Losif & Losif
[2024] FedCFamC1F 106
•15 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Losif & Losif [2024] FedCFamC1F 106
File number(s): BRC 3570 of 2019 Judgment of: BAUMANN J Date of judgment: 15 February 2024 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Parenting – Application for Review dismissed Legislation: Family Law Act 1975 (Cth) s 67Q Cases cited: Losif & Losif [2022] FedCFamC2F 1372
Losif & Losif [2023] FedCFamC1F 1084
Rice & Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 15 February 204 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person ORDERS
BRC 3570 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LOSIF
Applicant
AND: MS LOSIF
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
15 FEBRUARY 2024
THE COURT ORDERS:
1.That the Review Application filed 31 December 2023 be dismissed.
2.That within forty eight (48) hours, and by no later than 4.00pm on 17 February 2024, the mother return the child, Z born 2018 (“the child”) to the father at G Street, Suburb H, Queensland.
THE COURT ORDERS UNTIL FURTHER ORDER:
3.That the Registry of the Court provide the Australian Federal Police with a copy of these Orders and the Reasons for Judgment delivered today.
4.That the Directions Hearing listed before a Judicial Registrar on 19 February 2024 be vacated.
5.That these proceedings be adjourned for Directions Hearing before a Judicial Registrar at 11.30am on 14 March 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
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 Losif & Losif has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The parents of the four children, W, now aged 14; X, now aged 12; Y, now aged nine; and Z, born 18 August 2018, now aged five and a half years of age, have been in conflict about parenting arrangements for their children for some time. As a result of the history which I will succinctly give next, a Senior Judicial Registrar made an Order on 29 December 2023, the effect of which was that the mother return the child Z to the care of the father forthwith. Order 3 made by the Senior Judicial Registrar provided that was to occur by 4.00pm on 31 December 2023. The mother failed to do so.
By Order 4 made 29 December 2023, the Senior Judicial Registrar indicated that if the child does not return to the care of the father in accordance with the Orders of the Court, a recovery order shall issue for the child pursuant to Section 67Q of the Family Law Act 1975 (Cth) (“the Act”), authorising the police to recover the child and deliver the child to the father. I am satisfied that as a result of the mother’s failure to return the child, a recovery order did issue. But the father says – both parties being unrepresented today – that the police have been unable to locate the child. It seems to me, with the mother very actively engaging with the Court since those Orders were made, including today, that she is well aware of the Orders of the Court, well aware of the recovery order and may well be found, ultimately, to have acted contrary to the Order in preventing the child from being recovered.
I remind the mother that a person who does not comply with a recovery order, in the way that it is alleged against the mother, is exposing her to the possibility of arrest without warrant and being held in custody pending further determination of her conduct. I made it clear to the mother today, having read the material that she relies upon to justify not returning the child, that I am not satisfied – for reasons I will now give – that they persuade me that the order I would make today should be any different than those made by the Senior Judicial Registrar.
For the Reasons which follow and are apparent from the transcript of the hearing heard today by telephone beginning at 1.00pm Queensland time, the mother’s Application for Review filed 31 December 2023 shall be dismissed. The effect of that will be that the child will be recovered. I propose to make a further order so as to relieve the child of the stress associated with being collected by police officers and returned to the father – noting that the police, once they find the child, will have no other discretion but to rely upon the order and to execute it – that the mother shall have 48 hours from today – that is, by 4.00pm Saturday – to return the child to the father at the father’s home address, as set out in the order I make today.
The mother says that she is unable to travel (she is currently living in New South Wales) because of a bad back which she has suffered for some time. I do not suggest she does not have a bad back. The mother indicated that was the reason she failed to comply with another Order made by the Senior Judicial Registrar, namely that by 9 February 2024, she file a Response to the father’s Initiating Application that he recently filed, supported by affidavit and other material. She said she shall do that by tomorrow.
As I indicate to the parties, the matter will next come before a Judicial Registrar at 11.30am on 14 March 2024. That will also be in my order. By that stage, it seems that the mother will have filed her material. It is important for context into why I make the decision today dismissing the Review Application, which I accept is a hearing de novo, to identify the history in this matter.
On 13 October 2022, Judge Tonkin of the Federal Circuit and Family Court of Australia (Division 2) published Reasons and made Orders in respect of the parenting dispute between the parties. I will shortly refer to some of the very critical findings made by her Honour in the Judgment.
That decision was not the subject of appeal and the Orders made by the learned Judge were to the effect that the father would have sole parental responsibility for the four children earlier named, including Z; that the children would live with him and that the mother would spend time at least, under Order 7, during school holiday periods and – it has been also interpreted under Order 9 – on the fourth Saturday of each school term. I should say that at least on my interpretation, Order 9 is inelegantly expressed and could lead to other conclusions as to time, but that is how the parties have interpreted it during 2023.
There is no doubt that the Orders of the primary Judge were a matter of great distress, I suspect, and disquiet to the mother. Nonetheless, 10 months after that Judgment, the mother withheld one of the children. The father sought a recovery order. The mother, as she is doing today, filed a Response seeking residence of the four children. On 15 August 2023, a recovery order issued. The matter was transferred at that stage to Division 1. Further material was filed by the parties at that stage and Jarrett J, on 17 November 2023, dealt with an application by the father that the mother’s Application, effectively seeking significant changes to the Orders made by Judge Tonkin, should be summarily dismissed, effectively in accordance with the principles of Rice & Asplund (1979) FLC 90-725.
On 20 November 2023, the mother sought to adduce some further evidence. Jarrett J published Reasons on 15 December 2023 in which he indicated he was not prepared to reopen the parenting proceedings. Although the father at once stage had sought variations to the final Orders made by Judge Tonkin, he – sensibly, in my view – decided not to press that variation at that stage, notwithstanding that the recovery order had issued some months earlier. The effect of the decision of Jarrett J (reported at Losif & Losif [2023] FedCFamC1F 1084 was to bring the then parenting proceedings to an end. However, his Honour properly identified – in my view – that there was a difficulty or clarification required in the Orders made by Judge Tonkin.
His Honour took further submissions from the parties, and on 20 December 2023 – I note, five days before Christmas – made an Order by consent clarifying the time the children would spend with the mother for the forthcoming Christmas school holidays. Relevantly, it provided that the children spend time with the mother in the Brisbane area at a place that is agreed on 23 December 2023, from 10.00am until 3.00pm. In making his decision, Jarrett J made the observation that although the mother had some concerns about, in her view, the safety or neglect of the children – including medical attention and the like – the lack of evidence and the nature of those concerns were not sufficient to represent a material and substantial change of circumstances which, in accordance with the principles, would make it in the best interests of the children to revisit parenting proceedings.
Sadly, the parenting proceedings will be revisited because the father now says, by his Application earlier referred to – to which the mother will respond – that the children should now spend no time with their mother. The reason the recovery order issued is because the mother chose not to return Z. Z is the youngest of the group of four siblings. The father confirmed, as one might have expected, that Z was enrolled to commence school in Queensland for the start of this school year. The mother’s actions have prevented the child from attending school. In essence, the mother says she is justified in taking this action, contrary to a number of Orders of the Court, because the child is at risk.
I made it clear to the mother that she will have, of course, every opportunity to run her arguments in relation to risk in respect of one or more of the children, because the father’s Application to change the orders has enlivened the Court’s jurisdiction to make orders. However, having given her the opportunity today to confirm she will return the child to the father – when I indicated for the reasons I am now delivering orally, her application for review would be dismissed – the mother’s response, effectively, was no, relying, it would seem, upon other people’s advices to her. That is totally inappropriate, and sadly, it must be observed, consistent with some of the mother’s attitude and behaviour as found by Judge Tonkin.
Let me explain why I say that is the case. I do so by reference to my concerns about a report by a clinical psychologist retained by the mother to provide a report that she relies upon heavily in this case.
On 7 February 2024, the mother filed an affidavit that attached a report from Ms J. The report, which I will deal with shortly, indicates that she was originally retained by the mother – by way of referral from a general practitioner it seems – to assist the mother to develop a better understanding or arrangement with her children.
Let me stop at this stage to make it clear that I accept the mother feels seriously distressed by the situation of the children living with the father and spending time with her. It was, in some ways, a sensible thing for her to obtain some psychological support around those Orders. However, what is apparent from the report of the psychologist is that she chose to retain the same psychologist (who practices in X and has conducted all the sessions with the child by Telehealth) – apparently, without any consideration by the psychologists about the inadvisability of a therapist moving from providing therapy for one person and then engaging in the therapy of a child.
I would not expect the mother to understand the protocols in that regard, but I found, at first blush, the actions of the psychologist to be unusual. I also find it somewhat unusual that the mother, having decided to retain the child in her care contrary to the Orders of the Court and, I infer, a knowledge that police were seeking to recover the child under the Court Orders made, engaged in a number of sessions with this psychologist for Z. He had nine 60-minute sessions in early 2024 – all preceding the report. This level of interaction by a therapist is highly unusual, and even more so in circumstances where it is abundantly apparent that the psychologist did not have an overall, balanced view of the history of this matter.
The mother said, when this was put to her today, that she did not know she could produce the Judgment of either Jarrett J or Judge Tonkin to the report writer. However, I am satisfied on the face of the report that this psychologist has not had a full picture in which to form some opinions, and as a result, I am unable to give any significant weight to nearly all of her opinions – other than some of the comments that she records the child making to her.
Let me explain this comment by reference to the matters which do not appear anywhere in the psychologist’s report by way of background, which are found in the Judgment of Judge Tonkin (see Losif & Losif [2022] FedCFamC2F 1372). For example:
(a)At [54], her Honour said:
I am satisfied on the evidence that the father is both capable and willing to ensure the children’s medical needs were met, provide the children a nutritious diet, follow up recommendations for assessments, ensure the children attended school – in particular, to support [Y] in that process.
(b)At [134]:
[W] told [Mr K] (the report writer), “I felt bad for my dad writing this stuff. I was so confused.” She told [Mr K] that her father, “never hurt or touched her inappropriately.” When interviewed by [Mr K], [W] denied ever being touched inappropriately. The mother claimed [W] was pressured to change her story by the father. She claimed that [W] made that statement to [Mr K] because she was scared of the father. I reject the mother’s evidence.
(c)At [140]:
The mother continued making allegations that the children were at risk to the Department of Child Safety, at least until [early] 2022. I formed the view that her conduct was likely to be a desperate attempt to have the children returned to her care, and she was prepared to say anything harmful about the father to that end.
(d)When referring to the issue of alleged sexual abuse at paragraph 147, the tenor of that paragraph is that Judge Tonkin was satisfied that the allegations of sexual abuse made against the father were false. Her Honour found that W, under the influence of the mother, fabricated the allegation that her father touched her private parts or behaved in an inappropriate sexual manner towards her. Her Honour found that the mother encouraged W to continue to make false allegations of sexual abuse against her father. Her Honour found the mother fabricated the allegation that X had been sexually abused by the father;
(e)At paragraph 148, her Honour made a finding that she was satisfied that the mother set out on a course of conduct to make serious false allegations against the father in an attempt to ensure the children remained in her full-time care. The Judge clearly rejected the mother’s evidence about the allegations, which were, in her Honour’s description, inconsistent;
(f)Importantly, at [148], her Honour made the finding that she accepted the evidence of the report writer, Mr K, that the mother is unlikely to desist from making allegations against the father. She found that the mother is making false allegations that emotionally abused W in influencing her;
(g)The Judge found that the mother has little or no reflective capacity or ability to understand how her behaviour impacts on the children, and she was concerned that the mother’s attitude towards the father is unlikely to change;
(h)The mother says to me that she continues to be alert to the children’s medical needs and that the father is not. At [151], her Honour made the finding that from the evidence at that time, during the first trial, the mother failed to follow up recommendations by medical practitioners with respect to the children’s diet; administered a substance contrary to medical advice; failed to ensure the children’s vaccinations were up to date and failed to follow through with recommendations for Y, including a medical condition and inability to engage with teachers and attend school; and
(i)There are other serious allegations at [169], almost in summary. Her Honour was satisfied that there remains a risk to the children of emotional abuse and harm if the children spend substantial and significant time with their mother for the reasons discussed above. In particular, the risk included that the more time the children spend with their mother, the greater the mother’s opportunity to fabricate allegations against the father.
This court is entitled, and in this case, does adopt those findings at that time made by Judge Tonkin. They provide a context for the mother’s behaviour today.
Concerned as I was that the mother felt that the Court might just ignore, as, frankly, it could have done, the somewhat biased and unbalanced report from a clinical psychologist in X without any understanding of this history I have just given, the father was put under pressure to provide, and did provide, an affidavit, which he swore on 13 February 2024, answering some of allegations made, allegedly, by Z in these very intensive, ongoing therapy sessions (if that is what they were) with the psychologist. I am satisfied the father has done so.
I see no particular need to explain why I do not accept the mother’s version of facts at this stage based on the alleged statements by Z around things like the respiratory issues; the child being hit by his siblings; the alleged emotional abuse of the children (which the mother says arises from the children not being encouraged to call her “mum” ) and, somewhat bizarrely in my view, an allegation that the father allowed this child to come into contact with an electric fence, thus causing him significant injury. The father, as an example, at paragraph 81 of his affidavit filed 30 January 2024 and reiterated at paragraph 30 of his affidavit filed 13 February 2024, gives evidence that the fencing on his property is safe. It is used to contain livestock, and he says the fences are, “100% safe for adults and children.”
He noted the fence is operated by two methods. At paragraph 83 of his earlier affidavit sworn 30 January 2024, the father noted that the mother became aware of the child receiving a shock from the fence. The suggestion by the mother that in some way the father is exposing this child to unacceptable risk through the fencing is almost laughable.
In summary, and sadly, this mother has demonstrated an inability to accept the findings made by the trial Judge, Judge Tonkin, which had the significant effect of the children living with the father and spending limited time with the mother.
The father has sole parental responsibility. The mother has found it difficult to accept that and has looked for opportunities, as the need for a recovery order in August 2023 and the most recent recovery order suggests, to take control of the situation. She has now created a situation where the father’s Application that she spend no time or communicate in any way with the children is going to be considered by the Court. She will, of course, have an opportunity to respond. There may be other evidence, once tested, that provides some further context, but at this stage, the mother is, in my view, acting contrary not only to orders, but the best interests of Z in not returning him to his father immediately, and thereby exposing the child to at least the distress of being collected by members of a police force.
She is already, in my view, possibly emotionally distressing the child by not permitting him, as he would have anticipated, beginning school this year, as no doubt he was being prepared to do. She also fails, it seems to me, in any of her material, to take into consideration the effect on the four siblings of the youngest being away from the group. Almost her total focus is on continuing to raise allegations against the father and to challenge his capacity as a parent. I am comfortably satisfied that it is not only in the best interest of Z, but proper to dismiss the Application for Review filed by the mother. I have made the further order today that the child should be returned by the mother within 48 hours.
It is not for this Court to engage, once a recovery order has been made, with the authorities who are empowered to execute that order. However, the Australian Federal Police are to be provided with a copy of this Judgment and at least the order today with an encouragement that they again seek to recover the child. Finally, I would urge the mother to contact the police, and if she is unable to return the child to the father within the timetable set by the order today, at least in the best interests of little Z, have the child placed in the care of the police so they can return the child by arrangement with the father.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 6 March 2024
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