr Lexor] would get angry with me over the slightest things in our marriage. If [Mr Lexor] did not like what I cooked he would throw the plate and food at me. [Mr Lexor] constantly swore at me in Hindi and made derogatory comments to me also in Hindi.

    12.  Divorce is not acceptable in my culture and I had hoped that my marriage with [Mr Lexor] would improve, however it did not. I was ashamed to tell anyone how [Mr Lexor] was treating me.

    13.  [Mr Lexor] and I moved from Adelaide in January 2011 and [Mr Lexor] threw me out of the home in February 2011. I had only lived in Sydney for one month prior to [Mr Lexor] throwing me out of the home.

    14.  At the time of separation [Mr Lexor] put me out of the former matrimonial home and threatened to kill me and my family members. I was homeless and I contacted my father in India to seek help s [sic] I was unaware of what I could do. I have been controlled by [Mr Lexor] who would not permit me to work, cut my hair, wear make-up. Every aspect of my life was controlled by [Mr Lexor] throughout our marriage and he repeatedly threatened to kill me or my family if I did not do what I was told.

    15.  At the time of separation, I had no access to Centrelink benefit as I had not been a permanent resident for two years. I had no money, was homeless and was desperate.

16. I have already mentioned the evidence that I have of the proceedings in the Local Court where the father was charged with assault. That evidence is in Exhibits 3 and 26 and that evidence points in the opposite direction to the written evidence I have just referred to.

17. The mother has been cross examined by the father’s barrister and the matter has settled on an interim basis prior to the mother’s cross examination by the Independent Children's Lawyer being completed. In her oral evidence the mother, apparently for the first time, claimed that almost all acts of sexual intercourse during the marriage were without her consent.

18. I also have the records from the B Group Children’s Contact Service (Exhibit 2). These records are curiously positive given the extreme reaction the child is said to have then had in January 2015 shortly after these records were made.

19. What is proposed by way of interim resolution is to have the family see an experienced family therapist with a view to exploring with the parents, the child and other relevant persons, the possibility of a meaningful reintroduction of the child to his father. Given that everybody now agrees on that course, I consider that it is in the best interests of the child to make the orders sought, notwithstanding that I have not made any determination in relation to the serious allegations of family violence.

20. In addition to the documents the parties wish sent to the family therapist, I require the Independent Children's Lawyer to forward a copy of these Reasons together with a copy of Exhibits 2 as far as that exhibit relates to the records in 2014 from the B Group Children’s Contact Service, Exhibits 3 and 26 and also a transcript which I will have taken out of Dr C’s oral evidence. 

21. I note that the mother no longer, on an interim basis, presses an application in relation to international travel.

22. The family therapist is to also consider requesting the Independent Children's Lawyer to forward relevant documents to the child’s school counsellor, if he considers that a course which would be beneficial for the child.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 22 November 2017.

Associate: 

Date:  22.11.2017